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Boalt's Yoo Problem

By Jack M. Balkin

With much respect for Sandy, I think he's stuck with an unenlightening set of analogies: impeachments and controversial opinions. Boalt Hall does have a tricky problem on its hands. This isn't like the William Shockley case from the 1960s, where an academic accomplished in one field (inventing transistors) goes off the deep end in another (eugenics). Here Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert. Further, it's not like cases involving academics choosing to have eccentric opinions in their areas of expertise. Here the "opinions" had very real consequences, ones Yoo had to be aware of in advance.

For a better analogy, imagine if Karl Bendetsen applies to teach a military law course at your law school. Karl is a JAG officer who is employed by ROTC on your campus. He got this job after the war ended. Karl spent the war playing a key role in devising the internment of citizens of Japanese descent in remote camps. He is well versed in military law and knows a good bit about constitutional law. Should Karl be paid to teach your students? I say no. To the extent others agree with me, Boalt will have a continuing problem.

And in brief: the opinions Sandy cites (like Marbury!) are controversial, not incompetent. And Bybee could be impeached if he played an active role in these events, but it really sounds like he did not.

Full post as published by Balkinization on April 15, 2008 (boomark / email).