Thread by @aaronsibarium

It's not just Yale Law School. It's all the law schools.

And it's not just in law schools. It's in law firms, courts, and government agencies.

At @bariweiss's Substack, I explore the terrifying takeover of the American legal system.

bariweiss.substack.com/p/the-takeover…

@bariweiss As wokeness continues to cannibalize every cultural power center in the country, many people have told themselves: "at least we have the law on our side." Lawsuits, the thinking goes, can prevent overt racial discrimination and the other excesses of wokeness.

For example, a federal court blocked the the Biden administration from prioritizing minority-owned restaurants for pandemic relief.

But the legal guardrails that once ensured against this sort of tipping of the scales are coming undone. Quickly.

In this thread, I will highlight some of the most telling and troubling aspects of this transformation. Every aspect of the legal system is implicated.

Let's start with law schools.

Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” and assessing its “differential effects on subordinated groups."

UC Irvine School of Law, University of Southern California Gould School of Law, Yeshiva University’s Cardozo School of Law, and Boston College Law School have implemented similar requirements. Other law schools are considering them.

As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” both at the start of law school and “at least once again before graduation.”

That’s in addition to a mandatory legal ethics class, which must now instruct students that they have a duty as lawyers to “eliminate racism.” (The American Bar Association, which accredits almost every law school in the United States, voted 348 to 17 to adopt the new standard.)

It's not just the elite law schools like Yale. At the Santa Clara University School of Law, administrators emailed students that the acquittal of Kyle Rittenhouse was “further evidence of the persistent racial injustice and systemic racism within our criminal justice system.”

One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

“I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.”

Other law professors—several of whom asked me not to identify their institution, their area of expertise, or even their state of residence—were similarly terrified.

Here's what Nadine Strossen, the first woman to head the American Civil Liberties Union and a professor at New York Law School, told me:

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:

As the new ideology has been institutionalized, the costs of disobeying it have grown steeper, both for faculty and for students. ​​A Harvard Law professor told me that students face “social death” if they buck the consensus.

At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.

When members of Northwestern University Pritzker School of Law’s Federalist Society chapter invited the conservative writer Josh Hammer to campus in October 2021, the law school’s all-student listserv lit up with invective. Here was one email someone sent the entire school:

That was nothing compared to what happened at Yale Law School earlier this month, when the school’s chapter of the Federalist Society hosted a bipartisan panel on civil liberties. Read more about that here: freebeacon.com/campus/hundred…

During the disruption, Yale Law professor Kate Stith faced a torrent of abuse for telling the protesters to "grow up." She doesn't see the fracas as an isolated incident.

“Law schools are in crisis," she said. "The truth doesn’t matter much. The game is to signal one’s virtue.”

What happens at Yale Law School doesn't stay at Yale Law School. Case in point: Rebecca Slaughter, a graduate of YLS and one of five commissioners on the Federal Trade Commission. In a Twitter thread in September 2020, Slaughter declared: “Antitrust can and should be antiracist.”

Then she added: “There’s precedent for using antitrust to combat racism. E.g., South Africa considers #racialequity in #antitrust analysis to reduce high economic concentration & balance racially skewed business ownership.”

In practice, several attorneys said, this meant a company with a majority-white board could be penalized for something that a company with a majority-black board might not be.

The government might even block a merger if the resulting conglomerate would be insufficiently diverse—something that has actually happened in South Africa, the country Slaughter held up as a model. businesstech.co.za/news/business/…

Two weeks later, Slaughter told CNBC: “I want to be working to promote equity, rather than reinforce inequity." She had come to the conclusion that “it isn’t possible to really be actually neutral, nor should we be neutral in the face of systemic racism and structural racism.”

Slaughter’s statement was not a one-off. It captured the zeitgeist not just of post-Floyd progressivism, but of an increasingly large chunk of the legal profession.

The idea that lawyers can’t be neutral, that confronting injustice must supersede all else, has eroded the norm that legal representation—like the ability to obtain medical care or buy a train ticket—is something every American deserves.

“Partners are being blindsided by associates who they think are liberals in their own image,” an attorney in Washington, D.C., told me. “But they’re not. The associates want to burn the place down.”

“It’s much worse than McCarthyism,” Alan Dershowitz, a professor emeritus at Harvard Law, told me. “McCarthyism was a reflection of dying, old views. They were not the future. But the people today who are imposing litmus tests for who they represent—they are the future.”

When Dershowitz was accused, in 2014, of sexual relations with an underage girl at Jeffrey Epstein’s various residences, he said he had trouble finding representation. (A federal judge eventually struck the allegations from the record.)

Law firms have been known to avoid unpopular clients, but the scope and frequency of these evasions have increased, dozens of lawyers interviewed for this story agreed. That’s partly because young lawyers see representing someone as tantamount to endorsing them.

For example: David Boies, the liberal legal hero who paved the way for gay marriage, was accosted by an associate at his law firm for representing Harvey Weinstein. It was the last day of a ritzy retreat in Florida, and Boies was on stage fielding questions from the firm's staff.

