John Yoo has not been convicted of any crime. That Scott Horton believes he may have committed one is interesting, but rather obviously has no bearing on whether he should be fired. If John Yoo is actually charged with a crime by someone other than a blogger and if he is then convicted of a crime, there may indeed be a question about his continued eligibility to serve as a law professor at Berkeley. That has not happened.
 

Anyone else believe as I do that Dean Edley doesn't want to know anymore about what Mr. Yoo did or did not do?

Surely, there have been far lesser accusations against students at Boalt that have been investigated? Cheating, hate crimes, violence..?

Surely accusations of war crimes necessitate an inquiry by the university? Are the professors to be held to lesser standards and expectations than the students?

I don't ask that Mr. Yoo be fired, found guilty or found innocent. I ask that the university take the accusations against him seriously and investigate. Even if they find there is insufficient documentation, that is far better than doing nothing.

Both those that feel Mr. Yoo is being railroaded and those that are protecting academic freedom point to the same issue: Mr. Yoo has not been found guilty of anything.

But as with students, surely the university does not need a criminal conviction to investigate serious accusations of unlawful behavior?
 

Read the last paragraph again, Mr. Leiter.
 

This comment has been removed by the author.
 

Brian Leiter thinks it is "obviously" so that credible evidence of a crime (we can assume for the sake of argument Horton's sources provide that) has "no bearing" on whether he should be fired though conviction "may" ... see Glenn Greenwald today on how credible THAT is (with Jack Balkin's post referenced).

I find this pretty thin gruel and voiced in a snarky fashion to boot. Charming. The reference to Nuremberg leads me to recommend a book by a judge (Robert Jackson's model led him to choose law as a career) and one time reporter of the events there ... "The Nuremburg Legacy" by Robert Ehrenfreund.

A speech that references the made points can also be found online. The lessons still must be taught, obviously. [I say this separate from Leiter's remarks, but not totally.]
 

Norbert Ehrenfreund
 

If John Yoo is actually charged with a crime by someone other than a blogger and if he is then convicted of a crime, there may indeed be a question about his continued eligibility to serve as a law professor at Berkeley. That has not happened.

You're mis-stating the relevant standard. Nothing in the academic standards (see the link I provided in the comments to Prof. Lederman's post #6) requires conviction of a crime. They merely list conviction as one example of conduct meriting discharge.

Scott Horton, like other commentors here, has it right: Berkeley owes its students, its faculty, and the state of California the obligation to investigate.
 

Mr. Field, is it really your position that the University of California at Berkeley should enter the business of investigating possible criminality by a member of its faculty when no other state agent or agency ordinarily charged with such matters has made a finding of criminal conduct, or even a finding sufficient for an indictment for criminal conduct? I am inclined to think that universities in general are not well-equipped for this kind of endeavor, and that the consequences of inviting them to enter the business of investigating faculty members for possible criminality, when there has been neither conviction nor even indictment, will be extremely and damaging to the integrity of the enterprise for which they are well-equipped, namely, research and teaching.
 

I'm very happy to see Scott Horton posting at Balkinization, and all of us who will miss his No Comment blog hope to see him here often.

Horton hits the "adviser" part right on. What does Edley think the lawyers in the "justice trial" at Nuremberg were convicted for? Assuming that Edley has ever thought about that, which I doubt.

As for Brian Leiter, who revels in his tenured-leftist position, I can certainly understand his instinct for self-preservation in this case.

But it's simply risible to suggest that a university cannot revoke tenure of a law professor short of criminal conviction -- particularly given the heavily politicized nature of the case.

Leiter is surely smart enough to see that -- his political statements show that he has no illusions about the American state, whether a Republican or a Democrat is in the White House -- hence my inference of self-interest. If Leiter has an intellectually more coherent case to make, I would be happy to see it.

As it is, Leiter and Bart DePalma seem to be on the same page.
 

No one took the position that a tenured profesor, of law or any other discipline, can not be fired short of criminal conviction. But the only allegation bearing on Yoo's fitness is alleged criminal conduct, of which he has not been convicted, or even indicted.

I think the consequences for the academy of inviting schools to set up committees to investigate alleged criminality of faculty members would be grave indeed, but they certainly pose no risk to me, since my political views insure that I will never be invited to advise either wing of the ruling-class party in the U.S., and so would never be anywhere in the balllpark where Mr. Yoo now finds himself.
 

i agree with mr. leiter that universities should not be placed in a position to have to investigate allegations of criminality. that is the province of prosecutors. i would note, however, that just about every institution of higher learning that i am aware of has an honor code of some sort. i would imagine that boalt has one. i would therefore offer the proposition that boalt has the obligation to determine if john yoo's actions have violated the school honor code, and therefore stripped him of the right to teach at the institution.
 

