Tuesday, April 22, 2008

Applause for John Yoo?

John Yoo closed his last formal constitutional law class of the semester today. Going in, I put the odds of perfunctory end-of-class applause at 50%. On the one hand, he’s an effective and endearing professor. On the other…well, you know – the electrodes-to-genitals thing.

It turns out that after a long wind-up of thanking us for the honor of teaching us, Yoo did get a nice round of clapping. From almost everyone. In a classroom in Berkeley. Yep.

(Although there seemed to be an almost-imperceptible hesitation just before the clapping, which was microseconds away from becoming awkward, I have no sense of timing or rhythm, so maybe it was just my imagination.)

I'm a good Democrat, but let's pause on the applause to appreciate the rage this will surely prompt among some on the far left. Just picture the apoplexy: Applause? For someone who should be fired or possibly shot? For a war criminal akin to Goebbels? For the person directly responsible for the worst crime of all: the precipitous drop in Boalt’s bar passage rates?! Mon dieu!

I don't want to make too much light of this. I basically think the policies Yoo helped instantiate were insanely misguided strategically and morally. But still. Why, in this bastion of Bizerkeleyism, did John Yoo receive applause?

What I think is going on here – if I may pluralize anecdote into data – is that most Boalt students have come to a few rough conclusions about Yoo. If I had to articulate the plurality sentiment at Boalt, it'd be this:

1. He’s a good prof. Not just in the sense of “students like him.” But in the sense that he’s teaching stuff correctly. That’s what’s so ludicrous about the suggestion, made by Slate’s Deborah Pearlstein and others, that he’s somehow flunking his academic duties by filling his students with one-sided propaganda. His class was scrupulously faithful to current doctrines on the foreign affairs and war powers, separation of powers, judicial review, treaties, executive appointments, executive privilege, and such. And about 10x more organized and detailed than certain other classes. Put it this way: if you want to learn con law for the CA bar (the “black letter” Pearlstein seems obsessed with), would you rather take it from Amar, HaLo, or Yoo? That’s what I thought.

2. He did wicked, wicked acts. With shoddy, shoddy legal work.

3. But the morality of torturing terrorists is an ambiguous and contestable idea – outside certain zipcodes in Berkeley, Chevy Chase, and Cambridge. As is the degree to which a strong executive is either normatively desirable or constitutionally sanctioned. So to demonize his facilitation of those doctrines is to see issues in absolutes that most people perceive in gray. Plus, give the guy a little credit for trying to serve American interests — at least as his superiors so (mis)defined them.

4. None of which is to excuse the very legitimate questions about professional ethics; the quality of the legal scholarship; the misunderstanding about the identity of the client; the blurring of the line between advocacy and neutrality; the validity of the “just taking orders” defense; the responsibility for the proximate results of his scholarship; the limits to academic freedom, etc .

5. But the answers to all those questions are not so clear-cut as to justify hounding the guy out of a job. Or refusing to clap if, for a welcome change, he does a good one.

Anyway, that’s the rough temperature of student sentiment I’m taking. And I draw it not just from the clapping – that’s a self-selected group of students willing to take his class (or suffer quietly for the great time-slot and the four units) – but from conversations with other students and reading this blog. Maybe I’m wrong. It’s just my informed opinion. It and $2.25 gets you a coffee at Zeb.



Anonymous 2:57 said...

I think that you will agree that JY's skill as a professor of doctrine, indeed anyone's skill as a professor, should not be grounds, either within the rules or in violation of the rules of our institution, to dismiss a tenured faculty member. However, it should also not be a defense to keep a professor around when that professor has caused palpable injustice in the practice of law. To do so sells injustice for a lower price than our education, and I believe the foundation of our legal system has a higher price than that.

The injustice caused by JY may or may not include the torture of terrorists. As you stated, this issue is ambiguous and given such ambiguity, it may be reasonable to leave the decision to greater minds than we here at Boalt. However, palpable injustice is easily found in the torture of innocents. How to discern the difference between the innocent and the guilty? Process.

