December 11, 2013
...the law is catching up with you. Once CDA 230 is history, maybe cyberspace will even be part of civilization?
December 04, 2013
Cyber-cesspools and civil rights
November 25, 2013
Benjamin Winterhalter, opportunistic liar of the day...or why law school is obviously not a "scam"
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
Anonymity and cyber-harassment
(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
On why I post comments from colleagues "anonymously" sometimes
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.
August 02, 2013
More on the Law School Transparency "shakedown" of law schools
A Dean at another law school writes:
It is fair to say this was not a very good move on LST's part, and shatters whatever remaining credibility they had. (They've been in a bit of a downward spiral.) Now that the ABA (finally) mandates detailed reporting of employment outcomes, it's not really clear that LST serves a useful purpose any longer, and I will be astonished if any school actually ponies up for this nonsense "certification." (By the way, it is perhaps telling of what's happened to LST that the law professor who sent me the information about the certification shakedown did not want to write about it himself/herself for fear that LST would then go after that professor's school!)
Re the McEntee post: Yes, in fact, Kyle has sent out the following note to a number of deans:
...We're introducing a certification program for law schools.
The program has two purposes. First, we want to increase the quality and consistency of consumer information. Second, we want to help the schools that are transparent (as defined by us of course) signal that transparency. Law schools across the board are facing declining trust, even the good actors. I'm of the opinion that this is bad for the profession in the long run, and that a program like this can help instill a sense of trust where trust is deserved.
The short of what we'll do: Schools that meet our two reviews become "LST Certified," which entitles them to use a certification mark to signal their commitment to transparency. The mark provides assurance to prospective students, students, and the public that your school does things the right way. The fee for the first year is $1925. There will be audits for compliance throughout the year -- sometimes at a defined time, sometimes randomly.
One review is for Standard 509 compliance. The other review is for LST Best Practices. The latter requires that schools produce various consumer information (employment data, financial aid, etc) on their websites. Sometimes the Best Practices require a certain form; usually we just check that certain data or statements are present. Importantly, we require schools to centralize all consumer information for easy access and require that schools indicate info about definitions and methodologies used.
---end of quote from letter--
This is, of course, absolutely outrageous. One dean colleague said it smacks to him as a violation of the Hobbs Act (which prohibits extortion and such). This is, any way you slice it, an extraordinary effort at shaking down law schools by promising some version of “certification” at a price – this from a group which decries, among other things, the high costs of law schools. It is one thing for the deans to call Kyle out. I’d like to see where the scambloggers are in all this.
May 17, 2013
"Why Tolerate Religion?" at the Center for Inquiry in Washington, DCThe video.
April 24, 2013
Kerr & Lessig on the Need to Reform CFAA
Read this and then send it to your elected representatives!
March 02, 2013
We Get Mail: Thomas R. Grover, Esq. Edition
For criticizing Mr. Campos last week, I received the following insolent e-mail:
You’re a “Law and ______” Professor, not a lawyer. How would you know how to ‘think like a lawyer’?
Thomas R. Grover, Esq.
Goodsell & Olsen, LLP
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
Tel: (702) 869-6261
Fax: (702 869-8243
Cell: (702) 900-3003
Mr. Grover is a law graduate of the University of Nebraska, one of those law schools that students should still be considering, even in the current market, and notwithstanding Mr. Grover. But it is odd that he thinks that being a lawyer and a philosopher involves a contraction, rather than an expansion, of knowledge and competence. In any case, I replied to Mr. Grover as follows:
Dear Mr. Grover,
Are you actually an attorney at the firm in question? If so, why do you not appear on the website? Do your supervisors know that you are using the firm’s e-mail to send impertinent and juvenile messages to other professionals?
“Thinking like a lawyer” refers to a style of reasoning and analysis that is exemplified in the law section of appellate briefs and in judicial opinions; I assume you must be familiar with both genres. It encompasses, for example, the use of analogical reasoning to distinguish precedents or propose extensions or developments of existing doctrine, but also involves techniques of statutory and constitutional construction, the use of arguments from authority, facility with the law/fact distinctions, and so on. Again, merely looking at the chapter headings of Schauer’s book Thinking Like a Lawyer would illuminate this apparently opaque topic for you. Alternatively, you might read Edward Levi’s classic book An Introduction to Legal Reasoning; Mr. Levi was the former Dean of my Law School, as well as former Attorney General of the United States.
