More Yoo-hoo

A lawyer’s words are sometimes deeds: sometimes, indeed, crimes. But bad lawyering, even criminally bad lawyering, isn’t a good basis for stripping a professor of tenure.

In addition to James Winberley’s note below, my post on John Yoo, bad lawyering, and tenure has drawn lots of email reaction.

One point that I didn’t stress sufficiently in my first post: In some circumstances, a lawyer’s words are actions, in a sense not true of the words of professors of English literature or public policy. My opinions about drug policy, no matter how cogently stated, don’t give anyone permission to do anything. An opinion from the Office of Legal Counsel, by contrast, (or an opinion letter from a private lawyer to her client) can be a license to act. That was the case with the Yoo memoranda.

On James’s points: Yes, law school is, in part, trade school, and arguably incompetent practice of the trade, even falling short of crime, might cast doubt on a professor’s competence to teach the trade. (Public policy school, where I teach, is also partially trade school.) It’s also preparation for a licensed profession for which “good character” is a formal entry criterion. So perhaps it should be the case that a law professor who displays a certain type of bad character disqualifies himself from teaching law.

But in real life the tenure rules have to be clear, or the protection they provide for intellectual freedom will be nugatory. (That’s true even in non-political contexts: the tenure of organismic biologists needed protection from the molecular biology movement, and the tenure of the early string theorists needed protection from colleagues, including at least one Nobel laureate, who claimed that what they were doing wasn’t actually physics.)

So we should ask the question, “Was Yoo’s lawyering bad enough that it would have triggered a move to strip him of tenure in a case less politically charged?”

A reader points to a nice non-political parallel to the Yoo case. The Department of Justice is now prosecuting a tax lawyer for writing opinion letters to facilitate a tax fraud. There is no charge that the lawyer helped prepare the fraudulent returns: the charge is that offering the opinion was part of a conspiracy to cheat the IRS.

Now let’s imagine that the lawyer in the case was a professor of tax law at Boalt. If he were convicted and disbarred, no doubt his tenure would be revoked as a matter of course. But what if the case was dismissed because the prosecution had blown one of the deadlines under the Speedy Trial Act. Should Boalt constitute a committee to consider whether the professor’s opinion constituted such egregiously bad lawyering as to warrant dismissal? Perhaps. Would it? I don’t think so. The professor would say, “The court upheld the government, but the opinion I gave was reasonable as a matter of the law as it stood at the time.” He’d find at least on law law professor elsewhere to agree with him, if not on the substance then on the question of reasonableness. And that would end the matter.

So as a matter of the actual practices of law schools, I think professors do not put their tenure at risk for taking outlandish positions in the practice of law. That being so in non-political cases, it would be hard to see an attempt to unfrock Yoo as other than a political action, especially since there would almost certainly be other right-wing law professors willing to testify that his opinion was within the bounds of reasonable legal discourse.

So I remain with my initial, uncomfortable conclusion. John Yoo quite possibly belongs in the prisoner’s dock. But it’s not the job of his colleagues to put him there. They voted him tenure, and they’re stuck with him.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: