71 Pages Posted: 27 Jun 2010 Last revised: 21 May 2011
Date Written: June 25, 2010
Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law. The paper also asks whether the prevailing view in the legal academy today that champions the theoretician over those versed in professional norms bears some responsibility for the problematic legal work performed by Professor Yoo during his tenure in the United States Department of Justice's Office of Legal Counsel.
John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor Yoo is considered something of a superstar; he has been described as “a leading scholar on the relationship of international law to constitutional commands.” Even so; he teaches at a law school – an entity engaged in preprofessional education. Prior to tenure in the Bush Administration, Professor Yoo had little experience in the practice of the law; as we will see, this makes him typical of the current generation of legal educators. Professor Yoo also represents something of a natural experiment of a type that we rarely see – the unusual case of a leading legal scholar with the limited professional experience typical of his generation who leaves the academy and practices law on a regular basis. When Professor Yoo actually practiced law, he made quite a hash of things. It is remarkable that the legal academy could regard as something of a superstar an individual who proves unable to practice – at an acceptable level – the profession for which he is training his students. Professor Yoo’s case is unusual in that he took the rare step of leaving the academic cocoon and venturing into a position where his professional deficiencies were likely to be exposed, but there is reason to believe that his lack of professional judgment is common among the scholars of his generation. All of this suggests that there is something deeply wrong with the state of legal education today.
This article begins by illustrating the deficiencies in the legal work of Professor Yoo during his service in the Department of Justice. It then explain why those deficiencies cast grave doubt on Professor Yoo’s qualifications to teach law. The article concludes by observing that Professor Yoo's case illustrates the problems that inheres with the legal academy's decision to champion the theoretician as teacher instead of those who have developed the kind of professional judgment so critical to success in the practice of law.
Keywords: John Yoo, Office of Legal Counsel, Torture Memo, legal education, legal ethics
Suggested Citation: Suggested Citation
Rosenthal, Lawrence, Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law (June 25, 2010). Mississippi Law Journal, Vol. 80, No. 4, pp. 1563-1631, 2011; Chapman University Law Research Paper No. 10-24. Available at SSRN: https://ssrn.com/abstract=1630574