For Yale Law School, conflicting narratives

In court, Padilla v. Yoo is a lawsuit about human rights and the Constitution. But in headlines and in the blogosphere, it looks more like a case about Yale.

Jose Padilla, who was sentenced last week to 17 years and four months in prison for terrorism conspiracy charges, filed a lawsuit earlier this month against John Yoo LAW ’92, the former deputy attorney general who authored Bush administration guidelines for interrogation and detention policies — the so-called “torture memos.” The action follows Padilla’s suits filed last February against former Attorney General John Ashcroft ’64 and former Secretary of Defense Donald Rumsfeld.

But rather than viewing the Yoo case in this context, most media attention has fixated on a different narrative: the shared alma mater of Yoo and Padilla’s attorney, Jonathan Freiman LAW ’98, now a visiting lecturer at Yale Law School who works at the University’s Lowenstein International Human Rights Clinic.

As the Yale connection snagged headlines, notably the Wall Street Journal’s editorial titled “Yale and the Terrorist,” many alumni became concerned about Yale’s association with Yoo, while still others were irked by the perception of Yale suing its own alumnus.

“This is really a leftwing bucket shop using Yale’s sponsorship to achieve antiwar policy goals via lawsuit,” concluded the Journal’s Jan. 10 editorial jab . “We trust the dean of Yale Law, Harold Koh, is proud of suing an alumnus on behalf of a terrorist, and that Yale’s other alumni know how their donations are being used.”

But alumni donations are not financing Padilla’s suit, Law School sources confirmed. Freiman’s work for the clinic is supported by outside grants from foundations, and the clinics’ activities — like the content of other law school academic courses — are designed by the instructors, not centrally controlled by the Law School administration.

“I’m affiliated with Yale, but this is my case, brought on behalf of clients who have suffered grave harm,” Freiman wrote in a letter to the editor printed in the Journal. “As others with clinical faculty appointments do, I made the choice to file suit — it was not made by Yale Law School or its dean. Work on the case is supported by foundation funding, not by university funds donated by alumni.”

Freiman, who did not return phone calls seeking comment, found support from David Luban GRD ’74, a professor at the Georgetown University Law Center and contributor to Yale Law School Professor Jack Balkin’s Balkinization blog.

“This isn’t a lawsuit brought by, and reflecting the official policy of, Yale Law School as an entity,” Luban wrote in an e-mail. “People apparently don’t realize that law schools aren’t monoliths, nor that law school clinics control their own caseload without having to run it by the dean.”

Koh said his role as dean is to nurture a marketplace of ideas within the Law School community, not to micromanage the actions or opinions of particular members.

“This is a place where a thousand flowers bloom,” he said in an interview. “It’s not the job of the dean to disavow the actions of our clinics any more than it is his job to disavow the ideas of faculty or students with which he might not agree.”

Students and alumni offered several explanations for the media’s implication of Yale in the controversy, a controversy whose merits have no relation to the University. Some described a publicity strategy among Yoo’s supporters to refocus scrutiny — away from Yoo’s legal opinions and onto Yale Law School. For others, mostly conservatives, that reframing seemed plausible because of Yale’s reputation as a liberal institution. But for a final group, this case is an inevitability: Yale Law School’s penchant for producing future leaders, they said, simply destined some of its prominent alumni for a collision course.

‘Who’s David and who’s Goliath’

The failure to see Yale Law School’s official non-involvement in the suit against Yoo is not the result of mere ignorance, sources familiar with the controversy said.

For Yoo and his sympathizers, hyping the Yale connection recasts the lawsuit as a petty feud between Yoo and his alma mater. In their telling, Yoo, not Padilla, becomes the victim of a political inquisition by Yale Law School, which is known for its liberal bent, especially on the issue of human rights.

“That allows people who are attacking the lawsuit to frame it as an institutional conflict, which changes who’s David and who’s Goliath,” said Emily Bazelon ’93 LAW ’00, who wrote a column for Slate magazine about the Yoo case. “They want it to look like Yale is being a bully, which is simply wrong.”

