January 01, 2014
...that appeared over the last few days:
I'm sure they'll make for good discussion at the bar at the upcoming AALS meeting.
I'll be blogging somewhat more regularly this year at Huffington Post, though not primarily about legal education.
December 31, 2013
In yesterday's post about the jackass harassing Prof. Leong on-line, I referred to him only as "M," since Prof. Leong had not named him on her blog. His identity is not in doubt: he is named in her ethics complaint to the bar, and he even admitted on his "scam" blog that Prof. Leong had contacted him. My own view is that Levmore and Schopenhauer have it right, and that people like this should ordinarily be exposed, and that if they were exposed more often, cyberspace would be less of a cesspool than it currently is.
But what do readers think? Should M be named in public, and bear the reputational costs of his noxious sexism and on-line harassment? Here's a poll for readers:
UPDATE: It appears "friends of M" may now be voting, but even so the vote is lopsided in favoring of naming M (77 in favor, 22 against, 7 undecided). Interesting.
ANOTHER: The vote is pretty lopsided in favor of naming the miscreant (109 in favor, 30 against, 9 undecided), but I'd be curious to hear from those who voted 'no' what their reasoning is. Please e-mail me.
AND ONE MORE: So with more than 200 votes cast, the distribution of opinion is pretty clear: about 75% think “M” should be named, about 20% think he should not be named, and 5% are undecided. [Final tally: 180 for, 51 against, 11 undecided.] Ibsen warned us the “majority is always wrong,” which is why I solicited input from those skeptical of naming him. The best reason I’ve heard for not naming “M” is that even if he is a sexist jackass and cyber-harasser, he doesn’t deserve to lose his job over that. I certainly agree that “punishment” would be disproportionate to his wrongdoing, but I also think it an unlikely outcome. Still, it is a weighty consideration. A colleague elsewhere made a different point: “I voted no on naming M, on pragmatic grounds. My impression is that most cyber trolls, like most imbeciles generally, crave attention more than anything else. Publicly naming them could inadvertently give them exactly the attention they want--and hence throw them right into the briar patch.” And another said: “He will just choose a new handle and continue with his mischief. Let the Bar deal with this, and ignore him.” I’d still be glad to hear from others who voted ‘no’ about their reasons, before deciding how to proceed. (Classes here start Monday, so I’m a bit swamped right now.)
December 30, 2013
I've been enjoying a holiday from the sordid nonsense in the law-related blogosphere, but multiple readers have e-mailed me over the last few days to point out that Crazy Campos ("CC") spent his Xmas week attacking an untenured law professor for having the audacity to object to sexist cyber-harassment. (Some have blogged about it already.) This latest malevolent stunt by CC goes well beyond his delusional cyber-rampage against me earlier this year, though like that last one, it appears to have been brought on by the fact that CC felt he was defending some of his loyal cyber-followers.
Some background: CC continues to blog at a site called Lawyers, Guns & Money, which Glenn Greenwald memorably described as "a cesspool of unprincipled partisan hackdom" and "a filthy cesspool." CC's primary contributions to this "filthy cesspool" consist in continued smears of law schools and law professors.
As we noted a couple of weeks ago, Denver's Nancy Leong filed an ethics complaint (which I have now seen) against "M," a criminal defense lawyer in his mid-40s here in Chicago, who has spent hundreds (!) of hours over the last year or so harassing, ridiculing and defaming Professor Leong and lots of other law professors using the pseudonym "dybbuk" (and variations); among other things, he has written multiple blog posts and thousands of words devoted to ridiculing articles overwhelmingly by female and minority faculty. Here are some examples of his sexist harassment of Prof. Leong (all taken from the complaint and verified by screen shots of the postings):
On August 12, 2012, M described Prof. Leong as a “law professor hottie at Sturm School of Law” in a comment disparaging her scholarship and professional qualifications.
On August 12, 2012, M said of Prof. Leong's attendance at a professional conference: “All [the law professors] have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approaches of reactive commodification,’ while undressing her with their eyes.”
On September 11, 2012, M described Prof. Leong as a “comely young narcissist” in a comment disparaging her scholarship and professional qualifications.
