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The Life and Career of Professor Harold Hongju Koh, Yale Law School, Dean-Designate and Law Stars Hall of Fame
by Jesse Londin
From the beginning, Professor Koh's record appeared destined to be etched in the annals of legal stardom. And now, chalk up a few more wins for the former Assistant Secretary of State, diplomat, clerk to one of history's most notable Supreme Court justices, litigator, Yale law professor and international legal scholar, who, at 48, has been on a huge roll since, well, all his life.
Last month, the Library of Congress released Professor Koh's ground-breaking oral history videotapes of Justice Harry A. Blackmun, for whom our Law Star clerked in 1981. This unique multi-media record of interviews Professor Koh conducted with Justice Blackman collect the thoughts and reflections of the remarkable Justice who wrote the majority opinion in the ever-topical and increasingly debated Roe v. Wade, among other major cases.
And in July 2004, perhaps his crowning achievement: Professor Koh will take the helm as Dean of the top-ranked law school in the country.
No surprise. Professor Koh has been a favorite in the classrooms of Yale Law School since 1985, where he is now the Gerard C. and Bernice Latrobe Smith Professor of International Law. And if the name Koh sounds extraordinarily familiar in the hallowed halls, it may be because both of Professor Koh's parents as well as his sister also taught at Yale Law School.
Professor Koh attended Harvard College and Oxford, earning his J.D. not at Yale, but at Harvard. Go figure. He clerked for Judge Malcolm Wilkey of the D.C. Circuit, and, of course Justice Harry Blackmun of the U.S. Supreme Court.
He picked up experience in private practice at Covington and Burling in Washington, D.C., and got his first insider's view of the workings of the executive branch in the Office of Legal Counsel at the U.S. Department of Justice
A recognized expert in international law and human rights, our Law Star served in the Clinton Administration as the Assistant Secretary of State for Democracy, Human Rights and Labor from 1998 to 2001.
We haven't read them all, but according to Yale, Professor Koh has written more than 80 articles. Some of the books he wrote or co-edited include, Different But Equal: The Human Rights of Persons with Intellectual Disabilities, Transnational Business Problems, Deliberative Democracy and Human Rights, Transnational Legal Problems and The National Security Constitution.
He has collected an auditorium full of fellowships, honorary doctorates, memberships, editorships, law school medals and awards, and has been called "one of the 100 most influential Asian-Americans of the 1990s."
Professor Koh and his wife, Mary-Christy Fisher, who is also a lawyer, are the parents of two.
From his home turf in New Haven, Professor Koh accepted his Law Star and shared some of his inimitable insights, including a few thoughts on one of the worldly topics about which he does not typically pontificate: himself. One interesting question Professor Koh did not address was why the name of the great institution our Law Star will now shepherd through the early 21st century has not changed to "Koh Law School."
Q: Professor Koh, first, our congratulations and an automatic Law Star go to you on your appointment as the next Dean of Yale Law School, effective this summer. Your record of accomplishments has already ensured your place in the Law Star Hall of Fame, and now you top it off by taking on what is perhaps the most prestigious academic post in legal education. Of course, given your popularity on campus, the announcement came as no surprise. And teaching at Yale Law School seems to be a Koh family tradition - your father and sister have also taught law at Yale, is that correct?
A: My father, the late Dr. Kwang Lim Koh, was Minister from the Republic of Korea to the United States in the first democratic government of South Korea. My mother, Dr. Hesung Chun Koh, is a sociologist. When my father's government was overthrown in 1961, he went to see the Deputy National Security Adviser Walt W. Rostow, with whom he had had diplomatic dealings. Rostow called his brother Eugene Rostow, then Dean of Yale Law School, who invited my parents to come to Yale to teach the first course on East Asian Law & Society offered in this country. We have been here ever since. My sister, Jean Koh Peters, is a Clinical Professor of Law here, teaching children and the law, immigration law, and aid to parents and children. Her mother-in-law, Ellen Peters (later Chief Justice of Connecticut) was the first tenured woman professor at Yale Law School, which gives our family extraordinarily close ties to the institution. Yale Law School literally feels like home to me.
