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From: Ministerial Correspondence Unit - Justice Canada <mcu@justice.gc.ca>
Date: Sat, 22 Oct 2022 17:20:58 +0000
Subject: Automatic Reply
To: David Amos <david.raymond.amos333@gmail.
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---------- Original message ----------
From: David Amos <david.raymond.amos333@gmail.
Date: Sat, 22 Oct 2022 14:19:54 -0300
Subject: I remember talking to Heather Gerken when she was at Harvard
To: davidlat@substack.com, heather.k.gerken@yale.edu,
joepatrice@abovethelaw.com, jpatrice@rpnexecsearch.com, mcu
<mcu@justice.gc.ca>, washington field <washington.field@ic.fbi.gov>,
newsonline <newsonline@bbc.co.uk>, news-tips <news-tips@nytimes.com>,
Newsroom <Newsroom@globeandmail.com>, dana.boente@usdoj.gov,
Karen.Taylor2@usdoj.gov, usavae.press@usdoj.gov
Cc: motomaniac333 <motomaniac333@gmail.com>,
williamburck@quinnemanuel.com, alexspiro@quinnemanuel.com,
alexgerbi@quinnemanuel.com, "Melanie.Joly" <Melanie.Joly@parl.gc.ca>,
johnquinn@quinnemanuel.com
https://davidraymondamos3.
Saturday, 22 October 2022
I remember talking to Heather Gerken when she was at Harvard
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From: Newsroom <newsroom@globeandmail.com>
Date: Sat, 22 Oct 2022 16:33:01 +0000
Subject: Automatic reply: Whereas only paid subscribers can comment
within David Lat's domain I will respond to his question about Yale
Law School in this fashion
To: David Amos <david.raymond.amos333@gmail.
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---------- Original message ----------
From: Ministerial Correspondence Unit - Justice Canada <mcu@justice.gc.ca>
Date: Sat, 22 Oct 2022 16:32:57 +0000
Subject: Automatic Reply
To: David Amos <david.raymond.amos333@gmail.
Thank you for writing to the Honourable David Lametti, Minister of
Justice and Attorney General of Canada.
Due to the volume of correspondence addressed to the Minister, please
note that there may be a delay in processing your email. Rest assured
that your message will be carefully reviewed.
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Merci d'avoir écrit à l'honorable David Lametti, ministre de la
Justice et procureur général du Canada.
En raison du volume de correspondance adressée au ministre, veuillez
prendre note qu'il pourrait y avoir un retard dans le traitement de
votre courriel. Nous tenons à vous assurer que votre message sera lu
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https://law.yale.edu/heather-gerken
Heather Gerken
Dean and Sol & Lillian Goldman Professor of Law
Heather Gerken is the Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. Dean Gerken is one of the country’s leading experts on constitutional law and election law. A founder of the “nationalist school” of federalism, her work focuses on federalism, diversity, and dissent.
Hailed as an “intellectual guru” in the New York Times, Gerken’s scholarship has been featured in The Atlantic, the Boston Globe, NPR, the New York Times, and Time. In 2017, Politico Magazine named Gerken one of The Politico 50, a list of idea makers in American politics. Her work on election reform has affected policy at a national level.
At Yale, she founded and runs the country’s most innovative clinic in local government law, the San Francisco Affirmative Litigation Project (SFALP). Gerken is also a renowned teacher who has won awards at both Yale and Harvard. She was named one of the nation’s “twenty-six best law teachers” in a book published by the Harvard University Press.
A native of Massachusetts, Gerken graduated from Princeton University, where she received her A.B. degree, summa cum laude in 1991. A Darrow Scholar, she graduated from the University of Michigan Law School summa cum laude in 1994. Gerken currently serves as a trustee for Princeton University.
After law school, Gerken clerked for Judge Stephen Reinhardt of the 9th Circuit and Justice David Souter of the United States Supreme Court. She then served as an appellate lawyer in Washington, D.C., before joining the Harvard Law School faculty in 2000. Gerken came to Yale in 2006 and became the inaugural J. Skelly Wright Professor of Law in 2008. She became dean of Yale Law School on July 1, 2017.
