JOHN YOO CANNOT POSSIBLY BE AS EVIL AS THIS SO-CALLED PERSON

I was considering the merits of standing quietly in the back of every one of his classes with a large sign that said LIAR.

Maybe tactics like that could shame him into leaving.

Of course I'm not in California. But dammit, if he eer comes to teach at a community college outside of cleveland, I'll get him!

I can imagine the footnoted disclaimers sacking Yoo would inspire[*].

I am going to limit myself to two blog comments per day, to prevent heart attacks.

[*] The opinions expressed here are not necessarily those of the author.

Most of the plans I've seen so far seem to be modeled around one of two kinds of scene from a certain sort of movie: the scene where a panel of five men and women sitting on wooden chairs in a lecture hall packed full of people tell Yoo, after a tension-filled discussion, that his tenure has been revoked -- applause all around; and the I-am-Spartacus scene where those brave law students, led by the radical character at first but then quickly followed by his girlfriend and the semi-bad guy, all stand up in protest and leave the class on the day of finals. ("You're law careers are over!" shouts actor Yoo. "No, yours is," says the hero.) I'm afraid neither seems especially likely.

Everyone really should read the New Yorker article on the attacks mounted against Nadia Abu El Haj -- but take a beta blocker first.

On the assumption (bad assumption, I know) that you're not just baiting me out of boredom--because, dude, Cala thinks I'm right, which means I already won this argument--

What Rauchway wants to do--and it certainly makes sense for an academic to want this--is to deal with Yoo while effectively insulating faculty from extra-academic pressure.

No, what Rauchway wants to do is to have departments of justice and courts do their job. It's just flabbergasting that you want the UC to do what the legal system is supposed to do. Or perhaps it testifies to the evident decadence of the legal system.

I think the rest of us should push pretty hard when there's a clear case of the university shielding a horrible person who facilitated horrible things.

The UC is not shielding Yoo, it's employing him. If a prosecutor gets a warrant, I bet you dollars to donuts the UC won't lift a finger to stop the cops executing it.

You want to push? Push your legal system.

I don't understand why you think this is a strictly legal issue. Is it that lay people aren't qualified to pass judgment even on Yoo's moral turpitude? That's seems unduly rigorous. We can read people who are, presumably, qualified to judge who judge him harshly.

Last name of El Haj, you say? Deserved it. (Whatever "it" was. I don't read the New Yorker: Pinko Jew propaganda. For god's sakes, it has New York right in its title. Read between the lines, people.) There, blood pressure problem solved.

Isn't Ogged arguing that the bar for revocation of tenure ought to be set a bit lower than "convicted, by court of law, of war crimes"?

First, we need to encourage the Yoos to procreate....

Slightly off-topic:

Our provost told us tenure-track people that each year he advises the tenure committee to consider the question, "Do you want this person to be your colleage forever?"

Is this a totally bizarre entre to a popularity contest? Or is this the norm at all schools? Either way, the new president sacked the provost, so it's moot.

I don't understand why you think this is a strictly legal issue

The question of whether he committed or was an accessory to war crimes is a strictly legal issue. The question of whether the UC should fire him is different, as I point out in my post and ensuing comments.

Isn't Ogged arguing that the bar for revocation of tenure ought to be set a bit lower than "convicted, by court of law, of war crimes"?

I think I get what you're saying here, but I think the metaphor is wrong. Which is to say, there are ways to fire someone who has tenure, but there's not a sliding scale of offenses on a single axis. There are several things you can do--you can be convicted of a crime, for example. If so, you can be fired. But I really, really don't think it's the UC's job to essay a probabilistic judgment as to whether you would be convicted of a crime, let alone to try you.

The question of whether the UC should fire him is different

Yes, but you try to narrow the range of possible grounds for firing to (shorthand) academic malpractice. What I'm arguing is that that's too narrow

12: I don't understand why firing him for what he did in the WH affects the scholarly discourse. To the best of my knowledge, the WH fought the release of the memos, and didn't much want them added to the discourse. If you found out that a professor had beat multiple pedophilia raps on a technicality after he'd been given tenure, I think the university would still find a way to fire the professor.

That said, I still think informal methods of community policing are the best. And counting on law professors to police their own is a joke; it's openly a joke as to doctors, and why it should be different for law professors isn't clear.

It does seem wrong to me to fire a professor on account of his role in abetting nonsensical wars and slides toward fascism, or homicide, or child molestation, as long as it doesn't affect his academic abilities. This is why procedural liberals like myself and Dr. Eric are always backing down on everything and earning the scorn of those in America's Heartland.

I'm out for a few hours, unfortunately; don't let Rauchway push you around.

Can't the torture memo itself be a form of academic malfeasance? Deliberately misrepresenting sources is an offense against the norms of scholarship. Perhaps it not as grave an offense as cut-and-paste plagiarism, but it is about as bad as putting sock puppets in your footnotes, which is what got Ward Churchhill fired.

So did any of the people who are counseling restraint on the Yoo question made any concrete attempt to defend Ward Churchill or even Joseph Massad? Was that already discussed at length and I missed it?

Does anyone even remember Herbert Marcuse? Not to mention Scott Nearing.

If the good side has a chance to exact some payback, then I say: Take it! Turnabout is fair play.

In general, if you use the Ward Churchill firing as a bar, I'm certain you have a case against Yoo.

or child molestation,

I was hanging around Yale when Antonion Lasaga, a Geology Professor (and Master of one of the Colleges) was caught, tried and convicted on Child Pornography and molestation charges. He was in jail well before his tenure was revoked.

you try to narrow the range of possible grounds for firing to (shorthand) academic malpractice

Well, look, it's not me. It's the UC, borrowing from the AAUP. From the UC Faculty Code of Conduct:

University discipline under this Code may be imposed on a faculty member only for conduct which is not justified by the ethical principles and which significantly impairs the University's central functions as set forth in the Preamble.

So what does this include? As enumerated, it includes
(a) various kinds of mistreatment of students (pages 5-6). I don't think this applies here.
(b) "Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others." (6) Let's withhold judgment on this one.
(c) various forms of disruption of the University community (7) Again, not applicable.
(d) Various forms of bad behavior with respect to colleagues. (8) Again, not applicable.
(e) Pretending to represent the UC when you don't and "Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty." (9)

So. (e.2) is the reason I think you can say all you like about Yoo being a war criminal, and where the bar is, but you can't do anything about it until the prosecutors and the courts do their job. Why don't you write the prosecutors, I ask again?

And (b)--that's scholarly malpractice. Which may or may not apply. But the reason I say it comes down to that is, well, look at the list and tell me it doesn't come down to that.

Unless of course it can be shown that some of the people he's allegedly responsible for unlawfully harming were UC students or employees. Then you got something.

I'm content using (b).

Can't the torture memo itself be a form of academic malfeasance?

In general, if you use the Ward Churchill firing as a bar, I'm certain you have a case against Yoo.

Could be.

I'm standing by my claim of scholarly malpractice. His misconduct is related to his profession. It's not like he was running a prostitution ring on the side. He is a lawyer teaching people how to interpret the law, and when he was interpreting the law as a professional, he abused all cannons of legal reasoning and intellectual honesty to justify torture.

Geez, to we have to prove that the torture memo was plagiarized?

I'm content using (b)

I should hope it's clear I think this is the only viable route. Even still, I'm not sure. Does Yoo's memo count as research scholarship? Or is it more like free speech? Here I bet there are legal precedents about the standing of a law professor's consulting work, or similar, which apply, and of which I'm woefully ignorant.

Well, Bob Dylan finally won the Pulitzer prize. That should help his career.

to we have to prove that the torture memo was plagiarized

No, I think that the relevant committee would have to prove to its satisfaction that it constituted some kind of "research misconduct" serious enough in itself to warrant action.

to we have to prove that the torture memo was plagiarized

No, I think that the relevant committee would have to prove to its satisfaction that it constituted some kind of "research misconduct" serious enough in itself to warrant action.

I was hanging around Yale when Antonion Lasaga, a Geology Professor (and Master of one of the Colleges) was caught, tried and convicted on Child Pornography and molestation charges. He was in jail well before his tenure was revoked.

Right, but what would have happened if he'd beat the charge? Or to a professor that mentioned that he'd raped several students at a prior institution, the last just the statute of limitations time period +1 day ago?

There have to be informal methods by which to deal with such people. What are they?

No, I think that the relevant committee would have to prove to its satisfaction that it constituted some kind of "research misconduct" serious enough in itself to warrant action.

Well fuck it, appoint the commission. I've seen enough complaints about intellectual rigor of the document to warrant at least an investigation.

What I'm arguing is that that's too narrow

I'd really like to know what you want to add to the list of the UC's sovereign powers.

I'm out for a few hours

But I guess I won't find out.

Well fuck it, appoint the commission

Fair enough. I don't have any jurisdiction to ask, though: it has to be a Berkeley-level inquiry, I'd imagine through their Privilege & Tenure committee. Talk to your friends there.

There have to be informal methods by which to deal with such people. What are they?

You decline to pour the port for them.

33: Googling Lagasa, it appears he was suspended but still paid while the trial took place. So quick kick a charge, any charge, suspend but still pay Yoo, and then harass the fuck out of him. He'll leave.

I'd really like to know what you want to add to the list of the UC's sovereign powers.

Impalings.

Let's withhold judgment on this one

The fuck you say.

I don't say this is even a hard call. All you have to do is ask Yoo, "so, point to how you distinguish Youngstown, Professor Yoo. Here, I've got the memos. Show me where that part is."

He is not just any professor. He is a LAW professor, teaching PROFESSIONALS who are going to embark on a calling to what are SUPPOSED to be very high ethical responsibilities.

I don't accept for a minute that what governs an English or philosophy professor (my two other degrees besides law, so don't think I'm picking on them) should govern a law professor. Law school is fucking TRADE school -- you go there to be a lawyer. You are not just teaching your own odd little take on what Article II of the Constitution means. You are training people to be legal practicioners. [Draws deep breath, stops rant.]

Does Yoo's memo count as research scholarship? Or is it more like free speech?

It seems to me that framing the debate around this question is quite wrong. Someone with a teaching position at a professional school is required not just to adhere to the ethics of academic research but also to the ethical standards of the profession in question. So the question to ask about the torture memos is not just whether they might violate academic norms, but also whether they're evidence of professional malfeasance.

20: I was also hanging about. We should chat. That was around the same time that a spymaster and political science teacher most definitely did not have one of his students hacked to death. Bright college years. (He did not return, but I don't think he had tenure.) Also, remember L.T. "Light and Truth" Grammer?

35: And droit de seigneur, just to be safe.

35: And droit de seigneur, just to be safe.

Same difference, right?

Same difference, right?

I was just about to type, "But I repeat myself."

The fuck you say.

I merely meant let's withhold that to the end of the comment, Anderson, where you'll note I said it's all you got.

As to your substantive point: I'm pretty sure any lawyer would agree with you that a scholarly analysis of the question would have to include Youngstown. The question is, does this count as a scholarly analysis? As I say, that's something I bet there's precedent for, and I don't know what it is.

I'd really like to know what you want to add to the list of the UC's sovereign powers.

I have already made the case for compulsory forehead tattooing.

Also, I'd point out that ogged's use of the "pitchfork" image, and Ezra's reference to "unpopular" statements, assume something not proven--that the position against torture is more popular than Yoo's in favor of torture.

It's precisely because I think that might not be true that I'd rather procedures were followed here.

The entire argument seems analogous to a discussion about when the Church should defrock priests inculpated by the child abuse scandals. If I understand Rauchaway properly, he says we should check with the Pope.

I'm pretty sure any lawyer would agree with you that a scholarly analysis of the question would have to include Youngstown. The question is, does this count as a scholarly analysis?

That's the wrong question. If a professor of medicine violates primum non nocere in her clinical work, that's a good reason to question her fitness to teach the practice of medicine, and it doesn't undermine the case to say that her clinical work isn't a form of research, and hence she didn't violate any academic norms.

If I understand Rauchaway properly, he says we should check with the Pope

There are two issues here. If you want the priests to suffer for committing a crime, then you shouldn't check with the Pope, you should go to the legal system. If you want the priests to suffer for abusing their positions as priests, you should check with the Pope.

I think that might not be true

I'm afraid you might be correct there.

The question is, does this count as a scholarly analysis? As I say, that's something I bet there's precedent for, and I don't know what it is.

It's advice to a client, which is supposed to have certain of the scholarly virtues, in particular citation of contrary authority and analysis of how it does or does not affect the analysis.

Yoo was advising people on a statute that provides for the *death penalty* for its violators, if they cause someone's death by violating it. How much more serious do you get, when it comes to the ethical obligation to provide balanced, realistic counsel?

I mean, let's put on the rose-colored glasses and pretend that whether or not to torture people was really an open question to Bush and Cheney and Rumsfeld. Let's pretend it was really important to them that they follow the law.

And they get Yoo's "lawyerly" (Orin Kerr), long-as-shit memos, and they're like, hey! all right then! Hey-ho let's go, just like the Ramones!

They're not lawyers. They don't know that Youngstown is THE case on presidential powers vis-a-vis Congress in wartime. You think Bush has even HEARD of Youngstown? Wasn't there a flood thingie there or something?

So, on the best possible construction, Yoo blew it. He put his clients in MORTAL jeopardy, all in service of his own fucked-up theories, deliberately ignoring the elephant in the room. It's not possible to MISTAKENLY omit Youngstown from a discussion like that. Not remotely possible.

There are plenty of other problems with the memos, don't get me wrong. But from when the 2002 memo came out years ago, this has been the clearest demonstration (to lawyers who aren't Bush hacks) that Yoo was not even trying to do the right thing.

If a professor of medicine violates primum non nocere in her clinical work

Yes, I thought of this, and as I say, I bet there's precedent for how you treat a law professor's legal advice and a medical professor's clinical work under the faculty code. Unfortunately, I don't know it. And since the faculty code is silent on the question, then I expect some interpretation of how that work relates to research work is the right question.

The Dino Cinel case was one of the first in which sexual abuse by a Catholic priest became known (in 1993) and is still one of the best documented. After Cinel was appointed distinguished professor of Italian-American immigration history at the City University of New York, the media discovered he had been defrocked as a priest several years earlier for having had sex with a number of teenage boys. Nevertheless, the American Federation of Teachers, which represented Cinel, argued he should not be fired--because he had tenure. As a result, it took years to dismiss him from the university.

(from)

If a professor of medicine violates primum non nocere in her clinical work

Yes, I thought of this, and as I say, I bet there's precedent for how you treat a law professor's legal advice and a medical professor's clinical work under the faculty code. Unfortunately, I don't know it. And since the faculty code is silent on the question, then I expect some interpretation of how that work relates to research work is the right question.

If you want the priests to suffer for committing a crime, then you shouldn't check with the Pope, you should go to the legal system. If you want the priests to suffer for abusing their positions as priests, you should check with the Pope.

I don't disagree with that distinction; I'm not sure anyone does. I think you've left out the ability of the parishioners to affect the Pope's thinking by leaving the Church, restricting finances, negative publicity, etc. And I suspect that given sufficient external pressure, canon law precedent proves much less a bar than initially anticipated.

Poll results: Waterboarding is torture

And with my computer randomly double-posting my comments, I must away, myself. I'll come back if I can.

Poll results: Waterboarding is torture

So if a professor of medicine turns out to have interned with Mengele at Auschwitz and to have participated in experiments there, but isn't convicted in a court of law, the medical faculty would be powerless to remove this guy?

Permit me to doubt. And for once, the Nazi analogy is spot-on.

55: I think the problem is with unfogged.

58: New mouseover text.

Is it that lay people aren't qualified to pass judgment even on Yoo's moral turpitude?

No, it's that moral turpitude isn't one of the things listed in the faculty handbook as an offense for which one can be let go.

So why not change the handbook? It isn't scholarship, and bad scholarship isn't a reason generally to revoke tenure (for better or for worse), and that's not what we're really after anyway. But I don't see a way to put moral turpitude into a retention policy that doesn't leave a lot of people vulnerable to 'I can't believe my TAX dollars are paying for THAT SHIT'-type objections. Communism? Scholars who have written in support of torture? Abortion? Infanticide? Evolution? Tell me what the policy looks like, and tell me how you separate the sheep from the goats when the goats can say they were doing it for the country, and all they did (so the story will go) was provide an argument about the President's rights, and the goats can say, we weren't even charged.

No doubt that he's evil; I can't imagine putting my name to that memo. (a grad student debate broke out once over whether there was an ethical responsibility not to argue for bad positions. Torture came up. It was concluded that if the doctrine to torture ends up being called YourLastName Doctrine, you done fucked up.)

But I can't think of a procedural way to get him that works. One doesn't have to be a member of the bar to teach at a law school; absent a criminal conviction, he can't be removed for the war crimes bit. UC seems to have post-tenure reviews (so I've heard), but I don't know how to accelerate those, and I don't know if a memo that was classified can be counted as scholarship. That's pretty much the only procedural avenue left, and I don't like its chances, especially if he's (as has been reported in a few places) a fine instructor and mentor.

Slightly less legitimately: rile up the alumni donors. (This would work better if the institution were private and religiously affiliated, but only because I know how those levers work.) Comb through everything he's ever written. Find a footnote. Then hire a reporter to go through his c.v. and find a lie. Then poor UC can't but do anything, due to the outcry and the unfortunately discovered lies, but accept his resignation.

CharleyCarp left a comment at deLong's voting for taking action, because Yoo violated legal ethics in willfully misstating the law. (If it's not willful, his interpretation is so obviously wrong that it's relevant to his competence to teach constitutional law, as Anderson said above.

Here's the comment:

Another vote for taking action. Prof. Yoo willfully mistated the law -- with respect to both Quirin (see n. 13) and Youngstown, at the least -- for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He's a mob lawyer, not fit to be considered scholar or gentleman.

A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.

Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he's obligated to say so and explain coherently when advising a client as to what the law provides.

Slightly less legitimately: rile up the alumni donors.

Why is this less legitimate? Rile up donors. If the economy's going in the tank, rile up voters over university salaries. If legal professors have lucrative other options and can't so be bullied, hold another department hostage and see if they can't exert pressure. Have the alumni start funding a chair at a competing institution, named in some fashion for the purpose. Rile up the students so that every day as he goes to work, one is there to wish him a car crash. Have his colleagues hold seminars about whether or not he's a war criminal. And await eagerly the day you have small kids and he has smaller kids.

I say impale him and then feed him to the hogs. Procedural liberalism sucks. The old ways are best.

a spymaster and political science teacher most definitely did not have one of his students hacked to death

Oh yeah, I'd forgotten about that.

There are all sorts of ways to exert pressure on Yoo to resign. Maybe it will happen.

What Ogged is arguing for seems to be different: "taking issue with where the power behind the procedure is to be located."

This is odd.

In for a moment before I have to go again, sorry: Eric, now I think you're trolling me, or having some fun constructing the case for the defense. Everyone should click through the link in 21. The document itself says that the list of unacceptable behaviors isn't exhaustive, and that those listed are derived from certain ethical principles. It's far easier to make a case against Yoo than you're making it seem.

Perhaps some kind of trade could be worked out with the Hoover Institution.

62: Well, not less legitimate, but not procedural. And usually done best not by the university. Farm it out to the trustees (or whatever.)

Maybe CharleyCarp's right and they can get him on bad professional ethics.

Go Tigers!

Go Jayhawks!

Have his colleagues hold seminars about whether or not he's a war criminal.

This one sounds like fun.

not less legitimate, but not procedural

Exactly. And if there's room in the U.C.'s code for stripping someone of tenure on the basis of certain ethical principles, how interesting.

It's far easier to make a case against Yoo than you're making it seem.

No, it's not. Tell me the basis for the case. And "I think he's a war criminal" really isn't good enough.

I'm still really curious as to why you think this isn't something that should be adjudicated by a court.

Have his colleagues hold seminars about whether or not he's a war criminal.

I only skimmed the UC code thing, but it sort of seemed like this might be viewed as harassment and could get them in trouble.

willfully misstating the law

I'm pretty sure this is the kind of thing that could fall under 21(b).

I say it's (b), scholarly misconduct, and I say that Eric's qualms based on the following

As I say, that's something I bet there's precedent for, and I don't know what it is.

are misplaced. I spend a whole lot of time looking for legal precedent on a whole lot of issues, and you'd be surprised how many questions there aren't legal precedent for. With this many academics talking about this stuff, if there were enough directly applicable precedents to be 'controlling' here, someone would know the story offhand. I could be wrong, but I'd bet a fair amount that the decision of how to apply the faculty code of conduct is up to Boalt Hall, reasoning from first principles, not from precedent.

And at that point, I have a very easy time saying it's the equivalent of scholarly misconduct. Legal work isn't exactly scholarship, but it has its own ethical obligations. And writing a memo like that (everyone's harping on Youngstown, but that's something whose absence takes the memo out of the realm of possible good-faith argument) is unethical -- if those arguments were made to a court, they would be an unethical attempt to deceive the court into believing there was no contrary precedent. That failure to meet the standards of practice required by the legal profession appears to me to be close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct.

Note that I'm not arguing that he's such a bad man that he should be fired, but that the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating)lawyer that he should be fired as a professor of law.

Just move him over into Philosophy instead and have him teach meta-ethics. As a general rule, professional ethicists are morally bankrupt individuals.

76: I'm sure that's a makable case. There's nothing in my original post or comments here that say it isn't.

those listed are derived from certain ethical principles

I missed this before, but the code clearly says the ethical principles are aspirational ideals, not things on which you can easily get someone.

This is how bankrupt the notion of "professional ethics" is. A system where someone can be fired for plagiarism, but can't be fired for helping enabling the government to torture people is not worth a goddamn thing.

the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating)lawyer that he should be fired as a professor of law.

Yes, exactly, LB.

Four years ago, the author of an article I was editing urged me to invite Yoo to provide a response to it. I declined, on the nominal ground that Yoo's views were not sufficiently different from the author's to make a response by him useful (which was true). But I was well aware that if I hadn't had that excuse I would have found another, because my real motivation, of course, was to avoid me or my publication having anything to do with Yoo (though there was not likely to be anything beyond the pale in what Yoo would have contributed). I've been moderately bothered by that ever since, what with the whole academic freedom thing.

My sense is that, internally, almost the entire legal academic community has long since dismissed Yoo as a scholar. (When I discussed the incident above with several people in his field, the advice was unequivocally to steer clear of the guy.) But I also think it's more than just procedural liberalism that will protect him: the legal academy has made a significant commitment to affirmative action for conservatives, and won't, I predict, want to risk what 'credibility' it's built on that effort by going after his tenure, or even by marginalizing him as much as they could short of firing.

At least, I think that's been protecting him for the last several years. Maybe this latest revelation will change things.

Ever since this Clinton-Obama business, I often find myself disagreeing with Ogged.

But not this time.

(b) "Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others." (6) Let's withhold judgment on this one.

