David Lat on the Yale Law School Free Speech Issues (Including the Boycott)

David Lat (Original Jurisdiction) has a characteristically detailed and thoughtful article on the issue. The article links to Judge James Ho's article (based on his speech) in which he explains his thinking behind his boycott of clerk applicants from future Yale Law School classes; and it also links to Judge Lisa Branch's and Judge Ho's letter accepting Yale Law School Dean Heather Gerken's invitation to meet, and criticizing parts of Dean Gerken's letter to Yale alumni about free speech at Yale.

All of these items—Judge Ho's article, the judges' letter, Dean Gerken's letter, and Lat's analysis—are much worth reading. Lat appears to be skeptical of Judge Ho's position (as am I), but I think his coverage is fair and thorough.

Comments

[SimonP]

The only noteworthy thing, to me, about the whole Ho imbroglio - and David's little spat with UC-Berkeley, for that matter - is how the legal quasi-academic-punditry treats the whole thing as some kind of intellectual debate. Over woke-ism in law schools, "anti-Semitism," or whatnot. From the outside - that is, from the perspective of an informed practitioner with no particular interest in academic politics - it's just another mark of the crumbling standards of the judiciary and legal academia.

Ho's remarks on Yale, and his "boycott," were utterly unworthy of his office - as is much of what the Fifth Circuit itself is doing these days. How that is not the scandal, it's hard for me to understand. You lot are debating whether it is effective and whether law students should be expected to bear the costs of what is only a political dispute, but you are entirely ignoring what's going on in the Fifth Circuit, or with Ho in particular. Josh chuckles to himself about Ho's Supreme Court aspirations, Lat et al., wax sympathetic about his concerns but question his methods. Meanwhile we have a sitting judge on the Fifth Circuit staking out a position in the culture war, thereby signaling his inescapable bias and lack of judicial temperament, and that's just ho-hum from you all.

David, Josh, you - I veered off the path to legal academia many years ago, and ever since my limited exposure to legal academia has only helped to confirm for me that I am much, much better off. For every Orin or Ilya (Somin) there seem to be four or five intellectually dishonest, self-promoting hacks who spend half of their time invested in fake controversies and insipid gossip, completely inured to the halls collapsing around them. What is the purpose of legal academia, then? Who remains to guard the intellectual underpinnings of this discipline?

[John F. Carr]

The difference between calling balls and strikes and commenting on the quality of the pitcher.

[Krayt]

Does nobody find that refreshing honesty, compared to doing all that anyway while facetiously pretending decisions are not politics?

[LawTalkingGuy]

Maybe there weren't any intellectual underpinnings in the first place, and the self-promoting hacks are revealing the true nature of the profession.

[Rev. Arthur L. Kirkland]

Most readers of the Volokh Conspiracy seem not to recognize that the strident movement conservatives who operate this white, male blog operate at the disaffected, disrespected fringe of strong and mainstream modern American legal academia.

How many of the institutions that employ Volokh Conspirators -- other than South Texas and perhaps George Mason -- would hire a Volokh Conspirators if provided another chance at that decision?

Heroes to their downscale right-wing fans; unwanted misfits to their upscale employers.

[SimonP]

Actually, I think that Will probably deserves to be where he is; Orin's still a positive contributor; Dale, Ilya, and Jonathan are all "inflected" but still good-faith contributors on the issues they like to discuss. If you disagree with any of those people, one has the sense that you can have an intelligent discussion about it, nailing down the root of the issue, etc.

As for the rest... yeah. You've got either the GMU crew, the fourth-tier diversity hire and the think-tank-ensconced hacks, you've got a private-firm nutter. Eugene's the only one whose views and perspective has shifted so substantially over the years that you wonder how he managed to get himself hired where he is now.

[CommentMonkey]

You dismiss most of the content-providers on this site as "intellectually dishonest, self-promoting hacks," a "fourth-tier diversity hire," a "private-firm nutter," and someone "whose views and perspective has shifted so substantially over the years that you wonder how he managed to get himself hired where he is now." And you lament that it is difficult to find anyone willing to have an intellectual discussion with you.

Seems worth exploring whether your healthy self-regard has become a hindrance to taking seriously opposing viewpoints. Physician, heal thyself!

