June 04, 2018

Stanford's Michele Dauber's assault on the rule of law

I have followed this case only slightly until recently.  Briefly:   Brock Turner, a Stanford undergraduate, was convicted of digital rape of a woman after a fraternity party; the judge in the case, Judge Persky, gave him a relatively lenient sentence (i.e., little jail time, but a lifetime scartlet letter as a "sex offender") given that he was a first offender, that he was young, and intoxicated (as was the victim).  The sentence imposed had actually been recommended by the probation officer who evaluated the case. 

Michele Dauber, a law professor at Stanford, whose own child was friends with the victim, took a strong interest in the case, and has since launched a disgraceful jihad against the judge, well beyond Donald Trump's racist insults at a judge in California overseeing the "Trump University" fraud case.  Professor Dauber launched a recall petition against a judge whose sentencing decision she disliked, and whose record she then misrepresented.  A lengthy story has now appeared about her jihad.  One of the most important facts is that Judge Persky is a liberal, who tries to find ways to avoid jail time for criminal offenders.   If I believed in gods, I would say, "God bless him."

Academic freedom protects Professor Dauber's right to undermine the rule of law.   It does not protect her from the opinion of others members of her profession. 

Fortunately, and as I would have expected, the vast majority of the Stanford Law faculty opposes her recall effort.  I quote the letter in part, since it makes clear how outrageous Professor Dauber's behavior is: 

We the undersigned are part of a broad diversity of law professors from California universities; among our relevant fields of specialization are criminal law, gender and law, and constitutional law. We write in strong opposition to the campaign to recall Judge Aaron Persky of the Santa Clara County Superior Court. We do so because this recall campaign, which just now is beginning the formal process of gathering signatures, threatens the fundamental principles of judicial independence and fairness that we all embed in the education of our students.

 

The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms. None of these criteria applies to Judge Persky. The recall campaign was instigated in response to a sentencing decision in the case of Brock Turner, where the judge followed a probation report recommendation and exercised discretion towards a lenient sentence, in accordance with the California Penal Code. We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result, but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) -- not on public outcry about a controversial case. Judge Persky's decision was controversial, but it was a lawful decision. Other sentencing decisions by Judge Persky that have been challenged by the recall movement have followed the equally common and legitimate practice of accepting a recommendation agreed on by the prosecution and defense.

 

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June 4, 2018 in Faculty News, Legal Profession, Of Academic Interest | Permalink

May 28, 2018

Anti-university “free speech” legislation will divert education funds to demagogues and facilitate monitoring, intimidation, and harassment of academic communities (Michael Simkovic)

Part I: After demagogues hijack higher education funding and disrupt learning and research, Berkeley responds 

In the wake of disruptions surrounding the invitation to campus of provocative right wing speakers, the University of California at Berkeley recently released the Report of the Chancellor’s Commission on Free Speech. The members of the commission include the Chief of Police and the Law School Dean and constitutional law scholar Erwin Chemerinsky.[1]

The report notes that U.C. Berkeley “spent nearly $4 million—during a time of severe fiscal duress—on security costs for [disruptive speeches by far-right provocateurs in] September 2017 alone. . . . This is not sustainable [given Berkeley’s] $150+ million deficit.”

At current tuition prices, $4 million is the equivalent of more than 280 1-year full-tuition scholarships (or 70 four-year bachelor’s degrees). Given the tone and substance of the talks, it seems unlikely that California taxpayers or the Berkeley community got good value for their money. For example, that money could have been used to train engineers, scientists, and other educated professionals. The report included several sensible recommendations to try to contain costs and limit disruptions.

Unfortunately, many of these recommendations would be difficult—perhaps impossible—to implement if legislation backed by the Koch family, the Goldwater Institute, and some law professors goes into effect. (More on this in Part II below).

The report notes that a single speech by right wing culture-warrior Ben Shapiro cost U.C. Berkeley and California taxpayers $600,000 in security costs.[2]

Mr. Shapiro is known for comparing “debate” to a “bloodsport.” In “How to Debate a Leftist and Destroy Them,” Shapiro advises conservatives to “Hit first. Hit hard. Hit where it counts . . . convince [the audience] that your opposition is a liar and a hater.” Shapiro advises being even more aggressive when dealing with a liberal family member at family gatherings such as Thanksgiving. Shapiro advises conservatives to call a family member who does not share conservative political views a “jackass,” “ridiculous,” “irrational,” “buffoon,” “loser,” “fascist,” and a would-be baby-killer (for supporting abortion rights).  Shaprio’s speech at Berkeley was reportedly similarly “strong on insults . . . and light on [substance].”[3]

The Commission was even less impressed with other speakers:

“Many Commission members are skeptical of [Milo Yiannopoulos and Ann Coulter]’s commitment to anything other than the pursuit of wealth and fame through the instigation of anger, fear, and vengefulness in their hard-right constituency. Speech of this kind is hard to defend, especially in light of the acute distress it caused (and was intended to cause) to staff and students, many of whom felt threatened and targeted by the speakers and by the outside groups financing their appearances.”

