16 June 2004


The Perfesser objects to Berkeley students' attempts to oust John Yoo from the faculty for his part in one of the "torture memos." As inexcusably inept and morally unacceptable as was that memo, the Perfesser is right: it is not grounds for removing Yoo from an unrelated position. That such a removal would also implicate academic freedom is beside the point.

The real problem is one of the profession as a whole. As I've remarked ad nauseum before, the "self-regulating" legal profession doesn't. (It's sort of like "friendly fire"—which isn't.) Whether Yoo (or, for that matter, Walker) could, in theory, rely on a lawyer's duty to explore all potential legal justifications for a client's proposed course of action is irrelevant. The problem is that nobody would do anything about it in the professional sense; and, absent such action, there certainly aren't grounds for removing a professor for pre-hiring advocacy.

The obvious counterargument is that the Yoo and Walker memos are political speech that necessarily push the envelope of legal doctrine. Perhaps so; but only perhaps, and only in theory, because neither memo does something that is absolutely critical to an intellectually sound—and even intellectually honest—analysis of the "extreme" position: Neither memo acknowledges potential counterarguments, nor the weight of authority, nor the preconceived notions. Instead, both memos essentially assume their conclusions. Although that's poor argumentation, and perhaps indicates a need for careful evaluation of other arguments by that individual, the standard for being a professor is not lifelong perfection in argumentation. It can't be; nobody could meet that standard.

As reprehensible as I think Yoo's memo, and as damning of his intellectual honesty as I think Yoo's memo, using it as justification to interfere with his unrelated academic career is at best a post hoc rationalization. We do enough of those in the law without stretching this far. Further, the subject matter seems to be at the foundation of this problem. Has anyone looked at the prior securities-related memoranda of attorneys who later went into academia after revelation of outright fraud? Has anyone looked at the prosecutorial careers of former assistant US Attorneys on, say, search and seizure in the war on drugs? If one is arguing that the method of argumentation is enough to implicate suitability as an academic, confining examination of poor argumentation to the most emotionally charged contexts is itself pretty poor academic performance.

Then again, it's entirely possible that having a professor with a tendency toward unsound argumentation can actually help the careful student. I had one visiting professor in law school who just didn't understand a major area in the course syllabus. That area later arose in practice for me; and I was prepared to react to an unexpected position because I had been forced to struggle with the unsound views and argumentation technique, and thereby (IMNSHO) improved my own. At least, I won, both below and defending the position on appeal.

The Perfesser's closing comment reminds me too much of my undergraduate days.

The attack on Yoo is a blatant attempt at intimidation, with threatening implications for any professor whose views depart from those deemed politically correct by his/her students. If Berkeley does not support Professor Yoo, it will send a message throughout the legal academy that faculty can be bullied and intimidated into silence.

I went to a rather liberal school as an undergraduate. Air Force ROTC was just returning to the university, but remained actually located at another local university—probably because its on-campus office had been bombed a few years previously during the height of the Vietnam protests. I attended not very long after the fall of Saigon; and I was called a "babykiller" more than once, particularly since I was wearing my cadet uniform to classes in English and history and philosophy, not just to chemistry and biology lectures. The undercurrent of "political correctness" before that phrase came into vogue ran both ways; and, at its extreme, it was unhealthy and diminished the learning and research experiences. Fortunately, even at so left-leaning a school the overall devotion to academic freedom from both the students and the faculty was far too strong to reach the level of noise coming from Berkeley concerning Yoo.