Advisory Opinions - The Stanford Squeeze (w/ Judge Kyle Duncan & David Lat)

Episode Date: March 14, 2023

By now you've probably heard about Judge Duncan's bad day at Stanford Law School. No worries if not, because this Marvel-length special episode will leave no question unanswered. To complete the autopsy, Sarah and David are joined by Original Jurisdiction's David Lat and the man of the dark hour himself, Fifth Circuit Judge Kyle Duncan. They discuss the Stanford standoff and the ongoing trend of student disruptions, the response from Stanford administrators, whether shouting down speakers is a form of speech, how the judge responded to the students and whether he thinks federal judges should boycott the school, and more. Prepare yourself for a two-hour marathon that will leave you wondering, was the juice worth the squeeze? Show Notes: -David Lat: Yale Law is no longer #1 for free speech debacles -Ed Whelan on Stanford Law (includes video) -David Lat on ideological diversity in law firms -David Lat's follow-up piece -Article: Stanford Tells Federalist Society Students To 'Reach Out' to Diversity Dean Who Encouraged Disruption of Their Event—and To Shut Up on Twitter Learn more about your ad choices. Visit megaphone.fm/adchoices

I'm uncomfortable because this event is tearing at the fabric of this community that I care about and I'm here to support. And I don't know, and I have to ask myself, and I'm not a cynic to ask this, is the juice worth the squeeze? You ready? I was born ready. Welcome to a very special episode of Advisory Opinions and to we have special guests for you today. So this episode is going to be extra long, not just a little bit longer, like double our normal length. It's going to be a deep dive on the Stanford free speech crisis from last week. And our special guests, of course, include David French. But we're going to talk to David Latt, author of Original Jurisdiction. If you're not already signed up for Original Jurisdiction, I'm shocked you're listening

to this podcast, frankly. And we're going to talk to Judge Duncan, who is at the center of this controversy. And then you can stay to join us at the end where David and I are going to chit chat about what we think after hearing from both of these guys. Now, we're going to start with David Latt because David did some yeoman's work reporting on this. He took a break from his vacation to get to the bottom of it, check in with all of his sources, and nobody is better sourced than David Latt when it comes to a free speech issue at a law school.

And originally, we actually already had David scheduled on this podcast to talk about ideological diversity in big law. We're going to get to that as well, because these kind of tie in together, right? Lack of ideological diversity and tolerance at law schools. Guess what those kids end up growing up to become? Lawyers. So there is so much to talk about. We're putting all law on hold in the meantime. And so Rahimi and our horse racing circuit cases and all of that, it's just, it's going to pick up next time. This is like just a special, separate, all on its own podcast. And we hope you enjoy it. And first up, let's talk to

David Latt. David, welcome back. Great to be here. Thanks for having me, Sarah. David, fist footnote, I guess, since you're no longer the host host. Just a special guest, just a special guest. But as a special guest, I'm incredibly excited about this episode, by the way. So David and I were leaving University of Kentucky Law School last week. The event went so well. And I have to just give a shout out to Kentucky as a whole. Because if you're ever interested in having advisory opinions at your law school, let me tell you, on my drive from Lexington back to the Cincinnati airport, which is approximately an hour and 20 minutes,

in that entire time, and I was running quite late to the airport, I got to my plane eight minutes before they shut the door. In the left lane, not a single car stayed in the left lane. Everyone moved over to the left lane, not a single car stayed in the left lane. Everyone moved over to the faster traffic, which I've just never seen in any other state. And in that hour and 20 minute drive, I passed at least four Chick-fil-A's. So it was just a fabulous experience overall. So thank you again to University of Kentucky.

But a few hours later, on the West Coast, there was a very different experience at Stanford Law School. David, why don't you just walk us through it? Which David? Not you. Yes. So a very interesting event happened last week at Stanford Law School. This was on Thursday, March 9. Kyle Duncan, who is a judge on the Fifth Circuit Court of Appeals, spoke to the Stanford Federalist Society, or perhaps I should say attempted to speak, because his appearance was subjected to a very disruptive protest. About 100 students came to protest his appearance. They stood outside the room as people entered and booed individual students, including Federalist

Society members who were going into the talk. Then of those 100, about 50 to 70 piled into the room itself. There were, according to my sources, maybe only 12 to 20 actual Federalist Society members who were there to listen to Judge Duncan. The subject of his talk was going to be about the Fifth Circuit's jurisprudence on certain controversial issues, including COVID and guns, and some of these cases you have both talked about here, in dialogue with the Supreme Court, especially in areas where the Supreme Court jurisprudence itself might be in flux. So the social media case, the case about domestic violence and gun rights, etc. So that was going to be the subject of his talk. of his talk because before he became a judge, he was involved in litigating various issues, fairly controversial issues, and he would take the socially conservative side,

issues relating to, for example, LGBTQ rights, marriage equality, etc. And then as a judge, he has also issued a number of controversial rulings, including a ruling relating to a transgender criminal defendant who wanted to be referred to with their preferred pronouns. So Judge Duncan was a controversial speaker to choose for the Stanford Federalist Society. So once he got in there, there were all these protesters, and as the president of the chapter was starting to speak, you already had an inkling that some trouble was coming because people started cheering and catcalling and making noises. And then when the president turned the podium over to Judge Duncan, things only got worse. It was very difficult for the judge to speak. People were shouting out.

And by the way, the protesters were already holding up signs. They were holding up signs like, respect trans rights, fed sock, be pro now, not pro bigot, some vulgar signs about Judge Duncan's inability to find a certain part of the female anatomy, etc., etc. And then, during the heckling of his actual speech, they would shout things at the judge like, you couldn't get into Stanford. I believe the judge went to LSU. You're not welcome here. We hate you. Why do you hate black people? Because of rulings that he has issued that they construe as racist. Leave and never come back. We hate FedSoc students. F them. They don't belong here either. We do not respect you and you have no right to be here, etc., etc.

So throughout this heckling, the Associate Dean of Diversity, Equity, and Inclusion, Dean Steinbach, and the university's student relations representative, and a few other administrators, I believe that per Ed Whalen, who broke the story originally, there were five administrators in total. Throughout this heckling, the five or so administrators did nothing. FedSoc members had discussed possible disruption with the administrators before the event, and the student relations rep said he would issue warnings to people who interrupted, but only if the yelling disrupted the flow of the event. Despite the obvious disruption to the flow, no warnings were issued. And then, at around 10 minutes or so of trying to give his remarks, Judge Duncan became understandably angry. He departed from his prepared remarks. He started lacing into the hecklers. He called the students, quote,

juvenile idiots and said he couldn't believe the, quote, blatant disrespect he was being shown. And then at some point, he asked an administrator to come help him restore order. So at this point, Associate Dean Steinbach came up to the front and took the podium. She asked to speak privately between them. She said no. She said, I'd like to speak to the crowd. And after a brief exchange, she did speak. And it turned out that she had brought a speech. She had prepared remarks. She opened up her portfolio. She was apparently expecting this. She was prepared. And she started to read remarks. And those have been transcribed. FIRE, the Foundation for Individual Rights and Expression, has a full

transcript of her remarks. There's also a video that Ed Whalen posted that you can watch that contains her remarks. And what she did was, to summarize it, talked about Stanford's free speech policy and said, yes, we've invited you here and you have the right to be here. But then she sort of took with one hand what she gave with the other and started to talk about how she is pained to say that you are welcome here to speak and that your presence and your work is very hurtful to members of the community. That she was pained to have to tell him that his work and previous words had caused real harm to people. And she kept on using this expression, the juice wasn't worth the squeeze, wondering whether the juice wasn't worth the squeeze when it came to this kind of event, meaning that, is it really worth it? She said to the judge,

do you have such great insights on COVID and guns and all of these other things that it is worth it for you to come to speak to our community when your presence and your past work and words have caused so much hurt? So she kept on saying, is the juice worth the squeeze? And at one point, the judge interjected, this invitation was a setup, a setup being his word. And you can understand why he would say that because she did have these prepared remarks. And then at this point, she said, Dean Steinbach said to the protesters, look, you can listen to the rest of it and we hope that you'll let Judge Duncan say his piece or you can leave. And at this point, about half the protesters left, including various protesters who said rude things to the judge as they left, including calling him scum. protesters who said rude things to the judge as they left, including calling him scum.

The ones who remained stayed for the question and answer session. And that was also very contentious. They asked questions that the judge, when I interviewed him for original jurisdiction, described as of the nature of, how many people have you killed? Or how many times did you beat your wife last week? Meaning to say that he did not think they were asked in good faith. Now, there is, of course, a lot of pushback on this. People on the left believe that the judge responded dismissively and inappropriately to some of these questions. And so if you go on Twitter, you can find additional video clips from Chris Geidner and Mark Joseph Stern and others where they believe that the judge was rude and dismissive and uncivil towards the protesters. that the judge was rude and dismissive and uncivil towards the protesters. So that was the question and answer session. And the heckling and the disruptions were so bad that the event concluded

early. There is some dispute within my sources about how early it ended, but one person said it ended about 40 minutes before its anticipated end time. So clearly the event was significantly disrupted. Now, some people might say, well, he did get to speak, and this was better than, say, what happened to Ilya Shapiro when he spoke at UC Hastings, where he never really managed to get a full sentence out, I think. Judge Duncan did get to say some sentences. But if that's our standard for what constitutes an acceptable event, it's a pretty sad commentary on the state of speech in law schools. Okay, so then we had a pretty quick statement out from the dean of the law school,

followed by, interestingly, a statement from the president of the university and the dean of the law school. And they were pretty different statements. Will you walk us through those two to bring us up to current moment? Yes. So on Friday, this event took place on Thursday. On Friday, Dean Jenny Martinez issued a statement addressing the situation. And in her statement, she said that it is a violation of the disruption policy at Stanford to prevent the effective carrying out of a public event. And she acknowledged that this event was a violation of

the policy. She did not say anything about whether anyone would be punished or whether Dean Steinbach would get in any kind of trouble, but she did acknowledge the event was disrupted, which I was pleased by because clearly it was disrupted. And then she added that, here's what she said about Dean Steinbach's intervention, quote, in such situations, an optimal outcome involves de-escalation that allows the speaker to proceed and for counter speech to occur in an alternative location or in ways that are non-disruptive. However, well-intentioned attempts at managing the room in this instance went awry. The way this event unfolded was not aligned with our institutional commitment to freedom of speech. And then she said the school is reviewing what transpired and will work to ensure protocols are in place so that disruptions of this nature do not occur again.

ensure protocols are in place so that disruptions of this nature do not occur again. Mistakes were made. Yes, exactly. It's very passive voice. Some people thought that the statement was wishy-washy or equivocal, and they also noted that it did not include any kind of apology to Judge Duncan. So, later over the weekend, Dean Martinez and the president of the university, Mark Tessier-Levine, I'm not sure if I'm pronouncing his name correctly, issued a joint letter of apology to Judge Duncan. And they said in this letter, among other things, we write to apologize for the disruption of your recent speech at Stanford Law School. What happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus. We're very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings.