I believe that I can reasonably conclude, albeit based upon shoddy research, that at least one innocent man was harmed by torture undertaken by agents of our government in reliance (partial or full) on JY's legal interpretation. I conclude this based upon the assumption that the guidelines given to the torturers about how to go about the business of the state did not include a chance to give the captured the ability to prove his innocence to an impartial adjudicator, and the errors wrought by sudden military capture are well known.

Without a process by which torture go-aheads might encounter sufficient checks and balances, a process which almost certainly would have been necessitated by any torture-allowing legislation passed democratically by the good people of this nation, we can be almost sure that the culpability of those who were tortured was vetted through a process lacking even those minimal safeguards given to both foreign nationals and US citizens facing relatively minor deprivations of liberty for misdemeanor charges here in the US.

Do we at least owe foreign citizens in foreign nations some such process when the actions of our government towards them as individuals seriously threatens their natural rights to live without fear? For both international policy and human morality reasons: yes, yes we do.

The injustices caused by JYs advocacy for unilateral torture approval is enough to give JY a swift kick towards the door. However, in addition to this injustice, JYs actions wrought palpable injustice upon the American people who were, because of his shoddy work, denied the ability to partake in this decidedly undemocratic expansion of the executive mandate.

I am honestly glad that so many have learned from his even-handed treatment of established Conn Law doctrine in his class. However, I doubt the implication that the difference between his and the tutelage of other professors here at Boalt is as great as you claim. Indeed, considering the world-class faculty here, whoever would be in his place would no doubt be a worthy, if not worthier, developer of our skills when taking into consideration all factors by which a professor's effect may be ascertained. The measure by which these effects are known are, I argue, far above and beyond bar passage rates. There exists the risk that the decision to keep him on staff here will validate some future student of Boalt to make similar "mistakes". This is an unacceptable risk and we should work to mitigate it.

Although heavily relied upon as proof that you are right(ious), your barometer of the student body is self-biasing, something that you only allude to tongue-in-cheek. However, I admit that I have come across the same sentiments in the majority of people I have talked with. However, no real public discussion has been undertaken on these issues and I believe such a discussion would change the minds of a few at least. Based upon your statements, I doubt that your discussions with folks have honestly attempted to confront and resolve the underlying value judgments being made here. If I am wrong, then I apologize and I beg your pardon.

Truthfully I can recall perhaps only one fellow student who agreed with me. Sadly, JYs tenure and the much celebrated marginal benefit it has to our collective intelligence is secured for the time being. I nevertheless won't take his class, and my view of this institution and DE has been greatly diminished. My opinion of my peers, although they are often of an intellectual strength greatly surpassing my own, is also diminished. In supporting JY, you my fellows have furthered injustice in pursuit of your own ends.

Thanks for reading. Sorry, but I won't be able to respond to any counterarguments. Feel free to eviscerate my style, but please do not so quickly dismiss the substance of what I say.


4/22/2008 6:38 PM  
Anonymous Anonymous said...


You don't make any fucking sense.

4/22/2008 6:52 PM  
Anonymous Anonymous said...

I've heard terrible things about the teaching styles and contents of the Am*r and H*Lo classes. Although I haven't taken the classes, from people I know who have, it is much more likely that they were influencing the bar passage rates than John Y*o. In any event, if you want to learn con law without either bias or Y*o, take it from Ch*per^. He was probably the second-most balanced professor I've had in a "controversial class" at Boalt (after Y*o). Despite clerking for Earl Warren (the real one, not the blogger), he'll make you defend why exactly your pro-federal government power beliefs that lead you to like most cases discussed in the class don't require overturning Roe v. Wade.

^I don't know anything about G*odwin.

4/22/2008 6:58 PM  
Anonymous Anonymous said...

Wow. At first I thought 2:57 was some computer-generated spam or something.

4/22/2008 7:01 PM  
Anonymous Anonymous said...

Close. It's Berkeley generated spam.

4/22/2008 7:50 PM  
Anonymous Anonymous said...

When I was at Boalt, there was the case of Dean John Dwyer.

