by Ben Boychuk
If U.S. News and World Report’s ratings can be taken seriously, Yale is home to America’s top law school. Tuition at Yale Law School is just shy of $70,000 a year plus expenses for room, board, books, and sundries, though many students qualify for scholarships and generous financial assistance. A juris doctor degree from Yale opens a great many doors, but it is a fact that fewer Yale Law graduates go into Big Law than their peers from Harvard and other Ivies. Many go into government instead. It’s said that somewhere between 25 percent and 35 percent of all federal clerkships go to Yale Law grads.
But what exactly does a three-year, $210,000 (plus) Yale Law School education purchase? In particular, what does a Yale Law education look like?
The actor and writer Ben Stein (“Win Ben Stein’s Money,” “The World According to Ben Stein”) attended Yale Law School 50 years ago along with the likes of Bill Clinton and Hillary Rodham. They studied under such luminaries as Robert Bork, John Hart Ely, Charles Black, and Alexander Bickel. Stein has often spoken about his time at Yale, when tuition was around $2,100 annually (the equivalent today of just under $15,000) and the school wasn’t regarded quite as highly as it is now, but at least they believed they tried harder than their rivals in Massachusetts.
At the heart of Yale’s legal curriculum, Stein recalls, was something called “legal realism.” Here is how he described it in a 2008 New York Times column:
‘Legal realism’ said that the whole common-law system of abiding by past decisions was a fig leaf. What really happened, at the appellate level and probably at the trial level, too, was that judges made up their minds based on their predilections, their biases, which lawyer was their friend, what they had for breakfast that day . . .
Then, because a case that reached appeal always had some legal merit on each side, the judges, or their very young clerks, picked whatever precedent they wished to support their bias and pretended that they were bound by that precedent and could not have decided any other way.
The scales fell from my eyes, and I went on to finish law school in fine fettle. It was just all show business and personal bias and what’s in it for the judge. That made law school easy.
Stein was having a bit of fun, of course. “Legal realism” has a pedigree, with reams of scholarly and juridical output since the 1920s, rationalizing outcome-based decisions utterly divorced from the text and original meaning of our tattered Constitution. The high-minded realists of New Haven expected students to “discover the actual operation of the law” and, as Yale historian Laura Kalman put it, “offer a way by which ‘law could be coordinated with the social sciences.’” That echoes the Progressive Era’s belief in government by an expert class of administrators, though early legal realists were almost as critical of progressive legal scholars as they were of so-called classical legal theorists.
“It was the realists,” Kalman writes, “who imbued Yale with mystique that, as students and faculty ever after have emphasized, has endured to this day.” The results are plain to see. For every Clarence Thomas and Samuel Alito to come out of Yale Law School, there are probably 10 more Abe Fortases, Sonia Sotomayors, Catherine MacKinnons, and Tobias Barrington Wolffs. (Hunter Biden, incidentally, graduated from Yale Law School in 1996.)
Today, Yale’s legal realism has evolved—rather like the fish that could wriggle ashore evolved into an amniote that can wade in water—into critical legal studies. Just as the amphibian creature no longer could be categorized as a “fish,” Yale’s instruction at law isn’t easily categorized as “legal,” or “realism,” or even much of a “fig leaf.” Today, a legal education at Yale looks like this:
In what may be the purest distillation of Yale Law School of all time, YLS students declare, in chalk: “WE ARE THE LAW.” pic.twitter.com/KmSiMCE6gJ
— Aaron Sibarium (@aaronsibarium) May 4, 2022
A law professor told @bariweiss today: “If everything is violence, everything is permitted.”
Yale Law Students chalk “law is violence” outside of their law school. pic.twitter.com/7QJvLjmOUH
— Aaron Sibarium (@aaronsibarium) May 4, 2022
Is a bit of chalk graffiti on a sidewalk outside America’s top law school sufficient to indict—let alone condemn—an entire institution and its student body?
Probably not. But it’s a start.
The Problem with Yale
In the event the identity comes to light of the person who leaked to Politico Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, don’t be surprised if it turns out to be a Yale Law graduate. (That’s the rumor, at least.)
Yale Law School has a problem. Judging from recent events, its students appear to care little for the rule of law or the Constitution. They’re postmodern, solipsistic, schooled in nonsense—and, worst of all, at the top of the profession.
