The Right Coast

June 17, 2004
John Yoo and Boalt Hall
By Tom Smith

This is an important read. It certainly is the case that it would be a big blow to academic freedom, not to mention the reputation of Boalt Hall, if they gave in to intimidation by law students, who in this case haven't a clue what they are talking about, to fire Professor Yoo for writing a memo when he was at DOJ saying the Geneva convention did not apply to illegal combatants. I gather the students' view is that Yoo should be fired for advising his client what the law said, even though or if that is in fact what the law said, because they wish the law said something different.

So let's get this straight Now we're supposed to lie to our clients about what the law is, because the law as is might turn out in the future to be a politically unpopular position? May I tell my client that capital punishment is the law in Texas, even if it is politically incorrect?

It is embarrassing enough for Boalt Hall that their students should take such a ridiculous position. I have just been assuming that in due course, the administration of that distinguished law school will send the students a polite letter informing them that tenured professors are not fired because students disapprove of legal memoranda they wrote while fulfilling their professional and Constitutional duties to the government of the United States. Under any other logic, I suppose, Boalt Hall would also have to fire any professor who had served in any capacity, such as the armed services, of which the petition-signing subset of the Boalt Hall student body (I'm thinking the bar scene in the first Star Wars movie) do not approve. Goodness, I am hoping the early 'seventies, when any rump group of half-informed and half-stoned students with a bullhorn could intimidate administrators into submission, are long gone. That turned out badly, remember?

And not only that, but is there the slightest chance Boalt Hall could fire Yoo without violating any number of state and federal laws? Not exactly my area, but I doubt it very much. I wonder what the likelihood is that those brave petition signatories, this marine corps of the politically correct, would like to indemnify the University against any liability they might suffer for, oh, breach of contract, to begin with. I bet the landing craft of these heros of the left would be depopulated faster than the ones at Omaha Beach. "Just because I want to fire this guy doesn't mean I want any consequences for me!" Here's an idea. Let's post the names of the signatories on the web, and that way prospective employers can find out who the idiots are. "I see you signed the Yoo petition, Mr. Peabody. How is that consistent with the University's status as a public employer? I see. And as an associate at this firm, would you not see it as your duty to tell the clients of this firm what the law was, however much you might disapprove of that law?" That kind of torture, in my opinion, is definitely legal.

And I'm sure Boalt Hall doesn't want the kind of attention it would get from the Governor's office and Washington, D.C. if they pulled a stunt like firing a professor at a public law school for the good faith performance of his duty as a public servant. Just off the top of my head, let's see: Would the Senate Judiciary Committee take an interest? The Department of Justice? The White House Counsel's office? The Department of Education? Any agencies that give grants to Boalt Hall, to UC Berkeley? Is there any statutory law that would be violated by such a termination? Would it amount to discrimination against someone for having been a federal employee? Is that legal? Is legislation necessary to address such discrimination? I'm sure people in the UC System would love to come to Washington and testify about that. Especially those who supervise the law school administration. There's no reason, of course, that you can't have any number of public inquiries going at the same time, at both state and federal level. Then there's private litigation, not only against UC, of course, but against decision makers personally, who may have been acting ultra vires when they made such a decision. At least, that's the way they may see it in Sacramento. But I'm sure those are sacrifices anyone who would fire Yoo would be willing to make, in order to do the right thing. I would not fire Yoo, but before I did, I sure as hell would have a legal opinion from counsel and an indemnification agreement so that if I did so, I would not be personally liable. But then, I'm not as brave as some people. I am not, for example, a Marine of the poltically correct.

Come to think of it, contracts is my area, and such a termination sure looks a lot to me like bad faith. It is a breach of contract to fire someone for testifying truthfully under oath in a way you as an employer don't like. Sounds a lot like a government lawyer advising his client faithfully and then getting fired for having done his public duty. Discovery here we come. It would make a nice case in a contracts casebook.

But, as I said, it would be just so unbelievably stupid for UC Berkeley to do such a thing, I just don't believe they would do it. Maybe they should say that so people like me can relax. It would make a nice contracts case, though.