Yale Law School evolv­ing

Seat of in­flu­ence scru­ti­nized as Ka­vanaugh saga con­tin­ues

New Haven Register (Sunday) (New Haven, CT) - - FRONT PAGE - By Mary E. O’Leary

NEW HAVEN — In a book on the his­tory of Yale Law School, one scholar de­tailed the tur­moil start­ing in the late 1960s that set a new di­rec­tion there for decades to come.

Tur­moil at the pres­tigous school has arisen again, this time around the nom­i­na­tion of Judge Brett Ka­vanaugh to the Supreme Court, which is play­ing out pub­licly and in­ter­na­tion­ally.

More than 100 stu­dents and alumni in early July ac­cused the law school ad­min­is­tra­tion of be­ing more con­cerned about its “prox­im­ity to power and pres­tige” than about the judge’s past Ap­pel­late Court rul­ings and what they will mean to the di­rec­tion of the high court.

Dean Heather Gerken, in a state­ment af­ter the nom­i­na­tion, praised Ka­vanaugh’s con­tri­bu­tion to the law school as a teacher and men­tor, which the stu­dents took as an en­dorse­ment. She later clar­i­fied that was not the case, as the ad­min­is­tra­tion must re­main neu­tral, although in­di­vid­ual fac­ulty were free

to re­spond as they saw fit.

Laura Kal­man, a his­tory pro­fes­sor at the Univer­sity of Cal­i­for­nia at Santa Bar­bara, has writ­ten two books on the his­tory of Yale Law School, and when asked in a phone in­ter­view what the lat­est uproar will mean for the school’s di­rec­tion, she said his­to­ri­ans are poor prog­nos­ti­ca­tors of fu­ture events.

Still, Kal­man said it ap­pears to be as piv­otal a mo­ment for the school as when Anita Hill and Clarence Thomas, both Yale Law School grad­u­ates, clashed in 1991 be­fore the Se­nate Ju­di­ciary Com­mit­tee dur­ing its vet­ting of Thomas’ nom­i­na­tion to the high court af­ter she ac­cused him of sex­ual ha­rass­ment.

The pro­fes­sor said it would be hard to imag­ine the cam­pus would take a big­ger hit for to­day’s con­tro­ver­sies than it did in the 1991 hear­ings, when then-Dean Guido Cal­abresi tes­ti­fied to the char­ac­ters of Hill and Thomas.

The re­ac­tion on the cam­pus to the Ka­vanaugh nom­i­na­tion ex­ploded fur­ther on Sept. 16 af­ter Chris­tine Blasey Ford, in a Wash­ing­ton Post story, said Ka­vanaugh had sex­u­ally as­saulted her when they were teenagers, a twist that joined the stu­dents’ ini­tial con­cerns about the judge with the #Me­Too move­ment’s de­mand for jus­tice for vic­tims of sex­ual mis­con­duct.

Some 260 law school stu­dents held a sit-in last week to protest the nom­i­na­tion, while 120 went to Wash­ing­ton, D.C., to make them­selves heard on the judge’s ju­rispru­dence and the lack of an in­de­pen­dent FBI in­ves­ti­ga­tion into the charges, as well as those sub­se­quently made Tues­day by Shel­ton na­tive Deb­o­rah Ramirez, a former Yale Col­lege class­mate of Ka­vanaugh.

Ramirez has ac­cused Ka­vanaugh of ex­pos­ing him­self at a drunken party when they were fresh­men in 1983-84 and caused her to touch his pe­nis, against her will, when he thrust it in her face.

On Wed­nes­day, Julie Swet­nick al­leged Ka­vanaugh was present at a high school party around 1982 where she was the vic­tim of a “gang rape.” She did not iden­tify Ka­vanaugh as one of her at­tack­ers. She said dur­ing a se­ries of par­ties, she saw Ka­vanaugh “con­sis­tently en­gage in ex­ces­sive drink­ing and in­ap­pro­pri­ate con­tact of a sex­ual na­ture with women dur­ing the early 1980s,” ac­cord­ing to CBS Bal­ti­more.

Ka­vanaugh has vig­or­ously de­nied all the charges made against him by the three women.

Fifty Yale Law School fac­ulty mem­bers on Sept. 21 cau­tioned the Se­nate Ju­di­ciary Com­mit­tee not to rush to judg­ment on Ka­vanaugh with­out ask­ing the FBI to in­ves­ti­gate. Gerken made a sim­i­lar re­quest a week later af­ter the Amer­i­can Bar As­so­ci­a­tion.

In the quickly evolv­ing story, Blasey Ford and Ka­vanaugh tes­ti­fied sep­a­rately dur­ing emo­tional hear­ings on Thurs­day. Blasey Ford said she was “100 per­cent” cer­tain she was as­saulted by Ka­vanaugh and Ka­vanaugh force­fully de­nied the al­le­ga­tion.

On Fri­day, min­utes ahead of a sched­uled vote by the Se­nate Ju­di­ciary Com­mit­tee to send Ka­vanaugh’s no­mini­a­tion to the Se­nate floor, Sen. Jeff Flake, R-Ariz., said he could not vote for the judge un­til the FBI had fully in­ves­ti­gated the al­le­ga­tions.

Pres­i­dent Don­ald Trump late Fri­day or­dered the in­ves­ti­ga­tion, stip­u­lat­ing it not last more than a week. The Se­nate Ju­di­ciary Com­mit­tee then voted 11 to 10 to send the con­fir­ma­tion to the Se­nate floor.

“I join the Amer­i­can Bar As­so­ci­a­tion in call­ing for an ad­di­tional in­ves­ti­ga­tion into al­le­ga­tions made against Judge Ka­vanaugh,” Gerken said in a state­ment Fri­day. “Pro­ceed­ing with the con­fir­ma­tion process with­out fur­ther in­ves­ti­ga­tion is not in the best in­ter­est of the Court or our pro­fes­sion.”

