Teaching the Torture Memos

I’m wrapping up Chapter 2 today, teaching the pieces by Luban and Mukasey/Filip on the torture memos that appear at the chapter’s conclusion. This article from Clare Keefe Coleman has been helpful in framing the discussion: Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty,” 62 J. Legal Educ. 81 (2012). Abstract follows the jump.In the wake of the ethical lapses of lawyers evident in the 2009 financial collapse and the release of a government memo permitting the CIA to waterboard suspected terrorists, public commentators and legal theorists have joined legal education scholars to call for law schools to teach moral judgment making.
Questions of how morality should be taught are as old as Aristotle and, today, occupy thinkers from neuroscientists to legal scholars. The current discussions about teaching moral judgment to law students fall into three categories: the model of David Luban, among others, which advocates teaching judgment in the clinical context using Aristotelian virtue ethics; a normative approach, championed by W. Bradley Wendel, which would prevent lawyers from making moral judgments unless they are based solely on legal principles; and the intuitionists approach, trumpeted by Cass Sunstein and others, who question the value of teaching students techniques or systems of addressing moral questions at all.
This Article suggests that the normative approach leaves students ill-prepared to deal with moral judgments that may arise in practice; and it challenges the intuitionist approach by looking at current work in the social sciences and neuroscience about the development of moral identity in young adults. This Article then offers a new approach to introducing law students to moral judgment making, one based on the writing of philosopher Susan Neiman whose reason-based approach looks at particular and actual moral questions and focuses on the character of the action, in contrast to the Aristotelian model of looking at the character of the actor.
Against this background, this Article then shows how law faculty can use two of the Torture Memos, drafted by a George W. Bush administration lawyer, to introduce first-year law students to moral judgment making. In doing this, the Article places the Memos in a historical condition of uncertainty and then applies Neiman’s reason-based approach to examine the moral judgments inherent in the writing of the Memos.

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