I'm reading excerpts. You can find the full statement on original jurisdiction. Ed Whalen posted it or linked to it, et cetera. jurisdiction. Ed Whalen posted it or linked to it, etc. And then the president and dean added, in addition, staff members who should have enforced university policies failed to do so and instead intervened in inappropriate ways that are not aligned with the university's commitment to free speech. We are taking steps to ensure that something like this does not happen again. Freedom of speech is a bedrock principle for the law school, the university, and a democratic society. We can and must do better to ensure that it continues even in polarized times. So they issued this apology. Judge Duncan

issued a statement to Ed Whalen saying that he appreciated receiving this apology, that he accepted it, but that he also hoped that a similar apology is tendered to the persons in the Stanford Law School community most harmed by the mob action, the members of the Federalist Society who graciously invited me to campus. Dreher, Nate Raymond. He gave a number of interviews, and one of the things that he emphasized was, look, I'm a federal judge. Don't feel bad for me. I have life tenure. I'm going to keep ruling on my cases. You should really feel bad for the members of the Stanford Federalist Society who have been maligned and mistreated and who are being shamed by their classmates. And one thing I should add is, in the lead-up to the event, there were a number of posters. Some of them were criticizing Judge Duncan in the days before his Thursday appearance,

but some of them were criticizing the members of the Federalist Society for inviting him. So they had headshots of the board members of the Federalist Society saying that they should be ashamed of themselves for inviting such a terrible and divisive speaker to campus. And did you look into sort of what the speech climate had been like at the law school in the year or two and leading up to this?

Is this the kind of thing that came out of nowhere at Stanford, or was it relatively predictable? So this is actually a subject of dispute, interestingly enough. interestingly enough. Ed Whalen, who broke this story, said that he had sources who were telling him that he thought, or they thought, that Stanford was just as bad or worse than Yale, which has, as your listeners know, become sort of the poster child for intolerance and free speech problems. But other people told me this was not the case. Judge Duncan said he was taken aback and really surprised by this because he had spoken at the law school before in 2019, for instance, without any problems. He knew of other judges, conservative judges, Trump-appointed judges who had spoken without problems. For example, Judge Bumate, who hasn't

been mentioned before on the pod, he spoke. He was subjected to a silent walkout, but it was a silent walkout. Nobody was heckling him or preventing his speech from proceeding. Judges Ken Lee and Daniel Bress, also from the Ninth Circuit, appeared on a panel a number of years ago. That went off without a hitch. And the other thing that Judge Duncan told me was, before the event, he had actually reached out to the administration through Michael McConnell, who's a member of the Stanford faculty and a former Tenth Circuit judge. And with Judge McConnell serving as intermediary, the Stanford Law School administration assured Judge Duncan that while there might be protests, the protest would be non-disruptive. So Judge Duncan told me he went in there with no idea of what was going to occur, and nothing he has experienced at many

other law schools he has spoken at was anything remotely like what happened at Stanford. So I guess in answer to your question, reports do differ somewhat on what the speech climate was like at Stanford, but I think it was not really on the map yet as a trouble spot. And one other thing I'll add is one of my sources, who's a member of the Stanford Federalist Society, said they were rather surprised by this too, because they thought that things were pretty good at Stanford. They considered some of the protesters to be friends, and they had had productive and civil exchanges with them in and out of class.

And so they were very shocked by what happened. I want to go through and steel man some of the arguments that I've seen from appellate Twitter on the left. So one argument that I saw immediately was that's how free speech works. He got to speak, the protesters got to speak, the dean got to speak. What's wrong with that? Isn't more speech better? Yes, and I definitely saw that also. And Dean Steinbach, when she was talking to FedSoc members after the talk, said this is what free speech looks like. It's messy. FedSoc members after the talk said, this is what free speech looks like. It's messy.

I take issue with this. I think that in an academic community, there are rules about who has the privileged place in the forum and when you get to respond. It's sort of analogous to time, place, manner restrictions in First Amendment jurisprudence. And look, I know Stanford is a private school, and so people will often say, oh, the First Amendment. Of course, footnote, California has a law called the Leonard Law, which applies some free speech protections to private institutions like Stanford if they're non-sectarian, non-religious. But we'll put that aside for a sec. But people were saying that, absolutely. But I don't think that's really the case, because I think free speech involves not just the ability to speak, but the ability to listen.

And when you just have a cacophony and nobody can hear anybody, I don't think that's really meaningful free speech. And there have been a number of law professors, including Eugene Volokh, who's a First Amendment expert, Howard Wasserman, others, who've written about why heckling and yelling at somebody in an academic environment is not really a legitimate form of so-called counter speech. And again, aside, this would be different if we were talking about a street corner or some unregulated space where people are just yelling and they have the right to yell and somebody yells back at them. That's different. But this is an academic environment where there are certain rules about who has the floor, who has the forum, when you can respond. If people wanted to use the Q&A

to articulate their viewpoints, that would be a different thing. And one other thing I'll just mention, which I've mentioned in past coverage, is if we take this approach of just, well, whoever yells the loudest gets to communicate their ideas, this sort of majoritarian approach to free speech, I don't know if everyone's going to like that. People on the left might like that in academia because they're the dominant force. But what about in Georgia? What about in Florida? What about in places that have laws

against teaching critical race theory or places where they're trying to yank Toni Morrison books from the shelves? Do we really want a majoritarian approach to free speech where whoever has the loudest voice or the greatest number gets to prevail? I don't think we really do. I was just going to drill down for a minute on the Leonard Law, which is an interesting

wrinkle here. So the Leonard Law in California is a law that says that private universities, private non-religious universities have to grant First Amendment style protections. And in fact, Stanford was subject to one of the first speech code lawsuits in American history in 1995, lost a case, a loop called Corey v. Stanford, if I remember correctly, where Stanford had really a remarkable speech code, where it kind of defined any kind of speech that was deemed subjectively disparaging on the basis of the standard non-discrimination criteria to be, quote, fighting words and therefore not protected by the First Amendment, which is a common defense of speech codes back in the day. president's statement, say, the dean's statement, immediately kind of backpedaling from the students' actions. How much of this was driven by, hey, we want to be an esteemed institution of higher learning

and respected for our commitment to academic freedom? And how much was, oh, crap, there's some legal exposure here? So my guess would be more the former, David. I don't think that Judge Duncan or the Federalist Society, or I don't know who necessarily would have standing here, but I don't think that they necessarily feared imminent legal action. I'm not an expert on the London law, full disclosure there, but I suspect that it was more of a public relations issue. And I have to give Dean Martinez credit. She's a highly regarded dean. She's a well-regarded

leader. And I think she wanted to get ahead of the problem. She did not want to become Yale 2.0. The title of my story on original jurisdiction was, Yale Law is No Longer Number One, M- for Free Speech Debacles. And I don't think Dean Martinez wanted to become the next Dean Gherkin. And full disclosure, I think Dean Gherkin has made a course correction, and I think she's doing a much better job now. But for a time, I think Dean Gherkin was held up as an example of a leader who wasn't taking a sufficiently strong line on speech. And I think Dean Martinez wants to say right out of the gate, that's not me, we're not Yale,

do not underestimate our commitment to free speech. So I think it was more of a public relations concern than necessarily a legal concern. I want to take up the next argument from the left on this, which is that the DEI dean in question here had every right to speak at that moment. A, she was trying to de-escalate. And so, yes, she was identifying with the crowd, making them feel like they were being heard in order to then let the speech go on. And that, too, in terms of not liking sort of the merits of her criticism of Judge Duncan, that individuals at universities, but also universities themselves, are allowed to have their own viewpoints. And she was simply expressing that

viewpoint. Do you have a thought on that pushback to the idea that what the dean did was inappropriate? Yes, and there were definitely defenders. I think Julian Davis Mortensen, for example, on Twitter, who's a law professor, was saying that she deftly navigated this very fraught situation. And look, let me say a couple of things.

One, there have been a lot of attacks on Dean Steinbach, and I've definitely criticized her conduct here, but I do not think she had ill intent. I think that she really did want to try and help the situation, acknowledging the hurt, but also allowing Judge Duncan to speak. Although, you know, there is some dispute over that. Some people read her remarks as saying,

well, she just wanted him to kind of self-deport and shut up. Can I ask a follow-up just on that point? Do we know why, in my experience, as a Federalist Society president at Harvard, for instance, this is a dean of students' job. It always was a dean of students' job. Why was the DEI dean the one taking the podium to begin with? She's not, this isn't in her chain of command, if you will.

So at many law schools, the DEI dean is under the dean of students. This was the case at Yale at the Office of Student Affairs. And so perhaps the dean of students, who later issued a statement to the Federalist Society members, but we can talk about that later, I think perhaps she delegated this, I guess, to her DEI dean. And she's an acting, by the way, anyway. There's not a formal dean of students right now at Stanford is also, I think, part of the issue here. Oh, interesting. Okay. Actually, you know what?

Correction. I'm reading Aaron Sabarian's article now. Janine Marino, who is the acting associate dean of students, she was also a present, apparently, at this event. So she was there. I don't know why Dean Steinbach was the one to read the statement. Because she had prepared remarks. And I wonder whether she had cleared that with Dean Marino or not.

I will say one other thing, just by way of background. In terms of the school's commentary in the lead up to the event, Dean Steinbach was the one who issued an email a little bit before Judge Duncan's talk saying something like, this speaker is coming. We understand that his work and his presence could be hurtful to many of you, but Stanford has a free speech policy. And interestingly enough, Dean Steinbach in that pre-event email actually alluded to the fact that in other situations, not naming Yale, but we all kind of thought Yale, these types of disruptions have been weaponized against the left to show that they're intolerant and they turn into real

problems. And so she was essentially saying, let's not be that. And then lo and behold, that's what turned out. I think my problem with her response was her real job was to just quiet the room and allow Judge Duncan to speak. It was not to essentially undermine him and criticize him and berate him right there in front of the crowd. If she wanted, or if Outlaws or National Lawyers Guild wanted to have a counter-event opposite this at the same time, or before it, or after it, that would have been fine. But to basically take up the Federalist Society's time and space to attack their speaker before supposedly turning the floor back over to him,

you know, not really, I think, what would have been the best response. You know, I am very interested in this defense of the students that sort of goes like this, you know, because we've talked about Heckler's veto, but there's also another aspect of this that kind of bothers me specifically

about the law school environment. And that is, you know, A, we're not dealing with children here. And we're not even really dealing with students young enough to call them kids. Because I think we've expanded the definition of kids sometimes. Like for me, the older I get, the more you people are all kids. But these are all folks who are full grown adults. But these are all folks who are full grown adults. And beyond that, so in other words, they act like you've had some home raising is kind of the phrase. The other thing is, they're also specifically training to be a part of a profession that involves extremely high stakes confrontations between opposing sides conducted within rules of decorum. And that's part of the purpose here of your legal training. And I raised that in a shortened version in a tweet.

And one of the interesting responses that I got was, well, they can do that in court. And the fact that they can't do that out of court is irrelevant to this kind of conversation. And I just thought that was an interesting piece of pushback that essentially saying we can highly contextualize. And I mean, I get it. I get that somebody might say, well, look, if I'm an actual constitutional litigator, I'm not going to heckle opposing counsel in the courtroom. But one of the questions I have is I am very interested in this. What is from a cultural standpoint? How should a legal education be preparing students to engage in these kinds of high stakes confrontations?