[Leo Marvin]

I don't wonder how Eugene got hired by UCLA. He's one of the top scholars in his field. Is it really so inconceivable that someone whose politics you (and I) abhor could excel at his job?

Also, you forgot one of the most dedicated anti-libs on the site: Randy. (If you doubt it check his Twitter.) I suspect he too could get hired right now at any number of top tier law schools in addition to the one where he's currently employed.

[SimonP]

Eugene used to be a genuine First Amendment scholar. Now his writing seems to be more oriented towards skewing First Amendment law in a more conservative-friendly direction. It's that skew, and his increasingly clear hostility towards LGBT people, that make me wonder about how he managed to get hired at UCLA. But I won't contest that the hire might have made sense, at the time.

As for Randy - I can also acknowledge that there is a genuine rigor to his work, when he is writing in a scholarly mode rather than as an advocate. I honestly just forgot he was one of the Conspirators. He only ever seems to use this platform to promote some kind of advocacy litigation. (Like he did for the ACA litigation a few years back.) I'd fault him more for the incoherence he wants to introduce into our constitutional law, than I would for being a "hack" or whatever else.

[M L]

I, too, think that people who disagree with me should be fired and hot hired.

I, too, think that people who disagree with me are unqualified and not genuine.

Good talk. Lots of common ground here. Cheers,

[Curle]

“Most readers of the Volokh Conspiracy seem not to recognize that the strident movement conservatives who operate this white, male blog operate at the disaffected, disrespected fringe of strong and mainstream modern American legal academia.”

Pretty bold talk from your mother’s basement.

[Rev. Arthur L. Kirkland]

And made at a blog operated by people whose boldness -- in openly embracing and appeasing bigotry, delusional superstition, belligerent ignorance, un-American insurrection, and general backwardness -- derives from tenure!

[Ed Grinberg]

we have a sitting judge on the Fifth Circuit staking out a position in the culture war

re: "culture war"
If, instead of discriminating against conservative students, Yale Law School discriminated against black students, would you still dismiss it as just "culture war," unworthy of serious people's attention?

[LawTalkingGuy]

Yes choosing to have conservative beliefs and being born black in America are directly comparable situations. You are very smart.

[Krychek_2]

I agree that the two comparisons are not apt. That said, I’ll run with it.

If I were a federal judge, and it came to my attention that a certain law school were discriminating against blacks, I would probably quietly not hire law clerks from that school. But I would not say so publicly, because I’ve then taken a public position on an issue that may come before the court. And that’s the real problem here: Judge Ho just announced his personal opinions on several issues that may come before his court. This in turn raises the question of how unbiased he will be should any of those issues come before his court.

If I were general counsel for Yale University, I would absolutely move to disqualify him from any litigation involving Yale. Ditto if I were representing a party on any issue that touches on this controversy. Like the King of England, one of a judge’s most important jobs is not stating his personal opinions on controversial issues.

[Rev. Arthur L. Kirkland]

People sometimes -- perhaps often -- claim they are being shunned for being conservative when they are being rejected for embracing (or appeasing) gay-bashing bigotry, racism, nonsense, or other objectionable things.

The letter from Judges Branch and Ho dreams of a day when conservatives (including, in particular, conservative Christians) can speak or be invited to speak at mainstream institutions without public opprobrium. But public opprobrium is a reasonable response to gay-bashers (regardless of whether that bigotry seeks rehabilitation through reference to "traditional values" or "conservative values"), racists, people who claim evolution is a demonic hoax, people who call for "death con 3" against Jews, people who contend that storks deliver babies, immigrant-hating white nationalists, people who argue that the moon is made of green cheese, QAnon adherents, etc., particularly in an academic setting, in which reason, science, and the reality-based world are preferred against superstition, dogma, and delusion.

If Judges Ho and Blank believe public opprobrium is unacceptable in the context of bigots and delusional, un-American speakers, they appear to have chosen the wrong country in which to expect their preferences will be respected by most of their fellow Americans.

[Krychek_2]

Which is yet another reason for a judge to publicly stay silent on the controversy. A judge should not publicly sort out whether in a particular case someone is truly being shunned for being conservative versus whether conservatism is merely being used as a cover for, say, white supremacy. For a judge to be involved in such disputes would open a 5-gallon can of worms.