On September 22, 2012, M described Prof. Leong as a “comely young scam defender” and emphasized that a link contained “Leong’s CV, photo included!” in a comment extensively disparaging her scholarship and professional qualifications.
On October 18, 2013, M defended his various “wisecracks and other offensive comments about [Leong's] pulchritude” by explaining that “[I]t is an unsayable truth that attractive persons, of both genders, are sometimes rewarded in ways they do not necessarily deserve. I believe social scientists call this ‘sexual capital.’”
M wrote two lengthy plays that depicted Prof. Leong using illegal drugs and connected those plays to her scholarship and professional life.
M is one of the regular bloggers [at a scam blog]. Comments on the blog are moderated before appearing and can be removed. Entire posts are sometimes removed...M’s posts about Prof. Leong on that blog generated a large number of comments that were sexist, racist, harassing, false, or defamatory. Despite being the author of the posts, he did nothing to discourage or remove the comments.
It's actually worse than that: M clearly encouraged the harassment, and posted appreciative comments to fan the flames. (Prof. Leong documents this in the complaint.)
As Professor Leong noted in one of her prior posts about cyber-harassment, M's sense of "humor" is of a piece with his puerile sexism, as in this charming item about an unemployed female law graduate:
M is a creepy and pathetic individual, but as Prof. Leong noted, he also made the mistake of having "posted specific information about his alma mater, the city where he lived, his job, various professional organizations to which he belonged, and other miscellaneous information. It took fifteen minutes to find out who he was using google and other publicly available databases. The result was troubling in itself: he was a public defender in his late forties who apparently has nothing better to do than harass an untenured professor." (Amusingly, M's response to all this was to claim Prof. Leong was "harassing" him! You really can't make this stuff up.)
Astonishingly, CC has now come to M's defense, taking it upon himself to ridicule Professor Leong for daring to object to sexist and racist abuse in cyberspace! Interestingly, even the commenters at Campos's "filthy cesspool" of a blog were appalled by these posts, which they describe better than I can:
#1: It is shameful that, after all the sexist and other harassment that dybbuk and his ilk have heaped on this untenured professor (and encouraged from others) over the course of more than a year, that Campos has piled on with his second derogatory post about her in two days. It is shameful that he and others are parsing her wedding announcement, citing his “sources” at UCLA where she is apparently looking for a job as if he has some inside info about her. I hope she sues this tenured professor for defamation. His headline in yesterday’s post certainly sounds defamatory to me and wholly invented out of thin air.
#2: It’s thoroughly messed up that Campos has chosen to attack Leong by questioning her racial identity (biracial people can indeed be subject to racism) and deriding her scholarship as an exercise in pure narcissism. This is sexist, racist garbage and [this blog] should be ashamed for publishing it.
#3: I’ve been enjoying reading this blog in the last few weeks, and finding an interesting mix of labor issues, feminism, and anti-racism. These two posts about Leong, however, are utterly shocking and disappointing. It’s perfectly possible to criticize problems in legal academia without minimizing racist and sexist behavior, or engaging in it – perfectly possible but not, it seems, in this case. Other people have asked Campos to stop posting on this issue. I would like to see an apology for what he’s already said before I decide whether to continue reading his posts, or indeed this blog.
December 20, 2013
I've heard this rumor a couple of times in recent months, and it's not inconsistent with my own impressions of the notorious gossip cyber-rag "Above the Law": links from there send far less traffic than they did a few years ago (I'd say half the amount, probably less), and most posts there seem to generate very few "comments" these days (we should be grateful for small blessings). The "quality" of reporting and analysis is as bad as ever, to be sure, but it looks like the audience is tiring of the show. I don't imagine anyone in the legal profession or legal academia would be sorry if the blog folded, though I, for one, would miss their Supreme Court clerkship updates! We will see what the new year brings...
