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High-Level, "Tenured" Lawyers

Merrill, Thomas W.

Debates over the future of the civil service are usually couched in terms of a trade-off between accountability and impartiality. If that were all at stake, I would tend to take the accountability side, at least insofar as government lawyers are concerned. To put the matter in the larger framework so ably developed by my colleague Steve Calabresi in this symposium, government lawyers must serve as "advocates"and "ambassadors"for the incumbent Administration's political/legal viewpoints, and these roles surely require a strong dose of accountability-stronger than one ever gets from tenured lawyers. I have argued, however, that there should be another dimension to the debate: what might be called the trade-off between transience and stability. High level tenured lawyers bring a long-term perspective to legal problems that is lacking in political lawyers. This long-term perspective generates various forms of institutional capital associated with the values of predictability, consistency, protection of reliance interests, and respect for tradition. These values are especially important in matters of government. Government ultimately rests on coercion. With the threat of coercion in the background, legal arguments will be more persuasive if they are leavened with a healthy respect for continuity with the past. Thus, political lawyers will perform more effectively if they are backstopped by high-level tenured lawyers, who bring with them a natural tendency to promote continuity. This enhanced effectiveness applies, moreover, regardless of which function political lawyers are asked to perform-including advocating the President's constitutional vision.

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Also Published In

Title
Law and Contemporary Problems
DOI
https://doi.org/10.2307/1192336

More About This Work

Academic Units
Law
Publisher
Duke University School of Law
Published Here
November 13, 2015
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