A Tortured Dialogue on John Yoo’s Tenure
Everyone else has taken a whack at the Yoo-tenure-pinata. I felt left out, so here goes, in irritating dialogue form.
Pro-Yoo: What Leiter said.
Anti-Yoo: But would those arguments stand had Yoo actually participated in state-sanctioned torture?
PY: Probably, so long as he held his belief in the legality of the conduct in “good faith.”
AY: This seems like an extraordinary barrier to firing. And isn’t it pretty obvious that tenure is a cross-subsidy, protecting the job security of non-mobile professors at the expense of those who are productive scholars? Not to mention a spur to vice. Forget pot. Why do Spitzer and most public school teachers lose their jobs for soliciting prostitutes, when professors can (apparently) do so at will?
PY: Slippery adjudicative slopes.
AY: I hate those guys.
PY: What about the pro-knowledge, pro-civic, pro-dissent, aspects of academic freedom?
AY: Show me data supporting the view that tenure promotes civic engagement & ideas, and I’d be more comforted. I bet that in a world where tenure wasn’t mandated by the Bar, we’d have better scholarship, fewer bad teachers, and we’d be under significantly more pressure to respond to well-founded student dissatisfaction about their job prospects. Tenure enables complacency, not risk-taking. Claims about the pro-social aspects of academic freedom seem romanticized, at best, given research showing that tenure doesn’t significantly affect the research output of successful scholars. Basically, good scholars don’t need tenure to take risks and innovate. Bad scholars are helped to see the path toward the deeper, deader, part of the woods.
PY: You are conflating tenure and academic freedom. One might fairly believe that academic freedom is important without thinking much of tenure as a way of preserving it. And what about selection bias? Maybe tenure’s insurance effect encourages risk-averse people who might otherwise be lured into other professions? It promotes the warehousing of bigger, albeit more nervous, brains in the academy.
AY: To what end?
AY: What did you call me?
PY: Obtuse! It’s obvious: knowledge production.
AY: The empirics of that argument are dubious. And regardless of the general academic freedom arguments on the table, doesn’t it seem like the case for Yoo’s tenure is based, to a surprising degree, on his state of mind & long-track record of consistent positions in law review articles? Can his entitlement to continued job security really turn on whether he believed his own (wrongheaded) analysis?
PY: First, the overwhelming majority of the people attacking Yoo have no substantive expertise in the subject matter, and are taking others’ word for the conclusion that the analysis was shoddy, incompetent, or otherwise unprofessional. As Orin Kerr pointed out, it at least smells like lawyering. Second, it seems like this good-faith argument isn’t all that strong anyway. Maybe he, like many in the academy, advances normative arguments because he gets utility from the intellectual game, when the grounds for those arguments may be as yet undeveloped. (Think, for instance, of the recent exchanges about the empirics of capital punishment). Intent is irrelevant. A better defense of Yoo’s job security is simply that tenure is a legal status, born of contract, and he hasn’t breached its terms. The university has no higher duty to society that would require it to breach its obligations to Yoo to give him the benefit of a process and a pre-set standard.
AY: So your basic position is that John Yoo gets to keep tenure because a contract is a contract is a contract?
PY: Contracts uber alles!
AY: So if the Berkeley faculty were really appalled at Yoo’s behavior, the way to send a message would be to vote to de-tenure themselves and then separately bargain for job protection and salary? That way there would be no breach, assuming that the faculty retains the power, by majority vote, to change the conditions of its tenure system.
PY: That’s a low blow. He’s a “hardworking and responsible member of [the] community” who flew too near the flame of power. They’d rather let the marketplace of ideas decide whose view of the world is appropriate.
AY: Even though it was the school’s reputational glow that enabled Yoo to have influence over policy in the first place? Do you think that had Yoo been a professor at a fourth-tier law school he would have been able to successfully outflank the State Department?
PY: No. But the idea of a faculty detenuring itself to express its views on policy is beyond fancy: it’s goofy.
AY: But if that’s the case, and no one seriously thinks that John Yoo is in any danger of losing his tenure, then why is everyone talking about this?
PY: Symbolism and veiled partisan identification.
AY: Does that kind of cynicism actually help you make friends?
PY: Not yet. But what’s your explanation?
AY: Be more charitable! Lots of people believe that by defending academic freedom they increase society’s ability to tolerate unpalatable opinions. That’s at least plausible. Academic freedom might not require tenure, but it is the world we live in. Besides, aren’t you up for tenure soon too?
PY: Er, yes. I take it all back. John Yoo should keep his tenure because without tenure, dissent would be stifled; the marketplace of ideas left as barren as a Wal-Mart rice shelf;and the jackboot of fascism firmly lodged in the vulnerable neck of our youth. Thank you John Yoo, you are the canary in our little coal mine.
(Image Source: Wikicommons, Woodcut image of water torture, J. Damhoudere.)