Balkinization  

Friday, April 18, 2008

On Tenure

Mark Graber

That academics are fond of tenure is hardly the most surprising news of 2008. Tenure or the possibility of tenure is part of our benefits package. Many of us make important life decisions, including the decision to be academics, on the basis of tenure or the possibility of tenure. Eliminating tenure, from this perspective, is unfair for the same reason that eliminating any job benefit without compensation is unfair. I’ve never gotten an end of the year bonus when my university has had a good year, but I do not think that is a good reason for eliminating the end of the year bonus in good years for jobs where that (and not tenure) is an understood perk of the position.

How eliminating tenure would influence a great many academics is unclear. Could one bargain for tenure? Most of the applicants we interview at the University of Maryland School of Law receive more than one job offer. Suppose rather than meet a higher salary offer, we offered tenure on an individual basis. We might wind up reproducing the tenure system for almost everyone (or the same percentage of the faculty would have tenure as is the case today). Of course, professors would take lower salaries in return for tenure, but a good case can be made that this is already the case. Law professors make a nice living, but I suspect the average salary of persons who made Harvard Law Review presently working at law firms is substantially higher than the average salary of persons who made Harvard Law Review presently teaching law.

Eliminating tenure might even raise professors salaries. Presumably, if tenure were eliminated, more professors would be terminated and the result would be more job openings for the rest of us. The law of supply and demand tells us that if job openings increase and the job pool remains the same, salaries will go up. This is a vast oversimplication. Lots of complications. The more general point is that the elimination of tenure may not be a zero-sum game for the professorate as a whole. Many of the most vigorous defenders of tenure might gain financially if tenure was abandoned. My non-acdemic friends, who question tenure, always think of the incompetent professor who could have been fired. They never think of their favorite professor, who might have left for a better university and salary in the absence of tenure.


Put simply, professors opposed the elimination of tenure per se for the same reasons everyone opposes the elimination of a job perk without any compensation. Better professors may also be for tenure, because independent of any virtues or vices of the practice, they are the sort of people who prefer security to greater opportunities for higher salaries. Perhaps we should nevertheless eliminate tenure, but people should be aware that the result may not be better professors in general, but merely better professors at the best paying universities and, possibly, different sorts of people becoming professors.




Comments:

Um, without tenure, getting a PhD would be completely financially irrational. It just about is now, unless you get a job at an R1. I think abolishing tenure would probably just accelerate the process of adjunctification and spread the "winner take all" nonsense even further into academia. No thanks.
 

you don't mention one of the prime benefits of tenure is academic freedom.

i do think that it is a very important social benefit.
 

Uh, Mark, there are an awful lot of questions that have been raised in comments about your regrettable post that you have studiously ignored here.

That is not the behavior of a mensch. (Mark knows what I'm talking about).

You posted the inflammatory comments on a blog that accepts comments. Please respect the readers of Balkinization and respond to them.
 

I am troubled that Mark persists in suggesting that by advocating the revocation fo john yoo's tenure -- through Boalt's designated procedures for doing so and pursuant to Boalt's standards for revoking tenure -- is somehow the equivalent of "eliminating tenure."

I hate to sound like a broke record, but I and others have taken pains to point out that, given the particulars fo the Yoo case -- documents evidencing Yoo's active participation in a scheme to legitimize war crimes (those that had already occurred as well os those that he knew or should have know were ongoing) and thereby evade the law -- advocating the revocation of Yoo's tenure at Berkeley is not the equivalent of an across-the-board "eliminati[on]" of tenure.

To conflate the two is just plain sloppy.

I and others have also tired to stress that we're dealing here not with punishing Yoo for having bad thoughts or expressing bad ideas, but for doing bad deeds. OLC memoranda are not law review articles. They have grave practical consequences. And just as the tax lawyer who writes an opinion-letter-cum-instruction-manual-for-tax evasion is guilty of conspiracy to commit tax evasion, so, too, do Yoo's memoranda constitute more than speech, but actual acts in furtherance of unlawful behavior.

It is also quite intellectually sloppy to conflate these two concepts.

The most charitable view here is that self-interest is occluding a rational response.
 

This comment has been removed by the author.
 

Mark is very big on blaming the victim; not so big on confronting aggressors.
 

I agree with Ginger Man-- revoking Yoo's tenure is not the same as an across the board revocation of tenure. But I think the other side should also be understood-- revocation of Yoo's tenure could at least possibly weaken the institution of tenure, either at Berkeley or elsewhere, either because it sets a precedent that conservatives can use (even if by means of a false analogy) to go after liberal professors or because conservatives and Yoo supporters just decide to exact revenge.

