June 11, 2009
Black, Litvak from Texas to Northwestern
Bernard Black, a leading senior figure in corporate law and finance at the University of Texas School of Law, and Kate Litvak, also a specialist in corporate law and finance who is Assistant Professor of Law at Texas, have both accepted senior offers with tenure from Northwestern University. Black will start in fall 2010, and hold a joint appointment with Northwestern's Law School and the Kellogg School of Business; Litvak will start at Northwestern's Law School this fall, and will simultaneously pursue a PhD in finance at Kellogg. Before moving to Texas, Black held tenured posts at Stanford Law School and Columbia Law School.
As part of the appointments committee that enthusiastically recruited Black and Litvak to Texas about five years ago, I know Bernie and Kate well and think this is an outstanding appointment for Northwestern. Northwestern strikes back, as it were!
Martha Minow Named Dean of Harvard Law School
Even if the US News Ranking Formula Makes No Sense,
a news magazine, with investigative reporters on its staff, ought to do some fact-checking!
UPDATE: Salil Mehra writes:
I realize that you probably meant your post today to convey some degree of hyperbole. But I wanted to point out that, as important as USNews unfortunately is in the law school world, there has been little or no commentary in the law school world on the fact that since they are no longer a newsweekly like Time or Newsweek, or even a news biweekly, but have shifted to be a monthly "lifestyle and rankings" publication, they may not actually have many real reporters left. They should've taken some sort of credibility hit. After all, BusinessWeek ranks business schools, but also covers the business world in depth every week!
This is news to me, and clearly is relevant to evaluating the rankings the magazine produces. It would also explain howlers like the one discussed in the IHE piece linked above.
June 10, 2009
Fried from Berkeley to Harvard
Jesse Fried (corporate law), professor of law at the University of California at Berkeley, hasaccepted a senior offer from Harvard Law School.
June 9, 2009
Thoughts on Anonymity and Pseudonymity in Cyberspace
The latest tempest in the teapot that is the blogosphere was the decision of Ed Whelan, a National Review blogger, to identify a pseudonymous blogger, John Blevins of South Texas College of Law, who had repeatedly attacked Whelan under cover of a pseudonym (the attacks were wholly accurate in my view, though clearly harsh and in a manner that was bound to command, shall we say, Mr. Whelan's attention). Mr. Whelan offered the following two defenses of his decision to identify Professor Blevins; first:
One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks. One such blogger who has been biting at my ankles in recent months is the fellow who calls himself “publius” at the Obsidian Wings blog.
In the course of a typically confused post yesterday, publius embraces the idiotic charge (made by “Anonymous Liberal”) that I’m “essentially a legal hitman” who “pores over [a nominee’s] record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist.” In other of his posts (including two which I discussed here and here), publius demonstrated such a dismal understanding of the legal matters he opined on—including, for example, not understanding what common law is—that it was apparent to me that he had never studied law.
Well, I’m amused to learn that I was wrong about publius’s lack of legal education. I’ve been reliably informed that publius is in fact the pseudonym of law professor John F. Blevins of the South Texas College of Law.
This seems partly a consequentialist rationale (rid the blogosphere of irresponsible bloggers by outing them) and partly based on the relevance of the attacker's identity (a law professor should not be making these kinds of mistake).
Law professor John Blevins (aka publius) and others seem to assume that I owed some sort of obligation to Blevins not to expose his pseudonymous blogging. I find this assumption baffling. A blogger may choose to blog under a pseudonym for any of various self-serving reasons, from the compelling (e.g., genuine concerns about personal safety) to the respectable to the base. But setting aside the extraordinary circumstances in which the reason to use a pseudonym would be compelling, I don’t see why anyone else has any obligation to respect the blogger’s self-serving decision. And I certainly don’t see why someone who has been smeared by the blogger and frequently had his positions and arguments misrepresented should be expected to do so.
Blevins desired to be unaccountable—irresponsible—for the views he set forth in the blogosphere. He wanted to present one face to his family, friends, and colleagues and another to the blogosphere. That’s understandable but hardly deserving of respect. If he wanted to avoid the risk of being associated publicly with his views, he shouldn’t have blogged.
I would have thought this could be put more simply in terms of a norm of fairness: if you want to savage and ridicule, by name, someone's ideas, knowledge, and competence, do so under your own name, so that you are as vulnerable to critical scrutiny as the person you attack. This norm of fairness is certainly defeasible, as I take it Mr. Whelan implies in the remarks quoted above (e.g., when there are issues of personal safety).
