Paul L. Caron
Dean





Saturday, October 22, 2022

Is Yale Law School Turning Over A New Leaf?

Update: 

Brian Leiter (Chicago), Judge Ho Heading to Yale, at Invitation of Dean Gerken:

Judge Ho's threatened boycott sure seems to have gotten Yale's attention!

David Lat (Original Jurisdiction), Is Yale Law School Turning Over A New Leaf?:

Yale Law Logo (2020)Judges James Ho and Lisa Branch are heading to YLS—at the invitation of Dean Heather Gerken!

In the wake of the announcement of Judge James Ho (5th Cir.) that he would no longer hire clerks from Yale Law School, a boycott joined so far by Judge Lisa Branch (11th Cir.) and a dozen other judges who wanted to remain nameless, Dean Heather Gerken has been quietly reaching out to prominent conservative jurists. Her message: YLS is deeply committed to free speech and intellectual diversity, it has taken concrete steps to support that commitment, and as dean, she welcomes hearing from judges about what else can be done to promote and protect academic freedom at Yale Law—including Judges Ho and Branch, the progenitors of the YLS boycott.

A week ago ..., Judges Ho and Branch responded to Dean Gerken’s outreach with a letter:

We turn now to the statement you issued on October 12. On the one hand, we appreciate that your statement opens: "Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, weemphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do." But as members of the legal profession, it's in our DNA to ask whether such statements reflect reality or are nothing more than parchment promises. We regrettably conclude that the statement only raises more questions-and more concerns. We summarize them here for your convenience.

First, the statement suggests that Yale's handling of recent events is praiseworthy. We think Yale handled those events poorly. ...

That leads us to our second concern. The statement announces a new policy "prohibiting surreptitious recordings." Why? And why now? The only reason we even know about the administration's threat to harm a student's career over the October 2021 email is because that student recorded his interactions with school officials. Does this new policy somehow improve free speech conditions on campus? Or does it simply ensure that the school will not be caught in the future for infringing on speech? This new policy appears to be a step backwards.

Third, the statement defends the new policy on surreptitious recordings on the ground that it simply "mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas." But then why not also mirror the University of Chicago's policy on free speech itself? And not just Chicago's policy on paper, but its actual practice of robust enforcement when students violate the policy.

Yale presents itself as the nation's finest institution of legal education. Yet it's among the worst when it comes to legal cancellation. And this matters because, as an elite institution, Yale sets the tone for other law schools and for the legal profession at large.

We would like to see Yale Law School embrace open discourse on campus. Our effort is modest: All we ask is that students be able to invite speakers—including conservative Christian speakers—without having to worry about police protection, public opprobrium, and professional intimidation. All we want is for the school to teach students to agree to disagree, not to destroy. We do not think this is too much to ask. We would love nothing more than for the story of your deanship to be a record of success-and a restoration of free speech and the rigorous exchange of ideas. ...

[A]s lawyers well know, there’s a huge difference between what rules are on the books and how those rules get enforced. As Judges Ho and Branch write in their letter, “As members of the legal profession, it’s in our DNA to ask whether such statements reflect reality or are nothing more than parchment promises.” We’ll have a better idea of that on or before January 17, 2023, when the two jurists make their fateful journey to the Elm City to see if YLS has turned over a new leaf.

Reuters, Trump-Appointed Judges Behind Yale Boycott Agree to Speak at School:

Neither Ho, who sits on the New Orleans-based 5th U.S. Circuit Court of Appeals, nor Branch, a member of the Atlanta-based 11th U.S. Circuit Court of Appeals, responded to requests for comment.

Yale in a statement said that as "part of an ongoing lecture series that models engaging across divides, we are in the early stages of organizing a panel discussion for next semester with federal judges." It had no further comment.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2022/10/is-yale-law-school-turning-over-a-new-leaf.html

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