Eric, I find it a bit puzzling that you would suggest we "withhold judgment" on this one. Or never mind "we" (a bunch of commenters on a blog). Presumably, there are those (not only, or not necessarily Yoo's academic colleagues, but certainly other legal academics and legal professionals) who are qualified to render judgment on the question of whether Yoo violated canons of intellectual honesty. They should not withhold their judgment on this question. This case is serious.

The "slippery slope" argument I find less than compelling. The same might be said of any code of ethics designed to govern any profession whatsoever. The possibility that the code might be abused or misinterpreted or misapplied is not a good enough reason to not have a code, or to only sort of have a code that, it's understood, should never actually be applied.

78: I think it's a pretty easy case to make. I take it that on some level the reason you can fire a professor for scholarly misconduct is to make it clear that if you, e.g., falsify data, you may not teach -- people learning to be scholars shouldn't learn that such falsification is compatible with scholarship. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is very much the same sort of misconduct, and the argument that people learning to be lawyers must be protected from coming to believe that it's an acceptable part of lawyering is closely parallel.

Cala makes the point. Procedurally, something can be drummed up. Yoo has made a mistake somewhere that can be turned into a hanging crime. And that's pathetic. We're supposed to be comforted that a trivial offense like plagiarism are punished with firing while there's no punishment for giving legal advice so thoroughly unsound that you not only authorize torture, but also put the people you're advising at risk of death for following your advice.

The faculty should rise up and demand Yoo be sacked because he knowingly aided and abetted torture, not because he wrote a bad memo or because of some other technicality. Because, frankly, any of them has committed a hanging crime like the one it's suggested could be used on Yoo. And anyone can have ideas--legitimate, challenging, unpopular and upsetting ideas--that are more than enough to piss off the donors and/or a person with the tenacity and time to go through all their old records looking for exactly the kind of fig leaf Cala is suggesting would be a solution with Yoo. Their unwillingness to face the issue head-on leaves them less, not more, protected.

Yoo is special in that his offense wasn't that he had unpopular ideas, but that he killed people. He's special because he was the guy whose literal job it was to say to the actual men with the live ammunition: "Sorry, boys, it says here we can't use these swarthy fellas for target practice."

Even more, there's no extenuating circumstances for him here. Nobody was going to kill Yoo if he told them not to torture. The worst that was going to happen to him was that he'd get fired. He can't argue he was meaningfully coerced. He wanted to be there, with these people. And apparently, it was fine if other people were tortured and died as a consequence.

Just fire him for that. You don't need a moral turpitude clause. Just fire every single person who authorizes torture when it's their job to prevent it.

Not exactly a standard that should make the halls of academia tremble. And much less of a slippery slope than all these technicalities.

Isn't there a question of what the relevant Bar Association (or whoever deals with the legal profession in this area) should do with Yoo? Or is this an "ok to stay a lawyer, but not a legal academic" situation?

It's not that it makes the halls of academia tremble, it's that there are laws governing the grounds on which contracts can be terminated, and tenure contracts + university bylaws are legally binding. I am all for a dismissal on scholarly misconduct grounds, but you (if not Yoo) have to work with the rule of the law you have.

eb, I think it would go the other way around. A lot of law professors give up their bar cards. My legal ethics professor kept his so that any students who wanted to consult him on whether there was something in their past that might make it difficult to pass the moral character requirement could invoke attorney-client privilege. He mentioned the other professor who had retained hers. Most don't bother or they may be licensed in a different state. (To work for the Feds in D.C., you only need to be licensed in a state or D.C>. obviously.)

Eric, I find it a bit puzzling that you would suggest we "withhold judgment" on this one.

I believe that's "let's wait til the end of this comment", not "let's pretend that isn't grounds to go after the dude.

85's Their unwillingness to face the issue head-on leaves them less, not more, protected is exactly right I think.

First, we need to encourage the Yoos to procreate....

Mrs. John Yoo is, IME, a sweet and generally (with one obvious exception) unobjectionable liberal Democrat. The mind boggles, I know.

Scratch that. It was really dumb. If Yoo were disbarred for a violation of legal ethics, I think that his disbarment would be useful evidence that he was unfit to teach the ethical practice of law. BUT I don't think that you need the disbarment to go after him.

76

"Note that I'm not arguing that he's such a bad man that he should be fired, but that the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating)lawyer that he should be fired as a professor of law."

Are there examples of tenured professors being fired for professional incompetence? It certainly isn't common.

BUT I don't think that you need the disbarment to go after him.

Yeah, I should have phrased my question as whether a university could fire a tenured professor for actions that would not have - or, at the time, had not - resulted in disbarment.

Are there examples of tenured professors being fired for professional incompetence? It certainly isn't common.

I think Anderson earlier made a good point that "professional" incompetence is more relevant for law and other trade schools than it would be for a humanities graduate program.

I missed this before, but the code clearly says the ethical principles are aspirational ideals, not things on which you can easily get someone.

"Easily" is measured in, what, number of pages?

But I also think it's more than just procedural liberalism that will protect him: the legal academy has made a significant commitment to affirmative action for conservatives, and won't, I predict, want to risk what 'credibility' it's built on that effort by going after his tenure, or even by marginalizing him as much as they could short of firing.

Yup. Not to mention that it's much easier for a law professor to believe he's at some risk, however small, of someone turning something he wrote outside the academy against him than to believe he'll be caught up and tortured. It's not really his ox that was gored (or waterboarded, as the case may be).

Yoo is special in that his offense wasn't that he had unpopular ideas, but that he killed people. He's special because he was the guy whose literal job it was to say to the actual men with the live ammunition: "Sorry, boys, it says here we can't use these swarthy fellas for target practice."

This, it strikes me, is the difference between Yoo and, for example, Alan Dershowitz. Nobody is spending this much energy trying to get Dershowitz fired.

I think, given that comparison, I'm on Ari's side. If the intensity of the dislike for Yoo is based not only on the wrongness of his ideas, but on the real world consequences of them, that this is a reason for procedural protections.

The real world consequences should not, automatically be part of the judgment of how much he violated professional standards.

Shearer--See LB's later point that it's akin to falsifying data for which a professor would certainly be fired, because it's incompatible with scholarship and with teaching people to be scientists. Totally ignoring the case that every Con Law I student studies which is so clearly on point is incompatible with teaching people to be lawyers. It's also incompatible with being a legal scholar, but I don't think it's necessary to bring that in, because you can get him without getting into the question of whether a memo counts as scholarship.

94: I think Anderson raises a good point. The problem is that legal education falls somewhere in between the "how to interpret a Shakespearean sonnet" of humanities grad school, and the "how to safely perform a root canal" of dentistry school (or some similar, practical-application-to-actual-people-in-the-wider-world trade school model). Probably closer to trade school than to humanities grad school, but: I don't think the case against him is easy, though I do think the case against him should damn well be made.

The real world consequences should not, automatically be part of the judgment of how much he violated professional standards.

Wait, what? This seems precisely backwards to li'l ol' me.

Yoo should interpret this sonnet.

Fuck academic freedom. Also journalistic ethics.

97

"... See LB's later point that it's akin to falsifying data for which a professor would certainly be fired, ..."

Actually it isn't. Falsifying data is a sin of commission (as is plagiarism). Failure to cite relevant sources is a sin of omission and is less likely to get you in trouble.

But for the legal community, this particular sort of omission is as serious as those other sins of commission are for their relevant academic communities.

103

I doubt it. Any examples of tenured law professors fired for failing to cite a relevant precedent?

To expand a little bit on 101: an occupational hazard for those of us who push concepts around for a living is getting so caught up in the concepts that we lose sight of what we're pushing them around for. The purpose of a set of rules is to maximize the chances that fallible human beings will get the right answer as often as possible, especially when they might otherwise tend to lunge for a wrong one. But sometimes the right answer really is obvious. And when a guy is being paid to teach law, and his last job was creating fraudulent legal analysis to facilitate the efforts of the United States government to engage in large-scale violations of international and domestic law--the sort of stuff the United States government has been known to hang people for--the right answer really couldn't be much more obvious.

When you find yourself reaching for the rules to explain why the question of Yoo's right to continued employment at Boalt is really more complicated than it looks, you've lost track of what the rules are there for. If reaching the right answer in a case like this means that you have to tweak or reinterpret the rules, that's what you do. Or at least it's what lawyers in the English tradition have been doing for the last few centuries, and it has quite a bit to recommend it.

Shearer--See LB's later point that it's akin to falsifying data for which a professor would certainly be fired, because it's incompatible with scholarship and with teaching people to be scientists.

Michael Bellesiles didn't get fired. Granted, he was doing work in his capacity as an employee of Emory University, but I'd think that would strengthen the case for firing him.

Why is this less legitimate? Rile up donors. If the economy's going in the tank, rile up voters over university salaries.

Cut of your nose to spite your face, basically, is your advice to the university, then.

Eric's right. Free academic inquiry is more important than "get Yoo."

106

"Michael Bellesiles didn't get fired. ..."

He resigned so I am not sure what your point is here.

Are there examples of tenured professors being fired for professional incompetence? It certainly isn't common.

Presumably because most tenured professors aren't professionally incompetent?

I doubt it. Any examples of tenured law professors fired for failing to cite a relevant precedent?

I mean, this isn't hard. Are there mathematics profs who can't perform fucking long division? Bio profs who can't distinguish a frog's rectum from...?

I would imagine that a structural engineering prof who designed an innovative new bridge that collapsed would find himself out of tenure, even if he didn't go to jail. Similarly with an architecture prof who designed a highrise with inadequate egress routes/fire protection.

I'm just baffled by the "he hasn't been jailed" defense, plus the "is it free speech?" defense. False accounting wouldn't be free speech for an accounting prof. In-swinging fire doors wouldn't be free speech for an architecture prof. Writing a legal opinion that says A=!A is not free speech - it's nonsense, or worse, and pretty plainly a firing offense. If one could argue that it was a minor, or incidental case, then perhaps one could save the incompetent's job. But is anyone claiming that Yoo dashed off his torture opinion while he was really busy with more pressing work, and so that particular opinion was accidentally flawed?

wikipedia says that Bellesiles resigned. I'm sure that pressure was put on him. (How can anyone be that dumb?)

Eric's right. Free academic inquiry is more important than "get Yoo."

I can't accept this. This is fucking anti-civilization. "Get Yoo" isn't some bit of schadenfreude, "ha ha, Michelle Malkin doesn't go on Fox anymore." John Yoo - along with a dozen or so others - committed his life and work to making this country an outlaw state, morally indistinguishable from Nazis, Stalinists, or whoever else you want to name. However many of these others we "get" - and again, this isn't a childish game of "gotcha," but the very defense of civilization - we need to get the ones we can.

The lesson of Watergate and Iran-Contra is that subverting the Constitution for partisan gain is a no-lose proposition. As long as we keep letting that be the lesson, we may as well sign up for membership in The Party, because that's all that will be left.

Fucking Christ.

111 gets it exactly right, except for the necrophilia at the end.

I should probably note that I actually agree that "rile up voters over university salaries" is a terrible idea. "Rile up voters over war criminals teaching Law" might - might - be a decent direction.

But I'm more interested in ways that the agreed-upon standards of academia can be used to defend civilization, rather than ways to enforce civilized behavior upon recalcitrant academe.

the code clearly says the ethical principles are aspirational ideals, not things on which you can easily get someone

I don't think so. From page 2.

The Ethical Principles encompass major concerns traditionally and currently important to the profession. The examples of types of unacceptable faculty conduct set forth below are not exhaustive. It is expected that case adjudication, the lessons of experience and evolving standards of the profession will promote reasoned adaptation and change of this Code. Faculty may be subjected to disciplinary action under this Code for any type of conduct which, although not specifically enumerated herein, meets the standard for unacceptable faculty behavior set forth above.

This has nothing to do with a court or criminal charge. I'm confident that the professors at Boalt can put their heads together and understand how Yoo has violated the schools ethical principles. His potential removal just isn't confined to the reasons you enumerated.

except for the necrophilia at the end.

Anti-Christian.

Eric's right. Free academic inquiry is more important than "get Yoo."

I suspect that depends a lot on whether you're an academic or someone who might be tortured.

I hate that Bellesiles fudged the data, or said that the dog ate his homework, or whatever it is that he did (I can't remember the specifics of the case against him). I suspect his thesis (that gun culture, as a gun culture, was much less prevalent in 18th- and 19th-century America than is commonly assumed) was basically sound, but he's made it that much more difficult to advance that line of argument.

116: It probably does. Nonetheless, part of the job of academics is to care a lot about academic freedom--and not simply out of self-interest, either. It would be highly irresponsible for any academic with integrity to argue otherwise (imho).

Plus, would getting Yoo fired from the UC actually prevent anyone being tortured? Sad to say, probably not.

111: As I said, I agree with Eric. Get Yoo by all means, but the way to do it isn't to make a fuss over getting him fired from the UC. Big fucking deal if you do that. If you really care about the torture memos, the response is to try to get him tried, not to try to get him canned.

and not simply out of self-interest, either.

Well, if you say so, it must be true. I think if you polled academics and polled the tortured, the numbers might suggest otherwise.

109

"Presumably because most tenured professors aren't professionally incompetent?"

Which would explain why most tenured professors are not removed for professional incompetence but does not explain why professionally incompetent tenured professors are not removed.

"... Are there mathematics profs who can't perform fucking long division? ..."

Lots probably. Although this is not really professional incompetence.

Get Yoo by all means, but the way to do it isn't to make a fuss over getting him fired from the UC. Big fucking deal if you do that. If you really care about the torture memos, the response is to try to get him tried, not to try to get him canned.

One seems like a realistic possibility; the other does not. Something is better than nothing.

I really don't think that academic freedom is implicated here.

Before this subject can be debated, someone has to supply some minimally plausible reading of the law that is consistent with Yoo's statements. Absent minimal plausibility, what are we talking about?

Ezra Klein erred in talking about Yoo's opinions, as opposed to his actions. I'll grant that ludicrouly implausible opinions are often rightly protected by tenure - and probably would and should be in this case. But as a professional engaged in grotesque malpractice in the furtherance of a torture regime, Yoo simply shouldn't be permitted to mingle with polite society. Even a university has to have some standards of integrity. Even lawyers at a university must have some standards.

116 gets it right. The fetishization of "free academic inquiry" (most of those [the vast majority, actually] who pursue inquiries in the groves of academe -- graduate students, adjunct and contingent faculty and etc. -- do so under conditions of un-freedom, with no protection whatsoever, and in accordance with the terms and conditions of renewable [or not!] contracts that can be revoked at will) would be laughable if we weren't talking about torture.

Don't be a company man, B! Anyway, we're talking about some serious shit here...it's worth stepping back and really questioning the fundamental assumptions/rationalizations and asking tough questions about actual outcomes....

Academic freedom isn't implicated here; the question is whether his contract can be terminated on the grounds of unsound scholarship or a professional violation of ethics, because it looks like he can't on the torture grounds given that the contract appears to require a conviction in order to dismiss him.

most of those [the vast majority, actually] who pursue inquiries in the groves of academe -- graduate students, adjunct and contingent faculty and etc. -- do so under conditions of un-freedom, with no protection whatsoever,

This is absolutely true. And it is something to be outraged over. One's outrage over this fact is not a good reason to throw out the vestiges of academic freedom, however.

The point is that making intellectual work subject to political expediency pretty much kills intellectual work. That's part of what Yoo did wrong, for god's sake. So the response is, what, let's us do it too?

And we *are* talking about some serious shit here. Shit that's a little more serious than "ooh, that man should lose his job!" Again, if what he's done is so appalling, he should be tried. If it violates professional or academic ethics, he should be fired. But arguing that he should be fired just because what he did is Morally Wrong is a weak argument, and it's not a tool we really want to legitimize.

Or at least, it shouldn't be.

because it looks like he can't on the torture grounds given that the contract appears to require a conviction in order to dismiss him.

That's all open to interpretation. If you can get enough appropriate signatures on the appropriate lines, you could do whatever you wanted to him. That's the real message of the whole business of the memos, after all.

Get Yoo by all means, but the way to do it isn't to make a fuss over getting him fired from the UC. Big fucking deal if you do that. If you really care about the torture memos, the response is to try to get him tried, not to try to get him canned.

The two aren't mutually exclusive. And I hasten to add, before Emerson jumps me, that impaled and fed to hogs is also cool by me.

the question is whether his contract can be terminated on the grounds of unsound scholarship or a professional violation of ethics

Agreed. Which I don't think I'm able to have an opinion on.

the contract appears to require a conviction in order to dismiss him.

I really don't understand why people think so. They can fire him for whateverthefuck. Seriously, look at what's quoted in 114. There's very little contractual protection for Yoo; it's all social/political.

The point is that making intellectual work subject to political expediency pretty much kills intellectual work. That's part of what Yoo did wrong, for god's sake. So the response is, what, let's us do it too?

Holy shit, B, when you miss the point you don't fuck around about it. No, the response is TO FIRE HIS SORRY ASS PRECISELY BECAUSE HE DID THAT WRONG THING IN A PARTICULARLY HORRENDOUS WAY. And do you seriously believe that the principle that every vaguely intellectual act of every tenured snowflake in America must be protected is more important than NOT FUCKING TORTURING PEOPLE?

John Yoo - along with a dozen or so others - committed his life and work to making this country an outlaw state

But, for crimes of that magnitude, getting him fired from the UC wouldn't be the end of the appropriate punishment, it would only be the beginning.

Which is just to say that the best outcome would be to build up the strongest, broadest case against Yoo possible so that, if he is kicked out, it won't end with that.

If tomorrow, they managed to fire Yoo on a technicality (the academic equivalent of tax evasion) and he left to make tons of money at a think tank, would that make anyone happy? It would be satisfying, but hardly scratch the surface of "justice."

I think this is a case in which the best possible outcome would be some variation on "The wheels of justice grind slow, but they grind exceedingly fine."

Bellesiles didn't quit until his employer released an embarrassing report claiming that as near as they could tell he made a bunch of shit up, despite his protestations to the contrary. Maybe if he stayed on he'd have been fired, maybe he wouldn't.

I'll also note that Michael Behe is still on the faculty at Lehigh University, even though they feel the need to post this disclaimer, which can be summarized as "we disagree with everything he says and think he's a crappy biologist."

But arguing that he should be fired just because what he did is Morally Wrong is a weak argument, and it's not a tool we really want to legitimize.

Because then the other side will use it? I'm pretty sure they already do.

This is all sort of pointless. If the community had wanted him shifted, he'd have been shifted already. It's really hard to go to work if everybody hates you and behaves in that way. Messages don't get delivered, work gets lost, etc. They don't want him shifted, particularly, and he won't be.

It turns out the memos are bad, but not that bad. Or so sayeth the relevant community.

It's not the end of the world.

126: A conviction seems to be required to dismiss him on war criminal grounds; I don't see any way around it. b) up above seems the only way to do it (I'm skeptical, but also not a lawyer, so I don't get how bad the reasoning would be.)

dismiss him on war criminal grounds

I still don't understand why anyone cares about "war criminal grounds." It can be any grounds you want, consistent with the ethical principles.

129: That's professional ethics, which I think I included in the other clause. UC isn't going to fire him because he's a war criminal; they might fire him for writing a bad memo.

130: Whether he violated existing rules in a mild way or a horrendous way, the point is that adhering to rules is what protects people from things like torture. The fact that the current administration (and lots of other people throughout the history of the world) have violated this principle doesn't make the principle a bad one; on the contrary, it provides all the more reason to enforce it.

And no, I do not believe that academic freedom is more important, if it comes down to having to choose, than protecting people from being tortured. On the other hand, I *do* believe that protecting people from being tortured depends on upholding the rule of law. And that academic freedom is more important than John Yoo.

so I don't get how bad the reasoning would be

If someone's come up with a measure of "bad" other than polling professionals in the relevant field, I don't know what it is. People take dives on stuff all of the time. This time, it would just be en masse. Later, it could be an object lesson about what "we ought not do," and "oh, academic freedom!," but Yoo would already be gone.

but also not a lawyer, so I don't get how bad the reasoning would be

So bad that it's not really legal analysis at all. It's a fraudulent simulation of legal analysis for extremely ugly purposes. Think especially sleazy Mob lawyer, then take away all of the judicial and bar disciplinary checks that even Mob lawyers have to worry about.

135: Because people are saying 'he's a war criminal and getting him on professional ethics isn't good enough?'

B, if academic freedom means John Yoo can't be fired, then it should be abolished. It's that simple. The right move for a person in your position to make in a situation like this is to figure out why academic freedom doesn't protect Yoo. That shouldn't be difficult at all, for all the reasons discussed above.

So bad that it's not really legal analysis at all.

See biology and Behe.

142: So fire him too.

117

"... I suspect his thesis (that gun culture, as a gun culture, was much less prevalent in 18th- and 19th-century America than is commonly assumed) was basically sound, ..."

If it was basically sound he wouldn't had to start making things up. Actually this is a common problem, people fall in love with a theory and can't deal with contrary evidence. Hence double blind experiments and the like.

If you want the priests to suffer for abusing their positions as priests, you should check with the Pope.

Eric, nobody is suggesting that we should revoke Yoo's tenure. We are suggesting that the school should do it. Likewise, the Pope should defrock pedophile priests.

Given your logic and the importance of religious freedom, the Pope should do everything possible to avoid defrocking pedophile priests, right? Just as universities should do everything possible to avoid revoking the tenure of those who use their academic specialties to facilitate torture.

Well, maybe so. But decent people are going to object, and they goddam well should.

The university is not, so far as I can tell, actually doing anything to avoid firing Yoo. It's not doing anything at all.

I know a guy who has written (and presumably published) articles defending the use of torture on Kantian grounds. I kinda wonder how he feels about his articles now. But I don't think he should be fired for having published them.

Same with Behe. His irreducible complexity line is pretty bad, but it's useful to have him around to show how intelligent design really doesn't go anywhere.

Whatever Yoo's done, it clearly wasn't a scholarly publication. So why bring academic freedom into it? This isn't about ensuring a safe space for academic discourse. He didn't write the memo as toy problem for his lectures.

Maybe some enterprising lefty law student should write a law paper taking a bit further Yoo's published ideas. Presumably, the student will get an A on the paper and can then file complaint. Or something. Probably wouldn't work. But what fun!

In my perfect world, Yoo would need a phalanx of bodyguards just to go to the grocery store and would get hissed and spat at any time he was in public, until and including his funeral.

But I doubt I'm going to get that any more than the impaling.

A conviction seems to be required to dismiss him on war criminal grounds;

This seems perversely procedural. Suppose they'd caught Yoo in an act of pederasty (Eric has got me thinking in this direction), but the authorities acquired the evidence in a way that was inadmissable in court. Does anybody think that the it would be inappropriate to fire him if he couldn't be convicted? Does anybody think that Yoo's situation is somehow different from that of a criminal whose offenses weren't able to be prosecuted?

Yoo's offense exists independently of a criminal conviction. And given the necessary procedures involved in revoking someone's tenure, I can't grasp why even the procedural liberals are offended by the possibility that his tenure will be revoked.

147

"Whatever Yoo's done, it clearly wasn't a scholarly publication. So why bring academic freedom into it? This isn't about ensuring a safe space for academic discourse. He didn't write the memo as toy problem for his lectures."