Whereas The New York Times’ account of the complaint was one of the few news reports to not mention Yale, the Journal’s editorial page and law blog gave Yale top billing.

“The WSJ is featuring the Yale-vs.-Yale angle because they can use it as yet further ‘proof’ that elite law schools are ideologically part of the lunatic left — presumably, so far to the left that the mere decency of showing loyalty to your own alumni drops out of the picture,” Luban wrote in an e-mail. “The fact that Harold Koh is a human rights lawyer and on record against the torture memos no doubt has the WSJ editorial board presuming that the lawsuit is really the result of Harold’s behind-the-scenes manipulations.”

Yoo interned for the Wall Street Journal’s news department before entering law school and has repeatedly contributed to its opinion pages.

The Journal’s opinion pages also led the charge against the admission of former Taliban diplomat Rahmatullah Hashemi to a non-degree program in 2005.

Paul Gigot of the Journal’s editorial board declined to comment, writing in an e-mail, “our editorial will have to speak for itself.” Yoo declined to comment for this article beyond verifying factual information.

David Bernstein LAW ’91, a professor at George Mason University School of Law, said Yale’s clinic taking a case on behalf of a convicted terrorist provokes people who suspect a left-wing conspiracy in academia.

“Usually law schools go out of their way when some prominent alumnus who served in a high-level government position to be especially nice and to honor him,” Bernstein said. “So this is a man-bites-dog story; instead of the Law School honoring him, they’re suing him. That’s a good hook if you’re a blogger — or the Wall Street Journal.”

‘Betrayed’

While conservatives’ suspicions that Yale has an official hand in the suit against Yoo are unproven, their antagonism may make a broader comment about the Law School’s relations with its numerous and notable conservative alumni, current and former students said.

“A lot of people are disconcerted that the Law School would take such a step and sue its own alumnus because it disagrees with political positions he’s taken,” said Christopher Angevine LAW ’08, president of Yale chapter of the Federalist Society, an organization of conservative and libertarian Law School students of which Yoo was also a member. For conservative students, Angevine said, “It prompts the question, ‘Am I next?’ ”

Yoo is not the first conservative alumnus of Yale Law School to clash with his alma mater.

Former Yale Law professor Robert Bork has begrudged Yale since some of its professors testified against his 1987 nomination to the U.S. Supreme Court, and he is currently suing the Yale Club of New York for injuries he allegedly sustained after falling from a dias while speaking at the club in 2006.

U.S. Supreme Court Justice Clarence Thomas LAW ’74, for whom Yoo clerked after graduation, has never made an official campus visit and wrote in his recent autobiography that his Yale Law diploma is worth 15 cents.

And three weeks before Samuel Alito’s LAW ’75 confirmation hearings for his nomination to the Court, a group of Yale Law School faculty and students released a report documenting Alito’s conservative record.

Yale Law is far from unique among top law schools in having a left-leaning faculty and student body, but many of its peers are making attempts to remedy that.

Harvard Law School, for example, has recently made a point of hiring high-profile conservative constitutional scholars, and at the time of Chief Justice John Roberts’ nomination to the Supreme Court, Harvard Law professors told the Harvard Crimson that even though they may disagree with him, they expected him to be a good justice.

Something about Yale in particular has repeatedly drawn conservatives’ ire.

Steven Calabresi ’80 LAW ’83, a law professor at Northwestern and founder of the Federalist Society, said Yale professors have also been more outspoken than their counterparts at peer institutions in opposing Bush administration policy in the war on terror, which places them squarely opposite Yoo.

This ideological tension, Bernstein said, leads some to believe that the law suit is part of a larger political agenda at the Law School.

“It doesn’t seem as separate because the dean, Harold Koh, of course is so vocal about international human rights,” he said. “Not that he interferes, but clearly he has an interest in the clinic and who’s staffing it. If it was something he’d frown upon, it’d be less likely that they would do it.”

