Monday, December 30, 2013
Judge Rakoff on the failure to prosecute any high-level executives in the wake of the financial crisis
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.
Friday, December 27, 2013
Saturday, December 21, 2013
Since we recently commented on a not very edifying review, here's a new one that is both informative and (almost entirely) accurate about the arguments in the book (see it's not that hard!) and makes some fair criticisms.
ADDENDUM: Given the time of year, I should note that Why Tolerate Religion? will fit nicely in most stockings!
Friday, 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!
Wednesday, December 18, 2013
Why Tolerate Religion? has had a good 12 months, with almost 3,000 copies sold, nice reviews in the popular media in Britain, Italy, Denmark, Sweden and elsewhere, and French and Italian translations already in the works (and an English paperback edition next fall). While "new atheist" types have generally been critical of me for not being intolerant of religion, some religious believers have, not surprisingly, taken a different view. The Family Research Council (a far right religious organization in the U.S.) condemned the book as, "[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time." (I have urged Princeton University Press to put this on the dustjacket!) More soberly, First Things, a conservative Catholic magazine of ideas, worried that I had outlined "what may well become the theoretical consensus used to reinterpret the First Amendment." This struck me, but not them, as wild optimism. Most recently, an Elder of the Mormon Church gave a major public address in which he discussed my argument, concurring with my defense of liberty of conscience, but disagreeing that religion should not be legally "special."
Although my 2001 paper on "Legal Realism and Legal Positivism Reconsidered" (Ethics, 2001) was chosen as "one of the ten best papers" of the year by The Philosopher's Annual; although my 2002 book Nietzsche on Morality (Routledge) has been called "arguably the most important book on Nietzsche's philosophy in the past twenty years" (Journal of Nietzsche Studies, 2010); and although my 2007 collection of essays Naturalizing Jurisprudence (Oxford) was lauded as "an important book by one of the most influential legal philosophers of our time" (Notre Dame Philosophical Reviews, 2010), I have to confess that the Family Research Council, First Things, and the Mormon Church let these momentous works pass in silence (so did the Yale Law Journal and Harvard Law Review, see infra). Go figure?
But not Why Tolerate Religion?!
Now within academia, where religion looms less large, the reaction has been friendlier than in the public religious sphere. The political theorist John Gray, writing in Britain's New Statesman, called the book, "A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading." Religious liberty scholar Christopher Eisgruber, formerly of NYU Law School, and now President of Princeton University, said, "Every reader will learn something from this remarkable book, and, beginning now, every serious scholar of religious toleration will have to contend with Leiter's bold claims." And the Harvard Law Review opined that the book "exposes several tenuous assumptions underlying the predominant justifications for religious exemptions. At the same time, it provides a fresh and intuitive framework for analyzing conscience-based objections to facially neutral laws that should appeal to legal practitioners, jurists, and philosophers alike."
Given the preceding, I was gratified and a bit surprised that the most distinguished and accomplished conservative scholar of law and religion in the United States, Michael McConnell of Stanford, took the time to pen a lengthy review of my book in the Yale Law Journal: that he felt the need to write 40 pages on a 185-page book tells me I must be on to something! (The second most distinguished and accomplished conservative scholar of law and religion [yes, I rank those too], Michael Stokes Paulsen at St. Thomas, will be reviewing it for the Michigan Law Review, and I'm looking forward to that too!) Although McConnell gets the majority of the arguments right, parts of the review do involve mistakes and misrepresentations that sometimes make it read a bit like a "hit job" on a book that, as First Things worried, might actually affect the consensus. (I'll comment on a few of those, below.)
Professor McConnell makes clear at the start why he is worried (citations omitted):
Religious beliefs have always generated controversy. But religious freedom—the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good—has long been a bedrock value in the United States and other liberal nations. Religious freedom is one thing nearly all Americans, left and right, religious and secular, have been able to agree upon, perhaps because it protects all of us. Atheists are protected from imposition of prayer and Bible reading in state schools; churches are protected from interference with the hiring of ministers; religious minorities are protected from majoritarian legislation indifferent or hostile to their concerns. Progressive churches are protected when they oppose segregation or counsel draft resisters; traditionalist churches are protected when they oppose abortion or operate faith-based schools; nontraditional faith groups with unfamiliar worship practices are allowed to carry them out in peace. Because none of us can predict who will hold political power, all of us can sleep more soundly if we know that our religious freedom does not depend on election returns.
When the Supreme Court narrowed its interpretation of the Free Exercise Clause in 1990, in the so-called “Peyote Case,” Employment Division v. Smith, Congress passed the corrective Religious Freedom Restoration Act (RFRA) by unanimous vote in the House and a margin of 97-3 in the Senate. Supporters included the ACLU, the National Association of Evangelicals, People for the American Way, the American Jewish Congress, the Christian Legal Society, and virtually every other religious and civil liberties group. Recently, however, this consensus seems to be weakening—largely from fallout over culture-war issues such as abortion and the legal recognition of same-sex relationships. Many activists on these issues see religion as antagonistic to their interests, and are responding in kind. A new whiff of intolerance is in the air.
University of Chicago law professor and legal philosopher Brian Leiter has entered the debate with his new book Why Tolerate Religion? His answer? Although we should not persecute religious believers, religion as such does not warrant any “special” legal solicitude such as that provided by the Religion Clauses of the First Amendment. “[T]here is no apparent moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” Leiter argues, moreover, that it would be consistent with “principled toleration” for the secular state to affirmatively discriminate against religious believers in access to public spaces, such as by barring student Bible clubs from meeting on public school property, even when every other form of student organization is free to meet. So long as religious believers retain the right to express their own beliefs (including wearing religious symbols and clothing), the regime may advocate a “Vision of the Good” that is “irreligious” and may selectively deny religious believers and religious speakers equal access to public resources and opportunities.
