Free Speech, Intellectual Diversity and the Yale Law School, an update

David Lat:

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

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.)