In the Press
Tuesday, June 19, 2018Wrongfully Convicted The New York Review of Books
Tuesday, June 19, 2018An Obamacare Case So Wrong It Has Provoked a Bipartisan Outcry—A Commentary by Jonathan H. Adler and Abbe R. Gluck ’00 The New York Times
Tuesday, June 19, 2018In a First, Yale and Stanford Law Journals Team Up for #MeToo Project Law.com
Thursday, June 14, 2018The Mask It Wears London Review of Books
Thursday, September 1, 2005
Dean Koh's Welcome Address to New Students
Dean’s Welcoming Speech
Harold Hongju Koh
Yale Law School
September 1, 2005
Welcome to Yale Law School!
I am Harold Koh, and I am the person who says “Welcome to Yale Law School!”
Let me start with the immortal words of Admiral James Stockdale, who ran for Vice President with H. Ross Perot in 1988. He asked at the Vice Presidential debate, “Who am I and what am I doing here? “In this digital era, a video is worth a million words. So let me show you this introductory video, which was prepared for our Law Revue show only last spring.
OK, so let’s get it started! Well, a few of the things in that video are true. I am the Dean here, having taught here for more than 20 years and having lived in New Haven for more than 45. Yes, I do want to welcome you to this Global Conversation. And yes, I have rooted for the World Champion, American league-leading Boston Red Sox for nearly half a century. The rest of that video, tape and pictures, were cleverly spliced together by our very talented second year student Murad Hussain. Murad, are you here? If so, please stand up and take a bow. Let me confess that in fact I can’t do any of those hip hop moves, except for that one-handed breakdance handstand, which I have been practicing all summer--in my dreams.
So that’s who I am. Please call me Harold. I am serious about that. “Dean Koh” sounds way too formal for a hip hop wannabe. As you will learn, there are a quite a few deans here at this law school, but there are only two Harolds: myself and a second year law student, Harold Martin of Winston-Salem, North Carolina. So if you want, you can call him Dean Martin, and you can call me Harold Dean, or to make it simpler, just call me Harold.
So that is who I am. Who are you? As an historical matter, you are at least the 194th group of law students to receive their legal education here at Yale. Formal legal education here at Yale began here around 1814. That was at least three years before Chief Justice Isaac Parker of the Supreme Court of Massachusetts founded a law school somewhat north of here at Harvard in 1817, and 32 years before a law school was founded at Princeton in 1846, which closed 2 only six years later. More than 200 years ago, around 1800, legal education came to New Haven when a Yale college graduate named Seth Staples began taking on apprentices here in his New Haven office. In time, he took on as partners in his combined law office and law school, two former students, Samuel Hitchcock and David Daggett, and the three of them – Staples, Hitchcock and Daggett, all of whose portraits now hang in Room 127--taught in the New Haven law school that eventually became the Yale Law School.
So if you are wondering how we came by the seal of the Yale Law School that you see all around here, our seal is a shield with three fields: a field of Staples on the left, in honor of Seth Staples; a greyhound on the right in honor of David Daggett (whose original family name was Doget); and an alligator on top—that’s not the Lacoste crocodile, it’s an alligator-- which Samuel Hitchcock and his family took as their symbol after the family moved to the Bahamas.
So who is in your class, nearly the 200th class ever to study here? I understand that there has been some concern among you about the size of this class, but in fact there are only a few more than there were last year. At last count there were 200 of you in the entering JD class, 29 graduate students, 7 transfer students, and several visiting scholars. There are a few more JDs this year; somewhat fewer transfer students, but the overall numbers are about the same. Quite simply, you are the finest group of entering law students assembled anywhere on this planet this year. One school in this world has to have the best collection of students and by acclamation we are it. You are the best, not just because you are able, but because you are humane and interesting.