An associate allegedly said there were lawyers at the firm who were “uncomfortable” with Boies representing Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms.

“It used to be that most lawyers could work for Catholic hospital system even if they were pro-choice,” a recently retired lawyer told me. “But now people just say, ‘I oppose this client, so I can’t work for them.’”

The lawyer had planned to stay at his law firm for a long time. He told me he retired in 2020 after the firm’s culture became “simply unbearable,” with younger associates excoriating him for being “old and white, and part of the reason we have systemic racism in America.”

Law firms also worry about losing their corporate clients, which, like many American institutions, have grown more stridently ideological in recent years. “I knew of and heard of clients protesting cases we were taking,” the recently retired lawyer said.

“If you were going to do a gun rights case, you would incur the wrath of other clients.” Since 2011, law firms have been pressured to drop or turn down a long list of clients: fossil fuel companies, foreign universities, employers challenging Biden’s vaccine mandate, Trump.

These pressures—both internal and external—have had a chilling effect. If defending anti-vaxxers can cost you business, law firms reason, imagine the blowback of defending a transphobe or a racist.

“It doesn’t even occur to people to take controversial cases,” one lawyer in Washington, D.C., said. Religious liberty cases, for example, are “totally off the table. I wouldn’t even think to bring it up.”

Another lawyer, who specializes in First Amendment litigation, described being forced to turn away a client with far-right views because the firm thought that any association with the client—even if the claims advanced were meritorious—would be bad for business.

The problem, Strossen said, is that rights mean nothing without representation. “ANYONE who doesn’t have access to counsel in defending a right, as a practical matter, doesn’t have a meaningful opportunity to exercise that right,” the former ACLU chief told me in an email.

“Hence, undermining representation for any unpopular speaker or idea endangers freedom for ANY speaker or idea, because the tides of popularity are constantly shifting.”

Ken Starr, the former solicitor general who led the 1998 investigation of Bill Clinton, agreed.

“At a time when fundamental freedoms are under assault around the globe, it is all the more imperative that lawyers boldly stand up for the rule of law,” Starr said. “In our country, that includes—especially now—the representation of controversial causes and unpopular clients.”

Another cornerstone of the rule of law is an impartial judiciary. Some judges, however, have begun to see themselves not as impartial adjudicators, but as agents of social change—believing, like Slaughter, that they cannot be neutral in the midst of moral emergencies.

During the BLM protests in 2020, Massachusetts Superior Court judge Shannon Frison vowed on Facebook to “never be silent or complicit again, in any courtroom or any context.” “As the very keepers of justice,” judges “not only stand with the protesters—we fall with them.”

The Washington State Supreme Court put out a statement recognizing “the role we have played in devaluing black lives,” and encouraged judges to strike down “even the most venerable precedent” if it is “incorrect and harmful.” courts.wa.gov/content/public…

Such statements are not mere virtue signaling. They reflect sincerely held beliefs with real-world consequences.

Case in point: the case of Montez Terriel Lee, Jr, who burned down a Minneapolis pawn shop in 2020, killing a 30-year-old father of five.

Usually, this sort of crime, according to federal sentencing guidelines, would have landed Lee in prison for up to 20 years. But the prosecutor, Assistant U.S. Attorney Thomas Calhoun-Lopez, only asked for 12 years. alphanews.org/wp-content/upl…

Calhoun-Lopez portrayed Lee not as a rioter but a protester. “Mr. Lee was terribly misguided, and his actions had tragic, unthinkable consequences. But he appears to have believed that he was, in Dr. King’s eloquent words, engaging in ‘the language of the unheard.’”

The judge, Wilhelmina Wright, appeared to buy that argument. On January 14, she handed down a sentence of just 10 years—even fewer than the prosecution had asked for.

“For anyone who might applaud the Minneapolis situation," Strossen said, "I would ask: ‘How would you feel about a judge who has religious objections to abortion giving a lighter sentence to a pro-life crusaders who attacks clinic property or personnel?’”

Judge Wright’s willingness to tip scales didn’t come out of nowhere. When she was a student at Harvard Law School, she’d taken a class with Derrick Bell, the founder of critical race theory, who asked students to submit written reflections on the assigned readings.

Bell published many of the reflections—including Wright’s—in a 1989 article for UCLA Law Review: “Racial Reflections: Dialogues in the Direction of Liberation.” ir.lawnet.fordham.edu/cgi/viewconten…

In one reflection, Wright said that “American liberalism”—especially the liberal “notion that property is neutral”—was “equally” as “damaging” as overt “racial supremacy.”

Her chambers are eight miles away from the MaX it PAWN Shop, one of 1,500 businesses—many minority-owned—that were damaged or destroyed in the record-setting riots of 2020.

Minneapolis is a microcosm of a larger trend. As progressives have set about repurposing the law, they seem to have lost sight of the people they insist they’re saving: the poor, the vulnerable, the indigent—including many racial minorities.

Consider the movement to abolish the right to eliminate members of a jury pool.