Gerken has published extensively. Her work has been featured in the Harvard Law Review, the Yale Law Journal, the Stanford Law Review as well as numerous popular publications. Her work has been the subject of four symposia, and she has served as a commentator for a number of major media outlets, including The New York Times, The New Yorker, NPR, CNN, MSNBC, and NBC News. Dean Gerken served as a senior advisor to the Obama campaign in 2008 and 2012. In 2013, her proposal for creating a “Democracy Index” – a national ranking of election systems — was adopted by the Pew Charitable Trusts, which created the nation’s first Election Performance Index. She has been featured in the National Law Journal for balancing teaching and research, won a Green Bag award for legal writing, and has testified before the Senate three times. Gerken is a member of the American Academy of Arts and Sciences.
Contact Information
- Room 104
- (203) 432-1660
- heather.k.gerken@yale.edu
I remember talking to Heather Gerken when she was at Harvard before I sent her this
---------- Original message ----------
From: David Amos <david.raymond.amos333@gmail.
Date: Sat, 22 Oct 2022 13:32:49 -0300
Subject: Whereas only paid subscribers can comment within David Lat's
domain I will respond to his question about Yale Law School in this fashion
To: davidlat@substack.com, heather.k.gerken@yale.edu,
joepatrice@abovethelaw.com, jpatrice@rpnexecsearch.com, mcu
<mcu@justice.gc.ca>, washington field <washington.field@ic.fbi.gov>,
newsonline <newsonline@bbc.co.uk>, news-tips <news-tips@nytimes.com>,
Newsroom <Newsroom@globeandmail.com>, dana.boente@usdoj.gov,
Karen.Taylor2@usdoj.gov, usavae.press@usdoj.gov
Cc: motomaniac333 <motomaniac333@gmail.com>,
williamburck@quinnemanuel.com, alexspiro@quinnemanuel.com,
alexgerbi@quinnemanuel.com, "Melanie.Joly" <Melanie.Joly@parl.gc.ca>,
johnquinn@quinnemanuel.com
NOPE
https://davidraymondamos3.
Saturday, 22 October 2022
Geronimo’s Heirs Sue Secret Yale Society Over His Skull
https://www.nytimes.com/2009/
AND
Congratulations to William Burck, the Co-Managing Partner of Quinn
Emanuel Urquhart & Sullivan, LLP, and Co-Chair of the firm’s Crisis
Law and Strategy Group, Government and Regulatory Litigation Group,
and Investigations, Government Enforcement and White Collar Criminal
Defense Group, for his selection as one of the seven finalists in The
National Law Journal Legal Awards 2022 'Winning Litigators' award.
This award goes to the attorney who has "stood out for their work
guiding clients through high-stakes litigation" and the winner will be
announced on October 20th at the awards event in Washington, D.C.
William “Bill” Burck has the enviable status of being one of the
country’s most sought-after lawyers. In an extensive profile, the New
York Times described him as a “Washington superlawyer,” a modern-day
version of Edward Bennett Williams, who was famously known as “the
counsel to the situation.” Bill is first and foremost a trial lawyer,
representing companies, boards of directors and senior executives in
investigations, sensitive matters, corporate crises, litigation and
other disputes involving the federal government and its agencies,
including the Department of Justice, the Securities and Exchange
Commission (SEC), the Commodity Futures Trading Commission (CFTC), the
Federal Trade Commission (FTC), as well as state governments,
including District Attorney’s Offices, State Attorneys General, other
law enforcement and regulatory agencies, and the United States
Congress) and governments of Europe, the Middle East, Asia and Africa.
Mr. Burck is former Special Counsel and Deputy Counsel to President
George W. Bush in Washington, D.C., and a former federal prosecutor in
New York City. In his role as a senior official at the White House,
Mr. Burck provided legal advice to the President and senior White
House officials on a wide range of issues, including congressional and
other government investigations, national security and foreign
affairs, the financial crisis of 2008 and complex constitutional
questions. During his time as a senior official in the Criminal
Division of the Department of Justice and as an Assistant United
States Attorney in the U.S. Attorney’s Office for the Southern
District of New York, Mr. Burck investigated and prosecuted a variety
of white collar and other criminal cases. He was a member of the
trial team in United States v. Martha Stewart, and was lead prosecutor
in a number of jury trial
Delivery to the following recipient failed permanently:
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Message-ID: <CACs042Ty-
Subject: Fwd: If the Internet Party still exists and Kim Dotcom is truly
serious about defending himself against the US Feds then his lawyer Mr
Amsterdam should study the pdf files hereto attached VERY closely EH Bob
Paulson of the RCMP and Peter Edge of the DHS?