And is this a part of it? in these kinds of high stakes confrontations? And is this a part of it? I do not think that law schools are doing their students a service by allowing them to heckle and treat speakers in this way. As Judge Duncan said at the event, and I'll quote him, you are all law students. You are supposed to have reasoned debate

and hear the other side, not yell at those who disagree. And I think he's absolutely right. Now, look, I don't know if there's any kind of empirical way to establish whether or not you can compartmentalize in this way and be extremely rude to a speaker in law school. And then the moment you pass the bar exam and get admitted to the bar, suddenly you become this model of civility. But just in terms of common sense, you would think that some of that would bleed over a little bit. And people have talked and written about the ways in which some of the ideals and norms and values of the academy

are going into the legal profession and the workplace, including law firms. And again, I mention him frequently because he's covered this a lot, but Aaron Sabarian at the Washington Free Beacon wrote a piece actually for Barry Weiss's substack where he talked about, I think, what he called the takeover of the legal profession. There was this idea that once these student radicals graduate and meet the real world, then suddenly they will have to comply with the real world. But instead, the argument of this article is the real world is instead being reshaped in the vision of academia. And you see a lot of things that originate in academia now taking place in law firms and in the profession.

So I'm concerned. Again, I don't mean to be sort of chicken little and say, oh my gosh, now tomorrow people are going to be yelling over the justices at 1 First Street. I don't think that's going to happen. I'm not trying to be hyperbolic here. And I think these things happen very gradually, but you do have to wonder about the future. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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Well, let's use this as an opportunity then to expand the conversation a little bit about what happens to these law students when they do go out into the world. Because I think what really distinguishes this from Yale to me is that it was a federal judge. And this idea that, you know, it was sort of one thing when like it was opposing counsel at Yale, right? It was Kristen Wagner, who, you know, argues before the Supreme Court, wins lots of her cases. And we could make the argument that like, that's not how you're going to beat Kristen in front of nine justices, is to simply yell louder than she is. But all the same, you know, things do get testy with opposing counsel in those conference calls.

Quite different when it's a federal judge from the Fifth Circuit and you can't think of any other way to engage with them than, and you know, you mentioned one of the signs, but I think it's worth noting that during that Q&A, I think that some of the questions were not in good faith, but nevertheless, questions. Some of them, however, and one in particular, and because I messed up last time, and I used the F bomb three times on the last podcast, only two of which got bleeped. So lesson learned that if I leave too many Easter eggs for poor Adam, our producer, he can't catch them all.

So I'm going to be very careful in phrasing what this question was, but the man said, the student said, I'm a gay man and I know where the prostate is. Why don't you know where, and it's a very specific part of the female anatomy that starts with a C, is? That's not a legal question. That's not a question to ask a federal judge. There's just no possible world in which that's an appropriate question to ask anyone in a university Q&A setting, unless it's a question about where that female body, you know, a whole lecture on sexual anatomy. And you're like, I can't find this. Where is it?

Is it real? So wildly unacceptable. Now, I will note by just footnote for those who are into the legal history of judges being heckled at law schools, there was a precursor to this that I'm sure David remembers. When Justice Scalia was speaking at a law school, he wasn't heckled, but a student got up during the Q&A and asked him if he'd ever sodomized his wife or been sodomized by whatever it was, doesn't matter. Justice Scalia did not take kindly to that question, as you can imagine. So there is, I guess, some precedent for this, but nevertheless, this was gross. Okay. So then fast forward. And David, I mentioned that I wanted to talk to you

about this. You had the piece that you published, an op-ed, about what's going on at law firms. Big law cancel culture was the title that the Boston Globe picked for your piece. I know that's not the headline you would have picked for it because cancel culture and wokeness and all that stuff just carries so much baggage with it right now. But I was hoping you could talk a little bit

about your argument because then what I loved that you did in original jurisdiction is you went through and steel manned all of the arguments that you had gotten and criticisms from your piece and went through and answered them all. And it was better than the original piece. So I want us to do a little bit of that as well. Yes. So in this Boston Globe piece, I just was citing a couple of recent incidents at law firms where, for example, Paul Clement and Aaron Murphy were forced to leave Kirkland & Alice after winning Bruin, the big gun rights case, which you've talked about a lot here on the pod, because Kirkland no longer wanted to handle Second Amendment cases because they were just too controversial and clients and staffers and lawyers at the firm didn't like those. And then there was another case involving Robin Keller, who was a retired partner at Hogan Lovells,

but who was still serving clients. And she made some statements on a firm conference call defending the Supreme Court ruling in Dobbs, which overruled Roe. And shortly thereafter, there was an investigation and then her ties to the firm were severed. And I interviewed another partner at a large law firm who had a similar story involving how her views on Dobbs also contributed to her departure from that firm. And so the argument I was making in the Boston Glow piece was, look, we need to have greater ideological diversity and respect for alternative viewpoints within large law firms. It makes law firms better advocates for their clients so they can understand all perspectives. There is empirical research, not even specifically

about law firms, showing that intellectually and ideologically diverse teams perform better because they are able to see solutions that maybe people who all thought alike would not see. You have talked on the pod before about advocates who can speak originalism, who understand how originalist judges approach cases. If you're at a law firm where originalism is viewed as a joke, well then how are you going to be able to speak like that to judges? Now I know, again, kind of going to David's earlier point, maybe suddenly they can put on this mindset where they're going to be great scholars of originalism and then take it off and say originalism is a sham. But again, you do have to wonder, the human mind only has so many abilities, and I think things that you have outside of the courtroom, you can't just necessarily magically discard. Some of it may leech through. of it may leech through. So that was the argument I was making in the GLOW piece. And then in the follow-up on original jurisdiction, which I framed as this sort of imaginary or Socratic dialogue between myself and my critics, I was really just trying to explore some of the pushback I got on

that piece. And rather than picking a particular critique and just attacking that point by point, I tried to sort of group the arguments and then respond to them. And I did try, as you said, to steal person them and really try to say, look, present the strongest version of that rather than just try to be dismissive or snarky. You know, one thing that strikes me about this intellectual diversity argument and discussion is that, you know, let's just put aside the question of, is this happening and to what extent? And go back to the argument and the discussion about intellectual diversity within institutions, especially legal institutions. And it seems to me that there's this really compelling instrumentalist argument for intellectual diversity in big firms, which is you are part of your job representing your clients is being able to effectively advocate in front of the federal bench, which now is, you know, I don't know the exact numbers, but pretty closely divided between sort of federalist,

originalist judges and more progressive judges and dominated at the Supreme Court by people who are either federal, you know, federalist society originalist or federalist society originalist adjacent. And the ability to walk into that courtroom and be fluent in the arguments that could help your client prevail seems to me to be part of job one if you are a firm. And I'm not sure that you're going to be effective at job one if you believe that the point of view is so out of bounds that you don't even want to have colleagues that share it. And, you know, it reminds me of the very different ways in which different cases are argued. So Sarah and I talked about the Kennedy versus Bremerton case

where the advocate walks in, essentially for the school district, kind of radiating contempt for the justices with whom he disagrees versus Bostock. In Bostock, the attorney, I believe it's for the ACLU, walks in and says, I know how, I know I can speak fluent Justice Gorsuch and my oral argument is aimed at Justice Gorsuch.

And I'm not going to say the cases would have come out, that Kennedy necessarily would have come out differently. But if you're talking about an oral argument, one's more effective than the other. And so, there's not really a question. It's maybe a rant slash observation that you're free to react to in any way you want. So, I exactly thought of Kennedy when I had this example of how some advocates can't necessarily take off that hat and then suddenly speak fluent originalism. Now, here's the counter argument. And all those people who are saying that suddenly these students who are rude and rowdy can suddenly transform into polite, civil, originalism speaking advocates once they get bar cards, but Neil Katyal, Moore v. Harper. Neil is a progressive appellate advocate, but in Moore v. Harper, he went into text and history and structure, and he had a colloquy with Justice Thomas where he said, Justice Thomas, I've been waiting all these years to talk to you about history, but let's be clear. How many Supreme Court advocates are as good as Neil Katyal? So,

fine, Neil Katyal can do it. If you think you're Neil Katyal, well then go for it. Call federal judges, make obscene remarks about the, you know, anatomy of federal judges' wives and then go and dazzle those judges next time. I wouldn't try it myself, but God bless. Also though, Neil Katyal, for instance,

has appeared on panels with many, many a conservative and an originalist so he has sat through so many uh lectures panels i know he's read endless amounts of stuff from the right so he's almost the perfect example of someone who is a hardcore progressive leftist whatever you want to call him who has been steeped in and become at least partially fluent in and in Morvey Harper, fully fluent in originalism through that experience. And I think the concern for these Stanford or Yale students is that they're sticking their fingers in their ears and refusing to hear that because they think it is so beyond the Overton window and beyond the pale that they

shouldn't have to be exposed to it, let alone grapple with it, like just be exposed to it. But David, some of the pushback in your big law piece that you then took on was the idea that maybe it's not just social conservatives who are experiencing this, but those on the radical left as well, that similar to what you heard in sort of the late 90s or early aughts about the bias in news media. No, it's not a bias to the right or against the right. It's a bias toward the center that actually the most extreme voices on both sides

get shut out of a lot of these conversations. And I was wondering if you'd take that on in second, that the idea that, sure, maybe most of the law firms lean left, but then there's Jones Day. There's major law firms that are super right-wing lunatic law firms, and you can just go to Jones Day. It's not some, you know, boutique that's struggling out there. I do agree that law firms are left center. I'm not saying they are radical left. On the economic side, they are defending large corporations.

They're defending alleged polluters. They're defending financial institutions. They're defending fossil fuel companies. So I'm not saying that the dominant mindset in big law is AOC or something. But the problem is, I think they reject then, or they exclude viewpoints that are either socially conservative or on economic issues or redistribution issues, they reject viewpoints that are too far left. And what I was saying in my piece was, or my follow-up piece, I would welcome it if people who had more radical economic views of a Bernie Sanders or an Alexandria Ocasio-Cortez were in law firms. I think that would actually help them. Again, you can't necessarily advance that. You have to think about how to package it in certain ways. You have to look at the precedent and the laws. But I think it will be great. The people who have those hardcore progressive views, in my experience, they get their stat in fellowships

and they go into public interest law and they work for the NAACP or they work for the ACLU 2.0 and they don't really go to large law firms. But one interesting example I cited was Kathleen McCormick, who's now the chancellor of the Delaware Court of Chancery, so arguably the nation's most important judge when it comes to corporate law issues. Before she joined Young Conaway, which was the major corporate law firm in Delaware where she was a partner before becoming chancellor, she was a legal aid lawyer.

And I wonder, is it a coincidence that a former legal aid lawyer became one of the leading litigators of corporate law and is now the top judge in corporate law? the top judge in corporate law, I wonder. I think probably, look, it certainly didn't hurt her, having been a legal aid lawyer, to become a leading jurist in corporate law. So I think it would be great if big law was more open to both socially conservative viewpoints and economically left viewpoints. On the Jones Day counterexample, the point I made was, look, Jones Day is one of 200 large American law firms. And I did not say in the piece that big law was exclusively liberal or progressive. There are exceptions.

But Jones Day is one out of 200 law firms. And I said, well, I could even grant you 19 other Jones Days. And they don't think there are 19. I don't even think there are nine. And I dropped a couple of names that I think a lot of my readers probably haven't even heard of

as possible candidates. Barnes and Thornburg, Kasowitz, they're not, you know. But even they are not really that conservative. And even Jones Day. So there's been empirical research. There was a 2015 paper

by three political science law professors. And then there was also a 2021 analysis by Derek Muller, who's a law professor, where they looked at the political valence of large law firms, and they concluded, look, these firms are left of center. Even at Jones Day, which is the poster child for conservative law firms, 75% of campaign contributions go to Democrats. The Maya Sen paper sort of pegged Jones Day at sort of a Joe Manchin. So sure, Joe Manchin is a conservative Democrat.