UPDATE: The Blog Emperior does pay based on traffic. "LOL" as the bottom-feeders in cyberspace say! Happy New Year to all readers, the blog will probably be relatively quiet until the New Year (thanks Mr. Patrice, for filling my quota), unless something exciting happens (like ATL releases the comparative data [to contradict the evidence noted] for public inspection). My philosophy blog alone runs roughly 400,000 "unique visits" per month (and I don't make my living off of it!), so if ATL's "best" months are only a million visits, they are in worse trouble than I realized!
December 17, 2013
Professor Leong offers a lot of very helpful advice, applicable even to cases of cyber-harassment that don't involve racism and misogyny. Her own story involving one of the more notorious "scamablog" trolls, "dybbuk," is instructive (this pathetic individual--an adult man in his 40s [!]--has been harassing, defaming, and insulting law professors [overwhelmingly women and minorities] on-line for a couple of years now):
Over the course of about fifteen months, this particular harasser commented about me approximately 70 times on at least five different websites, frequently remarking on my physical appearance. He started several derogatory threads devoted exclusively to me, in which other commenters also targeted me with racist and sexist harassment. He wrote two lengthy plays about me. The threads he started often attracted dozens or even hundreds of comments. His sustained attention to me also incited other pseudonymous members of a blog where he often posts to author lengthy racist and sexist posts about me, which, again, often attracted large numbers of comments about me, including comments from him. Moreover, he wrote offensive profiles of a dozen other law professors who were–so far as I could tell, with one exception–all women or people of color or both. And, of course, these were just the comments under his pseudonym. It would not surprise me to learn that some of the many anonymous comments about me were also by him, although I haven’t taken the time to investigate this. This sustained attention and the ideas it contained became increasingly disturbing to me, and eventually I decided to figure out who he was....
The pseudonymous individual I mentioned above had posted specific information about his alma mater, the city where he lived, his job, various professional organizations to which he belonged, and other miscellaneous information. It took fifteen minutes to find out who he was using google and other publicly available databases. The result was troubling in itself: he was a public defender in his late forties who apparently has nothing better to do than harass an untenured professor....
There are a few lessons here. One is that even in the online world harassers often feel compelled to develop continuous and stable personalities, perhaps as a way of compensating for the social deficiencies in their actual lives. Another is that a lot of harassers are repeat offenders–that is, if someone is harassing you, odds are that you aren’t the first....
After I discovered the identity of my most persistent harasser, I decided to give him a call, which is something that adults do when they have a disagreement to discuss. I did this for several reasons. One was that I wanted to talk to him so that I could try to understand why an untenured professor he had never met could become the subject of a year-plus obsession. Another reason was pure curiosity. I have always been interested in what causes people to hate one another–or, at the very least, to write hateful things about other people, especially those they have never met. But the main reason was simply that I truly wanted to give him the benefit of the doubt. People’s lives are complicated by mental illness, loneliness, personal hardship, and grief. Although I have tried without success to find a definitive source for the saying “be kind, for everyone you meet is fighting a hard battle,” the words resonate with me and I try to live them. My hope was that the person who had written so many hateful things about me was a good person who–prompted by difficult personal circumstances–had made a mistake.
To my regret, my harasser refused to speak to me....
Sometimes harassers are subject to various sources of discipline besides the law itself. A number of professions, ranging from doctors to mental health providers to lawyers, are bound by profession-specific rules of conduct. A few of my harassers turned out to be attorneys. An examination of the rules of professional conduct in the states where one of them is licensed–followed by consultation with a couple of legal ethicists and an attorney staffing the ethics hotline–suggested that this attorney was in violation of multiple ethics provisions. And so I decided to file a formal complaint with the bars in the states where he is licensed.
I don’t know what will happen as a result of my complaint. Many state bars hesitate to stir up controversy, and attorney discipline is relatively rare. But I do feel that it is important for others closer to his situation to have knowledge of his online behavior so that they can make an informed decision about what to do.