Just to give some examples: Members of your class worked for Teach for America, for the Peace Corps in West Africa, and for migrant farmworkers. One of you was a missionary to the Dominican Republic, another worked for the Coalition Provisional Authority in Iraq, and yet another worked for the Center for Disease Control in Uganda. The group sitting here includes a professional dancer, an Olympic athlete, a music scout for two major record labels, a gospel singer, two doctors, three student body presidents, a biochemist, a nuclear engineer, and a plasma astrophysicist. Two of you climbed Mt. Kilimanjaro, then got engaged to each other; another hiked the Appalachian Trail. One of you won the world championship in Odyssey of the Mind in 1997, and another of you won Teen Jeopardy. One of you even trained octopuses yes, octopuses, or if you prefer, octopi—those eight-armed, suction-cupped, invertebrate cephalopods--as part of a research project to find a cure for Alzheimer's disease.
Now after hearing this list, I can hear you asking yourself. “So what on earth am I doing here?”
Well if it makes you feel better, let me assure you that you are not alone. The truth is: I know just how you feel. Like you, until now, I have been lucky in my career. Like you, I have been to places I’ve never dreamed I could go. And like you, I have sometimes wondered whether I got to where I am at Yale Law School because somebody well-meaning made the wrong decision.
But what I have learned over time is that there is no such thing as a wrong decision. There is the decision you make, then what you do to make it the right decision. On the day I was invited to clerk for the Supreme Court, I asked my late father: “Do I deserve this?” He answered, “Of course not. No one deserves to clerk for the Supreme Court. But if you give it your best, by the time you are done, you will have deserved it.”
So that is what I say to you about Yale Law School: To be at Yale Law School is a great privilege, a great luxury. None of us really deserves to be here. But if we all do what we have to do, if we make this place our own, if we force it to live up to its own highest aspirations, then we will all belong here.
So that is my first message: today marks the start of our journey together. And to prove that I really do intend to climb this mountain with you, let me encourage all of you to mark your calendars for 10 A.M. a week from this Saturday, Sept. 10 (raindate is Sunday Sept.11), when we will all gather at Sleeping Giant state park in Hamden to hike to the top of Sleeping Giant mountain (it ain’t Kilmanjaro; it is actually more of a foothill, but here in Connecticut we call it a mountain). At the top, we will take pictures, survey the landscape, then hike back down for lunch to celebrate the start of our time together. And just before you graduate in May of 2008, we will all climb the hill together again, so the two hikes can form bookends to your time here.
So in your very first week here, you have a unique opportunity: you can tell the Dean to take a hike, and then go with him. Look around this room at your classmates, and consider this fact: almost 4000 people applied for the 200 places that all of you now occupy. For each and every one of you who is sitting here, there are nearly 20 others who wished they could be here. So look to your left, look to your right. You see what Yale Law School is, and must always be: a community of remarkable individuals, committed to excellence and humanity in everything they do. From century to century, from graduating class to graduating class, from Dean to Dean, this School has remained community of commitment to the values we share. You will hear that phrase from me often in your time here:
A community of commitment. A community of commitment.
There are many committed individuals who belong to no communities. There are many communities that share no joint commitments. But what makes the Yale Law School the most special law school in the world is that it is a unique community of commitment: commitment to the highest excellence in our work as lawyers and scholars, commitment to the greatest humanity in our dealings with others, and commitment to the deepest devotion to careers not of selfishness, but of service. And as you look to your left, look to your right, please remember one more thing: this is a place where we are committed to each other. This is a school that believes that you learn best through dialogue with others. In the end, the people who will get you through law school; the people who will teach you the most both about how to be a good lawyer and about how to be a good person are the classmates you are meeting for the first time this week. Your classmates will stay with you throughout your lives. That point was driven home for me two weeks ago, when our great former Dean, Abe Goldstein, suddenly passed away. Abe was an influential scholar of criminal law and procedure. At his funeral, two friends spoke: two friends who had heard that he had died and had dropped everything to be here. They were fellow members of his class, the Yale Law School class of 1949. In their eulogies, they reminisced about how they had all met on the first day of law school and been friends ever since. They had become his best friends for life, until they were the ones chosen to speak for him as he left this earth. They and scores of others of Abe Goldstein’s friends will pay tribute to him again at a memorial service to be held here at the Law School at 2:30 P.M. on Sunday, November 6, which I hope many of you will attend. At that service, you will see again the special community of which you are now also a part: the community of commitment that is the Yale Law School.