Academic freedom has traditionally been seen as protecting speech outside your academic speciality, marching against the war in Vietnam for example.

Whatever Yoo's done, it clearly wasn't a scholarly publication. So why bring academic freedom into it?

This is my question. Why are we even talking about academic freedom? This guy clearly forfeited any pretense of academic freedom when he brought his arguments into the real world and ceased to act as an academic.

I can see a plausible case for Dershowitz remaining an academic - indeed, I'd support that case. But a guy who goes from arguing in favor of murder to demonstrably facilitating it in clear violation of his professional responsibility needs to be kept the fuck out of the academy.

Again: Is anyone prepared to make the case that Yoo was acting in a fashion even plausibly consistent with his professional responsibility?

So why bring academic freedom into it?

I think it's the Yoo "defenders" (no negative implication) who are bringing in academic freedom.

There are a bunch of interests at play, and people are welcome to order them however they want. I'm comfortable with people saying that the risk of damage to something like "academic freedom" or "procedural integrity" is sufficiently grave that we cannot do Yoo, however much we'd like. I'm not sure that's not my position; after all, I'm unlikely, I hope, to ever be at risk of torture, and I really do believe that our universities are American jewels. But just say it, rather than adopting an "our hand our tied" posture. Because they're really, really not. (Again, Yoo demonstrates that: people tortured, he gets tenure and, I thought, the respect of his colleagues at Berkeley. You can do what you want if everyone else will let you get away with it.) Acknowledge that you're picking an ordering of interests. It's OK.

There's the question of whether academic freedom protects Yoo. That can be gotten around. (Not scholarly work.)

There's the question of whether the 1st amendment protects Yoo. That can be gotten around. (The memos weren't speech.)

There's the question of whether Yoo's contract can be terminated. This is harder to get around. It's not at-will employment. There seems to be some confusion over whether, in a given comment, someone is talking about academic freedom or the terms of the employment contract. I take Cala to be talking about the latter.

Is anyone prepared to make the case that Yoo was acting in a fashion even plausibly consistent with his professional responsibility?

John Yoo is a great lawyer and a great American.

This seems perversely procedural.

I'm not sure how perverse it is. Requiring a conviction before automatically revoking tenure of someone charged with a crime? It's worse than that, here. I'm not sure what sort of procedure could be designed to say '... or if we know you're guilty, even if you're never charged or convicted' that wouldn't be open to abuse.

And given the necessary procedures involved in revoking someone's tenure, I can't grasp why even the procedural liberals are offended by the possibility that his tenure will be revoked.

Who besides B is offended at the possibility?

Again, Yoo demonstrates that: people tortured, he gets tenure and, I thought, the respect of his colleagues at Berkeley.

I don't know if you mean to say that torture came before tenure, but I'm pretty sure Yoo got tenure before he joined the Bush administration (1999, I believe).

157: Huh, I didn't know that. It was just a leave of absence, then?

Congress is another institution that has been somewhat reluctant to take disciplinary action against people not convicted of - and in some cases convicted of - crimes. It's an embarrassment, but proceduralism of this type is not really unheard of.

156: Well, B counts.

But you're right - I imagined that I was responding to you. If you aren't troubled by the possibility of Yoo's tenure being revoked, then I don't know that we have a disagreement.

Wiki answers says 1999.

I'm not sure what sort of procedure could be designed to say '... or if we know you're guilty, even if you're never charged or convicted' that wouldn't be open to abuse.

Everything human beings do is open to abuse. That doesn't mean we just throw up our hands and say "nope, can't do it." People who are smart enough to become tenured academics are smart enough to create and apply a tenure revocation process that's capable of distinguishing between legitimate scholars and John Yoo.

161: Thanks. That makes me feel better about Berkeley, actually. For some reason, I thought he was jumping to Berkeley from somewhere else, post-Administration.

but it's useful to have him around to show how intelligent design really doesn't go anywhere.

Show to whom? Do you know anybody who takes Behe seriously? My cousin's wife, a family doctor and evangelical Christian, was just showing me her copy of Darwin's Black Box. She hadn't read it; I doubt many of his supporters have. Going over the book in detail would have defeated its purpose, which is to fill a spot on her shelf, next to The Origin of Species, that she can point to and say that very smart people with academic credentials still disagree about this, so it must be all up in the air, and she doesn't need to make up her own mind. That's Behe's function.

I'm disturbed that the Yoo answers.com page includes this sentence:

Yoo is no relation to film director John Woo...

Well, their names are different, so you'd think they weren't related, but then again, they're foreigners and those names sound kind of funny...better make it explicit.

165: Woo has had some bloody movies?

162: A tenure committee isn't a court. What's wrong with firing him for violating the ethics of the legal profession?

164: I read it in a philosophy class and had fun picking it apart, but I guess that doesn't count.

If he had enabled atrocities against other sorts of people, I really, really don't think we'd be having this conversation. I think people would be okay with firing someone involved in dreaming up legal justification for other atrocities for "moral turpitude" if that's what it took & not been all "slippery slope! next the right wing will fire gay people!" But he's one of us, and they're not; that's the reason people say it's about "academic freedom" & apparently less grounds for revocation than plagiarism. Like Cala said, the torture memo is not an academic freedom issue. No one would want him fired for sticking that crap in a law review article, at least I wouldn't. It's a professional ethics issue & a possibly criminal issue & actually caused people to be tortured to death issue. & even leaving aside the second, the first & third seem good enough for me.

Yoo is no relation to film director John Woo...

It would have been better if they went on to say, "Neither is he any relation to the film actors John Wayne or John Cusack."

Looking at the California Bar web site, it's not clear to me if a man on the street can file an ethics complaint against an attorney that did not represent them. Anyone know?

I don't think Yoo is a member of the California Bar, is he?

Doesn't look like it.

Don't see him in DC either.

I don't think Yoo is a member of the California Bar, is he?

Ah, so much for that plan.

I mean, academic freedom? free speech? the memo was classified for what, five years? it is a binding legal opinion written by someone sworrn to uphold the U.S. constitution & law that is like something a mob lawyer would write--except, when mob lawyers do this it doesn't ACTUALLY immunize people from prosecution. I'm not calling for Dershowitz's firing; the thought wouldn't even cross my mind. And I bought the academic freedom line about Yoo, but this isn't about that; at most it's about upholding the letter of a tenure policy none of us knows. Really I think it's more "we're academics and no one can fire academics ever ever ever ever."

167.1: I really don't care how it gets done. My main point is that it's wrongheaded to suggest that academic guild rules might be a bar to firing him. If that's true, the problem is with the rules, and if academics don't want outsiders messing with their guild, they need to figure out how to make the problem go away. The price of having your judgment calls protected in debatable cases is demonstrating that you are, in fact, exercising judgment and not just blindly closing ranks to protect your own.

But he's one of us, and they're not; that's the reason people say it's about "academic freedom"

I agree with pretty much everything else you say, but that seems unfair. I don't think Eric's (and others') argument is rooted in racism.

I didn't see him in MD, VA, or CT (he went to Yale). But the online Bar directories aren't comprehensive.

I honestly do not believe that the reaction would be the same. It's nothing specific to Eric; I wouldn't have bought the "oh, but academic freedom" argument for as long as I did--several years!--if we discovered a law professors' name on poorly reasoned, incompetent/bad faith legal memos on why it was legal to exterminate Jews, etc. All of us are less motivated & upset about various war on terror stuff than we would be if it were happening to people like us.

Yeah, I looked, too. I'd think you'd need to be admitted to some bar to provide legal advice to the government, but what do I know?

176: My main point is that it's wrongheaded to suggest that academic guild rules might be a bar to firing him.

I'm not mentioning it because I think Yoo is wonderful, or because I really hate Muslims, whatever Katherine thinks, but because the existence of the contract means his employment isn't at-will. There have to be grounds to fire them, and the trick is figuring out how writing the memo ends up as grounds.

Sorry it's wrongheaded to mention that, because it's true. It's not an academic freedom issue, it's a contract issue.

I don't know if you can just change the identity of the tortured without changing other aspects of the situation, such as whether there would be criminal proceedings against Yoo already ongoing. Or even if academic freedom would still exist in such a country as one willing to go along with a different and much more extensive, torture regime.

And, even to those of us who find what Yoo did beyond the pale, the fact that there's not an overwhelming consensus that it's beyond the pale affects our reaction.

You know when I started freely throwing around the term "war criminal" about this administration? I may be misremembering but I think it was after Hamdan v. Rumsfeld; I figured if Anthony Kennedy was going to say it I could.

ooh, but while we're making shit up, the fact that Yoo isn't a member of the California bar should be taken as evidence that I think that he shouldn't be disbarred.

And by "academic freedom" in 182 I mean the various sorts of liberal proceduralism that includes but isn't limited to academic freedom.

Cala, that is a gross parody of what I'm saying; I hope it crossed with 181 because after 181 I don't even see how it's a misunderstanding.

179: Unless I'm misreading you, that's an incredibly serious charge to be making about Eric, Katherine. If you have the slightest shred of evidence to support such a contention, other than your righteous outrage about this horrible case, I urge you to bring it to the table. Otherwise, I really do hope that you'll back off. Unless, again, I'm misreading what you're saying, which I allow may be possible. In which case I hope you'll clarify your point.

He's admitted to the Philadelphia Bar. Federal Government work only requires that you be a member of a Bar.

There are no pending disciplinary actions against him. I think that some blog said that anyone in Pennsylvania can file a charge.

crossed with 179, I think. I mean, given that I'm saying that I spent several years buying the "academic freedom, nothing we can do," argument, but I don't think I would have done so if you'd kept the actions the same & switched around the proper nouns....if I was saying "you're racists! you hate Muslims!," I'd be saying that I was racist & hated Muslims until about this month.

186: If my 185 is also a gross parody, I apologize and ask you, again, to please clarify your earlier remark.

okay, since people won't actually read the words I write I'm about done with this.

188: Thanks. I didn't have the dedication to start searching each state. Or to look up is someone already had.

191: I find 189 sort of incomprehensible, anyway.

187: No, it isn't, any more than it's an incredibly serious charge when somebody gets called on a bit of unthinking sexism.

Actually, I read 179 three time. And I'm still not seeing how you can be read as arguing anything other than Eric, or anyone who defends Eric's post (throw me in that group, please), isn't a self-serving racist. You seem to be saying that you were a racist, too, before you recently found religion. But I'm not sure how that mitigates the charge you're making about other people. It only seems to make it worse. Because, you know, you've got it all figured out now and are enlightened.

Again, please correct me if I'm wrong.

181: Apparently you've been participating in a different thread than I have. But for the record: I don't know what the contract(s) say, so if Boalt fires him, with the support of the faculty, and a court reinstates him on contractual grounds, so be it. But I'm pretty sure that's not what we've been talking about here.

194 to 189. As for 191, again, unless I've misread you, which is possible, it doesn't seem right to throw out that sort of accusation, have at least three reasonably rational people call you on it, and then decide to take your toys and go home. In other words, please either explain to me how I'm wrong, which I still allow is possible, or own what you've said, or offer some other reasonable explanation for the misunderstanding. Please.

Ari--There's been a consensus on this blog for a while that we're all somewhat racist and sexist and that people should be called on it.

194: I'm a self-serving racist from time to time. Most of us are. I doubt that you or Eric is immune.

To elaborate, we live in a sexist, racist society, and we're all bound to have internalized some of it. B and LizardBreath have been arguing this for a while.

195: I don't know where you've been, but I've been reading the same thread as Cala. See 154 and, I think, some of Eric's comments.

197-199: We're not talking about universal charges of racism or sexism in this instance. If we were, I'd be happy to cop to ambient racism and sexism. Because I understand the cultural arguments. Really, I do. But right now, we're talking about a specific and pointed charge of racism. Unless I've totally misread Katherine's comments, which I still allow is entirely possible. I'm kind of dumb that way. As well as racist and sexist.

Well, then you might have tried reading 189.

Our capacity for empathy varies based on how much we have in common with people & how well we know them. I had a stronger emotional reaction to the September 11 attacks in NYC than I would have to an event causing comparable deaths in Paris; I'd have a stronger reaction to 3000 deaths in Paris than 3000 deaths in Bangladesh. My reaction to the various torture stories changed when I learned about specific cases in detail--changed further when I went on a trip & interviewed survivors one time. If Blackwater had shot 17 people in American city their contract would not just have been renewed & if it had it would have made more than a blip in the news. I would think this is pretty fucking obvious especially to damn historians and yet is totally beyond the capacity of the unfoggedariat to comprehend: in the past when I've made this argument people thought I was arguing that foreigners' lives really *were* worth less; this time it's "ZOMG she says we're racists how dare she!!!!"

(To misread the first comment is understandable; it was the misreading of the next 3-4 clarifications that annoyed the crap out of me. good night.)

202: I read it, Katherine. And inasmuch as I understand 189, it doesn't mitigate the charge you've made, as noted above. While we're on the subject of reading, did you read Eric's post?

200: OK, 195 was intemperate. But lacking access to the terms of Berkely's faculty contract (or Boalt's, or Yoo's individual contract, or whatever is applicable), we've mostly been arguing about what the norms should be for when faculty can be fired. And the norms are important. It's a pretty good bet that there's language in the contract that's elastic enough to allow a faculty member to be fired if the administration and the faculty and the lawyers and the courts all think the faculty member egregiously violated professional standards, domestic and international law, etc. If, on the other hand, the faculty decides that Yoo must be defended as a matter of academic freedom, it becomes a lot less likely that administrators will act or that a court will interpret open-ended contractual language to allow that result.

ogged, aren't you the one who disagreed with me about this? So, just to be clear, folks in the administration should be let alone. But the UC should fire Yoo. Is that about right?

The correct action is to come up with a perverse and transparently bad-faith interpretation of UC tenure guidelines that justifies not only revoking Yoo's tenure, but also ticketing his car, and leaves him with no means of legal recourse, and then acting on it. He'll still be ahead of the game, karma-wise.

Also, Ari is a horrible racist and should be banned.

Yes, I read his post. I was quite unimpressed--not because I think he is racist, it was jiust the usual cliches about "unpopular ideas".

I mistakenly tried to imply something in 189 which I see was a mistake; there was an unstated "and obviously I don't think that" after the last sentence.

Well, then you might have tried reading 189.

I don't know if that was directed at me, but 189 was incomprehensible for reasons of syntax, mostly. 202 I understand, and in 182 I said that if circumstances were such that we were talking about torture or other atrocities against "us", then we probably would not be in the same situation as now. That is, we would not be talking about the narrow question of whether to fire Yoo, absent any other changes aside from the scale of Yoo's offense. There'd likely be more of an outcry against Yoo - including, possibly, the criminal charges that don't exist today, but which should - or in another outcome, we'd be living in a society where procedural liberalism had been gutted (possibly to make way for atrocities against "us.")

think this is pretty fucking obvious especially to damn historians

Who sometimes deal with counterfactuals.

Wow, I really hate this place sometimes. And an increasing % of them.

208: Okay.

210: Inasmuch as I've contributed to that feeling, sorry about that.

210: Hey, me too. And since we've somehow ended up arguing different sides despite broad agreement that Yoo is a fucker who should be prosecuted, fired, and ostracized, and that his offenses would have be a much bigger story had the victims been different, I'm sorry about that.

FWIW, I think Katherine has been pretty clear.

inasmuch? Oh come on, whatever you say about my syntax, you can't even tell when you're pissing me off?

fortunately I'm about to flee the country...if I don't return it will be more a sign that I somehow grew will power than that anyone mortally offended me tonight--so, unlikely. But: stressful procrastination, it doesn't make a lot of sense.

213: Me too.

And just to head off further misunderstanding, there is an implied (banned!) smiley emoticon after the first sentence of 214.

Katherine, Have a good trip. I hope you don't hate this place too much, because I always value your contributions.

And now I need to go to sleep.

And just to head off further misunderstanding, there is an implied (banned!) smiley emoticon after the first sentence of 214.

That's a relief. I was trying to come up with some non-emoticon-using but smiley-implied response to that.

Safe travels, Katherine. I, for one, rest easier when I know that you're here, in this country, fighting for things that I hold dear. (And calling me a racist.) I'm serious about the second sentence, by the way.

All of us are less motivated & upset about various ... stuff than we would be if it were happening to people like us,
says the lawyer arguing with the academic about the limits of tenure.

Perhaps he could be deported while awaiting trial (or while awaiting charges to be filed).

220: Pot-stirrer.

Since I'm still awake and feeling bad about making an ass out of myself, I'll link to this comment just posted over at EotAW which lays out a long version of arguments already on this thread saying the UC can definitely fire Yoo.

says the lawyer arguing with the academic about the limits of tenure

The guy's a law professor, and lawyers can get a bit tribal about our professional rules too. But somehow we can manage to disown a guy like Yoo.

Michael Behe seems like a perfectly pleasant man.

He has a nice smile.

222: Not at all. Katherine has enough self-awareness to take my comment in the spirit it was offered. In fact, I believe that the nominal "racism" of which Eric was accused bears much more resemblance to the implicit "careerism" of my post than it does the sentiment motivating cross-burners or whoever. One is sensitive to attacks on those closest to them, and less so to those farthest. Hence, Katherine might not appreciate having to look over your shoulder every time you publish something controversial (though I suspect she has an inkling) or construably racist. At the same time, she has first hand experience with the victims of our novel institution, and their experiences must affect her appreciation of the crimes against them much more that they would ours. So I cut her a world of slack, not that she needs it.

If this was about a professor of accountancy who had advised Kenneth Lay on how to structure a fraudulent transaction, would we even be having this discussion? Course not, because that's about money, which people take seriously. Whereas the dispensation of justice to right-wing torturers isn't taken nearly seriously enough.

Remind me, by the way, what massive benefits we[1] all get from the existence of tenure, anyway?

[1] by which I mean people like me who pick up the bill.

re: 227

Well, the UK doesn't really have tenure anyway. So, it's not, strictly speaking, us who are paying.

But the Ken Lay analogy is a good one.

227: Careful, dsquared. Are you accusing Eric of having a latent pro-accountant bias? That's despicable ! I demand evidence !

In fairness to Eric and the others who are wrong about this, the whole academic freedom angle is based on the fact that Yoo's sins are politically motivated, and American academics - like American 1st amendment absolutists - reflexively privilege political expression.

So it is paradoxically because people like Eric regard torture as such an important political matter that we must be extra-gentle in dealing with its proponents.

we can manage to disown a guy like Yoo

Really? He's been disbarred?

And of course if we'd read Eric correctly, we'd realize he wasn't talking about academic freedom or Yoo's political sins.

Law is an unclean profession.

A system that punishes and shames Matthew Diaz, yet obstructs any investigation into the misconduct of John Yoo and Jim Haynes, and particularly their focal rule in the introduction of torture, cruel, inhuman and degrading treatment, is corrupt. Indeed, it persecutes the innocent and rewards the guilty. A bar association that disbars Matthew Diaz and leaves Yoo and Haynes free to practice is fundamentally corrupt. In essence, this choice reflects a legal profession that puts upholding the will of the Executive, even when it commands the most egregious and unlawful conduct, over the Rule of Law. It reflects the abnegation of the bedrock principles of the profession and the principles of the American Constitution and the Revolution which gave rise to it.

If this was about a professor of accountancy who had advised Kenneth Lay on how to structure a fraudulent transaction

There'd be no problem. That's exactly what I've been saying all along with reference to "scholarly malpractice" and so forth. It's the argument that the UC can sack someone like this pretty much only for scholarly malpractice that seems to vex ogged.

the dispensation of justice to right-wing torturers isn't taken nearly seriously enough.

On the contrary, I take it very seriously, which is why I want a court to take it up. I find it continuingly bizarre that you people want the UC to substitute for a court system that you evidently don't trust. So... in absence of the courts, the university? Really?

Remind me, by the way, what massive benefits we[1] all get from the existence of tenure, anyway?

We already had that thread.

For those of you ignoring or willfully misconstruing my post or subsequent comments, the UC could conceivably sack Yoo for scholarly misconduct if it determined that the memo represents some kind of scholarly misconduct. It can't sack him for being a war criminal because he hasn't been convicted as one and I don't think any of you want the UC to have the power to try people.

You all clicked through and read Eric's thread, right? Not relying on ogged's excerpt, which unintentionally makes it look like this is an academic freedom case?

re: 233

Dsquared's analogy isn't one between scholarly malpractice and fraudulent accountancy, though.

It's between legal malpractice and fraudulent accountancy. If the Yoo memo represents bad legal practice it's just as much a reason to terminate tenure as in the 'Enron' case.

Note, that in Dsquared's analogy, the accountant's fault isn't in his work as an accountancy scholar but in his work as an accountant. I think one could make a similar argument against Yoo.

The key issue isn't whether Yoo has committed scholarly malpractice but whether his conduct was acceptable as a lawyer.

Personally, I'd prefer the legal option plus jail, of course.

If the community had wanted him shifted, he'd have been shifted already

Tim, I think you're wrong about this. The community in question is the UC. It takes forever and sixteen forms to order donuts, even when it really, really wants donuts.

I think by 'scholarly malpractice' Eric was including 'legal malpractice', simply because he's been clear about that in other posts, and that the faculty code does seems to cover professional, non-university activities.

re: 237

In which case, there doesn't seem to be any obstacle to terminating his contract.

I'll link to this comment just posted over at EotAW

... to which I've now responded. The only importantly correct part of this comment is that the list is not exhaustive. Appeals to the Ethical Principles are no good; they're clearly stated to be ideals, and everyone will likely fall short of them. There's a gray area between the ceiling of the ethical principles and the floor of unacceptable conduct--into which all faculty are presumed to fall. So there may be something in there for which you can be got, but you'll have to tell us what it is, otherwise you can get everyone.

I've repeatedly asked what people want added to the list to help in this case, but except for Megan's Star Chamber solution (see over there) I hear nothing. I think what people want added to the list is, "Oh yeah, and the UC can fire that torturer John Yoo."

It would seem that tenure should work differently in applied fields with codes of ethics than it does in purely theoretical fields.

Does international relations have a code of ethics? I don't think so. But law and medicine do, and probably engineering.

I've repeatedly asked what people want added to the list to help in this case,

I think we want, "violations of the professional ethics of your field." Some us think that's there implicitly?

Tim, I think you're wrong about this. The community in question is the UC. It takes forever and sixteen forms to order donuts, even when it really, really wants donuts.

Eric, I'm really talking about creating a hostile work environment. No forms or procedure involved. Again, it's fine to say that we don't want to let that sort of behavior out of the box--that might be my position--but it's a choice.

238: Which is sort of what we've been arguing as the only way to get him. Though you're more optimistic than I. The reasoning is clearly bad, and if what the lawyers here are saying is right, it's so bad that a first-year law student should be able to see through it, and thus the only reasonable explanation is that he was willfully writing a bad memo in the service of bad ends.

I don't know enough to know whether that counts as legal malpractice. I'd hope so, but I find it baffling he's still a member of the bar. (Would someone from PA have to be tortured in order to disbar him?)