Dwyer was accused of going home with an inebriated female student and molesting her. There was no hard evidence that he actually committed any crime; it was he-said-she-said. She (who admitted being very drunk at the time) made accusations about his behavior that he denied.

Nonetheless, he was forced into resigning. Had he not resigned, a lynch mob comprised of students and professors likely would have taken matters into their own hands.

Nobody ever argued that, in the absence of a conviction or proof of a crime, Dwyer should not have resigned.

Interesting comparison there.

4/22/2008 8:46 PM  
Anonymous Anonymous said...


I agree completely. Molesting one of your students; drafting a legal document on a politically contentious issue that you may or may not have been correct about. It's all the same. I'll meet you outside Boalt with my torch and pitchfork tomorrow morning at 6:00 am. Bring all your friends!

(I just hope someone at Boalt doesn't write an article advocating the overturning of Roe or the elimination of affirmative action - especially if it involves 'questionable' legal reasoning.)

4/22/2008 9:03 PM  
Anonymous Anonymous said...

"Nobody ever argued that, in the absence of a conviction or proof of a crime, Dwyer should not have resigned."

Clever lawyer-speak!

DE argues that in absence of a conviction or proof of a crime, it is not appropriate to fire JY. That's distinct from whether JY should or should not resign (and it is far from clear to me, by the way, that he should.)

All the same, however, the Dwyer story is fascinating. First because one has to wonder about Boalt's dirty laundry, and second because it is telling of law students' tendency (despite their large brains, quirky taste in backpacks, and uppity attitudes) to form their opinions in blocks. It isn't hard at all to imagine all elements of the scene you paint.

May I ask when you were at Boalt?

4/22/2008 9:08 PM  
Anonymous Anonymous said...

"drafting a legal document on a politically contentious issue that you may or may not have been correct about" or conspiracy to commit war crimes.

I practice in criminal law now, and I've seen defendants convicted on far flimsier charges.

Also, you dropped "accused of" from "molesting one of his students". Kind of a one-sided comparison in that light, no?

4/22/2008 9:11 PM  
Anonymous Anonymous said...

"That's distinct from whether JY should or should not resign."

But Dean Edley isn't suggesting that either.

Interestingly, when a group of Boalt students asked Yoo to resign a few years ago, they were accused of violating academic freedom.

4/22/2008 9:14 PM  
Anonymous Anonymous said...

"May I ask when you were at Boalt?"

Use your powers of induction why don't you.

4/22/2008 9:16 PM  
Anonymous Anonymous said...

Here's a link for you:


" Last week on Wednesday, Nov. 27, John Dwyer, dean of UC Berkeley's School of Law (Boalt Hall) announced his plans to resign as dean and from the faculty. Chancellor Robert M. Berdahl accepted the resignation in response to an allegation that he sexually harassed a law student in December 2000. That individual, now a Boalt Hall graduate, filed a formal complaint with the university's Title IX officer dated Oct. 11, 2002; the complaint was received by the university on Oct. 16. The university immediately began a formal investigation into the complaint, and the investigation is continuing."

So allegations of sexual assault prompt an investigation. Allegations of war crimes do not.

Interesting comparison.

4/22/2008 9:18 PM  
Anonymous Anonymous said...

You know, the alum might be kind of a jerk, but s/he does raise a point.

The University defers the Yoo question to an outside prosecutorial body, but investigates allegations of sexual misconduct in-house.


Dean Dwyer was not, I assume, on a leave of absence like Yoo. But his alleged offense seems to have occurred after hours, away from the school. If the standard for dismissal is something akin to conduct grossly unbecoming of a university professor, what's the difference?

I should note that (knowing nothing, I confess) my inclination is not to say the University should investigate Yoo, but rather to say it is inappropriate for the University to have investigated Dwyer.

I don't think that Universities are equipped or trained to perform prosecutorial functions, and the political cost of such activity can be pretty great.

4/22/2008 10:08 PM  
Blogger Armen said...

Actually, under University Rules, one of the grounds for investigation is: "4. Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons." See Leither's Post here. That was the ground for investigating Dwyer. I wouldn't be surprised if the nutcases argue that by applauding in clause, the students had their judgments coerced. PITCHFORKS!!!

