Dean Martinez oversaw the transformation of SLS into a place hostile toward conservatives. I don't really see why she's being celebrated for this well-written memo, when she has failed to foster an environment that aligns with the values she preaches.
There have been several incidents at SLS over the past few years where Dean Martinez has written in defense of First Amendment principles and ideological diversity. But she took no meaningful action, so the atmosphere continued to worsen. The reality is that conservatives at SLS have been mistreated at SLS for years, and the administration has allowed or encouraged it. This event didn't come out of nowhere--the communication to Fed Soc students to seek therapy or meet with Dean Steinbach after the event is the standard treatment. These students and deans are used to treating Fed Soc this way. The only reason Dean Martinez is doing anything this time is because of all the bad press.
"Let’s be realistic: Dean Martinez is the leader of an elite law school in the year 2023. Her faculty has a single public-law conservative."
Perhaps Dean Martinez could hire a second conservative faculty member if she is interested in creating an environment capable of tolerating different ideas. Talk is cheap.
I thought it was a good letter, and understand her desire to move on from this (though, in her position, I would have considered individualized discipline for a select few, e.g., the one who shouted that the judge's daughters should be raped).
The mandatory training should explain that the students here wasted an opportunity for meaningful discourse. Students took issue with one of Judge Duncan's opinions on trans issues. The opinion is actually quite troubling, but that substantive debate was obscured by the ensuing spectacle.
In a 2-1 split decision, Judge Duncan refused a trans prisoner's request that the court use feminine pronouns to refer to her, arguing (i) the court lacked authority to do so, (ii) using the preferred pronouns would "raise delicate questions about judicial impartiality," and (iii) some non-traditional pronouns (like ze) are too complicated. This opinion, from January 2020 (six months before Bostock) seems anachronistic. Extending the simple courtesy of using a liigant's preferred pronouns demonstrates impartiality, rather than undermining it. Most of the heated debate around trans issues concerns the extent to which children should be educated about trans issues, fairness in sports, etc. Most fair-minded people would consider it a basic courtesy to refer to an adult using the pronouns they prefer.
Experienced lawyers understand the importance of decorum - persuasion often hinges on being seen as treating your adversary (and of course jurors and court staff) with respect and courtesy. By succumbing to mob heckling, these Stanford students obscured their message and revealed that they're unprepared to be effective advocates.
The Dean's explanation of why the student's aren't being punished is the chef's kiss on an incredible statement. As educators Stanford authorities should have stopped the behavior right then. That they showed approval sewed confusion. The free speech education for the entire student body is going to be more valuable than drawn out expulsion hearings. And I say all this as someone whose instincts are to "hang em high."
I share David Lat's enthusiasm for the dean's letter, but to label it "the Martinez Memo (2024)" requires a time machine! Let's recognize it as *this* year's outstanding product and celebrate accordingly.
Mar 24, 2023·edited Mar 24, 2023Liked by David Lat
David, I'm not sure if you plan to listen to Judge Duncan's speech at Notre Dame today, or if you plan to write about it (or if you're just ready to put this whole thing behind you and any response). I've listened to it, and I still find troubling -- his ongoing refusal to accept any responsibility for his own actions. In today's speech, he holds those Stanford students to a decorum expected of attorneys in legal practice, and yet fails to recognize his own actual standing as a member of the bench and what higher level of decorum might be expected of him (despite the circumstances). At the SLS event, Judge Duncan called the protestors names repeatedly and during the Q&A, when a student was asking her question and explaining her own experience as a sexual assault survivor, his response was literally, "nice story" and "nice speech." I understand that he wanted to get to the question and didn't want the backstory or her soliloquy on the context of her question (which was really a policy question, not a case law question), but his response was lacking in empathy or recognition of what she had just shared. Now, some may say, judges aren't required to show empathy and her question wasn't necessarily legal in nature, but imagine what this could have looked like if he had responded by genuinely (not sarcastically) recognizing what she had just shared and then intelligently explained how the case in question had a specific legal question etc. That's how dialogue will succeed -- by listening and actually hearing the other person. I understand it goes both ways, but on that day at SLS, it was the students AND the federal judge all yelling at each other and not listening.
Since then, he has doubled-down on his response, claimed the role of victim, and held the students to a higher standard than he holds himself. That is unfortunate. I understand that in your writings (and on the Advisory Opinions podcast) you give him the benefit of the doubt since he was faced with such vitriol, and that's fine, but it's the afterwards, in the retrospect, where he has the opportunity to evaluate his own behavior, and he has failed to do that other than to further entrench his own justifications. Yes, what he faced was more than mere protest *and* his response was similar name-calling, sarcastic, and equally abhorrent. Those things can both be true *and* should both be called out so that *both* can be addressed. Instead, he is elevated to "victim."
