An engine of state, not of law.

February 18, 2009 in our thing

31 comments

February 18, 2009 at 8:05 am

kid bitzer

it’s a good line, but it worked better when blackstone said it, since “the state” more clearly meant something distinct from “the law” than i think it does in most people’s minds nowadays. (e.g. the monarchy).

i still can’t decide what i think about yoo’s case so far as his tenure of an academic position goes. sure, the guy should be ostracized, very possibly sent to the hague. but kicking him off the faculty, in the absence of a finding of legal guilt or professional misconduct of some kind, makes me nervous.

the same dithers that delong had. i’ve just still got ’em.

February 18, 2009 at 8:43 am

Anderson

“but kicking him off the faculty, in the absence of a finding of legal guilt or professional misconduct of some kind”

(1) What about incompetence?

(2) Who judges professional misconduct? Do the law faculty have an independent obligation to their students, or should whether a wrongdoer teaches their students depend upon the whims of the Pennsylvania Bar on the other side of the continent?

February 18, 2009 at 8:50 am

dana

They do have an independent obligation, surely. But it’s going to be hard to make the case that what Yoo did was a violation of professional ethics if the profession disagrees.

I am not sure of DeLong’s claim that whether Yoo believed what he was writing is of any particular importance. It just makes him a different kind of shill. (Though it would be interesting if Yoo’s defense had to be that he really did support, in his heart of hearts, sexual assault, psychological torture, and waterboarding.)

February 18, 2009 at 9:05 am

kid bitzer

i really don’t know, anderson, which is part of why i’m dithering. but these are my first reactions:

1) the question of his competence to hold his apptmt is judged in the way that the competence of any other academic apptmt is judged: by his publication record, his teaching evaluations, his letters of reference and recommendation, his academic pedigree, etc. etc.
apparently at some point he was judged competent to be appointed at boalt hall. i’m thinking they probably demand a high level of competence.

2) professional misconduct is something distinct from academic incompetence or even academic misbehavior. the role of a practicing lawyer is different from the role of a law prof, and the standards of performance are different. i don’t think boalt hall is well-suited to judge professional misconduct. it’s an academic body, and the majority of its members have not practiced in some time.

maybe you think boalt hall should make some *other* corporate determination against him. my favorite would be boos and hisses followed by waterboarding. but i am not sure they are the right body for making a judgment of professional, as opposed to professorial, misconduct.

February 18, 2009 at 9:34 am

Colin

I share a lot of the Kid’s worries, partly because I’m trying to think through process: how you would assemble a cte, how the cte would gather evidence on Yoo’s professional activities.

OTOH Brad’s argument has gotten better. It come down to saying that Prof. Yoo was a direct, witting enabler of torture, that his reasoning was so bad and so inconsistent that it falls outside academic or professional protections, and that torture is a matter of the highest ethical salience, especially for a law school.

February 18, 2009 at 10:34 am

Anderson

But it’s going to be hard to make the case that what Yoo did was a violation of professional ethics if the profession disagrees.

The professional is more likely to punt than to disagree.

Re: competence, Boalt didn’t have the torture memos to look at. It’s a two-edged sword. If he believed those memos were quality work, he’s incompetent. If he didn’t, he’s a war criminal. Pick one, Mr. Yoo.

i don’t think boalt hall is well-suited to judge professional misconduct.

This would be an amusing thing for them to admit (cf. Plato, Gorgias), but they are preparing people to enter the legal profession. You get the J.D., you take an exam or two, and poof! you are an attorney. Frankly, the nature of the profession is not such as to discourage a lot of misconduct, so all the more reason to instill it during law school.

Ordinarily of course one would look to the bar, but PA has already indicated its strong disinterest in the question (the memos weren’t written in Pennsylvania after all).

In short, Boalt has all the justification in the world to act, if they care about their students and about their reputation. My own guess is that the subject is fuzzy enough that Yoo would be able to sue, and they don’t want the exposure. Which in itself is a commentary on legal ethics.

February 18, 2009 at 1:12 pm

dana

If he believed those memos were quality work, he’s incompetent.

The problem is that the competence in question here would not be the competence as a scholar or in the classroom.

So frustrating.

February 18, 2009 at 1:17 pm

LizardBreath

How not? If he believed those memos accurately represented the state of the law relating to executive power, he has a weak understanding of that law, and no research skills. That goes to his competence as a scholar and in the classroom.

(The harder question is, given that it’s very unlikely he did believe the memos were an accurate representation of the law, did he commit an ethical violation by writing them. And the only answer I can come up with there is yes, if by ethical we mean ethical, but probably not if by ethical we mean ‘in relation to the relevant PA codes governing legal ethics’. It’s not really a fact pattern that gets squarely addressed by the codes.)