[Curle]

“People sometimes — perhaps often — claim they are being shunned for being conservative when they are being rejected for embracing (or appeasing) gay-bashing bigotry, racism, nonsense, or other objectionable things.”

Nonsense. Good one coming from you.

No, conservatives place a premium on reality which involves assessments made on predictive patterns. You, as a study in contrast, insist on people embracing the exact opposite of opinions grounded in measurable reality. None of your strongly held beliefs are demonstrable by any reliable system of measurement. Your entire internal sense of reality functions in an ether of cloudy visions of romanticism. Mentally, you are an child and you demonstrate such each time you post.

[Rev. Arthur L. Kirkland]

" No, conservatives place a premium on reality "

How do you explain the silly, childish, delusional, nonsense-saturated superstition that conservatives embrace?

I don't expect an attempt to answer. Clingers dodge this one.

[M L]

What are you talking about, boomer? Go take a nap and take your meds.

[Rev. Arthur L. Kirkland]

I'm talking about how silly it is for right-wingers -- whose electoral coalition is built to large degree on superstition, suppressing science and reason to flatter dogma and nonsense -- to try to lecture the modern American mainstream about 'placing a premium on reality.'

[Sarcastr0]

Nothing but rational, objective, observation-based political positions coming from this guy!

Political values are always best derived empirically. We should all strive to be so proud of solving politics for everyone, at long last, with our unbiased brain.

[bernard11]

conservatives place a premium on reality

Nonsense. Conservatives live in their own fantasy world, where their baseless views are reinforced by conservative media and politicians.

[M L]

Liberals live in their own fantasy world, where their baseless views are reinforced by liberal media and politicians.

[bernard11]

Very imaginative response, M.L.

At least we know Trump lost in 2020.

[Bob from Ohio]

"disqualify him from any litigation involving Yale"

Is Yale in the 5th Circuit? Then I don't think that is going to bother him too much

[Krychek_2]

Well, in NYT v. Sullivan, the New York Times was sued in Alabama. People do get sued in places other than where they live. And people occasionally file suit against other people in places other than where the plaintiff lives.

[bevis the lumberjack]

LTG thinks it’s most swell for authorities to discriminate against groups that he disfavors but it’s different when you discriminate against groups he favors. That’s textbook bigoted behavior on his part, but he’s too lost in progressive bullshit to see himself as he is.

[LawTalkingGuy]

I refuse to believe that you are in fact so stupid as to think the innate quality of race is the same as the political views you choose to have.

If you actually do believe that, then I actually have a higher opinion of you than you do of yourself, which is very sad in a number of ways.

[bevis the lumberjack]

I didn’t say that. Not close.

Clearly not the same.

But it’s obvious that you believe that race is the only criteria upon which it’s possible to discriminate. Which is moronic, as YLS is conclusively demonstrating.

[Curle]

You mischaracterized his comment because you want to talk about racial bigotry to the exclusion of other forms of bigotry. If you need an primer you might look to the Bolsheviks and their hostilities towards contrived categories of mankind.

[Rev. Arthur L. Kirkland]

Agreed! Why focus exclusively on racial bigotry when conservatives also love superstitious gay-bashing bigotry and immigrant-hating xenophobic bigotry?

[y81]

OK, what if Yale were discriminating against people based on the religious views they choose to have?

[Krayt]

Given religion and politics are the exact same mass-delusional phenomenon, they already are.

[M L]

"I refuse to believe that you are in fact so stupid as to think the innate quality of race is the same as the political views you choose to have."

What about the gender identity that you choose to have?

[M L]

"I refuse to believe that you are in fact so stupid as to think the innate quality of race is the same as the political views you choose to have."

But . . . schools discriminate based on race also . . .

[Sarcastr0]

bevis - consider Nazis.

And then moderate your position accordingly.

[zztop8970]

If, instead of discriminating against conservative students, Yale Law School discriminated against Muslims, would you still dismiss it as just “culture war,” unworthy of serious people’s attention?

[LawTalkingGuy]

I mean insofar as religion is often a proxy for race and ethnicity then no.