Of course, there are more skills involved in being a lawyer than thinking like a lawyer. There is industry-specific knowledge, know-how with respect to how local courts or regulatory agencies approach statutory language, rhetorical talent, as well as a range of psychological and interpersonal skills that are important. For example, most good lawyers I know, among my family and friends, exhibit maturity and professional judgment, that would prevent them from sending insolent e-mails from their’s firm account to other professionals. I will be sure to send a copy of this entire correspondence to the name partners of your firm.*
I do think we law professors, and especially those with blogs, have been far too tolerant of malicious and unprofessional conduct by usually anonymous or pseudonymous lawyers and students. Mr. Grover deserves credit for signing his name to his stupidity, and, of course, his intervention is a relatively mild example of juvenile nonsense emanating from putative lawyers. I've generally let most of this garbage pass in silence, but in the coming weeks I'm going to be posting a bit more about some alleged legal professionals whose on-line conduct deserves to be aired in public. I especially welcome more information on a sick individual using the pseudonym "dybbuk," who is, among other pathetic characteristics, obsessed with the appearance of female law faculty, and who fantasizes on-line about spanking them with wet slippers (though that is only the tip of the iceberg of his malevolent conduct towards and harassment of individuals behind the cloak of pseudonymity). He is a Washington & Lee law graduate from the 1990s, and an appellate public defender, and we will have more to say about him soon. But I welcome any further details from readers.
[*I did not, needless to say, send this correspondence to them. I hope Mr. Grover has a distinguished legal career, and that he, and others like him out there, will stop sending foolish e-mails in the future.]
UPDATE: Some good news, namely, dybbuk's most egregious piece of libel and harassment (not of me) has been removed from the web. Meanwhile, the poster boy for the Dunning-Kruger Effect, David Bernstein, thinks this is all about civility and manners as opposed to stupidity and insolence--and, more seriously, in the case of some of the others, libel and malicious harassment. I'm sure Bernstein will do a great job moderating comments on his intervention to insure his commitment to civility! For my own views on civility, see this short essay.
3/5 UPDATE FOR THE VARIOUS VISITORS FROM RIGHT-WING CRAZY BLOGS: You will enjoy my book!
MARCH 8 UPDATE: It wont' surprise any readers to learn that Paul Campos is angry with me--after all, his malicious and dishonest conduct has made him a pariah in his own profession. I certainly did my part to call attention to his malfeasance, but I underestimated the extent to which he would turn into a pathological liar in order to seek his vengeance. Over the last week (I have been abroad at a conference, with only intermittent internet access and so may not even have seen everything), Campos has completely lost it, descending into an amazing paranoid abyss of libel, accusing me, falsely, of, inter alia, cyber-stalking, posting pseudonymously on "Top Law Schools," even posting "hundreds" (!) of comments on his absurd blog (while the others may just be reckless false allegations, the last one he has to know is false, since he has access to the ISP information), and so on. He has not, at least of this writing, accused me of genocide or torturing puppies. And he has apparently inspired one of his followers to hack someone`s email account. Classy! Apart from his general animosity towards me, I can only surmise that he's lost it because I did pursue the identity, successfully, of one of his cyber-friends ("dybbuk") who Campos conveniently neglects to mention had the habit of bullying, insulting and defaming junior faculty and students (including one of mine), and I did succeed in getting his worst bit of libel deleted and he has now fallen silent. Oddly, Campos, who is now waging a jihad against Faculty Lounge, doesn't realize why no one will return his e-mails, and it's the same reason almost no one signed his petition for law school transparency: his colleagues consider him a creep and untrustworthy, and so they just steer clear. Indeed, "dybbuk's" identity was volunteered by different people Campos pissed all over during his little scam jihad, so, ironically, he has only himself to blame for the mess his cyber-friend is currently in.