February 18, 2009 at 1:24 pm

dana

Because here’s how I’m seeing the argument going: “Boalt says that I have been incompetent in my extracurricular legal activities. But the bar doesn’t think so, and my work for Boalt has been stellar (I’m assuming this is probably the case). Blah blah blah whiny persecuted conservative.”

I think the ethical “role model” claim is probably the stronger one.

February 18, 2009 at 1:30 pm

Daniel De Groot

“[…] demonstrates that he does not believe what he writes — at least not for any meaning of ‘believe’ that any of us would recognize…”

haha. That reminds me of “2 + 2 != 5, even for really large values of 2”

February 18, 2009 at 1:32 pm

ben

It’s not really a fact pattern that gets squarely addressed by the codes.

Unsurprisingly, given that an advocate’s job is to be an advocate.

February 18, 2009 at 1:41 pm

Anderson

The harder question is, given that it’s very unlikely he did believe the memos were an accurate representation of the law, did he commit an ethical violation by writing them

An attorney has a duty to competently represent the client, and deliberately misadvising the client in order to advance one’s own legal theories is pretty incompetent-sounding. N.b. that this is the flip side of “competence” as a law prof, on which I agree with LB — if the man really thought Youngstown didn’t even have to be distinguished, and couldn’t see the need to at least warn his client that the courts might disagree, then OOF.

Blah blah blah whiny persecuted conservative.”

The argument always already goes like that.

February 18, 2009 at 1:47 pm

kid bitzer

“given that an advocate’s job is to be an advocate.”

yeah, that’s definitely part of the problem with treating this as a matter of professorial incompetence. a practicing lawyer is not a professor, but an advocate for a client. being zealous in your client’s interest means pushing your case to the boundaries of the legal.

another part of the problem here which differentiates it from normal advocacy is a structural one. normally, if you are an advocate for your client, you have prudent reasons *not* to push it too far, because the judge will smack you down if it doesn’t pass the laugh test. that’s why, structurally, it is usually fairly harmless to allow both sides to sail close to the wind. if you don’t mention youngstown, you can damn well bet the opposing counsel will, or the judges will.

here, though, there was no one in the role of opposing counsel, and no one in the role of judge. there was no structural element that could check yoo’s flagrant violations of the laugh test. so there was no penalty for playing the advocate card far more strongly than would normally be prudent.

but, you know even if we stick to the professorial, i think some of my nervousness comes from the idea that we can judge a scholar by their worst work. anyone who has published a lot of stuff has published some mediocre or even bad stuff. anyone who has contributed genuinely original material to an interesting scholarly debate has also produced work that struck some other scholar as failing the scholarly equivalent of the laugh test.

a really important part of academic freedom is being able to try out crazy, goofy ideas in print. of course, in the academic context one has that liberty in part because one’s ideas are not directly going to set policy. if you want to argue that maybe guillaume de machaut got his stuff from chaucer instead of the other way round, it’s not going to get anyone’s testicles crushed.

yoo’s sins, then, seem to me not sins of scholarship, but literal crimes. nail him that way, and put him in jail. but i still don’t feel comfortable with the argument “scholar x wrote some really crummy, substandard work among the many other things he wrote, so we can revoke his tenure on that basis”.

February 18, 2009 at 2:08 pm

kid bitzer

(not, needless to say, that i know shit about the law. or scholarship, for that matter.)

February 18, 2009 at 3:00 pm

Anderson

See, I think this is exactly backwards. If I’m writing a brief for a court, then much as you say, I’m making the best possible case for one side. I still have a duty to cite on-point governing authority contrary to my position, and not to misrepresent the facts or the law, but these are duties observed less fully than they should be, by many lawyers.

OTOH, if I’m writing a memo for my client about possible legal consquences of future actions, then I am NOT being an advocate. I’m trying to predict the future, i.e., how would the courts rule? And because that’s not strictly possible, I have to explore possible outcomes other than the one I think most likely, let alone the one my client prefers.

Yoo was acting in that 2d capacity. He owed a duty to his client, and he failed miserably therein.

February 18, 2009 at 3:04 pm

LizardBreath

The problem is that the torture memo was a piece of advocacy, but not submitted to a court. There’s an ethical obligation not to misrepresent the state of the law to a court; if this memo were a brief, it would fail, but it doesn’t because it was never intended to be shown to a court. There’s an ethical obligation to competently represent one’s client; if this memo were an honest attempt to inform Yoo’s client about the state of the law, it would fail, but that doesn’t really fit the situation because it doesn’t seem to have been written with the purpose of informing Yoo’s client. The real purpose of the memo appears to have been to allow Yoo’s client (the Administration) to rely on in misrepresenting its beliefs about the state of the law. If the intended audience for the misrepresentation were a court, we’d be in business, but it wasn’t, it was other government officials and eventually the public.