4/22/2008 10:13 PM  
Blogger Armen said...

Uh, class not clause.

4/22/2008 10:14 PM  
Blogger Matt said...

I'm also fairly certain - and someone can correct me if I'm wrong - that the university has to conduct its own investigation of sexual harassment allegations under Title IX. I seem to remember something about a 'right to sue' letter from Civil Procedure last semester. Perhaps someone can add some legal clarity to this rambling...

4/22/2008 10:21 PM  
Anonymous Anonymous said...

I think the clapping, particularly that microsecond pause, underscores the unsurprising conclusion I made as a law student many years ago and lawyer, that law students are sheep, trained for hierarchy, reflexively responsive to authority, and on-the-fly rationalizers par excellence (oh, morality be damned, the class seemed good), and steeped in situational ethics.
What's more, law students have poor academic taste, not being real scholars for the most part, but in general focussed upon status. No one claps for world class professors in top economics Ph.D. programs, where the professors aren't their for in-class performance skills, rather for the quality of research they have done. Law school is trade school and does not even do a very good job of it in general, at least given the skills I've seen in first year associates over the years.

4/23/2008 5:42 AM  
Blogger Patrick said...

. . . . and how is that different from people in general?

At any rate, from the observation (true or not) that law students are 'sheep,' it does not follow that there are not principled positions on both sides of the JY debate, nor does it follow that there were no principled reasons to clap.

And that is coming from a person who shares substantially in your assessment of humankind[sic].

4/23/2008 8:17 AM  
Anonymous Anonymous said...

When I took classes from Yoo, I found him to be a pretty mediocre lecturer. He had a good knowledge of the material, but I found him uninspired and uninspiring. (And this was before anyone knew he'd written the memos, so it wasn't a matter of politics that I wasn't impressed.) He was also unavailable much of the time, canceled numerous lectures, and constantly broke commitments.

Since someone mentioned him, I'd much rather take the course from Haney-Lopez, who always had the ability to make lectures engaging and funny.

But perhaps Yoo has more time to spend on his lectures now...

4/23/2008 8:37 AM  
Anonymous Anonymous said...

I had JY for a seminar, after his return from the Bush Administration, and it was really quite good. I had HaLo for con law, and I thought it was an excellent class. Difficult, sometimes over my head, but excellent. I got the basics I needed for the bar (except the First Amendment, which is the subject of another (also good) class. BL: Don't blame JY or HaLo if you didn't learn con law. They teach it, and they teach it well.

4/23/2008 8:57 AM  
Anonymous Anonymous said...

"...the university has to conduct its own investigation of sexual harassment allegations under Title IX."

I take it Prof. Leiter would argue that this provision of Title IX is very unwise.

4/23/2008 9:00 AM  
Anonymous Anonymous said...

I was also at Boalt when Dwyer resigned. He was not forced to resign--he resigned voluntarily. He said as much in the announcement that he wrote and caused to be placed in every student's locker the day before Thanksgiving break that year.

The student who alleged that Dwyer assaulted her had filed a formal harassment grievance with the university. This required the university to open an investigation, according to the university's own policies. The investigation had not concluded when Dwyer resigned.

I'm sure someone will correct me if I'm wrong about this, but in Yoo's case, it's my understanding that the university's formal investigation process has not been properly triggered by the kind of complaint that makes an investigation mandatory. This could well indicate a flaw in the way the process and its triggering mechanism are designed--but that's not the same as indicating hypocrisy or inconsistency on the part of the individuals inhabiting the system.

4/23/2008 2:57 PM  
Blogger Katherine_ said...

I've met people tortured because of his memo. If you had I don't think you'd find it so contestable & I don't think you'd be applauding.

4/23/2008 3:53 PM  
Anonymous Anonymous said...

"But the morality of torturing terrorists is an ambiguous and contestable idea..."

How about the morality of torturing innocent people? After all, what makes you think the government can infallibly identify who the terrorists are?

Stop and think about the assumptions that people like Yoo try to build into the question, without you even noticing.