From: David Amos <motomaniac333@gmail.com>
To: ira@techfirm.net, dsmith@smithzimmerman.com, dana.boente@usdoj.gov,
Karen.Taylor2@usdoj.gov, usavae.press@usdoj.gov,
craig.reilly@ccreillylaw.com,
williamburck@quinnemanuel.com
Cc: David Amos <david.raymond.amos@gmail.com>
<Newsroom@globeandmail.com>,
news-tips <news-tips@nytimes.com>
Content-Type: multipart/mixed; boundary=
https://www.quinnemanuel.com/
LOS ANGELES—John B. Quinn, the founding partner of Quinn Emanuel
Urquhart & Sullivan, LLP, today launched “Law, disrupted,” a brand new
podcast that tackles how the law is responding to innovation and
current events.
As managing partner of the business litigation firm the Wall Street
Journal termed a “global litigation powerhouse,” Quinn has unique
access to some of the top minds in the law and beyond. “Law,
disrupted” brings the up-to-the minute conversation about legal
innovation into your living room. In the podcast, John joins industry
professionals to examine and debate legal issues bearing on the newest
technologies, innovations, and current events, having
thought-provoking discussions about how disruption is playing out in
the legal sector.
“Everyone who knows me knows I like to listen and learn. This podcast
allows me to do both, tapping into some of the most fascinating minds
in the law today,” Quinn said. “I look forward to having a series of
vigorous conversations about legal issues and innovations, about the
role that legal disputes play in our increasingly fractious world, and
about emerging business conditions and trends. I hope listeners enjoy
these discussions.”
Initial episodes tackle such subjects as SPACs, NFTs, and litigation
funding. New episodes will deal with ransomware, autonomous vehicles,
U.S. Supreme Court practice, and private equity.
https://www.law-disrupted.fm/
Episode description:
Russia’s illegal military invasion of Ukraine has already cost
countless lives, and forced millions of innocent people to flee their
homes and the country, creating a massive humanitarian crisis both
within and outside Ukraine. Many other civilians are unable to flee,
being besieged by constant Russian shelling and threat, leaving them
trapped in cities without access to the most basic necessities such as
medicines and medical treatment, food, water and electricity. As the
war goes on, the tragic toll on Ukraine and its people continues to
grow. Through the legal claim it will bring before the European Court
of Human Rights (ECtHR), Ukraine will seek to hold Russia to account
for its grave and flagrant violations of the fundamental human rights
protections provided by the European Convention (the Convention)
resulting from this illegal war.
Quinn Emanuel Urquhart & Sullivan will represent Ukraine in this most
important case, and in this episode of Law, disrupted, John Quinn
joins Alex Gerbi, a partner at Quinn Emanuel’s London office, to
unpack the different aspects of this claim.
The episode begins by highlighting the firm’s long-standing
relationship with Ukraine, and how the illegal invasion and purported
annexation of Crimea by Russia in early 2014 created a number of legal
claims, including one for a state-owned bank Oschadbank, now a Quinn
Emanuel client of many years. Alex shares how this significant case
led the firm to grow its relationships in Ukraine, taking on other
important cases along the way and ultimately leading to the firm’s
instruction on this case before the ECtHR.
John and Alex then shift to the current claim to be brought by Ukraine
against Russia before the ECtHR as a result of Russia’s invasion of
the country and the ongoing war. Together, they discuss the legal
implications of Russia’s breaches of human rights in the context of
the Convention, and other issues relating to the conduct of the case
before this European Court. With Russia having first renounced the
Convention and then been expelled from the Council of Europe, how
might the landscape of this claim be impacted? They discuss the nature
of the Court, the make-up of the Judges, as well as the nature and
timing of the proceedings. Finally, they discuss what relief Ukraine
might look to obtain from the ECtHR and address the question — will
that make a difference in the face of Russia’s continued acts of
aggression?
Created & produced by: Podcast Partners
Published: Apr 28 2022
About John B. Quinn: Since founding Quinn Emanuel Urquhart & Sullivan,
LLP in Los Angeles in 1986, John has built it into the largest law
firm in the world devoted solely to business litigation and
arbitration. He is regarded as one of the top trial lawyers in the
world: In a 2016 poll by Bloomberg LP’s Big Law Business, he was named
the “most famous practicing lawyer in the world” at large law firms.
