Law and Nonlegal Norms in Government Lawyers\u27 Ethics: Discretion Meets Legitimacy

This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a legal entitlement not to be prosecuted, nor does anyone else—official or private citizen—have the power to compel a prosecutor to bring charges. The president possesses nearly unconstrained discretion to grant clemency to people convicted of criminal offenses. The impeachment power of Congress is constrained only by the Constitution’s requirement that the president be charged with certain enumerated offenses, including the open-ended phrase “high Crimes and Misdemeanors.” In other areas, a government official may possess the legal authority to do something but may nevertheless be criticized for exercising that authority contrary to standards that are not reducible to positive law. The question is, what standards, norms, or ethical values, if any, constrain the actions of lawyers advising government officials who exercise their power within discretionary unwritten areas of the law? In other words, is there a type of official discretion that is distinguishable from the exercise of raw power or whimsical decision-making, despite being unconstrained by positive law? If so, what is its relationship to positive law and its claim to legitimate authority

Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions

One who shared Hauerwas\u27s theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper\u27s well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while the law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, citizens are necessarily required in some cases to seek advice from legally trained professionals to determine whether their proposed course of conduct may violate the law, or to employ mechanisms provided for by the legal system (such as contrasts, wills and trusts, and business entities) to achieve their goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients’ conduct; rather, they should assist their clients in implementing their own plans, providing technical assistance but not moral suasion. As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about, in which the autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community -- for Hauerwas this is the church -- and sharing in the ongoing development of its history. Thus, one may ask whether a Christian lawyer can follow some version of the standard conception, at least on Hauerwas\u27s conception of Christian social ethics. With considerable hesitation, given the size and complexity of the corpus of Hauerwas\u27s scholarship, this paper attempts to offer an engaged Christian legal ethics in which the primary obligation of lawyers, acting in their professional capacity, is to respect the law. The linchpin of the argument is a critique of Hauerwas\u27s anti-liberalism. Hauerwas’s objections to liberalism do not hold against a theory of politics that begins with foundational assumptions other than deracinated individuals, and assumes that politics is something more than merely a technology to satisfy pre-existing wants. A different liberal theory might assume, by contrast, that people have reasons to live together in communities and work out a common approach to living together, while treating one another as equals. To the extent there are good theological grounds for treating one another as equals, this version of liberalism can be understood as a political response to God’s presence in the world. A consistent theme in Hauerwas’s work is the dependence of values upon communities, traditions, and stories. I do not see why part of a community’s tradition and self-understanding cannot be pluralism and the corresponding need for some means of dealing with one another despite empirical uncertainty and disagreement about morality. If a community’s history and traditions can be so characterized, then any duties a citizen, public official, or lawyer may have toward the community’s institutions, including the legal system, may be understood as a way of expressing respect for one’s fellow citizens

The Bait Purse-seine Fishery for Atlantic Menhaden, Brevoortia tyrannus, in the Virginia Portion of Chesapeake Bay

Through the mid 1990’s, the bait purse-seine fishery for Atlantic menhaden, Brevoortia tyrannus, in the Virginia portion of Chesapeake Bay was essentially undocumented. Beginning in 1995, captains of Virginia bait vessels maintained deck logs of their daily fishing activities; concurrently, we sampled the bait landings for size and age composition of the catch. Herein, we summarize 15 years (1995–2009) of data from the deck logbooks, including information on total bait landings by purse seine, proportion of fishing to nonfishing days, proportion of purse-seine sets assisted by spotter pilots, nominal fishing effort, median catches, and temporal and areal trends in catch. Age and size composition of the catch are described, as well as vessel and gear characteristics and disposition of the catch

Philosophical Legal Ethics: An Affectionate History

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory

Collector Failures on 350 MHz, 1.2 MW CW Klystrons at the Low Energy Demonstration Accelerator (LEDA)

We are currently operating the front end of the accelerator production of tritium (APT) accelerator, a 7 MeV radio frequency quadrapole (RFQ) using three, 1.2 MW CW klystrons. These klystrons are required and designed to dissipate the full beam power in the collector. The klystrons have less than 1500 operational hours. One collector has failed and all collectors are damaged. This paper will discuss the damage and the difficulties in diagnosing the cause. The collector did not critically fail. Tube operation was still possible and the klystron operated up to 70% of full beam power with excellent vacuum. The indication that finally led us to the collector failure was variable emission. This information will be discussed. A hydrophonic system was implemented to diagnose collector heating. The collectors are designed to allow for mixed-phase cooling and with the hydrophonic test equipment we are able to observe: normal, single-phase cooling, mixed-phase cooling, and a hard boil. These data will be presented. The worst case beam profile from a collector heating standpoint is presented. The paper will also discuss the steps taken to halt the collector damage on the remaining 350 MHz klystrons and design changes that are being implemented to correct the problem.Comment: LINAC2000 conference paper THE1