Student-Edited Law Reviews, OLC, and the Downfall of the Republic

Okay, so it’s not easy to connect these dots, and I certainly wouldn’t pretend to have a generalizable theory here. But there’s a plausible story to be told in John Yoo’s ascent and the pretty clear damage done by his post-9/11 work at the Office of Legal Counsel. One can take Jack Goldsmith’s critique of Yoo’s OLC work in The Terror Presidency (“clumsy”, “unusual lack of care and sobriety,” “extreme,” like a “bad defense counsel’s brief,” all appropriately decoupled from any implication of personal attack) and say something similar about Yoo’s legal scholarship. Don’t take my word for it (though pre-9/11 academic exchanges had the gloves very much on): see here, here, and here. Another way of putting it: were any of us really surprised when we read the torture memos?

So the question is: would his scholarship have placed so well if law reviews were peer-edited? Addington & Co. must have been thanking their lucky, lucky stars to have had someone with Yoo’s views and stellar credentials around on 9/12. If he hadn’t had such an impressive scholarly bibliography, would his advice have counted for as much inside the Administration? I’m not sure of the answers here (after all, the University of Chicago Press published his book in 2005, although I am told that peer review among book publishers these days is a pretty flimsy gatekeeper, as presses look increasingly to the bottom line). I’m also not sure that (this unusual confluence of events aside) peer-review publication regimes are necessarily better for purposes of advancing the knowledge ball. Peer review has a tendency to stifle the development of new models for the simple reason that those doing the reviewing have a vested interest in existing ones.

I wonder if the Bush Administration experience might not mark the dysfunctional zenith of the partnership between policymakers and legal academics dating way back (how far I couldn’t tell you). OLC is by far the best perch for lawprofs on the inside. It’s small, so that there’s little resistance from career types. It has had a clearly defined institutional prerogative inside the executive branch, giving lawyers there a leg-up on intra- and inter-agency processes (a plus insofar as one might not expect most lawprofs to be well equipped for bureaucratic infighting). Finally, its work product is ideally suited to academic training, in the form of opinions that are, if anything, more rarified than their judicial equivalents.

But OLC would appear to be damaged goods out of Bush II. Will its reputation be instantly revived with a Democrat Administration? If not, where will the lawprofs hang their hats in a Clinton administration, or will they just stay away? From the policymakers’ perspective, has John Yoo spoiled everyone’s fun by diminishing the credibility of lawprof advice? Other factors may be at work here as well, like the move towards more theoretical work that might not coincide with policymaking interests (although power and the trappings of government will always have some appeal, even – and perhaps especially – for those in the ivory tower). Assuming its truth, would the end of this revolving door be something to lament?