Described as a “master strategist” by the American Lawyer, he has been
hailed for his unique vision in building a litigation-only global firm
and for the decision not to represent the world’s largest money-center
banks so the firm could be adverse to them. Beyond his law practice,
John is an Ironman triathlete and contemporary art enthusiast, having
opened the Museum of Broken Relationships on Hollywood Boulevard in
2016 and launching an artist-in-residence program at Quinn Emanuel for
emerging and mid-career Los Angeles artists last year. He is also the
owner of Q SUSHI, an omakase-only Michelin-starred sushi restaurant in
downtown Los Angeles. Learn more at https://www.johnbquinn.com.
https://davidlat.substack.com/
General News
Is Yale Law School Turning Over A New Leaf?
Judges James Ho and Lisa Branch are heading to YLS—at the invitation
of Dean Heather Gerken!
David Lat Oct 20
The Sterling Law Building, home to Yale Law School (photo by David Lat).
Welcome to Original Jurisdiction, the latest legal publication by me,
David Lat. You can learn more about Original Jurisdiction by reading
its About page, and you can email me at davidlat@substack.com. This is
a reader-supported publication; you can subscribe by clicking on the
button below. Thanks!
For the past year or so, I’ve been speaking all over the country about
free-speech problems at American law schools. The institution that
figures most prominently in my talks is Yale Law School—partly because
it’s the longtime #1 law school and top producer of law professors and
deans, making it a trendsetter in legal academia; partly because it’s
the school I know the best, as my alma mater; and partly because it
has had more high-profile controversies over free speech and cancel
culture than any other school. If you look at the most popular stories
in the history of Original Jurisdiction—which will celebrate its
second anniversary in December, so thank you for your support—six out
of the top ten posts are about Yale Law.
During the always vigorous question-and-answer sessions at my talks,
I’m frequently asked: will things improve? A positive person by
nature, I say yes, but this was often more wish than prediction.
Now I feel a stronger basis for optimism—and one thing giving me hope
is recent news out of Yale Law. Some of this news emerged last week,
when I was away on vacation, so I’ll double back to cover it. But I’ll
begin with previously unreported news.
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.1
Judges Ho And Branch To Dean Gerken
2.29MB ∙ PDF File
Download
A week ago today, on Thursday, October 13, Judges Ho and Branch
responded to Dean Gerken’s outreach with a letter (which you can
download via the embed above). Here’s how it begins:
Wowzers! I share the judges’ hope that the panel can take place before
January 17—because I don’t know if I can wait that long for such an
epic event.
Substance aside, I suspect that the reception to Judges Ho and Branch
will determine whether they actually push through with their boycott
(which both judges have explained doesn’t apply to current YLS
students and graduates, only future students—so in a sense it hasn’t
really taken effect yet). If Judges Ho and Branch receive a cool but
ultimately civil reception from Yale Law’s overwhelmingly progressive
student body, then I expect the judges to stand down. But if they get
shouted down at YLS, as Kristen Waggoner of the ultra-conservative
Alliance Defending Freedom did this past March, that will powerfully
prove that Yale’s free-speech problems are profound—and might get even
more judges to publicly hop on the anti-YLS bandwagon.
The rest of the judges’ four-page letter—which I urge you to read in
full, along with Judge Ho’s forthcoming article in the Texas Review of
Law & Politics, Agreeing to Disagree: Restoring American by Resisting
Cancel Culture—is an eloquent defense of free speech, open discourse,
and civil disagreement. The last two pages respond to a statement by
Dean Gerken that was posted on the YLS website last Wednesday, October
12, A Message to Our Alumni on Free Speech at Yale Law School (“Alumni
Message”). So I’ll walk you through that statement now, offering
reporting and opinion of my own, as well as comments from the
Ho/Branch letter. (The Alumni Message was previously covered by Karen
Sloan and Nate Raymond of Reuters, Brad Kutner of the National Law
Journal, and Debra Cassens Weiss of the ABA Journal.)
Here’s how Dean Gerken’s Alumni Message begins (all hyperlinks in the original):
Dear members of our alumni community:
Yale Law School is dedicated to building a vibrant intellectual
environment where ideas flourish. To foster free speech and
engagement, we emphasize the core values of professionalism,
integrity, and respect. These foundational values guide everything we
do.