In the end, I think that's worth the risk. But then, that's because as a non-law professor, I don't look at tenure as a perquisite but rather as a device that is supposed to serve a public interest (academic freedom), and I think it is doubtful that weakening it somewhat is really going to harm academic freedom all that much. Further, I think that having a war criminal on a major law school's faculty, protected by tenure rules even though his war crimes were committed off campus during a leave of absence, would, if Yoo's war crimes are proven satisfactorily, do great damage to the institution and the profession.
 

Isn't tenure just a strong "just cause" contract? Is the entire institution of "just cause" contracts when someone is fired pursuant to such a contract? Seems to me the only issue here whether there is just cause to tell Yoo to do his scholarship elsewhere. Somewhere with lower standards, like the American Enterprise Institute.
 

Whoops - "Is the entire institution of "just cause" contracts placed into question when someone is fired pursuant to such a contract?"
 

"Just cause" is a term considered in negotiating employment agreements, especially for highly paid executives of publicly traded corporations. But one soon discovers that "just cause" requires defining as it is not quite clear what may constitute "just cause." So from the perspective of both the employer and the executive employee, efforts are made to define what constitutes "just cause." Because big bucks are involved, it may be difficult coming up with anything close to what might be considered a standard "just cause" definition, resulting in specialized definitions on a case by case basis. Even with careful definition, a dispute may end up in court. (Think of morality clauses in employment agreements for public figures, e.g. entertainers, athletes, etc.)

There may be statutes that employ the phrase "just cause" with or without further definition. I doubt if the various courts considering a statutory "just cause" provision decide uniformly on what constitutes "just cause."

If tenure is subject to "just cause" specifically or by implication, what constitutes "just cause" may be in the eye of the beholder and thus generate legal fees for representating the academy and the tenured professor.

That is their battle. Our battle may be helping to form public opinion in deciding what kind of person Yoo is based upon his torture memos. We should do this just because the legal profession deserves better, America deserves better.
 

Graber claims that "professors opposed the elimination of tenure per se for the same reasons everyone opposes the elimination of a job perk without any compensation." Sullivan, on the other hand considers academic freedom to be "one of the prime benefits of tenure."

Both have an element of the truth (tenure being an economic arrangement as well as an academic one), but Sullivan comes closer to the mark for two reasons. (1) His claim is more modest; he only speaks of "one of the prime reasons," whereas Graber's text reads as though he were exposing the sole reason. (2) There is plenty of evidence supporting the academic freedom rationale as being primary. Firstly, that's what all the foundational documents, such as those from the AAUP, say. Secondly (for those unwilling to accept such documents at face value), take a look at the actual behaviors of academics with regard to tenure compared with our behavior with regard to other "job perks." Do we seem to treat them the same way? Beyond the elaborate, painful, labor-intensive processes we academics go through for tenure at our own individual institutions -- unlike anything we do for any other "job perk" -- consider how we fight for the institution of tenure on a concerted nationwide basis. Contrast that with how we treat all other "job perks." When have you ever heard the AAUP launching a major-nationwide campaign insisting that it was essential that every college or university offer tuition benefits for dependents -- that this was not the sort of thing that individual institutions could legitimately trade off against salary or other benefits? So if we don't treat tenure the same way as other benefits, what makes Graber so sure we are fighting for it "for the same reasons"?
 

Oh yes, one other point needs to be raised regarding Graber's focus on why we would object to the elimination of tenure "without compensation." Namely, many of us have also gone on record as opposing the elimination of tenure even with compensation. When the AAUP censured the University of Central Arkansas in 2000, one of the stated reasons was that "The adoption by the administration and the board of trustees of a policy allowing faculty members to eschew the tenure system for a higher salary violates basic principles of academic freedom and tenure." (The University was removed from the censure list in 2003 after rescinding the policy.)
 

Dilan and probably others (I have not read all the comments) did raise the issue of abolishing tenure. But, this still is a largely a strawman post.

As a whole, I am equally sad and aggravated (ok, honestly, more of the latter) by the posts on this issue. The tenor of the replies, and I found Jack Balkin quoting as a stand alone post someone who is making the same points lots of comments are making a bit annoying, is that yes tenure and academic freedom is important. But, it is not an absolute good.

Does Mark Graber think it is? If not, why not go beyond the extremes of "Yoo keeps his job" and "no tenure for anyone" and answer the primary thread of replies that suggest in some at least extreme cases, with all the relevant safeguards, tenure can be removed.

