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Brian Leiter
University of Chicago Law School

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Wednesday, April 23, 2008

Thoughts from a Berkeley Professor on the Yoo Case

A law professor at Berkeley writes:

Your postings on academic freedom and the John Yoo case have been pitch-perfect, from my point of view. Thank you for bringing some sanity to a sad and challenging affair.

This is obviously a very painful topic for those of us at Berkeley, for a whole host of reasons.

(1) There is the sadness at seeing a colleague, foolish perhaps in his desire to be near power and/or have his voice heard, and substantively (in my opinion) about as wrong as he could be, but a hardworking and responsible member of our community, having his reputation and career taking a beating; even a self-invited beating is painful to watch when it is in progress.

(2) There is the sadness at seeing our integrity as a community challenged. Like many US law schools we welcomed a number of prominent European Jewish emigres during the WWII years (e.g., David Daube (Freiburg, Oxford), Albert Ehrenzweig (Heidelberg, Vienna), and others); I believe this not only helped launch the university into the first ranks of research universities worldwide, it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses. In light of this history, at a personal level I thought long and hard about how I should treat John Yoo when he returned to campus; many of us still struggle with questions of how to balance concern for complicity with the requirements of collegial civility. Even so, never once did I consider a move to revoke John's tenure, because he was in complete compliance with our standards. Only if that changes, due to a criminal conviction or the like, would it be appropriate to revisit the issue, in my opinion.

(3) This is painful because many people who do not know us might perhaps assume that John's work is representative of our views. As you well know, he is as much of an outlier here as he would be at most US law schools.  Consider for example the work of my colleague, Chris Kutz. His essay on "Torture, Necessity, and Existential Politics," 95 Cal. L. Rev. 235 (2007), is a wonderful counterpoint to the memos John Yoo worked on, and it
expresses something much closer to what I believe is the consensus of the Boalt Hall faculty regarding the torture issue. (Incidentally, Chris' book, Complicity: Ethics and Law for a Collective Age, New York:  Cambridge University Press (2000), has been a big help to me in deciding how to relate to John in light of his official actions.) Anyone looking into
the John Yoo issue, and particularly wondering how his views fit with those of his colleagues, are advised to consult Chris Kutz' work. Indeed, this is perhaps the best way to
demonstrate our views on academic freedom. We are not afraid to let John say what he thinks, because Chris can say what *he* thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell.

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