He's still a Democrat. So if you were to sort of associate big law firms with political figures, there's no Ted Cruz big law firm. There's not even a Susan Collins big law firm. It's like the farthest you go is Jones Day and they correlate, they match that up with Joe Manchin. So again, I don't, there were a lot of, I think, legitimate crit correlate, you know, they match that up with Joe Manchin. So again, I don't,

there were a lot of, I think, legitimate critiques of my piece, but the empirical piece, like you're entitled to your opinions, you're not entitled to your facts. And I think as a fact, let's just admit it, large law firms are, look, on economic issues, corporate issues, fine, they're conservative. They're, you know, they don't want Exxon to be suddenly, you know, nationalized. But on the other hand, on social conservative issues, let's face it, they're liberal, they're progressive. You know, one thing that also that goes to this argument about, well, you've got conservative law firms. Okay, first, we can deal with what you just said is,

in fact, a Joe Manchin law firm is not terribly conservative, but there are much more conservative boutique law firms, certainly. But if the argument is, well, get thee to your own institution, bigot, then actually what ends up happening is the creation of parallel institutions where neither one is particularly healthy. Okay. So we've seen this in media that, well, you know, if you're a, if you're a conservative or on the right and you're a reporter, you're a commentator, well, you've got Fox, you've got town hall, you've got daily wire, you've got, you know, you name it, but that siloing is not healthy for either institution. It makes one more extreme. It makes the other also more extreme

because groupthink has that same effect on people, whether they're on the left or on the right, which is the law of group polarization, Cass Sunstein. When like-minded people gather, what happens? They become more extreme. And so on the one hand, I do see that there are special interest type legal organizations that are going to be

ideologically siloed by design. And it's hard to really kind of, you know, figure out a way past that. Or would you even want to because they're dedicated to very specific kinds of issues. But these more general interest law firms, the idea that you can silo them ideologically and make them decent institutions at the same time, strikes me as deeply misguided.

Yeah, I have two points on that, David. I think the first, which Paul Clement has made, he made it in an interview I conducted with him for my podcast at Original Jurisdiction. He also made it in a panel at the Federalist Society National Lawyers Convention is, look, boutique firms are great, and there are firms like Clementine Murphy and Constable McCarthy and other boutique firms, Cooper and Kirk, on the right. The problem is they're imperfect substitutes. For example, these firms are small. So if you're going to have a major trial on an issue, a large law firm with dozens of bodies to spare and thousands of billable hours to spare is going to be able to do that. And sure, Clement and Murphy, they can write a great Supreme Court

brief. Are they going to be able to do a multi-week, you know, pro bono or public interest trial on, say, religious liberty? No. You need a large law firm to do that. And if large law firms are all avoiding that type of work, I think we are going to be a poorer legal system for it. And the other point I would make that I made in my piece was, look, in addition to the idea of being effective advocates, and the most effective advocates, especially in a bench that is more mixed ideologically than the legal profession, and certainly the legal academy, having colleagues with different viewpoints just makes things more fun. It makes your workplace more interesting. I left above the law back in 2019. But when I was there, I had colleagues who were very, very different viewpoints for me, Ellie Mistal, Joe Patrice, Stacey Zaretsky, Catherine Rubino. And I felt that we had more

interesting conversations because we all weren't just preaching to the choir and saying amen to each other. And so I think it makes your law firm both a more effective institution of advocacy, and it makes it a more fun place to work. And so the siloing that we're seeing, I think it's very troubling. Let's circle this back to Stanford then. And what happens next? Because I think when Yale,

I mean, Yale had a no good, very bad year. There were at least three separate incidents at Yale that were being held up as the 2021, 2022 school year from hell, ending in the disruption of the Kristen Wagner bedsock event. I guess I very naively thought that that was going to be such an embarrassment for Yale that every other school would immediately see that and say, we need to have plans in effect for if something like this were to happen at our school, you know, a checklist, what all would we do? How would we handle this? Let's, you know, game this out and talk to our Federalist Society chapter, all the things that

one might do. And I think what concerns me about the Stanford incident is clearly that didn't happen effectively. Second, they think they did. Like, they assured the Federalist Society board members that the students would get one warning and then they would be escorted out of the room. And instead, you had, as you mentioned, multiple administrators sitting in there. Even when she takes the podium, there is no warning issued to the students. And certainly, there was no threat of discipline or punishment. And in fact, whether you think it's a de-escalation technique or something else, in her prepared remarks,

she instead says, perhaps we should revisit the speech policy at the school that doesn't allow heckling. Yikes! That's quite the opposite of what these students were assured ahead of time. And lastly, so let's assume everything just goes poorly and despite all of your best work ahead of time, you know, sometimes things just go wrong. Nobody has, you know, reached out to the Federalist Society and apologized to them. These students afterwards were, it got pretty vicious.

Like Judge Duncan was escorted out by U.S. Marshals. That left these students hanging in the wind with their colleagues. I think everyone's sort of lucky that something more didn't happen. Now, they have been told that if they need mental health counseling or something that they can reach out, that's not going to happen. And that if they want someone to go through and assess the threats that they've received to determine how real they are, they have someone available from that from the police department. Wow, that the school thinks that that's just sort of like a, look, if you need mental health counseling, great. If you want to look through your death threats and see if any of them are serious, let us know.

Can you imagine that happening to any other group on campus and it being treated so casually? And so I look at all these other schools and I'm wondering, are they prepared for something like this? Is this a one-off that this happened at Stanford? And I noted before we started, this hasn't happened at Yale. I mean, sorry, this hasn't

happened at Harvard. And I think there's a good reason for that. A, the school is much larger. There's many, many more conservative students. I think it's hard to put them in a corner when you're dealing with, as you said, 13 to 20 students max. I think it's much easier to ostracize them, ignore them, bully them than when it's 250 students at Harvard. Second, I'm going to give Dean Manning a lot of credit at Harvard because my understanding is behind the scenes. They do do a lot of work on this. They know who the Federalist Society is bringing. They know which speakers are going to be controversial. They meet with FedSoc. They meet with the progressive students. They talk about what the plans are going to be. They walk through it. They hear everyone out ahead of time so that something like this doesn't happen. I'm bewildered that

Stanford let this happen. And where are they going to go from here, David? That is a very good question. I think we need to figure out, one, what is going to happen to the student protesters? Are they going to face any discipline? Probably not, I would guess, just because the bar for this is very high. Maybe if something else happens, then it's sort of like, well, you were warned the first time. I think this is going to be equivalent of getting the warning with your speeding ticket. Second, is anything going to happen to Dean Steinbach? I'm not so sure because, as you mentioned, they got this email over the weekend, the members of the Federalist Society,

addressing where they could get help. And one of the resources was Tyrion Steinbach. So it's sort of like, oh, one of the resources is the person who tried to ruin your event. It seems very funny. And who called you a bigot and said that your event was awful to the students. So you're going to go and she's going to give you a hug? Exactly. So even at Yale to go and she's going to give you a hug? Exactly.

So even at Yale, which is often mocked as being very tone deaf on these things, after all of their problems, the Fed Soc was moved out from under the jurisdiction of the Office of Student Affairs, and they were given a different, more neutral person in the administration to be their administration liaison. So why didn't Dean Martinez say, you know what? You shouldn't have to deal with Dean Steinbach. You should, here's a new person to deal with.

That makes no sense. Why should you deal with the administrators, the dean of students who sat in your event and did nothing? So that made no sense to me. So I would actually, again, it's kind of funny to point to this, but Yale could actually be an example because in the wake of their sort of,

I don't know how you pronounce this, their honest, hurried list or whatever, they actually instituted some changes. They tightened up their disciplinary code for speech infractions. They instituted a civility and discourse training as part of their 1L orientation. If you're going to have diversity and inclusion training, which they do, why not have civil discourse training? So I think Yale actually did clean things up. And again, as I reported on earlier this academic year, Kristen Wagoner came back and there was no protest. Instead, the day before, outlaws had a counter event. And members of FedSoc attended the outlaws event, which was about how

right-wing groups are endangering LGBTQ rights. And outlaws members attended the Kristen Wagoner event, and they asked her respectful questions, not ad hominem attacks. And so it's very funny that I think Yale, it could actually be a model for how you clean things up. And maybe Dean Martinez and Stanford can look to the Yale playbook. I never thought I would say Yale Law School

could be the model on these issues, but maybe it can. So one of the questions I want to circle back to what we talked a little bit about earlier, and that is the enormous amount of, well, maybe enormous is the wrong word, but the considerable amount of pushback on Twitter against Judge Duncan himself for his response in the moment.

And, you know, I have been in situations where I've been taunted publicly and snapped and gotten very angry and have had mixed feelings about that moment ever since. You know, should I have done that? Or is it sometimes acceptable and necessary to sort of show like I'm a human being here and these kinds of really personal attacks do, you know, they are, you know, responding to them is hard, you know. What's your take on the critique of Judge Duncan that when he was taunted, when he was interrupted, after a while, he sort of gave back to the students in some pretty intense and personal language. Yeah, so look, I'll say a couple of things. One, I'm not going to judge him too harshly because look, we're all humans. We lose our temper. The other day, my five-year-old ordered

a hundred something dollars worth of Japanese food using my phone when I accidentally, you know, I just gave it to him. And I blew up at him and I should have not blown up at him because he didn't know any better. He's, well, he kind of did. But anyway, I felt bad of did. But anyway, I felt bad about that. But look, we're human. I get it. And I'm not going to judge Judge Duncan too harshly because I've been only protested once. And it was by a person who quietly held up a sign

complaining that there were no women participating in the event. But the event was an event with me and one person giving commentary. And that person happened to be a man, but it wasn't a panel or anything. But anyway, I digress. I'm not going to judge him too harshly, but I will say this. In an ideal world, and we don't live in an ideal world and we're flawed humans, in an ideal world, I think Judge Duncan, and he'll talk to you later, I believe, I think he could have been more diplomatic. He could have been restrained more because I think that what ended up happening was it gave a talking point to the other side because they could kind of, it's sort of like, you know, people on the left hate the what about isms, like what about her emails? Well, the response to the sort of gross violation of Judge Duncan's and the Federalist Society students

free speech and event rights was, what about Judge Duncan? And I think it was sort of this unforced error in a way. When I interviewed Judge Duncan, he was unapologetic. He said, did I speak sharply with the students? I did. Do I have regrets? I don't. I wonder if when he speaks to you, he'll have a different tune. I think just from an instrumentalist strategic standpoint, just as it's bad strategy to have these shout downs because they get weaponized against the left and the progressives, ADF raised money off of the Yale debacle. I feel that with Judge Duncan, I think his sharpness sort of got weaponized against the cause of free speech.