The Commission concluded that excessive financial costs were imposed on U.C. Berkeley and the taxpayers of California by “very small groups of students working closely with outside organizations” as “part of a coordinated campaign to organize appearances on American campuses likely to incite a violent reaction, in order to advance a facile narrative that universities are not tolerant of conservative speech.”

This is consistent with my own findings about conservative provocateurs’ efforts on campus, although I focused on professors serving as speakers rather than the student groups that invited them.[4]

The Commission suggested that if the citizens of California are unwilling to pay higher taxes to sponsor events that enrich the likes of Milo Yiannopoulos, then U.C. Berkeley should consider capping the amount it will spend on security for speakers:[5]

“[T]he campus should not have to expend scarce resources to protect celebrity provocateurs seeking to promote their brand (and, in some cases, to cast aspersions on higher education) when so many essential needs go unfunded or underfunded.”

The report also recommends centralizing event planning, limiting disruptive events to locations where individuals who would rather focus on their studies or their work can more easily avoid being affected by them, and encouraging “constructive and thoughtful debate between passionate advocates for opposing points of view” on campus including conservatives, rather than “shock jock performance art.”

However, many of the Commission’s perfectly sensible recommendations would be outlawed by model legislation pushed by the Koch-funded Goldwater Institute and some allied law professors.[6]

 

Part II:  Anti-university “free speech” legislation will divert funds to demagogues and will facilitate monitoring, intimidation, and harassment of academic communities

The so-called “Campus Free Speech Act” prohibits universities from charging more for security for events that are likely to incite violence and that lack substance.[7] The Goldwater legislation requires universities to host any speaker, regardless of intellectual rigor or academic merit (even if quality standards are applied in a non-partisan manner), as long as a single student, student group, or faculty member has invited the speaker.[8] It denies universities control over which space is made available to which speakers.[9]  The Goldwater Legislation places burdens on public universities that its most ardent supporters would never place on businesses which own other platforms for speech such as newspapers or venues for conferences such as hotels.[10] There is a difference between protecting the academic freedom of highly-trained and carefully vetted faculty and transforming universities into dumping grounds for outside speakers of low-quality and high-cost.[11]

While universities would be denied editorial discretion, student groups could be as discriminatory or exclusionary as they please without losing any privileges.[12] Thus, a neo-Nazi student group could refuse to admit blacks, Jews, gays, Catholics, liberals, moderates, or conservatives who don’t subscribe to White Supremacy—or even those who do but refuse to march around wearing Swastikas—without losing any privileges, such as the right to bring speakers or host a rally on campus.

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May 28, 2018 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Student Advice, Television, Weblogs | Permalink

May 26, 2018

Extremely conservative Stanford graduate complains that there aren’t enough extreme conservatives on campus (Michael Simkovic)

Few would consider Stanford University left-wing.

Stanford University hosts the controversial, conservative Hoover Institution.[1] Stanford has raised more than $40 million from conservative donors. Stanford is a major military contractor.  Stanford’s last acting president (and long-time provost) argued for affirmative action in hiring in favor of conservative faculty, deploying barely coded, neo-McCarthyist phrases like “the threat from within” to describe liberals on campus.  One very prominent Hoover Institution faculty member took the suggestion to heart, asking students affiliated with the College Republicans and Turning Point USA (which maintains "watchlists" of liberal faculty) to help him dig up dirt on a 20 year old Stanford student who the Professor thought was too liberal.  (The Professor wanted help "grinding [leftists] down" and wished to "intimidate them.")  (See also here, here, here, and here).[2] 

Some conservatives want more.

A recent Stanford law graduate and self-described “hard man,” Martin J. Salvucci, writing in the National Review, recently compared Stanford to Czechoslovakia under Soviet domination. Czechoslovakia was invaded by 650,000 heavily armed soldiers from the Soviet Union and other Warsaw pact states in 1968 when Czechoslovakia sought to become Social Democratic rather than Communist (i.e., leftist, but not authoritarian).