Is there any kind of movement to urge for his firing based on the violation of professional ethics? Or is it all just the usual suspects who protest regularly? Young people or gray beards?

241: I think the 'professional ethics' part is already in there. And legal malpractice should count.

Eric's talking about just the claim 'we must fire this war criminal'.

Here's an explanation of how one files a complaint to get someone disbarred in Pennsylvania. Apparently any citizen of Pennsylvania has standing to do it. Any Pennsylvania residents up for doing this? Anyone know a lawyer in PA who might be willing to help?

Here.

Stupid long ass url made me miss my failure to tag properly.

I find it continuingly bizarre that you people want the UC to substitute for a court system that you evidently don't trust. So... in absence of the courts, the university? Really?

This is a very strange thing to say. Nobody proposes that UC should put the guy in jail.

Equating academic decisions with legal judgments is an error. It is absolutely a cornerstone of academic freedom that the university not defer to the legal process. It would be incorrect, for example, for a university to say that a criminal conviction should automatically result in revocation of tenure.

It would?

So there may be something in there for which you can be got, but you'll have to tell us what it is, otherwise you can get everyone.

Is there anyone who falls into the same category as Yoo? It seems like an almost literally unprecedented case. I largely agree with you - even though I linked to that comment - but I have a hard time seeing how other people will suddenly become vulnerable. I suppose if there's a chilling effect, it would be against academics getting involved in government work (and that possibility should not be lightly dismissed), but who else is going to be "got"? Are there lots of academics engaging in questionable nonacademic work related to their ostensible areas of expertise? "Everyone" doesn't seem like the answer.

I think what people want added to the list is, "Oh yeah, and the UC can fire that torturer John Yoo."

I don't think there's much more anyone (outside of the UC acting in its official capacity) can say. They might, and they might not fire him. It does look like they can, but there are a bunch of procedural hurdles to doing so, and a bunch of things that need to be taken into account with regard to precedent if they do so.

re: 249

I'm sure we can all think of minor criminal convictions that oughtn't be a barrier to retaining one's job.

Driving convictions? Minor drug infractions?

More on Matthew Diaz. Diaz was a military officer who, against orders but following the Supreme Court decision, released the names of the Guantanamo detainees. Diaz was convicted of four felonies, sentenced to six months in jail, and stripped of his pension. There's a real possibility that as a felon he will be disbarred.

Procedural democracy is fine, but if Diaz is disbarred while Yoo continues to teach law, that will be some pretty hard evidence of what this country has become, and the legal and academic professions will be deeply implicated. You can say, "Correct procedures have been followed, Yoo has tenure and there's no procedure for getting at him, Diaz was guilty of felony insubordination and felons can't practice law". And maybe every word of that is correct. But anyone except a complete authoritarian looking at that story has to realize that the system is broken and will get worse unless something is changed.

It would be incorrect, for example, for a university to say that a criminal conviction should automatically result in revocation of tenure.

That's probably right, though a fair number of crimes should probably lead to tenure.

If I cop a plea in a tax case, that doesn't make me less fit to construe Milton, presumably. And it would be debatable even whether it went to my moral fitness as an Educator of Youth.

As for disbarment, I'm sure someone's working on that in PA, but as a lawyer, I've got to say that the profession is lacking in self-policing. That's what you get when lawyers are passing judgment on their own kind.

Dickie Scruggs down here in Miss. had to get caught on tape discussing bribery of a judge in order to get run out.

Actually, come to think of it, there were some psychologists involved in the interrogation procedures. Don't know what their situation is regarding academia.

251: shit, I can think of major criminal convictions that oughtn't be a barrier to retaining one's job.

On the other hand, I can't think of a criminal conviction that a school shouldn't be able to use as a reason to fire somebody if they deem it appropriate.

Which gets back to when schools should have that option in the absence of a criminal conviction, a debate I'd thus far managed to stay out of. Have at it, kids!

254: there was an immense debate within the APA, covered here, among other places. Basically, since the APA hasn't actually banned members from participating, it would be hard to make the case that they were engaging in unethical practice.

250: I think it's just a matter of if you say "Yoo didn't live up to the Ethical Principles (ideals), therefore we are firing him", that's broad enough to get anyone.

Driving convictions aren't criminal, but I take your point; the quibble is with automatically rather than grounds to start a tenure revoking hearing. A criminal conviction is already grounds in the UC system to revoke tenure.

And of course we were arguing about what to do when it sure looks like he's guilty, but there isn't actually a conviction.

I think it's just a matter of if you say "Yoo didn't live up to the Ethical Principles (ideals), therefore we are firing him", that's broad enough to get anyone.

But the point is, they wouldn't just leave it at that if they fired him (I hope) . The actual evidence of his not having lived up to ethical principles is rather different than what could be found for a number of Profs. Everyone.

As of about a year ago, The American Psychological Association tacitly approved of (or refused to oppose) the use of torture.

There's nothing preventing a profession from enforcing a higher ethical standard than just "No felonies". Even if Yoo isn't prosecutable, he still could be disabarrable.

Awhile back DeLong quoted a stirring statement by Kantorowicz about the autonomy of the scholar. It looked good, but Kantorowicz was an authoritarian feudal relic, and he was really saying that university professors were a kind of nobility and shouldn't have to answer to anyone, rather the way that during some periods priests and nobles couldn't be tried in civilian courts.

Felons can be lawyers in some places. I know that there are murderers who have gained admission to the California Bar. It's a big burden, but if you can demonstrate that you've repented or been rehabilitated, it can be done.

Diaz hasn't repented, though.

I think it's just a matter of if you say "Yoo didn't live up to the Ethical Principles (ideals), therefore we are firing him", that's broad enough to get anyone.

Which doesn't mean it can't be done, only that the risk--that it will be effectively used in situations we'd rather it not--is sufficiently grave that we aren't willing to do it. That's a choice.

262: Nor should he.

So, while I'm in an imaginary world in which the UC is considering firing Yoo, I'm imagining that a committee would be formed to answer the question: did Yoo's legal work fall in the categories of scholarly or professional - since legal academics fall into both categories - misconduct? Such a committee might answer yes for Yoo. (Or might not.)

How a committee that answer yes for Yoo's specific case would necessarily lead to committees formed to investigate other academics for, presumable, a more vague sense - unless someone wants to jump in with more specifics on Profs. Everyone - that they have failed to live up to the principles, and why those committees will start answering yes in those cases where there isn't the kind of specific question or the kind of evidence as there is with Yoo, is what I'm not seeing.

In yet another imaginary world, I did not make so many typos in 265.

Appeals to the Ethical Principles are no good; they're clearly stated to be ideals, and everyone will likely fall short of them. There's a gray area between the ceiling of the ethical principles and the floor of unacceptable conduct--into which all faculty are presumed to fall.

That clarifies things in a very lawyerly way.

The American Psychological Association is a bankrupt institution. Previously, they effectively endorsed the use of "recovered memories" to expose cases of "ritual satanic abuse." They also have no problem with crazy practices like Rorschach tests and research into the genetics of general intelligence (and of course, the correlation of race and IQ.) Frederick Crews has had some very good pieces on them in the NY Review of Books.

The APA basically can't say "no" to anything done by psychologists anywhere. If a professional organization can't even keep out quacks, it has failed its basic mission.

Academic freedom has traditionally been seen as protecting speech outside your academic speciality, marching against the war in Vietnam for example.

No, that would be protected by the first amendment.

B. is not offended at the possibility of Yoo losing his tenure. B. is offended at the argument that he should lose tenure and his job just because we all think what he did was Really, Really Bad. If he loses tenure and his job, it should be because he violated the standards of his profession.

re: 269

Yes, but people have been repeatedly saying that he violated the standards of his profession. It's not just a 'war against the not nice'.

I used to have a psychology PhD friend who worked for the VA who was completely committed to idea that Satanic ritual abuse is a major threat. My stupid brother in law (not the sociopath, the other one) worked in the public schools, and when the SRA medicine show came through town he swallowed their story hook, line, and sinker.

At the hands-on applied level psychology seems to be purely entrepreneurial. Get a bunch of people with licences and then have them make shit up.

Meanwhile, the current head of the Office of Legal Counsel - who's done his own memo-writing - was a recess appointment, that appointment period has expired, he hasn't been confirmed, and he's still the head and at this point probably won't even be nominated (and thus won't be confirmed) before the end of the Bush administration. It seem clear that Congress actually could do something, but it looks like they won't.

There's a difference between us saying it--most of us not actually being in a position to judge--and it actually being the case. I think Cala is entirely right when she says

The reasoning is clearly bad, and if what the lawyers here are saying is right, it's so bad that a first-year law student should be able to see through it, and thus the only reasonable explanation is that he was willfully writing a bad memo in the service of bad ends.

I don't know enough to know whether that counts as legal malpractice. I'd hope so, but I find it baffling he's still a member of the bar.

I don't know enough to say if that violates some lawyer code of ethics, nor if it's bad enough to constitute lawyerly breach. I think it's even more of a stretch to argue that a politicized memo violates his professional obligations as a *scholar*. Again, though, I'm not in a position to make that call.

In any case, I think the fact that the argument is "fire him!" rather than "disbar him!" shows that the animating principle is "punish John Yoo," rather than an actual concern for scholarly ethics--which, as Eric pointed out in his post, is the only proper basis for denying tenure.

Ack, I can't resist the urge to troll this thread:

Tenure isn't about academic freedom anymore, if it ever was. Tenure is a deal struck between elite scholars and administration to transfer the actual work of teaching to contingent faculty (adjuncts and grad students) who have no job security and little pay. In return for letting administration do this, the elite faculty get ridiculous amounts of job security and are relieved of any part of their job they find unpleasant. This is actually a suicidal deal for elite faculty, however, because administration plans to gradually reduce their number until everyone is contingent faculty.

Yoo has the kind of impunity he has because 80% of the courses in the UofC system are taught by contingent faculty (that number from the AAUP). One reason I have no trouble seeing him fired is that the amount of privilege he has is ill-gotten to begin with.

[/troll]

it should be because he violated the standards of his profession.

This is, very explicitly, the claim. What makes this such a bright-line, clear-cut case is that the man performed legal malpractice in order to greenlight torture. Whichever side of that sentence you want to focus on, he has no business teaching Law.

Incompetence is not an academic freedom issue. Given that lawyers have (however nominally) a code of ethics, unethical behavior is not an academic freedom issue.

"First they came for the Nazis, but I was not a Nazi, so I did not speak out."

and it actually being the case

People keep saying things like this; I don't know what it's supposed to mean. There isn't some judge of "actually being the case" than the votes of the relevant group of people. Or if there is, I'm not aware of it.

In any case, I think the fact that the argument is "fire him!" rather than "disbar him!" shows that the animating principle is "punish John Yoo,"

First, no one's talking about denying tenure, because he already has it. And if you go to extraordinary ends to punish John Yoo, you serve a warning to others: there is a line past which we just fuck you because we can. There isn't anything very novel about that form of line drawing.

the fact that the argument is "fire him!" rather than "disbar him!" shows that he is making a living as a professor, not as a lawyer at the bar.

Duh.

If John Yoo were working for some white shoes law firm, we'd all be talking about getting him disbarred. Instead, he's teaching at Berkeley, and so we want him to lose tenure. As was noted 15 hours ago, being disbarred would have no effect on his tenure. It would be like having him kicked out of the Rotary Club.

that the animating principle is "punish John Yoo,"

The other animating principle is that people like John and I are very bitter about the state of academe.

I used to have a psychology PhD friend who worked for the VA who was completely committed to idea that Satanic ritual abuse is a major threat.

Another guy who is in this category for me is AIDS denier Peter Duesberg.

I don't know what it's supposed to mean.

Probably you're just dumb, Tim. Whenever you get confused, just ask one of the adults and they'll help you out.

280: I did, old man. In the part you quote. Care to help?

it should be because he violated the standards of his profession.

I want to revisit this. AFAIR, not a single one of the lawyer-types here has come even vaguely to the defense of Yoo's legal reasoning. Yes, we're all godless liberals who hate the Constitution, but I feel pretty certain that, if Yoo's work had a thread of legitimacy, someone here would have said so - if only for trolling purposes.

This is why the "I'm not in a position to make that call" line is so weak. Because Eric's argument hinges entirely on not being in the position to making the call. If he accepts the word of everyone who is in a position to make the call, then his argument becomes "Yoo should be fired, but for this specific reason." That's a much less interesting argument than the one he's put forth and continued to argue. Instead we're stuck in this stupid loop:

"You can't just fire Yoo because you hate him, you know. It has to be because he was grossly incompetent/unethical."

"He was grossly incompetent/unethical."

"Well, I can't say that."

"We can. He should be fired."

"You can't just fire Yoo because you hate him, you know...."

I don't know what it's supposed to mean. There isn't some judge of "actually being the case" than the votes of the relevant group of people

This is pretty much what I've been saying.

(1) You want Yoo to suffer for being a war criminal? The relevant group of people are the legal system. Go to them.

(2) You want Yoo to suffer for having committed scholarly malpractice? The relevant group of people are a set of UC committees. Go to them.

(3) It is also true that if you succeed at (1), you can afterward go to the set of UC committees and get him to suffer penalties there.

But it is not the job of UC committees to decide who's a war criminal.

I don't know why this is hard to understand.

Eric's argument hinges entirely on not being in the position to making the call.

It really, really doesn't. It is an argument for following due process. I don't know why that's anathema.

When you say,

"We can. He should be fired."

You're saying that you're competent to make that judgment. Really? A bunch of pseudonymous commenters issuing sallies of at most a few hundred words a pop? No. If you, as lawyers, issue something in the character of a brief, and forward it to a competent committee, then okay. But otherwise, no, you really really can't.

NB: I can't do anything in any case, I'm not on the relevant UC campus.

Preferably, the rest of the UC student body and faculty could take ostracization to such a level that Yoo's firing would become unnecessary. If it was clear that nobody on campus would even acknowledge his presence, he might leave of his own accord. Of course, he'd just go take a position at Pepperdine or some such, but at least UC wouldn't continue to be soiled by his presence.

(2) You want Yoo to suffer for having committed scholarly malpractice? The relevant group of people are a set of UC committees. Go to them.

This is what I've been saying (at least in 265).

This thread continues to be bizarre. The whole point of "non-exhaustive" clauses in contracts is to convey the message that the powers that be can get rid of you even if you try to cleverly parse the enumerated grounds for dismissal in your own favor. What should Yoo be fired for? Abetting torture. I have no doubt that his dismissal can be written so as to convey clearly how he breached the ethical norms of the UC community, and why his breach was of such a magnitude to require removal. No horrible precedent set, no tendentious readings required.

This is what I've been saying (at least in 265).

So we agree. And in fact, this is what I said in my original post. Whee!

Really? A bunch of pseudonymous commenters issuing sallies of at most a few hundred words a pop?

Well, obviously yes. Otherwise why would we be spending all this time on this?

288: the term is "Comity!" young man.

But it is not the job of UC committees to decide who's a war criminal.

I don't know why this is hard to understand.

People disagree, Eric. They think things like "It's not normally the task of UC committees to decide who's a war criminal, but whoever is in charge of that task is falling down on the job, so we're at risk of having a war criminal teaching law at our school".

Finding and punishing war criminals within your own government is hardly a routine task. It's not as though there are established procedures for that. And if a lot of people are asking if their government is full of war criminals, it's a sign that there's been a breakdown of some sort, that normal procedures are not working, and that there are enormous public disagreements about fundamental issues.

And in a case like that, ad hoc actions by various self-appointed individuals and groups is the only way to go.

You're saying that you're competent to make that judgment. Really? A bunch of pseudonymous commenters issuing sallies of at most a few hundred words a pop? No.

OK, you got us, Eric. Yoo shouldn't be fired exclusively on the basis of Unfogged comments. It was foolish of me to suggest so.

So we agree.

Except on the question of the likelihood of a slope being slipperied, it appears. But absent a UC committee doing anything, there's not much more to say on those grounds, since it depends - as far as I can tell - on how the committees act. Unless we want to get into a back and forth of "will not" "will too" (but suitably phrased as probabilities instead of certainties). That could be good for a few more comments. There wouldn't be any need to bring out the rubber and glue.

OK, you got us, Eric

Well, seriously, JRoth. If when you say "We can," you mean, "a bunch of lawyers are competent to make this judgment," and "they should do so at length with the care that goes into a proper legal brief," and "they should submit it to an appropriate authority with proper jurisdiction," then you're saying the same thing I am.

You're saying that you're competent to make that judgment. Really? A bunch of pseudonymous commenters issuing sallies of at most a few hundred words a pop? No. If you, as lawyers, issue something in the character of a brief, and forward it to a competent committee, then okay. But otherwise, no, you really really can't.

It's very dangerous to exclude the public entirely from the discussion on procedural grounds. You really have to have an enormous confidence in the actual processes in place to be willing to risk that.

We peasants are watching the whistleblowers having their careers ended while the criminals are returning to positions of high honor. At some point appeals to due process become entirely unpersuasive.

There are many arguments for tenure, some of them good ones, but tenured professors are also an interest group capable of identifying their own privilege with everything that's good and holy.

whoever is in charge of that task is falling down on the job

Yes, okay. But you should probably try to get them to do that job, and be sure they're not going to, before you try to elevate the UC to that position.

Do we really know that there are no moves at all being made by any competent legal authorities in this or related cases? I don't think we do.

From the article Emerson cites above:

Following the implementation of these techniques, more than 108 detainees died in detention. In a large number of these cases, the deaths have been ruled a homicide and connected to torture. These homicides were a forseeable consequence of the advice that Haynes and Yoo gave.

It's very dangerous to exclude the public entirely from the discussion on procedural grounds

I am not trying to do that. But I think this is not the forum, nor are these comments the format, to influence the case.

You really have to have an enormous confidence in the actual processes in place to be willing to risk that.

I would at the least like to see the actual process actually fail, first. That's not faith; faith is belief in things unseen.

What should Yoo be fired for? Abetting torture.

More precisely, abetting torture in a professionally unacceptable manner.

I'm not sure what an *acceptable* manner would look like. Suppose Yoo had written a serious memo and taken the position -- which I'm sure we've all seen -- that waterboarding etc. would be torture, that it would be illegal, but also that in a sufficiently extreme case (tick! tick! tick!), someone could violate the law and throw himself on the mercy of the jury, pointing to the non-explosion of NYC as his defense.

Or, more cynically, suppose Yoo observed that violations of federal law are pardonable by the President, and that the courts have recognized no limits on the pardon power.

Either of those would have been morally nasty, but they would not have gotten the law wrong, deliberately, on purpose. They would present, I think, a harder issue for firing Yoo, though not perhaps for prosecuting him.

Yoo shouldn't be fired exclusively on the basis of Unfogged comments.

Actually, I think the Rule of the Unfoggedariat would be a big improvement over many regimes, foreign and domestic.

More precisely, abetting torture in a professionally unacceptable manner.

Actually, I don't think you need to give him that much slack, but I decided not to push too hard.

In an earlier thread on Yoo, wasn't there at least one commenter with a connection to Boalt? Maybe if ogged can get profiled in the Chronicle datebook section there would be more readers with some connection to the relevant UC campus.

I am not trying to do that. But I think this is not the forum, nor are these comments the format, to influence the case.

Why not? What is the problem with this? You basically are saying that everyone should shut up except for the established authorities. To me this is looking more and more like the idea that commoners must defer to the professorial elite.

I would at the least like to see the actual process actually fail, first. That's not faith; faith is belief in things unseen.

Perhaps I should have said "confidence". I see no reason to expect the routine processes, which may not actually exist, to work. As I've said , the very fact that we're talking about this stuff at all is evidence that many processes have failed already. And I don't see any problem with having to things going on at once.

I'd be surprised if people on the faculty at Boalt hadn't already heard from all and sundry about Yoo.

"Two things going on at once".

You basically are saying that everyone should shut up except for the established authorities.

This is how Eric reads to me, also. Yet that can't be right, can it? Eric?

But I think this is not the forum, nor are these comments the format, to influence the case.

This may be one of the most ridiculous things ever said in an Unfogged comment. "We're not qualified to talk about this!" has never stopped us before.

It seems like the argument now hinges on the appropriate criteria by which Yoo ought to have his tenure revoked -- Eric insists that we stop talking about war crimes -- and whether or not blog commenters are competent to make a determination on professional ethics grounds -- probably not, but so what?

"We're not qualified to talk about this!" has never stopped us before.

Right. What would happen to the anal-sex threads?

Also: I think the relevance of "he's a war criminal" is that some of us think that writing a memo that rises at least to the level of allegations of war crimes is a violation of legal ethics.

233: yes there jolly well would be a problem.

It's the entire purpose of an accountant (and a professor of accountancy) to help people get a true and fair view of a set of accounts. A person who had helped a corrupt management to conceal the economic substance of transactions would have committed such a gross breach of this standard that it would totally undermine any confidence one might have in his honesty regarding accounting.

That is basically game over for this professor of accounting. If he's done something like that in his consulting work, how can you possibly trust his academic work on accounting? How do you know that this isn't being warped around the needs of his consulting clients too?

The point here is that having been caught out in an episode of dishonesty on subject matter related to someone's professional expertise has to have consequences for that person's professional standing. What do you think would happen if the Professor of Physics at Berkeley started appearing in infomercials for a perpetual motion machine?

More to the point, any business school which employed a fraudster as its professor of accounting would have to get rid of him, because otherwise it's condemning generations of its students to being "an alumnus of Professor Enron". Any sensible code of ethics has to have some implicit or explicit provision to allow the institution to protect itself and its reputation from people who have, through intentional acts of dishonesty, done things which tarnish that reputation. That's the case here; as I understand it, the argument is that Yoo intentionally (or through such absurd negligence as to amount to culpable negligence) gave misleading legal advice to a client in order to provide political cover for an illegal act that the client wanted to carry out. If that's true, surely he has to go - how on earth can one consider that it is part of the institution of tenure that it protects your right to do something like that?

You basically are saying that everyone should shut up

No, I really am not. I think people should say what they think, loudly and vigorously, about this and other examples of injustice they perceive. I just don't think those people should expect their opinions to constitute something like a finding of fact.

311 was me.

I would at the least like to see the actual process actually fail, first.

What actual process? Is there any such process going on? If not, external pressure seems useful to get it going.

yes there jolly well would be a problem.

dsquared, I meant there would be no problem getting him disciplined.

external pressure seems useful to get it going

I've never said otherwise. If you read my post you will see that I tried only to narrow down the options for what the process could legitimately aim at.

There's nothing there that says you shouldn't try to get the process going.

well what's the difference between helping Jeff Skilling find a loophole in SFAS157 and helping Dick Cheney find a loophole in the Geneva Conventions?

I tried only to narrow down the options for what the process could legitimately aim at

And this is what I've been disagreeing with, but I think we've been around and around enough. Now I will hold a grudge, which I will pass down to my progeny, with instructions to keep it alive for seven centuries.

what's the difference

I think probably none. If you read my post, I said that probably the only way the UC could get him is on some kind of malpractice/misconduct. And if the relevant committees on the Berkeley campus agree with you about this being malpractice, there you go.