Meanwhile, Yale Law School’s administrators are wed to a dreary, corporate, left-wing, woke ideology. They are all-in with just about every imaginable leftist academic fad; to the extent they are principled, they are too Marxist to be fully postmodern.
Note the t-shirt the Yale Law administration is lately peddling to students:
The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Yale Law's administration told students in an email last week that they could “swing by” the office to grab a “Critical Race Theory T-Shirt!” Here's the shirt: pic.twitter.com/rW9fSj14Kt
— Aaron Sibarium (@aaronsibarium) March 21, 2022
Late last year, the law school spent weeks—weeks!—agonizing over an email in which a student who sent out a Constitution Day party invitation referred to his apartment as a “trap-house,” which apparently is slang for a place to purchase and use drugs. (“Chapo Trap House” is the name of a popular socialist podcast.)
Some easily aggrieved student took a screenshot of the email and shared it in an online forum for second-year law students, where the responses were, well . . . about as overwrought as you might expect in our current-year woke wasteland.
Because it wasn’t just a party invitation. It was the wrong party with the wrong host. The email was “very triggering,” in part, because Trent Colbert, though a member of Yale’s Native American Law Students Association (he’s reportedly part Cherokee), is also a member of the right-leaning and widely reviled Federalist Society.
And because Yale Law students can’t wait to hand down judgments regardless of the facts, the condemnations came quickly, often with the most bizarre and uncharitable interpretations imaginable.
“I guess celebrating whiteness wasn’t enough,” the Black Law Students Association president wrote in the forum. “Y’all had to upgrade to cosplay/black face.” By “celebrating whiteness,” she apparently meant celebrating the ratification of the Constitution. She also objected to the party’s association with the Federalist Society, which she said “has historically supported anti-Black rhetoric.” Rhetoric.
Nothing in the email said anything about “cosplay” or “black face.” Objection: assumes facts not in evidence. Overruled: I am the law.
Naturally, the law school’s administration got involved. Why? Nine students filed complaints with the law school’s office of student affairs. The law school’s associate dean and director of diversity called Colbert on the carpet and pressured him to apologize. “The email’s association with FedSoc was very triggering for students who already feel like FedSoc belongs to political affiliations that are oppressive to certain communities,” wrote diversity director Yaseen Eldik. “That of course obviously includes the LGBTQIA community and black communities and immigrant communities.”
In a lawyerly phone conversation with Colbert, Eldik implied but never explicitly stated that he might end up in trouble with the bar if he didn’t say sorry. For an email. About a party. That says something embarrassing not just about Yale but also about the bar.
It was all very stupid, and typical of the sort of fights that engross university campuses with so much passion and intensity. Happily for Colbert, even the administration seemed to realize the whole thing was dumb and let the matter drop. A law school spokeswoman said, “at no time was any disciplinary investigation launched or disciplinary action taken in this matter.”
The Left, ever eager to dismiss every instance of cancel culture—successful or otherwise—found in the “trap-house” brouhaha much ado about nothing, too. If anything, it was just more fuel for the “right-wing rage machine.” Mark Joseph Stern at Slate lamented that the story “allows the right to depict institutions of learning as indoctrination factories that instill students with woke groupthink . . . .”
Well, if the shoe fits.
The “trap-house” email controversy is instructive. A troubling number of Yale Law students—and not just Yalies—reject older American ideas about freedom of speech. Forty percent of Millennials, for example, say the government should be able to limit offensive speech, especially speech offensive to minorities. Their little brothers and sisters, weaned on TikTok and Tumblr, likely aren’t much better. (Mark Bauerlein describes and analyzes the phenomenon ably in The Dumbest Generation Grows Up.)
Speech that offends their sensibilities cannot be tolerated. Social justice demands it be squelched. We’ve gone from Cohen v. California and “fuck the draft” to STFU. Impressive.
A demonstration in March cast a spotlight on just how hostile many Yale law students are to the free and open exchange of ideas they hate. Once again, the Federalist Society was in the crosshairs. Aaron Sibarium of the Washington Free Beacon reported:
More than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties, intimidating attendees and causing so much chaos that police were eventually called to escort panelists out of the building.
The March 10 panel, which was hosted by the Yale Federalist Society, featured Monica Miller of the progressive American Humanist Association (AHA) and Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative nonprofit that promotes religious liberty. Both groups had taken the same side in a 2021 Supreme Court case involving legal remedies for First Amendment violations. The purpose of the panel, a member of the Federalist Society said, was to illustrate that a liberal atheist and a conservative Christian could find common ground on free speech issues.