Lawyers and doctors spend lots of money, sweat and a few tears probably to get their jobs. Under certain cases, they can lose their "tenture" (license etc.). Why should college professors be uniquely different?

Better sorts than I have said this, but this stream of posts leave a lot to be desired, especially from people firmly against what Yoo aided and abetted here. You want to have your cake and eat it too.
 

Dilan --

"In the end, I think that's worth the risk. But then, that's because as a non-law professor, I don't look at tenure as a perquisite but rather as a device that is supposed to serve a public interest (academic freedom), and I think it is doubtful that weakening it somewhat is really going to harm academic freedom all that much."

While the defenses of tenure expressed here are justified, or at least defensible, the impression given is that it is a mighty high threshold to overcome, as if it were essentially invulnerable is a huge exaggeration. I noted before that there are probationary periods prior to the granting of tenure -- and that is to evaluate a broad range of qualifications for the position other than whether one is able to ffulfill the "qualification" of "academic freedom". I know as example, that central to attaining and retaining tenure -- and it is entirely too much the focus of it -- is publishing; to "highest" "rule" applying to retaining tenure is "Publish or perish!" (It is not, as one would expect, "academic freedom" in the classroom, as that "highest" "rule" in many, if not most or all instances, precludes the time needed to teach instead of publishing.)

Furthe, as I understand it, there are periodic, "mandatory" and routine reviews of tenures to determine whether the standards required of the tenured are being met.

Tenure is certainly a barrier to retaliation for exercising academic freedom; but it is hardly insurmountable, or insurmountable to any formidable degree, for legitimate reasons. Others have mentioned firings for sexual harassment -- a tort, not a crime -- and without the involvement of agencies outside the university.

In short, there are rules which apply even to tenured prfoessors, with which they are required to comply, including such obvious prohibitions as against plagiarism and theft of research (which latter happens often, but which is ignored, or it doesn't make the news when punished).

So most of the energy being expended here in defense of "academic freedom" is actually a defense of tenure itself, and thus giving the impression that it is sacrosanct, and therefore almost impossible to overcome. That, at any rate, it should be left alone -- "off the table" -- as an issue.

But let's be real: there are any number of lesser rules violations -- plagiarism comes to mind -- which can result in refusal of renewal of tenure, or revocation of it, than being part of a conspiracy, or criminal enterprise, which authorizes and actually imposes the war crime of torture. Which, almost tangentially, also includes blatant, deliberate intellectual honesty as means to that end.

Perhaps, though, in academe, torturing persons to death, based upon the unquestion presumption of guilt, by a lawyer no less, is less an offense than such as plagiarism. Or failing to publish a sufficient number of pages during a given period of time; which raises this academic question:

As Yoo retained tenure during his time at the DOJ, are his torture memoes counted as part of the publishing requirement of his tenure?
 

I probably should put this under Prof. Graber's original post, but I'm not sure who's still reading that, so I'll just recommend this link for a critical analysis of Prof. Graber's views.
 

I appreciate MF's link to an updated reply to the views especially after one of the contributors to this blog [in passing] in a recent post apparently praised the views in question w/o any such criticism at all.

[in a citation to Prigg]
 

Having defended slaveowners and torturers, I eagerly await Graber's contrarian analysis of why the Nazi Judengasse policy actually represents a majoritarian constitutional understanding ratified by the election of 1932.

Also, the link a few posts above this one is well worth checking out. Brad DeLong ties Graber to the intellectual whipping post and verbally lacerates him.
 

Anyone try to follow Mark's logic to its conclusions from his last essay?

We all voted for torture because Bush was elected twice, but we did not vote against torture by putting Democrats in control of Congress in 2006.

I'm going to presume that a victory by Democrats in 2008 would also not be a vote against torture, according to Mark.

So how do we vote against torture???

Can anyone explain this in Mark logic?

I would really to vote against torture. Can you help me, Mark???
 

Just some notes on Mark's parameters:

Candidates who say "we don't torture" are torture pro.

Candidates who don't center their campaign against torture are pro torture.

Candidates who say they are for torture are for torture.
 

Seth --

"Anyone try to follow Mark's logic to its conclusions from his last essay?

"We all voted for torture because Bush was elected twice, but we did not vote against torture by putting Democrats in control of Congress in 2006.

"I'm going to presume that a victory by Democrats in 2008 would also not be a vote against torture, according to Mark.