I was shocked and saddened to learn that Jeff Skilling was Tom Skilling's brother.

Now I will hold a grudge

Please, accept this grudge with my compliments. It is descended from a long line of grudges that have been in my family a long time, and they reliably bear sturdy offspring of resentments, grievances, antipathies, and pique.

whether or not blog commenters are competent to make a determination on professional ethics grounds -- probably not, but so what?

Actually, one of the great things about blogs is that because of the range of backgrounds of commenters, there often is at least one commenter who is pretty competent to make a professional determination in most any subject that comes up.

If you read my post you will see that I tried only to narrow down the options for what the process could legitimately aim at.

I think, in part, the disagreement is about the word "legitimately," which seems like a bit of a weasel word. You're arguing for one version of legitimate behavior, others are arguing for another.

some kind of malpractice/misconduct

specifically, the facilitating-torture kind.

This isn't difficult. If you're invited to consult for Enron on the valuation of long-dated electricity-supply contracts, you're in the clear, because valuing supply contracts isn't something that it's bad to do. If you're invited to consult for Enron on loopholes in the California power market which could be used to manipulate the daily auction, then you're very obviously not in the clear, because that's very obviously a wrong thing to do. Even if your consulting on this point is a masterpiece of microeconomics, you're still fired because consulting on a criminal project is intrinsically malpractice, however you do it; there is no good way to do a bad thing.

If the professor of acoustic engineering had done consultancy on the best way to soundproof a torture chamber, this would also be "scholarly malpractice".

I went back to read Eric's original post, wondering whether I'd missed something, and as far as I can tell, I didn't.

I have said repeatedly that this is the question, "if there is a question." I am not one of the community competent to raise this question; the constitutional lawyers are. I would be surprised if they weren't considering the case carefully. To quote another authority competent to make judgments in cases like these, "It's a matter of time.... These things take time."

I have no confidence whatsoever in the self-policing abilities of the professions, especially not law, and "It's a matter of time.... These things take time" is a standard way of chilling out the suckers. (There are people still waiting for their Exxon Valdez settlement after 20 years; I know two of them).

To have a war criminal teaching law is intolerable, just because his offenses relate so directly to his job. And everybody should be on the case, including the U of C., not just prosecutors or the bar association.

This looks more and more like a feudal immunity which Eric wants to be almost absolute. But the commoner folk belief that war criminals and torturers should not teach law is a pretty sound one, and the commoner conclusion that Yoo is a torturer and war criminal looks pretty solid too. I united effort to get the guy out of there looks pretty reasonable.

As for the idea that going after his job instead of his license to practice law or prosecuting him, seen by both you and B in 125, 233, 273 and probably elsewhere, yes, him losing his professorship probably is the lowest priority. (Well, maybe it's more important than getting him disbarred, but it's definitely not more important than getting him jailed.)

However, it's also by far the most likely. Who's going to charge Yoo with a crime? The administration he did the work for? The next president? In the very unlikely event that he or she is even interested in investigations and prosecutions of this administration, Yoo is the least of the wrongdoers. If things get so bad that we see a sweeping political realignment, the American establishment might leave Yoo hanging if he gets prosecuted in Germany. Maybe. Other than that, jail for him or anyone higher up in the administration seems about as likely as cold fusion. We focus on his job because a discussion of criminal charges would vindicate macmanus in under 200 comments.

And his job is also the line of attack that we (the public, politically-interested busybodies in general) have the most control over. Some people here are California residents, and according to stereotype a lot of people at Berkeley already agree with us anyway, and in some ways it's a lot easier to pressure a college than the federal government.

Jeff Skilling was Tom Skilling's brother

No fucking way!!!!

And the university has the deepest and most pressing interest in doing something about it, unless it wants to be known the world over as the law department that has a torturer working for it.

If the professor of acoustic engineering had done consultancy on the best way to soundproof a torture chamber, this would also be "scholarly malpractice".

This is exactly right, and what I didn't want to get into in 301. Saying that the memos have to be shown to be shoddy legal reasoning is already too kind to Yoo.

"You" in my first paragraph refers to Eric, obviously.

And the university has the deepest and most pressing interest in doing something about it, unless it wants to be known the world over as the law department that has a torturer working for it.

They seem to be cool with that.

Jeff Skilling still is the brother of Tom Skilling, by the way; it was Lay that died, not him.

Who is Tom Skilling and why does it bother oudemia and ogged that he's Jeff Skilling's brother.

Tom Skilling is the geek-savant/cult-hero of weathermen, who does the most ridiculously comprehensive weather report every day on WGN--it's usually a five or six minute mini-lecture on all the weather phenomena manifesting that day.

They seem to be cool with that.

Well, yeah: he's an important and well-connected torturer, that's the important thing.

They seem to be cool with that.

I assure you, many people are not cool with that. Which is not inconsistent with saying, if we want to do something about it, we ought to do it in a manner in keeping with our laws and rules.

in a manner in keeping with our laws and rules

As defined, needlessly narrowly, by you.

it's also by far the most likely.... it's a lot easier to pressure a college than the federal government

I tend to agree with you, and I again, I don't see any downside in saying that you ought to expect them to respond to pressure in keeping with their laws and rules. Pressuring the UC to determine that John Yoo is a criminal, or abetted crimes, absent a conviction, isn't likely to work.

As defined, needlessly narrowly, by you.

Read them, ogged. Tell me where it says the UC can or should determine that someone's a criminal without their having been convicted, and fire them on that basis.

Once again, this has nothing to do with his being a criminal, but is about whether he violated the UC's ethical norms in a way that merits dismissal.

we ought to do it in a manner in keeping with our laws and rules.

The dispute is over what falls into "in keeping with our laws and rules," who gets to decide that question, and on what grounds.

whether he violated the UC's ethical norms in a way that merits dismissal

Which of the ethical norms do you think he violated in such a manner? Quote, if you would, please.

Tell me where it says the UC can or should determine that someone's a criminal

Jesus H. Christ, man, have you even been reading this thread?

Tell me where it says the UC can or should determine that someone's a criminal without their having been convicted, and fire them on that basis.

That's the "needlessly narrowly" bit. It's undisputed that he wrote a legal memo intended to provide political cover for the use of torture. That's a breach of the relevant ethical standards, per se. It isn't criminal to appear in an infomercial for perpetual motion machines, but it's grounds for dismissal of a physics professor. It isn't necessarily criminal to advise on soundproofing a torture chamber, but it's grounds for dismissal. If you're asking society to continue to respect this concept of "scholarly discourse", then in return society has the right to demand that standards of this sort are maintained.

341: Let me guess! It's the one where you don't commit scholarly malpractice so the government can torture people and hide behind your memo! Oooh, ooh, I think you mentioned it in comment 21.

Just to clarify the dispute for my own sake, I understand the argument this way:

There are at least three ways to get at Yoo. They are:

(1) Kick him out because he's been convicted of a crime, here a war crime. Eric says that the UC system can't convict him of said crime. I don't think anyone disputes that. I don't know what it would mean to dispute that.

(2) Kick him out for betraying his scholarly discipline. Eric agrees that this is an avenue of attack, and thinks it might be successful, but, as someone who doesn't practice that discipline, feels he isn't qualified to judge likelihood of success. I'm not sure that there is all that much disagreement about that. Here, to the extent that there's a disagreement, it's about whether or not people who are in that discipline and will be able to make that decision can be or should be pressured by outside groups such that the likelihood that they "make the right decision" is increased. I'm not sure if Eric has taken a position on such pressure; I think not.

(3) Kick him out for failing to meet the aspirational ideals. That is, punish him for being a dick. Here, Eric notes, is a gray area. This is the area that ogged wishes to exploit. I'm unclear about Eric's position here, as well, though I believe he has vaguely prudential reasons for not wanting to go this route.

That's about right, isn't it?

342: I think the point seems to be that "violating ethical norms" is a nonsensical phrase, and the only thing in human existence that can reasonably be said to be a proxy for that meaningless phrase is "committing a crime". Ergo, if he did not commit a crime, he did not violate ethical norms. And if he was not tried and convicted of a crime, he did not commit a crime. Ergo, if he was not tried and convicted of a crime, he did not violate ethical norms.

The mystery is why the concept of "ethics" persists in this new and rational world.

To have a war criminal teaching law is intolerable,

Ahh, but how do you know he's a war criminal - or, as ogged would have it, "a horrible person who facilitated horrible things" - unless a properly constituted authority has declared him one? These things are best left to the authorities.

Jesus H. Christ, man, have you even been reading this thread?

Per Cala in 344, have you?

It's undisputed that he wrote a legal memo intended to provide political cover for the use of torture

Among us here, and among legal commenters everywhere. Get it to be undisputed by a UC Berkeley committee, and you're done. That's in keeping with everything I've said so far.

Doubtless this is invoking some kind of guild-like privilege, but gotta go to work. I do feel an obligation to continue the discussion and will if and when I can.

319: why?

345: That's a good summary. And the discussion Eric was originally responding to was conflating one and three, and confusing academic freedom with all of it.

Somewhere upthread someone mentioned that Yoo wouldn't (or shouldn't) be disbarred, because that wouldn't do anything, but I think it makes your 2) an easier case, in part because outside pressure won't be able to say 'how bad could it be, he's still a member of the bar.')

341, 344: "central functions of a University," in the preamble, seems like a hole to be driven through. It seems to be left open for interpretation.

Note also the bit quoted in 114: "It is expected that case adjudication, the lessons of experience and evolving standards of the profession will promote reasoned adaptation and change of this Code."

348:

Get it to be undisputed by a UC Berkeley committee, and you're done. That's in keeping with everything I've said so far.

do wot mate? Everything you've said so far has been exactly the opposite; that there aren't any grounds for getting rid of the guy ex either a) conviction as a criminal or b) some cooked-up scholarly flaws in the memo itself. The entire point myself, Oggers and the chaps have been making is that to write a torture memo is per se, in and of itself, malpractice.

What if he wrote a memo that said it is not illegal to have sex with a woman after she passes out from drinking too much?

Which of the ethical norms do you think he violated in such a manner? Quote, if you would, please.

Didn't ogged address this in 66, among other places? You sound like those constitutional literalists who demand strict construction of the constitution, and strict adherence to the intent of the Founders - except for the ninth amendment.

You are the Scalia of the Berkeley Code of Conduct.

Eric, if you keep on with the "criminal" bit, when the entire tendency of this thread has been Yoo's professional malfeasance, then don't be too terribly surprised if someone wonders whether you've been reading the thread.

You've made some good points, but you have done exactly nothing to demonstrate that Berkeley cannot legitimately fire Yoo for professional misconduct.

It would be unusual, and perhaps precedent-setting, but it's a precedent that needs to be set. Yesterday.

Perhaps Cal should just rewrite their bylaws so that being a torturer and war criminal, as judged by the authorities at Cal, is a firing offense. Eric's objections are procedural, so a new line in the bylaws should cover it. "Faculty are required to satisfy the standards of their discipline and refrain from war crimes and torture, whether or not war crimes and torture are specifically inconsistent with the standards of their particular discipline. (That way we can get the torturing chemists and entomologists too). University committees are authorized to investigate accusations of war crimes and torture if deemed necessary."

you have done exactly nothing to demonstrate that Berkeley cannot legitimately fire Yoo for professional misconduct

Perhaps that is because that is the only reason I said they might get him for in the first place.

I really don't think we should give the University committees authorization to torture, John. That seems like it would just make the problem worse.

Everything you've said so far has been exactly the opposite

No, it really hasn't. If you get the relevant committee to agree that he "gave misleading legal advice to a client in order to provide political cover for an illegal act" that seems to me to fit a definition of scholarly misconduct.

349: Because Tom always seemed like such a jovial nerd, whose early avocation for meteorology (showing up in newsrooms as a 10 year old to try to hang with the weather guys) is appealingly, well, nerdy. He was the only weather guy who wasn't a spokesmodel.
But by all accounts (OT: helpy-chalk and I know one of the people interviewed in Smartest Guys in the Room!), Jeff was the ubernerd who made it big time and then felt compelled to live the life he imagined the dudes who beat him up in high school would dream of, with all attendant Lasix and strippers.

352: "It is expected that case adjudication, the lessons of experience and evolving standards of the profession will promote reasoned adaptation and change of this Code."

This does provide the opportunity for U of C to make a statement which can help set the norms within US and Global society that torture is not OK. Something along the lines of "The University never anticipated that it would face the day when a prominent member of its community would contribute their effort, expertise and reputation to intentionally furthering the practice of torture. Sadly that day has come , [insert firm condemnation of same, amendment to the code and disassociation with Yoo here]. Maybe this country is fucked enough to "really" legalize torture in the future, U of C can still hold to their position. Ethical leadership from a University, what a concept!

[partially pwned by Emerson on preview.]

relevant committee

Who's the chair?

361: well, but so what? I know the sister of one of the other people convicted in the Enron case, and she's great and does good work with her life, while her brother pretty much went through the same process as Skilling; his bad acts don't make me think any less of her.

359: You want them to think you're weak, Sifu? Torture the professors! Jack Bauer would.

will, I'm not sure where you're going with your analogy and the only possible places it's going seem to piss me off.

361: also, what's wrong with Lasik?

will, I'm not sure where you're going with your analogy and the only possible places it's going seem to piss me off.

I didnt read upthread much to see where you stood, Cala.

He wrote a memo that asserted a legal position that many people find ridiculous and that would authorize actions that many people would find heinous.

U of C = University of Chicago
UC = University of California

Also, U of I = University of Illinois
IU = Indiana University

367: "many" in your final sentence should be "all reasonable and decent". We don't have to be relativists here.

and UT vs. UofT (more than one) etc.

UC also can = University of Cincinnati

UI = University of Iowa
CU = University of Colorado
IUD = c'mon, be serious.

364: Oh golly. I was being goofy, Sifu.

368: Curiously

UK=University of Kentucky, and
KU=University of Kansas.

373: what is this thing you earth humans call goo-fy?

"many" in your final sentence should be "all reasonable and decent". We don't have to be relativists here.

Good point.

But, that sentence really doesn't matter. His defense is that he is simply interpreting the law. The result is irrelevant. The response is that if the legislature wants to outlaw the conduct that I assert is illegal, then they have every right to do so. (Of course, not under Yoo's memo. But the Constitution could be changed.)

What if I write a memo asserting that it isn't illegal, under current law, for Sifu to live with and have sex with twenty 16 year olds?

What if I write a memo asserting that it isn't illegal, under current law, for Sifu to live with and have sex with twenty 16 year olds?

You'd find yourself hard pressed on the conjunction, for one.

You would be perfectly correct, Will.

374: was it just me or did Billy Packer last night really say (paraphrasing): "the last NCAA title game that went into overtime was the 1997 game between Kentucky and Arizona. The Wildcats eventually won that game."

I don't think he was trying to make a joke, either.

IUPUI = Indiana University Purdue University Indiana

CUP = California University of Pennsylvania

2nd Genomic Informatics Research Laboratory, 1st California Univeristy of Pennsylvania

2nd Genomic Informatics Research Laboratory for Scholarship, 1st California Univeristy of Pennsylvania

380.1 Actually that is Indianapolis on the end not Indiana. Distinguishes it from IUPUFW - Indiana University Purdue University Fort Wayne.

Oh, right. I got tired of typing.

Fuck the polis, eb.

Seriously, is Eric trolling? What is he trying to achieve? Defend the all-important norm that Berkeley only fire Yoo after they produce the right paperwork?

345 is an excellent summary.

363 is an excellent question.

Seriously, is Eric trolling?

Not at all. I think he's making a specific argument about what is possible to do about Yoo. It's entirely reasonable to make that argument. But I think he overrates, a bit, the strength of his argument. It might be best to protect the interests he cares about, but it's not clear to me that he's made a convincing case of that. I suspect that's a function of his position. It makes sense that the case for caution proceduralism when going after an academic in his lair would seem strongest and most obvious to academics.

There was a year in the 1990s when Cal played Penn State in the NCAA tournament. One of the Penn State players had a tatoo that said "Cal" and looked like the Cal logo, but it turned out he had some family connection to California University of Pennsylvania.

Pennsylvania has a Wyoming area too, but I don't think there's a university connected to it.

Also, given 345, it really does seem that the thread now hinges on the question, as originally framed by Ogged, of whether the slope in question -- interpreting the guidelines broadly enough to assume that Yoo can be fired without an investigation into scholarly misconduct* -- is sufficiently slippery to be worth avoiding. Right? I'm just trying to keep up while maintaining my totally racist stret cred.

* Because otherwise everyone just agrees with Eric's post, right?

I think Tim's 388 is a mirror-image twin of my 390, if you see what I'm saying.

CUP = California University of Pennsylvania

Also, IUP = Indiana University of Pennsylvania.

And they play in the same athletic conference.

CUP = California University of Pennsylvania
IUP = Indiana University of Pennsylvania
IUPUI = Indiana University Purdue University Indianapolis
CUPUP = California University Pacific University Californiopolis

PA has Wyoming Area and Wyoming Valley West high schools. but for colleges, only this.

is sufficiently slippery to be worth avoiding. Right?

I think this is the question, though I don't think Eric has responded to it. (Not out of bad faith, yadda yadda, just b/c the discussion has been confused.)

Huh, I turn out to have kind of a weird connection to Boalt Hall. I will see what comes of it.

389: Wyoming area too, but I don't think there's a university connected to it.

Not named Wyoming, but there is PSWB (Penn State Wilkes-Barre), not to be confused with nearby PSWS (Penn State Worthington Scranton)

The other "state" state university in PA is IUP - Indiana University of Pennsylvania.

Pwned on preview by apo (POPBA).

His defense is that he is simply interpreting the law. The result is irrelevant.

That defense doesn't work when his legal reasoning has to be shoddy in order to get the conclusion that he wants. It's not that he's defended something or someone heinous, it's that he couldn't defend them without arguing in bad faith.

I definitely think there should be a investigation into academic misconduct before Yoo is fired. A long, public investigation which includes many discussions in the press about exactly what Yoo is accused of doing, why the legal protections against torture are important, why honestly representing precedents is important, etc.

An open, well publicized investigation will have better consequences than a simple firing.

* Because otherwise everyone just agrees with Eric's post, right?

Absolutely not. Eric's post, if it means anything (and he is apparently trying to walk away from this interpretation but I don't see how he can without rendering the whole post pointless) means that the question of whether Yoo wrote a memo endorsing torture is the sort of thing that the University of California shouldn't take an interest in because it's "not part of scholarly discourse". Me, Oggers, Sifu and the rest think that this distinction can't stand up - that doing something sufficiently dishonest and/or horrible[1] in one's academic field is enough of a character issue to warrant removing someone from their academic job, whether or not it falls within the scope of some restricted concept of "scholarship". And we don't think there's a slippery slope here at all; the difference between Alan Dershowitz, who merely supports torture with political arguments and Yoo, who creates a legal case for it (which apparently happened to be spurious, though nothing turns on this, see footnote [1] below) is very clear and qualitative.

[1] the two possibilities are both sufficient on their own but neither necessary on their own - the physicist appearing in infomercials for perpetual motion machines would be dishonest but not horrible, and should be sacked, while the engineer working on soundproofing of torture chambers would be horrible but not dishonest, and should be sacked.

he couldn't defend them without arguing in bad faith.

Which is why I haven't understood Eric's constant references to legal determinations of criminal conduct - it's nigh-irrelevant.

Look, if a lawyer shaded the precedents to benefit the Orphans' Home, then it might be a reasonable case for the relevant committee to wink at the scholarly malfeasance involved. But when a lawyer mangles the precedents to promote torture, there's no need for hemming and hawing. Haul him in front of the committee, read him the riot act (Youngstown while you're at it, since he seems to be unfamiliar with it), and drum him out.

Then we talk to the Bar. And start drafting letters to President Obama.

Answer: nothing! But I feel bad for the person I know there; this can't be easy for them.

#397: His defense is that he is simply interpreting the law. The result is irrelevant

This defence also does not work when the purpose of his interpretation of the law is to provide political cover for torture. Even if it was the most fantastic and scholarly exploration of the possible loopholes in the law that one could imagine, it would still be grounds to lose confidence in the man's ethics. This was the purpose of my hypothetical example of the professor of acoustic engineering who was helping design soundproof torture chambers; one wouldn't start an ethics investigation into what he had done by asking whether a few screams leaked out.

I know nothing of this Yoo fellow that is unconnected to all this torture business. Does anyone have a sense of whether he is/was an otherwise well-regarded professor? Are his scholarly works considered reputable and valuable, or has his whole career been garbage?

the question of whether Yoo wrote a memo endorsing torture is the sort of thing that the University of California shouldn't take an interest in because it's "not part of scholarly discourse".

I'm not sure that's a fair restatement of Eric's position. His post missed--I believe--the language on which ogged wants to depend. I'm not sure his current position, in comments, is a walkback so much as an incorporation of that new language.

That defense doesn't work when his legal reasoning has to be shoddy in order to get the conclusion that he wants. It's not that he's defended something or someone heinous, it's that he couldn't defend them without arguing in bad faith.

Eh.

A quick, simplistic summary:

A lawyer can argue for a change in the law. A lawyer can argue that precedent should not be followed.

The key is that the lawyer should acknowledge the existence of adverse authority. The client can then decide whether to take the risk.

In Virginia, a lawyer gets in trouble when the client discloses an intention to commit a crime. That client disclosure is not protected by client confidentiality and a lawyer can get in trouble for not disclosing it. Likewise, a lawyer cannot hide evidence of a crime. (ie client brings me a gun used in a murder to keep in my safe.) This issue is the problematic one for Yoo.

I am not a fan of the criminalization of accountants and lawyers in the Enron type cases. I just do not think the analysis holds up well.

Count me among those who think that if Yoo had just written an intellectually honest and competent work (whether academic or for a client) on the current possible legal justifications for torture, he should keep his job.

This was the purpose of my hypothetical example of the professor of acoustic engineering who was helping design soundproof torture chambers; one wouldn't start an ethics investigation into what he had done by asking whether a few screams leaked out

Would this actually be grounds for getting tenure revoked without any other outside action, i.e. prosecution? I have my doubts.

Count me among those who think that if Yoo had just written an intellectually honest and competent work (whether academic or for a client) on the current possible legal justifications for torture, he should keep his job.

I will use the more concise shorthand term for "those who think that if Yoo had just written an intellectually honest and competent work (whether academic or for a client) on the current possible legal justifications for torture, he should keep his job" and just refer to them as "the monsters".

Which is why I haven't understood Eric's constant references to legal determinations of criminal conduct - it's nigh-irrelevant.

The mention of criminal conduct in the actual code covering faculty conduct makes it relevant.

Eric's post...means that the question of whether Yoo wrote a memo endorsing torture is the sort of thing that the University of California shouldn't take an interest in because it's "not part of scholarly discourse"

Can you point me to the part of the post, or the comment, from which you've drawn your quote? Because my understanding of the original post is that Eric believes that there are procedures in place by which the UC can determine this very thing. He's just not fond of the notion of an extra-procedural sacking.