So if you are wondering: how am I going to make my way at Yale Law School, the answer is simple: Trust your classmates. Trust your classmates. Right now they are your classmates; in time, they will become your soulmates. Think of them as your brothers and sisters-in-law. You are all in this together, and the time to start supporting one another is right now. Now all of that may sound fine, except for one thing: when it comes to Law School, your classmates are all novices too. None of them can answer the questions that are clouding your mind: questions like, how do I pay for my legal education? How do I get off to a good start in law school? Well those types of questions are easy. Finding your way is what orientation is for, a week designed to help you figure out where things are, and who the key people are to help you solve your transition problems. In addition to having the best students and faculty in the world, we have the most humane and dedicated administrative staff in the world. And this afternoon at 2 pm, you will hear from Deputy Dean Yoshino and the real Deans of Yale Law School, the Administrative Deans who make this place run, about how to navigate this place. Since you will have that discussion later today, let me spend my time discussing a deeper, bigger question: not how do I study law? But how do I think about studying law? It’s what we like to call here: the meta question. As the late great Professor Leon Lipson once said: at Yale we believe that anything you can do, I can do meta. How exactly do I think about this brave new world that you are entering together? This world of Law and Law Talk?
Well first, the good news. As my predecessor as Dean, Guido Calabresi, famously told the entering class each year, “My friends, you are off the treadmill now.” After years of carefully triangulating your course to get to this place, you’ve made it! You don’t have to do anything here just to get ahead. Here at Yale Law School, we have no class rank. All of you can succeed here, and all of you should succeed here. There are all too many lawyers in this world who remember the day they started law school as they day they joined the retrace. But never forget the words of Yale’s chaplain, William Sloane Coffin, who said “even if you win the ratrace, you are still a rat.” So I ask you to think about your law school career differently. I ask you to think about it not as a competition, but as an adventure. Yale Law School is an adventure that should have at least three elements:
First, Trying New Things
Second, Combining Theory with Practice
And Third, Deciding what you stand for.
Let me say a word about each.
First, trying new things. Experimentation. This is a law school that offers unique intellectual freedom. We have very few rules. We have a minimal required curriculum. So make the most of your freedom. Spend your time doing not what you know you can do, but trying out things you’ve never tried.
So if you are a good writer, try public speaking. If you are an accomplished debater, join a law journal. If you are a poet, study some law and economics. And if you are a mathematician by training, take a course in law and literature. By entering law school, you are not ending your education in the liberal arts, you are extending it. The same goes for your summers. If you have lived your whole life in the States, work for a human rights group in Africa. If you always wanted to be a criminal defense lawyer, try working in a prosecutor’s office. And if you are convinced you want to be a corporate lawyer, spend one summer doing legal aid. Exercise all of your intellectual muscles, not just one. As I said yesterday, we intend our approach to legal education to be interdisciplinary, interprofessional, and international. What does that mean? By an interdisciplinary approach, we mean to expose you to how the intellectual discipline of law connects with other academic disciplines, disciplines you may have studied before you got here: philosophy, history, literature, political science, sociology, anthropology, and economics, the subject of Professor Rick Brooks’ introductory lecture on law and economics yesterday. Remember that we are not the only discipline in this university.
Nor are we the only professional school. By interprofessional, we mean that you should also think hard about how the profession of law relates to other professions: like law and business, law and public health, law and journalism, and law and the environment. In each of these areas, we are developing joint programs and joint degree programs with other professional schools here at Yale. And not coincidentally, graduates of Yale Law School are leaders in each of these other professional fields as well.