4/23/2008 9:55 PM  
Anonymous Anonymous said...


I'd like to challenge your statement. You met people that were tortured because of the memo Yoo wrote? We weren't torturing them before the memo was written? They were standing there, getting ready for the ole waterboard, and some guy was like "Wait, Yoo's memo is still coming through on the fax. We can start the torture in five minutes..." Is that seriously what you're trying to claim?

Don't be so naive.

4/23/2008 10:12 PM  
Anonymous Anonymous said...

"Don't be so naive."

Sorry, but you're the naive one if you don't think there was a causal connection.

Why do you think it was necessary for Yoo to write such a memo in the first place?

4/23/2008 10:19 PM  
Blogger Armen said...

Yes and the Supreme Court has CAUSED millions of abortions since 1973. Actually this is a point that I'd want to raise in a rational, reasoned debate (as opposed to the unhinged, "if you disagree with me you're a [insert historical carrier of injustice reference]" types who tend to call for Yoo's head on a platter, regardless of ummm you know, everything else.

But assuming (though if the discussion on Balkinization is any indication, I have no basis for such assumption) that reason and logic can be persuasive, would those advocating for removal do the same for Justice Blackmun if he were (alive and) teaching at Boalt? Shoddy reasoning? Check. Physical harm? Check and check. And of course, clear legal precedent counseled against that opinion.

Or is that you just disagree with the Bush policies and don't want to see anyone who supported those policies teaching [a far, far greater danger than torture IMHO].

4/23/2008 10:29 PM  
Anonymous Anonymous said...

Scott Horton said it best:

"[T]he facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward."

4/23/2008 10:35 PM  
Anonymous Anonymous said...

Link to Horton's analysis:


4/23/2008 10:37 PM  
Blogger Matt said...

Brian Leiter said it better (and you can go to the same link to find out how!):

"John Yoo has not been convicted of any crime. That Scott Horton believes he may have committed one is interesting, but rather obviously has no bearing on whether he should be fired. If John Yoo is actually charged with a crime by someone other than a blogger and if he is then convicted of a crime, there may indeed be a question about his continued eligibility to serve as a law professor at Berkeley. That has not happened."

I'd post more, but you can just go ahead and read the comments over on Scott Horton's blog. Probably nothing you haven't heard or thought of yourself (unless you don't typically think).

4/23/2008 10:42 PM  
Anonymous Anonymous said...

"Yes and the Supreme Court has CAUSED millions of abortions since 1973."

Well absolutely they did, how could you deny it? They weren't the only cause of course; but they certainly played a pretty big role in it.

Of course, being the fucking Supreme Court, they had the power to do so. See Marbury v. Madison.

As far as I can tell, John Yoo never had the legal power to decide what the law is. How you can ignore this distinction is beyond me...

4/23/2008 10:44 PM  
Anonymous Anonymous said...

Oh I read Leiter's piece already.

But some of us disagree that a law school should do nothing until the professor is convicted of a crime.

Some people disagree that a large university is incapable of conducting investigations into potential crimes. Apparently the drafters of Title IX thought so too.

4/23/2008 10:48 PM  
Blogger Armen said...

Absolutely right. Some of you think the university should investigate the "activities" of its professors. Some of you think that even if there is no specific crime, and even if Congress has specifically protected the underlying acts, the university should expel those involved because there's a "higher" truth, and basically everything else from circa 1952.

So I ask again, other than your ipse dixit, what do you base your views on?

4/23/2008 10:53 PM  
Anonymous Anonymous said...

What are you talking about, "no specific crime"?

Torture was outlawed by federal law, as were violations of the Geneva Conventions through the War Crimes statute. See 18 U.S.C. 2441. Liability for someone in Yoo's position attaches under 18 U.S.C. 371 (conspiracy) or 18 U.S.C. 2 (aiding and abetting).

And Congress did not retroactively make those crimes legal, it merely provided immunity from prosecution. Since the University isn't going to prosecute him, the question of immunity from prosecution is irrelevant.

4/23/2008 11:01 PM  
Blogger Armen said...