"So how do we vote against torture???

"Can anyone explain this in Mark logic?

"I would really to vote against torture. Can you help me, Mark???"

Can't vote against torture, Seth. It's the only substitute we have for slavery, even though not quite as good because it's conducted -- at least for the present -- outside the US.

We do have the fact, though, that the victims are by-and-large at least brown, though Padilla was nearly white. Or could be mistaken for white. Or could possibly pass for white -- which is good enough reason to subject him to torture -- just to cure him of being "uppity," donchaknow.

Gotta hand it to Ronnie Ray Gun: he, as the top "resepectable" leader in the country expressed his view that everyone has the "right" to be racist -- and that opened the floodgates to, first, expression of it, and then acting on it -- remember the lynching in TX with the pickup truck and chain?

It was inevitable that that stench would eventually be defended by one or another academic "as if" not actually an "argument" intended to have the effect detailed in its contents.

So that's an example of "academic freedom": asserting specious, intellectually dishonest defenses of slavery and racism?

Some "arguments," "academic freedom" notwithstanding, are not worth making. Still others are grossly irresponsible to make.

How did we get to a point at which some -- but by no means all -- are able to separate freedom from responsibliy, especially as concerns the real-world consequences?
 

Academic freedom is offered through Tenure to those who've jumped through the required professional and ideological hoops. It is a social, not an absolute measure, designed to allow the holder to make not only unpopular arguments but also in some cases popular arguments seen by some to be immoral. It also allows the holder to make stupid arguments, but that's a risk we choose to take.
Graber's comments, which seem unclear to so many, are in fact quite simple. Laws cannot protect us from ourselves unless we want to be protected. Laws are a tool not a crutch. Following the antidemocratic logic of Brian Leiter, Brad DeLong and Richard Posner rules are all there are. But society isn't made of rule-following or simple mechanism. To argue that it is is to imagine society built on functionalism and Fordism, a logic popular among those who crave a society of unified meanings and goals. [Atheist philosophers are all ex-theologians: got me?] Rationalist fundamentalism is the child of textualist fundamentalism, both argue that that there must be a foundation, or a goal. There is neither.

Society is what we make it, and we spend our lives describing and explaining ourselves to ourselves and to each other. We create our own meanings, as they create us. We need to be active in creating those meanings. Passivity is dangerous, especially in a democracy.
The only question concerning Yoo from the standpoint of this country is whether or not he breached the code of professional ethics. A lawyer like an engineer or a doctor is often not only a scholar, but a licensed practitioner. He can lose that license: Yoo can be fired once he's been disbarred.
But putting Yoo on trial in this country seems odd.
The Hague would make more sense but then the entire country would be on trial with him. Given the circumstances, that perhaps is as it should be.

I don't think anything I've said here is counter to anything said by Mark Graber.
Again: Got me?
 

The issue is the investigation of one person, John Yoo, for doing that which the evidence indicates were/are war crimes.

What better, what more intellectually dishonest, way to avoid the issue entirely -- to generalize away from the specific -- than to discuss the entire concept of "tenure" being eliminated, whining that one's "academic freedom" is threatened -- poor victim -- because some people no one gives a fuck about were tortured, even tortured to death, by our gov't.

My comfort, my perquisites, my entitlement is more important than other peoples' very lives.
 

I'm not sure why any of you are surprised by this defense of Yoo (unless, of course, you were expecting more from Graber). It is identical to several of the defenses offered by the Bush Administration, most especially those used to prevent Congress from investigating.
 

Mark Graber grabs us with his cover of the late Sam Cooke's "Yoo send me, honest you do .... "
 

"I'm not sure why any of you are surprised by this defense of Yoo"

How can this be anything less than clear: it's not a defense of Yoo.
Values precede laws and words can be twisted to mean different things, evolving or devolving as the case may be. This isn't true for numbers. 1 is close to 2 which is near to 3 which is next to 4 which is almost 5. And yet 1 is not almost 5. Numbers don't change their meanings, but words do. Religious and linguistic fundamentalism are the products of a terrified recognition of this fact. They're arguments for mandated, coerced, stability.
Democracy stands opposed. It says rule-following is not a valid model. Blind obedience to the words on a page as to anything, leads us off the tracks. It makes us into automatons programmed by our grandparents. Without an understanding of the fact of shared values and a constant debate over what those values are, our thought, our descriptions of the world, become brittle and thin and we become unable to respond to new experience. Graber's point is that pre-civil war constitutional culture had become a Gordian knot and that perhaps this is true today as well. The response from DeLong and others has been to argue explicitly that this was not the case and implicitly that this could never be the case. The "reality-based" community is clear on this, and they prize their clarity no more or less than the Pope. But ask a Palestinian about the significance of that phrase for American political culture and she'll laugh and spit in your face.
 