Q: Did you always want to be the Dean? And to what extent will serving as Dean curtail your classroom activities?
A: That's a bit like asking whether I always "wanted to be Pope." I thought it would be incredible, but there is only a certain time of your life when it makes sense, and then of course, you have to be asked. At Yale, the Dean is the symbol of the institution, and I have tremendously admired the Deans I had known, from Gene Rostow, to Judge Lou Pollak of the U.S. District Court for the Eastern District of Pennsylvania, to Abe Goldstein, to Harry Wellington, to Guido Calabresi of the Second Circuit, to my friend and immediate predecessor, Tony Kronman. Only 15 people have had the privilege of serving in the school's history. That's pretty daunting.
I love to teach, and I would not be Dean if I had to stop teaching. I expect to teach Procedure every fall (as I have done since 1985) and a course in international law (starting with International Human Rights) every spring. I think it is so important that our students think of their Dean as one of their teachers, not just the guy who fixes the plumbing.
Q: According to the U.S. News & World Report 2004 rankings of law schools, of the 185 American Bar Association-accredited law schools, Yale is number one. Harvard, the law school you attended, we notice, is ranked at number three, with Stanford coming in second. Is Yale the best law school in the nation? What makes Yale so excellent? And what is your view of these types of rankings in general?
A: I don't know that we need these rankings. They flatten wonderful and complex institutions into digits, and often based on misleading information, which may end up having too great an influence on applicant choices.
At the same time, if they are going to insist on having such rankings, it is nice to have your intuitions confirmed. Yale is certainly the most special law school in the country. What makes Yale special is that it is a unique community of commitment to world-class scholarship, professional excellence, and service for the greater good. Yale Law School has always been, and under my Deanship must always be, a place that values humanity and excellence, theory and practice, both talent and passion.
Q: As incoming Dean, can you tell us a bit about your vision for the future of Yale Law School? Do you plan to implement any major changes or initiatives, or is your philosophy more along the lines of, "if it ain't broke, don't fix it?"
A: I believe fervently that "if it ain't broke, don't fix it." But making sure that the greatest American law school of the 20th century becomes an even greater law school in the 21st century does not mean standing still. It means staying true to our values and traditions, but meeting four challenges:
First, globalization. At this point, a great many law schools have waved the "globalization" banner, but no law school has really addressed this challenge in a compelling, substantive way. What does it mean to have a truly global curriculum, faculty, student body and programs in the 21st Century? American law schools, and ours in particular, must seriously address these questions. I see Yale Law School as being in a position analogous to the one law schools faced in the mid-19th century: how much should we shift from thinking of ourselves as primarily devoted to the study and teaching of national or local law, to considering ourselves part of a school that is explicitly global in focus?
Second, speaking to the profession: Our graduates undeniably rank among the leaders of the academic, judicial, and private practice professions, but Yale remains known primarily as a school of theory. Are we adequately training our students to meet the modern demands of global private practice? Do we adequately train our students in the professional responsibilities and regulatory frameworks of a transnational legal profession? How should we bring the academic and clinical sides of our faculty closer together to do so?
Third, calling our students to public service. Yale Law School is widely known both as a school that has uniquely served the public interest and that has created lawyers who have most shaped the public interest. But how do we ensure that we do not end up training the most privileged lawyers to serve the most privileged clientele? Don't we, the most privileged in our educational fortunes, have some duty to serve the least privileged? And how can we ensure that each of our students devote some significant life energy toward serving some conception of the public interest as he or she sees it?