And the model I contrasted him with was Ilya Shapiro, who, when he was at Hastings, all he did was kept on trying to give his prepared remarks, get shouted at, get insulted for being bald, whatever, kept on just trying to repeat his remarks. He didn't insult them back. He didn't tell them they were ugly or whatever. He just kept trying to repeat his remarks, kept on trying to get shut down. And so when people attacked Ilya, well, sure, they attacked his tweets that made him a controversial figure, but they couldn't attack anything he had done that day because all

he did was try to give his speech. So that's what I'll say. But again, I'm not going to judge him too harshly. I've never been in that situation. So there, but for the grace of God, go I. Yeah, I've been in that situation a couple times in particular on campus. And for me, when I knew going in that I was about to be hammered, I was much more able to keep sort of this calm than when I'm taken by surprise. And I know for me, that's a completely, when I am prepared for something, you're much more able to sort of strategize in advance. And I do think when you're taken by surprise, it gets very difficult in that moment, just as a human being to respond with sort of this

otherworldly calm than when you have, when you know something is coming. And I think, you know, I'm with you, David, and if he had to game this out, would he have done that? I hope we get a chance to talk to him about it and ask him that very question. But when you face that kind of attack, I really get torn about it because I do think in a way showing some of your humanity actually does indicate in some ways that the cost to a human being that is imposed by taunting, by that kind of violation of their own rights. And so, I really, this is a thing that I kind of go back and forth on myself and sometimes wonder if the extreme calm that I tried to show in

circumstances where I knew the blowback was coming was actually the most helpful response or not. And so, you know, I don't know. It's a tough, tough thing. And there's a saying I like to refer back to is that vice often leaves virtue with sort of few good options that there's sometimes not a perfect playbook for responding to these things. I think that one of the exchanges, though, that was telling, and that to David

Latt's point, if it had been a calmer exchange, it would have been a better poster child for the whole event was when one of the students was heckling him saying, you know, you hate black people. Why you hate black people and he responds cite a case cite a case cite a case and so eventually the student who then becomes very frazzled eventually finds the case that she wants to cite and he then says was i even on that panel which is a little odd but again to your point dav, like he doesn't

remember, um, because the whole thing was at such a high pitch. And I mean that literally, but also metaphorically, um, he wasn't able to realize in that moment that he had actually been in the dissent. She had cited a case where he had been on her side of the issue, which is, you know, that sort of highlights the whole problem with these students not listening in the first place. Maybe they could have learned something about why he was in dissent in that case and why they were wrong. And with that, David Latt, thank you so much for joining us on this topic, which is just right in your wheelhouse. And for anyone interested in learning more, I highly recommend they go to Original Jurisdiction, sign up immediately.

And next up, that's right, we're talking to Judge Duncan. and without further ado we have got fifth circuit judge kyle duncan joining us and just a quick bio before he was on the fifth circuit judge duncan went to louisiana state university got an llm from columbia university uh just some fun facts he was the solicitor general in louisiana before it was even called solicitoritor General. Maybe it was called Chief Appellate something or other, yada, yada. But we call him the Solicitor General of Louisiana. He worked at the Beckett Fund. He was an assistant professor at Ole Miss Law School and Columbia University as well. And then, and I do want to figure out whether this was considered acceptable in his home state. He then went over to the Solicitor General's office in Texas.

And we all know this podcast has a real soft spot for the Texas SG's office. But I mean, that's a real move from Cajun to smoke barbecue. So we'll see about that. But Judge Duncan, thank you so much for joining us today. Thanks for having me. I mean, if I can much for joining us today. Thanks for having me. I mean, if I can respond to that last point, I mean, I went to Texas first. That's where I started my career as Assistant Solicitor General in Texas. They have pretty good food in southeastern Texas,

and it's kind of Cajun, Beaumont and thereabouts. So, I mean, no one was complaining. And you've argued two cases before the Supreme Court as well. I have. I have done that. Once as the appellate chief in Louisiana and once in private practice. Wow. Hobby Lobby, which is a case we've talked about plenty on this podcast, David. Turning it over to you.

Yes, indeed. And Judge, I just want to say, I'm going to put aside our differences for this podcast and have a good conversation. I know you work for the Beckett Fund. I worked for the Alliance Defending Freedom, sort of the sharks and jets of like religious liberty law firms. And then you were affiliated with the University of Mississippi, Ole Miss.

And my extended family is affiliated with the University of Mississippi, Ole Miss, and my extended family is affiliated with Mississippi State. And that's a division that's really hard to overcome. But we'll fight through it. We'll fight through it. I am really sorry about that ladder, the ladder point that was made. And I'm not sure we're going to be able to overcome that. At Beckett, we just thought ADF was really, really big, and Beckett was really, really small. Yeah, that's a much more surmountable barrier. But let's go back. Let's start the conversation.

We had David Latt talk to us just moments ago about his reporting on the Stanford situation and the Stanford incident. And I would love to just start with how did you walk into this event? How much were you aware that there might be some sort of pushback or blowback? Were you expecting what happened? What was your knowledge and frame of mind going into the event? Great. So about a month before the event, I reached out to the Federalist Society to ask if they thought there would be a protest

or anything of that nature. And they said they honestly did not. I myself spoke at Stanford back in 2019 with no problems at all. A couple of days before the event, we were starting to hear rumors that there would be some kind of protest. I was contacted by at least one federal judge who had heard some chatter. And we knew enough to reach out to other people who had been protested by this particular group, I think. And I was, frankly, I was expecting some kind of perhaps a statement and maybe a walkout, which would have been fine,

I think. I did reach out indirectly to the administration through a professor at Stanford. And that professor was assured by the administration that they were on top of things and that the students understood the university policy that there could be protests, but no disruption of speakers. So I have to say, I went into the event prepared for some kind of pushback, but really nothing of the magnitude that I experienced. Can I ask just a really big picture question, which is why go speak to any law school? Why do you think it's important to give speeches like this? And why do you accept Stanford? It's outside the fifth circuits, it's in the dreadedth Circuit of all places. Why is it important? Oh, I think it's very important

for federal judges to interact with law students because they're the future of the legal profession. I want to hear what they have to say, and they should want to hear what I have to say. They need to understand how the legal system works. And frankly, that federal judges are people. They need to get comfortable with who federal judges are. I think Stanford's a no-brainer. It's one of the best law schools in the country, if not the world. It's got a great reputation. one of the best law schools in the country, if not the world. It's got a great reputation. My friend Michael McConnell is there. I have other friends there on the faculty. I've had one of my first clerks was a Stanford law grad. Until this time, I've enjoyed going to Stanford. I think it's very important for the federal judiciary to reach out to law schools and

to be present to the students. So when you started speaking, what was the experience like? Was this a situation where, and I've been in situations where I'm interrupted by occasional shouts. In other words, someone derisively laughing or shouting out a disagreement or whatever. And I've also been in situations where I had to stop speaking because the incoming was so loud and angry that there was just no way to compete with it. So tell us about like, how did this unfold from your perspective? Was this occasional shouts and jeers? Or was this kind of a volume of communication, a volume of response from the audience that was impossible to overcome? David, it was the latter. And I'm glad you

know what you've experienced this so you know where I'm coming from. As I walked up to the classroom with the Federalist Society president, probably 100 yards off, we heard the protest. And there was kind of a rally going on in the lobby, which is a pretty small lobby outside the classroom. I would estimate that there were at least 100 people. There was chanting. There was jeering, there were signs, there was banging, there was stomping. I was told by someone that I should try to record things. And so I tried to do that. And I went around recording them And so I tried to do that, and I went around recording them just sort of as a self-protection thing. I was, frankly, I was aghast when I saw the kind of protest outside because it was like a kind of a monster truck rally sort of situation. And so I went in the classroom, and there are posters everywhere.

So that's that fun, huh? Yeah, it was that fun and and there so my my picture was plastered all over the the law school walls with sort of that horror movie font i i think it was kind of a dracula or a bride of frankenstein kind of font um and uh you know saying you should be ashamed uh judge duncan and then the uh more disturbing to me was the faces of the Federal Society board. The students were plastered up in separate posters with the same Dracula font. present. There were very few people in the classroom. So I thought, okay, well, maybe the idea here is to prevent people from coming in and hearing the speech. Then as sort of 1245, the time for the speech to start rolled around, all the protesters started coming in. And it was noisy. It was raucous. I immediately could tell that this was not going to be a pleasant experience. The protesters probably outnumbered the Federalist Society 100 to 10, maybe more, maybe 120 to 10.

When the president started introducing me, he was hooted down. started introducing me, he was hooted down. Every word he said was greeted with mocking derision, shouts, vulgarities. There were signs being displayed that were coarse. They were vulgar. I didn't understand all the words, but I got the gist. There was a dog painted, colorfully painted in the front row. A dog? Painted dog? There was a painted dog. It was a real dog. And I just want to be clear for the record that I don't blame the dog for anything that happened. So when I started speaking, it was not the occasional interruption It was every word I said was mocked So look, I mean, maybe there are trained public speakers

Who could just power through that But I'm not inclined to do that Because what's the point? You know, I mean, nobody's there 90% of the people there are not there to hear you They're there to jeer at you Because what's the point? You know, I mean, nobody's there. 90% of the people there are not there to hear you. They're there to jeer at you. So what's the point? I mean, I don't know. But it was a circus atmosphere, I would say. There has been discussion, certainly from defenders of yours and sort of free speech advocates,

that potentially this was a setup, right? That the dean had prepared remarks. So clearly there was some expectation that the event was going to get disrupted and sort of heckled down. But there has also been some pushback that it was a setup from your side, that you did not come with prepared remarks, that you never intended to really speak, that the point was to make an example of this so that it could embarrass Stanford, you could mock these students, etc. I was wondering if you could speak to that criticism. Yeah, that's ludicrous. So yeah, I'm not a professional provocateur. I have a day job. I'm not that guy, Milo, whatever his name is. I'm a federal judge. I don't have time to go around the country stirring up trouble. That's just ridiculous. Um, so yeah, of course I had a prepared speech. Uh, I was going to talk about three prominent fifth circuit cases that sort of come in the gray areas of Supreme court precedent, uh, and how the,

how the circuit courts sort of either anticipate what the Supreme court is going to do or react to new doctrinal developments. Uh, I give, I, I haven't given that speech before, but I've given speeches all over the place. So no, the idea, there's absolutely and utterly no foundation for the idea that I just went there to shame Stanford. I'll be very frank with you, I'm not going to use the names, but I went out there as a favor to a very prominent Democrat lawyer, who's a friend of mine, who just asked me to do a favor to speak to the Federalist Society chapter because she had some connections to it. So no, I wasn't, I didn't go out there like to stir up trouble. I've got a, you know, I've got a day job. As far as whether it was a setup,

