UMinn law student Ivan Ludmer has two follow-up posts (here and here) on the controversy over whether Robert Delahunty should teach Constitutional Law at Minnesota next year. Among other things, Ludmer notes that, according to this story in the St. Paul Pioneer Press, UMinn officials were completely unaware of Delahunty's role in the "torture memos" -- and presumably equally unaware about the controversy sparked by his hiring at St. Thomas several years earlier.
Brad Wendel also has a lengthy post at Legal Ethics Forum examining whether one could oppose hiring Delahunty without threatening academic freedom. The answer is yes, Wendel concludes, at least in principle. Among other things, Wendel notes, one could oppose Delahunty's hire on non-ideological grounds insofar as one believes his work "was results-driven to an extent that crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." [Aside: I don't know Delahunty, buy given his apparent success as a career civil servant at OLC during the Clinton Administration, I wonder whether this would be a fair characterization of his work.]
If this is the proper standard, I wonder about its implications. I have seen many legal documents prepared by federal agency attorneys that clearly "crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." Granted, these legal opinions rarely, if ever, concern something as sensitive (or morally weighty) as torture and the treatment of detainees, and we may justifiably apply uniquely demanding standards to OLC that we would not apply, say, to the FDA or EPA. Nonetheless, some agency legal work is simply gawd-awful, transparently result-oriented and undertaken with little regard for the relevant legal requirements. Should those who willingly worked on such matters also be excluded from the academy? Or does the seriousness of the subject matter make this a special case? (And, if so, then is not the opposition to Delahunty in some sense "ideological"?)
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