As Dean, one remarkable quality that I have consistently found in Yale Law graduates is a willingness to take chances. This point emerged vividly from a speaker series we inaugurated last year, and which we will continue this year: the Dean’s Program on the Profession. In this speaker series, Yale Law School graduates who have made a mark in professions outside the law describe how they moved from law into those other profession. In this series last year, we heard from Yale Law graduates who have become leaders of the entertainment industry, the health care industry, and venture capital. What their careers tell you is that the fact that you are now studying law does not mean that a lawyer is all you will ever be. But to explore your full potential, you have to take risks. And if you, the most privileged law students in the world, don’t have the courage to take risks, who else will? So we will reflect upon this risk-taking quality at this Fall’s Alumni Weekend, November 4-6, 2005, which will address the topic of "Entrepreneurship and the Law.” The message of that weekend is that Yale Law students are entrepreneurs, from the word “entreprendre” which means to start a voyage. They don’t just follow the well-trodden path, they break new ones. At Alumni Weekend, we will hear from alumni who have created new enterprises for the practice of private and public interest law, innovative businesses, and pathbreaking social entrepreneurship. By so doing, we will better understand how and why Yale Law graduates choose to take risks.
I mentioned yesterday the value of viewing the law through different lenses. You have heard the first two lectures in our Introductions series, from Professors Eskridge, who urged you to view the law through the lens of our procedural system, and Professor Brooks, who urged you to try on the lens of law and economics. There are several other introductory lectures to come: an introduction to the History of Yale Law School by Professor John Langbein, and a lecture by Tanina Rostain of New York Law School, entitled an Introduction to What Lawyers Care about, and several other introductory lectures I will mention later. Please attend these lectures. They are designed to make you look at your first term coursework in a different way. I think you will find them both fascinating and useful. They will help you think more about the relationship between the world of action and the world of ideas.
That leads me to my second suggestion, in all you do here: Combine Theory with Practice. When you come to my office, as I hope all of you do, you will see in Chinese characters on my wall, one of my favorite sayings: "Theory without practice is as lifeless as practice without theory is thoughtless." "Theory without practice is as lifeless as practice without theory is thoughtless." Yale Law School is and must always remain the world’s premier center of legal theory. We are a place that believes that no single intellectual discipline has a monopoly on wisdom: that is what it means to be an interdisciplinary law school. How do we get nations to obey the law? The answer to that question lies not just in the law itself, but in such disciplines as psychology, economics, philosophy, sociology, political science, anthropology.
If you want to understand the relationship between law and justice, you must look not just to the Uniform Commercial Code and the Federal Rules of Civil Procedure but to the humanities: great plays like Shakespeare’s Henry V or The Merchant of Venice, novels like Billy Budd, works of art like Picasso’s Guernica. If you don’t know those disciplines, you should use your time here to introduce yourselves to them. Spend your time not just in the Law Library, but at Yale Repertory Theater, the Art Gallery, the Whitney Humanities Center, the Center for International and Area Studies.
What I am saying is that at bottom, the study of law is the search for ideas. An old professor of mine liked to say “Ideas are not butterflies. They are butterfly nets.” Ideas help you to capture insights, organize experience, impose intellectual order on natural disorder. And that is why you choose to attend a great law school in a great university. Once you begin the practice of law, you will soon find that you have precious little time to read, to reflect, to get new ideas. Remember: Law firms have no English Departments. Legal Aid Clinics don’t teach you economics and philosophy. If you want to understand more deeply what is right, not just what is right for your client, that is the truth, and not just the argument that works, you need to study ideas. You need to study theory. Your legal education needs to be both interprofessional and interdisciplinary. But for every yin there is a yang. Theory without practice is as lifeless, as practice without theory is thoughtless. It is not enough to think about using theory to change the world; you actually need to be skilled in the practice of law to change the world. When the judge asks you why your client should win, the answer cannot be, Because John Rawls said so.”
