Jonathan Adler thinks that "Brian Leiter understands academic freedom." It's painfully obvious, however, that Leiter is unable to distinguish between "academic freedom" and "immunity for academics." How a law professor can be oblivious to such a critical distinction is beyond me. In the ongoing John Yoo debate (which Brad DeLong has been following meticulously, and makes for fascinating reading), Leiter thinks that Yoo shouldn't be fired because there is only "speculation that maybe what Yoo did (writing the torture memos) constitutes a crime or legal malpractice." Ipso facto, firing Yoo would infringe on academic freedom! Or so Leiter thinks:
"Tenure, and academic freedom, would mean nothing if every professor with views deemed morally reprehensible or every professor who produced a shoddy piece of work--while inside or outside the academy--could be fired. I find it almost unbelievable that a group calling itself "American Freedom Campaign" does not understand this."Repeat after me: OLC memos are not academic scholarship. Firing John Yoo for authoring the Torture Memos would have zero effect on academics, because when you work at the OLC, you're not an "academic." Under Leiter's bizarre theory, firing Yoo before a court determines that authoring the Torture Memos constituted legal malpractice would infringe on academic freedom. What if Yoo is sued for malpractice, but settles before a court can render a decision? Even if it's clear that a court would have found Yoo liable for malpractice had he not settled, Leiter thinks this would infringe on academic freedom. Academics are free to endorse any and all viewpoints without fear of being fired, but that doesn't mean they're free to engage in unethical conduct without fear of being fired. And as I've noted before, Yoo engaged in unethical conduct:
[T]he consensus is that Yoo's conduct in authoring the Torture Memo was unethical because he failed to even address Youngstown Sheet & Tube Co. v. Sawyer (1952). Had the memo been submitted to a court, Yoo's failure to address the Youngstown case would have violated Rule 3.3(a)(2) of the Model Rules of Professional Conduct, which prohibits lawyers from "knowingly . . . fail[ing] to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."OLC memos should be judged at the very least by Rule 3.3, because within the Executive Branch, OLC memos are the equivalent of court decisions. Firing Yoo wouldn't be punishing him for his ideas; it would be punishing him for engaging in egregiously unethical conduct. Just because Yoo expressed unpopular ideas doesn't mean that the act of expressing those ideas wasn't unethical. The ethicality of Yoo's conduct in authoring the Torture Memos has nothing to do with the the popularity of the ideas he expressed in the memos. Not everything an academic does, or has done in the past, implicates "academic freedom."