Fourth, renewal: making sure the YLS faculty of ten years from now is every bit as good as the one that we currently have. That means not just making the faculty younger, but also more diverse in all ways —gender, race, methodology, in the blend of theoretical/practical—and addressing the personal needs characteristic of our age: two-career families, mature faculty, and so on. In the last two decades, we have grown from being a relatively small institution to a larger and more complicated one, and we will need to develop all of these resources for our grasp to continue to meet our reach.
Q: Legal education has drawn criticism for being too academic and not practical enough. Some critics suggest doing away with the third year of law school altogether and sending grads out to learn law practice from hands-on experience. To what extent do law students spend too many hours reading appellate decisions and learning to argue and "think like lawyers" without learning how to actually practice law and deliver quality legal services?
A: One of my late father's favorite expressions was "Theory without practice is as lifeless as practice without theory is thoughtless." I am a strong proponent of clinical education and summer practice as ways of exposing young law students to the real world. That having been said, I think it would be unwise to dispense with the third year of law school. Law school is a rare time to reflect, research, write, and to think about what is right, not just what is right for your client.
Q: As an educator, do you have an opinion about online law education, for example, such as that provided by Concord Law School, which awards JDs and conducts classes entirely on the Internet? Does this type of offering degrade the profession, or do you approve of using the net and mobile communications to open new outlets of legal education to folks who would otherwise lack means or opportunity to study law?
A: I have participated in some enjoyable distance learning exercises. I find them a useful complement, but not a substitute for live education. I don't think it degrades the profession, and when people have no other kinds of educational opportunities, I am delighted that distance learning options may be able to give them new outlets. But there is no substitute for a teacher and a student sitting together over the course of a semester and having a genuinely human interaction, face to face, in real time. I don't think law schools should be trying to find ways to eliminate the real thing.
Q: The diverse, ambitious and ever-growing Asian-American community continues to make great strides across the country. How does the appointment of a Korean-American in the top post at Yale Law signal a new era of inclusion and opportunity that may otherwise currently be lacking in legal education and academia?
A: Times have really changed. When I was a first year law student in the late 70s, there were only a handful of Asian Americans in my class, and even fewer Korean Americans (at Harvard Law School, basically me and my sister Jean!). Their numbers were matched by a tiny number of African-Americans, Latinos, South Asians, and openly gay and lesbian students. The law school classes of today are markedly more diverse, though not nearly diverse enough. I am deeply moved by the thought that the greatest law school in America has chosen to entrust its future to a minority Dean. Surely my task is to be worthy of that honor, and to press for even more inclusion, not simply business as usual.
Q: The legal world, educators and historians received a great gift this month in the form of the release by the Library of Congress of your oral history videotapes of Justice Harry Blackmun. Congratulations! Of course, most Supreme Court justices are notoriously media adverse and camera-shy, to say the least. Why did Justice Blackmun choose to talk with you as his former clerk, on-camera, about the Court and his 24-year term, including Roe v. Wade? Is there any downside to interviewing justices and making public a behind-the-scenes view of the Court, rather than letting the opinions speak for themselves? How would you summarize the lasting impact of the work of this exceptional judicial mind on American jurisprudence?
A: I clerked for Justice Blackmun in 1981-82 and we remained close thereafter. He was often asked to authorize an official biography. In the early 90s, we spoke about that prospect, and someone suggested that I consider writing his official biography, as some other law clerks have done for their former bosses. I felt awkward agreeing, since law clerks are caught in an impossible dilemma: if they praise their boss in a biography, they sound partial; if they criticize him, they seem ungrateful. I proposed instead that we do an oral history, which could provide resources for later biographers. The big decision was to do videotapes, as the Supreme Court Historical Society and the Federal Judicial Center had previously done only audiotapes. In 1994, when the Justice retired, he had to move chambers to another building. In order to get his old office on videotape, we started filming just days after he retired. We proceeded to record 38 hours of videotape, capturing his entire life and career on tape, for posterity. Justice Blackmun then made a careful decision to release all of his papers five years after his death, which turned out to be about ten years after he retired.
