Yale Law Students: The Dean’s A Liar And We’re Special

Yale Law School dean Heather Gerken wrote a rainbows and unicorns post at Time about how law students were special and adored free speech.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting. Nobody wants to be the next Middlebury or Claremont McKenna, where demonstrations disrupted controversial speakers.

Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these.

While the campus eruptions haven’t broken down by major or grad schools, but rather by broad-based, undifferentiated student protect, fair enough.

There may be a reason why law students haven’t resorted to the extreme tactics we’ve seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

This, of course, is true. Or at least, was true.

In law schools we don’t just teach our students to know the weaknesses in their own arguments. We demand that they imaginatively and sympathetically reconstruct the best argument on the other side. From the first day in class, students must defend an argument they don’t believe or pretend to be a judge whose values they dislike.

Again true, at least in the historic sense. But as much as this may be the pedagogical goal, recent experience suggests that law students, and young lawyers, no longer believe this to be their duty and, more importantly, are no longer capable or willing to argue positions or values in which they don’t believe.

We teach students that even the grandest principles have limits. The day you really become a lawyer is the day you realize that the law doesn’t–and shouldn’t–match everything you believe. The litigation system is premised on the hope that truth will emerge if we ensure that everyone has a chance to have her say.

Well then, law schools certainly sound like a bastion of free speech and thought. What say you, Eli law students? Hold my beer.

She argues that this professional decorum is the most effective way to overcome division, reminding us that it was powerful enough to protect lawyers like Thurgood Marshall from violence during the civil-rights era.

Unfortunately, Dean Gerken’s article mischaracterizes both the protest that we and around 20 other students helped organize against Charles Murray in October 2016 and the treatment of civil-rights lawyers in the South. If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Civility does indeed have its limits, like when a bunch of smug, snot-nosed children take it upon themselves to disrupt others’ ability to speak and others’ ability to listen because they are so enamored by their own thought and feelings that they get to dictate what is worthy of expressing.

When students invite a racist social scientist to speak on a university campus, as they did in the case of these protests, all should respond with alarm. Instead, both conservative and moderate commentators across the country have turned their scrutiny on student protesters. They style themselves as free-speech martyrs, but disruptive protest is also speech, and we and our peers, particularly those subjected to racist and gendered attacks by people like Murray, will continue to raise our voices in opposition.

There was once a time when the students admitted to Yale Law School were considered reasonably bright. But to argue that “disruptive protest is also speech” calls into question whether they cheated on their LSATs.

We decline Dean Gerken’s invitation to adopt the “free-speech” framework propagated by conservative speakers who, like Murray, assert not only the right to speak but also the right to be heard by the very people they aim to oppress. We have no interest in civil conversation with a man who denigrates the cognitive capacities of women and people of color.

Well, these kids aren’t going to do well in the courtroom when they bravely get held in contempt.

Confronting racism is difficult, but essential, work. Promoting civility can undermine this work by policing the tone and speech of those who are oppressed, diverting our attention away from efforts to combat ongoing white supremacy. Though the study of law and its decorum may be sobering, it does not mean law students should abandon protest and dissent.

It’s no surprise that Gerken’s post evoked this sort of reaction. It was a rather ridiculously rosy portrayal of students who are no less overcome with the righteousness of their social justice feelz as their undergrad brethren. But one might have expected Yale students, potentially law profs and Supreme Court justices eventually, to have the good judgment to keep their mouths and pens quiet so as not to conclusively prove they’re every bit as foolish as the undergrads. Nope. It wasn’t to be.

But, of course, after one leaves the Ivy-covered walls, one certainly grows up to realize that law demands more than narcissistic self-indulgence, right? Maybe not.

It’s the sort of Pollyanna-ish professional lionizing every law school attempts but can never, ever do better than Yale.

When Gerken’s piece hit the presses, I mulled writing a detailed response about the perils of mythologizing legal minds as docile bulls**t receptacles incapable of voicing a thought beyond putting on a stoic grimace in a detached, sterile environment.

The “I” in there is no less valued a voice as Above the Law’s Joe Patrice.

Thankfully, Gerken’s own students wrote the devastating takedown that her article so richly deserved.

That he views the kids polemic as a “devastating takedown” explains why Joe writes for ATL and doesn’t practice law, a fact for which clients are deeply thankful.

This is what gets me about the “academic freedom means Richard Spencer gets to give the commencement address” crowd. The academy isn’t “bad ideas romper room” where every brain fart gets a full airing. He published his work, it sucked, and we’ve watched it get eviscerated by experts for 20 years. He doesn’t get to play at the big kid’s table.

Is there a place where “every brain fart gets a full airing”? Apparently so, Joe.