So far, so good. Please proceed, Dean Gerken.
Over the last six months, we have taken a number of concrete steps
to reaffirm our enduring commitment to the free and unfettered
exchange of ideas. These actions are well known to our faculty,
students, and staff, but I want to share some of them with you as
well.
Last March, the Law School made unequivocally clear that
attempts to disrupt events on campus are unacceptable and violate the
norms of the School, the profession, and our community.
I don’t view Dean Gerken’s statement on the infamous March 10 protest
as making “unequivocally clear” that what transpired was unacceptable;
to the contrary, I found her statement rather… equivocating. But
instead of repeating myself, I’ll simply incorporate by reference my
earlier exegesis of her comments. I would also refer you to page 3 of
the Ho/Branch letter, in which the judges similarly criticize YLS’s
handling of the March 10 protest and refute the attempt to defend that
handling.
Back to the Alumni Message:
The faculty revised our disciplinary code and adopted a policy
prohibiting surreptitious recordings that mirrors policies that the
University of Chicago and other peer institutions have put in place to
encourage the free expression of ideas.
I will spare you—and me—from a painstaking parsing of the updated
disciplinary code, which runs to seven single-spaced pages. For now,
here’s a concise explanation of the latest revisions that was provided
to me by Professor Claire Priest, who served on the faculty committee
responsible for the changes:
I am writing because it was so disappointing to hear that Judge Ho
and other judges called for a hiring freeze on YLS clerks due to the
disruptive protests against Alliance Defending Freedom last year.
Since last January, I have served on a committee led by Professors
Oona Hathaway and Tracey Meares that rewrote the rules of the law
school. One of the first revisions we made clarified that “reckless”
disruptions of law school events are major violations of the code.
Since the 1970s, the school has been governed by the Rights and
Duties (“R&D”), which was poorly written and vague, and resulted in an
environment where the Dean and administrators were effectively in
charge of all discipline. After the ADF protest, Dean Heather Gerken
constituted a committee to rewrite the rules to make it explicit that
reckless disruption of classes, events, and the business of the law
school will constitute a major violation of our rules going forward.
Unfortunately, we did not feel we could publicize this until September
21, when the faculty unanimously voted for the new code. The revised
code also clarifies the procedures we will use and takes much of the
disciplinary work out of the hands of our student-facing
administrators.
One thing I’d highlight from Professor Priest’s message: the committee
that led the R&D revision was appointed last January—after the
scandals known as Dinner Party-gate, Trap House-gate, and Antiracism
Training-gate, but before Protest-gate, and well before the Ho-led
boycott. So while Judge Ho can take credit for highlighting YLS’s
free-speech problems and restarting the conversation about them after
the summer break, the process of revising the R&D was underway long
before that.2
Now let’s turn to YLS’s adoption of a policy prohibiting surreptitious
recordings, which the Alumni Message claims “mirrors policies that the
University of Chicago and other peer institutions have put in place to
encourage the free expression of ideas.” Judges Ho and Branch question
both the policy and Dean Gerken’s defense of it in their letter:
Congratulations, Dean Gerken! You just got Judge Jim Ho and Professor
David Bernstein to agree with Joe Patrice—no small feat. Both
Professor Bernstein, writing at the Volokh Conspiracy, and Joe
Patrice, writing at Above the Law, think this is a load of BS share
Judge Ho’s skepticism of the recording ban and the purported
justification for it. See also this take that a current YLS student
shared with me:
It is a stretch to say that this policy was implemented “to
encourage the free expression of ideas.” Rather, this is clearly a
response to Trent [Colbert]'s recording of his meetings with OSA
[Office of Student Affairs] during Trap House-gate. The purpose of
those recordings was to hold the administration accountable for their
egregious actions taken behind closed doors. Dean Gerken floated the
idea of adding this recording restriction as early as November 17,
2021, in her statement to the Law School responding to Trap
House-gate. To now try to frame this policy as a triumph for
speech—rather than recognizing it as a way to decrease transparency
and accountability for the administration—is rather disingenuous.
Still with me? Okay, back to the Alumni Message:
We developed an online resource outlining our free speech
policies and redesigned Orientation to center around discussions of
free expression and the importance of respectful engagement. Virtually
every member of the faculty spoke to their students about these values
on the first day of class.
