dagblog - Comments for "A layman's take on academic freedom vs. academic excellence at UC Berkley."

I went to law school with

Steve Diamond — Fri, 23 Sep 2011 20:14:47 +0000

In reply to As a former Boalt staffer, I

I went to law school with John Yoo and so understand that he is a very articulate and smart individual so it does not surprise me that he would be a popular teacher.

So what?

That has no relevance to the question of what he did, not said, as a lawyer for the federal government.

And I assume that very few of those law students, and perhaps not you either, have read and considered the complaint filed by other Yale lawyers against John on behalf of Jose Padilla. The complaint certainly makes out a plausible claim that his actions were illegal violations of the human rights of Mr. Padilla.

As a former Boalt staffer, I

Anonymous — Sun, 11 Sep 2011 19:41:40 +0000

In reply to A layman's take on academic freedom vs. academic excellence at UC Berkley.

As a former Boalt staffer, I assure you, John Yoo is - believe it or not - beloved by his students, conservative (the 2% that there are) and liberal (98%) alike. There is a long waiting list for his Con Law class, and alumni keep in touch with Prof. Yoo for years after graduation. That is the criteria by which it should be decided he is an appropriate professor for Berkeley.

Like a good little solider, Yoo was just following orders from his Commander-In-Chief. I'm not saying that's right, and I certainly don't agree with him. But he did a job. Outside of his job at Boalt.

I believe it was former Boalt Dean Jesse Choper who said "If you cut off the right, you cut off the left, and then what do you have left?"

My only quibble with this

PeraclesPlease — Sun, 11 Sep 2011 07:32:47 +0000

In reply to For a non-lawyer non-academic

My only quibble with this analysis is it leaves out that the right to free speech itself is not 100% in academia.

Here's the Yale Frat that got suspended for 5 years for mysoginistic slogans:

http://www.theatlanticwire.com/national/2011/05/fraternity-suspended/37827/

Perhaps Edley has forgotten that his buddy Obama has Anwar al-Awlaki on his extrajudicial kill list solely for making statements supportive of Muslim militance.

Larry Summers had to resign

PeraclesPlease — Sat, 10 Sep 2011 19:56:19 +0000

In reply to I think your characterization

Larry Summers had to resign from Harvard in large part due to statements viewed as sexist when discussing underrepresentation of females in academia.

You would think filing pro-torture briefs with no legal merit would draw greater retribution, since trying to describe a phenomenon in a speech in an academic environment is not nearly as heinous as trying to legally justify the implementation of unconstitutional corporal punishment for the executive branch in actual court cases and general behavior.

If I'm correct, lawyers can be disbarred for acts that are unethical and bring disrepute on the profession, even if they're not tried and found guilty in a court of law. And aside from that factor, Yoo's actual briefs indicate he's unqualified to be a lawyer, does not have the grounding or temperament in jurisprudence to come close to representing the system.

The supposed principle we're holding up here is academic freedom of speech even when the speech isn't in an academic environment, and is more than just speech or opinion?

By this same logic, Yoo should be able to take leave of absence to go organize chapters of the KKK or aid Israel in gunning down protest boats or protect multinationals from running death squads (oops, that was Holder, sorry), just as long as he's not arrested - and who of any consequence is these days? - and then waltz back to his cushy job in the protected halls of academia to teach the next generation of little Eichmanns?

For a non-lawyer non-academic

Steve Diamond — Sat, 10 Sep 2011 19:16:49 +0000

In reply to A layman's take on academic freedom vs. academic excellence at UC Berkley.

For a non-lawyer non-academic I thought this was generally a very sensible analysis

I do think however it should be pointed out that the claims by Edley of a concern for academic freedom are not necessarily relevant here. It is true that as a tenured professor Yoo has a property right to his position and so his "property" (tenure) can only be removed with due process. However, I don't think that critics of Yoo are arguing that he be summarily disciplined or dismissed without notice or an opportunity to be heard. In other words, the university would and I assume his critics would be happy to give him precisely the due process protections Yoo and his ilk want to deny to the detainees on Guantanamo.

Second, the McCarthyite fear charge is also, pardon the pun, a red herring. Because the claim about Yoo is not one about his political opinions (odious as those may be) or his exercise of a right to free speech. Rather, it is about his actions. The claim is that what he DID not what he said is at issue. And what it appears he did, by the available evidence, is help plan a crime and a legal escape route for the criminals. That is action not speech and it is not deserving of protection under the rubric of academic freedom. Thus, this case is not like the witch hunt against Ward Churchill, clearly incompetent but equally clearly someone who was fired for his political speech not his actions.