The Stanford graduate—who recently worked at Skadden and Klee Tuchin—explains that from his perspective, attending Stanford entailed a level of suffering just like living in a totalitarian satellite state, except that he has “nicer stuff.”

The problem, apparently, is that there are not enough committed right wing ideologues on campus:

"An almost unspoken agreement seems to exist among many students that all of us will soon be fabulously successful, so long as everyone remains a “team player” and nobody rocks the boat too earnestly. Political, moral, and religious convictions are, for the most part, accessories best deployed for instrumental purposes, rather than values to be espoused or explored for their own sake."

If this description is accurate, then it sounds like Stanford law students are well prepared for the restraint and decorum that will be expected of them at the elite law firms, banks, and corporations where many of them aspire to work.

The recent graduate also complains that the Dean of Stanford, M. Elizabeth Magill, has not endorsed his view that there should be an increase in official efforts to promote conservative views on campus.  Because of this, he accuses her of being a “gutless bureaucrat.”

Mr. Salvucci’s views highlight that ideology is a matter of perspective. For those who are sufficiently extreme, even a conservative, corporate institution in Silicon Valley, like Stanford, can seem as oppressive as life under Soviet rule.

Given the timing of Mr. Salvucci’s post—after graduation but before admission to the bar—Mr. Salvucci may be attempting to set up a test case to challenge California’s Bar’s character and fitness requirement, which mandates “fairness . . . and respect . . .”

I doubt that the bar will take the bait.

But Mr. Salvucci’s classmates and colleagues may enjoy ribbing him about this for years to come.

 

[1] Hoover is a think tank which selects and funds its research fellows based on their ideology and political experience. This is routine in the think tank world, but is widely condemned within academic institutions, which are supposed to select scholars based solely on the merits, regardless of politics.

[2] The Stanford professor rationalizes these activities by arguing that he was concerned about efforts to schedule counter-programming to compete with controversial political scientist Charles Murray's talk, which resulted in the talk being lightly attended.  He goes on to argue that he was defending "free speech"--which to him apparently means shielding conservative speakers from competition for students' attention.

UPDATED 7/2/2018 to include Hoover faculty member Niall Ferguson's efforts to dig up opposition research on liberal students.


May 26, 2018 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Humor, Legal Profession, Ludicrous Hyperbole Watch, Of Academic Interest, Professional Advice, Student Advice, Weblogs | Permalink

May 24, 2018

Skeptical academics and journalists reject Koch-Brothers-backed claims of "free speech crisis" on campus (Michael Simkovic)

Following up on my previous post, 

A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public

"The purpose of media exaggeration of incidents at universities appears to be to discredit universities in the eyes of conservatives, libertarians, and moderates.  The anti-university campaign is working. . . . Republican resentment toward universities is evident at the national level.  Recent legislation increased taxes on universities while leaving other 501(c)(3) educational organizations such as think tanks unscathed.  

The anti-university campaign appears to be supported by a network of organizations funded by wealthy conservatives and libertarians including the Koch Brothers. [At Koch-network funded events for conservative and libertarian professors and graduate students across the country] UCLA Law Professor Eugene Volokh, encouraged attendees to push the envelope in expressing controversial conservative and libertarian views on campus, draw the ire of their university administrations and progressive students, and document the incidents for him so that he could publicize them . . . .  Volokh has publicly advocated video surveillance of hecklers (“never interrupt the enemy when he is making a mistake … but always videotape him”) and using internet publicity to inflict “libertarian-approved-pain [on] university administrators.”  Volokh also advocated suing universities.  . . .

The Koch Brothers’ funded Goldwater Institute, seized on the non-event at CUNY to push legislation to turn state universities into passive distribution channels for propaganda, expel protestors (and perhaps people who simply ask pointed questions), centralize control in the hands of political appointees, strip financial resources, encourage frivolous lawsuits, and monitor and intimidate university officials, professors, and students.  . . . Versions of Goldwater’s proposal have already been enacted in Wisconsin—where Republicans effectively eliminated tenure protections for professors at the state university—and in North Carolina, where Republican political appointees shuttered a law school center dedicated to studying poverty (see also here) and crippled the Civil Rights Center (here and here)." 