Well, I for one am glad that you haven’t taken this whole blogging and health repercussions thing to heart…

A friend of mine point out that the issue with Yoo issue reminded him of the criminal prosecution happening right now in the SDNY related to tax shelter advice. Stein v. U.S., 05-888. In that case, at least one of the lawyers, a former Brown & Wood attorney named R.J. Ruble, is being prosecuted essentially because he gave advice that - according to the Government - was intended to be used by his clients to inappropriately defend themselves from tax penalties. As to these charges at least, there is no argument that Ruble actually prepared fraudulent returns or provided anything fraudulent directly to the Government but, under the DOJ theory, Ruble is culpable for giving the advice that allowed the fraudulent filings to take place.
Sound familiar?

There are actual victims who have suffered torture based on Yoo’s memos…. Unfortunately some are dead… I have two clients at Guantanamo who are the victims of torture from these criminals. This is not theoretical or hypothetical. I commented yesterday on the fact that while we wait for the criminal proceedings… which cannot seriously take place with the current administration and DOJ… that someone should be going after his license (and the licenses of others in the administration). (One person responded thinking that I was suggesting that people who were not lawyers cannot teach at law schools… that was not my point…. My point is that people who have been barred from practicing law surely cannot teach in a law school.) I still believe that being a lawyer is an honor and it should not be an honor bestowed upon the likes of Yoo.
So yes, I take the position that a professor can be fired short of criminal conviction... of course this must be the case.... you just cannot have someone teaching law that has been stripped of the right to hold his or her license. so we must go after the license... as a first step.
 

Universities investigate the actions of students all the time and have long-existing apparatus to do so.

I believe that Boalt has not only has the capability to inquire into Mr. Yoo's behavior, but quite a bit of existing documentation on the procedures for doing so.
 

Brian, you're acknowleding that criminal conviction or indictment is not required to investigate a tenured professor, but then saying Yoo can't be investigated because he hasn't been convicted or indicted.
 

But the only allegation bearing on Yoo's fitness is alleged criminal conduct, of which he has not been convicted, or even indicted.

That is simply untrue.

There's a 60-comment thread downblog that goes into some detail about whether a lawyer who provides such flagrantly, intentionally shoddy advice should be teaching law students.

I happen to think that Yoo's actions *were* criminal, as I explained there, but that is beside the point.

And, as Seth points out, for the purpose of evaluating its professors' fitness to teach, Berkeley is certainly entitled to come to its own conclusions about the criminality of Yoo's conduct.

Or do we really have to wait for Michael Mukasey's DOJ to work up an indictment? Come now, sir.
 

The comments, I fear, are now getting a bit off track, so this will be my last attempt at a response.

There are a variety of grounds on which a university might convene a committee to investigate a faculty member's fitness, but the only one at issue in Mr. Horton's post (indeed, the only credible one in this instance) is the allegation that the faculty member has committed a crime. I do not think universities should be in the business of investigating allegations of criminal conduct by their faculty: they are ill-equipped for the investigation of crime for a host of obvious reasons, and perhaps especially in the context of the kind of criminal activity alleged here. (I am not aware of committees investigating students for criminal conduct that has not otherwise been prosecuted by the state, but even if some universities do this [they should not!] it is inapposite here since students simply do not have same constitutional and contractual rights as tenured faculty in this regard.)

Anderson is apparently impressed by comments on a different post suggesting other grounds on which Mr. Yoo is not fit to hold his position. I confess to not having looked at those comments until now, but I am less impressed than he is and do not see that the case amounts to anything more than Mr. Yoo should be punished for his bad legal work and his morally odious opinions. Since that is pretty clearly what some people believe, perhaps they should explain how this is compatible with Mr. Yoo's First Amendment rights and the ideal of academic freedom--or they should explain why both should be sacrificed in this case. If they could do so without silly rhetorical flourishes such as 'come now,' it might even illuminate some issues.

A different scenario, suggested above, is one in which Mr. Yoo is disbarred because of his work. That probably could and should trigger a university disciplinary mechanism, though termination of employment is not a likely remedy even then, but that is a harder question depending on the findings of the bar committee that undertakes the investigation resulting in disbarment.
 

Mr. Field, is it really your position that the University of California at Berkeley should enter the business of investigating possible criminality by a member of its faculty when no other state agent or agency ordinarily charged with such matters has made a finding of criminal conduct, or even a finding sufficient for an indictment for criminal conduct?

The short answer is yes.

The longer answer is that you're continuing to phrase the issue too narrowly:

1. Yoo's memos do not meet any reasonable test for honest scholarship. They are Potemkin village briefs -- they look legal and they talk legal, but they're merely a facade of law, not the real thing. Berkeley can certainly evaluate the legal quality of Yoo's work.

2. The investigation need not determine an actual criminal conviction. While I believe there is good evidence that Yoo did commit crimes, that can be decided in court. But the standards don't require an actual conviction and neither should Berkeley. If OJ Simpson were on the faculty, I assume no one would have any moral difficulty firing him. Why does John Yoo deserve any better?

The case with respect to lawyers is even stronger. Lawyers can commit numerous ethical violations which don't rise to the level of crimes. I see no reason to believe that law professors should be held to a lesser standard.

Some of the arguments here just astound me. The same people who've been demanding a halt to the torture regime all of a sudden turn into Hamlet when the prospect appears of taking one small step for mankind.
 