24 comments on “Yale Law Students: The Dean’s A Liar And We’re Special

      1. wilbur

        They’re REALLY gonna hate that first direct contempt declaration.

        That’s where the unwoke judge’s brain fart gets a full airing.

        Reply
          1. Gregg

            ^ This should scare the hell out of everybody.

            “While it is true that [Plaintiff/Defendant]’s discovery responses did not comply with the cold, merciless letter of the Federal Rules of Civil Procedure, we must still consider how these rules might have made [Plaintiff/Defendant] feel . . . .”

            Reply
  1. Erik H

    One of my professors used to make a speech, basically this:

    Your job is not to find the truth. Your job is not to find the middle ground. Your job is not to produce a result which is “fair” or “just.” Your job is to get the best possible result for your client, limited only by the law and the rules of ethics. If you focus on truth, fairness, or justice over client outcomes, then you are failing your client and you are not doing your job.

    I still give that lecture to every new hire in my office. I don’t think law schools teach that any more. These days they are trying to teach you to be “fair,” which is #$%^ ridiculous.

    Reply
    1. SHG Post author

      Cool use of symbols. And on behalf of all the old lawyers and judges here, your relating one of your prof’s speeches is greatly appreciated, as we wouldn’t know anything about that unless you told us.

      Reply
    2. Jim Tyre

      I tend to be more practical. New hires have a memo waiting for them on their first day, titled “Lesson Number One: Always Check Your Facts.” Here’s the entirety of the memo:

      See Minasian v. Sapse (1978) 80 Cal.App.3d 823, 825:

      In July 1971, Minasian instituted a municipal court action against Sapse to recover $300 owed as attorney’s fees. On August 12, Minasian received the answer, counter-claims and cross-complaint filed by Sapse in which it was alleged that Minasian’s process server had acted in such a way that Sapse’s wife, who had recently undergone surgery, was agitated and emotionally shocked so as to cause her to be in a severe state of hypertension as a direct result of which she died. Sapse claimed damages for wrongful death in the amount of $50,000. Minasian was emotionally distressed by these allegations. On August 16, he received notice of motion for an order allowing amendment of Sapse’s pleadings to show that his wife had not died….

      I don’t think I’d make it as a modern day Ivy League law prof.

      Reply
  2. albeed

    ” That’s why lawyers know how to go to war without turning the other side into an enemy.”

    Gee, all this time I thought it was lawyers who went in after the battle to bayonet the wounded, women and children.

    Reply
    1. B. McLeod

      No, those are the social justice warriors. It’s ugly, but necessary to stamp out nonconforming thoughts of the unwoke.

      Reply
  3. Richard Kopf

    SHG,

    Let’s try a thought experiment.

    Because the empirical evidence from 131 studies by a wide variety of criminologists is overwhelming that race is a statistically valid predictor of recidivism, albeit only one such predictor out of a total of 17 (race ranks 5th most predictive statistically), should a person like Dr James Oleson B.A., M.Phil., J.D. (Berkley), Ph.D. (University of Cambridge), a former Supreme Court Fellow, and former Chief Counsel to the then newly formed Criminal Law Policy Staff of the Administrative Office of the U.S. Courts, be shouted down should he appear at a law school to talk about such things? More simply, should Dr. Oleson’s research be dismissed as a brain fart?

    If the answer to the foregoing question by Mr. Patrice and his ilk is “yes,” then we are well and truly fucked. All the best.

    Reply
    1. SHG Post author

      To some, this is a worthy subject of discussion. To the Patricians, this is literally Hitler. What’s it gonna be, future Supreme Court justices?

      Reply
    2. el profesor presente

      The key is the “more simply” part, because there’s no way a question like that gets considered in this context without being reframed in the most inflammatory way possible. Your framing already has potential but needs to be made much more woke.

      Fortunately for the client it’s pretty easy to turn that statistic into a brain fart.

      Reply
  4. Scott Jacobs

    The “I” in there is no less valued a voice as Above the Law’s Joe Patrice.

    It’s only “no less” because there is literally nothing valued less than an opinion from ATL.

    Reply
    1. SHG Post author

      Much as I would love to agree with you, ATL still gets an order of magnitude greater eyeballs than SJ, so they must capture something about lawyers and academics that I do not.

      Reply
      1. B. McLeod

        They still have a functioning tipster network such that ATL can break stories on law school and law firm scandals, and (annually) the compensation and bonus reports. So they are pitching to law students, Big Law associates, Big Law wannabes and people who just like scandals (a larger universe than the criminal justice/civil rights crowd). The quality certainly isn’t better, it’s just directed to a more general audience.

        Reply
    2. B. McLeod

      But to be fair, there are probably two writers at ATL whose opinions are valued even less than those of Jaux Pas.

      Reply

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