Yale Law School is a microcosm of a failing democracy

The International Institute for Democracy and Electoral Assistance in Stockholm publishes an annual report assessing the health of global democracy. This year, the Institute added another country to its list of declining democracies, adding the United States for the very first time. The assault on voting rights and Trump’s success in cultivating a sizable minority of Americans willing to tie up the vice president led to the report’s findings. At least backward democracies historically recover all the time, don’t they? Law?

If a society is judged by its legal system – which seems like a fair measure for a nation of laws, not of people – it’s hard not to spotlight the top-ranked law school in the country by bemoaning the decline of America. If authoritarians are gaining ground in this country, it’s worth checking out what the institution tasked with producing the Thomas Mores of the last days has been doing over the past decade. Even those gruesome Star Wars prequels were keen to juxtapose the collapse of the Republic with a narrative that the Jedi were a fundamentally shattered institution during this time.

If George Lucas can see it, how about Yale Law School?

It doesn’t require entering the Skull and Bones conspiracies. It doesn’t even rely on Sam Alito and Clarence Thomas turning their degrees into wrecking balls targeting democratic institutions, from the right to vote to organized labor. Yale graduates have put a lot of red in its democratic register, but it is the current climate that makes it such an apt reflection of a declining democracy.

Dean Heather Gerken wrote to the Yale community a few weeks ago to apologize for the school’s handling of the ‘trap house’ controversy, which deserves an apology but not for any reason. which she really apologizes for. This is the controversy in which the Federalist Society sent an email leveraging a number of racial stereotypes and the school tried to get everyone to be nice by giving for free to the organization a fierce way out.

Of course, the FedSoc gang and a coterie of media facilitators cried out the most disgusting murder that Yale would launch such an attack on “free speech.” It is fashionable to take the “contrarian” view that racist party invitations are the most important battleground of our time. Tinkering protested against the Vietnam War, today’s defenders of freedom have “humiliated others.” Same thing!

As another group of Yale Law students correctly answered, “What the hell is this!”

Because it is not a free speech issue and the effort to overhaul it as such is just another example of free speech piracy. Overhaul of the virtue of allowing unpopular speech as demand for privilege unpopular discourse, up to and including a demand to stifle the counter-discourse. And just like hacking, it relies on well-meaning and exploitable actors – in this case lawyers and journalists – to embrace the principle that it is a societal good to swallow this slightly redefined right.

In other words, a group of people willing to stand up for a concept without hesitation is ripe for without critical thinking defend another concept with the same brand image.

No one was punished in this incident, although the fact that it came from a recognized group of students justified more than sanctions against the group. The complaint the FedSoc gang has right now is that after refusing the school’s offer to lend its support with an empty apology, the school branded the email as racist.

But that’s how free speech is supposed to work! You can say whatever you want and anyone can call on you.

Still, the idea that the school would back down and swallow this complaint is not surprising. In 2017, Dean Gerken attempted to argue that free speech requires students to refrain from verbally protesting racists on the basis of a distorted brand of professionalism that compels those with the least power in a exchange to sit quietly and conscientiously absorb everything that came from the desk. . As we pointed out then, this has shifted the sense of freedom to marginalize counter-speech.

Against this backdrop, the defense of racist speakers and the school’s initial effort to quell dissent over FedSoc email by encouraging everyone to take it on the chin makes perfect sense: Anyone Can Say what he wants and never face more than the most discreet and polite criticism.

A staunch defender of liberal democracy and an open society, Karl Popper, wrote on the paradox of tolerance: this tolerance requires the intolerance of intolerance. In 1945, just after some relevant things happened, Popper presented the nightmarish scenario where a society’s tolerance from all points of view becomes an open invitation for the intolerant to flourish and ultimately crush tolerance. herself. Popper said societies should welcome unpopular discourse as long as it can be countered with rational counter-discourse, but warned that intolerance will try to prevent such dialogue over time.

The common complaint is that even grateful that the e-mail contained racist stereotypes amounted to an abusive attack on the freedom which the school must withdraw! When this is accepted as a premise, rational counter-discourse is in trouble. Which means real problems for the country as a whole.

Because another thing the bad Star Wars movies got right is that this is how democracy dies. Not the part about the “thunderous applause”, but the part that falls at the well-meaning request of the most gullible character on the show.

Amid the backlash, Yale Law Dean apologizes for the school’s handling of the “Trap House” email controversy [Law.com]


Head shotJoe Patrice is editor-in-chief at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe is also the Managing Director of RPN Executive Search.



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Nancy I. Romero