Even if it was the most fantastic and scholarly exploration of the possible loopholes in the law that one could imagine, it would still be grounds to lose confidence in the man's ethics. This was the purpose of my hypothetical example of the professor of acoustic engineering who was helping design soundproof torture chambers; one wouldn't start an ethics investigation into what he had done by asking whether a few screams leaked out.

A lawyer's job is to analyze the law. You are assuming that the underlying action is criminal.

I think it would be unethical for me to write a memo on whether it is illegal for you to watch Sifu murder someone, as long as you didn't participate. I can write the memo after the fact. I just cannot write it before the fact if I know it is going to be used in association of a future crime.

In this situation, the question is whether the underlying action was illegal. The client could sue me for malpractice, but I dont think it goes much beyond that...as long as I disclose adverse authority.

322: I think, in part, the disagreement is about the word "legitimately," which seems like a bit of a weasel word.

It trades entirely on what we're willing to consider *legitimate* in extending and applying UC's code to ethical misconduct heretofore unexamined. Not a weasel word at all.

See 390. I doubt there will be a general argument available to make the case that no "reasoned adaptation and change of this Code" (see quoted bit in 114) will be legitimate. But it will be incumbent on those who make such a decision to codify it in some way. That's where the give-and-take between procedure and the essential questioning of its mechanics takes place; proceduralism doesn't rule out popular uprising at its failings.

Are his scholarly works considered reputable and valuable

No. They're the academic equivalent of Regnery crap. There've been some good takedowns if you google his book titles -- one in the NYRB for sure.

those who think that if Yoo had just written an intellectually honest and competent work (whether academic or for a client) on the current possible legal justifications for torture

That's what I was trying to imagine above, but it's kind of like "possible legal justifications for rape" -- once you say "torture," it's supposed to be pretty clear whether it's right or not.

I think it would be unethical for me to write a memo on whether it is illegal for you to watch Sifu murder someone, as long as you didn't participate.

dsquared can watch, but I don't want the twenty 16 year olds seeing that.

408 is bullshit. Lawyers are supposed to provide exactly that sort of advice to their clients. Also, please do note that I don't think there's any good way to write an intellectually honest and competent work on the current possible legal justifications for torture that comes to the conclusion that torture is okay or permissible (at least in anything even remotely like the sort of situations in which it has been employed).

It trades entirely on what we're willing to consider *legitimate* in extending and applying UC's code to ethical misconduct heretofore unexamined.

To what does "it" refer, and what is that "it" trading?

I think it would be unethical for me to write a memo on whether it is illegal for you to watch Sifu murder someone, as long as you didn't participate.

What? No. Why would this be unethical? I'm confused. A client asks for your legal advice: is it illegal for me to do action "x"? You think it is unethical to write a reasoned response if the answer is "yes" or "potentially"?

Eric's post...means that the question of whether Yoo wrote a memo endorsing torture is the sort of thing that the University of California shouldn't take an interest in because it's "not part of scholarly discourse"

It really doesn't:

scholarly discourse, which is the basis for the protection of academic freedom and tenure, is the kind of thing the UC should adjudicate--not only the kind of thing it should adjudicate, but the kind of thing it does adjudicate all the time.... The question before the UC, if there is a question, is one of whether these procedures, with the new evidence of this professor's legal work before them, would reach a different conclusion in answer to that question--and whether that conclusion would be so different that the protections of academic freedom should be stripped from this professor on the basis of his having committed a kind of scholarly malpractice

Brock.

I was focused on the advanced knowledge that Sifu was going to commit a crime.

What roused me was that not only does Eric believe that Cal's rules do not justify or allow taking Yoo's involvement in torture and war crimes into account, but that this is a matter of high principle and a very good thing.

Which would be worse, a university full of torturers, or a university from which (say) atheists and homosexuals had been purged? It seems to me that both are bad, and that there should be a way to avoid both.

410: He's just not fond of the notion of an extra-procedural sacking.

Who is? Well, I shouldn't say that because in hundreds of comments, someone probably advocated that somewhere. Personally, though, I think the usual process for revoking tenure from someone who has been accused of both extreme ethical lapses and professional malpractice should be started immediately, with near-certainty that the process would result in Yoo losing his job.

408: just refer to them as "the monsters".

Or, as bob would call them (us? not sure), "the procedural liberals."

That's what I was trying to imagine above, but it's kind of like "possible legal justifications for rape" -- once you say "torture," it's supposed to be pretty clear whether it's right or not.

Well, of course, but it would a memo not on the legality of "torture", but "aggressive interrogation techniques" and the "physical mistreatment of non-citizen detainees". (Just like the former memo would be on the law of "sexual intercourse with legally incapacitatedpersons" or something like that. We're using shorthand in both cases.

420: Emerson's Choice: Atheists or Homosexuals? Coming soon to a theater near you.

Or sexual intercourse with voluntarily severely intoxicated persons.

Aren't the severaly intoxicated "legally incapacitated"?

severely

Belatedly:

Do we really know that there are no moves at all being made by any competent legal authorities in this or related cases? I don't think we do.

It seemed pretty clear from Mukasey's testimony in the House and Senate a couple of months ago that the DOJ isn't going to look into this from their external investigation side. There are investigations by the DOJ Inspector General's office and Office of Professional Conduct into various goings on at the DOJ - possibly including the attorneys scandal, general politicization, civil rights division, along with torture and warrantless wiretapping. At least one of those reports - I'm not clear how many investigations are going on - is due out in a month or two. It's rumored to be pretty scathing.

That's "Atheists, Homosexuals, Torturers, and War Criminals: A Plea for Tolerance".

"When little John Yoo told the support group about the bullying he suffered because of his proclivity for torturing cats, everyoine in the group understood immediately, for they were all homosexuals and atheists and had been terribly rejected and abused".

421.1: Then, if I'm reading your right, you, along with, it seems to me, a great number of people here, including many who are insisting otherwise, actually agree with Eric. Which is all I was saying upthread.

I think it has to be that he wrote a bad faith argument; lawyers are allowed to defend people who do bad things, and they're allowed to say that proposed action X is illegal but that alternate action Y isn't. What they're not supposed to do is say proposed action X is legal when it isn't, and that looks like what Yoo did.

Shorter and clearer 429: Then you and many people who are insisting that they disagree with Eric actually agree with him.

What they're not supposed to do is say proposed action X is legal when it isn't, and that looks like what Yoo did.

every day a lawyer argues that a particular action is legal and a judge tells the lawyer that it isn't.

227

"If this was about a professor of accountancy who had advised Kenneth Lay on how to structure a fraudulent transaction, would we even be having this discussion? Course not, because that's about money, which people take seriously. ..."

I don't think this is accurate. US accounting is very rule oriented, if you obey the rules you are ok even if the overall impression conveyed is false. I believe in some countries there is a general rule that notwithstanding any other rules the accounts must give an accurate overall picture of the health of the business but there is no such rule in the US. Lay was being advised on how to arrange his books so has to obey the rules but convey a misleading overall impression. I doubt that would be sufficient to get a professor of accounting fired. Consider for example the case of Andrei Shleifer who remains on the Harvard faculty.

And there are numerous lawyers (some of whom I believe are professors) who have variously argued that Lay did nothing criminal, that his prosecution was political, that fraud was not a significant factor in Enron's downfall, that white collar misconduct should not be criminally prosecuted etc. and so far as I know none have gotten into trouble for this.

Analogy warning: the analogy from corporate tax law is apt. Most of the time the client comes in with a proposed course of action that violates the tax laws. And the lawyer's job is to restructure the situation in some way so as to allow the client to do exactly whatever it is they wanted to do, only not technically violate the law in the process. And 99% of the time that's exactly what happens. It's the rare exception when you actually have to tell the client, "no, sorry, you can't do what it is you're wanting to do here". (Realizing this was the case was a big part of what pushed me away from transactional tax law. I know there is arguably some moral distinction between "paying less than one's fair share of taxes" and "torturing brown people", but both seemed wrong enough that I didn't really want to be invovled in facilitating them. But, that said, we certainly accept the lawyer's role in the tax case.

every day a lawyer argues that a particular action is legal and a judge tells the lawyer that it isn't.

See, now there's a lawyer who should be disbarred. Don't you ever get it right, lawyer?

269

""Academic freedom has traditionally been seen as protecting speech outside your academic speciality, marching against the war in Vietnam for example."

No, that would be protected by the first amendment."

The first amendment stops the government from putting you in jail for unpopular speech, it does not stop your employer from firing you. Tenure may.

And there are numerous lawyers (some of whom I believe are professors) who have variously argued that Lay did nothing criminal, that his prosecution was political, that fraud was not a significant factor in Enron's downfall, that white collar misconduct should not be criminally prosecuted etc. and so far as I know none have gotten into trouble for this.

This is the Dershowitz example. No one is denying freedom of speech - to say things in support of an odious position, without directly promoting that position, is SOP per the First Amendment, for academics and other humans.

432: There's surely a difference between writing an argument where you argue in good faith, but turn out to be wrong, and the judge says 'lawyer please' and one where you make up the law and ignore precedents knowing that your client will rely on it and do something illegal isn't there?

436--when your employer is a state university, the first amendment stops your empoyer from firing you for unpopular speech.

430, 438: I have trouble pinning Yoo's sin on 'bad faith', because I have little doubt that his belief in the unconstrained power of the executive in this area is absolutely 100% genuine. It's certainly compatible with, if not entailed by, (very stupid) things he was writing before he was at OLC. I really don't think this is an instance of a lawyer making a case he knew or believed to be wrong.

Yoo's sin is in his ideas and what he did with them, not his failure to meet professional standards. He should be fired because he is a torturer--and thus has no place in the university--not because he is an incompetent lawyer.

I think that the answer to 438 will remind us why lawyers are widely hated in this country.

To be clear, 437 was written before 436 posted. "No one is denying" should perhaps read "no one here is denying." AFAIK, no one here has advocated Dershowitz getting canned, even though most of us think he's supported some pretty odious positions.

I believe that the short version of his memo is the following:

1. X, y, & z statutes and treaties exist banning certain actions.

2. The Constitution gives the President power of Commander in Chief.

3. The Constitutional Commander and Chief powers trump x, y, & z statutes and treaties.

"every day a lawyer argues that a particular action is legal and a judge tells the lawyer that it isn't."

See, now there's a lawyer who should be disbarred. Don't you ever get it right, lawyer?

Sometimes that's just preserving the issue for purposes of subsequent review. I can't come up with a great example right now, but I think of criminal cases where the government will constantly be trying to argue that a search or interrogation was legal, even if existing precedent says not. Or a criminal defense lawyers constantly arguing in the face of adverse precedent that what their client did was not a crime. There's nothing wrong, per se, about making those arguments -- you do it because maybe that issue is working its way up through the appellate process and you are hoping that somewhere down the line a more authoritative court will overturn the precedent you are arguing contrary to. It is only unethical if you "forget" to mention the adverse authority to the court when making your argument.

440: Fine, good faith but utterly incompetent if what the lawyers here and elsewhere are saying is true. Is there a minimal 'you cannot be serious' bar for lawyering?

415

"408 is bullshit. Lawyers are supposed to provide exactly that sort of advice to their clients. Also, please do note that I don't think there's any good way to write an intellectually honest and competent work on the current possible legal justifications for torture that comes to the conclusion that torture is okay or permissible (at least in anything even remotely like the sort of situations in which it has been employed)."

Sure it is. There is no consensus on when harsh treatment of prisoners becomes torture so there is plenty of room for argument.

443 was me, pwned by the imminently more concise and colorful Cala in 438.

444: you cannot be serious. This is lawyering!

McEnroe justice.

Yoo's sin is in his ideas and what he did with them, not his failure to meet professional standards. He should be fired because he is a torturer--and thus has no place in the university--not because he is an incompetent lawyer.

Agreed. How about firing him because a University is a place for people who do not support the fundamental dignity of a human life?

I have trouble pinning Yoo's sin on 'bad faith', because I have little doubt that his belief in the unconstrained power of the executive in this area is absolutely 100% genuine. It's certainly compatible with, if not entailed by, (very stupid) things he was writing before he was at OLC. I really don't think this is an instance of a lawyer making a case he knew or believed to be wrong.

Basic reading comprehension seems to argue against this position. Even if you sincerely believe that the sky is green, citing a picture of a blue sky as proof of your position is hard to describe as "good faith." Dishonest or deranged*, I'd say.

* Or Japanese.

Sure it is. There is no consensus on when harsh treatment of prisoners becomes torture so there is plenty of room for argument.

Except according to precedent in US law and international treaties as well as common sense public opinion. Other than that I guess you have a point.

Is there a minimal 'you cannot be serious' bar for lawyering?

No. That applies to most law professors.

He's just not fond of the notion of an extra-procedural sacking.

I really don't care what procedure is followed as long as the result is attained. My objection to Eric's post and his defenders is the idea that what's important is protecting academic integrity by making sure Yoo gets the appropriate procedural protections. No, what's important is protecting fundamental norms of civilization by not allowing someone who's done what Yoo has done to occupy a respectable position in the academy, teach future lawyers, etc. The rest of us are perfectly justified in saying that we really don't care how the UC handles this as long as they get it done.

Re Eric's snark way upthread in 230: No, Yoo hasn't been disbarred, but the lawyers of Unfogged aren't spending their time arguing about how complicated it would be and how we're really not qualified to say he should be. I thought that point was pretty obvious.

And if we're talking about slippery slopes, isn't the slippery slope toward being a country that thinks torture is OK a whole lot more troubling than the slippery slope toward being a country that doesn't give tenured academics quite enough job security?

440: Oh come on, he can't be dumb enough not to know to include Youngstown in his analysis. But, for the sake of argument, if he doesn't realize that Youngstown is relevant to his discussion---even if he still believes in this presidential power stuff--then he's professionally incompetent.

How about firing him because a University is a place for people who do not support the fundamental dignity of a human life?

Assume there's a "not" missing in there.

Will's phrasing does recall the unpleasant consequences feared by Bitch and Eric, since it sounds a lot like an alumni petition to remove some faculty member who's pro-choice.

444--yes, utterly incompetent, no question. But I don't believe that the incompetence is the real issue, it's that the incompetence was in the service of torture. If he'd written an equally stupid memo on some topic that didn't have such an abhorrent effect in the world, nobody would be suggesting he should have his tenure revoked. We don't revoke tenure for being egregiously wrong as a general matter. We should for promoting torture.

The market place should resolve this issue. Nobody go to Yoo's school. Nobody hire a graduate from that law school.

447: Presumable it is you who cannot be serious, Sifu. Yes, there is a "you cannot be serious" bar for lawyering. it's Federal Rule 11 (I think, someone correct me if I'm getting my numbers wrong) and certainly the rule in my state that you are subject ot sanctions if you waste the court's time with an utterly indefensible argument. You have to have a good faith basis, where "good faith" does not mean "you really sincerely feel that way" but there is authority or an intelligent argument for the extension fo authority to support why you feel that way.

Now, Anderson! Why do you have to go and ruin my traps!!!

There is no consensus on when harsh treatment of prisoners becomes torture

See, this is where you, Yoo, and most Republicans are wrong. We have laws, national and inter-, that have stood for decades, codifying precisely this issue. Just because John Yoo wrote a fallacious memo denying this doesn't make it false. Since people have been prosecuted under those laws, and those prosecutions stand, the laws remain in force. There may, of course, be some gray edges, but that's not where this administration has played. They've driven right down the middle of Torture Boulevard. Sounds like you're willing to squint and argue that they're up on the sidewalk somewhere.

Yoo's sin is in his ideas and what he did with them, not his failure to meet professional standards.

A surgeon who fails to meet professional standards isn't let off the hook just because he doesn't think he should have to meet professional standards.

He should be fired because he is a torturer

That works, too.

453: Yes, yes, yes.

Analogy warning: the analogy from corporate tax law is apt.

This is insane. Helping clients underpay their taxes is not at all analogous to helping the U.S. Government torture people, some to death. (Which is not to say that there aren't tax lawyers out there who shouldn't be disbarred and imprisoned, but that's a completely different matter.)

454: I don't think failing to cite Youngstown is proof of bad faith in the sense of suggesting Yoo doesn't believe the position he's advocating. It's stupid, and reveals his memo to be advocacy rather than the neutral, objective analysis it should have been.

I'm not defending Yoo in any way here, just saying that I don't doubt he believes he's right.

416: To what does "it" refer, and what is that "it" trading?

I'd said: It trades entirely on what we're willing to consider *legitimate* in extending and applying UC's code to ethical misconduct heretofore unexamined.

There's an end at hand here: remove Yoo from his position. The thread has been about both whether that's possible according to the UC code, and whether it's desirable: the question becomes whether extending the rules (because, as existing, they are not easily serving the end) is a legitimate means to the end.

What is being (possibly) traded? Protection against being deemed unethical; the possibility of a slippery slope regarding what's judged unethical behavior. As I said, it will be incumbent on UC to spell out in some roughly codifiable way how Yoo's behavior has been unethical, and it's very difficult to decide how that should go. (Which is, I take it, part of Eric's repeated requests upthread for an actual proposal.)

Much more sensible to go for legal/scholarly malfeasance.

I don't doubt he believes he's right.

I just don't get how this is relevant. People can believe all kinds of stuff. Heck, it's a cliche to say that ignorance of the law is no excuse. It's especially no excuse for a lawyer.

461-Yes, sure, by all means disbar him if at all possible (although I fear that the professional standards probably wouldn't catch what Yoo did here). I just don't think that it's at the heart of the question whether to fire him. Even if he's not disbarred--i.e., even if it turns out he met professional standards, because the standards are weak and not really aimed at this sort of thing--he still has no place in the university.

Without absolute tenure rights, feminists and torturers might be driven from the universities. This is a dilemma indeed. Some torturers are very sharp in their specialty, and often very nice people too.

will, I'm a little bit lost. Is your position that Yoo didn't do anything wrong, or that it's no more wrong than what any lawyer who loses an argument has done? Genuine, non-snarky question.

466: Yes, exactly, my point is that whether Yoo advanced his position in good faith or in bad faith is irrelevant. He advanced torture. No excuse.

Is there a minimal 'you cannot be serious' bar for lawyering?

Nor in philosophy, economics, or literature.

464: I think this is just quibbling over the definition of "good faith." I don't think that "good faith" includes willful ignorance. I know that Youngstown is relevant to the issues at hand (seriously - as a non-historian, non-lawyer, I knew, before any of this nonsense ever came up, that Youngstown is a definitive ruling on Executive vs. Legislative powers); I likened it above to an architect not knowing that fire doors swing out. It's impossible to be that ignorant.

I would note that the 458 definition of "good faith" appears to show that my use of the term is the legally-relevant one.

I dunno. In the possible world with no tenure, the feminists & atheists & '100 most dangerous academics' are probably fired because the board gets badgered non-stop by the culture warriors, and Yoo's probably fine because the average person thinks he just wrote a memo and like, isn't that what lawyers do?

What 472 said. Yoo could've argued that Youngstown was wrongly decided, on his own theory. But he didn't.

Which looks to a lawyer like "when the law doesn't conform to my theory, then the law must be disposed of."

Nor in philosophy, economics, or literature.

Probably a semi-troll, but let's recall: Law is a trade/profession. Its practitioners gain societally-enforced benefits in exchange for upholding certain standards and submitting to policing by the various Bars. None of that is true for the above-referenced fields - there's no such thing as literary malpractice*, but there is such a thing in Law, Med, and the other Professions.

The fact that the Bar woefully underpolices its own is a scandal, not an excuse.

* Dan Brown joke here?

Does Youngstown rhyme with Tungsten? Because we all know what the periodic table symbol for that element is.

439

"436--when your employer is a state university, the first amendment stops your empoyer from firing you for unpopular speech."

Public employees have limited first amendment rights against being fired. See here for much more. Note in particular the last part of the answer to 11:

"As a result, teachers should understand that the traditional First Amendment rights of academic freedom generally accorded to university professors are much more limited in public primary and secondary schools."

451

"... common sense public opinion. ..."

I don't know that you want to start invoking public opinion. Much of this discussion has been assuming a public consensus against torture that simply does not exist (at least in the United States). I wouldn't be surprised if more people oppose gay marriage than waterboarding.

Let's throw out some more law review articles/memos:

1. Killing Abortion Doctors is justifiable self-defense

2. Sterilize the Mentally Disabled because they cannot care for a child

3. A Parent Should Have the Right to Deny Medically necessary treatment to a child

4. Commissions Due/Potential losses/Side deals should not be reported in Company profit-loss reports

Is your position that Yoo didn't do anything wrong, or that it's no more wrong than what any lawyer who loses an argument has done?

I don't see the memo as grounds for debarment.

He was wrong. He should be ashamed. His clients should sue him. UC should disassociate themselves with him, even if they have to buy him out.

It's a little odd, btw, that Yoo didn't even bother to discuss Youngstown -- I'm sure he distinguishes it (shoddily) in his books, and he could have done so in the memo, and then a dumb Mississippi lawyer like me would have a more difficult time explaining to non-lawyers how bad his memos are.

Even a bogus treatment of the case would've impressed the yahoos he wrote the memo for. He's been interviewed about that issue and just brushes off the case.

I suspect that he thinks so little about the actual legal restraints on his theories that he simply forgot to include it. Either that, or on some level, he knows how ridiculous his theories would sound, were they tested in court.

481: Yeah, seems like, given his overall reasoning, a simple "The SC was plainly unconstitutional in its ruling in Youngstown" would've done the trick.

I certainly want Yoo writing the briefs for me on why I should be allowed to bitch-slap police officers at traffic stops: "The sovereignty of the individual is enshrined in the Constitution...."

413.1: so how did he end up as a tenured professor of law in the first place?

483: He's Asian. Everyone just assumed he was the best candidate.

472: Yes, this is quibbling, and as I say I don't think faith matters, it's the substance of his position that damns him. But I do continue to believe--having read some deeply crazy stuff from Yoo & his ilk over the years--that this is not willful ignorance on his part, Youngstown omission notwithstanding.* He's just got a very abhorrent, deeply wrong view of executive power, rooted in anti-republican premises that we don't share. I personally find this more troubling than the suggestion that he was merely shilling.

*I'm not sure what to make of the Youngstown omission, and again I have no interest in defending any of this. Yoo certainly could have dealt with it, in ways that wouldn't have satisfied any of us, but wouldn't have left his memo any weaker--it's not actually a definitive ruling on much of anything in the technical-lawyerly sense that Yoo could have availed himself of (the famous Jackson opinion is just a concurrence). I put it down to strong evidence of low-quality, highly tendentious advocacy in place of the thorough, objective analysis he should have provided. But I don't think it was willful ignorance in the sense that Yoo thought Youngstown doomed him so he'd better pretend it didn't exist. Stupid, but, again, subsidiary to the real issue that Yoo is a torturer.

it will be incumbent on UC to spell out in some roughly codifiable way how Yoo's behavior has been unethical

If, by "incumbent on UC to spell out in some roughly codifiable way," you mean that they'll have to write something down, sure. I bet that there are people--maybe even in the law school--who are used to making written arguments. Even ones with which they don't personally agree.

and it's very difficult to decide how that should go.

