an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Exactly, exactly !! Some time ago I baptised this guy as John "Voodoo law" Yoo, because he acts in legal matters just like Reagan's economic advisers acted in their own field. For further details on this way of thinking, read Ron Suskind's "One percent doctrine" or his article "Without a doubt", the latter available in his site - www.ronsuskind.com
My favorite, and illustrative, quote from the article I mention:
'The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do."'
"Creative thinking" is certainly an interesting euphemism. I bet that's how Yoo actually sees what he's doing. It's hard to believe, but he probably just sees himself as doing his job, and sees this decision as an obstacle to his creative thinking.
I really need to read Eichmann in Jerusalem: A Report on the Banality of Evil. My feeling is that it would describe Yoo pretty well. Evil doesn't carry a pitchfork. It carries a ball-point pen.
For what it is worth, I think it is a mistake to jump on John Yoo simply for his statement about "creative thinking." One should, certainly, oppose Yoo on the substance of a lot of what he has been arguing, but there is obviously nothing wrong with "creative thinking" as such in the law. One could have no understanding of American legal development if lawyers really were confined to making arguments that were acceptable to the absolutely establishmentarian, relatively conventional lawyers who have constituted the overwhelming majority of Supreme Court appointments over our 200 years.
That Yoo's arguments are "creative" is not what makes them objectionable.
No, of course not, Sandy. I'm in favor of "creative thinking," too. My point in linking to the torture memo was to highlight the euphemistic use of the phrase "creative thinking." There's no doubt that the Commander-in-Chief arguments therein *were* very creative. The Court went out of its way to excoriate those arguments -- in a case where they weren't raised -- not because they were creative but because (in the Court's view) they were wrong and undemocratic.
P.S. When the Executive Branch is going to adopt a "creative" legal argument, it should acknowledge the creativity (rather than pretending as though it's uncontroversially following the law as usual), and should do so openly, so that the other branches (and the public) can decide whether such "creativity" is a good thing.