Predictably, I suppose, most bloggers, and especially those who had used or currently use pseudonyms, reacted badly to Mr. Whelan's exposure of Professor Blevins's identity, though the quality of the arguments they offered in objection were, as usual for the blogosphere, pretty bad. At the high end were the remarks of Hilary Bok, a philosophy professor at Johns Hopkins who blogs with Professor Blevins under the moniker "Hilzoy" (and whose identity is no secret), though even she fails to address the fairness considerations just noted. But she takes Mr. Whalen's rationale to task, writing (in part):
Minor point first: "unaccountable" does not mean "irresponsible". You act irresponsibly when you do things that a responsible person would not do, whether you do them in propria persona or pseudonymously. You act unaccountably when there is no way to call you to account. Pseudonymous blogging is not necessarily either of these things: a pseudonymous blogger can be completely responsible, and can be held to account since s/he can be criticized, ridiculed, etc. under her pseudonym.
This is, indeed, a minor point: it is true that a user of a stable pseudonym has an investment in preserving his "brand's" credibility, as it were, but because his brand is independent of his actual person, he only puts at risk his cyber-personage, which he can even abandon should the brand become sullied and create a new one: that isn't much accountability. Someone who writes under his own name incurs all the costs, both in cyberspace and in real life, that may attach to his writing, and so is far more accountable (and thus, on average, likely to be more responsible) than anyone who blogs anonymously or under a pseudonym. This, I assume, is obvious, so the "minor" distinction Professor Bok draws is, to my mind, close to irrelevant.
But let us turn to Professor Bok's main point, which is more interesting:
I think there is a presumption that people should be able to decide for themselves what facts about themselves to reveal; and that decent people should respect this, absent some compelling reason not to. Of course, there are compelling reasons: if it turned out that an anonymous blogger on a white supremacist site was in fact the person in charge of the Department of Justice's Civil Rights Division, that would be worth knowing. But absent some such reason, I think that people's own decisions about what to reveal should be respected.
Thus, if I saw Whelan coming out of a DVD rental store with pornography, or found out by chance that he was HIV positive, I would think it wrong to publish those facts unless there was some very compelling reason to do so. Likewise, I would not publish his address and then, when he protested, write that he obviously wanted to avoid responsibility.
There are obvious limits upon the intuitively plausible idea that "people should be able to decide for themselves what facts about themselves to reveal." A person should be entitled to decide what facts to reveal when they make reasonable efforts to keep those facts private, but what happens when someone enters the public realm, for example, by writing on a highly-trafficked blog? Is the presumption always as strong? How does the presumption fare when weighed against the fairness norm mentioned earlier? These are hard questions, and the answers aren't obvious.
Consider a different way of coming at the issue. I have on two or three occasions received harassing and abusive e-mails sent from fake e-mail accounts. The senders do not want to reveal their identity to me: do I have an obligation not to ferrett it our or reveal it if I discover it? That hardly seems plausible. If Professor Blevins attacks Mr. Whelan as an incompetent and ideological hack (which he did, and which Mr. Whelan appears to be, but that's a different matter) on a website with thousands of readers, does the target of that attack have a more stringent obligation to respect the privacy of the attacker's identity than if he'd merely sent an e-mail under a pseudonym with the same content? Whether there is a presumption in favor of an individual's preference not to reveal aspects of his identity depends, surely, on whether he puts those aspects of his identity at issue: thus Mr. Whelan seems correct to say that if a law professor is making claims about the law that are mistaken that is notable and his identity is relevant. Nothing Professor Blevins or Mr. Whelan has done puts at issue other aspects of their identities, such as their health or their sexual preferences. One can still conceal quite a lot without concealing the basic facts about one's real-world identity: name, occupation, perhaps gender, perhaps age, and so on.
Finally, is there not an obligation to avoid misrepresenting oneself to others in ways that affect their interests? How does Mr. Whelan not know that his pseudonymous attacker is not a colleague or a person with whom he has personal or professional dealings of some kind? Should someone be entitled to present a real-world face of professionalism, collegiality or even friendship while using a pseudonym to treat the same person critically or rudely? Perhaps the entitlement to decide what facts to reveal about oneself is limited by norms governing one's interactions with people in other contexts. (This would justify Mr. Whelan in finding out who Professor Blevins is, but probably not in revealing that fact, since I assume their professional or personal paths do not cross.)