I am strongly inclined to think that it is because I witnessed the assistant dean come into this talk. I didn't know who she was ahead of time. She didn't identify herself to me before the speech. She came in with a portfolio. She opened the portfolio. She had a printed out speech. So I don't know to what degree other members of the administration were involved in it, but I know for a fact that one member of the administration was anticipating this. I learned after the fact that she had sent an email, I guess, to the entire school, I think, you know, to many people, basically saying how distressed she was over the hurt that my presence would cause on campus. And, you know, so this, yeah, this was all planned in advance. Well, one observation, then a question. It's interesting, you know, this discussion of

what did the administrators know and when did they know it is not a frivolous question. When I was president of FIRE, what is now the Foundation for Individual Rights and Expression, but at the time was the Foundation for Individual Rights and Education, there was circumstances where with public universities, I'm thinking one in particular, where we did FOIA requests related to protests and found actually that the student activists and the DEI, what were diversity administrators then, but now what we call DEI now, had coordinated and planned the actual student disruption. That's not unheard of. But let me ask you kind of a tougher question, because a lot of the, as I've watched sort

of the conversation unfold, there's not so many people who are saying, although there are a few, that what the students did was fine and good. There's a lot of consensus that what the students did was fine and good. There's a lot of consensus that what the students did way overstepped the bounds, but there's a lot of blowback against your reaction. In other words, that you got too angry, that you were too, you know, too combative with the students. And again, I'll just, in the interest of transparency, I've been in the same boat before, and sometimes I've gotten pretty combative back. And I've always ended it when I have that, when that happens, I always have mixed feelings about it. So, in reflecting on your response,

how do you feel about your response now? What is this, 72 hours, 96 hours later? Yeah, that's a great question, David. And that's exactly right. How do I feel about it? I mean, first of all, yes, I did get angry. I don't see as a human being how you could not get angry. I mean, I guess I haven't achieved perfect detachment and sanctity yet. But sure, I was very angry to be treated that way. I felt that I had been duped into showing up for a public shaming by a howling mob with the connivance of at least one of the deans of the law school after I'd been assured that I wouldn't be. So yes, I was angry. I guess, you know, in the moment, at some point I decided that there was no way I could give an address to the students, but I didn't want to just stop and back off because I would

have taken that as me just capitulating to the mob. So instead, what I started trying to do, and I did it in a loud voice because that's the only way you can speak to a raving mob. I started trying to, my first tack was to say, and I had thought of this beforehand in case something bad happened, that the real outrage here is not against me because, you know, I'm a life-tenured federal judge. I'm going to keep wearing a robe and making decisions on my court. None of that's going to change. So I'm not the one who's really hurt. The ones who are really hurt are the students there in the Federalist Society who invited me to campus and were being treated by their fellow students as,-class citizens, I mean, just being incredibly disrespected by their fellow students, that really made me mad. And it still does. And so I tried to say,

guys, you would not do this. The Federalist Society is not going to do this to your invited speaker because they're going to have respect for somebody who comes on campus. Why not just give them the same respect that, that was howls of derision. Um, and, and, um, the, the, the response to that, that was shouted at me repeatedly was, well, you don't respect us, so we don't have to respect you. Um, okay. So, so yeah, I mean, I got mad, but, you know, sometimes in situations, anger is the correct response. I don't think I went overboard. When the students are, you know, standing 10 feet away from me calling me scum and hurling vulgar invective at me, I mean, I think that's reprehensible. It's despicable. And not only that, it's hypocritical, because they're the ones who say they are being treated like that by the likes of me. So it's just hypocrisy. And I just, it was just appalling. So, yeah, sure. I mean, yeah, if I yeah. If I were like a saint right now and I could somehow levitate above a situation like this, um, okay. But I just don't see how it can be done. I mean,

I guess, I guess one option would have been just to end the thing right then. Uh, I guess that's an option. Um, the, and the last thing I'll say on this subject is I was hoping and actually calling out for an administrator to show up and sort of calm things down. And that's when the DEI assistant dean sort of came off the sidelines. I didn't know who she was. I just, I sort of saw people standing on the sidelines. I didn't know that there were administrators. There were adults, I guess. And when she intervened, I thought, okay, there's going to be another adult in the room who's going to calm this down. But her approach to it, and maybe we'll talk about this separately, her approach to it was disorienting, let's say.

separately, her approach to it was disorienting, let's say. It became immediately clear to me that she was there not in a capacity to calm the room down, but in a capacity to sort of validate the students, validate their reaction, validate their pain and their hurt that I was causing them. And then to sort of give me this opportunity to speak, I still don't know what to call that. I've never experienced any sort of public dynamic that way. I called it a struggle session. I'm not sure the students knew what a struggle session was, but that I was sort of being invited to confess my errors and hear the pain of the students all in public. I just, I found it all very, very disturbing. And yeah, it made me angry. The moment in what she said that I found the most troubling, there was one where she said

that perhaps they should revisit the free speech policy of the school. That wasn't great. That was probably the big picture worst line in what she said. But there's a moment where she turns to you about the juice isn't worth the squeeze. And what she actually says to you, and I don't have the transcript in front of me, so this is a paraphrase, is what do you have to say to these students that is so important that it's worth the harm that you're causing to this community? And I thought that was such an offensive thing to say to an invited speaker who was invited by students who were in that room. And offensive is maybe used too much. it was insulting to the students who had invited

you how dare they want to hear from someone that the majority didn't want to hear from and that she didn't want to hear from um that was that had to be a strange moment from your end to be asked that as a question uh yes at first first, I didn't understand the metaphor that was being used, the juice thing. And so I said that out loud, I don't understand what you're talking about. And then I kind of got it. It was, your mere presence here is so harmful. How could that, you must have some, I mean, you couldn't possibly have something so important to say to the students that would justify this. I mean, I guess that's sort of a heckler's veto apology, I guess. Look at the mob that showed up. Surely there was no good reason for you to be here.

I mean, that's not a principle of free expression that I've ever heard of. So I just don't get it. It's a bizarre stance for an administrator at a law school to take? And as you say, with respect to someone who's being invited to speak. By students there, right? You weren't invited by, I don't know, frankly, like you didn't ask for the invite. You weren't invited, you know, by, I don't know, someone in Stanford undergrad, then you swung by the law school to see if any students wanted to hang with you for the day. The students in that room wanted to hear from you. They invited you. They paid for your ticket out there.

Actually, maybe not because you're a federal judge, but regardless. And they wanted to know what you had to say. And it was so disrespectful to discount any possibility that those students mattered. Those are her students. They're so disrespectful to discount any possibility that those students mattered. Those are her students. They're paying tuition to be there. Yeah. Terrible moment for the students because I was looking at them while I was standing there. There were about 10 of them. They were sitting there sort of stone-faced. I could not imagine

what they were feeling. Most of them are 1Ls. I don't actually know them. I went out to dinner with some of them afterwards and talked to them about it. That had to be a fun dinner. Well, actually, it was a fun dinner because nobody at the restaurant was screaming obscenities at me. So, and I got to eat food. So, I mean, it was a lot more fun than the speech. But the students, I truly, I still am. I'm outraged for those students. That's, those people had been,

most of them had been at that law school, one of the premier law schools in the world for six months. Obviously they were let into the law school. They deserve to be there. They're a lot smarter than me. I mean, I went to LSU for crying out loud. I didn't go to Stanford. Here are kids at this law school looking at their, oh, great, I'm at Stanford Law School. What a bright career I'm going to have. This is wonderful. And this is the reception that the invited speaker, the person they invited, gets from not just evidently a significant portion

of the law school community, but also from one of the administrators. So to channel sort of, there's this interesting dynamic again that I've seen, because I made a point when this initially, this, when the video came out, which the video, and we'll put it in show notes of the DEI dean speaking, is really one of those things that you kind of have to see to believe and to really understand what happened. So we'll put that in the show notes. But one point that I made was of all of the arenas, academic arenas in which this could happen, in many ways, the law school is the, it's not suitable anywhere, but on the ranks of not suitable, law school is where it's least suitable because one of the

things that these students are doing, they're training to participate in litigation over the most difficult and contentious subjects in American life, where guess what? They're not going to be able to heckle their opponent in the middle of oral argument, right? If imagine them trying to do that in your courtroom, for example, or any courtroom. And so they're going to have to engage on substance, the arguments they may abhor. And that this is utterly inconsistent

with an academic program designed to equip people to make those kinds of arguments. And the point that I got in return was, well, they can compartmentalize. Obviously, if they go into court, they're not going to act like this, but they're still retaining their sort of, quote unquote, ability to protest. I have my own thoughts in response to that point. But again, this is one of those points that I heard in response to condemnations or critiques of these students. Hey, this is just rough and tumble, not really marketplace of ideas, but this is people making their voice heard and should have no bearing over whether these individuals can be effective litigators? I don't, I'm, so you're at a law school, you're in a classroom at the law school, the invited speaker happens to be a sitting federal judge who's supposed to be talking about

the law. And they had no, they had no earthly idea what the subject matter of my talk was, by the way. In that setting, which in which the trappings of law are all over the place, you act in such a way, you act like you're at, like I said, a monster truck rally, a football game, the Coliseum. I don't see how you compartmentalize that event from what you're going to be doing as a lawyer. I just don't get it. That seems completely wrong to me. Yeah, words fail me. I mean, look, let's be honest. Look, let's be honest. If the shoe was on the other foot and the Federalist Society students had shown up at an outlaw invited speaker or whatever group and acted like that, I don't think the response would be, well, look, they're just protesting. They can compartmentalize. I just don't think it would be there. We all know it would be. The students there in the law school community, the ones who protested me are the ones who have the status and the privilege, the power, whatever you want to call it. They received at least implicitly the message from the law school community that this is

acceptable behavior. And I think something has gone wrong at a law school. I just, something has deeply, deeply gone wrong. I don't think it pretends well for the, these are the elites. It doesn't pretend well for the future of the profession if something like this becomes the norm. Okay, maybe not in court. Yeah, sure, because who knows? I mean, the marshal's going to take you away if you do that in court. Fine. But what about in the law firm? Are you aware of somebody who maybe takes a different view than you do on a difficult issue? What's your response to that? Are you going to learn to live with them and you learn to get along with them? Are you going to ask that they be excluded because they've made the environment unsafe for you?

Let's talk moving forward for just a couple minutes here at the end. Stanford's president, co-signed by the dean of the law school, sent you an apology. co-signed by the dean of the law school sent you an apology but that leaves still some questions unanswered one what's going to happen to the DEI dean if anything and we talked about it with David Ladd that the Federalist Society members were sent an email as well about resources that were available to them if they wanted to talk. And one of them was the dean, that same dean, which was a bit confusing, I think, for everyone involved since she was very much involved. And actually, real quick, can we just do a quick clarification? Because the video

is a little unclear. It's so loud. It's so raucous. At the moment that she's coming up to you, you don't seem to know who she is, which I am a little annoyed with the Federalist Society students. One of them, I think, should have been up there with you helping guide the situation a little bit more. But nevertheless, it was kind of a crazy few moments. There's some back and forth about you asked for an administrator. And then she's like, but I'm here. So why am I not talking? And there's some indication that you wanted to speak with her privately. And she said, no, I want the microphone. Can you just explain what actually happened there?

Sure. Yeah. Let me just back up one sec. So before the event, I was wondering, okay, are there administrators going to be here? A gentleman came up to me who identified himself as, I think, a dean of student engagement. I think that's what his title was. And he didn't really engage me, but he said, hi, I'm so-and-so, are you doing okay? I mean, and I said, I guess. doing okay. I mean, and I said, I guess. And then he sort of withdrew. I noticed that there were people standing on the side who didn't look like they were students. And I thought, okay, I don't know who they are. At some point, I think I was saying out loud, is there an administrator here who can do something about this? And then the DEI dean sort of materialized at that point, walked over to me. And I think what I said, as far as I can remember, was, okay,

are you an administrator? Are you going to tell these students that this is inappropriate? It was a very strange interaction because she seemed to want to go to the podium and say, well, she said, I want to speak to the students and to you. And I said, well, I mean, this is my speech. What are you what are you going to say? And then students started yelling at me because I was disrespecting the dean. Oh, and they also call me a racist at that point because she happens to be African-American. OK, so and then the snapping started, the coordinated snapping. And I felt like I was in a horror movie, apropos of the

font of the posters. And so I just said, okay, fine, speak. And that's when the prepared speech began. And I realized at that point that it was a setup. And to be clear, I told the dean to her face that this is a setup and you're in on it. And this, you know, she said, oh, no, a racist for not understanding that she was a dean or something. I don't know. Okay. Give me a break. We've reached terminal stupidity at this point. It was a nutty, weird, disorienting situation. The only people who had any right to feel uncomfortable in that situation were the FedSoc students and me. All right. So moving forward, we don't know what's going to happen to the dean. We don't know what, if anything, is going to happen to the students who were there. And again, beforehand, Federalist Society students were told that students who protested or tried to disrupt the event would be given one warning and then