"Democracy stands opposed. It says rule-following is not a valid model."

Utter BULLSHIT.

Democracy cannot exist without the rule of law, and cannot surive without the enforcement of the rule of law.

You are wholly overlooking the fact of democratic consensus -- while affirming to us that, yes, your belly-button exists, and that belly-button-gazing is still alive and well -- as to the meaning of words and rules. That is why we have a judiciary: to determine the shared meaning of the words and rules by which we conduct our lives in a social context.

Yes: by which, in accordance with which, we conduct our lives in a social context which does not consist solely of "I" and my subjective whims.

There is no debate over the meaning of the word "torture"; the "debate" -- the effort to avoid that fact -- is over "wheter" a "harsh interrogation technique" is torture, while ignoring the fact that yes -- as example -- waterboarding is torture, and it is so according to law.

So we have two mans, now, in effort to avoid the issue and thus protect and defend not the rule of law but John Yoo:

1. Jump entirely over the issue to hypothecized conclusion, and stand on that hypothetical and attack others who aren't doing that of doing that.

2. Go all the way back to before the issues and assert that words have no agreed meaning (anassertion refuted by the fact that we understand that assertion, even as it is exprssed in words) and that rules are irrelevant.

In a way it's true you aren't defending Yoo: overtly defending is unnecessary if one can instead put him out of the picture entirely.
 

I apologize for my lack of imagination. It never occurred to that a post by someone with Mark Graber's history, right after a discussion of whether Yoo should lose tenure, on the topic of tenure, might have nothing to do with Yoo.

Silly me.
 

I apologize for my lack of imagination. It never occurred to that a post by someone with Mark Graber's history, right after a discussion of whether Yoo should lose tenure, on the topic of tenure, might have nothing to do with Yoo.

Silly me.
 

JNagarya, it goes back to Moses and Aron. The institution of law is conservative, so the debate among those who accept it is between the conservative and the reactionary: between the logic of history as mediator and the ideology of history as diktat. Add in the modern diktat of "enlightened reason," reactionary radicalism, and you get the dilemma of the contemporary life.

Conservative and radical reaction both oppose democracy. Both claim that its bound to fail. It makes more sense to say that it fails if the people lose interest in it. Maybe they have.
 

"JNagarya, it goes back to Moses and Aron."

We are not in the Middle East. And this country is not based on the "bible".

"The institution of law is conservative, . . ."

The institution of law is only "conservative" if it is reactionary, and against progress. Against evolution in the law.

". . . .so the debate among those who accept it is between the conservative and the reactionary: between the logic of history as mediator and the ideology of history as diktat."

There is the reactionary -- you "conservative" -- and there is the progressive, which you mischaracterize as an opposte extreme.

Meanwhile, you're are successfully saying nothing about the issue: Torture, Too, and Too's Torture Memoes.

That is the position of today's reactionaries.

"Add in the modern diktat of "enlightened reason," reactionary radicalism, and you get the dilemma of the contemporary life."

The "dilemma" consists of ignoring the vast middle in order to oversimplify everything down to "conservative" -- that to which you refer actually being the tridtional "luntic fringe" on the right, and everything esle as a monolithic "radical reactionary".

Luckily it is your politics, not reality, that is skewed.

Meanwhile: are you for torutre, or against it?

"Conservative and radical reaction both oppose democracy. Both claim that its bound to fail."

Adnd then there's that vast middle about which you make no mention. That vast middle opposed to the war.

Not-so-by-the-way: Where do you stand as concerns the use by the US of the war crime of torture, and Yoo's part in giving it the false appearnace of legality?

"It makes more sense to say that it fails if the people lose interest in it. Maybe they have."

"The infomred citizen is the cornerstone of democracy." It has not been the ordinary citizen who set about to deliberately mis-/mal-/dis-inform the ordinary citizen. They are not the villain, the the elitist will constantly blame them, secure with the knowledge that they aren't given a comparable megaphone, and can always be hung up on.

Or otherwise ignored.

"# posted by D. Ghirlandaio"

Are you for or against torture? If for, why? If against, why are you avoiding the issue of John Yoo and his illegal efforts to give it the appearance of legality?
 