Professor Bok continues:
This [the presumption in favor of letting people decide what to conceal about themselves] is especially true when you do not know why someone has decided to keep something private. Whelan seems to acknowledge that there are situations in which someone might have good reasons for writing under a pseudonym:
"But setting aside the extraordinary circumstances in which the reason to use a pseudonym would be compelling, I don’t see why anyone else has any obligation to respect the blogger’s self-serving decision."By outing someone, you are deciding, on that person's behalf, to incur whatever consequences outing that person might have. If you don't know whether or not the 'extraordinary circumstances' Whelan mentions obtain, you ought to err on the side of caution, absent a strong reason for outing the person in question.
Whelan did not know that no such circumstances obtained. On the contrary: publius wrote him an email saying that he blogged under a pseudonym "for a variety of private, family, and professional reasons". Those could easily include reasons that, by any reasonable standard, would justify the use of a pseudonym. But Whelan did not write back asking for further clarification. He just arrogated to himself the right to decide whether or not publius' name would be public, without having any idea at all what the consequences might be, and, apparently, without caring.
Given the self-interested reasons that the anonymous and pseudonymous have for overstating the reasons why they can not reveal their identity, it hardly seems reasonable to suppose that one should always err on the side of 'caution,' especially if fairness or other considerations support exposure. (Professor Blevins himself admits he doesn't really know if his being 'outed' will cause him any harm at all; and Jonathan Adler [Case Western], who used to blog under a pseudonym at the Volokh blog, allegedly because he was untenured, in fact wrote and blogged under his own name at The National Review at the very same time, thus belying the idea that his secrecy about his identity served any meaningful interest--and the professional risk is, in any case, non-existent in the case of law faculty, almost all of whom get tenure if they don't fall asleep for six years [there are a handful of schools, Chicago among them, that conduct actual tenure reviews, but even they tenure most candidates].) Surely it is reasonable to expect some independent evidence supporting the claimed need for secrecy. Cyberspace is a hotbed of vicious misogyny, as is well-known, and female bloggers, especially feminist ones, have prima facie compelling reasons for not revealing their identities. The responsible ones acknowledge the obligations that attach to preserving that secrecy while still speaking in public. But why should one accept at face value a pseudonymous blogger's claimed need for his identity to be a secret in the absence of some supporting indicators (like the misogyny of Cyberspace as in my example)?
In the end, Mr. Whalen decided to apologize to Professor Blevins. This may well have been warranted in this instance, but it is also unfortunate with repect to the larger issue, since it just reinforces a norm in favor of anonymity on the Internet that deserves more critical scrutiny and skepticism. As Professor Blevins himself, commenting on the denouement of this affair, aptly remarks,
The real story here wasn't really about me anyway -- it's about whether the norm of pseudonymity is a good thing. And there's a legitimate debate about that. Personally, I think that pseudonymity is a net benefit, whatever other costs it brings. More voices are better than less -- and pseudonymity (to me) enriches the public sphere by adding voices that could not otherwise be heard. But people can disagree in good faith about these things, as Whelan correctly notes.
This really is the key issue: are "more voices" really "better than less"? And for whom exactly? Is it better for an audience that is already confronted with a cacophany of voices in cyberspace, and which mostly lacks the skills to distinguish truth from falsehood, sense from nonsense, expertise from dilettantism, and so on? More voices may produce more confusion and less understanding, depending on the audience. And doesn't it matter whether the voices we are adding are really voices, with distinct perspectives and new information, rather than the echo chamber of prejudices that is so much of cyberspace? Are more voices better for those who are the objects of unfair or irresponsible attack by those voices? About the only respect in which "more voices" reliably adds value to the world is that everyone likes to be able to express him- or herself, so there is value to those who get to use their voice, but that hardly comes close to settling the question whether the harms involved with "more voices"--especially the anonymous and pseudonymous voices that cause more harm, on average, I will venture than the others--are justified by the value of letting everyone mouth off under a cloak of anonymity or pseudonymity.
As my Dean, Saul Levmore, has noted, the other media of communication--print media, television, radio, and the like--permit far less anonymity and pseudonymity, and so the question arises why should cyberspace be different? We lose lots of voices that might otherwise be heard in The New York Times and The Wall Streeet Journal because those publications rarely turn their opinion pages (even their on-line opinion pages) over to pseudonymous writers. Why is that bad? Why is it better to incur the costs of anonymous/pseudonymous speech in order to have more of it?
