What a fine letter from Delong, and what an unbelievably patronizing response in reply.
Twas a good letter from Delong. The reply makes no sense. Plus, one of the defenses to defamation is truth, is John Yoo really going to sue UC Berkeley for defamation and then have to defend his conduct on the witness stand? I don't think so.
As I said before, how can a fact finding commission be defamatory, unless as SP suggests, facts have a liberal bias?
But yeah, ugh.
Besides that, there's the practical problem of finding committee members with the expertise you outline.
Good point. After all, where would one go to find people with such diverse experience in "moral philosophy, the role of the university, international relations, human rights, and constitutional law?"
Nevertheless, nothing I've read in the bylaws that convinces me the Senate has any standing in the matter.
"It's not like he said something nasty about black people are something. He said nasty things about Arabs terrorists!"
If there's a showing of any illegal act or actionable breach of professional ethics, the campus administration would have the responsibility of filing a complaint.
"Academic freedom is about defending the club from outsiders, not, you know, principle or some shit like that. We can't let Yoo suffer, or goddamn, they might take away my parking space."
Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it.
"Feeelings..... nothing more than.... fffeeeeeeeeellllllllinnnnnngggggssss."
Perhaps they send a counselor out to help Dr. Yoo overcome the damage to his self-esteem.
Besides that, there's the practical problem of finding committee members with the expertise you outline.
"This is a University! We're not supposed to know anything!"
max
['Procedural liberalism falls down because the fucking liberals [*] won't follow the fucking procedures."]
[*] Broadly construed.
That was not the "administration" I'd hoped Brad was writing to.
Of course it's not defamatory. And I bet they make their students take a class on legal ethics/professional responsibility, so presumably someone on the faculty knows something about it.
Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it.
Seriously, what the hell.
After all, where would one go to find people with such diverse experience in "moral philosophy, the role of the university, international relations, human rights, and constitutional law?"
Right *here*, baby.
And I bet they make their students take a class on legal ethics/professional responsibility, so presumably someone on the faculty knows something about it.
They do and I did, though the one I took was taught by a practitioner and not a professor (he was very good, nonetheless).
Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it.
Spread the word: Drummond has Yoo writing for him.
I saw this at DeLong's site and puked then. I'm even more ashamed for my colleagues now.
Shouldn't this really be focused on the Development (aka fundraising) office?
Impact fundraising and they will change things.
They do and I did, though the one I took was taught by a practitioner and not a professor (he was very good, nonetheless).
Hmm. Are being a professor of ethics and being a practitioner of ethics mutually exclusive?
Seeing the complete pwnership of Ari is less fun than I imagined.
Good for DeLong. It's a long process, after all. Ari, you can redeem yourself! Sign on!
18 would more properly have read "likely to be a long process", but we don't stand on propriety here, do we?
18: I'm not at Berkeley. So I have no standing with their Senate. And my feeble efforts outside Berkeley have come to naught. Like I said, there's plenty of shame to go around: from Yoo, to Edley, to Drummond, to the entire UC faculty. On the other hand, this thing isn't over yet. Just because the leadership of the Berkeley Senate and Boalt's dean are proving themselves cowardly, there are, apparently, other options.
I'm mostly bummed about Edley. He really is a good guy; I wish he'd stand up.
And thank you, Walt, I appreciate that you find public shaming less edifying that you guessed it would be.
22: He is a good guy. I did a thing with him one time, and he was great. But it's hard to maintain that impression in the face of his recent spinelessness, which amounts less to procedural liberalism than craven ass covering. This guy Drummond, on the other hand, just comes off as a moron.
24: yeah I should have said "in my past experience".
I think by 'relevant expertise' Edley must have meant that the university senate isn't the right institution to determine whether Yoo committed war crimes, or whether he has engaged in professional misconduct, not that Berkeley doesn't have any ethicists. I am sympathetic to the former, but I think one could probably make a case for the latter if there was the political will. (Though the lawyers here were saying that he probably couldn't be disbarred, so...)
Which means leaning on the alumni. Or leaning on the alumni to buy Yoo a prostitute.
26: Edley didn't write the response letter, if that's what you're talking about.
Dredley -- for convenience sake. (I kid. Their positions are very different.)