Third, it is a canard for Edley to claim that he does not have the resources to investigate the issue. Would he say the same thing if a faculty member were accused of sexually harassing a student? Oh, wait a minute, the reason he got his job is because Berkeley pushed out the last dean - for sexually harassing students! Universities pursue complex investigations all the time, of all sorts of issues. That is one reason UC has a general counsel and legal staff, like all universities. At a bare minimum Edley should have long ago engaged outside counsel to assess the very issue of whether Yoo was engaged in speech or action and whether it was appropriate to impose disciplinary action. As an alternative Edley could suspend Yoo from teaching pending the outcome of the various legal actions (including a lawsuit that is making its way through federal court) against Yoo.

Finally, one really ought to question the appropriateness of Edley's role in the Yoo matter. Edley is a close friend and advisor of the President and this Administration has backed Yoo legally. Edley has now admitted that he was involved in the decisions not to pursue Bush era figures for criminal activity. It seems only reasonable that he ought to recuse himself on this matter and that it ought to be turned over to an independent faculty committee (including figures from outside the UC system) for review.

I think your characterization

kgb999 — Sat, 10 Sep 2011 19:05:37 +0000

In reply to Goddamn it. I don't believe

I think your characterization of my motivations is unfair. This isn't about punishing Yoo because Obama's justice department refuses to.

Tenure is great. Academic freedom is great. And if these institutions existed simply to pay professors to do external work and explore various ideas that are abhorrent to civilized society and whatnot, there wouldn't be a problem. But that isn't why we have schools. That's why we have think tanks.

I am a consumer of the commodity schools generate revenue in exchange for producing: well-educated professionals that hold a baseline of professional and ethical standards. If I can't count on a computer programmer being able to function because some jackhole university professor filled their heads with a bunch of useless - or flat-out incorrect - concepts regarding programming ... I don't want them in the workforce.

I think your highlight of climate science is perfect. How many of the crackpot global warming deniers should be placed in a position to teach the next generation of climatologists? Isn't having students educated to the highest standards available pretty damn important? Maybe even the most important? At some point, we must acknowledge that the responsibility of these institutions is to the students and society that employs them - not to the professors who may believe with all their hearts that a substandard approach is just fine for the students unfortunate enough to end up in their classroom.

Perhaps the arbitrary rules of tenure in question (unlike the law Yoo perverted, these are merely institutional policy) are inadequate to really address the charge of universities and the needs of students.

And actually, I'm not even saying he should be fired necessarily. If I were, I would be approaching it by addressing this previous statement by Edley where he argues for continued employment by highlighting "General University Policy Regarding Academic Appointees," and tearing apart his assertion that a single clause in the document is the only one that might apply to Yoo. I think a strong case can be made for termination based on that policy, certainly a better one than Yoo made for torturing our detainees.

You actually don't even address my point and concern at all.

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.

My question is specifically what he is being allowed to do in the classroom. What is he teaching our future lawyers? And if he's teaching them how to get around the laws to allow torture ... teaching that torture doesn't even really exist with the properly crafted semantics ... I have a problem with that.

If academic freedom means an institution doesn't maintain any educational standards or provide any guidance/oversight whatsoever regarding what is taught in the classroom once a professor achieves tenure, at some point academic freedom becomes incompatible with educational excellence ... or at least educational excellence becomes a somewhat random occurrence that nobody hiring these people can really be sure if they can expect or not.

I knew that bit you

kgb999 — Sat, 10 Sep 2011 18:19:47 +0000

In reply to It'd be interesting to hear

I knew that bit you highlighted might be viewed as a little ... simplistic. At 2500 words; something had to give. I'd be kind of curious on A-Man's take too. Not necessarily expecting to see it though.

To me, the explosion of intentional legislative obfuscation seems a modern contrivance that is part-and-parcel to the corporatization of our government. I don't think the current situation is typical of the majority of our lawmaking history. Ditto to the dominance of select trades. Seeding intentional deceit into legislation didn't seem a socially accepted behavior within the legislative bodies until the last couple decades. I may be off-base on that perception, but that's my current view.

I think you are wrong on the juxtaposition of the constitution and law though. The constitution is the ultimate granting authority ... without it, laws have no grounding or legitimate basis for being. This seems to be true regardless if one believes in the view legislature can only pass laws as specifically enumerated in the constitution or if one believes legislature can pass any law not specifically prohibited.

Somewhat curious about the "mostly" written down part ... do you have an example of a not written down law?

To a certain extent, it feels like the legal profession has broken it's charge. And maybe the ultra-simplisitic formulation of law I presented helps to highlight where I think it has gone astray. Looking at Mr. Edley's thoughts, it seems fair to ask if our law schools need to become accountable to a far broader cross-section of society than only a circle of lawyers that has been taught the concepts of accountability from the same institutions that need to be held accountable.

