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.

8 Responses to Another great proposal for thought-policing law students

  1. Don’t hold your breath on that FB request.

  2. Jay, You might have enjoyed the panel. Most of us, definitely including myself, found the notion of forwarding anything beyond criminal convictions for true threats to character and fitness committees very troubling. As Deborah Rhode’s brilliant work makes clear, character and fitnesses committees impose widely varying and seemingly arbitrary standards. An aside: in my work, I have not urged a standard of care that would require IP retention for character and fitness committees. That suggestion sought a way to faciliate the identification of individuals facing legitimate tort suits and criminal claims (with a concomitant strong John Doe subpoena standard). You seem to be making an important though (aside from the error about my view): requiring IP retention could have unfortunate collateral consequences (like using that for character and fitness committees). I agree with that concern and have been rethinking that proposal as I move forward. Your work has been very illuminating in that regard. Much thanks, Danielle Citron

    • J DeVoy says:

      Danielle:

      First, great to have you participate here. Do you know if there will be a podcast, recording, transcript or summary of the panel’s discussion available at some point? Clearly I wasn’t there, but you’ve piqued my interest in seeing exactly what was said.

      Also, thanks for the clarification regarding your work and I’m glad that it’s constantly being reconsidered to accommodate privacy concerns. I agree that having longer IP retention periods would help when issuing John Doe subpoenas, but question the value of doing so, even independent of legal requirements, because of the costs others must bear so that a few can vindicate their rights in the face of real wrongs.

  3. Jay, I think AALS did podcast the event so I promise to post it here in a comment when they do. It really was illuminating. Again, thanks for pressing all of the arguments that you do in such a sophisticated and challenging way. I look forward to reading more of your work. Danielle

  4. Mimbreno says:

    Jay, kindly stop smearing foraging cultures by comparing us to law schools. Thank you.

  5. Jay says:

    OK, just my opinion here, which you can freely ignore, but based on the first two paragraphs of this blog post, I’d suggest you’d consider giving up the idea of being a lawyer and do something else. Seriously. Because if you’re already worried about your place within the legal profession and think you might not have any chance at all against the privileged class and high-performing students, then you’re scuppered, man. Scuppered. If you are placing yourself in the undesirables category, then that’s exactly where you’ll be. Why do you want to be a lawyer?

    Alternatively, you could decide your own fate. You might succeed, you might not. The only thing that can ever hold you back is you. Yes, life will regularly kick you in the balls. You just need to deal with it and kick life back. It’s supposed to be hard; that’s how you know you lived.

    I don’t know, maybe I’m misreading those two paragraphs. Apologies if I am.

    • J DeVoy says:

      I enjoy law school and, without posting a resume, am reasonably secure in my accomplishments. The thing that scuppered me was having Lehman Brothers file for bankruptcy and Merrill Lynch fire sold to Bank of America (the sad equivalent of Nordstrom selling itself to Walmart) on the day of my first callback. That set the tone for larger firms scaling back their recruiting, while smaller firms passed on my friends and I who had credentials far above what they normally received. We were told we had “tons of options,” as the gravity of the situation was lost on them.

      It worked out and I had a great summer learning a lot from exceptionally talented attorneys. Things will be fine in the long run. All things being equal though, I’d rather be the guy at Harvard than Case Western — at least with regard to starting positions for one’s career.

  6. [...] days ago I wrote about Danielle Citron’s proposals and participation in an AALS panel about student speech and character and fitness review.  Though I disagreed with some of her proposals, we did find some common ground in that [...]

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