The peremptory strike allows attorneys to toss out potential jurors they deem biased. Peremptories, as criminal-defense attorneys see it, offer their least sympathetic clients a glimmer of hope.

The problem, as progressives see it, is peremptory strikes have also been used to disproportionately exclude potential black jurors. As a result, there is a growing movement to abolish peremptories altogether.

In August, for example, the Arizona Supreme Court announced that the state would no longer allow peremptory challenges at civil and criminal trials, after a pair of Arizona judges launched a petition arguing that peremptories perpetuate “discrimination.”

It hasn't gone over well with defense attorneys. “Suppose a woman married to a police officer says she can be fair,” a criminal-defense attorney in South Carolina told me. “I won’t be able to strike her from the jury, even though we all know she can’t really be fair.”

Then there’s the erosion of the principle that one is innocent until proven guilty beyond a reasonable doubt. “The Anti-Innocence Project,” one criminal-defense attorney in San Francisco joked.

“The same people who are anti-incarceration for some defendants will support life plus cancer for others,” said Scott Greenfield (@ScottGreenfield), a criminal-defense attorney in New York.

“Good people—which in practice means blacks and Hispanics, regardless of what they did—should be free. Bad people—which in practice means sex offenders and financial criminals—should go to jail.”

In 2019, for example, the American Bar Association nearly passed a motion urging state legislatures and courts to adopt a new definition of “consent” in cases of sexual misconduct that would flip the burden of proof from the accuser to the accused.

They tried this despite fierce criticism of the standard from legal scholars, and despite some evidence that it has unfairly hurt black, male students on college campuses. Though the motion failed, nearly 40 percent of ABA delegates voted for it.

This sort of progressive carceralism isn’t confined to sexual assault. After the Rittenhouse verdict some left-wing legal scholars zeroed in on the definition of “self-defense.”

Changing that definition—insisting that whoever was the first to point his gun was the presumptive aggressor—would have made it harder for Rittenhouse to have been acquitted. It would also preempt future Rittenhouses.

The criminal defense attorney from South Carolina was skeptical. “These reforms aren’t going to be weaponized against white males or the GOP,” he said. “They’re going to be weaponized against criminal defendants.”

Criminal defendants like Stephen Spencer.

In 2017, Spencer, a black man, endured a series of racist taunts at a bar. When he went outside, a group of white men followed him and shouted: “We’re going to get you, n—–!” Taking them at their word, Spencer pulled out his gun and fired, killing one of his pursuers.

A jury acquitted Spencer on all counts. But under a different definition of self-defense—one reverse engineered to put the Rittenhouses of the world in jail—the case could easily have gone another way.

“There’s a real risk Stephen Spencer would be a convicted murderer instead of a free man, because he displayed a lawfully possessed firearm when he was menaced by a racist mob,” a prominent second-amendment lawyer told me.

The old-school liberals, those who have been around for three or four decades, say that none of this was supposed to happen.

Several attorneys called FTC commissioner Rebecca Slaughter’s thread—and her almost off-the-cuff reference to South Africa—deeply unsettling.

Of all places, they said, South Africa? Did she know what was going on there?

In July, there had been rioting, looting, Molotov cocktails, people pulled from their cars and families hacked to death in their homes.

The spark for the riots was the arrest of former President Jacob Zuma, but the real causes were decades-old: a faltering economy, corruption, and the deeply divisive policies of the ruling African National Congress, which Slaughter held up as a model of “#racialequity.”

It started in 1998 with the Competition Act, an antitrust law that effectively required businesses to be partly black-owned. The act was an early example of “Black Economic Empowerment”—race-conscious policies aimed at lifting black South Africans out of poverty.

It was a disaster. Soon, companies were being forced to cede large chunks of their equity to black shareholders, many of whom were well-connected to the ANC. Foreign investment dried up—the regulations imposed huge costs on businesses—and corruption and unemployment soared.

By 2009, Moeletsi Mbeki, a black South African political economist, was warning that South Africa’s race-conscious policies would “collapse” the country. By 2021, South Africa’s unemployment rate was 44%, the highest in the world. reuters.com/article/idINIn…

All this had culminated in the riots that killed 300 people and destroyed scores of businesses. This was the country a U.S. antitrust official wanted to emulate.

At stake, said Noah Phillips, also an FTC commissioner, is the American justice system itself.

“We should strive to meet the promise that is literally chiseled into the stone of the Department of Justice and courthouses across the country,” Phillips told me. “That is: the law should be applied equally..."

"...Deliberately attempting to apply the law in an unequal fashion, based on the preferences of those in power, is inimical to the rule of law.”

On November 12, the FTC released a draft strategic plan for the next five years. One of its main objectives: use the agency’s power to “advance racial equity.”

Just a few college kids—and the entire American legal system.

ftc.gov/news-events/ne…

Really appreciate all the work that @bariweiss and @petersavodnik put into editing this piece. And of course I appreciate all my friends tolerating months of rants about how no, really, the entire system is compromised.