February 18, 2009 at 3:24 pm

kid bitzer

so, lb, do i take that as agreement that the judgement of professional incompetence is made more difficult by the anomalous structure of yoo’s role?

anderson seems to think that there’s a fairly run of the mill way to describe what yoo was doing, i.e. neither advocating nor representing but predicting, by the standards of which he clerly failed.

February 18, 2009 at 3:43 pm

Anderson

but that doesn’t really fit the situation because it doesn’t seem to have been written with the purpose of informing Yoo’s client

Agreed, but Yoo can’t admit that, because he would effectively be admitting that he advised his client to break the law, which god knows must open him up to some kind of criminal liability for torture etc. — or, hell, mail fraud (depriving the public of honest services? the feds are indicting a Miss. judge on that charge right now).

So he has to say that yes, he really was trying to advise his client, which then exposes him to the problem that he scored EPIC FAIL in doing so.

It’s a little like Gonzales’s litany of “I don’t recall” — if it’s false, he’s a liar, and if it’s true, he’s a moron.

February 18, 2009 at 3:55 pm

LizardBreath

KB, Anderson-

Anderson’s got it — the run-of-the-mill way to describe what Yoo was doing, advising his client of the state of the law, leaves Yoo looking unequivocally incompetent. Any realistic assessment of what Yoo was actually doing makes it clear that that wasn’t going on, but is also the sort of thing that Yoo is going to have a hard time openly claiming.

February 18, 2009 at 3:59 pm

Vance

LB, this is illuminating. To put this in the terms of the other liberal blogs one reads, Yoo’s work seems like a form of CYA. Do you really think Yoo will have a hard time admitting that? “My client wanted a plausible document to point to, when justifying its policy internally.” Doesn’t that describe a lot of what some lawyers do, with the difference being the unusually repugnant policy?

February 18, 2009 at 6:16 pm

politicalfootball

I think y’all are complicating things unnecessarily. The problem with Yoo – and come on, we all know this – is that he offered indefensible legal opinions for the purpose of facilitating torture. Period.

This has nothing to do with the behavior of the courts or other authorities – this is a decision the school has to make, and take responsibility for. If Yoo were found guilty in court of murder, that shouldn’t be enough to revoke his tenure. But if Yoo knowingly facilitated torture, then he couldn’t be employed by a reputable law school – by definition. Inasmuch as such behavior is tolerated, an institution that tolerates it ceases to be reputable.

February 18, 2009 at 6:39 pm

dana

If Yoo were found guilty in court of murder, that shouldn’t be enough to revoke his tenure.

Yes it would. Commission of felonies is usually grounds to revoke one’s tenure.

Lawyers are allowed to defend bad people, and they’re allowed to write good-faith (on legal grounds) arguments to defend bad policies. What they’re not allowed to do is make bad-faith arguments to support bad policies. (They can’t make them for good policies, either, but no one would be after Yoo for promoting ponycorns. ) And I think the question here is where Yoo falls. The legal beagles seem to be saying he must have made bad-faith arguments, because the level of incompetence would be unbelievable.

February 18, 2009 at 7:03 pm

politicalfootball

I wasn’t talking about committing a felony. I was talking about being found guilty in court of having committed one. These are different things, and it was my intent to contend that the responsibilities of academic authorities are distinct from those of legal authorities (though certainly as a practical matter, you’re right, there’s going to be a lot of overlap.)

But okay, let’s take it a step further. Unless I’m misunderstanding the concept of academic freedom, the actual commission of a felony shouldn’t automatically result in the revocation of tenure, either (though again, as a practical matter, that’s the way it’s going to work in the real world.)

Either way, a school has to take responsibility for its standards. A law school that would employ Mr. Yoo, given his conduct, is a law school with some appallingly low standards.

February 18, 2009 at 7:17 pm

dana

It doesn’t automatically, but it’s usually explicitly in the code that a felony conviction is grounds for revoking tenure.

February 19, 2009 at 6:59 am

Chris

I wasn’t talking about committing a felony. I was talking about being found guilty in court of having committed one. These are different things

True, but how often (not to mention how) is the school going to have knowledge about whether or not that person committed a felony that is superior to the criminal justice system’s knowledge (as embodied in a conviction or lack thereof)? I think it’s pretty much forced to rely on the official answer to that question, even in controversial cases.