Right, you say it's a crime, so it's a crime, so the university should go guns blazing. I get that. But your opinion, and the opinion of your ilk, to be crass, means diddly squat. To quote the other Jeffrey Lebowski, the millionaire, "I'll say it again. You told Brandt on the phone. He told me. I know what happened. Yes? Yes?" What else, other than your self-righteous views of right and wrong do you have to justify the greatest public university destroying any meaningful definition of tenure? Again, what you think really doesn't qualify.

4/23/2008 11:14 PM  
Anonymous Anonymous said...

I'm just following along at home here (for the record, I agree 100% with Armen, but that's not my point), but I just have to point out the lovely characterization of the original post in the "links to this post" section at the bottom of the page. Makes it sound like the students were applauding the torture memo. Someone has a future in the national media!

4/23/2008 11:21 PM  
Anonymous Anonymous said...


I'm sorry to see you devolve into ad hominem attacks.

You claimed there was "no specific crime", apparently unaware that there was such a thing as a war crimes statute. I pointed out to you the obvious theory of liability, and your response is, "Your opinion doesn't mean squat"???

I thought you guys were supposed to be law students...

4/23/2008 11:26 PM  
Blogger Armen said...

Well I do have degrees from Harvard, Yale, MIT, the Sarbonnes, the Louvre...

But more importantly, it does not take a law student to realize that the existence of a statute does not mean anyone has committed a crime. If I recall my 6th grade field trip to the court house, you need a conviction for that. But you don't think the university should have to wait for that. You think the university should begin judgment yesterday. Chancellor Birgeneau, from behind a computer screen where he plays counter-strike all day, should hale the blasphemer before his accusers from the 510 and 415 area codes. And make him pay. Oh he shall make him pay.

Which brings me back to my point. I'll grant for argument's sake that you're right ("about the ox?" "About everything damnit), that you think a crime was committed. So what? Why does it matter what you think? Why should the university, again, eviscerate tenure as it is presently understood because YOU think a crime was committed.

The answer is, it shouldn't. Your opinion matters as much as mine. And by insisting that the university use its powers to fire him from a tenured position, you are in fact insisting that the university first engaged in a witchhunt based on stated opinions about a matter of constitutional that is NOT clearly resolved and second fire someone without any outside, objective basis to do so other than the university's belief that such conduct should indeed be punished. Yes, the university, the great thought police. I realize that such a role is pleasing to the nutcases on the far right and the left, but it has no place in a society that even wants to pretend to value the free and open exchange of ideas. *

I can see the rant coming that his actions had consequences. And again, we're back to square one. You think the actions were wrong. Good for you. Now go vote, and leave the university out of it.

4/23/2008 11:38 PM  
Blogger Armen said...

Wow, bad grammar, typos, hmm, I wonder if I'm working late. Just ignore the substance and respond to the well-placed Simpsons references please.

4/23/2008 11:40 PM  
Anonymous Anonymous said...

First of all, I was responding to your claim that there was "no specific law" at issue.

Second, apart from my own opinion, there are plenty of known facts that suggest Yoo committed crimes. The Administration has basically admitted that it water-boarded detainees, and it has admitted using a lot of other techniques that probably constitute violations of the Geneva Conventions. It has also admitted -- through the words of George Bush himself -- that it relied on the legal opinions justifying this behavior.

If you honestly think that there is nothing more than "my opinion" to suggest that Yoo is criminally culpable, you haven't been paying very much attention to what has happened.

"And by insisting that the university use its powers to fire him from a tenured position..."

Actually, what I'd like to see the University do is to conduct an investigation. Nowhere have I "insisted that the university fire" anybody.

This isn't about the exchange of free ideas. Nobody is saying Yoo should be fired or even investigated because of his viewpoints. It's a question of whether he committed a crime. If he was being accused of sexual molesting a student, and the University was investigating him for that, you wouldn't be screaming breathlessly about academic freedom being destroyed forever.

This is fundamentally no different.

4/23/2008 11:54 PM  
Anonymous Anonymous said...

Oh, one other thing:

"Now go vote, and leave the university out of it."