I think you dropped a "for me." Many people--dsquared, ogged--seem to believe it's not that difficult. Match the job to the talent, I suppose.

Much more sensible to go for legal/scholarly malfeasance.

I take it you've discovered a clever little proof of this that you've written in the margin.

486: I think you mean, a truly marvelous proof of this, which this blog's comment box is too small to contain.

483: Tenure in law schools is something of a joke (though it is changing some). Almost everyone hired into tenure track positions gets it, quickly; and getting hired in the first place depends largely on credentials (which Yoo had) rather than evidence of scholarly promise or achievement. The measure of the latter when tenure time comes is largely "number of articles published in law reviews of elite schools, where decisions to publish are made by second-year law students", so it's not exactly a rigorous standard.

That, plus a concerted effort to increase conservative presence on law school faculties.

isn't the slippery slope toward being a country that thinks torture is OK a whole lot more troubling than the slippery slope toward being a country that doesn't give tenured academics quite enough job security?

YES.

Okay, I'm convinced--Yoo did nothing wrong. He's just a guy with a lot of badly wrong ideas.

Tenure in law schools is something of a joke

This is true. Everyone gets tenure at law school.

where decisions to publish are made by second-year law students

I am always surprised at how-known this fact is. I went through the process of publishing in a law journal once, and while the kids doing the editing were perfectly nice, intellectually the process was pretty much a joke. Almost any declarative sentence would be tagged by an editor as requiring a citation.

"where decisions to publish are made by second-year law students", so it's not exactly a rigorous standard.

That's the catch. Law profs sometimes complain that their work isn't taken more seriously, but when your profession doesn't have peer-reviewed journals, well, guess what?

Some 2L probably was totally wowed by Yoo's work: "dude, I never knew THIS about Article II ...."

how^ little-known

I think that there are foreign law journals that are peer reviewed. I knew someone who was a world-famous conflicts of law scholar, and a lot of his stuff got published in books and foreign journals, but he was more famous outside of the U.S. than inside. The American legal academy is very parochial.

Almost any declarative sentence would be tagged by an editor as requiring a citation.

"Almost"? I had to write-on with a case note, and literally every sentence had to have a citation -- it was a rule.

A declarative sentence with only one

A declarative sentence with only one citation? Reputable journals require string cites.

Fucking blog ruined my joke.

When I was dabbling in the ethics of genetic engineering I read some articles in law journals. They were all really bad, at least when it came to any issue of philosophical importance. In retrospect, I should have just adopted a policy that said "I will not read articles published in law journals because they are reviewed by second year law students."

Can you imagine if Science or Nature were run entirely by students completing their Masters of Science degrees?

Mouseover text to 498.

"I will not read articles published in law journals because they are reviewed by second year law students."

And they are fifty thousand fucking words long on the average. And the citation system is a baroque nightmare. And they're not really "reviewed" in any meaningful sense: reviewing is replaced by low-level fact- and citation-checking, and by enforcement of compliance with blue-book rules of style.

Can you imagine if Science or Nature were run entirely by students completing their Masters of Science degrees?

You have to consider the material legal academics are working with. If Science and Nature were devoted to analyzing work product produced by a random selection of politically-connected M.S. graduates, maybe that would be exactly the right approach. (Only mostly joking here.) (But it's been years since I looked at a law review article.)

499: Your example points out another problem: Law professors like interdisciplinary studies. So imagine if Science or Nature were run by students completing M.S. degrees and half the articles were about behavioral economics or moral philosophy, which maybe one-third of the students had taken a course or two in as undergraduates.

Almost any declarative sentence would be tagged by an editor as requiring a citation.

Are you sure this wasn't Wikipedia?

504: Are you sure there is a practical difference?

Are you sure this wasn't Wikipedia?

Wikipedia's citation mechanism is more sensible.

I think that there are foreign law journals that are peer reviewed.

In those places they also have inferior plumbing and eat strange food and have no regard for the value of human life, and those of there women who are not prostitutes are not allowed to go out in public alone.

I was on one of the law journal interdisciplinary thingies once. It drove all of the non-law-students absolutely batty, because we'd keep actually criticizing the article on the grounds that it was missing basic research point X, Y, and Z and get blank stares back.

This conversation is reminging me of the law review article I once read on the application of Godel's incompleteness theorem to the legal system. I am not a philosopher but even I could tell the article was so philosophically confused it made me want to cry. I wish I had a citiation for you.

453: You totally misread Eric's argument -- whether willfully or not I no longer care -- which is about following clearly defined institutional procedures. Again, I (and I suspect Eric as well, though I can't speak for him) will celebrate if Yoo is stripped of tenure and fired. But only if his detenuring and sacking should happen within the prescribed practices of the UC. One more time, please see Tim's summary way upthread (345, I think). Or, you know, actually read Eric's post.

reminding, not reminging. Fucking blog.

I once encountered a law review editor who went through an article noting every occurrence of passive voice and demanding that it be corrected. The beauty part was that she understood passive voice to include any appearance of anything that looked like a form of "be," so sentences like "I am planning to kick your ass for being a stupid twit" got all kinds of red ink.

Clearly, that sentence would read much better in the form: "I plan to kick your ass, you stupid twit." What, haven't you read Strunk & White? Let me get a cite to that for you.

510: I don't think it's a misread. I think that NPH is saying that he's willing to privilege a result over a procedure. Is the procedure has an unacceptable result, then it must be the procedure that goes, not our civilization's standards.

Generally speaking, this isn't an American position - nation of laws and all that. I believe that the point is that, for perhaps the first time, we as a nation are in serious danger of throwing away our core principles (not just torture, but also non-dictatorship), and that this may require some non-SOP to handle.

The disagreements here seem to be 99% emphasis, not substance. But the emphasis is important. If, in 18 months, John Yoo is still at Boalt, clearly defined institutional procedures may be doing well in this country. Basic human decency, plus fundamental democratic institutions, not so much.

510: I really have nothing left to say except "bullshit." I mean that as non-confrontationally as possible, and I like and respect much of what you write around here, but I think you're completely out to lunch on this thread and I have no interest in engaging further as to why that is.

509: especially since the Incompleteness Theorem isn't philosophy.

509: This has got to be Mark R. Brown & Andrew C. Greenberg, "On Formally Undecidable Propositions of Law: Legal Indeterminacy and the Implications of Metamathematics", 43 Hastings L.J. 1439 (1992). Unless, my god, there are two such articles out there.

Sadly, what happens when a school fires someone with tenure and does not follow their own procedures to a T is that they get their pants sued off. Happily, there is SURE to be a way to fire Yoo in a fully bylaw-compliant way. Unhappily, it's not at all clear that the university is going to do any such thing, regardless.

514: "If"

518: just as happily, he'd probably be incompetent at suing them.

Eric Rauchway has a blog?

I don't think it's a misread. I think that NPH is saying that he's willing to privilege a result over a procedure. Is the procedure has an unacceptable result, then it must be the procedure that goes, not our civilization's standards.

Then NPH should say that rather than tendentiously misconstruing Eric's argument. Seriously, please see my 390. As noted there, the key variable is whether there should be what passes for due process in the university or not. Why many people here are insisting that Eric is arguing something other than that is absolutely beyond me. The argunent, in other words, isn't about job security just for tenured faculty members; it really is about the slippery slope. All of that said, I reiterate: I hope that Yoo is sacked. I just don't want that to happen outside the lines.

Sorry, my 522 crossed with NPH's 515. (A colleague came in and began bugging me. So I stripped him of tenure. Joke?)

516: oh, piss off. It's right at the intersection of logic and philosophy and mathematics, and fairly categorized in with any of the three.

517: Dear god, horrifying though it may be, neither the year nor the journal are correct. (I don't recall the authors or the title, exactly, but I'm sure the year and journal are off.)

Sadly, what happens when a school fires someone with tenure and does not follow their own procedures to a T is that they get their pants sued off.

California is a pretty rich state--richer than Yoo, anyway--and I assume that it can keep litigation going forever. He's got to die sometime, if only of old age.

509: This has got to be Mark R. Brown & Andrew C. Greenberg, "On Formally Undecidable Propositions of Law: Legal Indeterminacy and the Implications of Metamathematics", 43 Hastings L.J. 1439 (1992). Unless, my god, there are two such articles out there.

Surely there is a Heisenberg Uncertainty Principle article as well.

522/23: Feel free to continue beating up on (your misunderstanding of) my argument as much as you like. I've said my piece and I have no objection to your saying yours (however wrong it may be).

[Emoticons deleted.]

Fucking lawyers.

524.1: I can't speak to fairness, but it's definitely math.

And I actually wasn't saying that they couldn't be philosophically confused, Brock. Assuming that a mathematical theorem dealing with axiomatic systems is applicable to an interpretive, natural language-based pursuit such as the law would seem, to me, to be a philosophical sort of confusion.

514: Since NPH doesn't want to talk to me anymore -- joining a growing and illustrious club -- I'll say to you: I totally disagree with your conclusion. I actually think that if Yoo is still employed at Boalt in [insert reasonable amount of time here] the procedures will have failed badly. Worse still, if there's no investigation mounted into his conduct, the procedures will have failed utterly. Finally, I don't see what I'm saying here as in any way contra Eric's post. In fact, this seems to be one obvious conclusion that should be drawn from his post.

524: There are more than two law review articles about Godel. Back when I had free Lexis access at work I remember reading an opinion in which some judge said something stupid about Godel -- was it Kozinski? Let's say it was Kozinski, and if not him, Posner -- and following his trail of (exclusively) law review citations. There's a whole literature on the subject.

528: Comity!

In fact, this seems to be one obvious conclusion that should be drawn from his post.

I think the presence of 500+ comments argues somewhat against the characterization of the conclusion as "obvious."

You're nobody around here until people start refusing to talk to you, Ari.

I just don't want that to happen outside the lines.

But I think this is part of the issue: there aren't "the lines." There are a bunch of potential lines, and which ones are selected may well be determinative of outcome. And the assertion that there are "the lines"--when that's precisely what we're trying to determine--may suggest to some a claim of privileged authority about where such lines do and do not exist, and where, when unclear, they should understood to be drawn.

If you want, you can check to see if Yoo floats like a duck but weighs more than wood and call it due process. And whether a judge will buy that as due process is a prediction. Different people might have better and worse predictions about that, depending on experience. But that's what's on offer: a prediction.

529: I learned about it in a philosophy class, so it's definitely philosophy, too.

527: Do there have to be hard feelings? In a thread in which you and others have argued, repeatedly, that Eric and I are just protecting our class and professional interests rather than seriously considering either the victims of torture or the health of the republic? And yet somehow you're coming out the back end the aggrieved party? Seriously, this passes understanding and makes me feel lousy. Put another way, I'd aplogize to you, but I honestly don't know for what. Absent that knowledge, I'll just apologize and hope that we can argue again, in good faith, some other time. I mean that.

No way. It's math. Definitely math.

Where's heebie to back me up, here?

Godel and Heisenberg are old , musty survivors of the obsolete linear, industrial Piscean paradigm. The Aquarian pst-industrial law of today is firmly grounded on chaos, quantum gravity, and multiple universes.

531: Happy to talk to you, just not to argue with you further on this thread since we're talking past each other. I'm pretty sure I understand why you think I'm missing the point, and I'm pretty sure you don't understand why I think you're missing the point, and I'm pretty sure there isn't some formulation of the arguments that we haven't tried yet that would change either of those things.

I mean, the class was called Mathematical Logic, but I don't see why that disqualifies it from being philosophy.

539: It's math. Philosophers are perfectly welcome to study math, of course.

Sifu, it's mathematical logic, which is an entire subject that many people would consider as much a branch of philosophy as of mathematics.

that many people would consider as much a branch of philosophy as of mathematics.

They're wrong, but it's ok. Everyone should do maths, it's fun.

See? Perfect example--we can't even agree how Godel's theorem should be characterized. That's exactly what his theorem was all about. I learned that from the law review article.

I did proofs and kicked ass. Since I also kick ass at philosophy when my brain isn't melting, I declare it to be philosophy.[1]

[1] N.B. brain is actually melting so this doesn't actually have to follow.

526: Indeed. Craig M. Bradley, "The Uncertainty Principle in the Supreme Court", 1986 Duke L.J. 1. (Though in fairness he's just making an analogy rather than suggesting quantum physics as a useful lens to the judiciary.)

532: Easterbrook makes stupid use of it in Stevens v. Tillman, 855 F.3d 394, 399, but his citations are not to law review articles (Nagel & Newman and a SciAm article; he also throws in Kripke on Wittgenstein). I can't find anything else fitting the bill in any federal cases.

The Gödel theorem itself is a result in formal meta-logic, a discipline practiced by both mathematicians and philosophers.

The interpretation of the significance of the Gödel theorem is almost exclusively a matter for philosophy. It actually has little bearing on any practical working mathematics.

I did proofs and ...

It would be a bit worrisome if you didn't, Cala.

See, Einstein proved that everything is relative, and Heisenberg proved that we can't really know anything, and Goedel proved that questions never can be answered. Have a beer!

549 is correct, my trolling notwithstanding. Especially the latter part (we don't really care)

Not sure how effective Obama is being in his questioning of Petraeus...a little ponderous and academic.

541: Total and resounding comity

538: Apparently I should have kept the emoticons. No, there needn't be hard feelings. I have absolutely no hard feelings toward you now. I just don't think we're getting anywhere anymore, so I'm trying to disengage myself from the argument, but I really truly don't mind in the least if you want to continue without me, and I won't get mad at you for continuing to respond specifically to stuff I've written. I'll jump back in when/if I have something to say that I don't think I've already said.

I wish someone would ask Petraeus if he worries about his reputation being stained for all time by his association with Bush, and whether he thinks that it honors the military to have the worst President in American history to use a four-star general as his flak-catcher.

"I have hard feeling towards you" should be the new pickup line.

"I have hard feeling towards you" should be the new pickup line. rollover text.

You're a mathematician, Soup?

Thing is, the Gödel theorems are basically guaranteed to be mathematically uninteresting, because the Gödel sentence itself is never going to be an exciting part of mathematics. Any interesting proposition has to be proven formally undecidable relative to a certain set of axioms on its own.

534: That's why I said "one obvious conclusion." I intended to allow that there may be, as evidenced by this thread, others.

536: Tim, snark aside, there are lines. You've said as much in this thread. The issue, then, is that you, Ogged, D2, Katherine, NPH, and many others don't want to wait to see if those lines will contain this particular problem. And, I hasten to add, If those lines, as currently drawn, don't contain the problem, I really am willing to consider picking up a pitchfork and torch. Really, I am. We'll talk then.

548: Hmm. I could well have confused Easterbrook with Kozinski. Maybe I misremember his citations, and looked for law review articles on my own initiative: I'm sure there were a bunch of them, though.

Anyway, the important point is that Yoo should be fed to Emerson's hogs.

559: guilty as charged. And yes, the latter part is basically why we don't care.

In some very rough sense I think of Gödel's theorem as mathematics, but thinking about it's implications as philosophy.

555: I appreciate that you took the time to say this. Thanks.

Anyway, the important point is that Yoo should be fed to Emerson's hogs.

After all due process is undergone, including a committee composed of the relevant hogs and Emerson's sociopathetic ex brother in law.

My sociopathic ex-b-i-l is a strong Yoo supporter, I'm sure. My unpleasant boring idiot ex-b-i-l is a strong Democrat. My deceased ex-b-i-l was a sweet guy with problems.

Easterbrook makes stupid use of it in Stevens v. Tillman, 855 F.3d 394, 399, but his citations are not to law review articles (Nagel & Newman and a SciAm article; he also throws in Kripke on Wittgenstein).

More irritating even than the know-nothing legal academic is the Philosopher-King judge. Yuck.

Without resorting to the archives, quick, has anyone ever been convinced of anything in the course of any thread ever on this blog? Or any other blog? Or not on a blog? Do people ever convince each other of anything?

549

"... It actually has little bearing on any practical working mathematics."

I don't think this is entirely correct. Before Godel people had been looking for mechanical procedures to determine the truth or falsity of mathematical propositions and Godel showed for the most part that this is futile. And there is at least one area of mathematics (computational complexity) which is full of Godel style arguments and results.

If I was a judge I'd choose illustrative examples from the life of Genghis Khan. It's really a darn shame that I didn't go into judging.

567: The Magic Eight Ball says no.

567.all: Yes, repeatedly. But it usually takes a few days (weeks, months, years, as the case may be).

quick, has anyone ever been convinced of anything in the course of any thread ever on this blog?

I became convinced I had to stop wasting my time reading these threads.

Do people ever convince each other of anything?

Typically the people swayed by a public debate are in the audience. While Ogged and Eric will never change their minds, several lurkers on the fence may have seen the brilliance of someone's reasoning.

Not after about comment 300, though.

569: The Court finds John Yoo guilty as charged, and sentences him and everyone else in California to be killed, raped, or enslaved, as the bailiff deems appropriate.

567

"Without resorting to the archives, quick, has anyone ever been convinced of anything in the course of any thread ever on this blog? Or any other blog? Or not on a blog? Do people ever convince each other of anything?"

Of course although it is somewhat rare. For example I believe I convinced someone that the majority of white children in the South attend public schools on this very blog.

568: Yeah, I was thinking of those sorts of results as a part of philosophical logic or maybe computer science. But you're right, they're probably math.

For example I believe I convinced someone that the majority of white children in the South attend public schools on this very blog.

"...and this is something I neither believe or have any expertise in. Damn that was funny."

573: I knew someone was going to say it's all for the lurkers. I really need to re-lurk; they get all the breaks.

I don't think this is entirely correct. Before Godel people had been looking for mechanical procedures to determine the truth or falsity of mathematical propositions and Godel showed for the most part that this is futile. And there is at least one area of mathematics (computational complexity) which is full of Godel style arguments and results.

James, you're right about complexity arguments, which is not exactly the same as using the theorem (i.e., it's typically using methods developed in its proof) but deserves a nod. For the rest though, the fact of the proof is very useful, and changed the way mathematicans were thinking, but it has little relevance to day-to-day mathematics now. Historically, it's very important, and I certainly wasn't trying to suggest otherwise.

erm, I should have said but it has little relevance to day-to-day mathematics at least as practiced by the people I know, which is hardly exhaustive.

I think people do have their thinking changed, but they're usually too worked up to admit it during the actual exchange that affects their thinking.

You know, the Foreign Affairs committee is about the best in the Senate on Iraq, but even the liberals in the committee are just systematically demonizing Iran. Too much of the anti-Iraq line seems to be based on that.

I think people do have their thinking changed

This is definitely true. Reading blog comments I routinely lower my opinion of people who disagree with me. In that sense, my opinions change with nearly every thread I read.

I wouldn't be surprised to find a symmetry at work there, Brock.

Sheesh. Some ally soup proved to be.

Way to give it up right when we had 'em going, man.

What does logic have to do with philosophy?

Crazies.

Hey, I staked out the result, Sifu. I left them the blathering about what the result means, is all.

585: good point. You are a mathematician!

486:

me: it will be incumbent on UC to spell out in some roughly codifiable way how Yoo's behavior has been unethical, and it's very difficult to decide how that should go.

Tim: I think you dropped a "for me." Many people--dsquared, ogged--seem to believe it's not that difficult. Match the job to the talent, I suppose.

No need to be insulting, Tim. I understand what ogged et al. are advocating (your 345.3), and sure, it looks like there's room for it in UC code. It would go something like: you, sir, Yoo, have engaged, from a position of enough power to know that real life consequences would follow, in either willful or ignorant manipulation of the law, toward ends which are beyond the pale. For this breach of ethics you are stripped of your position of presumed authority.

What I consider difficult in this, and I think would really call for clarification, is which part(s) of this are unethical: writing the memo from a position of power, real-life consequences? the poor lawyering involved (eliding Youngstown, etc.)? or the high stakes, torture, for god's sake?

Would it be good enough as a decision on the part of UC not to disambiguate on this question? Just render an overall judgment which, as ogged wants to say, sets no precedent in particular and doesn't get into slippery slope territory? I'm not sure.

I said that it seemed "more sensible" to (try to, first) make exactly the same judgment on Yoo under the rubric of scholarly malfeasance, but now that I consider it, that would come down to an egregious breach of ethics as well. So.

No need to be insulting, Tim.

Sorry about that.

Meanwhile, Yoo has been called to testify before the House Judiciary Committee.

588: no need to apologize.

Ari, your position is procedural liberalism run amok. It's run off in the corn field and eating the cows. Your objection, as far as I can understand it, is that Berkeley shouldn't fire Yoo until they file form 13-F in triplicate. The thing is: no one is arguing as a major point of principle that we shouldn't file the proper paperwork. I'm perfectly happy Berkeley undergo whatever procedure necessary to fire Yoo, just as long as they fire Yoo.

I'm convinced by arguments people make in threads all the time. It's because I'm Enlightened.

I think Godel's theorem is not more influential because it's too successful. It closes off an area of research, rather than opening it up, so people move in other directions.

590: People can apologize if they want to.

593: there wasn't any need for that.

I need to tell you all to shut the fuck up.

594: But it did suffice.

Sorry, there was no need for that.

In the long thread run, everything is necessary.

No meta, please.

600!

599 to 599.

Fucking lawyers.

I imagined Cala nodding approvingly when she wrote this comment.

599 to 600 and 602.

567: Without resorting to the archives, quick, has anyone ever been convinced of anything in the course of any thread ever on this blog?

Oh yeah, absolutely. For example, I didn't used to think Emerson was a prick, but he's convinced me.

604 to 602.

The thing is: no one is arguing as a major point of principle that we shouldn't file the proper paperwork.

I said something like this, too. Many people pointed out this seemingly obvious fact.

Then NPH came along in 453 and essentially made the argument I said nobody was making.

And as NPH's reward for engaging this bogus argument on Ari's terms, Ari (510) tells him that he's not engaging the argument at all !

605: No, I didn't say that the proper paperwork shouldn't be filed. I said that we don't need to know (or care) whether the proper paperwork has been filed before expressing the opinion that Yoo should be fired. The substantive result is the important thing, not the process, when the facts are this egregious. That doesn't mean that people who care a lot about the process shouldn't be working to shoehorn the necessary result into the desired process, but there are times when result-oriented adjudication is exactly what's called for, and this is one of those times.

More generally, I think that the interaction between process and results is more complicated and interesting than we've really gone into here, but that's another thread.

I can't believe I missed most of this one. On the other hand, I probably wouldn't have done anything other than comment furiously for the last twenty-four hours.

Pretty much anything I would have said got said, except that dsquared, unusually, is wrong in 408 (or at least by the rule of 408 I'm a monster), and Brock is therefore right in 415.

And Yoo should be fired.

LB! It feels like it's been months!

Yeah, we missed you on this one. But you're hear now, so surely you can say something that will set off another couple hundred comments.

"here"

This actually working thing is really cutting in to my blog-commenting time -- I manage to catch up with my reading at night, but the conversations all seem to be pretty complete by the time I get to them. The plan is to acquire an ultralight laptop and go find a wireless hotspot on my lunch hours, which should get me back into it a little.

