The Lawprof Threat to Good Government

Peter Raven-Hansen has a review of Jack Goldsmith’s The Terror Presidency in the latest American Journal of International Law which includes some thoughts on law professors as top government lawyers.  His basic line, with John Yoo as the example: better not to use a perch in the government to validate your academic theories.

But in this fact lies a risk for the law professor qua terror lawyer. Law professors develop their reputations by publishing law review articles, not by practicing their ideas. Law review articles are chosen for publication by law students. Student law review editors are understandably more attracted by novelty than by careful analysis of the familiar. To an unmeasurable degree, they may therefore favor iconoclastic, the-earth-is-flat scholarship. Young law professors therefore deliver it, in an unexceptional demonstration of the laws of supply and demand. John Yoo arguably built much of his reputation on just such scholarship, taking controversial positions at odds with the mainstream, including positions about the president’s war powers that anticipated his most extreme conclusions in the torture memos. This kind of scholarship is not only rewarded by publication, but is also properly valued by the legal academy, because it provokes, stirs debate, and, on rare occasion, diverts the mainstream in a different direction.

But it has no actual consequences in the legal academy except for the tenure and promotion of its authors. By contrast, connections between ideas and consequences are much tighter inside the government.  Legal theories such as the unitary executive (or what Neal Katyal calls “the unitary-executive-on-steroids”) or the overriding commander-in-chief power (the “commander of law” power) that are perfectly adequate, even laudable fodder, for law reviews, often must be tempered in context as a basis for governmental action. Katyal observes that such theories are rarely, if ever, “field-test[ed]” in the academy.  Before they can be imported into the government as the basis of OLC advice, they must therefore at least be tested against the mainstream literature. If they are “out of the ballpark,” the counselor must candidly signal that fact and also describe the ballpark and its fences quite clearly.

This is not to declare that such theories are wrong (although I think Yoo’s extreme versions of these two theories are). It is to suggest that the law professor who proposes them in the academy should think long and hard before repeating them as a basis for counseling the president at OLC. She must resist using government service as a way of validating and promoting her academic ideas. At the very least, she must make a conscious effort to consult and acknowledge alternative views–the mainstream, if there is one–when counseling the president. This, Yoo failed to do carefully and clearly, not just in the torture memos, but arguably also in others concerning the legal effect of international law. He brought his own novel legal theories from the academy without fairly considering or presenting the contrary views of a majority of what W. Bradley Wendel calls the relevant “interpretive community.”

All well taken.  At the same time, Yoo’s case presented a perfect storm in which a lawprof had the opportunity to put his academic views to work in an unfiltered way.  That’s a highly exceptional case.  (Can anyone think of another example?)  In the more typical situation, it may be a good thing for the academic to put untested theories on the table, in the way of out-of-the-box thinking.  The process then can take or leave it, or take some and leave some, in a way that adds value without presenting much of a threat.

Query whether the Bush Administration experience has tarnished the image of academics as policymakers.  It will be interesting to see whether any of the many qualified lawprofs ends up at the helm in OLC.