JNagarya said Jose Padilla could pass for white. Maybe so, but in this picture he is brown:

http://news.bbc.co.uk/1/hi/world/americas/2037444.stm

He was sent to the Supermax prison:

http://online.wsj.com/article/SB120853882822326737.html?mod=googlenews_wsj
 

Scott Horton's LATimes OpEd today (4/21/08) titled "Which came first: memos or torture?" raises some interesting points on Yoo, at:

http://www.latimes.com/news/opinion/la-oe-horton21apr21,0,1892568.story

Perhaps Scott will favor us with another post on Balkinization to pursue his points. With anticipated Congressional hearings, more information should surface.
 

Shag from Brookline --

"Scott Horton's LATimes OpEd today (4/21/08) titled "Which came first: memos or torture?" raises some interesting points on Yoo, at:

"http://www.latimes.com/news/opinion/la-oe-horton21apr21,0,1892568.story

"Perhaps Scott will favor us with another post on Balkinization to pursue his points. With anticipated Congressional hearings, more information should surface."

Thanks for the heads up, Shag; it's an excellent summary. And I agree: I'd like to see more from him. (It was he, as NY Bar president, that the JAGs flew from DC to NY to consult with on these very issues.)

It's good news that international law experts have been "punching holes" in Yoo's claims. The guy is an amibitous Neo-Con[artist] extremist and careerist who figured he'd never get caught; that the memoes would stay secret. (I'm surprised they weren't shredded.) Or he's a sociopath, and only one of a rare convergance of sociopaths flocked together, and in control of our gov't.

Regardless outcome, this is going to be seen in hindsight, and not too many years from now, as one of the very darkest periods in our history. The outrageous, self-serving exploitation of a mass murder of US citizens on our own soil to advance a nut-ball political agenda.

John Dean is correct: this gang, its views, and its practices are something foreign to our system.
 

"this is going to be seen in hindsight, and not too many years from now, as one of the very darkest periods in our history."
It's seem that way already, but not by enough people.
In the meantime Scott Horton's piece concerns legal ethics and statements of fact.
 

Even if it is proved that the torture started before Yoo wrote the first memo, I can't see that succeeding on its own. Yes, a cause must precede an effect, but not all prior events are causes.

Thus, while establishing that the torture started before there was a memo to say it wasn't torture will be both a useful thing and a problem for those who did the torturing (and/or ordered it), it wouldn't automatically cause Yoo any problems.
 

Let's suppose a large corporation realizes it may have a serious legal problem on its hands if certain facts or information regarding certain of its activities get out to the public. You are an in house counsel or outhouse counsel with a large, national law firm, called upon to look into the problem and advice the corporation. You determine that key executives within the corporation may not not be in agreement on the seriousness of the problem or are concerned with how they may be impacted, whether personally or professionally, by action that has already taken place. You become aware of all of these concerns and are assigned the task of trying to resolve the problem using your legal skills. You have an idea of what kind of legal advice these executives would like to hear from you.

Contrast this with a situation where the problem does not currently exist for the corporaration; and you, as such counsel, are asked to explore the legalities of what the key executives would like to accomplish. You realize, upon doing your research, that there is no bright line you can base your legal advice upon, as the area is quite grey. You lay out the issues, the problems, the possible obstacles the corporation and the executives may have to face in pursuing what they would like to accomplish. You lay out sort of a cost/benefit scenario for the executives to consider, with perhaps even opining as to the odds of success, so that the executives may make their decision based upon your advice.

Does your role as counsel differ in these situations? In the first situation might you be considered as aiding and abetting a course of action that may at a later date be deemed to have been inappropriate (to put it mildly)? In contrast, in the second situation, the potentially problematic action of the corporation has not as yet taken place and may be aborted, regardless of your advice. In the first situation, the potentially problematic action has already occurred and that fact may be influential in your eventual legal advice.

Does your consideration (and burdents) of the potential problem as counsel differ in these situations?
 

I understand (better than most, given my day job: psychologist) how the pressures in the first case would cause the process to be, well, sub-optimal.

But a court can't use such as actual evidence, can it? I mean, at best, it's circumstantial and probabilistic. You can't say it adds that much to the case, can you?
 

A "court of public opinion" or perhaps a bar organization considering whether the counsel may have violated a legal code of professional responsibility might consider the circumstances or evidence that led to the counsel's legal advice.

Also, consider the position of the corporation and its executives: would they have available the defense of reasonable reliance upon competent legal advice for an act committed before the advice was provided?
 

