Wednesday, May 6, 2009

Constitutional Interpretation, Literary Interpretation, and "torture memos"

Ig9r4sm63skxcd575qx6ge5vhhrcc4w In a provocative essay in the Chronicle of Higher Education [subscription required to view],
 Peter Brooks, the distinguished literary scholar now at Princeton, writes:

Literary scholars can be, and are, faulted for their interpretations, which may in any case never win them a secure job. But it's almost unimaginable that they could be fired for faulty interpretations, or be stripped of tenure or membership in the Modern Language Association. So it gives one pause to learn that John C. Yoo, a professor at the University of California at Berkeley's Boalt Hall School of Law, is subject to an investigation that could conceivably lead to loss of his professorship or his membership in his state bar association, or both.

The investigation, undertaken by the Justice Department's Office of Professional Responsibility, seeks to determine whether memoranda — written by Yoo, when he was at the Office of Legal Counsel at the Justice Department, and his colleagues there — were so flawed as legal interpretation that they did not meet legal standards.

The question that interests — and troubles — me here is this: Can one be guilty of misinterpretation to the degree that one is punished by loss of one's license to interpret?

Brooks eventually makes some distinctions between literary and legal interpretation, as well as between academia and legal practice.  While it might be more strongly argued, it does illuminate some of the ways in which law is text and the ways in which law is not (merely?) text.


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If Professor Yoo was convicted of a crime, say, participating in a conspiracy to torture in violation of the US antitorture statute, or as an aider & abbettor, his tenure could be lifted.

If that is so, isn't it possible to remove his tenure, even in absence of a criminal prosecution?

If a Supreme Court Bar would disbar someone, wouldn't that be a sufficient basis for removing tenure from a law professor?

I think that acting as a lawyer opens someone to scrutiny for their conduct in ways that would not apply to a law professor in a class or in an article claiming that torture was ok, or that waterboarding was not torture.

To say all this is not to say anything about the facts and the law as to Professor Yoo. Indeed, I think a tenure removal case would raise important and hard to resolve procedural and substantive questions that would need to be answered. And, so far, they haven't.

Posted by: Mike Zimmer | May 8, 2009 11:48:24 AM

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