The final paragraph is a very fair summary of my conclusions, though it omits the fact that I also think religious establishment is compatible with "principled toleration" (McConnell does note that later in the review). My book is silent on all the "culture war" issues, except the French culture war issue about banning the head scarf and Jewish skull caps in the public schools, which I argue is a case of impermissible intolerance. I was surprised, however, by McConnell's association of my argument with "intolerance," since it is a resounding defense of liberty of conscience (as the Elder of the Mormon Church correctly noted), including the liberty of religious conscience, but it denies that liberty of religious conscience is more important than other kinds.
Indeed, it is a curious feature of McConnell's discussion that he never offers a counter-argument to this central thesis, other than noting that it entails some conclusions to which he is unsympathetic. If a demand for "equality of conscience" constitutes "intolerance," then I will plead guilty. The closest he comes to contesting the core thesis is to deny the plausibility (at 798-800) of one of my examples of the demands of non-religious conscience. Perhaps McConnell is right that the example is ill-chosen. But only if McConnell believes that the non-religious never have conscientious obligations on a par with those of the religious would this matter. Does he really believe that? He is coy, and I'm unsure, but I would hope he doesn't accept such an absurd conclusion. [Note: I will cite McConnell's review by page number, and my book as WTR followed by page numbers.]
Among hostile readers, McConnell is admirable for how much he gets right about the actual argument of my book. And he makes two quite important, critical points, that deserve further discussion by those interested in these issues (including me when I return to them!):
(1) I do assume, reasonably but without extended argument, that the most epistemically reliable standards of reason and evidence are those that have emerged from the natural and human sciences since the scientific revolution. McConnell is right to call attention to this assumption and the role it plays in parts of my argument (though not quite as many as he appears to believe) (786-789). His concrete challenges to the assumption are, alas, mostly silly, including invoking the authority of Thomas Kuhn and Richard Rorty (apparently unaware of the vast literature post-Kuhn in the last fifty years, or that Rorty is not, shall we say, a philosophical "authority" in these matters), and invoking Alvin Plantinga, a leading philosopher of religion and apologist for the rationality of religious belief. He doesn't actually defend Plantinga's view on the merits, he just complains that I dismiss them without considering their merits. Fair enough, I do invoke the philosophical consensus about the rationality of religious belief, and for a simple reason: others have written other books on this subject (e.g., Mackie's The Miracle of Theism), and I can't do better than what they have already done. McConnell seems miffed by invocations of epistemic authority, even though his essay is awash in such moves--for example, when he objects that I can't say it is "unwarranted" to believe in God when "many persons, including thinkers of the first rank" (788) do so. He can't, unfortunately, have it both ways: if the opinions of "thinkers of the first rank" count, then the fact that most disagree with Plantinga also counts. McConnell is right to call attention to the fact that if the philosophical consensus is wrong about the epistemic status of some religious beliefs, that will affect some of my arguments (though not, e.g., the ones he singles out at p. 801). But the only relevant response is on the merits of the epistemic arguments, about which McConnell is utterly silent.
(2) In the final chapter of the book, I argue that exemptions from neutral laws of general applicability should be available to all conscientious objectors, as long as they do not involve shifting burdens on to others. Although McConnell confuses the idea of "burdens" with the Millian Harm Principle (803, 805), he correctly objects that I do not say nearly enough about what constitutes acceptable and unacceptable burdens to help with the resolution of concrete cases, and offers some useful examples (803-807). He even notes that the "logic of [Leiter's] arguments may be more supportive of these claims for exemption than the more generalized rhetoric...would suggest" (807), though I would suggest the problem is that he read things into the "rhetoric" and ignored the "logic"!
In what follows, I want to correct five mistakes about or misrepresentations of the argument, and then comment on three misunderstandings or confusions (readers of my book will have to decide whether I am culpable for the latter--some reviewers have had related confusions, but others have not). Most of the mistakes are minor (though some revealing), while the misunderstandings are perhaps more significant. I conclude with a brief comment on a "cheap shot" that ill-befits a scholar of McConnell's reputation.
One generic comment: McConnell, unsurprisingly given his expertise, mostly talks about the U.S. First Amendment, but my book is not about American constitutional law, and the First Amendment figures only as an occasional example, along with cases from France, Italy, Germany, Canada, and elsewhere. I am interested in whether there is a moral justification for giving religion special legal solicitude, as all the Western democracies do; it is clear from my book that I think American First Amendment jurisprudence is in many respects--from "hate speech" to free exercise--morally indefensible. When McConnell chastises me for ignoring the history of the First Amendment, notes differences between my view and the justifications offered in Employment Division v. Smith (797-799), or notes that I disagree with the outcome in Smith given the facts (803), he is having a dialogue with himself, not my book. I won't belabor these distractions in what follows.
Tuesday, December 17, 2013
The ABA report is here:
The 202 ABA-approved J.D. programs reported that 39,675 full-time and part-time students began their law school studies in the fall of 2013. This is a decrease of 4,806 students (11 percent) from the fall of 2012 and a 24 percent decrease from the historic high 1L enrollment of 52,488 in the fall of 2010.
Approximately two-thirds of ABA-law schools (135) experienced declines in first-year enrollment from last year. At 81 law schools, 1L declines exceeded 10 percent.
At 63 schools, 1L enrollment increased from 2012. At 27 of those schools, enrollment increased 10 percent or more.
At 34 schools, the number of 1L students stayed within five students above or below last year’s figures.
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.