Well now, there is also the matter of us alums giving money to the school... Or not. See, I can afford to do a lot more than shut up and vote.

4/23/2008 11:58 PM  
Blogger Armen said...

I said "there is no specific crime" not "specific law." Since my previous post is riddled with typos, I'll assume that was carelessness and not an attempt to make the fact that you're relying on your own opinion that a crime has been committed. There are facts man, facts. He did some shit, man. We should have the Peace and Justice Commission investigate.

But let's get off the VW van, and back on to the reason train. Are you suggesting that universities "investigate" [WTF does THAT mean? Hold hearings? Ask people to name names? Wiretap convos? Too soon?] any professor "accused" of a crime by, for example, loonies on the left who think killing a june bug is a crime? Should, let's say, UT, have investigated accusations that some of its professors violated the sodomy law of Texas in say 2002? Any accusation? Is that right?

And Title IX is the government using its funding power to coerce the universities to do what it wants. This was one of the issues at stake by the crazy lefties who challenged the Solomon Amendment. They forgot that there were actually some liberal causes that the Federal government coerces. But that's a sidetrack-Armen rant.

I'm still waiting on your standard of when you think we should destroy the meaning of tenure. And I realize you won't rest until the Regents of the University of California adopt that as the official bylaw of the University. Yes, when you are accused of a crime, by some dude on a blog, we will investigate you. Even if you can never be found guilty of that crime. F*ck it, we're the UC, we tell you what's right and wrong.

4/24/2008 12:08 AM  
Blogger Armen said...

Well now, there is also the matter of us alums giving money to the school... Or not. See, I can afford to do a lot more than shut up and vote.

I think the UC should investigate you for withholding donations. And your employer should fire you. I think this, therefore it's true.

4/24/2008 12:10 AM  
Anonymous Anonymous said...

"I'm still waiting on your standard of when you think we should destroy the meaning of tenure."

"Destroy the meaning of tenure?" Come on...

You seem to think that the concept of tenure as it exists now is absolute, and that should anybody lose it, there will no longer be any such thing.

As far as universities investigating, yes, they're quite capable of it. Especially given that we're a goddamn law school. There are faculty members who were judges, prosecutors, and defense attorneys -- people who did this stuff for a living, or at the very least, understand something about the process.

You think a bunch of randomly-chosen grand jurors looking at a ham sandwich are better prepared??

Surely you understand that this would not be the first time someone in the history of academia was threatened with the loss of tenure - what do you think the university usually does in those situations?

"Yes, when you are accused of a crime, by some dude on a blog, we will investigate you."

So let's clarify your position: Do you honestly think that there's no evidence Yoo committed a crime, apart from accusations by "some dude on a blog"?

4/24/2008 12:21 AM  
Blogger Armen said...

No, that's not my position at all. My position is it's none of the University's damn business. Judges, when they're judges, prosecutors, when they're prosecutors, and those who enjoy the succulence of a ham sandwich while sitting in a jury box are in that business.

You, however, think that the university should GET IN that business because those jerks in Congress decided contrary to your views.

Should the University "investigate" the existence or non-existence of evidence of the crime of links to terrorist organizations? Should the university investigate the existence of evidence of jay-walking?

I mean for the 1000th time, you don't want Yoo teaching. Good for you. I disagree. Should the university now act as a Judge Judy and decide which one of us is right? Really? That's your idea of the role of the University?

4/24/2008 12:29 AM  
Anonymous Anonymous said...

Heh - Faculty member Chris Kutz as quoted in the comments on Volokh Conspiracy:

"To the extent that the Bybee memo goes beyond the hypothetical exploration of an ex post defense to a charge of torture and actually lays out ex ante an institutional space for torture (grounded in the qualified immunity of officials relying on its legal advice), I believe it is tantamount to criminal complicity."

I guess Kutz is just another whacked-out smelly hippie dude on a blog.

Look, I'm going to bed for now. But I'll bet you dollars to donuts that in a few years, as yet more evidence comes to light, that Boalt Hall is going to change its mind about Yoo.