Dur­ing the law school protests on the treat­ment of sex ha­rass­ment vic­tims, nu­mer­ous ref­er­ences were made to Anita Hill and Yale’s obli­ga­tion to sup­port a more fair process for the women com­plain­ing about Ka­vanaugh than was avail­able to Hill.

Alex Taubus, who grad­u­ated from Yale Law School in 2015, said the school’s rep­u­ta­tion has been tar­nished, as its in­tegrity is a source of pride.

Kal­man said in her view of the school’s his­tory, its stu­dents have al­ways been the best part of the in­sti­tu­tion.

There were, how­ever, plenty of con­flicts in a clash of cul­tures “be­tween stu­dents, be­tween pro­fes­sors, and be­tween stu­dents and pro­fes­sors” in the late 1960s and early 1970s, Kal­man wrote in the Yale Law Re­view in the sum­mer of 2006.

The New York Times, re­port­ing on the Thomas hear­ing, wrote this in 1991:

“If Yale Law School, a place that hasn’t al­ways deigned to deal with any­thing as pro­saic as life on earth, is all over the still-un­fold­ing Thomas drama, Mr. Cal­abresi is at its epi­cen­ter. He is per­haps the only per­son who can at­test to the ster­ling char­ac­ters of both Judge Thomas and Pro­fes­sor Hill, and has done so.

Cal­abresi told the com­mit­tee: “I like and re­spect them both, and I have al­ways trusted them both,” he said. “Given the com­plex­ity of sex­ual ha­rass­ment, I could con­ceive of a sit­u­a­tion in which Clarence Thomas thought he was do­ing noth­ing abu­sive, and Anita Hill thought that what he did was ter­ri­bly threat­en­ing. Which per­cep­tion is cor­rect is some­thing we all, women and men, will have to de­cide.”

Kal­man said the school con­tin­ues a tra­di­tion of le­gal re­al­ism, which was in place start­ing in the early 20th cen­tury to the present day. Stu­dent ac­tivism, which re­flects and flows from that re­al­ism, has been a big part of the school’s his­tory since the 1960s and, in re­cent years, es­pe­cially since Cal­abresi’s dean­ship.

Kal­man said le­gal re­al­ism, which treats law as a tool of so­cial pol­icy to struc­ture and re­struc­ture so­ci­ety, is in­grained in the school’s DNA.

“All this ac­tiv­ity to­day is baked from its his­tory,” she said and would ap­pear to con­trib­ute to the pop­u­lar top rank­ing of the school it­self.

Power strug­gle

She ad­dressed clerk­ships, which are not a new prob­lem. Young lawyers who get them are of­ten in line for ap­point­ments to the ju­di­ciary and as fu­ture law school pro­fes­sors, Kal­man said.

Kal­man said in the 1990s stu­dents would sing “Girls just want to be clerks,” to the song “Girls Just Want to Have Fun,” when more women sought this pres­ti­gious op­por­tu­nity.

This topic “would seem to flow from the past,” Kal­man said.

Stu­dents were up­set that Deputy Dean Dou­glas Kysar, ac­cord­ing to the Huff­in­g­ton Post, was aware of in­ap­pro­pri­ate be­hav­ior by Cal­i­for­nia Ap­pel­late Judge Alex Kozin­ski be­cause he clerked for him in 1998. Kysar said he did not tell those in charge when he was a clerk, nor did he tell stu­dents now.

Kozin­ski re­signed last year af­ter sev­eral women filed sex­ual ha­rass­ment charges against him. Kysar said, ac­cord­ing to the Huff­in­g­ton Post, he had no idea that Kozin­ski’s be­hav­ior in­cluded sex­ual ha­rass­ment.

On clerk­ships, Taubus, the 2015 grad, said there is a prob­lem with the way lawyers are be­ing trained. He said the med­i­cal school has a sys­tem where they are matched with in­ter­ested hos­pi­tals. He said at the school it is too opaque and gives an ad­van­tage to stu­dents with con­nec­tions.

“There needs to be more of an honor code to reach the up­per ech­e­lons,” Taubus said.

He ob­jected to the ex­pec­ta­tions for clerks to work 12hour days, seven days a week, which is more at­tuned to in­den­tured servi­tude, as they are com­pletely de­pen­dent on the judges for good re­views to ad­vance a ca­reer.

At­tor­ney David Rosen, a Yale Law School 1969 grad, isn’t wor­ried about his alma mater be­ing neg­a­tively af­fected by the fight with some ad­min­is­tra­tors and fac­ulty and with Ka­vanaugh as a nom­i­nee.

“I think of all the peo­ple in the in­sti­tu­tions that are in this caul­dron, the Yale Law School is likely to come out the least burned — singed for sure,” Rosen said.

He said it is an elite in­sti­tu­tion, but it con­tin­ues to bring more stu­dents of mod­est means into the fold.

“I like to think it is mov­ing in the right di­rec­tion,” Rosen said. He said his class nearly 50 years ago had eight women, five blacks, one Asian and one Latino.

A more di­verse stu­dent body “is the big­gest change,” he said.

Cather­ine Aval­one / Hearst Con­necti­cut Me­dia

Yale Univer­sity stu­dents Maryanne Cos­grove, ’21, Anna Blech, ’19, and Dou­glas Shao, ’21, at­tend a rally at the Women’s Ta­ble on cam­pus on Elm Street in New Haven on Wed­nes­day protest­ing the nom­i­na­tion of Judge Brett Ka­vanaugh to the U.S. Supreme Court due to al­le­ga­tions of mis­con­duct.

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