December 11, 2013
December 04, 2013
November 25, 2013
Salon must really be desperate to post this content-free piece, which takes as its question, "How...can we explain the fact that young people are still going to law school in droves?" when, in fact, applications to law school are down nearly 40%, and most law schools in the United States are experiencing varying degrees of financial stress as a result (not "raking in cash"). But never mind the facts, little Mr. Winterhalter wants to deliver his sermon: "Why aren’t law schools ashamed of themselves?" Well, because most of them didn't do anything shameful, that's why. Almost all the graduates of accredited law schools passed the bar exam, and the only actual evidence on offer makes clear that the JD was a winning financial proposition for the vast majority. There's no shame in teaching the vast majority of students to pass the bar and enabling them to enjoy substantial financial returns on their education. (There should be shame in being an opportunistic liar like Mr. Winterhalter, who calculated, obviously correctly, that he could capitalize on the current hysteria to get a fact-free smear piece into Salon! I will let pass in silence his juvenile discussion of economic analysis of law.)
It is time for a little reality-check, even in cyberspace. In 2008, the global capitalist system suffered a severe recession or depression, which soon spread to the legal sector, exacerbating trends affecting reduced demand for lawyers. Law schools did not cause that economic catastrophe. Beginning in 2011, Senators Boxer and Coburn began challenging the ABA about the accuracy of employment data reported by ABA-accredited law schools. This data was almost certainly massaged, due to the malign and longstanding influence of U.S. News (as I noted a decade ago!). Annoyed U.S. Senators, unsurprisingly, caught the attention of the ABA, and soon enough, the ABA mandated improved employment data reporting, thus making clear how poorly graduates of some law schools were faring during the recession. Around the same time, David Segal, a journalist who had never before covered law, began writing a series of front-page stories in The New York Times about the collapse of the job market for new lawyers, as well as producing unrelated hatchet jobs on legal education.
In the wake of all this, applications to and enrollments in law schools, unsurprisingly, entered a steep decline. Law schools began reducing tuition and cutting faculty. But in cyberspace, a different set of events, only partly related to the preceding, began to unfold. The global recession took its toll on recent law graduates, like so many others. Some of the victims took to the Internet, enacting Nietzsche's observation more than a century ago that,
Every sufferer instinctively looks for a cause of its distress, more exactly, for a culprit, even more precisely for a guilty culprit who is receptive to dsitress--in short, for a living being upon whom he can release his emotions, actually or in effigy, on some pretext or other; because the release of emotions is the greatest attempt at relief, or should I say, anaestheticizing on the part of the sufferer. [Cf. Barash & Lipton, Payback (Oxford, 2011) for empirical evidence in support of the Nietzschean hypothesis.]
There was, undboutedly, considerable suffering by lawyers and new law graduates--jobs lost, careers thwarted, huge debts looming and undischargeable in bankruptcy. In cyberspace, some of those suffering--as well as some muddle-headed law professors and opportunistic charlatans-- identified a "guilty culprit": it was law schools. Thus was born the bizarre meme that law school was a 'scam.' (Mr. Winterhalter is a late arrival to the meme.) Although U.S. law schools had for decades successfully trained most graduates to pass the bar and become lawyers, this no longer mattered. Massaging employment data to game U.S. News rankings was now portrayed as a concerted and sinister attempt to fraudulently induce students to come to law school who otherwise never would have dreamed of doing so. Indeed, lawsuits by victims of this alleged "scam" were soon filed around the country, but courts have uniformly repudiated their theory about the culprits, noting the obvious "elephant in the room," i.e., the global recession of 2008. The law professors who taught the plaintiffs apparently well enough to pass the bar were clearly not responsible for lack of jobs--how could they be? Some law schools still face possible liability, and perhaps rightly so: there are 200 accredited law schools in the country, and some may have acted unethically and perhaps illegally. But law schools are not culpable for the economic catastrophe of the last five years, and the vast, vast majority did not defraud or scam anyone. This much is obvious to the courts, indeed, to anyone awake.
The sensible response to an economic catastrophe, both inside and outside the legal profession, has turned into an utterly irrational attempt by the misguided or the malevolent to find "guilty culprits" to blame for miserable circumstances. Mr. Winterhalter is just the latest manifestation of this irrational response, but cyber-ranting like his still proliferates in which law schools, judges, lawyers, law faculty, and anyone who resists the herd mentality of the deranged scam-bloggers are disparaged, demeaned and defamed without regard for the facts and without any actual evidence of wrongdoing.
