I always enjoy reading your weekly articles. They give me a sense of what my betters in the legal profession are thinking.
On the other hand, they show a vast chasm between the real legal world and the world of legal elites. 99.9 percent of lawyers did not go to Yale Law or clerk for federal appellate judges. Most of us do not care what happens at Yale Law. Those of us who practice in the Fifth Circuit may care about what Judge Ho thinks, but only because he may be on a Fifth Circuit panel. All of us outside the Fifth Circuit do not care.
Every time I hear about some conservative speaker being shouted down (according to their account of the incident, anyway), I shed a small tear. I save real tears for the millions of women who had their rights ripped away by a Supreme Court dominated by justices who either are members or supporters of the Federalist Society. And I shed real tears for those of us who may be victims of gun violence because the same Supreme Court seek to return us to the Wild West. Finally, I cry for the students and employees of the Univeristy of Idaho because they are threatened with felony charges if they even mention the word "abortion." I do not see Judge Ho express any concern with these real victims of "cancel culture."
The real practitioners of "cancel culture" are the ideological brethren of Judge Ho. Compared to those worthies, Yale Law School is an amateur.
What, concretely, to do about a school with free speech problems is tough to know. A specially-called MIT faculty committee just came out with a 56-page report that has 10 specific recommendations, most of them good. See also the MIT Free Speech Alliance press release on it, and the WSJ op-ed yesterday
This just feels like political grandstanding to me, from deep inside the right wing "cancel culture" tank. There are far better reasons to diversify Court of Appeals clerkship hiring than YLS's unfortunate mini-scandals.
I wish Judge Ho had done the same thing but in a more positive and less obvious "own the libs" way. For example, I clerked for Judge Browning shortly after he stepped down as Chief Judge of the 9th Circuit. Browning always hired at least one clerk from a Montana-based law school, in large part to ensure that the state would have some representation in the body of clerks in the 9th Circuit (which includes Montana). It was a great tradition and a very positive one.
Judge Ho could have simply said that he was going to focus on hiring students from state schools within the 5th Circuit, or that he would simply not look at law school at all when hiring. But no - he'd rather grandstand, burnish his FedSoc street cred, and weep crocodile tears about free speech and intellectual diversity by bashing Yale.
While I sympathize with Judge Ho, it seems kind of weird for him to say he won't hire clerks from Yale Law when the people excluded by this most are the few conservative Yale Law students. Will he really refuse to hire the Traphouse student who was the victim, because of the victim's evil dean? It would be better for him to say that his first question in interviewing any student, from Yale Law or elsewhere, will be "What do you think of the Yale Law School's hostility to free speech?"
Ultimately the effect of this might be minimal: it is an open secret that current YLS conservatives are already proactively telling conservative/libertarian applicants to go elsewhere. The number of YLS grads who would want to work for Judge Ho might be going to 0 anyway.
Leadership matters. Several months ago YLS had a chance to replace its ethically challenged and tone deaf Dean. After the dangerous situation involving Professor Kate Stith and her ideologically balanced panel, it was clear to me that YLS would need to be removed from my will and never see another dollar during my lifetime. That’s the tool available to me to meet the cancer of cancel culture. Judge Ho is using the tool available to him. Bravo.
Obviously hypocritical and the claim that it’s not because his policy is not exclusionary is nonsense. Wouldn’t a more effective and less hypocritical approach be to actually prioritize for clerkship hiring any law students that other students at Yale or elsewhere try to cancel? Make the cancellation efforts counterproductive by trying to help those who were the victims of this disturbing cultural trend find good clerkships that will help them recover from a cancel culture attack and then some.
There's a certain logic to giving those engaged in cancel culture on the left a taste of their own medicine but I wish Judge Ho would just come out and say that's what he's doing instead of making the tortured argument that his policy of excluding YLS grads is somehow not exclusionary. But that's not the main problem with it - it's that instead of achieving its stated goal of encouraging YLS to be more ideologically inclusive, it'll probably just give the left culture warriors more fodder for outrage and indignation, just like how cancellations by the left have strengthened extremist voices on the right. If you fight fire with fire you just end up with a bigger fire.
One subtext of your post seems to be that students and faculty at YLS (and other law schools) have an unfettered right to free speech. I do not think that this is so, either legally or morally.
Nearly every university, including, I am sure Yale, has an "Honor Code" of some sort. Students (and faculty?) have promised to abide by the code of their university, with specified penalties for non-adherence that could include expulsion. The small sample of these codes I have encountered require, in effect, that students act in good faith in substantive matters.
Lying about substantive matters would be a good example of something forbidden by the typical honor code, but is perfectly acceptable under free speech absolutism. This restriction takes on a special meaning at YLS and similar schools where students are future lawyers. As such they will swear an oath that further restricts their speech. (c.f. Rudy Giuliani).
This is just one counterexample, to show that students typically do not have the right to free speech, as it is usually interpreted. But, should they have that right? I think not. A university is a community of scholars subject to an unwritten social contract, implicitly accepted by students. Speech which violates this social contract should be condemned.
Cancel culture is like nukes. If the other side launches one, you launch yours too.
Live by the cancel culture, die by the cancel culture. Cancel cancel culture.
Dear David,
I always enjoy reading your weekly articles. They give me a sense of what my betters in the legal profession are thinking.
