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Yale Backtracking: Calls Alito Project "Informal"



As Wendy Long notes over on NRO, Yale Law School today, without explanation, changed the text of its announcement and write-up of the report issued Monday by the school's so-called Alito Project (for more, see my tongue-in-cheek "brickbat" on the report here). Today, the Yale Law School homepage links to the report with the following header: "Informal Faculty-Student Group Reviews Opinions of Judge Alito"; on Monday, the same page linked in with a specific reference to "The Alito Project at Yale Law School."

Today's abridged and backdated announcement on the Yale web page reads:

December 19, 2005
Informal Faculty-Student Group Reviews Opinions of Judge Alito

New Haven, CT -- Over the last several weeks, an informal group of Yale Law School students and faculty calling themselves "The Alito Project," reviewed all 415 judicial opinions that Judge Samuel Alito wrote while serving as a Circuit Judge. The report was delivered to all one hundred Senators on Monday, just as many of them are preparing for Judge Alito's nomination hearings scheduled to start on January 9, 2006.

"Our goal was to help Senators and citizens make an informed decision about this nominee," said Professor Owen Fiss, one of the project's participants.

Yale Law School's Office of Public Affairs has received numerous requests for this report, which is not an official publication of the Yale Law School. The group that prepared the report has given an electronic version of the report to the Yale Law School library, where --like many other writings of Yale Law faculty and students, which express a broad range of opinions on a broad range of issues -- the report may be accessed via this link.

(emphasis added)

Wendy's NRO post linked to a cached version of the earlier Monday release on Yale's website, which has since been scrubbed. I had earlier copied the text of the original version, which I'll reproduce here, for posterity's sake:

December 19, 2005

"The Alito Project at Yale Law School" Releases Report

New Haven, CT -- Over the last several weeks, a group of students and faculty, known as "The Alito Project at Yale Law School," reviewed all 415 judicial opinions that Judge Samuel Alito wrote while serving as a Circuit Judge. The report was delivered to all one hundred Senators on Monday, just as many of them are preparing for Judge Alito's nomination hearings scheduled to start on January 9, 2006.

"Our goal was to help Senators and citizens make an informed decision about this nominee," said Professor Owen Fiss, one of the project's participants.

The report made several specific conclusions about Judge Alito's opinions. In civil rights cases, the report concluded that "Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants." And in the workers' rights context, the report discovered that "[t]he employee or union would have prevailed in only five of the 35 employment and labor opinions he wrote." In a number of settings, he tends to deny individuals access to courts.

The report also concluded that at points Judge Alito's opinions appear inconsistent with the prevailing legal thought of other courts. "Judge Alito has held Congress to a more stringent standard than that of the Supreme Court or other appeals courts hearing challenges to the same statutes," the report states.

"A number of Judge Alito's decisions are difficult to reconcile with the general direction of American law," said Brian Deese, a student who worked on the report, "except when viewed in light of the broad philosophical views Judge Alito expressed in his job application of November 1985."

Contacts:
Professor Owen Fiss 203-432-4963
Professor Robert Burt 203-393-3881
Brian Deese (student) 203-910-4391

Related Documents:
The Report--"The Alito Opinions"

Of course, Yale's current, whitewashed version is much better: no way would many Yale faculty have signed on to the "Alito Opinions" report -- the report's signatories lack not only the school's conservatives (e.g., George Priest, Bob Ellickson, Alan Schwartz, Roberta Romano, Jon Macey) but also moderates like Peter Schuck and Tony Kronman or even thoughtful leftists like Jack Balkin, Bill Eskridge, and Ian Ayers. Notably absent are the school's most prominent young moderate-left constitutional theorists, Akhil Amar and Jed Rubenfeld.

As fellow Yale (undergrad) alum Walter Olson noted yesterday on the Committee for Justice blog: "In all fairness to YLS, it should be pointed out that despite the involvement of some prominent liberal faculty, notably Bruce Ackerman and Owen Fiss, the Project does not in any way speak for the institution itself, any more than the Federalist Society-sponsored Harvard Journal of Law and Public Policy speaks for Harvard Law as an institution." The school's revised announcement of its report thankfully, if belatedly, makes that point clear.

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.