Whether Yoo should be fired and whether he is fit to be a law professor are different questions.
 

Just to clarify a few points relating to Brian Leiter's comments. (First I should say that I recently read Nietzsche and Morality, and if the commentor is the same Brian Leiter as the author, allow me to salute you on a wonderful book).

I want to stress that the decisions that Dean Edley took are the correct ones, and I would have criticized him had he done otherwise. My criticism goes to the insufficient appreciation of the questions of legal ethics and criminal law raised by Yoo's dealings on the torture question in particular.

The standard for dismissal in the University of California system is not limited to conviction of a crime, and the practice has not been so limited. It would be absurd to do so. With respect to law school faculty, conduct which justifies severe disciplinary action by a bar association has also been taken as a basis for action, as well as other conduct which puts in doubt the instructor's ability to discharge his duties in a professional way. This is important for several reasons. If Yoo avoids a prosecution on the basis of a purely technical (nonsubstantive) defense, for instance, the University would have cause to act if it felt he was guilty of a serious crime notwithstanding the fact that he was not convicted.

But I think that Brian is correct that the University should not be rushing into its own investigation at this point.

A review of Yoo's compliance with his ethical obligations by an oversight authority has been underway for several months. I have interviewed a number of persons who have been interviewed by the oversight authority. I am also aware that Yoo's public comments are being systematically collected by the oversight authority. This is an appropriate way to proceed. I have no clear sense of the accusations which form the basis for the pending investigation, although I surmise from questions asked that it includes the competence of the advice provided, Yoo's compliance with internal rules and procedures of the Justice Department and some specific issues about his dealings with persons outside of Justice. I am concerned that the Justice Department under its current leadership is conflicted and not capable of conducting a sufficiently objective investigation into Yoo's conduct, which complicates the situation.

I believe it would be appropriate for the University to await the conclusion of the pending matter before taking further action. I also believe it will not likely be possible to fully develop the underlying facts until a number of documents are made public, and persons who were involved in their preparation (including John Yoo) are freed to fully discuss them. It's reasonable to assume that regardless of the outcome of the fall election, the facts will be better known sometime in 2009.

So I would not exclude the possibility of a University review of the matter at some later point, after other interested bodies have acted.

In the meantime, I think we will probably learn a little more every few weeks. In fact the hearings now set for May 6 in the House Judiciary Committee are intriguing and that they will push our understanding of the memos forward, whether John Yoo appears and testifies or not.

It's important in dealing with a tenured academic that we be willing to take the time necessary to develop the facts and get as close to the truth as possible. I'm extremely skeptical that Yoo will be vindicated, but I still don't rule this out entirely.

One other point really deserves to be noted. Yoo has become a high profile figure on this issue because of his decision to write and speak about it. Other lawyers who were involved and played more significant roles than Yoo have chosen to keep in the shadows. These tactical decisions should not affect our judgment about culpability. I am quite clear now that John Yoo was not the most important Bush Administration lawyer pushing the torture policy forward; he was not even the second most important lawyer. In the next three weeks I believe we will learn a lot that will allow us to better assess exactly what role he played.
 

Scott, I agree with everything you have written above except that a university has a special duty to its students. And therefore your statement:

"I believe it would be appropriate for the University to await the conclusion of the pending matter before taking further action."

Cannot and should not be the correct course of action.
 

My thanks to Mr. Field for clarifying his view. I do not believe "any reasonable test for honest scholarship" is a meaningful standard compatible with academic freedom and the First Amendment rights of state university professors. Any statement of the test--apart from "I know it when I see it" which is no standard at all--will, I am fairly confident, reveal it to be nothing more than a content-based test for the acceptability of someone's scholarship or professional work.

I appreciate Mr. Horton's clarification of his views, with which I am in full agreement. The situation with respect to Mr. Yoo, and what steps his employer ought to take, may change significantly in the wake of the official proceedings to which Mr. Horton alludes. (I am also the co-editor of and contributor to "Nietzsche and Morality," and so am grateful for your generous comments.)
 

I do not believe "any reasonable test for honest scholarship" is a meaningful standard compatible with academic freedom and the First Amendment rights of state university professors.

It's not my test, it's Berkeley's test. I quoted it in part yesterday; here's the full relevant passage:

Ethical Principles.

“Professors, guided by a deep conviction of the worth and dignity
of the advancement of knowledge, recognize the special responsibilities placed upon
them. Their primary responsibility to their subject is to seek and to state the truth as
they see it. To this end professors devote their energies to developing and improving
their scholarly competence. They accept the obligation to exercise critical
self-discipline and judgment in using, extending, and transmitting knowledge. They
practice intellectual honesty. Although professors may follow subsidiary interests,
these interests must never seriously hamper or compromise their freedom of inquiry.”
(AAUP Statement, 1966; Revised, 1987)

Types of unacceptable conduct:

Violation of canons of intellectual honesty, such as research misconduct...."

My reference to "honest scholarship" was a paraphrase of "intellectual honesty". I assume that Berkeley has some standard by pursuant to which it evaluates alleged violations of "intellectual honesty", but as I said, I don't believe Yoo could meet any reasonable standard.

