There is an increasing and disturbing trend of criticizing lawyers for the clients they represent and for advancing arguments that are well within the bounds of zealous advocacy. Former acting Solicitor General Neal Katyal is the latest such target. Having first been attacked from one side of the political spectrum for representing alleged enemy combatants held in Guantanamo, he is now being hit from the other for representing Nestle in a suit alleging that Nestle aided and abetted abhorrent child labor practices abroad in violation of international law. In both cases, the criticism is equally misguided. Katyal was neither defending the waging of war on America nor defending child slavery. Instead, he was ably advancing detailed and somewhat technical arguments about the scope of federal statutes. The idea that in doing so in this latest matter he was defending child slavery is simply wrong.
I write not out of friendship but because this kind of criticism poses real risks to the health of our legal system, which depends on the zealous representation of both sides in a controversy. Simply put, without able lawyers willing to represent both sides of a legal dispute, our legal system cannot function at its best. And without lawyers willing to defend unpopular clients, litigants cannot receive the due process that our Constitution guarantees them.
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