AND A FINAL WORD: Crazy Campos’s jihad against Dan Filler has come to an end, not with Campos apologizing, but with his continuing to cast aspersions on Filler and others at TFL, even though, as I noted last Friday, he’s been barking up the wrong tree all along (he apparently has little sense of the depth and breadth of enmity towards him and his crew, and it extends well beyond those who blog--I will, in any case, not name my sources, who did the morally correct thing in exposing scoundrels and creeps, but who do not deserve to be harassed and defamed by those who want to harass and defame with impunity). There also turns out to be quite a bit of backstory about what’s been going on at Colorado, that will perhaps come out in time, and which may explain Campos’s slightly insane and obsessive behavior in the last week. Anyway, I’ll give the final word about this freak show to a colleague elsewhere, who wrote to me last week regarding the pseudonymous and anonymous trolls: “I, for one, hope that you put the fear of god into them. I've been unable to avoid the consistent spamming our normal blogs have taken over the last year from the likes of these schmoes ('MacK' and the others main perpetrators), one can only hope that they're cowering in a corner thinking back on the foolishness of repeatedly attempting to defame and intimidate honest and well-meaning educators. It's one of the worst symptoms of the right-wing anti-intellectualism that seems to get frothier in this country each election cycle. As for our friend in the rocky mountain state, I really think he's either run into some well-deserved, serious career problem (other than lacking all talent as a scholar) or has gone wholly round the bend.” As some readers pointed out, even Campos's many false allegations may have the salutary effect of making the bottom-feeders in cyberspace (including Campos's dozen-or-so trolls) a bit more cautious going forward.
February 28, 2013
Paul Campos's final bit of revisionist history
Several readers have written to alert me to the fact that apparently even Paul Campos has realized that his blog didn't have much content, apart from insulting and deriding Deans, faculty and anyone else who contested his claims. But, true to form, he can't say goodbye without just making things up out of whole cloth. He writes:
I started [the blog] because I had something to say, and this seemed a good way of saying it. For a few days I wrote anonymously – something I had never done before – more as a stylistic experiment than anything else. But naturally people in legal academia instantly became more concerned with Who Was Saying These Outrageous Things than in whether those things might actually be true.
that legal academia is operating on the basis of an unsustainable economic model, which requires most law students to borrow more money to get law degrees than it makes sense for them to borrow, given their career prospects, and that for many years law schools worked hard, wittingly or unwittingly, to hide this increasingly inconvenient truth from both themselves and their potential matriculants.
The key fact to remember about Paul Campos is that, in 2005, he went on Fox TV and called for a University of Colorado colleague, Ward Churchill, to be fired for his offensive political speech--not for alleged academic misconduct (allegations which came later), but simply for his political speech. Campos (who even directed at one time Colorado's center for constitutional law), in other words, realized he could get the media spotlight on himself by calling for a blatant violation of the First Amendment. (It's a standing problem of his.) That was the first clear sign that this was an individual without a core, intellectual or moral. Everything I've ever learned about Campos since (including much I've never written about) has confirmed that diagnosis.
Meanwhile, in the real world, I hope the ABA Task Force will consider some sensible changes to the status quo in legal education.
ADDENDUM: A colleague elsewhere writes: "I like how the lists of people he thanks includes everyone who proposed solutions and reforms to legal education, as though they were also supporters of his. I know for a fact that some people on those lists think Campos is a disgrace."
ANOTHER: Paul Horwitz (Alabama), ever the good, even-handed Canadian, comes to Campos's defense, and what a defense it is:
Campos seems to me to be essentially a journalist moonlighting as a law professor, and perhaps without some of the professional norms I would expect from a full-time journalist....
Many of his fans loved his writing style. I found it repetitive (how many times do you need to use the same quote from Upton Sinclair before it gets old?), self-indulgent, evasive and squirrelly, preening, and finally tedious. His analysis of the useful data he provided was often correct, in my view. But he seemed rarely content to make a basic point that would have been sufficiently devastating in itself, if the opportunity presented itself to make a far more tendentious de-haut-en-bas observation about some "big truth" that everyone but himself lacked the courage and acuity to recognize. A vivid style is one element of good writing; but so is self-restraint. Campos was much stronger on the former than the latter....
In short, there were plenty of reasons to find aspects of his blog objectionable, and his suggestion in his final post that everyone who objected to what he wrote did so either because they were angry at his intrepid truth-telling or because of personal animus seems to me badly exaggerated and self-serving. The latter seems especially silly because, judged by his writing, Campos certainly has no objection to responding to others in a personal rather than a substantive way and drawing broad conclusions about the motives of others.
The prosecution rests after that defense!