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John Yoo, Karl Bendetsen, Firing, and Hiring

By Eric Muller

Some are mooting the idea of stripping John C. Yoo of his tenure at Boalt Hall, but I recoil in horror from the notion. I say this not out of any admiration for the legal advice he rendered while in the Office of Legal Counsel, nor because of any personal connection to him. (I met him only once, before his OLC days, when he was on the Federalist Society's law school speaker's circuit.) I say it because firing academics to punish them for their views is abhorrent. I suppose I might think about it differently if Yoo were someday convicted of some sort of criminal offense for his OLC activities (which strikes me as very unlikely). But if Boalt Hall were now to fire Yoo, it would, I think, go down as one of the more serious blows to academic freedom in our nation's history. I guess this aligns me more with Sandy Levinson in the disagreement he is having at Balkinization with Stephen Griffin, who, as I read him, is arguing for Yoo's dismissal. Griffin's analogy of Yoo to Karl Bendetsen subtly shifts the inquiry, however. He asks how we would respond if Bendetsen applied to teach a course on military law at our law school, and suggests that Boalt Hall will continue to have a Yoo problem so long as there are lots of people who would not hire Karl Bendetsen. I would not hire Karl Bendetsen into a tenured or tenure-track position at my law school if he were circulating his CV after his stint in the Western Defense Command helping to engineer the incarceration of Japanese Americans. But if he took a leave of absence from my law school to work in the Western Defense Command, and there ended up helping engineer that program, I would not fire him when he got back after the war. (It's worth noting, in this connection, that the Leflar Law Center, the home of the University of Arkansas School of Law, is named for Robert A. Leflar, a former dean who, as a government lawyer, helped to run the Jerome and Rohwer War Relocation Centers in Arkansas.) It strikes me as pretty easy to make the case for not hiring John C. Yoo -- and, it goes without saying, for not conferring on him the honor of a distinguished lectureship, as Canisius College very recently did. Crossing the line to firing him would be a fateful step.

Full post as published by Is That Legal on April 16, 2008 (boomark / email).