It's also interesting he choose this speech at ND to give this "response." Here, he's surrounded by fellow Fed Soc members, no protestors are present, it's a conservative Catholic school, and in the "Q&A," questions were screened and chosen by a Fed Soc "Contributor" (Dr. Munoz) rather than freely asked. Was there true discourse present there? No there was not. Judge Duncan was given a bunch of softballs, nothing difficult and nothing challenging, and now everyone can say, "See how well ND does this? If only schools like SLS can be more like ND where students have more decorum and respect." (In full disclosure, I am a ND Law School alum). Judge Duncan faced zero pushback today with his "response" and that was on purpose.
Another point Judge Duncan makes today (and on Advisory Opinions) is the importance of free speech and a variety of views and opinions, especially in the context of law school and legal training, and yet he doesn't speak out about judges who choose clerks who only agree with the judges' constitutional views, who insulate themselves (and accordingly, their legal opinions) from any other views -- talk about living in a "bubble" (which is a comment he makes disparagingly about the SLS students). It's a bit hypocritical without the vision to see how hypocritical it is. Again, he talks about it as if it just makes sense that of course judges would want clerks that agree with them. But maybe that process needs to be reconsidered, especially in light of the problems with discourse and tolerance lately.
Lastly, Judge Duncan repeatedly has said that the SLS event took him "by surprise." Call me skeptical, but I'm not certain the whole event wasn't by design, a coordinated choosing by Fed Soc evaluating various law school options and choosing SLS, a place where they thought they could receive the most heightened response, to provoke exactly this situation.
I appreciated Dean Martinez's response, and I hope other law schools use it as a model of leadership in free speech and campus discourse going forward.
Thank you too for all your writing and interviews and analysis. Greatly appreciated.
The whole riotous mess got out of hand, even with forewarning, on Dean Martinez's watch. She has reacted after-the-fact because of the apparent harm to Stanford's reputation and the outrage among the alumnae organizations. So far, the extent of her disciplinary reactions has been to put a guilty DEI admin on "leave". This is strength? The first step in fixing a problem is recognizing the problem and if this tawdry, weak example of Martinez's response is what you consider "strong" it's no wonder we're in such a mess.
And Blah, blah, blah. Martinez is part of the weakening and feminization of Stanford: her reply *after the fact* is weak and tries to assuage through words. She needs to be replaced with someone who is stronger and more capable of actually leading.
Dean Martinez oversaw the transformation of SLS into a place hostile toward conservatives. I don't really see why she's being celebrated for this well-written memo, when she has failed to foster an environment that aligns with the values she preaches.
There have been several incidents at SLS over the past few years where Dean Martinez has written in defense of First Amendment principles and ideological diversity. But she took no meaningful action, so the atmosphere continued to worsen. The reality is that conservatives at SLS have been mistreated at SLS for years, and the administration has allowed or encouraged it. This event didn't come out of nowhere--the communication to Fed Soc students to seek therapy or meet with Dean Steinbach after the event is the standard treatment. These students and deans are used to treating Fed Soc this way. The only reason Dean Martinez is doing anything this time is because of all the bad press.
"Let’s be realistic: Dean Martinez is the leader of an elite law school in the year 2023. Her faculty has a single public-law conservative."
Perhaps Dean Martinez could hire a second conservative faculty member if she is interested in creating an environment capable of tolerating different ideas. Talk is cheap.
I thought it was a good letter, and understand her desire to move on from this (though, in her position, I would have considered individualized discipline for a select few, e.g., the one who shouted that the judge's daughters should be raped).
The mandatory training should explain that the students here wasted an opportunity for meaningful discourse. Students took issue with one of Judge Duncan's opinions on trans issues. The opinion is actually quite troubling, but that substantive debate was obscured by the ensuing spectacle.
In a 2-1 split decision, Judge Duncan refused a trans prisoner's request that the court use feminine pronouns to refer to her, arguing (i) the court lacked authority to do so, (ii) using the preferred pronouns would "raise delicate questions about judicial impartiality," and (iii) some non-traditional pronouns (like ze) are too complicated. This opinion, from January 2020 (six months before Bostock) seems anachronistic. Extending the simple courtesy of using a liigant's preferred pronouns demonstrates impartiality, rather than undermining it. Most of the heated debate around trans issues concerns the extent to which children should be educated about trans issues, fairness in sports, etc. Most fair-minded people would consider it a basic courtesy to refer to an adult using the pronouns they prefer.
Experienced lawyers understand the importance of decorum - persuasion often hinges on being seen as treating your adversary (and of course jurors and court staff) with respect and courtesy. By succumbing to mob heckling, these Stanford students obscured their message and revealed that they're unprepared to be effective advocates.