Erwin Chemerinsky and co-authors of the Report of the Chancellor’s Commission on Free Speech at U.C. Berkely wrote:

U.C. Berkeley “spent nearly $4 million—during a time of severe fiscal duress—on security costs for [disruptive speeches by far-right provocateurs in] September 2017 alone. . . . This is not sustainable [given Berkeley’s] $150+ million deficit. . .

Many Commission members are skeptical of [Milo Yiannopoulos and Ann Coulter]’s commitment to anything other than the pursuit of wealth and fame through the instigation of anger, fear, and vengefulness in their hard-right constituency. Speech of this kind is hard to defend, especially in light of the acute distress it caused (and was intended to cause) to staff and students, many of whom felt threatened and targeted by the speakers and by the outside groups financing their appearances.”

[Excessive financial costs were imposed on U.C. Berkeley and the taxpayers of California] by “very small groups of students working closely with outside organizations” as “part of a coordinated campaign to organize appearances on American campuses likely to incite a violent reaction, in order to advance a facile narrative that universities are not tolerant of conservative speech.” 

Continue reading


May 24, 2018 in Faculty News, Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Weblogs | Permalink

18% jump in LSATs taken during 2017-18...

...and an 11% increase in students registered with LSAC to send their credentials to law schools.  It's clear the bottom of the application pool is now a couple of years past, how much larger the pool will grow remains to be seen.


May 24, 2018 in Legal Profession, Of Academic Interest | Permalink

May 18, 2018

Lawyer of the day: Aaron Schlossberg

Occasionally, social media catches a pathetic bigot in action.  And he's a lawyer in New York City no less.  I imagine his future prospects are not great.


May 18, 2018 in Legal Profession, Of Academic Interest | Permalink

May 17, 2018

Should universities' grant agreements be made publicly available? (Michael Simkovic)

Following up on my previous post, When do donor influence and ideology undermine academic integrity? 

The progressive activist group whose efforts forced George Mason to disclose some old grant agreements has created a petition asking George Mason to disclose all of its grant agreements.  This echoes recommendations made by the Faculty Senate at George Mason following revelations of improprieties in grant funding, such as politically discriminatory compensation supplements for economics and law faculty who promoted an economically conservative agenda, consistent with the views of wealthy donors.

There are numerous other examples of improprieties, such as university based researchers working to advance the interests of the sugar industry or certain tech companies without proper disclosures.

Should George Mason disclose all of its grant agreements?  Should universities more generally?  Should think tanks and news organizations be held to the same standards of transparency?


May 17, 2018 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Web/Tech, Weblogs | Permalink | Comments (1)

May 14, 2018

When do donor influence and ideology undermine academic integrity? (Michael Simkovic)

Key takeaways

  • Universities face serious threats to academic freedom from outside pressure groups
  • Some Donors have made demands that can undermine university provision of unbiased, high-quality research
  • Accommodating ethically questionable Donor demands can undermine public confidence not only in individual researchers, but in entire institutions and even in the broader academic enterprise
  • Stronger, more secure, and more stable funding for universities—without strings attached—would help insulate universities from undue pressure by outside groups
  • Universities should work together to secure their financial and intellectual independence, articulate clear ethical standards, and enforce those standards

 

I recently documented efforts by a well-organized network of libertarian and conservative academics, advocacy groups, and media organizations to foster resentment toward universities and then gain control over them, under the pretense of supporting free speech.[1] These efforts continue a decades-long assault on higher education, and have been remarkably effective at tarnishing universities’ reputations. This has paved the way for legislation that further undermines universities’ intellectual and financial independence.[2]

A complementary threat to academic integrity comes from powerful outsiders exploiting universities’ financial needs to leverage relatively small donations into enduring influence over faculty, curriculum and student life. Such money-for-influence arrangements could alter what research gets produced, and by whom.

Outside funding can increase research output and impact in media and policy circles. It can fund great research that might not have been produced otherwise. But funding under inappropriate terms risks undermining the central and unique role that universities play in society as providers of high quality, reliable, and unbiased information. This could quickly destroy the goodwill and trust that universities painstakingly cultivated over decades (in some cases, for centuries).

This issue has come to a head recently with press coverage of some financial relationships and recently disclosed contracts between conservative and libertarian donors (including foundations and re-granting organizations funded by the prominent Koch family) and George Mason University.[3] Much of the controversy relates to a libertarian / free-market embedded think tank at George Mason, The Mercatus Center, which provides supplemental compensation and resources to GMU’s economics faculty and some law faculty members, as well as opportunities to produce commissioned research on timely policy issues. Through Mercatus, the university has received tens of millions of dollars in donations.

