Why I don’t donate to my alma mater, Yale Law School

By David Bernstein

I graduated from Yale Law School in 1991, and the 25th reunion was held recently. As you might expect, I was solicited to contribute to the law school.

I was ready to give at least a modest gift, but then I started thinking about how unlike literally every other “elite” law school, Yale Law School has never in my lifetime hired a conservative public law (constitutional law, administrative law and so forth) scholar. (Robert Bork was hired as an antitrust scholar, and only wrote about constitutional law later.) This was true even during the Dean Guido Calabresi era, when the law school hired several free-market-oriented law and economics private law scholars.

I then recalled relatively recent conversations I had with two current or recent members of the Yale Law School faculty, who told me that there are members of that faculty who make it their business to block any non-“progressive” appointments in constitutional law and related fields. I also recalled an email conversation I had a few years ago with a very prominent member of the law school faculty. He vigorously denied that there was any discrimination against right-of-center candidates at the law school. That same faculty member, however, told me via email (and yes, this is a direct quote) that “I simply don’t know what right of center means if it does not include [Yale Law School professors Akhil] Amar or [Stephen] Carter.”

While Amar and Carter both have some heterodox views, Amar is clearly a liberal (and describes himself as a “liberal originalist”). I’m not sure what Carter considers himself now, but early in his career, when Yale hired him, he was a “self-described liberal.” (Moreover, Carter was initially hired as an intellectual property scholar, not as a public law scholar.) So it occurred to me that not only is there likely a problem at Yale, but that some members of the faculty are necessarily blind to the problem, because they think that the presence of relatively moderate liberals like Amar and Carter on the faculty — each hired around 30 years ago, by the way — evinces the faculty’s ideological open-mindedness.

So, I think the evidence suggests that Yale discriminates in its hiring in public law against conservative or libertarian scholars. In other words, against people like me. Not that I personally expect a job at Yale, but I can’t see why I should support, even via a nominal donation, an institution that wouldn’t hire someone like me who was otherwise qualified for the job.

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