November 19, 2013
(Link now fixed.)
UDPATE: This is worth quoting in particular:
[T]he various anonymous comments about me have no purpose other than to harass and no content other than racially and sexually demeaning language. And the reason they’re anonymous is obvious. The commenters want to make racist, sexist, and sexually harassing comments without having to suffer the consequences of engaging in such speech in real life. Such speech contributes literally nothing to discourse. And to briefly retread ground I covered in my first post, it’s worth noting that each thread I’ve referenced above started out as a thread at least nominally about my scholarship and my ideas, but quickly shifted to comments about my identity.
The claim that anonymity inherently promotes First Amendment values thus makes little sense in a world of race- and gender-based online harassment. To be clear, I have no problem with anonymity per se — indeed, I agree with the Supreme Court’s statement in McIntyre v. Ohio Elections Commission that “[a]nonymity is a shield from the tyranny of the majority.” When people write anonymously, but do so in a way that contributes to discourse, it seems to me that the choice to withhold one’s name is up to the individual. Indeed, anonymity might empower some marginalized speakers to engage in discourse who would otherwise remain silent.
But when anonymity facilitates harassing and abusive speech directed at marginalized identity groups, society has a strong First Amendment interest in regulating anonymity. Harassing and abusive speech results in a net loss to the marketplace of ideas. Online racial and gender harassment silences the speech of many women and people of color, diminishing the diversity of perspectives represented in online discourse and impoverishing the “free trade in ideas” within “the competition of the market” that Justice Holmes first discussed in his famous dissent in Abrams v. United States. If we really care about the marketplace of ideas, we should care about eliminating online racial and gender harassment.
ANOTHER UPDATE: Mary Anne Franks (Miami) has explored similar issues, including in "Sexual Harassment 2.0," 71 Maryland Law Review 655 (2012) ("In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into non-traditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting") and in "Unwilling Avatars: Idealism and Discrimination in Cyberspace," 20 Colum. J. Gender & L. 224 (2011):
Cyber harassment affects women disproportionately, both in terms of frequency and in terms of impact. Moreover, there is a particularly poignant irony in the nonconsensual sexualized embodiment of women in cyberspace. As will be discussed in more detail below, cyberspace can present particularly compelling opportunities for women because they feel the constraints of physical vulnerability, especially sexual vulnerability, more acutely than men. In that case, the extent to which this physical vulnerability is re-imposed upon them--principally by men--in cyberspace is truly disheartening. If cyberspace harassment makes many women feel less safe online than they do in real life, and more exposed and vulnerable to sexual aggression both on and offline, this under- mines the idealistic promise of cyberspace in a significant way. The volume and viciousness of cyber-attacks-- especially sexualized attacks--on women by men suggests that cyberspace cannot be thought of as a place where, on balance, women and men can participate equally. Rather, it is a place where existing gender inequalities are amplified and entrenched.
August 06, 2013
I sometimes post comments from colleagues elsewhere, but without attribution (I always ask them what they would prefer). I imagine the reason is obvious to most readers, but perhaps I should make it explicit, especially for the benefit of those who don't pay much attention to cyberspace.
The basic fact is that anyone these days who speaks in favor of legal scholarship and law schools, or against "scam" blogs and charlatans like Campos, is immediately subjected to a torrent of cyber-abuse, defamation, and harassment. (Anyone skeptical can simply do some searches to see the cyber-response to the sober and scholarly analysis of the economic value of a law degree co-authored by Seton Hall professor Michael Simkovic.) Cyber-vilifcation is meaningless in the end--it is the ranting of the powerless and the deranged--but it is, undestandably, shocking to most adults. Many of my correspondents would prefer not to become targets of this abuse. I have been in cyberspace too long for it to matter anymore, and because I have been out front on many of the issues that generate the most cyber-harassment, the abuse and attempted defamation is both predictable and not very credible. But this also puts me in a position to provide a forum for other academics to comment, a forum in which I can vouch for who the commenters are but at the same time insulate them from the disgusting abuse of cyber-miscreants.