Excellent. As I have said on multiple occasions, if orientation is
going to include training on diversity, equity, and inclusion—and
sometimes very bad training on DEI—it should also include training on
“free expression and the importance of respectful engagement,” which
are essential to YLS’s academic mission.
We replaced our digital listserv with what alumni fondly
remember as “the Wall” to encourage students to take time to reflect
and resolve their differences face-to-face.
As an alum from the days of the physical Wall, I supported this shift
away from a listserv. Sure, we had controversies on the physical Wall,
but nothing remotely resembling the flame wars you see on law school
listservs today. Having to handwrite or type out your thoughts and
then affix them to a physical wall, like Martin Luther and his 95
Theses, inherently slowed down communication, promoting a salutary
cooling of tempers and preventing instantaneous pile-ons like Trap
House-gate.
Alas, not surprisingly, enterprising law students have already found a
way around the physical Wall, as a current student explained to me:
Almost immediately after “the Wall” was disabled, students used
the mailman.yale.edu listserv to create a replacement, “the Window.”
While the Window is not officially sanctioned by the Law School and
requires people to opt-in, it is open to all members of the Law School
Community and has basically just replaced the Wall under a new name.
Almost no one uses the physical Wall for posting. I think that it
would have been great if the physical Wall took off, but the Window
has rendered it obsolete.
This is, by the way, exactly what one former YLS administrator
predicted to me would happen when the idea of returning to a physical
Wall was first mentioned back in July. Per this ex-administrator’s
admittedly cynical (but not necessarily wrong) assessment, the current
YLS administration simply wanted less to monitor, which was the main
advantage of a (not very active) physical Wall. Because the Window is
not officially hosted by YLS, no one from the administration has any
responsibility for it.
Continuing with the Alumni Message:
We welcomed a new Dean of Students who is focused on ensuring
students learn to resolve disagreements among themselves whenever
possible rather than reflexively looking to the institution to serve
as a referee.
As I previously mentioned on Twitter, Dean Jennifer Cerny, who joins
YLS from the University of Connecticut School of Law, will serve as
dean of students on an interim basis, for the 2022-2023 academic year.
Reading between the lines of this bullet point: rejoice, alumni,
because the two administrators behind most of the scandals, former
dean of students Ellen Cosgrove and former DEI director Yaseen Eldik,
are no longer at the Office of Student Affairs. Cosgrove retired over
the summer, and Eldik, while still employed at YLS, is no longer in a
student-facing role. (I don’t have his exact title, but my
understanding is that he’s focused on DEI issues in the law-teaching
world.)
And here’s the final paragraph of the October 12 Alumni Message:
This important and ongoing work takes place against the backdrop
of long-standing efforts to encourage the robust exchange of ideas
that is essential to any academic community. In all of these efforts,
our core model remains the same—we know that the best way for our
students to learn is by engaging with their peers and faculty in
small, iterative conversations within our community. While this work
often is not visible to the wider world, the Law School is moving
forward on its central commitments and we are focused on educating the
next generation of lawyers and instilling them with the values so many
of us hold dear. I’m grateful for your unfailing support and love of
the School.
Sincerely,
Heather K. Gerken
And that’s all she wrote. Was it perfect? No; nothing is (with the
possible exceptions of All About Eve and Clueless). But was it good,
even very good? Yes. Coupled with the underlying policy changes and
Dean Gerken’s outreach to conservatives—going so far as to invite to
campus the two judges leading the YLS boycott—it’s an auspicious
beginning to the first academic year of her second term as dean.
My friends at the Foundation for Individual Rights and Expression
(“FIRE”),3 who have also not been afraid to criticize Dean Gerken and
YLS in the past, similarly described themselves as "(very) cautiously
optimistic" about what lies ahead at Yale Law. Alex Morey, FIRE’s
Director of Campus Rights Advocacy, characterized the Alumni Message
as “a strong (albeit imperfect) statement,” as well as “a promising
first step for Yale’s law school, at least, toward meeting these
critical obligations. FIRE remains hopeful the broader university’s
dark, censorious days may soon be history.”
There are other reasons for optimism about the way things are going at
YLS. I have heard from current students and recent alumni that things
are settling down—partly because some of the most acrimonious
activists graduated last year, and partly because the new 1Ls seem to
be a serious group of students who are interested in learning the law
rather than deconstructing it.