But your professed beliefs are choices. I don’t see why you should get special treatment just because you choose to have shitty values.

[zztop8970]

I asked a simple question - not religion as a proxy for anything, but religion, per se (it goes without saying that there are Muslims of all races, and of many ethnicities, so it is hard to see how it could be a proxy for one of those)

So again - If, instead of discriminating against conservative students, Yale Law School discriminated against Muslims (people practicing Islam), would you still dismiss it as just “culture war,” unworthy of serious people’s attention?

[jb]

If your argument is that we should treat religion more like political (or other) preferences rather than as the type of physical characteristic that generally get special protection by the government, I'd be happy to agree with you. For the moment, though, religion got special consideration in the Constitution and various other laws so we treat it more like those physical characteristics. Most other things you choose don't get the same kind of protection, though, and for good reason.

[zztop8970]

But religion does, and it is a choice, so if instead of discriminating against conservative students, Yale Law School discriminated against Muslims, would you still dismiss it as just “culture war,” unworthy of serious people’s attention?

[Krychek_2]

Sorry, it's not a choice.

Suppose I offered you a million dollars to believe in the Easter Bunny. You might tell me you believed in the Easter Bunny in order to get the money, but deep down inside you would continue to not believe in the Easter Bunny. Because you can't force yourself, or make a volitional choice, about what you believe. Something either makes sense to you, or it does not, and if it makes no sense to you, then no amount of willpower on your part is going to get you to believe it.

Which is why, if I were still a Christian, I would be a Calvinist. All five points.

It's the same with political views, by the way. Can a liberal, by sheer force of willpower, force himself to believe that Trump was a great president? Can a conservative, by sheer force of willpower, convince himself that Obama was a great president.

You believe what you believe, and so do I, but a choice it is not.

[zztop8970]

Sorry, but it is most certainly a choice, people convert all the time, and some people leave the church, while others find God and come into it. It is not something innate that you are born into.

[Rev. Arthur L. Kirkland]

" while others find God "

They may say they find God, or even believe they find God . . . but they did not. Not any more than they found the Easter Buddy, Santa Claus, Sen. John Blutarsky, or Bugs Bunny.

[Krychek_2]

Yes, people convert, but only when they have non volitionally determined that they no longer believe what they thought they did.

Get back to me when you’ve successfully willed yourself to believe something you don’t.

[Brett Bellmore]

"Because you can’t force yourself, or make a volitional choice, about what you believe. Something either makes sense to you, or it does not, and if it makes no sense to you, then no amount of willpower on your part is going to get you to believe it."

You know, I'm always somewhat amazed at people who write stuff like this. I know I shouldn't be.

You're wrong about that. You have enormously more control here than you think you do. Maybe you've never been motivated to figure out how to do it, maybe you're better off not finding those controls and start messing with them, but there is very little about yourself that's genuinely beyond your control if you really want to seize control of it.

You can learn to stop your heart, voluntarily control pupil dilation, make objects vanish from your visual field, change local skin conductivity or blood flow. All sorts of things that you think are running completely on automatic. You think your emotions and beliefs are more beyond your reach?

People sleep walk through life, never understanding how much control they really have. But they can wake up.

[Krychek_2]

Fine Brett. Get back to me when you’ve successfully willed yourself to believe Obama was a great president, and the government should pay for abortion until the moment of birth.

[zztop8970]

so believing in the Muslim God (for example) is similar to believing that Obama was a good president (for example)?
You are making bevis the lumberjack's point for him without even realizing it.

[Krychek_2]

The two beliefs are substantively and qualitatively different but the methodology by which they are arrived at is the same. Spend a few minutes actually thinking through what it would take to get you to change your core beliefs; the true answer is probably that nothing would.

It's why it's fun to debate religion and politics but only rarely does anyone change their mind. If belief was logical and volitional, you'd have people changing their minds right, left and center as better arguments were made and better evidence came in. But that's not what happens. At the end of the day, you believe what you believe and so do I and so does everyone else here.

[Brett Bellmore]

The question is what would get me to WANT to believe Obama was a great President. If I ever concluded that it was important that I believe it, (Say they'd invented mind reading machines, and it was off to the camps, not just with me, but also my family, if I didn't admire him.) I've little doubt I could accomplish it.