If O.J. Simpson had been a tenured college professor, do you think he should have been fired before his trial? After his acquittal? I would say he shouldn’t, while also expecting that he probably would be. A lot of people thought they knew better than the courts in that case, even though their subjective impressions were ill-founded at best, completely ignorant bandwagon-following at (modal) worst. (No, I don’t know whether he was guilty or not. Twelve people who saw the evidence in grueling detail weren’t sure, so how can I be sure from a distant armchair?)

Returning to the Yoo case, this means that if the Hague doesn’t want to try him (or doesn’t convict him) and the appropriate lawyers’ professional organization doesn’t act against him, it would look a little odd for the school to act on its own. Unless, perhaps, those other venues’ refusal to try him is plainly in bad faith and not related to the actual strength of the case against him – which it seems to be at least in the PA bar’s case.

February 19, 2009 at 8:56 am

politicalfootball

I think this catches the core of the disagreement. Given what we know about Yoo and his conduct, (I contend) it’s the Hague and the lawyers and anybody else with appropriate jurisdiction who comes off badly if they fail to act.

Also: OJ is guilty.

February 19, 2009 at 1:19 pm

kid bitzer

“If O.J. Simpson had been a tenured college professor,”

“Also: OJ is guilty.”

if the gown does not fit, you must acquit!

February 20, 2009 at 1:52 pm

Tybalt

“Either way, a school has to take responsibility for its standards. A law school that would employ Mr. Yoo, given his conduct, is a law school with some appallingly low standards.”

Yoo has produced work, work that is among the most important of his public career, that is on the public record and that would universally receive an F if it were submitted by a second-year law student. I agree that that is a significant issue.

In addition, however, and I think more importantly, there is a moral dimension – both a human one and a professional one. Yoo’s memoranda are a blatant attempt to subvert respect for justice. That is an issue from a lawyer’s point of view because our rules of professional conduct forbid us from bringing justice into disrepute (there are many local variations). From a human one, the situation is obvious – not merely that Yoo’s acts are war crimes but that they have made a unique contribution to human suffering.

His actions also constitute a material act of treason against the United States, which may be an issue for the University as well. His acts constitute treason because they were part of a deliberate attempt to convince U.S. troops to act in ways fundamentally contrary to American law – an attempt to use the U.S. military in subversion of its legitimate government could only be treason.

February 20, 2009 at 8:26 pm

Brad DeLong

I confess I still have the dithers too. But I think other people should have them as well. So it seems to me that I can have the dithers and be a feckless, ineffectual, academic procedural liberal.

I mean, I didn’t even write a sternly-worded letter to The Times about this…

February 20, 2009 at 8:30 pm

kid bitzer

yeah, and yet what you did, brad, has led people to get more serious, and to take more notice.

it’s progress, and i for one thank you for it.

February 20, 2009 at 9:30 pm

Michael Turner

The legal beagles seem to be saying he must have made bad-faith arguments, because the level of incompetence would be unbelievable.

Yes, and admitting a certain Iraqi defector’s “intelligence” as admissable in building a case for invading Iraq appears to have been at roughly the same level of incompetence. My Bush Presidency Countdown Clock had a post-it note on it right to the end: “Days left during which impeachment proceedings might begin.” That clock ran down. What does this tell us?

The problem here is that everybody lies sometimes, and everybody’s a moron sometimes, so any very good liar (politics is full of them, right?) figures out in advance how to make himself look like a moron instead, as a last resort, if caught in what must otherwise amount to a lie. Here’s a time-tested strategy: don’t talk much about what you’re really up to, and for godsake don’t ever write it down. Keep it at the level of conversation, and limit the circle to a group that would have to turn into a circular firing squad of former intimates signing affidavits against each other, for anyone to make any kind of case against you at all. Until somebody turns up memos between Yoo and one of his aides in which they discuss, for example, leaving out references to Youngstown because they’d be inconvenient for the argument being made, there’s no smoking gun. Yoo can always say, “Well, maybe I did do something stupid in my last serious consulting gig. Any of you want to cast that first stone? Didn’t think so.”

I’d like to see the whole wrecking crew behind bars. (Seeing Colin Powell among them would give me only a very slight twinge now.) In the end, though, I have to admit there’s no substitute for simply electing better people in the first place.

The question we still need to answer: How could so many voters have pulled the lever for the guy they felt would be the better one to go and have a beer with, when that guy actually didn’t even drink beer anymore? The social psychologists seem to be saying that the voters must have made bad-faith arguments to themselves, because the level of incompetence would be unbelievable.

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