1. You can read about the Miller Institute at http://www.law.berkeley.edu/1194.htm. The faculty cochairs of it are me and Prof. David Caron, who also happens to be Honorary President of the American Society of International Law. I don’t know why Ms. Harman thinks Professor Yoo has received a “promotion” or special position.

This seems a trivial point, it should be pretty easy to clear up. Ms. Harman probably thinks Professor Yoo has received a "promotion" or special position because when I first started typing this post, John Yoo's UC Berkley faculty profile page listed his title as "Faculty Director, Miller Institute for Global Challenges and the Law." This caused confusion because the title appears quite similar the title held by both Caron and Edley as indicators they head the institute. Thus, it gave the appearance Yoo holds an elevated position.

As so often happens when policy makers find themselves under scrutiny, the Boalt Hall website has seen a flurry of updates in the wee hours. For example, the link in Edley's quote above has been flat-out deleted - a few hours ago, the page focused on the leadership positions of Caron and Edley and highlighted their titles, this information is apparently no longer appears anywhere on the public website. John Yoo's title on the Boalt Hall website was also changed this evening, I actually caught that one as it happened and made a screen capture of how the page appeared when question arose. Not really sinister,  but notable that UCB is clearly bracing for deeper scrutiny.

So, really the ball is back on Edley for this one. What was the deal with Yoo's bio page, and how did that title get there in the first place?

2. I didn’t hear anyone burbling. I think the panelists, along with me, were perfectly cogent and articulate. I’ve also written about it to my students and alumni several times. Ms. Harman strongly disagrees. She did not specifically engage our points about academic freedom, including the McCarthy era precedents. Those examples are especially important to Californians for whom the ugliness of that era had special significance for Hollywood and state universities. Remember, too, that Berkeley was the home of the Free Speech Movement.

Academic freedom is, of course, important. But it is equally important to acknowledge that educational institutions have a wider responsibility beyond providing a safe haven from which professors nurse their own esoteric ideological attachments. The purpose of an educational facility is to ensure that the students graduating from it's programs have acquired a certain baseline level of professional skills and understandings that allow them to facilitate proper long-term function of the real-world businesses and institutions where they ply their post-graduation trade.

The specter of McCarthy is a poor fit to the situation and a seems like gratuitous demagoguery. The question here is not one of John Yoo's underlying political philosophy, which was the basis for every hearing and witch-hunt of the McCarthy era. The question here is one of John Yoo's professional work product. More important, the question is if the methodology and unique/novel legal interpretations evidenced by this work product should be integrated into course material and provided as an example of a valid and ethical approach to American constitutional law that the next generation of lawyers should consider employing. Should this be given the stamp of approval from a major educational institution such as UC Berkley?

Laudable, I suppose. But pretty damn weak considering the influence reportedly being a senior on the transition team might have leveraged.

For a layman this is fascinating. So, to people trained in law, what appears to the rest of us as letting politicians off the hook because it helps an AG advance their own career in politics while simultaneously throwing the book at poor people for doing the same things because they don't matter politically and a good conviction rate for such offenses also helps an AG advance their political career is not actually a systemic bug ... it is a feature taught to every first-year law student by their educators. Great.

This probably begs the question of what people being trained in law are taught these days in terms of ethics, exactly.

I see this as two issues. First is the question of academic freedom - with an implication that those who question John Yoo's role as an educator don't value it. This is essentially another angle on the issue raised previously. It goes back to competing views regarding the reason educational facilities exist and are financed by society in the first place. Again, it is important for the academic community to acknowledge their primary responsibility is producing well educated graduates trained and vetted for excellence in whatever art a bestowed degree promises we non-academics who may employ this graduate has been mastered. If the academic community's priorities get so far out of whack that worshiping a simplistically rigid idea of academic freedom inhibits an institution's ability to perform it's primary function of excellence in education, it seems the academic community has made themselves far less useful to wider society.

