Another great proposal for thought-policing law students

By J. DeVoy

With one semester left to go in law school, I’d compare my experience in legal education to being a member of a barbaric tribe of hunters and gatherers.  As a group, there are too many of us for existing economic opportunities, even in good times, yet we cannot simply cut out the undesirables.  For those at the top of the grades/prestige hierarchy, an embarrassment of riches — being wined and dined in faraway cities during interviews and the dog-and-pony show known as summer associateship — is ours theirs.  For everyone else there is little, if anything.  Occasionally, one of the undesirables, someone with low prestige or poor grades, is able to move into one of the few apex positions at the top of the tribe and even transcend it.  Through good lawyering, luck, or connections, he performs the modern equivalent of hitting the dominant alpha lawyer in the back of the head with a really big rock and taking the deceased’s harem, children and physical possessions all for himself.

Juxtaposed with this chaos is the highly regimented legal profession and equally stringent requirements for entry.  As zero-sum as the law student’s realm is, where grades and jobs are finite, a forced superstructure of collegiality creates needless pleasantries and orthodoxy among law students.  People censor themselves for fear of retaliation by professors or future colleagues.  As lax as some would contend the bar is, it does keep out people who would tarnish its reputation.  For instance, avowed white supremacists are precluded from entry.  Similarly, those with nearly half a million dollars in educational debt and no means to repay it are also banned.  But now a new barrier to entry is being proposed.

Danielle Citron, a frequent subject of this blog and erstwhile proponent of stamping out speech she thinks is yucky, was recently on a panel that considered whether jeering people online or making “outrageous” race- or gender-specific comments should be subject to stricter scrutiny upon character & fitness review.  Eugene Volokh offers a probing analysis of the issues this proposal raises.  Two points in particular stand out.  First, this would defeat the rigorous inquiry of ideas and facts that legal education encourages, even if it leads people to take positions Citron and others might find “outrageous.”  I’d shudder to think what this nebulous standard might entail, since reality can lead to some very uncomfortable truths about race and gender.  For instance, black children from rich families are outscored on the SAT by poor whites, a trend that has not improved since the test moved to having three scored components.  Surely some find this outrageous, but the data are clear, and solutions to eliminate discrimination — if there is any, another subject for research — cannot be proposed unless someone brings this information to light.  Forcing someone to risk his or her professional career because of the difficulty in confronting this information is unseemly and contrary to the notion of open, rigorous discussion within the university context.  Without deep, probing examination of tough problems, mediocre solutions arise.  The failure of SAT-optional admissions is one example of this principle, as that process has become the backdoor of dumb rich kids into good schools that the most cynical of us always knew it would be.

Second, as Volokh notes, these kinds of panels — not limited to the AALS, but in general — are a great source of pie-in-the-sky psychobabble, but never produce anything tangible.  Citron herself has been bandying about the idea of requiring the disclosure of prior IP addresses to character and fitness examiners for years, yet it is no closer to being a requirement in any single state than it was at its watershed moment in 2007, the filing of Doe v. [a few dozen AutoAdmit posters].  Until a real proposal or model rule is promulgated, it’s easy and even rational to discount these kinds of panels as Lake Wobegon exercises by people who bemoan the plight of the little people before returning to the warm trappings of tenure and a tower of ivory.  It’s simple: Production counts.  Until such a panel creates something that can be implemented by state bars, they will be looked at with a jaundiced eye.  Meanwhile, people who follow such matters will wonder why the AALS isn’t devoting its resources to wresting sole law school accreditation authority away from the obviously incompetent ABA and shutting down some schools, especially the dubious for-profit ones.

Finally, I feel that it looks I’ve been too harsh on Danielle Citron.  Despite not blogging for long, I have dedicated a substantial amount of writing to her and her proposals.  Though disagreeing with many of these positions, I have respect for professor Citron and especially her prolific publishing.  As of this writing, I’ve requested to be her friend on facebook.  Hopefully she’ll accept.