The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers generally; however, the legal academy has yet to explore the centrality of professional independence to administrative law or the structural pressures influencing its exercise. This Article joins a body of work that adopts a new institutionalist approach to professional misconduct. In doing so, this Article makes three principal contributions: (1) it outlines why institutionally sustained professional independence is essential to the federal administrative state; (2) it identifies institutional failings that impede government lawyers’ exercise of professional independent judgment; and (3) it proposes institution-based solutions to facilitate professionally independent conduct by government lawyers. By insulating government lawyers from excessive interference on core professional judgment calls, civil society may rely on these lawyers to help protect the basic structure of the rule of law.
Institutional Independence: Lawyers and the Administrative State,
87 Fordham L. Rev. 1937
Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss5/7