Bernstein said that some people, especially conservatives, who take interest in following what happens at Yale Law interpret the Yoo suit, on top of Yale’s opposition to military recruiters on its campus, as yet another sign of Yale becoming an ideologically activist law school.

“There are those who will say that Yale Law School has become more politicized in an ideological way,” Bernstein said.

Stephen Vaden LAW ’08, head of the Yale Law School Republicans, said Padilla v. Yoo smells of a “family feud,” and he said he thinks Yoo’s alma mater has everything to do with it.

“There’s a significant portion of the faculty and students at Yale Law School that just can’t live with the fact that we turn out conservative alumni,” he said. “A number of people at the Law School feel betrayed that any person could through three years of all their indoctrination and do what [Yoo] did. They see this suit as vindicating Yale Law School because they’re ashamed that he went here.”

Discussion among law students has been relatively spare so far because they have either been on break or in exams, Angevine said, but the Federalist Society is currently trying to organize a debate on the issue.

Angevine said while he cannot speak for alumni, he has never felt unwelcome as a student at Yale Law because of his political views.

“As a conservative student at the Law School, I have only good things to say about the administration and how they’ve treated us,” he said. “Yale Law School has kind of a bad name in conservative circles, but I think it’s overstated.”

‘Yale Law will survive its association with John Yoo’

Whatever the real relevance of the Yale connection, its emphasis in news coverage of Padilla v. Yoo has managed to capture the attention of many current and former students — and most are not pleased.

In contrast to students and alumni upset by the appearance of Yale Law suing its own alumnus, others said they are ashamed of Yale’s association with Yoo and the negative publicity he is generating for the Law School.

Many of Yoo’s classmates said they always knew he was conservative, but they were surprised that someone they remember as friendly, personable and bright could go on to write legal justifications for the Bush administration’s policies in the war on terror.

“Based on what I’ve read about what John’s done in government, I can’t think of anything more out of step with what Yale Law stands for,” said one of Yoo’s classmates, who asked to remain anonymous. “Yale Law will survive its association with John Yoo, but it’s not a happy one.”

Others said they found the Yale connection merely “amusing,” in the words of Michael Swartz ’88 LAW ’92, who was in Yoo’s small group in their first year of law school. “I’m sure it happens all the time,” he said of Yale lawyers being on both sides of a suit.

In fact, it has. The last major detainee rights case, Hamdan v. Rumsfeld, pitted Neal Katyal LAW ’95 against other Yalies, including George W. Bush ’68.

David Lundsgaard LAW ’92, who roomed with Yoo during their first year at Yale, said he thinks Yoo’s Yale diploma had no bearing on the Lowenstein clinic’s decision to take Padilla’s case.

“If they think there was wrongdoing then the fact that John is an alumnus of the Law School shouldn’t restrain them,” he said. “Part of taking on politically powerful roles is that you expose yourself to that. You shouldn’t get a pass just because you’ve gone to Yale.”

Some students and alumni said the negative attention generated by the lawsuit will hurt Yale in fundraising. Conservative alumni would cringe at the thought of contributing to a law school that treats its alumni this way, Jared Morris LAW ’09 said, even though the clinics are financed by foundations.

“I think it’s a travesty that alumni of our school can’t rely on their tuition dollars that they’ve spent or donations that they make to not be used to fund a clinic that will drag them into court,” he said.

After reading the Journal’s coverage, Ray Faltinsky LAW ’92 e-mailed Koh, blaming the Law School for the suit against Faltinsky’s former classmate and threatening legal action to recover his donations to the school.

“I was surprised to learn of the lawsuit my classmate John Yoo is facing from Yale Law School,” Faltinsky wrote in the e-mail to Koh. “As a significant donor over the last 15 years, I can tell you that the thought that my donations are either directly or indirectly contributing to this lawsuit against John is hard to swallow. Without further information refuting what I read in the Wall Street Journal and confirmed with John, I can no longer donate to the school and may begin exploring the possibility of recapturing my previous donations.”