I am reminded here of Schopenhauer's observation from Ch. 23 of Parerga und Paralipomena:
[A]bove all, anonymity, that shield of all literary rascality, would have to disappear. It was introduced under the pretext of protecting the honest critic, who warned the public, against the resentment of the author and his friends. But where there is one case of this sort, there will be a hundred where it merely serves to take all responsibility from the man who cannot stand by what he has said […]. Often enough it is only a cloak for covering the obscurity, incompetence and insignificance of the critic. It is incredible what impudence these fellows will show, and what literary trickery they will venture to commit, as soon as they know they are safe under the shadow of anonymity. Let me recommend a general Anti-criticism, a universal medicine or panacea, to put a stop to all anonymous reviewing, whether it praises the bad or blames the good: Rascal! your name! For a man to wrap himself up and draw his hat over his face, and then fall upon people who are walking about without any disguise—this is not the part of a gentleman, it is the part of a scoundrel and a knave.
If for every case of valuable anonymous/pseudonymous speech there are really one hundred cases of the abuse of such speech, then surely there should be no norm in favor of cloaked speech. I doubt Schopenhauer has the ratio quite right, but it seems to me plausible that the ratio of worthless and harmful anonymous and pseudonymous speech to the valuable kind is large--which may be why our other media have, wisely, limited the availability of such speech. And as Schopenhauer evocatively puts it, the norm of fairness which condemns the man who "wrap[s] himself up and draw[s] his hat over his face, and then fall[s] upon people who are walking about without any disguise" applies equally to his literary (and we might add, blogging) cousin.
The Clerkship Blog is Up-and-Running for 2010-11
Submit your info here.
The End of UC Hastings College of Law?
This is pretty shocking, though if Governor Schwarzenegger follows through, one assumes there will simply be a steep increase in tuition--unless, of course, the Hastings Trust pulls all the money (what percent of the budget comes from the trust is unclear). California, home to nearly a dozen unaccredited law schools, certainly has law schools that should probably go under, but Hastings equally obviously isn't one of them. One assumes that they'll weather this crisis.
UPDATE: A colleague at Hastings forwards an e-mail that Dean Newton sent to the Hastings community, with the latest encouraging developments:
I'm delighted to announce that the budget conference committee voted unanimously to restore Hastings budget so that we will now be in substantial parity with UC. If this decision stands, we will still receive a budget cut, but nothing so substantial as 100% of our state support, as recommended by the Governor. David Seward was at the conference committee and reported that several members of the committee spoke about the calls and emails they had received, about Hastings' unique history as California's oldest law school, and the inequity of singling Hastings out for disparate treatment.
At the appropriate time, we will list all those who should be thanked in the Hastings community -- many of you have reached out with suggestions and offers of help and we are all very grateful. In particular, Leo Martinez (who testified masterfully at the hearings last week), David Seward, David Jung, Jackie Ortega, and the Alumni Center (especially Nicole Sadler and Shino Nomiya) worked heroically to get us where we are today. In addition, the outpouring of support we have received from alumni and the legal community has been energizing and heartwarming.
On the other hand, the budget crisis is not over. The conference committee stated they may have to revisit the higher education budget later in this cycle, including support for Hastings. In addition, even if the legislature continues to support restoration of a substantial part of Hastings' support, the Governor has the ability to countermand their recommendation. So it is important not to relax our vigilance. We will continue to reach out to those who can help us and work on educating the legislature and the Governor's office.
June 8, 2009
Visiting Professors for 2009-10
"The Faculty Lounge" is collecting the info.
Merrill from Yale Back to Columbia
Thomas Merrill, a leading scholar in property, administrative and environmental law, who moved from Columbia to Yale Law School just last year, has now accepted an offer to return to Columbia in 2010. That's a major coup for Columbia, which also added Michael Graetz (tax) from Yale last year. This will obviously raise again questions about whether Yale's "New Haven problem" is responsible for the unusually large number of losses lately.
June 6, 2009
So which philosophers have had the most impact on legal scholarship?
With more than 100 responses to the latest poll, here's the top five:
|1. Kant (Condorcet winner: wins contests with all other choices)|
|2. Aristotle loses to Kant by 49–40|
|3. Locke loses to Kant by 48–37, loses to Aristotle by 48–46|
|4. Rawls loses to Kant by 49–36, loses to Locke by 47–42|
|5. Mill (John Stuart) loses to Kant by 47–37, loses to Locke by 43–41|
A reasonable top five, though I'd be hard-pressed to explain the ordinal rank, and I wonder whether these results would be borne out by a citation analysis of law reviews. A topic for a different day.