GMU faculty members’ chances of obtaining funding and resources apparently did not depend exclusively on an unbiased assessment of their intellectual rigor and academic contributions, but rather appear to have depended at least in part on the political implications of their research. In contravention of academic ethical norms, donors had substantial influence over which faculty members would receive compensation supplements known as “chairs” or “professorships.” Donors maintained control through representation on selection committees, evaluation committees, rights to recommend removal of chair holders, gift rescission rights, and key-man clauses for senior executives, including the dean of the law school.[4]

The language of several contracts suggested that only libertarian or economically conservative faculty members would be eligible to hold professorships or chairs. For example:

“The objective of the Professorship is to advance the . . . acceptance and practice of . . . free market processes and principles [as] promot[ing] individual freedom, opportunity, and prosperity . . . The occupant of the Professorship (“Professor”) shall . . . be qualified and committed to the forgoing principles.”

Rudy Fichtenbaum, president of the American Association of University Professors said “When you start getting into a study of free enterprise then you’re really, I think, stepping into a territory where you’re promoting a political agenda.”[5] Donors may specify a topic of study or type of expertise for a holder of a chair; but they should not specify the chair-holder’s politics.[6]

Critics say Mercatus’s ideologically based funding tips the playing field at GMU in favor of the production of economically right-wing scholarship and the retention of economically right-wing scholars and instructors. Neither Mercatus nor GMU appear to have imposed any limits on the fraction of a faculty member’s total annual compensation that could come from non-state sources such as Mercatus.[7] This is unusual—many funders and universities worry that too much outside funding creates the appearance of impropriety.[8] At least one prominent member of the GMU faculty with a Mercatus affiliation derived over 40 percent of his compensation in 2016 from “non-state” sources, according to public records.[9]

Without supplemental compensation from Mercatus, GMU faculty compensation appears to be uncompetitive with comparable institutions.[10] Thus, working at GMU may not have made sense financially for economists or law professors who were unlikely to obtain Mercatus compensation supplements—i.e., those whose scholarship might support increases in taxes, an expansion of public investment or social insurance, or more stringent regulations of business. At least one moderate economics faculty member says that she “carefully chose [her] research so it wouldn’t be objectionable” to her more conservative colleagues.[11]

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May 14, 2018 in Guest Blogger: Michael Simkovic, Law in Cyberspace, Legal Profession, Of Academic Interest, Professional Advice, Religion, Science, Student Advice, Weblogs | Permalink

May 11, 2018

$43 million gift to UVA law

$25 million from one alumni couple and another $18.9 million in matching gifts in their honor.  UVA Law already has the fifth largest (gross) endowment among U.S. law schools.


May 11, 2018 in Legal Profession, Of Academic Interest | Permalink

May 04, 2018

Some choice words from the founder of Thomas Cooley Law School, Thomas Brennan

From Politico:

The recent tax records show that school’s 88-year-old founder, Thomas Brennan, a former Michigan state Supreme Court justice who stepped down as Cooley’s president in 2002, has continued to be paid more than $329,000 a year as an emeritus professor even though he works only five hours a week. An audit released last year revealed that under his contract, Brennan is entitled to receive a salary “based on two times the salary of a Michigan Supreme Court Justice, plus certain other benefits, until his death.”

 

The school said Brennan was also unavailable for an interview. He has continued to speak out publicly, however, through his “Old Judge Says” blog, in which he offers commentary that might easily be perceived as anti-Islamic, homophobic and radically insensitive. In a 2016 post, he remembered with affection the blackface minstrel shows of his youth. He recalled how he and his brother performed in local minstrel shows in the Detroit area, “our faces blacked to the teeth.”

 

“In these days of political correctness, the whole idea of minstrelsy seems preposterous,” he wrote. “But the truth is that minstrelsy was fun.”

 

Other blog posts have criticized the move in Southern states to remove the statues of Confederate Army generals from public spaces. “Political correctness is running amuck,” he wrote. “The Civil War did in fact occur. And there were good people on both sides.” He has labeled Islam “a primitive belief system which comingles [sic] religious doctrine with civil law.” He described the 2015 Supreme Court ruling that guaranteed the right to same-sex marriage as “evil.” The decision, he said, meant that “our beloved nation will slide further toward Armageddon.”

Quite a racket the old parochial bigot has going!


May 4, 2018 in Faculty News, Law Professors Saying Dumb Things, Legal Profession, Of Academic Interest | Permalink