Second is the question of staff vetting. I am amazed that a department head would really suggest that it is the responsibility of the justice department to ensure that his professors are not teaching students to break the law. If a university isn't equipped or a department head is not competent to look at nation-impacting professional work product generated by one of their educators and assess it for the potential of flawed legal methodology entering that department's curriculum, than the university needs to get it's act together.

The ability to rely on a baseline standard from our educational institutions is even more important when assessing a graduate for a public policy role such as the one held by Yoo. The appearance is that UC Berkley has embraced the teaching of Yoo's interpretations to students as an application of valid methodology and ethics. In the name of academic freedom, the UC academic community has decided to cement an institutionally-endorsed Yooist school of legal thought for all future generations.

At some stage, if an academic community's graduates are being trained that it is OK to produce outcomes and promote acts virulent to basic human dignity and civilized norms, non-academic society has a responsibility to speak up. I think it is fair to ask, is there anything that UC Berkley would not allow to be taught to their students? The position Yoo holds appears to leave citizens who never want to see government policy decisions based on Yooist legal interpretations in the future no choice but to disqualify anyone trained in the legal arts of John Yoo at UC Berkley from holding position in government that could potentially lead to a policy-influencing role.

If this a misunderstanding that frustrates Mr. Edley, maybe he should explain the point better rather than being so glib and dismissive of the non-academics to whom this looks terrible.

Come on. The law is a set of statutes promulgated under authority of the constitution, written down and available for all to review and assess. The law was crafted not by lawyers, but by common folks. There is a certain arrogance in the idea that only a lawyer could possibly go back and read it. Sure, there are plenty of gray areas and competing arguments, but the citizens who went through all the trouble of crafting the laws, for the most part, really did have a very specific and unambiguous purpose and intent behind doing so. Is it really that difficult to discern in the vast majority of circumstances? Interpreting the proper role of the legal profession as to distort and obscure the intent of the citizens who made America's laws would be an amazingly subversive attitude to adopt as an educator. It is one thing to debate how a set of facts would be assessed under the agreed intent of the law. This appears to go beyond and assert the law itself can never be unambiguous. An interesting question to debate, but not very relevant to the question of Yoo.

The simple fact is that John Yoo's constitutional theories and statutory interpretations remain untested in court. This is because every lawyer who accepted a fiduciary responsibility to review the work and possibly endorse said theories gasped in horror and told their clients to stop basing policy and actions on them. Ultimately all opinions were retracted as flawed (by lawyers who crafted differently grounded opinions of their own used to authorize torture).

As a layman, I certainly don't know the ins and outs of supreme court procedure. However, I do hold a view that the court would actually need to rule on an issue before a law professor should cite such a ruling to support an argument. In that regard, I would hazard that the heros alluded to by Mr. Edley have something John Yoo doesn't - a day in court and a documented 3 out of 9 ruling with written majority opinion and dissent. Yoo's work never attained the level of credibility to have an advocate argue based on it before the supreme (or any) court. Speculation of how justices might have ruled, even the most well informed, can not impart to Yoo's work a level of gravitas his own achievement has not.

There are many crackpot theories throughout the legal diaspora that are equally untested in court. The problem isn't with discussing and debating these various ideas in an academic setting - even (or perhaps especially) the ideas of John Yoo. The concern is that looking at Yoo's range of curricular and extra-curricular activity, UC Berkley appears to be allowing him to elevate his peer-rejected theories over other such fringe work and market them through Boalt Hall as a revolutionary doctrinaire approach to interpreting law. That seems entirely arbitrary and doesn't make a whole lot of sense academically. Considering the real world outcomes resulting from the only know application of these specific theories, particularly with no legitimate rulings to support them, allowing the originator to promote them (as opposed to a dispassionate educator leading a discussion) would seem a horrible lapse in educational ethics. UC Berkley needs a better explanation of how they are handling the situation academically. Simply turning this guy loose on students without addressing the implications of what he may be teaching them undermines the credibility of Boalt Hall.