Monday, April 14, 2008

On John Yoo and Berkeley

There has been quite a bit of discussion about whether UC-Berkeley should fire John Yoo for his role in authoring the infamous Torture Memo when he was working in the OLC. Brad DeLong (another Berkeley professor) has been tracking the discussion closely. To me, the discussion has been needlessly complex. There are two competing interests in this case: (1) the interest in protecting academic freedom; and (2) the interest in punishing unethical conduct. Academic freedom requires that law schools not punish all conduct that could be characterized as "unethical," so as not to deter professors from taking positions that stretch the limits of legal ethics, but that are nonetheless not technically unethical. The interest in punishing unethical conduct is mostly self-explanatory: punishing professors who have acted unethically is necessary to demonstrate to law students that unethical conduct is unacceptable. Thus, there are two issues: (1) whether Professor Yoo's conduct was unethical, and (2) if so, whether punishing that unethical conduct would deter legitimate academic discourse in the future. Regarding the first issue, the 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." Second, punishing Yoo for authoring a memo in which he failed to disclose legal authority directly adverse to the memo's conclusion would not deter legitimate academic discourse in the future. This is where the people discussing whether Berkeley should fire Yoo veer badly off track. Yoo was not writing a law review article; he was writing a memo on behalf of the OLC, which is treated as authoritative within the Executive Branch. It would be impossible to force professors to disclose all legal authority directly adverse to their positions in law review articles -- every article would probably be over 100 pages. Had Yoo been writing a law review article, then punishing him for failing to disclose legal authority directly adverse to his conclusion in the article would certainly deter legitimate academic discourse in the future. But that's not what Berkeley would be punishing Yoo for doing. Yoo failed to disclose directly adverse legal authority in an OLC memo that had easily foreseeable real-world consequences. That's not even close to the same thing as writing a law review article. Berkeley would be punishing Yoo for failing to disclose directly adverse legal authority in an OLC memo. As long as Berkeley made it clear that it was firing Yoo for unethical conduct in authoring an OLC memo as opposed to a law review article, or any writing that could be considered "academic scholarship," then firing Yoo would in no way deter legitimate academic discourse in the future. UPDATE: It occurs to me that after I discussed why I think Berkeley can fire Professor Yoo without infringing on academic freedom, I never addressed whether Berkeley should actually fire him. Yes, I think Berkeley should fire Professor Yoo. There has been considerable debate over whether Yoo's work on the Torture Memos amounted to "scholarly misconduct," but as I discussed above, this is the wrong standard. The Torture Memos cannot be considered works of "scholarship" any more than a memorandum of law can be considered a work of scholarship, and thus the Torture Memos should not be subject to the standard of "scholarly misconduct." Instead, the Torture Memos should be subject to the same standard as memoranda of law, motions, appellate briefs, etc.; that is, Rule 3.3 of the Model Rules of Professional Conduct. Again, the consensus is that if the Torture Memos had been submitted to a court, they would have violated Rule 3.3(a)(2) because they failed to acknowledge the existence of the Youngstown case. Because a violation of Rule 3.3(a)(2) is a "knowing" violation of an ethical standard, Professor Yoo's violation was a particularly serious ethical violation (that is, more serious than ethical violations that do not require mens rea). Therefore, Berkeley should fire Professor Yoo. Another way to think about this is to imagine that Berkeley had hired a famous lawyer, and that after hiring him, it was revealed that the lawyer lied in the appellate brief that made him famous, in violation of Rule 3.3(a)(2). Berkeley would waste no time in (rightly) firing the lawyer from its faculty. So too should Berkeley fire John Yoo.

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