Great lawyers are made, not born. You need to explore the superb clinical program here—and I encourage everyone of you to take a clinical class while you are here. You need to use internships, externships, and summer practice to better understand how you can use your legal skills to change the real world. That brings me of course to the subject of New Haven, your new home away from home. As you will find, it has its subtle pleasures. A poll in the Anchorage Daily Times reported that New Haven has two of the top ten pizza restaurants in America. It is the home of two Tony-award winning theaters. Some of the best music in the country. And it has a remarkable legal history, which you can hear about Friday afternoon at 2:30 P.M. in a lecture entitled An “Introduction to New Haven: Some Unsung Virtues,” by Professor Bob Ellickson, one of our leading property and land use experts. But most relevant for our purposes, New Haven is a model laboratory for the practice of law. Over the years, Yale law students have helped build day care centers for unwed mothers, created nonprofit corporations to provide shelter for the homeless, founded a leading Charter School, helped create community banks, done the legal work to open the Shaw’s Grocery Store on Whalley Ave. Two Yale Law School contemporaries both worked in the clinical program here and each said it was the best experience they had at Yale Law School. Their names are Bill Clinton and Clarence Thomas.
If they can do it, and get something out of it, then so can you. And we do not limit our clinical work to the confines of New Haven. Over the years, our human rights clinic has promoted human rights around the world. It has represented Haitian and Cuban refugees at the Supreme Court, exposed abuses in East Timor, sent students to Bosnia and Kosovo and Sierra Leone and Cambodia, supported international prosecutors in the Hague, and helped think about the structure of constitutional democracy in Iraq. On September 30, we will have another Introductions Session called Introduction to Human Rights through Clinical Work. The session will focus on a new book by Brandt Goldstein of the class of 1992 that is based on a true story. His book is called Storming the Court: How a Band of Yale Law Students Sued the President and Won. The case was the Haitian refugee litigation, which involved the rights of Haitians detained on the high seas and on Guantanamo, a place that has since been much in the news. Brandt Goldstein’s book about that case concerns the real-life stories of the members of the Yale Law School classes of 1992, 1993, and 1994 who participated in it. His book is now scheduled to be a major motion picture from Warner Brothers. On September 30, some of the Yale Law Students who play the biggest role in the book – now legal aid lawyers, law professors and public defenders--will have a reunion here with the judge who decided their case.
So theirs is a story about how you don’t have to wait to get your law degree to start promoting human rights with your clinical legal education. Theirs is a story about how even as a Yale law student, you can start doing justice. You can think locally, and act globally. That brings me, of course, to the issue of our age: globalization. As I said, your legal education here should be not just interdisciplinary, not just interprofessional, but international. In your first semester, you will study the law of procedure, the law of torts, the law of contracts, and constitutional law. Or another way to put them: the law of dispute resolution, the law of duties among strangers; the law of duties among those who have met and agreed; and the public rights and duties of citizens and governments. Those are the same subjects that I studied as a first year student nearly 30 years ago.
During the time most of you came to adulthood, in the years after the fall of the Berlin Wall, we were all caught up in post-Cold War euphoria of the possibilities of globalization. In those optimistic days, we marveled at the possibilities presented by truly global travel, finance, communication, and commerce. We entered a world of CNN, cell phones, the internet, global banking, and instant messaging. But on September 11, we passed almost literally out of the light and into the shadows of the age of globalization.
Looking back, we now see that the collapse of two structures--the Berlin Wall in 1989 and the collapse of the Twin Towers in 2001 -- marked the beginning and end of unbridled optimism about globalization. September 11 brutally reminded us that the same global technologies that could be used to promote global markets, global connections, global governance and global rights terrorists could be used by terrorists to kill innocent civilians, plan attacks, move money and spread anthrax.