The seriousness of such attempts to retract contributions has been underscored recently by a judge’s ruling last fall that Princeton may have to return $880 million to a benefactor’s descendents. In 1995, Yale returned a $20 million donation after a public dispute with the Bass family.

Faltinsky, who did not return phone calls seeking comment, added that he believed other alumni shared his views.

“I can only assume that many others feel the same way,” he wrote. “The use of donations, either directly or indirectly, to harass an honorable public servant with bad publicity, time involved in litigation and legal costs is, in my view, completely unacceptable.”

But the whole affair may not be lose-lose for Yale. Steve Koh LAW ’92, who sat with Yoo on the articles editorial committee of the Yale Law Journal, said he sees Yale’s imprint on both sides of Padilla v. Yoo as encouraging.

“It’s not surprising that graduates of the Law School have achieved levels of prominence that might result in being on both sides of a dispute,” he said. “Overall it reflects well on the leadership of the school.”

Calabresi agreed that such controversy could only swirl around a law school as prestigious as Yale.

“This just proves,” he said, “that Yale produces leaders both on the left — and on the right.”

Comments

  • Hieronymus

    "As a conservative student at the Law School, I have only good things to say about the administration and how they’ve treated us."

    That the quoted student senses the "Us vs. Them" mentality, one that "tolerates" conservative views is, itself, illuminating.

    "In contrast to students and alumni upset by the appearance of Yale Law suing its own alumnus, others said they are ashamed of Yale’s association with Yoo and the negative publicity he is generating for the Law School."

    I am sure that they are: rigid viewpoints and intolerance permeate Yale generally, most especially the Law School.

    The WSJ really gets it right:
    "[YLS] is really a leftwing bucket shop using Yale’s sponsorship to achieve antiwar policy goals via lawsuit."

    While I agree that Yoo's alma mater is largely irrelevant (I am sure that YLS would have just as gleefully sued a Harvard man, or even a graduate of NYU), I find the other criticisms spot on.

  • Hieronymus

    I should add that THIS alumnus gets it absolutely right:

    "…I can’t think of anything more out of step with what Yale Law stands for."

    Painfully accurate, sadly correct.

  • George Lyon

    One can only hope that the plaintiff and his counsel will be subject to Rule 11 sanctions for this obviously frivolous lawsuit.

  • Seneca

    Trying to escape this association while Yale provides a home for the Taliban's spokesman, snubs $20 Million from the Basses, outlaws ROTC, and produces Hillary Clinton, is a bridge too far. I imagine all of you high fiving each other at the dean's office while piously proclaiming your even temperament at the New Haven borders.

  • Aaron Walker YLS '02

    This case is a frontal assault on the legal profession itself, and on the ability of a President to recieve frank advice (what is often referred to as executive privilege).

    This is not about liberal v. conservative. We should all be alarmed by this assault of our rights, and our government's ability to function.

    I am deeply disappointed in my alma mater that they allow this nonsense to go on.

    If Padilla's rights were violated, he can seek to enforce his rights by an ordinary civil rights suit against the government, not against individual attorneys.

  • anon

    When Dean Koh says "let a hundred flowers bloom," I agree. However, if I recall correctly, when law schools participated in the suit against the Solomon Act, it was often expressed that the school itself must be free to impose its official view on important social issues such as "don't ask, don't tell." (I favor full civil rights for gays and lesbians.)

    Which is it? Does the university have a duty to impose its centralized views, or does a university have a duty to let different view points flourish? One thing we can agree on: it can't be Dean Koh's position that Yale should toggle between a "unitary administrative view" and "let viewpoint diversity flourish" on an issue by issue basis, depending on the political inclinations of the top adminintrators.

    Dean Koh would do well to clarify his stance and adopt a consistent approach.

  • Hieronymus

    Seneca:

    You have no idea what a relief it is to find that I am not alone (to include remembrance of the Bass debacle).