Let me be clear: I don't want Berkeley to judge Yoo by any standard other than its existing ones. Nor do I believe there should be some rush to judgment. But the evidence now known clearly warrants an investigation, and Berkeley would be doing the academic community a real disservice if it failed to conduct one.
 

Contrary to what some suggested universities do investigate allegations of improper or unbecoming behavior and violations of their code of ethics all the time. I'm personally familiar with a case of a sitting dean on one of the UC campuses in Southern California where I was employed some time ago. A departmental secretary charged inappropriate sexual advances and university investigated, quite aggressively so I may add.

(apparently sexual peccadillos are considered far more dangerous in today's moral climate than enabling torture).

There was no involvement of outside authorities at any point.

The situation here is different however. For starters the UC matter I witnessed was internal, there was a specific complain to handle while relatives of those who died or were mistreated as a result of his memos are in no position to complain to Berkeley, the memos were issued in his capacity as a DoJ attorney not UC Berkeley law professor although he was on their faculty at the time.

Dean and others are right - let the outside authorities handle the case first. If we are to trust the rumors somebody is actually investigating as unlikely that seems in this administration.

I'll just add that those outside authorities should positively absolutely include local Bar Associations, hard to think of a more appropriate place to lodge a complain against a lawyer by an aggrieved party.

So could lawyers representing this Yoo victim for example get their act together please?

In fact, given the fact that basic ethical values of this society have been dangerously compromised by him and Bybee it would appear ANYBODY has a standing here.
 

". . . . (One person responded thinking that I was suggesting that people who were not lawyers cannot teach at law schools… that was not my point…. My point is that people who have been barred from practicing law surely cannot teach in a law school.) . . . ."

If you mean me:

I was simply pointing to the fact that in order to be a librarian in an ABA-accredited law school one must be a licensed lawyer. Being a librarian in such a library is a lesser stand to meet than being a licensed lawyer who is also a professor in such a law school. Therefore, lacking a law license being bar to being a librarian in such a school, then certainly disbarment would eliminate one of the first requirements of his being a professor at such a law school to being with.

In other words: Yoo should be disbarred. And if he were, he would immediately cease being qualified to be a law professor at any ABA-accredited law school. That would effectively end his employ at Berkeley/Boalt regardless whether Berkeley/Boalt itself investigated his conduct.
 

My thanks to Mr. Field for clarifying his view. I do not believe "any reasonable test for honest scholarship" is a meaningful standard compatible with academic freedom and the First Amendment rights of state university professors.

I have to push back rather strongly on this. A sitting university professor certainly has broad (though not unlimited, see the Pickering case) free speech rights when speaking on matters of public concern (see Connick v. Myers).

But a lawyer acting in that capacity and giving advice to his or her client has NO First Amendment right whatsoever to deliberately give inaccurate legal advice. Were it otherwise, every state bar ethics code in the country would be unconstitutional, and nobody thinks that is correct. (Cf. Gentile v. State Bar of Nevada.)

Yoo, acting as counsel for the US government, had no first amendment right whatsoever to deliberately misinterpret the law, if that is in fact what he did. And since that isn't First Amendment protected activity, it doesn't become First Amendment protected activity just because he did it while on a leave of absence from his professorship at Boalt Hall (even if we assume a professor on a leave of absence is protected by the Pickering free speech right against employer discipline in the first place).

This issue has nothing whatsoever to do with the First Amendment, and Mr. Leiter should not imply that it does.
 

On a slightly different note... it seems that the legal community has not found it hard to marginalize Gonzales as we wait for the next steps against him... The NY Times today is reporting that no one will hire him.
 

"Yoo should be disbarred. And if he were, he would immediately cease being qualified to be a law professor at any ABA-accredited law school."

Since a law license is a privilege provided by the state, I reckon that sometimes this might be a threat to academic freedom.

Imagine in the days of the red scare or if it took committing a crime of moral turpitude, such as homosexual acts or perhaps illegal drug use (with medicinal/religious use not protected).

As Sandy Levinson notes in another thread, sometimes a law breaker is welcome. I think this adds to the suggestion that the law school is not somehow tied to criminal acts, as if some other canon of ethics etc. cannot be applied.

Still, targeting his license is a good move too. Probably be deemed a threat to his academic freedom by some, but I'm game.
 

"Yoo should be disbarred. And if he were, he would immediately cease being qualified to be a law professor at any ABA-accredited law school."

Since a law license is a privilege provided by the state, I reckon that sometimes this might be a threat to academic freedom.

Imagine in the days of the red scare or if it took committing a crime of moral turpitude, such as homosexual acts or perhaps illegal drug use (with medicinal/religious use not protected).

As Sandy Levinson notes in another thread, sometimes a law breaker is welcome. I think this adds to the suggestion that the law school is not somehow tied to criminal acts, as if some other canon of ethics etc. cannot be applied.

Still, targeting his license is a good move too. Probably be deemed a threat to his academic freedom by some, but I'm game.