I will let viewers judge whether the opinions are enriched by having the human face of Justice Blackmun put them into personal and historical context. But my own view is that these tapes-and Justice Blackmun's massive and meticulously maintained collection of papers over his 34 years on the federal bench-will be an authoritative archive of the work of the Supreme Court in the last quarter of the twentieth century. What is the lasting impact of his work? I have written about his judicial career in the Yale Law Journal in 1994. But in a nutshell, I think he was the conscience of our Supreme Court in the late 20th century. He spoke for the outsider. He gave real meaning to the idea of "justice with a human face," and that is what the oral history shows.
Q: As Assistant Secretary of State in 2000, you traveled with Madeleine Albright to North Korea to meet with Kim Jong-Il. You found the dictator of the country President Bush has since deemed part of the Axis of Evil, "strange" but "not crazy." What must happen in the international arena for the dream of a unified Korea to become reality?
A: I think we need to create a new, enforceable Agreed Framework: negotiating directly in a multilateral setting with the North Koreans (a setting that should include South Korea and Japan) without rewarding North Korea's bad behavior. The United States should suggest a standstill on nuclear building and a phaseout of existing North Korean "loose nukes" in exchange for a tougher inspections regime, even while putting more incentives on the table for the North in the form of a U.S. nonaggression pact, sanctions phasedown, food aid, resumed construction of light-water reactors, foreign aid and investment, cultural exchange, and the long-term possibility of political federation.
When I said Kim Jong-Il is "strange but not crazy," I meant that he is a horrible human rights violator, but plainly rational enough to see his own self-interest. We should play on his desire to participate in the international system by engaging him, with the goal of bringing more openness to North Korea, and more human rights and humanitarian assistance to his people. Only after North Korea is engaged in a diplomatic process can reunification talks with the South become even remotely a possibility.
Q: At Covington and Burling, and then early on at Yale, you worked on international business and trade matters. What made you shift gears away from business and begin taking on rights cases involving countries such as Haiti, Bosnia and others? And as this administration seeks to do things like repeal the Alien Tort Claims Act to curtail litigation in the U.S. that may jeopardize foreign policy interests, why do you think American courts may be the correct venue for some disputes involving grievances against foreign governments?
A: Much of my focus early in my career was on international commercial litigation. That work involved Foreign Sovereign Immunities, the Act of State Doctrine, and similar issues. After a while, I began to wonder, why should foreign states and officials be sued in a U.S. court for contracts violations, but not genocide? Increasingly, U.S. courts are part of a global judicial system. The U.S. courts are not always the correct venue for disputes involving grievances with foreign states, but neither are they inappropriate for such cases. American courts necessarily heard many international cases at the beginning of the republic, when we were a small country trying to win favor with the international community. As time moved on, and the U.S. became a superpower, we suffered a kind of amnesia: we forgot our transnational heritage. What is happening now, in the new age of globalization, is a revival of an old tradition, not an entirely new phenomenon.
Q: Working as both an international lawyer and a federal official, you have come in contact with just about every human rights issue in the world, including those involving women, racial, ethnic, political and religious minority groups, children, poor people, workers and others. And you have said, "I think discrimination against gays and lesbians is the issue of our time." Why is this topic suddenly so critical a test of our values and commitment to human rights? And what is the status of the suit filed last October by you and dozens of law professors against the Department of Defense challenging the military's "don't ask, don't tell" policy?
A: I really cannot see the rationale of punishing people for whom they choose to love. These are private and intimate choices, which, when made by consenting adults, should be respected. Perhaps the greatest right is the right to be left alone. In the case filed by my colleagues and me, Yale Law School had, in the late 70s, adopted a policy saying that we would not help employers who discriminate based on race, religion, gender, or sexual orientation to recruit at the Law School. We did not say they could not recruit, we just said we would not help them to do so. Citing a law called the Solomon Amendment, the Department of Defense said we were required to give them access to our placement facilities to recruit, even though the Department intended to discriminate among our students in hiring. If we did not give them that access, the Department said, it would cut off more than $300 million in federal funding to Yale University.