    Thank you, sincerely.

  • ScottS

    Yoo is the epitome of an intellectual fraud. He promotes a radical view of executive power based on a preposterous reading of the historical record for which his academic credentials provide an artificial cover, and as such, undermines the values of honest inquiry that any academic institution has good reason to hope from its associates.

    Had the Yoo memos been written by a graduate from a 5th tier law school (like Liberty University, ahem) they would be that much less credible than they already are. As it stands, they provide cover for unconstitutional and illegal acts, giving Bush and his cronies plausible deniability for having betrayed their oath to defend the Constitution. He's an embarrassment and a disgrace. I would hope Yalies would want to undermine any sense that the integrity of one's ideas doesn't matter if you have a degree from a famous institution.

    About the lawsuit itself, it strikes me as a convenient proxy for challenging Yoo's absurd and dangerous doctrines, and that's not the proper vehicle. But neither is using this case as a proxy for fighting some war against liberal orthodoxy in the academy, as infuriating as that orthodoxy might be. If the choice is between knee-jerk liberalism and radical authoritarianism dressed up with con-law-by-credential, I'll take the lesser of those 2 evils and hope Yale does the same (in a general sense) moving forward.

  • H. Blix

    Dean Koh's quip of "let a thousand flowers bloom" is ironically telling of his philosophy. Someone in his position is surely aware of the maxim's connection with that Communist mass murderer Chairman Mao.

    To whit:

    "Let a thousand flowers bloom is a common misquotation of Chairman Mao Zedong's 'Let a hundred flowers bloom; let a hundred schools of thought contend'. This slogan was used during the period of approximately six weeks in the summer of 1957 when the Chinese intelligentsia were invited to criticize the political system then obtaining in Communist China.

    It is sometimes suggested that the initiative was a deliberate attempt to flush out dissidents by encouraging them to show themselves as critical of the regime. Whether or not it was a deliberate trap isn't clear but it is the case that many of those who put forward views that were unwelcome to Mao were executed."

  • Aaron Walker '02

    I'll add something to my previous comments, and building off of "anon's" sharp comments on the subject ("which is it?")

    The solomon act litigation also followed a pattern of putting serious liberal goals in danger for a short-term political gain. As the Supreme Court noted in oral arguments about the Solomon Amendment, there is no way to find in favor of the law schools without shredding Title IX in the process. Likewise, in trying to whack the Bush administration, this clinic is seeking to destroy the ability of an attorney to freely advise his or her clients. Today this is done to harm the Bush administration, but tomorrow it will be used in a context you won't like. Likewise, hampering the ability of the executive branch to function will stop "Chimpy McHitlerburton" today from forcing Khalid Sheik Mohammed to talk. But tomorrow the same precedent will stop Obama's or Hillary's justice department from advancing gay rights.

    Some are in the habit of thinking that effective government is the enemy of liberty. It can be, of course, but it is also necessary for liberty. The example of Salmon Rushdie is apt. Any delusions that freedom of speech needs only for the government to get out of the way goes out the window when you look at his case. But for the constant exertion of the British Government, Rushie would be as dead as Theo Van Gogh (google him if you don't know who I am talking about). And do I have to mention how islamofascist violence has not only silenced Van Gogh, but also terrified Comedy Central to the point that they refused to show a cartoon of Mohammed, in an episode confronting and denoucing people's fear of depicting Mohammed in cartoon form. The sly authors of that episode followed the depiction of Mohammed with a depiction of Jesus and Bush that would be offensive, to anyone who merely desired respect for those figures, their not-so-subtle way of pointing up the double-standard created by fear.

    Rendering our government ineffective grants us the freedom we can only obtain for ourselves by violence. That is why the Declaration of Independance makes it clear that a government that fails to protect our sacred right to life, liberty and the pursuit of happiness is as illigitimate as one that acvtively violates it.

    Again, shame on Yale Law School for allowing this nonsense to go on.