And in the wake of September 11: people starting asking what I call the “Tina Turner question:” What’s law got to do with it? What’s law but a sweet old fashioned notion? Over the course of my own career, as an academic, as a lawyer, and as a policy maker, that is the question I have wrestled with: what’s law got to do with globalization? The short answer is that law has got everything to do with it. These are issues whose time has come. In the last two terms at the US. Supreme Court, there were no fewer than 19 cases that involved globalization. As you pursue your studies here, I hope you will join me in thinking about three aspects of law and globalization: the law as globalization, the law in globalization, and the law of globalization. By law as globalization, I mean, think of the spread of law worldwide as itself a feature of the phenomenon of globalization, just like the spread of global culture, or global communications. By law in globalization, I mean, think about the role that law has played or can play in promoting the positive ace of globalization. And by the law of globalization, I mean: think about how increasingly, global law has its own distinct face. Think about how the lines between international and domestic are blurring in a global era. Answer this: is the metric system a domestic or international concept? What about dot.com? The answer, of course, is that both ideas are both domestic and international; they are recognized on an international level, and they are also recognized in every country in the world. So what about the ideas of “privacy,” or “torture and cruel inhuman or degrading treatment”, or letters of credit? These are legal concepts that are at the same time both domestic and international; they are recognized on an international level, but they are also recognized in every country in the world. They are what we call transnational law, and we have a course in the spring called Introduction to Transnational Law, which is specifically designed to explore this concept.
Obviously thinking about the relationship between law and globalization could take a lifetime, but I will ask you to pay special attention our final Introductory Lecture of this term. On October 14, Friday, Ben Heineman, a Yale Law School graduate who went on to become Vice President and General Counsel of General Electric, one of the world’s most global corporations, will lecture on Introduction to the Global Revolution. And please also set aside September 21 when a panel of the world’s leading constitutional court judges –from Israel, Germany, Canada and the United States --will participate in a session on comparative constitutional law, to discuss how the world’s leading judges deal with such common issues as the death penalty, the war on terror, and same sex marriage. These discussions will ask you not only to think about these issues, but also to decide where you stand on these issues. That brings me to my third and final suggestion about what you should do here: Decide what you stand for.
For many of you, the principle of decision so far has been easy: Keep your options open. In fact, I am sure that many of you came to Law School precisely to keep your options open. In fact, if there is an epitaph for your generation, it will certainly be: “They died with their options open.” When I was graduating from college, and heading off to England on a scholarship, a family friend came up to me at graduation and congratulated me on my accomplishments. My older sister, who was standing next to me, waited politely until the friend left, and then she asked, “What accomplishments? You have no accomplishments. All you have done is go to school!” She said, “There are many people who have no schooling but have made genuine accomplishments; and there are many people who have world-class schooling but no accomplishments. And the difference between them is that those who have really accomplished something have decided: what do I stand for?”
The philosopher John Ruskin once said: “The highest reward for a person’s toil is not what they get for it, but what they become by it.” In the same way, the highest reward for your toil, as a law student, will be what kind of person, and what kind of professional you become by it. And that means asking yourself: What do I stand for? What would you give your life for?
For the next three years and beyond, you should ask yourself that question every day, because as William Sloane Coffin once said, “If you stand for nothing, you’ll fall for anything.” Today, right now, is a good time to start asking yourself: What exactly do I stand for? Why did I come to law school? What kind of professional do I want to be? I know you said something about this in your 175 word essay that helped you get in here. But now is the time to start asking that question for real. During your law school career I hope you stop asking, “What satisfies them?” and start asking, “What satisfies me?” I hope you will ask “What idea, what case, what cause, what client really touches my heart?” And when that moment comes, please seize that moment, take that chance, Don’t play it safe. For on that day, you will decide not only what you won’t
stand for, but what you do stand for. What I am saying is that it is not enough for you to learn legal skills. It is just as important that you ask: who are my skills for?