I'm mostly bummed about Edley. He really is a good guy; I wish he'd stand up.
The first time Edley swung by to talk to DC area alumni after being named Dean, he basically said "I'm all for having a good relationship with alumni and alumni network, etc., but, in the end, I really don't give a shit about that and what I really want is your fucking money, and lots of it."
Wow, that response is so, so awesome. Why not just say that the Academic Senate can't censure Yoo because its members are high as a kite and too stoned to get off the couch? Starting an investigation is defamatory? The academic senate has no authority to pass a resolution censuring conduct? Thank god we have Brian Leiter around to make sure that the all-important tradition of academic freedom guarantees lifetime employment for these intellectual giants.
I don't know if it would be 'defamatory' in an sue-able sense, but a big dog-and-pony three-ring justice circus seems like it could be defamatory in some cases.
Why not just say that the Academic Senate can't censure Yoo because its members are high as a kite and too stoned to get off the couch?
Now THAT would have been a great letter. If you're going to write transparent bullshit, at least have fun with it.
I do think the "creating the panel would be defamatory" thing is quite revealing in that it gets at a psychological truth. Namely, even hinting that it someday might be possible that Yoo would suffer any reprecussion from this at all is more pain than we can bear to inflict on our colleague, and more controversy than we dare to incur for ourselves.
Now THAT would have been a great letter. If you're going to write transparent bullshit, at least have fun with it.
You just wait until more members of the unfoggedetariat get positions of responsibility . . .
I finally figured out what the comments from Leiter, Edley, Drummond, and their supporters remind me of.
"Yoo? Yoo's not here, man!"
I'm sure the Edleys and Drummonds are telling themselves some self-congratulatory story that they're the only ones who see the slippery slope clearly, and must hold the line in the face of horrible insults, lest academic freedom be wiped out by the heated mob. Whatevah. Now they're apologists for an architect of torture. Hope it feels good.
If only Yoo had used the word "nappy-headed."
Not that Berkeley doesn't have any ethicists
As Vel/leman (and Dwo/rkin) have explained, an ethicist's expertise has nothing to do with the ability to judge concrete ethical situations correctly, and still less with a personal committment to ethical behavior.
I'm okay with Berkeley doing nothing to censure Yoo, as long as he ends up at the Hague.
Leiter: Is there 'good cause' for terminating John Yoo? Clearly not. There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct. He has also been convicted of no crime. End of story.
Leiter speaks for the untouchable academic ruling caste of technocratic procedural liberalism. In the face of the actual rulers, his caste is powerless to do more than to defend itself, but they are invulnerable to populists, folk ethicists, and other commoners. When someone cited Kantorowicz on academic freedom awhile back, I was struck by the medieval nature of the concept.
Shouldn't this really be focused on the Development (aka fundraising) office? Impact fundraising and they will change things.
Excellent idea! Some concerned alumni, particularly the kind in the habit of writing big checks, could set up and publicize an escrow account to hold donations until such time as a fact-finding panel along the lines of DeLong's proposal is convened. Divestment activists did something similar back in apartheid days.
Hate to break it to you guys, being a state university makes Cal less fearful of alumni blackmail than private institutions. Not to say that the development office is useless, just less important.
Divestment activists did something similar back in apartheid days.
Did that really work?
Harvard, especially, still invests in China's petrochemical company despite Darfur.
When I stop and think about it, I don't really know what "procedural liberalism" actually means.
cal is trying to raise 2 billion donors from private donors as we speak.
He is a good guy. I did a thing with him one time, and he was great.
Hey, Ari, I think you meant to put this in the other thread.
Just give a million bucks and dedicate the "Yoo is Guilty" Chair in political science, or ethics or whatever.
http://ls.berkeley.edu/?q=giving
Did that really work?
I believe it did with respect to divestment in South Africa. Of course there was a great deal more public outrage, demonstrations, and what have you than there is over Yoo.
This isn't about the Cal Zombie Project, Will.
I don't really know what "procedural liberalism" actually means.
No assassinations.
Just give a million bucks and dedicate the "Yoo is Guilty" Chair in political science, or ethics or whatever.
Can you imagine how much fun it would be to do that kind of thing?