# posted by Joe : 8:41 AM

Agreed, as a whole. But who's academice freedom is infringed and violated? A person who, not having a law license, is not qulified to work in the law library of an ABA-accredited law school? And since when is it a right to teach, rather than a privilege?

And in this case, we aren't talking about going after his license for political reasons; it is expresly because he violated the law, to the degree of subverting the Constitution itself.

Another avenue of legitimate pressure on Boalt: the parents of the students entrusted to Boalt's care. But I'm all for the "sense of the legal community" comig to govern the case: revoke his credentials by open and above-board due process, and marginalize him back into the sewer which vomited him out to begin with as result of the sewer itself having higher moral standards.
 

On a slightly different note... it seems that the legal community has not found it hard to marginalize Gonzales as we wait for the next steps against him... The NY Times today is reporting that no one will hire him.

# posted by The Law Office of H. Candace Gorman : 4:27 AM

Apparently he hasn't thought yet to apply for a job at one or another prestigious law school.
 

When I was at Boalt, there was a sexual assault scandal involving the Dean, John Dwyer. A female student alleged that after a night of heavy drinking, Dwyer had gone back to the woman's apartment and sexually molested her while she was less-than-fully-conscious.

The facts were a murky case of he-said, she-said. Dwyer denied the substance of the allegations, but resigned nonetheless. Of course, had he not resigned, a lynch mob likely would have taken care of the matter for him.

I'd be interested to hear anyone distinguish this case. If Dwyer hadn't resigned, what should the school have done?
 

"I'll just add that those outside authorities should positively absolutely include local Bar Associations, hard to think of a more appropriate place to lodge a complain against a lawyer by an aggrieved party.

"So could lawyers representing this Yoo victim for example get their act together please?

"# posted by wg : 12:04 AM"

It was done to Clinton for allegedly lying about a sexual pecadillo, even though no one died as result of that.

And it was done by parties who were not directly affected (unless they were jealous that he had a heterosexual affair with a consenting adult, instead of a "family values" Republican homosexual affair with a non-majority age infant).
 

At 1:27 pm, jnagarya said, "Apparently he hasn't thought yet to apply for a job at one or another prestigious law school." The New York Times story, "In Job Search, Gonzales Sees No Takers," referenced by another commenter, notes, "While he has not taken any full-time job, friends said he was probably receiving as much income from speaking engagements as he did as attorney general with its annual salary of more than $191,000. Places like Washington University in St. Louis, Ohio State University and the University of Florida have paid him about $30,000 plus expenses for appearances, and the business groups pay a bit more, said sources at the schools and elsewhere who are familiar with the arrangements. Pomona College debated inviting him and decided he was not worth the money, the college newspaper reported."

This whole thing really makes me despise the profession I am being educated to enter. Congratulations, lawyers. You've annihilated what little faith I had left.
 

Agreed, as a whole. [to my comments on targeting his law license]. But who's academice freedom is infringed and violated?

I gave an example of a Red Scare situation or perhaps some "immoral" act that is basically an unjust law.

An academic freedom violation in connection with one is not hard to imagine, the latter w a bit more creativity, too, esp. given the tendency of pretextual targeting.

Also, I guess, we can look toward the institution's freedom to choose who could teach too with convictions for some dubious law etc. being a dubious bar as Sandy Levinson noted.

A person who, not having a law license, is not qulified to work in the law library of an ABA-accredited law school? And since when is it a right to teach, rather than a privilege?

I'm sorry if I said or implied I thought there is a "right" to teach per se, but academic freedom would be an issue either way.

And in this case, we aren't talking about going after his license for political reasons

sure, that's why I said I'm game, but noted that at times some blanket rule involving stripping tenure because of the state removing the law license might have some troubling applications.
 

Yoo swore this oath in order to teach in California:

"I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter."

(I signed the same oath before teaching at community college - it's required of all teachers in the state).

Is this oath meaningless or pro forma?

What measure does the University possess to hold a teacher to account for violating this oath?

First, who determines if his memo undermines, or fails to support and defend, the Constitution? Then, who has the power in the University system to say "he broke his oath so his teaching contract is invalid"?

If Yoo can undermine the constitution by his legal advice without suffering any consequence for breaking the oath he signed as part of his teaching contract, then the whole swearing to support and defend business is a stupid charade, and none of us teachers should bother with it. (but we knew that already. However, if we want our jobs, we have to sign).
 

The oaths taken for both federal and state positions require, inter alia, support, etc, for the US Constitution. In many of the non-Yoo posts on this Blog there have been addressed what the Constitution means or requires and who makes the determinations. The Constitution's text is not clear in many respects. This accounts for the ongoing discussions of originalism versus living constitutionalism. Is SCOTUS the final arbitor? This is not clear from the text of the Constitution. Thus, the Yoo discussion will continue but perhaps not be resolved constitutionally.

However, there is the matter of peer review and public opinion, which do not require proof beyond a reasonable doubt or by a preponderance of the evidence or any other well-defined standard. The discussion on Yoo is helpful for both peer review and public opinion.