We’re several weeks into the new school year, and we have not yet had
another Trap House-gate or Protest-gate. Noted Supreme Court advocate
Kannon Shanmugam came to YLS to offer his traditional SCOTUS Term
Preview to the Yale Federalist Society, and he was not
protested—unlike last year, when he was protested because his law
firm, Paul Weiss, represents Exxon Mobil.
In a recent interview for the Yale Federalist Society, Visiting
Professor Steven Calabresi—himself an alum of Yale Law, where he
co-founded the Federalist Society—summarized several positive
developments (parentheticals correspond to where the relevant material
appears in the YouTube video):
Dean Cosgrove retired (34:55), while Yaseen Eldik has been
“assigned to other duties that don't involve interaction with law
students” (35:07);
Dean Gerken has hired a new dean of students who respects free
speech (35:24);
prominent conservative law professor Saikrishna Prakash is
visiting at Yale this fall (36:36); and
Dean Gerken expressed support to Professor Calabresi for tenuring
Professor Prakash (36:48).
If Professor Prakash can be wooed away from UVA Law, and if Dean
Gerken can add a few more prominent conservatives who teach public
law, that will go a long way toward changing the intellectual climate
at YLS. It’s the strategy that then-Dean Elena Kagan pursued at
Harvard Law School, which explains a lot about the difference in the
intellectual environments at YLS and HLS these days.
So over the past few months—at 1L orientation, in the August 18 email
from Dean Gerken to the student body, and in the October 12 message to
alumni—Yale Law School has been saying the right things about free
speech, intellectual diversity, and civil discourse. And it has been
adopting improved policies about all of these subjects.
But as 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.
Until then, we shouldn’t hesitate to shine the limelight back on Yale
if another free-speech debacle transpires. As Justice Brandeis
famously quipped, “Sunlight is said to be the best of disinfectants;
electric light the most efficient policeman.”
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1
Since my original story about Judge Ho’s YLS boycott, other judges
have weighed in, both in favor of and against the boycott. Per Karen
Sloan and Nate Raymond of Reuters, Avalon Zoppo of the National Law
Journal, and Madison Alder of Bloomberg Law, Judges Ralph Erickson
(8th Cir.), Theodore McKee (3d Cir.), Diarmuid O’Scannlain (9th Cir.),
Jerry Smith (5th Cir.), J. Harvie Wilkinson (4th Cir.), and Diane Wood
(7th Cir.) have either criticized the boycott or announced they would
not be joining it. Meanwhile, Judge Edith Jones (5th Cir.) didn’t join
the boycott, but echoed Judge Ho’s cancel-culture concerns.
Similarly, law professors have come out on both sides of the boycott.
Over at the Volokh Conspiracy, Josh Blackman lauded it, while Eugene
Volokh criticized it. Unlike some critics, though, Professor Volokh
didn’t question Judge Ho’s motives, acknowledging that Judge Ho “is
seriously concerned about free speech for everyone, left or right”—a
concern reflected in pro-free-speech rulings from Judge Ho that favor
both liberals and conservatives. Instead, Professor Volokh argued that
“we shouldn't threaten innocent neutrals”—here, law students seeking
clerkships—”as a means of influencing the culpable.”
2
It might be more plausible to argue that Judge Ho’s boycott played a
role in the public posting of the Alumni Message—but I doubt that, for
two reasons. First, the policy changes set forth in the Alumni Message
were all in the works before Judge Ho announced his boycott on
September 29 (and had to be, given all the steps involved, such as
committee deliberations and a faculty vote). Second, the Alumni
Message overlapped significantly in its themes with an email that Dean
Gerken sent to the YLS student body back on August 18, in which she
emphasized the importance of free speech and civility.
I ran my thinking by YLS Associate Dean and Chief of Staff Debra
Kroszner (who still wears the media-relations hat at the law school).
She confirmed that the Alumni Message was in the works well before
Judge Ho announced his boycott—i.e., Judge Ho’s boycott triggered
neither the Alumni Message nor its public posting. It also makes sense
that the Alumni Message was posted on October 12 because it gave
alumni a week to read and digest the message ahead of YLS Alumni
Weekend, which is this coming weekend (October 21-23).
3
Disclosure: I spoke over the summer at FIRE’s 2022 Student Network
Conference–for which I was compensated, as I am for speaking
engagements—and I sit on FIRE’s Advisory Council.
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