The Dean's explanation of why the student's aren't being punished is the chef's kiss on an incredible statement. As educators Stanford authorities should have stopped the behavior right then. That they showed approval sewed confusion. The free speech education for the entire student body is going to be more valuable than drawn out expulsion hearings. And I say all this as someone whose instincts are to "hang em high."
Really impressed with the letter. We should all hope she succeeds at fostering the community she envisions in the letter.
I share David Lat's enthusiasm for the dean's letter, but to label it "the Martinez Memo (2024)" requires a time machine! Let's recognize it as *this* year's outstanding product and celebrate accordingly.
David, I'm not sure if you plan to listen to Judge Duncan's speech at Notre Dame today, or if you plan to write about it (or if you're just ready to put this whole thing behind you and any response). I've listened to it, and I still find troubling -- his ongoing refusal to accept any responsibility for his own actions. In today's speech, he holds those Stanford students to a decorum expected of attorneys in legal practice, and yet fails to recognize his own actual standing as a member of the bench and what higher level of decorum might be expected of him (despite the circumstances). At the SLS event, Judge Duncan called the protestors names repeatedly and during the Q&A, when a student was asking her question and explaining her own experience as a sexual assault survivor, his response was literally, "nice story" and "nice speech." I understand that he wanted to get to the question and didn't want the backstory or her soliloquy on the context of her question (which was really a policy question, not a case law question), but his response was lacking in empathy or recognition of what she had just shared. Now, some may say, judges aren't required to show empathy and her question wasn't necessarily legal in nature, but imagine what this could have looked like if he had responded by genuinely (not sarcastically) recognizing what she had just shared and then intelligently explained how the case in question had a specific legal question etc. That's how dialogue will succeed -- by listening and actually hearing the other person. I understand it goes both ways, but on that day at SLS, it was the students AND the federal judge all yelling at each other and not listening.
Since then, he has doubled-down on his response, claimed the role of victim, and held the students to a higher standard than he holds himself. That is unfortunate. I understand that in your writings (and on the Advisory Opinions podcast) you give him the benefit of the doubt since he was faced with such vitriol, and that's fine, but it's the afterwards, in the retrospect, where he has the opportunity to evaluate his own behavior, and he has failed to do that other than to further entrench his own justifications. Yes, what he faced was more than mere protest *and* his response was similar name-calling, sarcastic, and equally abhorrent. Those things can both be true *and* should both be called out so that *both* can be addressed. Instead, he is elevated to "victim."
It's also interesting he choose this speech at ND to give this "response." Here, he's surrounded by fellow Fed Soc members, no protestors are present, it's a conservative Catholic school, and in the "Q&A," questions were screened and chosen by a Fed Soc "Contributor" (Dr. Munoz) rather than freely asked. Was there true discourse present there? No there was not. Judge Duncan was given a bunch of softballs, nothing difficult and nothing challenging, and now everyone can say, "See how well ND does this? If only schools like SLS can be more like ND where students have more decorum and respect." (In full disclosure, I am a ND Law School alum). Judge Duncan faced zero pushback today with his "response" and that was on purpose.
Another point Judge Duncan makes today (and on Advisory Opinions) is the importance of free speech and a variety of views and opinions, especially in the context of law school and legal training, and yet he doesn't speak out about judges who choose clerks who only agree with the judges' constitutional views, who insulate themselves (and accordingly, their legal opinions) from any other views -- talk about living in a "bubble" (which is a comment he makes disparagingly about the SLS students). It's a bit hypocritical without the vision to see how hypocritical it is. Again, he talks about it as if it just makes sense that of course judges would want clerks that agree with them. But maybe that process needs to be reconsidered, especially in light of the problems with discourse and tolerance lately.
Lastly, Judge Duncan repeatedly has said that the SLS event took him "by surprise." Call me skeptical, but I'm not certain the whole event wasn't by design, a coordinated choosing by Fed Soc evaluating various law school options and choosing SLS, a place where they thought they could receive the most heightened response, to provoke exactly this situation.
I appreciated Dean Martinez's response, and I hope other law schools use it as a model of leadership in free speech and campus discourse going forward.
Thank you too for all your writing and interviews and analysis. Greatly appreciated.
The whole riotous mess got out of hand, even with forewarning, on Dean Martinez's watch. She has reacted after-the-fact because of the apparent harm to Stanford's reputation and the outrage among the alumnae organizations. So far, the extent of her disciplinary reactions has been to put a guilty DEI admin on "leave". This is strength? The first step in fixing a problem is recognizing the problem and if this tawdry, weak example of Martinez's response is what you consider "strong" it's no wonder we're in such a mess.
And Blah, blah, blah. Martinez is part of the weakening and feminization of Stanford: her reply *after the fact* is weak and tries to assuage through words. She needs to be replaced with someone who is stronger and more capable of actually leading.