Public opinion provided the George W. Bush Administration strong support for the Iraq invasion. Over time, evidence emerged indicating that the Administration had not (to put it mildly) been forthright about the bases for the invasion. Still, it took a fairly long time for public opinion to shift. (To this day, many still believe there was a connection between 9/11 and Saddam's Iraq.) Because of the strong public support for the Iraq invasion, Yoo's memos (which had not been released) as revealed in the media did not tend to change the public's views on Iraq until evidence started to emerge on Abu Graib and Guantanamo. As more on Yoo's memos emerge, the greater the public opinion on Yoo is building. Hopefully this crescendo will not be limited to Yoo.

For those commenters who demand proof of Yoo's guilt (for conspiracy or otherwise), I ask, where were you when the Bush Administration made the case for invading Iraq? Where was the proof, the evidence? Public opinion is not a legal forum. It can be manipulated, as was the case for the Iraq invasion. But the public opinion on Yoo is to a great extent based upon his own words and those of the Bush Administration. This is how I. F. Stone was so successful as a journalist: focusing on the government's own words.
 

Shag from Brookline --

". . . there is the matter of peer review and public opinion, which do not require proof beyond a reasonable doubt or by a preponderance of the evidence or any other well-defined standard. The discussion on Yoo is helpful for both peer review and public opinion."

Certainly. And "sense of the legal community" is part of that. And more directly as concerns Boalt/Berkeley/Edley: "sense of the parents" who have put their kids into the care of Edley/Boalt. I wonder if any of those have raised their voices.

"Public opinion provided the George W. Bush Administration strong support for the Iraq invasion."

That, and the Bushit criminal enterprise lies "inducing" that opinion into being.

"Over time, evidence emerged indicating that the Administration had not (to put it mildly) been forthright about the bases for the invasion. Still, it took a fairly long time for public opinion to shift. (To this day, many still believe there was a connection between 9/11 and Saddam's Iraq.) . . . ."

Thanks in large part to a no-critical sycophantic "mainstream" media that were at least as gung-ho as AWOL Bushit and his hungry-for-war chickenhawks.

"Because of the strong public support for the Iraq invasion, Yoo's memos (which had not been released) as revealed in the media did not tend to change the public's views on Iraq until evidence started to emerge on Abu Graib and Guantanamo."

And the pace of the opinion growing based on and against those had been near-stymied by that same "mainstream" media.

"As more on Yoo's memos emerge, the greater the public opinion on Yoo is building. Hopefully this crescendo will not be limited to Yoo."

Exactly. And we did see Abu Graib and Gauntanamo motivate such as ABA, AMA, APS, and APA to vote on elements of the issue, such as whether psychiatrists (no) or psychologists (YES/no) should participate in the torturings.

"For those commenters who demand proof of Yoo's guilt (for conspiracy or otherwise), I ask, where were you when the Bush Administration made the case for invading Iraq?"

It's my position that one does not "make a case" unless (1) one does so with actual evidence, and (2) wins on the merits and evidence.

Therefore, that Bushit failed to make his case (I knew he was lying from the outset; I saw the absolute lack of evidence for which the lying was intended substitute). More simply put: if a person presents a case to a jury, and the person rejects that persons presentation/case, then that person did not "make his case".

"Where was the proof, the evidence?"

Only the lies, and absolutely nothing else.

"Public opinion is not a legal forum. It can be manipulated, as was the case for the Iraq invasion. But the public opinion on Yoo is to a great extent based upon his own words and those of the Bush Administration. This is how I. F. Stone was so successful as a journalist: focusing on the government's own words."

Exactly. The same standard of proof doesn't apply: and the public is more apt to make an enforceable moral judgment than a legal judgment which nonetheless gets enforced.
 

Universities do investigate things that happen to be crimes, e.g. academic honesty violates rights to intellectual property and sexual harassment can be a crime, depending on the facts of the case. So I wouldn't go so far as to say that universities never investigate crimes. Nevertheless, these crimes aren't being investigated as crimes. It's not their criminality that leads to the investigation. It's the fact that it's a violation of an explicit university policy. That doesn't seem to be the case with anything claimed of John Yoo.
 

Law Professor John Yoo serves on the Distinguished Scholars Advisory Panel at the Constitution Center in Philadelphia.

The Geneva Convention is an international treaty to which the United States is a party, and Article VI of the U.S. Constitution, called the Supremacy Clause, says that “all treaties made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.”

Mr. Yoo contradicted Article VI when he wrote: "Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion."

Yoo wrote what he did in order to shield the CIA and members of the administration from prosecution under the U.S. War Crimes Act. (l8 U.S.C. 2441)

It defines war crimes as "grave breaches of the Geneva Conventions”. It further says: “Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

On April 9th of 2008, the National Lawyers Guild called on the University of California at Berkeley Law School to dismiss Prof. John Yoo from the faculty, saying: "John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the War Crimes Act."

If anyone died from torture at the hands of the CIA, then Mr. Yoo should be subject to the ultimate penalty provided in the War Crimes Act.