[Krychek_2]

A really good mind reading machine would be able to tell that you were faking it, and that deep down in your gut you still had the same opinion as before.

But you are absolutely right that a big part of belief is the desire to believe. And here's the way that works: If I offer my cat a choice between tuna or broccoli, she's going to go for the tuna, and superficially it looks like she's making a choice. In reality, her feline nature requires her to pick the tuna; she would not be a cat otherwise. So, she can pick what she wants, but she has zero control over what it is that she wants. That part about what do cats like was made for her.

You, likewise, are a conservative because you want conservatism to be true. The only way to turn you into a liberal would be if somehow you could change your desires, and that's not likely to happen.

[zztop8970]

I've changed my mind on political issues more than once. It takes little more than new life experiences, new data, or just a fresh view or reevaluation.
Only closed-minded people stick to old long-held beliefs when circumstances change. I can recommend some self-help books that could be useful to you.

[David Nieporent]

Because you can’t force yourself, or make a volitional choice, about what you believe. Something either makes sense to you, or it does not, and if it makes no sense to you, then no amount of willpower on your part is going to get you to believe it.

I think you ignore the power of motivated reasoning.

[jb]

Like I said, religion gets a special callout in the Constitution and we treat it specially as a society. I'd be open to changing that, but I also think it's reasonable to treat it as a special kind of personal belief since we've created specific frameworks around protecting religious observance.

Other types of belief are generally not protected in the same way, including in most cases political affiliation. And for good reason! As perhaps an extreme example: if an employer had a particular business philosophy (e.g., "customer is king"!) and therefore didn't want to hire people with another business philosophy (e.g., "employees must be happy" or "our main goal is to reduce costs") I don't think it would be controversial to discriminate on that sort of viewpoint even if it wasn't directly related to the role the person was applying for.

[zztop8970]

My point was that there are things (like religion) that are clearly choices, that it is illegal to discriminate against, and that if Yale chose to do so, not only would LTG disapprove of it, but they'd be dragged to court and lose.

I don't find the distinction you are drawing all that compelling. If it would not be controversial to discriminate based on an employee not sharing the same values as the employer even if it wasn’t directly related to the role the person was applying for, why would it be controversial to discriminate based on an employee not sharing the same religion as the employer even if it wasn’t directly related to the role the person was applying for (especially since religions often encompass a myriad of moral and social values)?

[SimonP]

Yale is not "discriminating against conservative students." So, there's that.

But if Yale were to make clear, through various actions, that BLM-affiliated views and speakers were not welcome on its campus, and a judge were to come out and openly espouse pro-BLM views, promising to back up his position by promising to boycott Yale graduates in his hiring decisions - then, certainly, I would have no problem acknowledging he's engaged in the "culture war."

And if you were to say, that judge shouldn't be doing that, I might be able to concede that he probably shouldn't - instead of sophomorically asking, "What about...?"

[bevis the lumberjack]

Well if you say so that simply must make it true. Despite the demonstrated record in this specific case.

[Sims]

It always amazes me that someone like SimonP can come crashing in from one side of the debate like Leroy Jenkins and still expect to convince anyone undecided on the issue.

[Harvey Mosley]

Bonus Made Up Internet points for the Leeroy Jenkins reference.

[Ridgeway]

And thank you both for making me figure out who/what Leeroy Jenkins is.

[Krayt]

And, like politics and religion, Leroy Jenkins may have been a planned performance piece rather than organic idiocy fun.

[M L]

Yale's remarks on free speech, and their actions, are utterly unworthy of professional accreditation -- as is much of what Yale is doing these days. How that is not the scandal, it's hard for me to understand.

See, it's easy to assert things.

[Rev. Arthur L. Kirkland]

Yale is one of our nation's strongest -- if not the strongest -- research and teaching institutions. To disaffected losers and antisocial culture war casualties, that make Yale a target of derision -- which is a substantial reason right-wingers can't win at the modern American marketplace of ideas.

Carry on, clingers. So far as your betters -- and your stale, ugly, dying way of thinking -- permit, that is.

[The Margrave of Azilia]

I spent some time in Yale, then I got baled out.