(And not be batshit crazy like Scaife.)
Cal is waaay down on the list of private gifts. Still not too shabby @ $ 245 mil.
http://www.insidehighered.com/news/2007/02/22/giving
Make it an anti-football recruiting issue.
But not much alumni support @ 14%. Better luck at Princeton
http://www2.acs.ncsu.edu/UPA/peers/current/research_intensive/alumgiv.htm
['Procedural liberalism falls down because the fucking liberals [*] won't follow the fucking procedures."]
I agree with max, here.
OK, I'm imagining that I have a million bucks that I'm willing to spend on some political cause. Giving Yoo's employer all that money, and not even to get him fired but just to enshrine a pithy insult to him, doesn't seem like a good investment.
I really have no idea what "procedural liberalism" is supposed to mean either. Does it just mean "respect for the rule of law"? Or is there some broader connotation implied? Because, aside from Bob McManus and his army of one, I haven't seen too many bloodthirsty revolutionaries in my time reading here.
Procedural liberalism means devoting yourself to due process as a higher good than one's desired substantive result in a particular case. You don't have to be a revolutionary to scorn due process; you simply have to be willing to say, Yoo should be fired, now, based on the evidence in the public record, irrespective of any procedural guarantees the UC may have made on hiring and tenuring him.
One of the major problems with the Edley and Drummond memoranda is the absence of any explanation of those procedural guarantees.
No fair blaming the faculty senate's cravenness on "the administration." Administrators have problems enough of their own.
OK, but as any lawyer will tell you -- and I know that there are a bunch of 'em here -- figuring out what process is due isn't easy. It's actually fairly unusual to have a disputed case of any significance where it's completely obvious as to which of a range of any appropriate procedures should actually be employed for resolving a dispute. It's even more the norm than the exception to have a dispute about what the authority is for imposing those procedures (e.g., which rule of procedure) -- figuring out those kinds of issues are the bread and butter of a lot of ordinary lawyering work, including my own.
To make this less abstract and tie it directly to the Yoo case, I haven't seen anyone argue that Yoo should be summarily fired without regard to his contractual rights or the procedures of the University of California. I have seen a lot of people arguing that, based on the evidence that's available to the public about what the rules of the UC actually are, relevant officials at UC have an implausibly constrained view about the limits of their own authority and could be doing a lot more to actively investigate and pursue Yoo's termination. It's a bizzarely cramped view of due process to think that applying due process would prevent even the formation of the kind of committee that DeLong asked the UC to set up (Note: I can't tell from your comment if you oppose DeLong's actions, or not).
Um, I mean 58. Is there a procedure in place for banning me?
Eric has reached "procedural liberalism has never failed because it has never been tried" in record time.
I am a bloody minded revolutionary on a mission to the liberals. Minneapolitan, Frowner, and Stras can speak for themselves, but some of them might be too.
In truth I don't see much future for my actual beliefs, so I'm a defeated radical trying to convince the defeated liberals to behave less defeatedly. My lifetime happened to be located in a period of political disaster.
An aside on procedural liberalism: constitutionalism is a form of proceduralism, and American liberalism has complex relations with constitutionalism. One branch of conservatives (little-government conservativism) is constitutiuonalist and accuses liberals of violating constitutional procedures.
The dominant branch of American conservativism, however, rejects proceduralism and (in effect) constitutionalism. That's the "unitary presidency", which essentially consists of the rejection of the letter and the spirit of the American Constitution and the American constitutionalist tradition. Little-government conservatives, like the Christianists, have been useful idiots for authoritarian militarists and country-club plutocrats. That's ironic, because unlike most Christians, little-government conservatives are not congenitally stupid. They just fell victim to wishfulness and malice (against liberals).
Procedural liberalism falls down because the fucking liberals won't follow the fucking procedures.
I think that the problem is the same as with journalistic neutrality. What does a neutral journalist do when the facts are partisan? Theoretically, neutrality and partisanship become temporarily indistinguishable at that point, but neutralists are so thoroughly indoctrinated that they are incapable of sticking their neck out or of standing beside partisans even on a single issue.