removed. There was no warning and there was no removal. And I don't know whether you can really discipline the students without that. I also, I personally feel a little differently about disciplining these students if, which I think there is, evidence that the administration was involved in encouraging them because it's a little hard to hold the students responsible for something that they were told wasn't going to violate the speech policy and then it turns out of course it does by the letter of the speech policy that's different than what happened in Yale but other things we don't know what about other judges that are you know other Republican appointed judges let's say, that are set to come speak at Stanford. Are they still

going to come speak? Should they come speak at Stanford? And another issue that is out there is that one of your fellow Fifth Circuit judges, Judge Ho, after the Yale event, said that there should be a boycott of Yale law students who attended, who, sorry, matriculated after. So they'd be matriculating, I guess, or accepted for this coming fall type thing. Should there be something like that for Stanford? Have we moved past that to the point where now there'll be no clerks for you guys

because all of the law schools are like that? And so I'm wondering if you have any thoughts on what effect this event will have on some of those future decisions, what effect it should have. Well, those are all great questions. I'm not sure I have answers to them. I mean, okay, just to take a few. Yes, I know that there are federal judges scheduled to go to Stanford soon. And I've spoken to some of them. Of course, I'm going to leave it up to them whether they go. Personally, I wouldn't go unless I had a rock solid guarantee that nothing like this would happen. I'm not sure how you do that. Because I've also

heard that there have been private messages sent by students at Stanford that say, oh, we're going to do this again to the next federal judge. So I don't know how you do that. I would never go back there or into any other situation where I didn't have a rock-solid guarantee that it's not going to happen. And why? Because I'm afraid of them? No, I'm not afraid of them. But that's just such an awful situation, and it's so counterproductive, and it just doesn't do anybody any good. Like I said, I'm not a professional provocateur, so I don't enjoy that. I don't know about a boycott. I'm not saying that yet. Frankly, my inclination is to go to the board of the Federalist Society right now and say,

I want you to apply to me to be a clerk in my chambers as soon as you graduate from law school, out of gratitude for inviting me there and out of solidarity with you. I think Stanford law students would probably make, I know I've had a Stanford law school clerk who's wonderful. And as long as, I think they make great clerks as long as they're not hurling profanity and abuse at you. But forget the boycott for a second. Forget talk of a boycott. Can we think bigger? How about every chief judge of every circuit in this country joining a letter to Stanford saying, that's unacceptable. How about the Chief Justice of the United States, who I don't know, and I'm not telling him what to do. He's my boss, right? But how about that? How about that? How about 50 big law firms saying to Stanford,

this behavior from your students is not what we want to see in our associates. Demonstrate that you're not teaching them to do that. I think they might understand that. They might take a note of that more than some circuit judge like me. We're a dime a dozen, right? There's lots of circuit judges. So anyway, maybe something bigger than a boycott. Well, Judge, you've been super generous with your time and we don't want to exploit your time too much. But I do want to put a bug in your ear. And that is, I'm fascinated by the subject of the talk that you were going to give to the Federalist Society

and students at Stanford. And I just want to extend, and I don't want to step on the actual host of this podcast toes here, but I would love to extend an invitation for you to come back anytime and talk about the actual subject of your talk, which is fascinating.

And I guarantee you, we have a much larger audience than you would have addressed at Stanford. So we really appreciate you coming. And I'm fascinated by the talk. And if you want to give us even just a teaser of some of the substance of what you were going to say, we'd be grateful for it.

Sure. I appreciate that, David. You're very kind. And yes, I will do that. And also by way of demonstrating that the talk actually existed. So my core, I will do that. And also by way of demonstrating that the talk actually existed. So my court, I think it's obvious my court has lots of interesting cases and lots of controversial cases. And many of those cases exist in sort of a twilight area where the Supreme Court doctrine is either developing or it has developed and we're trying to apply it, or there's some sort

of suggestion on the horizon that there might be doctrine. So we've had plenty of vaccine cases. I was on the panel that decided the OSHA vaccine case, which is a very dramatic case about whether OSHA had the authority under the OSHA Act to institute a workplace COVID vaccination policy that you know, that covered two-thirds of the private workforce in the United States, we, along with every other circuit addressed a challenge to that, we issued a stay based on the major questions doctrine, and in part, that was one of the grounds. That doctrine hadn't been sort of officially unveiled by the Supreme Court, although they

had been suggesting for many years that there was such a thing. And so here we are where doctrine is developing, and we have to say, all right, well, what is the doctrine? How does it apply here? Are we getting out ahead of ourselves, or are we being faithful in applying what the Supreme Court is doing? And so we did that. Now, the Sixth Circuit disagreed with us. It goes to the Supreme Court. The Supreme Court essentially validates our view. And then later in the year, West Virginia versus

EPA, you get that. In another case, very controversial case, Rahimi, involving domestic violence restraining orders, we're applying a brand new doctrine, Bruin, historical analogs, very difficult, very sophisticated. I wasn't on a panel, but my friend, Judge Corey Wilson, wrote the opinion for the panel. Very controversial. But there we are applying a new doctrine. And then the last one was my friend Judge Oldham writes the Net Choice case about Texas social media censorship, that sort of thing. Can the states control viewpoint-based censorship under an ostensibly private medium? an inextensibly private medium. Very, very interesting case. There are really no Supreme Court precedents that are directly on point. You've got 11th Circuit decision from another quote unquote Trump judge, Judge Newsom, going the opposite direction on a Florida law. This is fascinating stuff, right? And I might add, it's not designed to be controversial.

I'm not going to take a position because it would be inappropriate to say that's right or that's wrong. The decisions have been made. And I would have thought that law students would be interested in the decision-making process on a circuit court in areas like that, cutting-edge areas. So that's what I was going to talk about. areas. So that's what I was going to talk about. And it was there on my iPad, right there. Judge, you'll be so pleased to hear that our next episode, this is a special, you know, multi-session episode of Advisory Opinions. But on our next episode, we're going to talk about Rahimi Revisited and the changes to Rahimi and its reissuance and Judge Ho's concurrence and the when I left off with a little bit of a cliffhanger to

David was I don't know I'm I'm starting to be a little bit convinced so um we absolutely if you ever just want some time on a microphone to deliver the full speech here the whole thing you can just have the floor without any interruptions, though perhaps I'll give a short introduction. Well, you are so kind to have me. I really very much appreciate it. I think this was a very, very difficult situation. And look, let me try to be as charitable as I can. Obviously, look, let me try to be as charitable as I can. Obviously, the students there found my presence offensive. Okay, I accept that. The problem here was not their feelings, not their views, not whether they're right or I'm right, whatever. But sort of how we deal with such a situation together in a situation in a law school with

an invited speaker, you know, all of this stuff has to do with how we treat each other, how we reason with each other, how the legal system is supposed to work, what students are supposed to be learning. It's very difficult. I think it was extremely unfortunate what happened. And I am happy, I guess. Yeah, I'm happy that Stanford offered a formal apology. Is it enough? No. Obviously, the problem runs deeper. That just didn't happen. That wasn't a one-off. I'm not smart enough to know how deep that problem runs or where it comes from, or what do you do to remedy it. But something needs to be done at a systemic level.

at a systemic level. And frankly, I don't even mean to sing a lot Stanford. I think this could happen at other places. Maybe it has already. But it's, anyway, I hope it's the beginning. You know, as they say, I hope it's the beginning of a conversation that people will continue to have. And anyway, thank you for having me on. I really appreciate it. And wait, real quick, just for those who can't see the judge right now, you do have a Jaws poster over your shoulder. In fact, it's not like this whole room is filled with movie posters. Like all I can see is a shark. Well, so I mean, you just said like, you don't like being in a horror movie, but there's your Jaws poster. So I just wanted to give you a chance to explain your Jaws poster. I might add at the time at a very impressionable age, it made an impression on me. And I, you know, whenever I,

whenever I need a safe space, whenever, whenever I need sort of a, you know, a warm blanket, I put on Jaws. It just, it brings back good memories. That is not a rom-com judge, but I, I hope you get some good popcorn blanket time with the family to watch Jaws this week, for sure. I think you earned it. Okay, David.

Wow. This was a pretty cool day for us. I mean, we talked to David Latt, then we got to talk to Judge Duncan. What are your takeaways? Well, you know how some mornings you wake up and you're like, I cannot wait to greet this day? I feel like that's you every day though.

No, but especially today, especially this podcast, because this is one incident, but it reveals a lot, I think. And I was really appreciative of David Latt walking us through all of the backstory and very appreciative of Judge Duncan coming in and talking about it from his perspective. perspective. And I asked both David Latt and Judge Duncan about, you know, the judge's response to it, in part because that was the only thing that I really saw gaining traction online as sort of a defense of, not so much a defense of the students, but a critique of the judge himself. And I was really glad to hear him address it. I was really glad to hear David Latt's perspective on it. And I was really glad to hear him address it.

I was really glad to hear David Latt's perspective on it. And I do think, and I think the judge really brought up something valuable, which is when you're in the center of a verbal hurricane, it is a disorienting experience. And this sort of idea that we're going to sit there in judgment, as David says, I'm not going to sit there in judgment. We're going to sort of sit there in judgment and say, oh, yeah, you know, the real story here is about how the judge reacted in the center

of what is by any reasonable measure an extraordinarily improper, inappropriate, aggressive. and extraordinarily improper, inappropriate, aggressive. And I would also say, when you're in the middle of something like this, it is, he has said in other contexts that he didn't feel like there was any physical situation that he was worried about. But it is, that is something that crosses your mind

when there's sufficient amount of anger in a room. So to me, I thought that, Sarah, that was a really interesting hearing, both David's perspective and the judge's perspective on his reaction. I thought that his suggestion that the chief justice should say something about this, or that the chief judges from all the circuits could, you know, sign a joint letter about something like this, and maybe most impactfully, law firms? I thought that was really a fascinating suggestion, because I think it would be really meaningful. And when we talk about other federal judges, for instance, going to Stanford in the next couple weeks, I think there's a problem here, which is, A, they might get heckled. And I

see his point about, you know, what can the school possibly tell you in advance that will make you believe them that they're going to handle a situation appropriately when that's what he was assured. And the Federalist Society students were all assured in advance of this, that there was a plan in place. And it's just that when the day came, it appears that no one in that room had any intention of actually following through with that plan. I mean, she had the prepared remarks.

Why that's relevant to me is because her prepared remarks didn't have the warning, didn't say students would be removed. Those were the two things the Federalist Society was assured ahead of time, and that he was too. So A, that would be a problem. But you know what's a bigger problem, David? Is that another federal judge comes and isn't heckled. Right. And then Stanford gets to say, you know what, there wasn't a problem. We don't need to do anything about what happened with the Judge Duncan event. He's just so bad that that was sui generis and acceptable because it was him. And we see now these other judges are

fine. So we're just going to move forward. And I think that allowing Stanford to move forward from this too easily and too quickly misses the problem, the cultural problem here. I thought the judge's suggestion about the chief judges of every circuit or Justice Roberts or heck, eight other folks that in addition to Justice Roberts who could put together a joint statement is a brilliant idea. Because what such a statement would do is, number one, present a firm and united front that this is outside the bounds of what we expect in the legal profession,

which I think is an important statement all by itself. And number two, sometimes these guys in the big law schools, sometimes these administrators need a little top cover and it would provide them with the enormous amount of top cover that essentially says, look, we're preparing you for a profession and the people who are the sort of the ultimate arbiters of your professional success, certainly in the litigation world,

are saying this kind of conduct is totally out of bounds. And it gives them some top cover and it's sad that some of them need it. They should have the courage to confront this without that kind of top cover. But I think anything that gives people top cover to be able to say, look, this is well out of bounds. I thought that was a fantastic suggestion.