Mr. Yoo has also given his legal support to the warrant-less National Security Agency surveillance program for spying on Americans, which is in clear violation of the Foreign Intelligence Surveillance Act. (FISA)

Ten days after the terrorist attacks on 9/11/01, Yoo drafted a memo to the White House entitled "Authority for Use of Military Force to Combat Terrorist Activities within the United States”, saying:

“Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” and President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” That is a recipe for Martial Law.

If you agree that the National Constitution Center should end its affiliation with Mr. John Yoo, please contact Mr. Joseph M. Torsella, President and CEO at ceo@constitutioncenter.org, (215) 409-6600, or contact your Congressperson. The action you take will support The Constitution and the rule of law. Thank you.
 

Who says John Yoo is a member of any Bar?

He is not a member of either the California Bar or the D.C. Bar, two jurisdictions in which he works/worked.

Of course, you don't need to be a member of the Bar to teach law in California or to work for a federal agency in D.C.

So he's not subject to any Bar-based professional ethics code, right? Because he was never, legally speaking, a lawyer.
 

For that matter, Dean Edley is currently "suspended" from the D.C. Bar for "non-payment of dues", and little wonder, he last worked there under Clinton.

(Nonetheless, technically speaking, a suspension from one Bar triggers suspensions in other bars. He's not a California Bar member, but assuming he's a member of the Massachusetts Bar back from when he was at Harvard...)

Anyway, the whole point of this is this: Legal academics always occupy this shadowy region of "practicing" law without a license. I guess as long as they don't appear before a court or sign a brief, they can continue providing legal advice and write as many 81-page legal memos as they feel like it.
 

What's the difference between a law school graduate and a lawyer?

Answer: The latter passed an exam AFTER law school.

But does merely passing a bar exam make a law school graduate a lawyer? What if s/he doesn't practice law, at least for some significant period of time? Should referring to one's self as a lawyer or an attorney connote some experience in the trenches of actually representing clients, trying to resolve their problems? This is not to denigrate non-practicing lawyers but merely to distinguish them. For example, Tim Russert is a law school graduate and perhaps passed one or two bars (but not in Buffalo). Would it be appropriate to refer to Timmy as a lawyer or an attorney? Perhaps his legal training has prepared him for his "GOTCHA!" cross examinations of political candidates in his role as a pun-dit. (Or might Timmy have the assistance of a "paralegal type" on his staff?)
 

Back when I was a student at Boalt, my professors, including Yoo, always boasted how they did not take any bar exams and never would. It was, they conveyed with barely disguised disdain, just beneath them to sit for a bar exam.

They, including Yoo, always said you couldn't pay them enough to work at a law firm. It was, they conveyed with barely disguised disdain, just beneath them to have to suffer clients.

They, includig Yoo, always said, we're here to "teach you how to think like a lawyer." It was, they conveyed with barely disguised disdain, just risible how we students were clouding our legal analysis with moral judgement.

So, if you look at Yoo's memo, it makes for a brilliant answer to a final exam -- it spots all the issues, it rigorously applies IRAC, it reaches novel conclusions. HH! (that's Boalt speak for "High Honors" or "A"). AmJur! (that's Boalt speak for "American Jurispruence Award" or the highest grade for the class.)

In other words, it's a memo only a law professor (who's never practiced law) could love.

So, to the existential question, what makes a (good) lawyer? Yoo will never know.
 

Who says John Yoo is a member of any Bar?

He is not a member of either the California Bar or the D.C. Bar, two jurisdictions in which he works/worked.

Of course, you don't need to be a member of the Bar to teach law in California or to work for a federal agency in D.C.

So he's not subject to any Bar-based professional ethics code, right? Because he was never, legally speaking, a lawyer.

# posted by phy

I don't know aout CA or DC, but in many states the ABA canon of ethics has been adopted as state law. Thus, though MA doesn't have an organized bar -- one isn't required, as in some states, to belong to a bar association -- one is still subject to the canons as a matter of law.
 

Anyway, the whole point of this is this: Legal academics always occupy this shadowy region of "practicing" law without a license. I guess as long as they don't appear before a court or sign a brief, they can continue providing legal advice and write as many 81-page legal memos as they feel like it.

# posted by phy

Even though in MA one is not required to be a bar member in order to practice law, it remains the fact that in order to be even a librarian in a library in an ABA-accredited law school, one must have a law license.

And even though one need not be a bar member, including of the ABA, the ABA's canon of ethics applies, and one's can still have one's license revoked.

It would strike me as an odd oversight to require a law librarian to have a law license, but not to require a law professor to have such.
 

Bart as Politico-Cultural Cartographer --

"Regardless of what one thinks of the relative merits of each side of our political and cultural divide, that divide does appear to cut pretty neatly between the cities on one hand and the suburbs and rural areas on the other."

Actually it doesn't, as many in exurbia and suburbia are middle-class liberals who vote Democratic. While in the cities there are racist nutjobs who vote Republican.

If only reality were as monotonously simplistic and black-and-white as you presume, eh, Bart?
 

Here in MA the Supreme Judicial Court has promulgated rules of professional responsibility governing attorneys, based to a great extent upon those of the ABA. A licensed attorney in MA need not be a member of a state or local bar association. Nor is there a requirement for continuing legal education in MA.
 