For example, based on scraps I've read Justice Kennedy knew that the Gor-Bush 2000 decision was procedurally wrong, but voted for it anyway for fear of consequences. That was the very moment when strict proceduralism was needed, and it wasn't there.
I think that proceduralists are normally cautious, consensus-oriented types who don't like to make waves, and at crunch time caution and consensus always win. Which means that non-proceduralists like Scalia always win.
Scalia may pretend to be a proceduralist, but he's a Straussian sleeper. In 1932 Strauss and Schmitt agreed that Germany's problem was too much proceduralism. Schmitt became a Nazi, whereas through no fault of his own poor Strauss had to come to the US and try to destroy proceduralism from within.
Eric has reached "procedural liberalism has never failed because it has never been tried" in record time.
I certainly think it's not being tried in this case. Or at least, as I said, it's not being adequately explained in the Drummond and Edley memos.
To your question, Rob, I think DeLong's letter was awfully admirable.
Eric has reached "procedural liberalism has never failed because it has never been tried" in record time.
I certainly think it's not being tried in this case. Or at least, as I said, it's not being adequately explained in the Drummond and Edley memos.
To your question, Rob, I think DeLong's letter was awfully admirable.
There are also: "well if the process leads to this substantive outcome in this case, it's crazily broken & needs reforming" arguments, which aren't quite the same as calls for bloody revolution.... How much to value the means over the ends & vice versa kind of depends on what the specific means & ends being discussed are. E.g., I am somewhat more attached to the U.S. Constitution, rule of law, basic human rights, nonviolence, blah blah blah than Dean Edley's or Brian Leiter's gloss on the Berkeley faculty handbook. I am also pretty okay with "activist judging"--judges considering the actual human effects & moral consequences of their decisions. So am I a wussy procedural liberal or part of the angry radical masses? I'd think the former, but the way we throw the terms around, I really have no idea.
Scalia may pretend to be a proceduralist, but he's a Straussian sleeper.
Compare this from Posner's new book:
The originalist's pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre's sense--bad faith as a denial of freedom to choose, and so the shirking of personal responsibility...
Sartrean bad faith need not be conscious....He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of his personal ideology.
Sounds familiar. More at Balkinization.
Eric: but that's the exact point at which procedural liberalism fails. What happens when the people who run the institutions neglect to follow the procedures?
Procedural liberals believe in a nation of laws, not men, which if you think about it is pretty sexist.
I'm somewhat beyond my expertise here (Craig at Long Sunday, a Schmitt scholar, hates me for what I say), but Schmitt was a decisionist, meaning that it's the essence of authority / soverignty to be able to make decisions freely and ungroundedly, and that attempts to limit the sovereign by procedures cripple government. He also ssems to have had an undue affection for martial law and the like.
Strauss's position was different in some way I'm not sure of, primarily in that he believed in natural law. But he was an anti-constitutionalist anti-proceduralist too.
66-67: Got it, thanks. I think we agree!
68: I agree completely.
I am a huggy minded revolutionary on a mission to the liberals.
Do not speak to me of revolution until you are willing to pet rats to survive!
62: Do we have a procedure for banning? Do we ever! Halford is banned!
(And nice comments.)
69: I saw that quote, and thought it was brilliant, which disturbs me, given that normally I don't think much of Posner. I should get the book.
given that normally I don't think much of Posner. I should get the book.
Same reaction here, but at $30 list price, I am hoping to borrow it from someone. Leave it to a law/econ guy to mark up his book.
I'd love to see a struggle to the death between Posner and Scalia, especially if I was allowed to honor the winner with a pistol shot to the back of the head. I understand the historical and functional importance of The Law, but by and large it makes me sick.
I once read, but now can't remember the author or context, a comparison of the Scalia/Easterbrook brand of textualism (and the visceral pleasure those two judges get from denying humanely just outcomes) to S&M. "Oooh, yes, tie me to the bedposts of restrictive reading of that statute and MAKE me deny you social security benefits. I'm so bad!" I think there's something there.
Speaking of withholding alumni donations, Blume?
Justice Kennedy knew that the Gor-Bush 2000 decision was procedurally wrong,
Presidential Candidates Of Gor!
If the race were being held on Gor, Hillary would be ineligible.
81: but she would be secretly pleased to be told so.