Looks like Graber is going to disrespect the readers of Balkinization and refuse to address the many objecitons raised in comments and instead focus on this straw man tenure issue.

Either that or he's working on the third and final part of his contrarian apologetic trilogy: Why The Nazis Weren't As Bad As They're All Cracked Up To Be
 

Let me give an example similar to Shag's, but from an actual case. I'll leave the names out.

A large corporation reached a point at which it had to confront the fact that, for about 15 years previously, many of its executives had violated both official corporate policy and actual criminal laws. The corporation decided to have its in-house counsel conduct an "investigation" of the events. That "investigation" exonerated pretty much everyone but a few "bad apples".

The corporation used the results of the investigation to argue to the relevant US Attorney that a criminal action against those "bad apples" should be limited to them and should be focused in certain ways helpful to the corporation. It also made similar arguments to the District Court in which parties affected by the misconduct brought a RICO action. However, the company refused to disclose the actual investigation report or files, claiming they were privileged.

Eventually, evidence developed in the civil RICO action demonstrated the culpable nature of the "investigation". The District Court thereupon ordered the evidence turned over to the plaintiffs under the crime/fraud exception to the attorney-client privilege. This order, needless to say, was very harmful to the corporation.

Bottom line is, legal advice given for the purpose of effecting a crime or fraud is NOT privileged, and could (though it didn't in this case) lead to criminal proceedings against the attorneys.
 

Oops. Should have been "Shaq". Sorry.
 

Mark,
You had it right the first time. I'm too old to SHAG flies or anything else, but that's my handle derived from my first name. I add the "from Brookline" so that I can at some point "franchise" my moniker to potential franchisees in other communities. I do have an opening for Colorado. Anyone interested?

(The confusion of "Shag" and "Shaq" results from the underscoring that absorbs part of the "g" with the typeface used on this Blog.)

You provide a good example. Sometimes it isn't easy being an ethical lawyer in private practice with all the economic pressures. But unlike some government lawyers, lives are generally not at stake, just money. Not that money is an excuse.
 

I spent several days trying to decide if I was going to say anything. I did not want to, but based upon some of the comments above, I have been driven over the edge.

I would note at the outset that I do not pretend to be any kind of expert at many of the constitutional issues involved herein. My practice does not ever come in contact with pure issues of Constitutionalism. I would further apologize at the outset for the length of this note. Those of you who know me and know who I am will understand.

To those who believe that Prof. Graber must respond to the criticism leveled at him herein, they should know by now that he prefers to simply make a post and then not respond to comments, as he has made what point he wishes to make. He may not find it worthwhile to defend himself. In his absence, I will. It is clear from many of the comments above, that many who criticize the original posts and who take the time to attempt to excoriate the writer have not read the two posts carefully, nor the Dred Scott book at all. If one reads all of these items, it is easy to see that Prof. Graber is not advocating slavery or torture. There is a point to be made which all of you have clearly missed in your zeal to jump on the bandwagon and scream.

The point you have all missed is that if you have a Constitution and that Constitution is either a.) to be interpreted literally as the words read, as many who call themselves the so-called “originalists” advocate and b.) is to be interpreted by judges appointed by politicians who clearly have political motives behind those whom they appoint, then you get what you pay for.

Among other items, it is clear that the Constitution is a political document. We all know that it was negotiated by the politicians of its time, no matter how honorable they were and how wonderful the document as a whole turned out. It is beyond dispute, however, that the Constitution would not have been agreed upon and ratified if slavery had been outlawed. That is, among other things, a flaw of the men who negotiated it, wrote it, and ultimately ratified it. It is also simply reflective of a flaw of the times. Slavery existed and was not going to disappear just like that; therefore, to preserve the Union, slavery was outlawed. The point of Prof. Graber’s Dred Scott book was not to apologize for slavery, and not to note that the decision was morally good or that Justice Taney was a good person, who made a good decision, but simply that under the Constitution we have, an argument can be made that following the words of the Constitution literally, and further noting the political sentiment of the times and the appointments made at the time to the bench, Dred Scott was decided correctly. There was no moralization to the decision.

Pushing forward to the present, the Constitution is being interpreted by judges. These judges are appointed by men who are no less fallible than our founding fathers, if not more so. We all know that the judges appointed by our politicians are those who are deemed to hold the same political and constitutional views as those we elect. Following this logic and keeping morality out of it, if we elect those who find nothing wrong with torture and they, in turn, appoint judges with similar views, then why are we surprised?

