The Internal Relations of Government: Cautionary Tales from Inside the Black Box

Strauss, Peter

Who is the government lawyer’s client is, indeed, a complex question. The
adage inscribed on the Justice Department, that the government wins its case in
court whenever justice is done, reflects an ambiguity about client loyalty that
infects even the most direct of representations. It is, at the same time, a check
on public power—no “good soldier” defense will be recognized here—and an
invitation to the exercise of personal will. It can be very hard to tell the difference,
particularly where the nature of the client is also diffuse. Thus, the difficulties
are enlarged by the unsettled character of structural issues within the
Executive Branch. Limited domains of hierarchy, limited capacities to secure
uniformity, limited settings in which it is even sought—all these conjoin, also, to
produce an ambiguity about obligation, within which the individual government
lawyer may find considerable room for maneuver. And finally, as perhaps
in any very large organization, specialization of lawyerly function can produce
its own distortions. The litigator’s imagined client may be quite other
than the planner/counselor’s. The two cannot be brought together; it will be
rare that a single voice will be heard. In the end, as Francis Lieber remarked in
a quite different context, “somewhere we needs must trust at last to common
sense and good faith."


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Law and Contemporary Problems

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Duke University School of Law
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April 14, 2016