Blame Berkeley

Phillip Carter — Mon, 14 Apr 2008 17:31:00 GMT

With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think Edley's position on John Yoo gets it exactly wrong—and epitomizes why people deride the "Ivory Tower" as insulated from reality.

Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the consequences of their counsel. I also think that law schools ought to model behavior for their students and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous policy, to say nothing of the suffering of those on the receiving end of Yoo's ideas.

And I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong—or when their counsel produces terrible outcomes. As my colleague Deborah Pearlstein points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines. I don't think we should accept it in the law, either—not in practice and not in law school, either. Academic freedom should not be a dodge for personal or professional responsibility.

Academic Freedom and Yoo

Deborah N. Pearlstein — Sat, 12 Apr 2008 19:49:00 GMT

I agree with Marty that the questions raised about Yoo's position at Berkeley are complex. I do not hesitate to hold Yoo ethically and morally culpable for what he did as a government lawyer. I am skeptical but I suppose open to specific persuasion that there is a clear case under existing law for his criminal culpability as well. Every employer has its standards for measuring its employees against these matters. And while I suspect Berkeley was mistaken to take him back for a variety of reasons, it seems to me inesapably the employer's decision about whether Yoo's behavior in these regards violated the standards they have.

What I find perhaps most troubling for a deep believer in academic freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly wrong under the law.

I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology. Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false? Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World?

Law, of course, is not science—as much as it might pain some of us to admit. It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality. But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life. Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it. Would I pay for my kid to attend this law school? Not in a million years.

Convictions : Berkeley

Blame Berkeley

Academic Freedom and Yoo