Prof. Graber is not advocating torture. He is not apologizing for John Yoo. Anyone who reads the post carefully will note that the point is clearly made that torture and the John Yoo memos are reprehensible. Anyone who reads the posts will further note that Prof. Graber laments that recent court decisions have leaned towards the administration. I note that the disgraceful lilnked Brad DeLong article that misquotes the original posting, resulting in many commenters running with the misquote, which was clearly deliberate. Among other items, Mr. DeLong quoted Prof. Graber as stating “The constitutional support for Yoo’s position is gaining strength”, as if he were approving this. In fact, if you read the post, Prof. Graber stated, “Alas, the constitutional support for Yoo’s position is gaining strength”, clearly showing disapproval of the Yoo memos, and going on to note that if you, the majority, wish to have your views properly reflected in constitutional decisions, you better get off your butts and vote your candidates in instead of sitting things out and letting folks like the present administration run the show.

The message in Prof. Graber’s posts is that you get what you pay for. When Dred Scott was decided we got the decision that was paid for when the Constitution was written. When the Yoo memos were written, we got what we paid for by voting these idiots in – twice.

The message in this comment is read the posts and think about them before joining the braying crowd who just want to criticize, and who have clearly not either read or understood what they are criticizing.
 

methinks the lady doth protest too loudly...
 

The point you have all missed is that if you have a Constitution and that Constitution is either a.) to be interpreted literally as the words read, as many who call themselves the so-called “originalists” advocate and b.) is to be interpreted by judges appointed by politicians who clearly have political motives behind those whom they appoint, then you get what you pay for.

The problem with Taney in Dred Scott was NOT that he interpreted the actual words of the Constitution literally. In fact, of course, the Constitution contains no words of any kind which determine whether blacks can be citizens; whether citizenship should be seen as dual (one state, one federal); or whether Congress could ban slavery in the Territories.

The criticism of Taney, therefore, is that he applied a pernicious and one-sided view of history and law to reach conclusions which he had pre-determined in advance. Much like John Yoo (and that's a charitable view of what Yoo did).

I don't agree with Prof. Graber's book on the Dred Scott case because, in order to justify Taney, he had to accept Taney's world view. That certainly was one view of the world, and a fairly common one, but it wasn't the only one, nor was it the best (in the sense of most accurate, most moral, most republican, or pretty much any other standard). Nor did I agree with his conclusions about Lincoln's election.

That judges will interpret the Constitution in accord with the political preferences of those who appointed them is certainly true up to a point. Prof. Tamanaha has made some good arguments here that most judges try to avoid this, and that there are good reasons to discourage it.

In any case, the fact that judges do this doesn't make their conclusions right. Nor does it mean that we can't judge their conclusions and find them wanting.

The message in Prof. Graber’s posts is that you get what you pay for. When Dred Scott was decided we got the decision that was paid for when the Constitution was written. When the Yoo memos were written, we got what we paid for by voting these idiots in – twice.

There's no doubt that the collective, majority "we" voted for Bush (once, though, not twice). But there are limits to that, including the fact that Bush persistently denied that he was torturing people. This makes it difficult to argue that votes in his favor ratified the decision he denied he took.

Lastly, there is considerable language in the first post which I would describe as somewhat loose. For example, the assertion that Yoo's "claims are constitutionally plausible or as plausible as most of what I read when I read legal materials." I question this on two grounds: substantively (like Dred Scott), and procedurally (in the sense that memos weren't supposed to be advocacy pieces like a law review article, but neutral evaluations of the then-existing law).

As another example, he asserted that Yoo wasn't part of a conspiracy in the non-legal sense of that word. Putting aside why that would be the relevant sense in a discussion over whether Yoo should be convicted of a crime (which was the actual context of his comment), this simply gets us back to the issue of secrecy which I discussed above.

Prof. Graber is not advocating torture. He is not apologizing for John Yoo. Anyone who reads the post carefully will note that the point is clearly made that torture and the John Yoo memos are reprehensible.

I believe this is true. I never doubted it, actually. But I think the reaction to his posts indicates that he perhaps didn't make these points as strongly or as well as he might have.
 

"Among other items, it is clear that the Constitution is a political document."

Correction:

The Constitution was apolitical document until it was ratified, at which point it became not only law, but the law of the land.

Politicians and factions may make of the Constutiton a fooball, but that doesn't actually transform the Constitution into being a football.
 

"The Constitution was apolitical document until it was ratified, at which point it became not only law, but the law of the land."
Moses and Aron again.
Here's a lesson in barbarism and chaos north of the border.
 

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