It's a classic bad speech greeted by better speech kind of response. So I thought that was outstanding. And then the other thing that I think that maybe we didn't even talk about enough, and this is something that the judge brought up, just imagine if the roles were reversed here. I mean, let's just imagine if you had taken a poster.

David, we don't need to. Remember at Yale, a Federalist Society student sent an email inviting people to a party at his house, referring to his house as a trap house. That email invitation was considered so offensive that he was brought in to meet with the dean of students and the DEI dean. And they suggested to him that without an apology, this could affect his ability to become a member of the bar because of the character and fitness section. That was an email written by a person of color at the law school with a word that,

and I've mentioned this before, Chapo Trap House is the name of one of the most popular progressive podcasts in the country hosted by three white guys. And so we know what would have happened. Yeah. Oh, we do know what would happen. And it would be orders of magnitude even worse

than what happened to that poor Yale student because you would have had pictures. Let's say you did the pictures of outlaw, the LGBT group or whatever, for shame. That would be called eliminationist rhetoric. That would be called an incitement to violence by identifying them. All of that would be called an incitement to violence by identifying them. All of that would be, and it would be national news, uh, without any question, no doubt about it. And, and look,

I mean, listeners know I'm, I'm not a person who is, uh, somebody who excuses similar kind of conduct on the ride at all, but my gosh, I've not seen that kind of conduct from a FedSoc anywhere in the United States, maybe ever, ever. I've never heard of anything like that. And I think it's high time that this unbelievable rhetoric against the Federalist Society, that people, it sounds so trite to chill out, but this unbelievable rhetoric against the Federalist Society, that it's just so out of proportion to what the Federalist Society actually is, it blows my mind. So a few things. One, I do want to be clear that while I agree with you that if students on the right created a poster

with people's pictures from outlaw and said, you should be ashamed, that it would be seen as threatening. I want to be clear that I don't think this poster with the Federalist Society members was threatening. I think that's allowed. I don't know Stanford's specific rules, but I mean from sort of a First Amendment perspective, letter of law perspective, it was not a true threat. However, the fact that Federalist Society

members were sent an email, and we talked about this in the pod, that said if they want to review the various threats that they're getting, including death threats, there's a police officer who can go through those and determine which ones are actually, you know, should concern them the most. I'm at a loss for words that a school sent that to students as just a casual, frankly, an overly casual email and suggested if they're having any problems to go visit the very dean who said that they should be ashamed to have invited this person to their campus because of the harm they've caused their fellow students, the very ones sending them the threats. That all being said, David, as I mentioned, I think I do have a problem holding the students responsible

here. It is different than at Yale. The students acted on their own. I think the speech code was clear before the Yale event. They since, of course, changed it to make it even more clear after the event. But those students could read the speech code. They disrupted an event. They could have been held responsible. Here, I believe there is enough to say that these Stanford students were implicitly, if not explicitly told that disrupting this event would not be a violation of Stanford speech code by the people set to enforce that speech code. And therefore, I don't think they should be disciplined. I wish that were different. But just, you know, being their advocates for a second, I don't even know that it's a close call for me.

Well, this is a situation where you really wish Stanford was subject to FOIA requests. Yeah, yeah. Because I would be very interested to see if there was correspondence before this event. The fact that the administrator is there with a prepared speech. And that she emailed the students ahead of time

so she knew something, right? Why was she emailing students ahead of time if she hadn't already heard from those students of what their plans were if Stanford is a competent and conscientious employer they're going to crack open her work email and figure this out because if that is the case then I'm I'm completely in your in your I'm in your camp Sarah because because then the students have been given sort of an administrative permission structure and the person who should be held accountable is the administrator. Again, we don't know. There's a lot of smoke here. And I will tell you from a long, long, long experience at dealing with these university speech issues, when you see a lot of smoke,

let me put it this way. I would be surprised if there were not communication between the administrator and, or one or more administrators and some of these student activists. That would actually surprise me based on a lot of experience. You know how you develop pattern recognition, Sarah? My pattern recognition is going off. Well, in her initial email, that pre-event email, used nearly identical language

to some of the language that the students had used as well about literally denying, his opinions and work, literally denying the humanity of and enlisting the various students that he had denied the humanity of it. The language was so similar. Like it looks cut and paste at some points.

So it's like, it's smoke that has orange embers around it. Yes. And the fact that her boss was in the room. Again, this was, remember what I asked David, why would the DEI dean be the one to deal with this at all? This is a dean of students issue at that point. The dean, the acting dean of students was in the room, didn't do anything.

And again, they'd assured the students that they would ahead of time. And then the DEI dean's the one who takes the podium. And look, there's been some discussion of whether it was inappropriate of her to take the podium in the first place. And David, I'm very curious for your thoughts on this. So the event is being disrupted by the students. Judge Duncan is at the podium. He's saying, is there an administrator here? Then the administrator walks up. And as you know, he was saying there was some confusion around that. He's saying, is there an administrator here? Then the administrator walks up. And as, you know, he was saying there was some confusion around that. He thought that she could just say,

you know, this is your first warning. Otherwise, we're going to start removing people. And instead, she's like, I want to speak to you and the students. Did she disrupt the event, David? Was she part of the heckling, if you will, because she took the podium from him? Or did he give her the podium and therefore she was not disrupting the event with her speech? So I think initially,

I would take it as she was not disrupting because an administrator who is going to assert control over the event should take the podium for a moment, right? The instant she cracked open the prepared remarks, at that point I realized, no, this is not an administrator trying to gain control. This is an administrator interrupting the event

for her own editorial comment. And so I don't think there's anything inherently wrong with an administrator getting up, seizing the podium for a moment and saying, look, this is utterly out of bounds. This is your warning. If you are intended to heckle, you'll face discipline. If you want to leave, you may leave now and then just end it like that. But to take over the podium with the prepared marks to condemn your speaker.

They were about seven minutes long. Maybe a little longer. It's hard to, I didn't actually count from when she actually starts speaking versus that beginning sort of melee. This is so far out of bounds. And Sarah, can we put a pin in having, you know, having the judge come back and talk to us about his topic,

which I'm fascinated by. I know, they were going to get to hear the very thing that we've been grappling with, right? How does a lower court possibly take Bruin and do anything with it? I mean, I just wanted to extend to a three-hour podcast just to hear that. But can we put a pin in another topic?

I want to explore at some point, and maybe we can think of a good guest to talk about this also, but I think we could have a great conversation about it. This whole rhetoric of accusing people of dehumanizing when there's disagreement. And it's a rhetorical device I see almost exclusively on the left

that is essentially a way of trying to rule speech utterly out of bounds, denying the humanity of or dehumanizing. And it'd be interesting to just sort of explore that as a concept. What is meant by that? Where does that come from? What is the response to that? Because it's all over the place in these spaces. You know, I was reflecting on, I think there's a sense that we're not going to see a bunch of statements from law firms demanding Stanford teach their future law associates better. There's not going to be some letter from Covington or Kravath that says, we don't believe we can hire Stanford students if this is how they think they can speak to federal judges.

And part of the reason for that is because of the rest of the conversation we were having with David Latt, which is that conservatives are such a minority in these law firms and feel like they're walking on such thin ice to begin with. Who's going to raise even the idea for that letter? But for someone who's been sort of following this

and is sort of outraged by it, they're going to be more likely on the right. And then at their law firm, of all the political capital that they're going to use to even raise this idea, like what's the point? It's not going to happen. Which again goes to the, if it happened

on the other side, those letters would have already been out. Not because I think the law firms actually are so biased against conservatives. I think they are for other reasons. But it's actually because no one's even thinking about it. Because there's no ideological diversity to begin with. Right. I mean, you know, I wrote something some time ago where I talked about, we now have, there's this phrase, the Overton window, which is the Overton window comes from a Michigan conservative intellectual who defined it essentially, and his name's Overton, defined it essentially, and his name's Overton, defined it essentially as the realm of acceptable discourse.

And so we don't have one Overton window right now. We have two Overton windows. There is a realm of acceptable discourse on the right and a realm of acceptable discourse on the left. And here's the sad thing, Sarah, in a lot of these big law firms, Judge Duncan is outside their Overton window. Right. Despite being a sitting judge that's hearing their cases. Yeah. Even though he's a sitting judge hearing their cases, he's outside their Overton window.

So you have to almost like crack open the heads of the folks there, metaphorically, of course, and have them opened up enough to realize that they have not, in fact, figured out the only reasonable take on, you name the legal doctrine, and that, in fact, there are reasonable, intellectually rigorous, morally thought, you know, morally considered viewpoints different from those in their Overton window. And I'm afraid, you know, morally considered viewpoints different from those in their Overton window. And I'm afraid, you know, that is, you know, that is a reality we're dealing with where we have these two Overton windows. You just have to have almost a paradigm shift on a part of these law firms to think about some of the judges they argue in front of. Yeah. You know, the numbers on Jones

Day, I thought were particularly fascinating. Jones Day really is considered the conservative law firm. They represented Donald Trump in some cases, 75% give to Democrats. I know, that's hilarious. And that's the Joe Manchin. Yeah. Yeah. Yeah. Yeah. Yeah. And to put it into context, if you had a situation where it was a 75-25 breakdown on the law faculty, and it would be by far the most, quote, conservative law school in America, outside of say, you know, that they've quite specifically designed from the ground up, maybe religious conservative law schools, but amongst mainstream law schools, if you had a 75-25,

can you think of a major law school that has a 75-25 breakdown on a faculty? No, I mean, Harvard is well known as probably having the most number of conservative faculty. And the number is depending on who you want to count, four, five, maybe five. And one of them is like a franco a devotee of like the franco regime in spain so he might like count for more than one maybe but and this will we should have a separate uh conversation about law school hiring diversity because i've seen online

you know conservatives want a quota for conservative law professor hiring. No, no, no, no, no. What conservatives want is to end discrimination against conservative law firm hiring because, sorry, law school hiring. There's a whole process by which one gets hired as a law school faculty member, not an adjunct, but an actual tenure track position.

You know, there's's literally a website and publishing and you go through... It's more like sorority rush in a lot of ways. And I assure you that having the Trump administration on your resume, you wouldn't even get to the round of interviews. That's not a quota system. That's the other way. So, and if we all agree that that would never happen, like maybe that's the problem.

And that's why, I mean, then it just all compounds on itself, right? That's how you get law students who think that the Overton window doesn't include being pro-life. Just that is dehumanizing, as you said, David. Yeah. Yeah. And then those law students become firm associates. The whole thing is one big ecosystem that's become broken, for lack of a better term. Absolutely. Absolutely. And I can't remember, did we talk about the FIRE DEI model statute?

You know what? We actually didn't get to it yet. Man, this is a great, we need to get to that because that is one of those instruments of discrimination in not just legal hiring, but academic hiring more broadly is sort of one of the things you have to do

in many institutions is put together a DEI statement. And there's some research that your failure to answer according to sort of the ideologically approved perspective on DEI is knocking a bunch of qualified applicants out of consideration just right instantaneously before you get to anything else. So we need to have that conversation. quite instantaneously before you get to anything else. So we need to have that conversation. All right. Well, David, this has been a really fun special episode of Advisory Opinions, clocking in at just over two hours on Stanford's very bad, no good Thursday. Bye.