Not only is this heavy-handed, it seems to me flatly illegal. First of all, we have granted the Department access to recruit, we have refused only to actively assist them in doing so, because to assist them would be to support the Department's discrimination. In my view, the government has unlawfully invaded our academic freedom and sought to enlist us in the delivery of its discriminatory message. It would be like the Defense Department forcing Yale Law School in the 1960s to put up an Employment Bulletin Board in the main hallway saying: "Employment Opportunities here, but Blacks, Women, Asians, Jews and Hispanics Need Not Apply."
In the end, I think we had no choice but to file suit. How can I preach nondiscrimination in the classroom, then support discrimination against my own students by actions that are forced on me by the Defense Department? Yale Law School has a proud tradition of fighting discrimination, not aiding and abetting it. More than 40 Yale professors, including myself, have filed suit in our individual capacities in the the District of Connecticut federal court. Neither the Law School nor the University is a party. The Defense Department has moved to dismiss our suit, and we have opposed. The motion to dismiss will be heard in a few weeks by Judge Hall.
Q: You have said that after 9/11, as a nation "we made a lot of the wrong choices." Based on your valuable experience as Assistant Secretary of State for Democracy during a different but also challenging time, how, generally, would you advise this administration — or the next one - in terms of the best ways to leverage U.S. global power and goodwill to protect civil liberties and security at home while combating global terror?
A: Our country can fight terrorism effectively without violating civil liberties at home or abroad. After 9/11, many of our government's responses were needlessly overbroad: massive detention of immigrants, labeling American citizens as enemy combatants who are given no due process, moving to create military commissions rather than trusting our own courts, the intemperate creation of an offshore prison camp on Guantanamo. Many of these decisions are now being challenged in our courts. We lead internationally not just because of our power, but because of our perceived commitment to principle, in particular, human rights principle. As a nation conceived in liberty and dedicated to rights, we have a strong impulse to lead with power coupled with principle. I think our job as patriotic Americans is to press the country we love to follow the better angels of our national nature.
Q: Honorees in the Law Stars Hall of Fame represent the best of the legal profession. But many folks who view lawyers as greedy and self-serving are not so enamored of what some of us do for a living. What advice do you have for students trying not to be lured solely by money who seek professional and personal fulfillment after law school? And based on your great range of work experience as a private lawyer, an academic and a public servant, which role is hardest? Most satisfying?
A: What I would say to students is: work for the people who need you the most. If you feel privileged, as you should, work for the least privileged.
As for my various roles, all have been hard in their own way, but all have been tremendously satisfying. Being an academic is a great life: I have been able to be a teacher, a scholar, an administrator, a human rights advocate, a litigator — all without ever changing jobs. Not a day passes that I don't feel excited that I chose law as a career, because it provides for so many forms of self-expression, and so many avenues of service over the course of a lifetime. And I like to feel like my life is just beginning!
Q: Finally, in addition to people like Justice Blackmun, and, of course, your admirable father who was an international law professor, ambassador, and the first Korean to have studied law in America, who are your other gurus and Law Stars?
A: My greatest models were my parents, my mom Dr. Hesung Chun Koh and my late Dad, Dr. Kwang Lim Koh. They were my first and best teachers. My wife of two decades, Mary-Christy Fisher, a legal services attorney since 1985, is my dearest friend and a continuing inspiration.
In addition to Justice Blackmun, Judge Malcolm Wilkey, late of the DC Circuit (and former U.S. Ambassador to Uruguay) was my first boss and a priceless friend and mentor. Madeleine Albright was a friend and inspiration during my time at the State Department.
I am a very lucky person to have had more friends and loved ones than I deserve, and so many lawyers and colleagues who have taught me unforgettable life lessons.
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