Saturday, April 19, 2008


Academic freedom and the power of debate

Brian Leiter has taken sides in the debate over John Yoo's job at Berkeley, and I think he has taken the right side. One great danger to the academy is the impulse to eject some people because we think their ideas are wrong. It is, after all, the intellectual engagement with those we think are wrong that defines academic debate, and such debate is our second-most important function as professionals (after teaching). Without those we disagree with involved in the discussion, it can hardly be called either academic, intellectual, or a debate.

For those of you who have not been following the kerfuffle, John Yoo is a former DOJ official (with the Office of Legal Counsel) who is now employed as a law professor at UC-Berkeley's Boalt Hall school of law. During his time with the DOJ, he was a principle author of several documents which justified the use of torture and argued for an expansive view of presidential authority at the expense of individual rights and governmental checks and balances. Because of this, some strongly believe that he should be removed from the faculty at UC-Berkeley.

Some of the same issues arise in the new Ben Stein movie, Expelled, which was reviewed this morning by Razor Hero of Writing Carl Hoover. Intriguingly, both Ben Stein and John Yoo went to Yale Law School. This may be surprising to some people, given the liberal reputation of the place, but other grads include Pat Robertson, Justices Alito and Thomas, and current Attorney General Mukasey (whom I got to debate on the pages of the Waco Trib a few weeks ago). From my own experience, I can say that the diversity of strong opinions within the student body there convinced me of the need for a variety of voices within any worthwhile discussion.

In my present life as a law professor, there are people in the intellectual worlds I inhabit with whom I strongly disagree, but I count some of them among the smartest people I know, who regularly hone my own ideas. Without that diversity of thought, we academics would be a bunch of like-minded people sitting around complaining about "the others," and that is not a role going unfilled in American society right now.

kerfuffle? can I used that in Scrabulous?
Speaking of controversy, would you mind weighing in on the FLDS raid and the legality or lack thereof of what's going on? I finally got around to risking my job status by putting up my opinions today, but I'd like to hear yours. Also, if you're not reading Grits For Breakfast (, you should be, you'd love it.
I would be interested to hear your opinion as well, Osler as it really is a jumble of the law and religion all in one....

One thing I noticed was that they (the FLDS people) had like a press conference the other day and it seemed really rehearsed and staged... I noticed something weird All of those ladies? All of their hair was PERFECTLY done.. I mean really intricate braids and just like too perfect.... I cannot speak for them, and I would be devastated if my house were raided and they took away my child.... But I KNOW that I would be WAY too distraught to worry about my HAIR you know?

Leave it to me to notice the stupid things... but it left an impression on me, like I don't trust them or not that I do not TRUST them really but more like... you know like they had an agenda and had all "lawyered up"... you know? ike it was staged or something... It was weird...

Well I did not want to hijack this post... so... but those are my initial thoughts on that.
The problem is that people anywhere on the political spectrum can attempt to use political power to quell dissenting views in academia. It isn't just a right-wing thing or a left-wing thing. It's a power thing.

However, there is something unique to the American psyche that often leads us to root for the underdog, or in this case, to give credence to the minority view. That's what makes the Galileo Fallacy such an effective, if flawed, rhetorical tool in United States.

I haven't seen Expelled, and I presume I won't till after finals, but I'm eagerly awaiting it because if there's two things I can't stand its Ben Stein and Richard Dawkins. Pitting the two of them together in a gladiatorial death match is a fond dream.

All joking aside, the problem here is that people often think that we must "protect" intelligent individuals from "harmful viewpoints," or that institutions should avoid endorsing controversial points of view. I think that's bollocks, to be honest. Any time we make an institution (political, academic, whatever) a defender of the status quo all we do is encourage ideological conservatism of the worst stripe. We create an artificial barrier to progress simply because we're worried about bad effects instead of doing what otherwise rational principles would lead us to do.

If, instead, we encouraged students to learn about teleological theories and the theory of evolution (or in the Yoo case, the scope of executive power under the US Constitution and how various scholars interpret its scope) what we'd have is informed, reasoned discussion instead of knee-jerk political muckraking.

As an added benefit, such an open and frank exchange of ideas might quell the shrill voice of David Horowitz, that stalwart champion of pseudo-Galileos everywhere, in his tireless campaign to expose the Academy as a terrorist organization.
I find the linking of Yoo with "Expelled" to be fortuitous, in light of the point I'd like to make. Yoo didn't just publish a "dissenting view," or "express opinions I don't like" - from what I've read, his memos were truly awful *as legal memos*, (a memo on executive power that doesn't cite Youngstown Steel even once?!) making sweeping assertions either without citations or to a source that actually contradicts the assertion.

So, am I saying that Yoo is a lousy lawyer, and if so, what has that to do with "Expelled"?

No, I imagine that Yoo has a fine legal mind, but also that he deliberately used that mind to create the illusion of support for a legally insupportable conclusion. And he did this, not in an adversarial context (where it would still be wrong), but in the context of a memo, where all aspects of a legal question are meant to be given at least a fair presentation.

This is why I think Yoo should be investigated, and possibly fired, and where I see a parallel to "Expelled", which should be roundly ignored. Not for expressing unpalatable views, which would fall within the realm of academic freedom or free expression, but for dishonestly manipulating facts and distorting or abandoning logic in order to to give a pernicious falsehood the veneer of a respectable idea.

Rhetoric is certainly part of the marketplace of ideas, and we wouldn't have much left if we silenced everyone who sometimes lies or exaggerates in support of a viewpoint. But neither should we lend our support, through academic tenure or movie-going dollars, to those who demonstrate by their actions such contempt for the tools by which we try to arrive at truths.
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