On the other hand, they show a vast chasm between the real legal world and the world of legal elites. 99.9 percent of lawyers did not go to Yale Law or clerk for federal appellate judges. Most of us do not care what happens at Yale Law. Those of us who practice in the Fifth Circuit may care about what Judge Ho thinks, but only because he may be on a Fifth Circuit panel. All of us outside the Fifth Circuit do not care.
Every time I hear about some conservative speaker being shouted down (according to their account of the incident, anyway), I shed a small tear. I save real tears for the millions of women who had their rights ripped away by a Supreme Court dominated by justices who either are members or supporters of the Federalist Society. And I shed real tears for those of us who may be victims of gun violence because the same Supreme Court seek to return us to the Wild West. Finally, I cry for the students and employees of the Univeristy of Idaho because they are threatened with felony charges if they even mention the word "abortion." I do not see Judge Ho express any concern with these real victims of "cancel culture."
The real practitioners of "cancel culture" are the ideological brethren of Judge Ho. Compared to those worthies, Yale Law School is an amateur.
Richard Antognini
What, concretely, to do about a school with free speech problems is tough to know. A specially-called MIT faculty committee just came out with a 56-page report that has 10 specific recommendations, most of them good. See also the MIT Free Speech Alliance press release on it, and the WSJ op-ed yesterday
https://facultygovernance.mit.edu/sites/default/files/reports/2022-09_Final_Report_of_the_Ad_Hoc_Working_Group_on_Free_Expression.pdf
https://static1.squarespace.com/static/617c698865f74d664c7ec21c/t/6321015de6728815615523d8/1663107422232/MIT_free_speech_MFSA_press_release.pdf
https://www.wsj.com/articles/mit-asks-its-faculty-to-endorse-free-speech-11664390363?reflink=desktopwebshare_permalink&st=tjwv17p0qqooc43
Great coverage, David.
This just feels like political grandstanding to me, from deep inside the right wing "cancel culture" tank. There are far better reasons to diversify Court of Appeals clerkship hiring than YLS's unfortunate mini-scandals.
I wish Judge Ho had done the same thing but in a more positive and less obvious "own the libs" way. For example, I clerked for Judge Browning shortly after he stepped down as Chief Judge of the 9th Circuit. Browning always hired at least one clerk from a Montana-based law school, in large part to ensure that the state would have some representation in the body of clerks in the 9th Circuit (which includes Montana). It was a great tradition and a very positive one.
Judge Ho could have simply said that he was going to focus on hiring students from state schools within the 5th Circuit, or that he would simply not look at law school at all when hiring. But no - he'd rather grandstand, burnish his FedSoc street cred, and weep crocodile tears about free speech and intellectual diversity by bashing Yale.
While I sympathize with Judge Ho, it seems kind of weird for him to say he won't hire clerks from Yale Law when the people excluded by this most are the few conservative Yale Law students. Will he really refuse to hire the Traphouse student who was the victim, because of the victim's evil dean? It would be better for him to say that his first question in interviewing any student, from Yale Law or elsewhere, will be "What do you think of the Yale Law School's hostility to free speech?"
Ultimately the effect of this might be minimal: it is an open secret that current YLS conservatives are already proactively telling conservative/libertarian applicants to go elsewhere. The number of YLS grads who would want to work for Judge Ho might be going to 0 anyway.
Leadership matters. Several months ago YLS had a chance to replace its ethically challenged and tone deaf Dean. After the dangerous situation involving Professor Kate Stith and her ideologically balanced panel, it was clear to me that YLS would need to be removed from my will and never see another dollar during my lifetime. That’s the tool available to me to meet the cancer of cancel culture. Judge Ho is using the tool available to him. Bravo.
Obviously hypocritical and the claim that it’s not because his policy is not exclusionary is nonsense. Wouldn’t a more effective and less hypocritical approach be to actually prioritize for clerkship hiring any law students that other students at Yale or elsewhere try to cancel? Make the cancellation efforts counterproductive by trying to help those who were the victims of this disturbing cultural trend find good clerkships that will help them recover from a cancel culture attack and then some.
There's a certain logic to giving those engaged in cancel culture on the left a taste of their own medicine but I wish Judge Ho would just come out and say that's what he's doing instead of making the tortured argument that his policy of excluding YLS grads is somehow not exclusionary. But that's not the main problem with it - it's that instead of achieving its stated goal of encouraging YLS to be more ideologically inclusive, it'll probably just give the left culture warriors more fodder for outrage and indignation, just like how cancellations by the left have strengthened extremist voices on the right. If you fight fire with fire you just end up with a bigger fire.
One subtext of your post seems to be that students and faculty at YLS (and other law schools) have an unfettered right to free speech. I do not think that this is so, either legally or morally.
Nearly every university, including, I am sure Yale, has an "Honor Code" of some sort. Students (and faculty?) have promised to abide by the code of their university, with specified penalties for non-adherence that could include expulsion. The small sample of these codes I have encountered require, in effect, that students act in good faith in substantive matters.
Lying about substantive matters would be a good example of something forbidden by the typical honor code, but is perfectly acceptable under free speech absolutism. This restriction takes on a special meaning at YLS and similar schools where students are future lawyers. As such they will swear an oath that further restricts their speech. (c.f. Rudy Giuliani).
This is just one counterexample, to show that students typically do not have the right to free speech, as it is usually interpreted. But, should they have that right? I think not. A university is a community of scholars subject to an unwritten social contract, implicitly accepted by students. Speech which violates this social contract should be condemned.