Professor Kate Stith, who moderated the event, had to remind the disruptors that Yale actually has a free-speech policy that allows for three warnings before they face consequences. “Grow up,” she said, to the jeers of the disruptors.
Yale Law School Dean Heather Gerken said although she found the students’ behavior “unacceptable,” it did not rise to the level of a disciplinary offense because the protestors left the room after Stith’s first warning. Never mind that they continued to shout and stomp their feet in the hallway just outside the lecture hall for everyone in the building to hear.
“Law schools are in crisis,” Stith later told Sibarium, who has been all over the YLS story and the problem with Ivy League law schooling in general. “The truth doesn’t matter much. The game is to signal one’s virtue.”
The turn against the culture of free speech is metastasizing to the point that even some self-described progressives cannot ignore it. “The free-speech problem in our law schools isn’t just about administrators, and they can’t solve the problem by themselves,” writes legal blogger and Yale Law grad David Lat. “The problem goes much deeper and is rooted in the mindset of students—and by this, I don’t mean any particular class of students, since they all eventually graduate, but law students more generally in the year 2022.”
John Zmirak (a likable Yale Law School graduate) wasn’t too far off the mark when he observed, “even discussion of free speech in principle invites violence and chaos.”
Blackballing New Haven
Truth is, the kids aren’t alright. Yale Law School is not “liberal” in any meaningful sense, nor is it especially progressive. Yale is an incubator of postmodern nihilists. For too many Yale hatchlings, law is an expression of the will to power.
Knowing that—and seeing little evidence that Yale’s students have the slightest doubt about the correctness of their politics—a law degree from Yale should be a red flag at this point. Guilty until proven innocent. It isn’t just an incident or two . . . or three . . . or five. It’s a culture and a mentality pervasive within the Ivy League generally and Yale in particular.
In many ways, Yale Law School today is the logical culmination of the success of postmodernism that followed the collapse of Soviet Marxism. The classical liberal idea of free speech is dead, or very close to death, among the generation of Americans coming of age, graduating from elite institutions, and assuming their places in the worlds of law, finance, academia, the news media, and arts and entertainment. This is particularly troubling in an adversary system, where truth and justice are thought to emerge in a zealous clash of opposing arguments. There are at least two sides to every question and both sides need to be heard for justice to be served.
It’s hardly news that our “meritocracy” is a sewer, but these days Yale’s students stink more than most. As the stench wafts beyond the New Haven campus, perhaps a revulsion—and a reaction—is beginning to take form. In the wake of the March disruption, D.C. Circuit Court Judge Laurence Silberman circulated an email to every Article III judge in America urging them to think twice before hiring a Yale Law graduate.
“The latest events at Yale Law School, in which students attempted to shout down speakers participating in a panel discussion on free speech, prompt me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted,” Silberman wrote. “All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified from potential clerkships.”
After all, as the cancel culture crowd never tires of telling us, freedom of speech doesn’t mean freedom from consequences.
There is some evidence to suggest Silberman’s colleagues were having second thoughts about Yalies before he issued his missive. Derek Muller, a professor at the University of Iowa College of Law, closely tracks federal clerkship placements and releases a report every two years. “The truth is,” he notes, “Yale Law has already seen falling clerkship placement numbers in recent years. Incidents like [the March lecture disruption] may harden some judges’ opposition.”
“Yale, which had consistently been second in raw placement for the previous seven years,” Muller wrote in March, “slipped to fourth in 2020, as both Chicago (56) and Virginia (55) placed more federal clerks than Yale (52).
Good. If, as the unknown student scribbler contends, “law is violence,” then it is due in no small part because Yale’s law students do violence to the law. These people don’t presume “to lawyer.” They presume to rule you. Don’t consent to their rule. Be rid of them.
By all means, cancel Yale Law School.
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Ben Boychuk is managing editor of American Greatness. He is a former weekly syndicated columnist with Tribune Media, and a veteran of several publications, including City Journal, Investor’s Business Daily, and the Claremont Review of Books. He lives in California. Author’s note: Special thanks to Jay Whig, who provided invaluable comments and suggestions for this piece.
Photo “Yale Law School Campus” by Anne CC2.0NC-ND