This panel will discuss the role of lawyers — particularly government lawyers — in addressing questions of legal policy. We will discuss fundamental questions such as: Should lawyers decide legal policy? Or, is that best left to the policymakers? Should lawyers give advice as to legal policy, or should they stick to providing answers as to what the law is? How should lawyers respond to what a policymaker thinks is the legal question, but is really a question of legal policy? If lawyers find the law vague or lacking, should they fill in the gaps, advising as to what the law should be? Was Secretary of State Rice right when she warned the American Society of International Law that lawyers should not stretch laws, such as the Geneva Conventions, to apply to circumstances they were not designed for? Did the Office of the Justice Department’s opinions on interrogation techniques stretch in the other direction when they held that laws did not restrict the President’s authority? Should lawyers indicate the quality of the response to a question? For example, should they say how a court would, or should, decide, or is it just enough to say that this is a reasonable answer and others may differ? What should a government lawyer do after losing an intra-governmental policy argument on a legal issue? Is the answer different if the argument was over a legal policy issue?
International Law | International Relations | Law
Philip C. Bobbitt, John D. Hutson, John C. Yoo, Philip D. Zelikow & Edwin D. Williamson,
Are We Over-Lawyering International Affairs,
Chap. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3794