Institutionally it seems like some sort of parallel morality or an ethics of sliding relativism has been established that breeds unaccountability (and even arrogance). As people trained thus move into policy roles and politics this quasi-morality is having some terrible impacts on a society that by-and-large has a very different view that demands a level of unambiguous defined expectation both in law and in governance. It has helped turn the law into something unrecognizable to the citizens of the democracy these laws are supposed to represent.

Goddamn it. I don't believe

Doctor Cleveland — Sat, 10 Sep 2011 17:41:00 +0000

In reply to A layman's take on academic freedom vs. academic excellence at UC Berkley.

Goddamn it. I don't believe I'm being forced to defend the continued fucking employment of John goddamn Yoo. Well, here it fucking goes.

John Yoo's crime is that he distorted and twisted the rule of law in order to get desired results that fit with his idea of a higher or more expedient morality. The law allowed no way to mistreat criminal suspects or prisoners of war, so Yoo found a way to pretend that prisoners were somehow neither of those things, and got no protection. His bottom-line rationale was that there are moral concerns, like fighting terrorism, that are more important than following the law. And he thought those prisoners deserved what they got.

Now that the law is not punishing Yoo, you want to find an extra-legal way to punish him, the rules be damned, because he deserves it. Your proposal is not morally depraved the way Yoo's is, but follows the same logic. Throw out the rules to get the bad guy.

Let's go through some points.

1) UC Law did not hire Yoo after he left the Bush Administration. They hired Yoo in 1993. Like many law professors, he took a leave of absence to work in the government and then came back to the teaching job. (None of these facts are secret or hard to find.) Now, if they chose to hire him after he wrote the torture memos, I think that would have been a fine moment to raise an outcry and discuss Yoo's fitness for the job. But Yoo already had a job, tenure, and job protections at Berkeley. You're talking about finding a way to fire Yoo, although there's no existing rule that permits him to be fired.

2) That Yoo was not put on trial for war crimes is deplorable, but not Berkeley's decision. (And if he were convicted of a crime, or disbarred, they would have a slam dunk case to fire him.) Basically, you're trying to make Berkeley do what you wanted Holder to do. But the truth is that Holder didn't put Yoo on trial, and so Berkeley doesn't actually have an excuse to fire him.

Should this be a country where your boss can be forced to fire you because people think you should have been indicted for a crime, even if you're not? Because if that's the rule for Yoo, that's the rule for everyone.

3) Changing the rules for Yoo means stripping all law professors (and professors generally) of needed protections. And progressives need those protections much, much more than conservatives do.

The point of tenure, the whole point of tenure, is to allow professors to do unpopular work. The idea that professors should have tenure, except for that bastard who did/said/advocated that abominable, unforgivable thing, gets it backward. Tenure is FOR the bastards who advocate intellectual positions that other people find abominable and unforgivable. If the rule is, tenured faculty cannot be fired, unless they take objectionable positions in their field of study, then you have the worst of both worlds.

Keeping John Yoo around is the price of keeping medical schools from firing the professors who advocate, for example, "murder of the unborn." The people who teach queer theory or queer history in the classroom. And, oh yeah, the climate scientists. How many climate scientists in, say, the Bible Belt, do you think would be fired on trumped-up charges of "fraud" if they weren't protected by tenure rules?

If we're going to be guided by moral outrage instead of agreed-upon rules, then the progressive academics are going to lose a lot more often then the conservatives and the authoritarians. Because no matter what terrible things some conservatives do, the progressives deal with a lot more outrage ... outraged voters, outraged donors, outraged politicians and trustees. We will always lose the outrage game.

It'd be interesting to hear

Verified Atheist — Sat, 10 Sep 2011 15:39:07 +0000

In reply to A layman's take on academic freedom vs. academic excellence at UC Berkley.

It'd be interesting to hear Articleman's take on all of this, and although I agree with your sentiment, I question this bit:

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.

You seem to have far more respect for the intelligibility of the law than I. I would characterize the law as a set of statutes constrained by the constitution, mostly written down, and available for all for reading, but not for comprehension. This law was crafted primarily by lawyers, accountants, and other people serving the interests of the powerful. This law is frequently designed to be impenetrable to not just lay-folk, but to other lawyers as well. Maybe I'm just too damn cynical.

I love Edley's

Red Planet — Sat, 10 Sep 2011 13:40:19 +0000

In reply to A layman's take on academic freedom vs. academic excellence at UC Berkley.

I love Edley's characterization of the "far more humble" law professor. The self-effacing gentleman over at Pepperdine springs immediately to mind. What was his name? Oh, yes, Kenneth Starr.

One should never forget that Yoo clerked for those two modest giants of unbiased legal scholarship, Laurence Silberman and Clarence Thomas. Which goes to advance your main point, that law students and young lawyers are impressionable, and people like Silberman, Thomas and John Yoo shouldn't be allowed near them.