What an interesting world we live in, where the position of our philosophers is that it's perfectly OK to fire John Yoo for buying four ounces of marijuana, but an outrage against all that decent to fire him for committing war crimes (Brian Leiter, as far as I can tell, doesn't even bother to dispute that Yoo probably is guilty of war crimes. Yet he thinks it would be outrageous for Berkeley to even raise the issue of whether having a war criminal on its law school faculty was appropriate).

Just to be clear, I'm not necessarily in favor of firing Yoo. I'm no expert in international law and don't have a firm opinion on whether Yoo is actually a war criminal. I do have a firm opinion on the fact that he played a key role in getting a number of people tortured to death, and that this fact should be given far more attention than the legal academy has been willing to give it to this point.

http://www.rockymountainnews.com/news/2008/apr/16/campos-a-tortured-defense/
 

This comment has been removed by the author.
 

Jeremy, as Scott Horton points out at length, there are certain circumstances in which the roles lawyers play in the commission of war crimes are crimes themselves, and certainly Yoo's actions may well fall into that category (as I said I don't have a firm opinion on whether they do).

John Yoo can be fired if his employer concludes with appropriate due process that he engaged in, for example, sexual harrassment, which isn't even a crime. It's a tort, but of course there's no requirement that Yoo be held liable in a court of law for violating Title VII or IX before his tenure can be revoked.

Maybe Leiter thinks that's outrageous too, but it seems rather strange that this is the case yet the argument can be made with straight face that Berkeley is precluded from even investigating the issue of whether Yoo has committed war crimes, as opposed to say, creating a hostile work environment with his inappropriate comments to female coworkers.
 

Paul, what sense of 'perfectly OK' do you mean? if you mean morally OK, I doubt you're representing Leiter's view accurately. He may well not approve of drug law as it stands. If it means OK in terms of what the law requires and what the standards of hiring in universities amount to, then perhaps you have reflected his view correctly. But keep in mind his argument here. It's not that Yoo should be retained despite possibly committing crimes while a drug offender wouldn't for possibly committing crimes. His argument is that Yoo hasn't committed any crimes and hasn't been arrested. If someone pursues the legal charge, that's another story.

Keep in mind the last two sentences of his first comment:

If John Yoo is actually charged with a crime by someone other than a blogger and if he is then convicted of a crime, there may indeed be a question about his continued eligibility to serve as a law professor at Berkeley. That has not happened.

I imagine he'd say the same thing about someone being found with drugs. If charges are pursued, and a conviction is the result, then the drug crime could put someone's employment in question. The same condition needs to be true of any war crime Yoo might have committed.
 

Your first paragraph is a response to my comment that you must have received by email, because I deleted it within seconds of posting it. I thought about it for a few seconds after posting it and realized that it may not have reflected Leiter's view.

The other two paragraphs relate to what I did retain of that comment (but now appearing after your comment). I think Leiter's view can accomodate those concerns as well, because if there's an official school policy that deals with sexual harassment, even when it's not a crime, then there are grounds for dismissal in such cases. The university's internal process can handle those without appealing to the law. But when it comes to criminal cases, they are dependent on the proper authorities investigating crimes, charging people with them, and holding a trial to see if a conviction is warranted.

So I don't see any inconsistency here in Leiter's view.
 

There are official legal processes to deal with sexual harrassment as well, but the university feels free to conduct its own process of investigation and discipline. The UC system's code of conduct appears to contemplate disciplinary proceedings in situations where somebody has engaged in grossly unacceptable conduct even if they haven't been charged with a crime or other formal legal transgression.

Again, I'm not saying Yoo should necessarily be fired. I am saying that raising the issue is perfectly legitimate, and Leiter's view that those who raise it merely want to punish Yoo for his "ideas" is wrong.
 

I'll see your Yoo and raise you a Bill Ayers and a Bernadette Dhorn.
 

False equivalence, "X". But since you seem to be coming from the right-wing fever swamp that's what I would expect.

Ayers was never convicted of anything. Also, he's an education professor at UIC, not a lawyer.

Dohrn had already served her time (for aggravated battery and bail jumping, according to Wikipedia) before being hired by Northwestern. Her moral fitness to teach law was controversial and evaluated quite thoroughly at the time. It was concluded that she had already paid her debt to society.

Neither of them has committed any crimes while serving on the faculties of their universities, so their cases are entirely distinct from Yoo.
 

Edley had arranged all the furniture for his department. They were all quality furniture for all the students.

bookcases
 

While it's true that Berkeley has a written policy regarding the process for dealing with alleged academic dishonesty, and it's also true that the First Amendment guarantees certain freedoms to Mr. Yoo, I think he'd have to agree that both of these documents are 'quaint', and therefore, under the theory of The Unitary Executive, Dean Edley is free to do as he sees fit, including removing Yoo from his position at the university.
 

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Excellent response. This is quite a long read though. I'd imagine that sifting through this article or even this entire blog would go a lot easier if you were resting on very comfortable and stylish modern furniture, in particular the barcelona chair or the eames lounge chair sold by EMFURN
 

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