W. Bradley Wendel, Cornell University School of Law, is publishing Sally Yates, Ronald Dworkin, and the Best View of the Law in Michigan Law Review Online. Here is the abstract.
In her letter to President Trump, Acting Attorney General Sally Yates stated that her refusal to enforce the executive order banning travel from seven Muslim-majority countries was "informed by [her] best view of what the law is after consideration of all the facts." Yates's claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community's political morality. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality. There are two reasons for denying that lawyers should seek the best view of the law. First, Dworkin's jurisprudential vision has always sat uncomfortably with the fact of moral pluralism. He has very little to say about the possibility that a faithful reconstruction of the community's moral principles will establish that there are multiple moral narratives potentially bearing on the same question of legal interpretation. The second reason is the need to preserve the legitimacy of law as a normative system that resists reduction to either political preferences or raw power. The capacity of the legal profession to resist the naked exercise of power depends on the perception that there is a difference between what is lawful and what is in someone's interests, whether those of the President or of some imagined cabal of liberal opponents. By referring to the obligation to "seek justice and stand for what is right," Yates left herself open to the criticism that she was acting as a partisan who objected to Trump's executive order on policy ground, not an impartial gatekeeper advising the administration on the legality of its proposal.Download the article from SSRN at the link.