Posted Monday, April 14, 2008, at 4:13 PM
Deb, I'm puzzled by your argument that John Yoo's OLC memos are somehow inconsistent with prevailing academic standards. You write that it is "painful to accept that one of the top law schools in thecountry embraces the idea that one of its professors could teachstudents a course in Introduction to Constitutional Law while advancinga view of the Constitution that is simply without support in text,history, logic, or life."
But isn't this true for lots of law schools, and lots of law professors? As I see it, what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read in law reviews. Most legal analysis on "hot button" con law issues found in law reviews is blatantly result-oriented. The entire idea is to come up with a clever argument for why the law is what the author wants the law to be. If the argument had support in traditional sources, then there would be no need to write an article on it. (To be clear, I'm not defending this practice: But that does seem to be quite common.) Yoo's memos were similar; they read like the work of a professor who has picked the result and is trying to fit the law to it without much succeess.
From that perspective, what makes Yoo's work so deserving of condemnation is that it settles for prevailing standards of academic legal scholarship instead of real, honest, serious doctrinal analysis. Yoo should have known better: OLC is no place to act like a law professor.