But the new job is excellent. It's nice getting to be a lawyer, finally.

yay, LB, you really deserve that.

Well, you can talk to NPH who is 6 hours behind us!

605: Way to try and pile on -- but miss.

Also, I'd like to be clear about one thing: had LB been arguing against Eric, I would have abandoned my co-blogger in half a heartbeat. If there's one thing I know how to do, it's figure the odds.

NPH is in Pago Pago?

616: nah, just slow.

Sorry, upon re-reading 614, I realized that the tone is totally ambiguous and could easily be read as quite rude. So, in an effort not to pick any fresh scabs: I was kidding, pf, making a joke that the fireworks were long since over when you arrived at the park.

616: Remember that we don't need no steenking DST in the tropics.

Also, 617 gets it exactly right.

Hey, we lured NPH into commenting again! Sucker. Let's jump him and take his money.

Ah, but is it because I have no willpower or because I'm trying to convince LB that the thread's still alive and she should jump in with both feet?

Now and again my thinking changes. Especially but not exclusively on things I haven't thought much about.

I would hope that UC would challenge Yoo to defend, line by line, his 'scholarship.' In public. Subject to cross-examination. This would probably be better, for deterrent purposes, than a criminal trial which ends up as a rallying point, and/or just drawing a pardon.

On last, meandering, thought. I was thinking about the best possible outcome, and I remembered one of the best scenes in The Trials of Henry Kissinger, in which a Scotland Yard detective describes arresting Pinochet.

It's so wonderful for it's mundaneness, in the description there are no soldiers, no trumpets, just a bobby showing up to serve a warrant. The banality of justice, if you will.

Of course, that happened 34 years after the Junta.

That got me thinking about Kissinger and I believe that, as loathsome as Yoo is, Kissinger was worse. I think the torture memo isn't as bad as advocating for the bombing of Cambodia (though I recognize it's somewhat grotesque to compare atrocities in that way), and Kissinger has never suffered any real punishment for his actions.

Which made me think about Bob McManus, and that considering how outraged we are by Yoo, that it's easy to understand how you could feel a little crazy if 40 years later Yoo was an esteemed consultant in legal and foreign affairs.

To further whip up the flames of righteous indignation re: John Yoo do go read this piece by Scott Horton, "A Tale of Three Lawyers".

Ari, do please go and fuck yourself. This, according to Eric, is the word salad:

scholarly discourse, which is the basis for the protection of academic freedom and tenure, is the kind of thing the UC should adjudicate--not only the kind of thing it should adjudicate, but the kind of thing it does adjudicate all the time.... The question before the UC, if there is a question, is one of whether these procedures, with the new evidence of this professor's legal work before them, would reach a different conclusion in answer to that question--and whether that conclusion would be so different that the protections of academic freedom should be stripped from this professor on the basis of his having committed a kind of scholarly malpractice

... from which one was meant to extract a meaning completely contradictory to the title of the piece and from which we were meant to infer an entirely unstated further argument that you and Eric were in fact, in favour of Yoo being fired non-procedurally, or having the procedure bent in order to fire him. Please, please, with a great big helping of sugary sweet comity, bite me. If you're going whine "please actually read", learn to fucking write, the pair of you.

Advocating (in the strict sense) for torture is per se a breach of ethics. Whether it is done in good faith or bad, it's a breach of ethics. If it's done sloppily or to the highest scholarly standards, it's a breach of ethics. It isn't compatible with retaining a job as a lawyer.

from which we were meant to infer an entirely unstated further argument that you and Eric were in fact, in favour of Yoo being fired non-procedurally, or having the procedure bent in order to fire him

No. And how you've arrived at the above really is rather mysterious. As noted several times in the thread, I can't speak for Eric's wants. As for me, though, I believe the procedures should be followed; I hope that if the procedures are followed, Yoo will be stripped of tenure and fired by the UC on the basis of scholarly misconduct; and, independent of that, I hope Yoo is hauled before a war crimes tribunal. I just don't want him fired or detenured in an extraprocedural manner any more than I want him thrown in prison for war crimes absent a trial.

Also, the good faith/bad faith argument has nothing to do with anything that I've said in this or any other thread. Nor does, so far as I can remember, the immediate question of ethics. My argument here has been about procedures. I've said this before; I'm saying it again. If you or anyone else believes that the UC should follow its procedures, we're in total agreement. If you or anyone else believes that there's no need to follow the procedures, because it's just so damn obvious that Yoo is a bad lawyer, or he's a war criminal, or he hates kittens and bunnies, then we don't agree.

As noted several times in the thread, I can't speak for Eric's wants

and as noted at several other times in the thread, you do, in fact, speak for Eric's wants. The pair of you have expressed yourselves completely opaquely, seemingly changed your minds on a number of issues, then claimed "well basically everyone agrees with us and if they weren't too stupid or obstinate to read our limpid prose they would realise that we're right". It is that sort of chutzpah that has irritated everyone, including me.

If you or anyone else believes that there's no need to follow the procedures, because it's just so damn obvious that Yoo is a bad lawyer, or he's a war criminal, or he hates kittens and bunnies, then we don't agree.

if you, or your mate Eric, would get off your high horse and stop energetically punching strawmen, you would see that, repeatedly, Oggers, Emerson, myself and the armies of lurkers who agree with us, have been arguing that the procedures of the University of California should be so as to allow for the sacking of torturers and that if they do not currently allow for it (a fact about which I must confess I care little) new procedures should be invented post-haste to remedy the ommission.

You two are, at base, prepared to allow for the possibility of Yoo finding a loophole to hide in, and if he does in fact find such a loophole (or if the university applies its process and decides not to get rid of him), that's where the process stops for you because to go further and demand that the loophole be removed or that the decision be re-opened "merely" because Yoo is a facilitator of torture, would lay the way open to the far greater danger of academics having slightly less job security.

and as noted at several other times in the thread, you do, in fact, speak for Eric's wants

Where? And please distinguish "his wants" from how I read his post.

seemingly changed your minds on a number of issues

Where have I done this?

the procedures of the University of California should be so as to allow for the sacking of torturers

Where have I said otherwise?

if they do not currently allow for it (a fact about which I must confess I care little) new procedures should be invented post-haste to remedy the ommission

We need to "invent" new procedures to insure that we get the result that you've already decided, with no doubt in your mind, are just? About this we disagree. No matter how much I want Yoo gone, I'm not willing to open the door to all manner of ad hoc changes in university procedures so that we can get rid of the bad guys. Because I'm reasonably confident that we can get rid of this particular bad guy with the rules we have, thanks. And if I'm wrong, I'll cross that bridge when I come to it. Like I said way upthread to Tim, I'll then consider picking up a torch and pitchfork.

You two are, at base, prepared to allow for the possibility of Yoo finding a loophole to hide in, and if he does in fact find such a loophole (or if the university applies its process and decides not to get rid of him), that's where the process stops for you because to go further and demand that the loophole be removed or that the decision be re-opened "merely" because Yoo is a facilitator of torture, would lay the way open to the far greater danger of academics having slightly less job security.

Where have I said any of this? From where do you draw your ironclad sense of of what I think might be appropriate if Yoo manages to keep his job? From where do you draw the word, "merely"? And from where do you draw your contention that my sense of the significance of procedures safeguarding people's rights extends only to scholars?

No matter how much I want Yoo gone, I'm not willing to open the door to all manner of ad hoc changes in university procedures so that we can get rid of the bad guys

the prohibition on torture is hardly "ad hoc".

(I really thought that this question had been settled at the Nuremberg tribunals, where the defendants did indeed argue that an ad hoc tribunal had no legitimacy unless it was based on a pre-existing procedural code. And, as you'll recall, lost.)

(and just to note that thank you very much, we've now established that John, Oggers, myself et al don't "really" agree with you and Eric, and in fact disagree for substantial and important reasons, and so perhaps we could put the "you have to reeeeead what I wroooooote" whining back in the Very Patronising Things box? Thanks. My next target is going to be "picking up a pitchfork" and other similar trivialising straw men of the procedurals/monsters)

ad hoc

That was, in some ways, poor phrasing on my part. What I was trying to get at, in addition to the issue of ad hoc changes, was this: we don't need to scuttle the rulebook, prospectively and in order to predetermine outcomes, if the current rules will do just fine. This is especially true because changing the rules in an ad hoc fashion opens the door to future ad hoc changes, a future when you, or Ogged, or the lurkers may not be in charge. Heck, it might even be Governor Swarzenegger who'll be making the rules on that day.

"picking up a pitchfork"

It's the title of the post, dsquared.

Also, yes, I agreed upthread (630.4) that, after reading your 629, we don't agree on a major point. You're ready to rig the system, if I'm reading you right, to achieve the outcome that you've determined is just. And you're ready to do that before we have a chance to see if the current procedures will do the trick. So yes, again, I agree that we disagree.

Further to 634, you might want to look at my 390, where I said something similar, phrased, in that case, as a question.

Also, while we're walking down memory lane, you could take a look at my 410. Which comment, it seems, you butchered to arrive at the part of your 626 that I challenged in 627. You might note, in turn, how your 626 led to some, perhaps justifiable, confusion about whether we agreed or disagreed, given that you completely misstated what I had argued in 410.

I dispute that the general prohibition on facilitating torture is merely something "I've determined is just". It is about as fundamental as moral principles get.

This is especially true because changing the rules in an ad hoc fashion opens the door to future ad hoc changes

"First they came for the torturers ...". This argument is every bit as visibly a piece of slippery-slope hogwash as it was when you first started making it.

You're ready to rig the system, if I'm reading you right, to achieve the outcome that you've determined is just. And you're ready to do that before we have a chance to see if the current procedures will do the trick. So yes, again, I agree that we disagree.

You are also ready to rig the system if it does not achieve the same aim (because the alternative would be to let Yoo get away with it if he can find a loophole, which you have at least once claimed you find unacceptable). So what you claim we're disagreeing on is that I (et al) are being unseemly in saying it out loud and not respecting the amour propre of the University of California, who must be given the chance to cook up some face-saving form of words to avoid having to state publicly that torture is wrong (is it? isn't it? that's not for us to say, for we are scholars!!).

Because if they were to state publicly that creating the legal infrastructure for torture is unacceptable behaviour for a law professor[1], this would "open the door" for sacking gays and commies. My eye.

[1] and therefore that the design of soundproof torture chambers is not acceptable for a professor of engineering, etc, which a significant proportion of the procedural monster tendency seem to think is A-OK.

Sorry to be a pain, but you should probably glance back at 421 and 431, from which exchange, I think, you've drawn some of your material about who does and who doesn't agree with Eric's post. You'll note, though, that there's a huge difference but the sentiment expressed in 421 and what you're advocating. Unless I've misread you, of course.

No, how about instead of handing out patronising little reading assignments, you express yourself clearly for a change? You may think that these posts you are drawing my attention to are lucid pearls of logic which I have merely overlooked, but actually they are for the most part gibberish.

637: Again, the chronology really does matter. I want to let the procedural process play out. You don't. I've said that, if at the end of the process Yoo hasn't been sacked, I'll consider the pitchfork and torch option. But, and this seems rather important to me, I would only consider that option after having given the procedures time to play out. Because, again, I believe that if Yoo is clearly guilty of scholarly incompetence, then he'll have long since been sacked before I need to fire up my torch and sharpen my pitchfork's tines.

639: I'm sorry that you feel demeaned. And I'm sorry that I don't communicate clearly enough for you. Beyond that, it's hard to know where to go from here. I've told you, as clearly as I'm able, what my position is. I've also told you what I take to be your position. Perhaps it's time to say goodnight?

You don't. I've said that, if at the end of the process Yoo hasn't been sacked, I'll consider the pitchfork and torch option

could I possibly prevail upon your good freaking nature to consider that a little earlier, like perhaps now for instance? It is a bit of an important subject. Pretending that one can avoid thinking about difficult questions is exactly the sort of thing that gets procedural liberals a variety of bad names, of which "monsters" is one of the mildest.

Because, you know, I have no hope of convincing you that I'm right. And I assure you that you won't somehow manage to pull the scales from my eyes.

606: NPH, I actually understood that, though I see I shaved important details from your view in an attempt to summarize.

I'm sorry that you feel demeaned.

wow, the other competitors in the "Passive Aggressive Cunt Of The Year" contest are going to have to take it to a whole new level to top that one.

could I possibly prevail upon your good freaking nature to consider that a little earlier

I've considered it. But I'm convinced that waiting is the better option. Because I believe that the outcome that we both seek will come in due time and through due process. Also, I think the slope is too slippery to hazard just now. You don't. Nor does Ogged. I understand that. We disagree. Which, I should add, doesn't mean that I'm putting my head in the sand about the evil swirling around us. I just worry more than you that we might enable that evil, rather than checking it, if we choose to rig the game straightaway rather than letting it play out.

(Slopes and games, that's a bad business. Sorry about that. Among other things.)

Ari, dsquared has already pointed this out, but I wanted to offer some detail. You say this:

Because I'm reasonably confident that we can get rid of this particular bad guy with the rules we have, thanks. And if I'm wrong, I'll cross that bridge when I come to it. Like I said way upthread to Tim, I'll then consider picking up a torch and pitchfork.

For the life of me, I can't see the huge difference between what you say and the view you criticize.

Take this made-up statement: "We should honor procedure in this case, but reconsider if procedure gives us a result we don't want." Is that the view you oppose, or is that your view?

645: What would you have me say? You'd like me to yell back at you? No sale. You're a classic bully, dsquared, the sort of person who doesn't make me angry except when your spittle, the material of rage, actually sullies the lenses of my glasses. In short, if we were together, in a pub, perhaps I wouldn't be able to play it this way. But here, on a blog, why not?

You're a classic bully, dsquared

No I'm not; you are, although you won't admit it.

Honestly, pf, I know that you wanted to fight earlier. But I'm really tired now. So I'm not sure that I'm up for it. A few rounds with dsquared in the wee hours takes a bit out of me.

Also, I do think I've been pretty clear about my position: let the process play out, hope for the desired result, consider what to do if the process doesn't yield the desired result. There are, of course, lots of variables at play in that scenario. Including, it seems to me, studying the workings of the process to make sure that it was fair. For example, if Yoo gets a fair hearing from Boalt, and he somehow isn't sacked for academic misconduct, I don't honestly know what I'd do. Fortunately, my way buys me the time to think that through, as well as allowing people who are expert in the particulars to weigh in and pass judgment, rather than just doing away with the rules preemptively.

649: This is just awesome. We've been reduced to, "I'm rubber and you're glue." Excellent. An evening and early morning well spent.

Further to 650, it does seem, based on what I've said here and above, that Eric and I are not in lockstep on these issues. But I don't think that I've ever suggested otherwise.

Not to get into this exciting contest of personalities or anything, but it's not unreasonable for UC to be concerned about the legal risks of breaching its contracts. On the other hand, UC gets only one shot at Yoo, so the idea of let it all play out wiuth existing provisions, and then pick up the pitchfork is as impractical as the suggestion of Ari with a pitchfork seems improbable.

A forthright statement from the academic senate or some such body that cavorting with torturers is beyond the Pale seems like a useful step, no? While there may be sufficient basis to expel Yoo for his deliberately sloppy scholarship, that wouldn't get to D2's engineering prof.

I don't expect anything of that sort from UC, though. One should never underestimate the factual knowledge of someone like D2, but it is quite common for people to misapprehend the relative importance in the Cal universe of Mario Savio on the one hand and Lawrence Livermore etc. on the other.

And further to 648, I should add: I have no idea if, in real life, you're a bully. You may well be sweet as pie.

653: Napi, why do you say that the UC has only one shot at Yoo? Surely this is wrong. The fpc, or whatever body will be charged with the investigation -- should there be an investiation -- will hold its hearings. Should they find that he's not guilty of misconduct, and then, some time after that, Yoo be convicted of war crimes, he'll be terminated. In other words, there's no double jeopardy, is there? And by the way, I have a shed full of pitchforks.

And now I'm going to try, again, to go to sleep. I had a coke with dinner, a very big mistake as it turns out.

One thing that's unremarked in 650 comments is the fact that UC procedure (along with many other systems) already failed to deal with Yoo's misconduct.

Did the release of the memo provide any substantive new information, beyond the precise way in which he promoted his nonsensical argument? It was already well-known that Yoo had written a memo that was designed to be - and was - relied upon as legal cover for torture.

I might also add that various direct-action sorts of free-lance shunning, shaming, and disruption have been proposed to deal with Yoo unofficially if he isn't dealt with officially, but this kind of vigilanteism is objectionable to procedural liberals too. And that's also one of the risks that people should be thinking of. If Yoo continues to teach, UC and its procedures will be discredited in the eyes of those who regard Yoo's actions as having been monstrous.

The slippery slope will always be there. I think that UC should accept lesbians and abortionists, and not accept torturers and war criminals. Other Americans think the reverse. I don't think that the "split the difference and accept both" option solves anything, and I don't think that the "accept neither" option is good either.

649 is just absolutely fabulous in every way.

I'd like to hear more from Napi too. Why would UC have to worry about breaching its employment contract with Yoo if it went after him more than once?

I don't think that the "split the difference and accept both" option solves anything

I puzzle over this. Time and again, procedural liberals in the reality-based community have gotten rolled by promoting just this sort of compromise. For example, the media is in its current degenerate state in part because the Right has learned to game procedural fairness. "Objectivity" has become the process by which bullshit and truth are given equal weight.

I think there's a case to be made that the academy has been relatively undamaged, though. Further, I think there's a case to be made that one reason the academy has escaped the worst of the damage is that the procedural liberals have been able to enforce this compromise.

But as I say, I puzzle. While the procedural liberals are promoting compromise and comity, the Right wants to win. Behe and Bellesiles are frauds who don't belong in the academy, but one of them still resides there.

People breach contracts all the time. It is the price of doing business. Coaches get fired or bought out all the time.

Hold a due process hearing on whether he should be terminated. Make him defend it. Terminate him. If you are wrong, pay the price.

It is worth it to say that we do not support torture. The memo is only one component of Yoo being an advocate for torture.

I wrote 661 before following the link in water moccasin's 132, which serves as a pretty good brief supporting the idea that procedural liberalism in the academy is ineffectual. Behe's colleagues have responded to his fraud by issuing a statement titled "Department Position on Evolution and 'Intelligent Design' ":

The faculty in the Department of Biological Sciences is committed to the highest standards of scientific integrity and academic function. This commitment carries with it unwavering support for academic freedom and the free exchange of ideas. It also demands the utmost respect for the scientific method, integrity in the conduct of research, and recognition that the validity of any scientific model comes only as a result of rational hypothesis testing, sound experimentation, and findings that can be replicated by others.

The department faculty, then, are unequivocal in their support of evolutionary theory, which has its roots in the seminal work of Charles Darwin and has been supported by findings accumulated over 140 years. The sole dissenter from this position, Prof. Michael Behe, is a well-known proponent of "intelligent design." While we respect Prof. Behe's right to express his views, they are his alone and are in no way endorsed by the department. It is our collective position that intelligent design has no basis in science, has not been tested experimentally, and should not be regarded as scientific.

I realize that I misread Napi. The fear of breaching the K isn't the reason that they get only one shot. That's a separate fear. I'd still like to know why Napi thinks that Cal only gets one shot at getting rid of Yoo.

If their contract prohibits terminate, you cannot make multiple attempts for the same action.

So make it different actions, should the need arise. One for scholarly malpractice, one for being a bad guy, and one for being a convict.

People breach contracts all the time.

Amen. As you say, there are well-recognized procedures for when contracts are breached. Let the vigilante liberals tip over a few lamps and step on some toes, and let the torturers start defending procedural liberalism if they want to.

Cal only gets one shot at getting rid of Yoo.

There may not be formal double-jeopardy-type restrictions on going after him twice, but practically speaking it's hard to imagine that after trying and failing to fire him for "sloppy scholarship" the political capital would still be there to support a do-over on the ground that "actually now we think about it we were only wasting your time with the scholarship quibble really we think he's a monster."

If he subsequently gets convicted of war crimes that would be another matter, but that's about as realistic as Emerson's hogs.

664, 666: There's also a sort of institutional fatigue that builds with these issues, creating a strong procedural incentive for only taking one shot. There's no technical reason Bill Clinton couldn't have been impeached twice, but it's hard to work up the insitutional will to make something like that happen after it fails the first time. Certainly the Republicans didn't lay off because they suddently developed scruples.

Bah. felix-pwned.

657
Did the release of the memo provide any substantive new information, beyond the precise way in which he promoted his nonsensical argument? It was already well-known that Yoo had written a memo that was designed to be - and was - relied upon as legal cover for torture.

It revealed that not only is Yoo pro-torture, he chose a very stupid, incompetent unprofessional way to go about it, according to the lawyers around here. Until the memo was released, arguments against firing him on the basis of the assumption of professionalism could have been made. "Maybe he actually did have a good legal argument no one's thought of before that in certain particular circumstances, torture is not illegal." "Maybe his actual memo was very limited in scope and meaning, and his ostensibly pro-torture comments in hearings have been taken out of context." "All we actually know is that he apparently said something disgusting in a hypothetical; we should give him the benefit of the doubt." No, those aren't persuasive to us, but now Yoo doesn't even have that much. His supporters used to have a fig leaf to keep him around if necessary, now his opponents have a fig leaf to get rid of him if necessary.

But still, I agree with the non-Ari people; if the existing procedures had an adequate way of firing him and if the Regents of UC wanted to fire him, he would already be gone. If not when he first defended torture, then within the past week or so since the memo became public. He's still there.

Cyrus, it takes a university longer than a week to tie it's shoes, must less begin the process of stripping a high-profile member of the faculty of tenure. This is one of the most frustrating elements of allowing the process to play out. But, as noted in another thread, it seems that the mighty DeLong is now on board with making some waves -- or at least this might be the case. And if DeLong-sized waves are made, I can't imagine that there won't be an inquiry. From there, of course, we'll have to see.

Cyrus, it takes a university longer than a week to tie it's shoes

its, Ari, its. Ugh.

I hope you're not teaching those kids punctuation.

Rest assured, bg, that in my capacity as a teacher of young people, I'm far more careful about punctuation, grammar, syntax, and phrasing than I am here. The same is true when I wear my writer of words hat.

The same is true when I wear my writer of words hat.

I certainly hope it doesn't make you look toolish.

The distinction between the contraction of "it is" and the possessive of "it" was so thoroughly drilled into me that it's positively painful for me to see the contraction used as a substitute for the possessive. The reverse doesn't bother me so much, because it could be a simple typo.

It's BG, by the way.

675: Careful, Sifu's just trying to ratchet up the rhetoric.

677: no indeed, I'm trying to sawzall the problem in half, that we may get at the core of it.

675: I don't actually wear hats. Because they impede my phothosynthetic capabilities. Which, in turn, deprives the earth of oxygen and puts polar bears in harm's way.

676: Sorry about that. I promise never to make the same mistake again. I can't, I'm afraid, make the same promise about my other errors.