On Friday morning at 10:30 A.M. you will hear an introductory lecture entitled an “Introduction to Client-Centered Practice,” by Professor Brett Dignam in the Auditorium. She will ask what it means to run a law practice that is centered on the clients, as opposed to the issues, or the money, or the lawyers. What you will hear is that here at Yale law school, you will develop skills that will give you power to throw people in prison, to save and destroy people’s lives, and to make arguments that can save millions of dollars. But as you all know, with great power comes great responsibility. Remember that each of these tools has its time and place. Use the awesome power of cross-examination to break down a hostile witness, but try to turn it off when you are talking to your roommate. Use your negotiating skills to win your clients lawful relief, but not to shield them from their moral responsibilities. There is an old Korean saying: “Never let your skill exceed your virtue.” In the next few years, your skill will grow quickly. What you need to make sure is that your virtue grows faster. That brings me to my final suggestion. As you think about what you stand for, think about how you plan to serve the greater good. How will you serve the public interest as you see it? What kind of public service will you give?
Yale Law School is a school that has uniquely served the public interest and that has created lawyers who have uniquely shaped the public interest. As you go through these next three years, I ask you to ask yourselves: how will I devote my life’s energies toward serving some conception of the public interest? Who do you intend to serve? And ho needs you the most? Do you feel privileged in your educational fortunes? And if you do, don’t you have some duty—even while you are in law school-- to serve the least privileged? So that in a nutshell is my message today. How should you think about Yale Law School?
• As an adventure, not a competition.
• As a community of commitment to world class scholarship, professional excellence, and service to the greater good.
• As a place where people are committed to each other.
• As a place where you will try new things, find new ideas, combine theory and practice, and think hard about what you stand for
• And think of it as a place where you will study law from an interdisciplinary, interprofessional and international perspective.
Think of it, that is, as a place where you will wrestle daily with questions about globalization, the profession, public service. Because you are entering the world of law and law talk. If you want to be a duck, you will have to learn to quack like a duck. Those of you who love music know that great music is not just notes on a page. In the same way, the law is not just opinions in a book: it is a living, moving performance, full of drama, pathos, and passion. In law, as in life, there are heroes and there are villains. There are prophets and there are fools. Which will you be? I ask you to be a leader and not just a follower, an architect and not a scrivener. I ask you to understand the role of law in a globalizing world, to pursue law as a noble profession, and to commit yourself to careers not of selfishness, but of service.
So what we ask from you going forward is simple. Give us your best—because that is both the most you can give, and the least you can give. And what can you expect of your new Dean? I can promise you that I will try to support this community of commitment in as many ways as I can. I promise that I will be scrupulously neutral on matters of politics and personal preference. But let me warn you that I will not be neutral when it comes to questions of law and justice. For example, I do not believe that this is a school that should be neutral about questions of torture. I do not think this is a school that should be neutral on questions of intolerance. And I do not think this a school that should be neutral on questions of discrimination.
That brings me to a case about which you will surely hear more in the months ahead. FAIR v. Rumsfeld is a case that the U.S. Supreme Court will hear on December 6, which was brought by a consortium of law schools and law faculties to challenge the Solomon Amendment. If you have not heard of the Solomon Amendment, it is a federal law that states that any federally funded school that refuses to allow military recruiters access to its students on campus is vulnerable to losing its government funding. But our school has a long-standing nondiscrimination policy, adopted in 1978, which states that: Yale Law School is committed to a policy against discrimination based
upon any criteria, including sexual orientation. All employers using the school's placement services are required to abide by this policy. And so, for nearly thirty years, our School has applied this nondiscrimination policy to give access, but not active assistance, to employers who insist upon discriminating among our students in their hiring practices based on sexual orientation. A few years ago, however, the federal government reinterpreted this law and informed Yale Law School that if the School did not give equal access to military recruiters, it would cut off more than $300 million of Yale’s federal funds.
Now let me make this clear. Employers who are unwilling or unable to abide by our nondiscrimination policy are not barred from campus or from recruiting our students. Such employers are entirely free to arrange independently to meet with interested students at the Law School or elsewhere. But such an employer may not avail itself of the services provided by our career development office (CDO), for the simple reason that we are not a law school that aids and abets discrimination. Last year, separate groups of Yale Law School faculty and students filed suits in the federal district court in Bridgeport, challenging the legality of the Defense Department’s interpretation of the Solomon Amendment, and won a permanent injunction against it. (Information on the status of this and other pending court cases can be found on our website). Now that same issue is before the United States Supreme Court.