Either that, or he'll resign first.

4/24/2008 12:30 AM  
Blogger Armen said...

Let's go to the People's Court...at the University of California, Berkeley (appropriately named, some say) to decide Kutz v. Yoo.

I'll bet you a dozen donuts on the former. I never underestimate the power of crazies on either side to suppress the views of those with whom they disagree, so I won't take the bet on the latter.

4/24/2008 12:34 AM  
Anonymous Anonymous said...

Your argument #3 shows that we all (who have not taken Yoo's class) might have some legitimate concerns that you all (who have taken his class) might have been influenced by his beyond-ultra-right-wing notions of executive power. Furthermore, while law students are smart, they are still forming their perspectives on the law and are open to persuasion, especially if they already have a political leaning in that direction. So it would be amazing if at least some few do not graduate Boalt believing some of those outrageous things that Yoo put into his memos. And then with that prestigious degree they get hired by a conservative SCt justice, or by some future Republican administration. And before you know it, these extreme outlier ideas are adopted into the mainstream. If you think it can't happen, all you have to do is look at Yoo's own career, attending Yale, clerking for Thomas, hired at Boalt, and -SHAZAM!- making a supreme monarch out of the U.S. president.

11/13/2008 11:56 AM  
Anonymous Anonymous said...

How amusing I found all this. I hope some of you are still reading.

I don't know if the class JY taught was a mandatory class that no one could switch out of or otherwise choose a professor for. That makes a difference in whether people cheered. If people selected the class, then they apparently had little problem with JY ex ante. If they were assigned the class but did not switch out when they had a chance to switch out, same thing. The group then might not have had a big problem with JY in the first place.

Seems to me that Boalt students should all refuse to take classes from this professor. I would refuse if I were you. Boalt students can still refuse, and I hope they do, going forward.

Oh, BTW, what is the rule for taking tenure from a professor? And, what are some of the precedents? Those might be good places to focus this unfocused discussion.

But at all times keep in mind that because Yoo's crime was so big and was done in the service of "America," he will never be prosecuted. It's OK to torture and kill - in the name of America. H*ll, you can torture for America, and people will defend vigorously your right to keep your tenured position at one of America's preeminent law schools - as we see here! The reality, of course, is if Yoo were to lose his tenue, he'd get a tenured gig at a conservative law school. And he'd spend the rest of his life, funded lavishly by the Heritage Foundation, going around and complaining about how the liberals took away his tenure. He'd fit perfectly into the right wing victim narrative. I think there are other right wing victims, aren't there? Oh, yeah - the last one was Robert Bork, back in 1987.

If, on the other hand, Yoo had been telling hillbilly clients in rural Maryland that they can torture animals, and if he twisted the law to show how they could do so legally, I bet he would lose his tenure. (I don't know if prosecution is a necessary or sufficient condition for losing tenure. See above point about focusing on the standard and precedents.) He'd even be prosecuted, I am sure, and vilified in the mainstream, corporate media (that serves the interests of America at all times - see, g.g., the run-up to Iraq War). The bottom line is that when you act in line with the powers that be, you will be safe from real harm. That seems to be a lesson of law school. Students probably took that lesson to heart when they cheered Yoo, *as he had not graded them at that point.* Yes, grading is anonymous, but a professor can go low or high on the curve, perhaps, not moving grades up when he could, if he didn't like the class as a whole. He could decide not to give students who are not clapping, or any students at all if none clapped, a grade increase for "participation." I might be wrong here, but I would bet that many if not most students harbor some fear that a professor can exact retribution against them if he really, really wants to, anonymous grading notwithstanding. If you disagree, ask yourself why, at most law schools, professors, even anonymous grading professors, are not permitted to see the students' course evaluations until after the professor turns in grades?
- Brian

8/29/2009 11:37 AM  
Blogger Patrick said...


The standard for tenure about which you inquire is, "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents. The relevant standard is "unacceptable conduct," which has a rather precise definition:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. (Academic Personnel Manual sec. 015.)

See also this thread for more recent discussion.

8/29/2009 11:44 AM  

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