These law suits will stimulate intense debate both inside and outside our community. We are an equal opportunity employer and we fully support any employer who offers equal opportunity. We do not, nor will we ever, exclude any speaker from speaking or any point of view from being fully aired within the School. But at the same time, we also believe that the U.S. Constitution bars the government from requiring us, as a condition of federal funding, to promote a message of employment discrimination. If standing up for this principle costs us support, so be it. Yale’s President Kingman Brewster once said, “I did not become President of Yale to preside over a finishing school on Long Island Sound.”
Well, let me tell you, I did not become Dean of Yale Law School to preside over just another professional school. There is only one Yale Law School and it is us. We are not just a law school of professional excellence, we are an intellectual community of high moral purpose. We have never let outside employers seek our school’s assistance so they can hire some of our students, but not others, based on their race, gender, religion, or sexual orientation. Our students are all our students, and for that reason, we are
duty-bound, as lawyers, scholars, and teachers, not to assist deliberate discrimination against them. The human rights rights tradition runs deep here at Yale Law School.
Sixty years ago, a great professor and Dean Eugene Rostow, a conservative Republican denounced the Japanese Internment as a disaster when some of our most ardent civil libertarians supported it. The next decade, former Dean and Judge Lou Pollak, fought for Brown vs. Board shoulder to shoulder with Thurgood Marshall and his fellow Yale professor Charles Black. In the 70s, Profeoor Tom Emerson fought for a right to privacy here in Griswold v Connecticut and Professor Alex Bickel, fought for the right for
newspapers to publish the Pentagon papers. And in the last two decades that tradition was carried on by my predecessors Dean and now Judge Guido Calabresi, and Tony Kronman, who in his book The Lost Lawyer called on attorneys to be lawyer-statesmen dedicated to the public service, not just technicians in the service of private gain.
What I am saying is that Yale Law School has never been a law school that simply defends what is. Yale Law School—your law school—has been, is, and will always be a law school that fights for what ought to be.
I have spent my career as a human rights lawyer. In that capacity, I have traveled the world. And I have learned that in this world, there is bad news and there is good news. The bad news is that the suffering is real. It is not just on CNN. All over this world, in Sudan, in Iraq, in North Korea, down in New Orleans, right here in New Haven, Connecticut, there is human suffering so real that it hurts to see it close up. But, I have learned, there is also good news. Lawyers do matter. Good lawyers matter more. One person can make a difference. A team of lawyers can beat an army. But to make that difference, you need not just energy but ideas, not just excellence but humanity, not just theory but practice. What we teach here at Yale Law School is that excellence without humanity is worthless; that accomplishment without humility is tragic. And when you leave here, we want you to think of Yale not just as the place you received your legal education, but as one of those places where you found your moral compass.
So let me close with an excerpt from one of my favorite poems. It is written by Seamus Heaney (a prominent Korean poet!) He wrote: When I landed in the republic of conscience it was so noiseless when the engines stopped I could hear a curlew high above the runway. At immigration, the clerk was an old man who produced a wallet from his homespun coat and showed me a photograph of my grandfather. No porters. No interpreter. No taxi.
You carried your own burden and very soon your symptoms of creeping privilege disappeared. At their inauguration, public leaders must swear to uphold unwritten law and weep to atone for their presumption to hold office – and to affirm their faith that all life sprang from salt in tears which the sky-god wept after he dreamt his solitude was endless.[And when] I came back from that frugal republic the old man rose and gazed into my face and said that was official recognition that I was now a dual citizen. He therefore desired me when I got home to consider myself a representative and to speak on their behalf in my own tongue. Their embassies, he said, were everywhere but operated independently and no ambassador would ever be relieved.
Ladies and Gentlemen of the Yale Law School of 2008, Citizens of the republic of conscience, Welcome to the Yale Law School! We have so much to do together, so let’s get it started!