Greg Lukianoff: How Campus Censorship Breeds Incivility, An interview with Wendy Kaminer

December 27, 2012

I am both psyched and honored that Marc asked me to contribute to The Legal Satyricon. I am a First Amendment lawyer and president of FIRE, the Foundation for Individual Rights in Education. Marc and I know each other through the First Amendment Lawyers Association, a group of bad-ass attorneys that have devoted their careers to defending the rights that make all other freedoms possible.

For my first post, I’d like to debut a great new interview I did earlier this year with author and Atlantic columnist (and FIRE Board of Advisors member) Wendy Kaminer. Wendy is a no-nonsense defender of civil liberties who shares a deep understanding of why campus censorship—the field in which I work—should concern everyone right, left, and center.

The interview includes discussion of everything from the rise of wildly broad bullying policies, to the role of pop psychology in leading to the campus-speech-codes movement, to how campus censorship interferes with opportunities for students to develop critical thinking skills (a point I hit repeatedly in my new book Unlearning Liberty: Campus Censorship and the End of American Debate. All royalties from the sale of the book go to FIRE, by the way).

I thought her point here was particularly interesting:

There is this trend towards protecting students from whatever is considered offensive or insulting or uncivil speech. And the consequence of that is that they get out into the world and they don’t know how to argue. I’m afraid we’re going to be plagued for a very long time by these mindless, stupid mindless shouting matches that now dominate our political debate.

You know, it’s one of the ironies of this drive for civility that when you label argument or any kind of offensiveness as incivility and you write all these civility codes and you discourage people from vigorously arguing or engaging in satire that makes fun of other people or makes fun of their sacred cows. The irony is that you end up encouraging incivility because people don’t know how to argue. They don’t know what to do when confronted with an idea they really don’t like. They don’t have an administrator they go complain to, and so they just shout it down because they haven’t learned how to do anything else.

Sing it, Wendy.

Both Wendy and I fully agree that civility, otherwise known as “politeness,” has some value, but it is nowhere near in value to the crucial role of debate, discussion, and candor in a free society. I think she is right when she says that attempts to force civility actually foster group polarization and what I call in my book, an unscholarly certainty about complex issues.

I encourage readers to check out Wendy’s recent column about a controversy at Harvard where, as is often the case in my experience, the campus interpreted an obvious piece of satire and social commentary to mean precisely the opposite of what it almost certainly meant (and don’t take my word for it, the experts over at Comedy Central agree, as well.

In closing, Marc suggested I just come out and ask that you support FIRE. No nonprofit works harder or gets more done with less than this little organization that punches way above its weight. Thanks again to Marc, have a happy new year, and I hope to write again after I get back from my long-delayed honeymoon in late January.

-Editor’s note – we put our money where our mouth is. I donated to FIRE this year. I urge you to as well.


Let the punishment fit the crime?

October 19, 2012

This year, Highland Middle School in Anderson, Indiana purchased iPads as an enhancement tool for student education.  Unfortunately, the teachers weren’t given a crash course on how iPads work before the tablets were introduced to the kids.  One teacher at the school decided to take some topless photographs of herself on her iPhone and proceeded to accidentally sync her naked pics to one of the school’s iPads.

Inevitably, four boys borrowed the offending iPad, opened up iPhoto, found themselves confronted with their teacher’s boobs, and did what any 13 year old boys would do in that situation.  They turned the iPad over to the administration so that other students wouldn’t see the photos.  Wait, what…?

Alright, these may be the most honorable 13 year olds on the planet.  So, of course, Highland Middle School recognized this and gave the boys the credit they deserved for not circulating their teacher’s naked chest all over the school.

Actually, no.  One of the students was given a warning.  Two were suspended.  And the fourth was expelled.

Highland Middle School is defending the punishment, claiming that the students violated its technology policy.  However, the school won’t explain how.  While the school tries to figure out what, exactly, these kids did wrong, the rest of the country can be thankful that they don’t live in Anderson, Indiana.


Happy Banned Books Week!

October 2, 2012

Read this today


In 1982, the Supreme Court found that students’ First Amendment rights were violated when the Island Trees School District removed Slaughterhouse Five and eight other books from library shelves. This served as the inspiration for a week-long celebration of the freedom to read, and thirty years later, Banned Books Week is still going strong. Source.

Sadly, book banning is not something that has been relegated to the dark days of an intolerant past. There are plenty of pearl clutchers and busybodies out there who work diligently to make sure that theirs is the only viewpoint that matters. You know…to protect the chiiiilllllldren. The group seeking to ban books is overwhelmingly parents (shock) and sexual activity is the most popular reason. Just so you know, violence came in at fifth place behind bad language and “other”. Source.

So please take some time this week to celebrate the written word and give a virtual middle finger (or literal if the opportunity presents itself) to those who think a book on a shelf can hurt anyone or anything.


Rape – now provable by the lowest burden of proof available.

April 25, 2012

By J. DeVoy

Last year, the Education Department’s Office of Civl rights issued a now-infamous “Dear Colleague” letter to universities across the country, reminding them of their Title IX obligations to students in disciplinary proceedings.  That letter’s consequences are now being seen at the University of North Carolina, which has enacted a two-tiered disciplinary system.  Infractions of UNC’s 100+ year-old honor code will be handled by its long-standing adjudicative process, and require the accused to be found guilty beyond a reasonable doubt.  As this standard applies in other criminal proceedings, it seems reasonable.

But, where sexual abuse is alleged, the accused needs to only be found guilty by a preponderance of the evidence – the lowest civil burden of truth.  If it is simply more likely than not that the accused committed sexual assault, up to an including rape, he or she is considered guilty in the university’s eyes.

That is hardly the end of it, though.  While the final UNC system for sexual assault charges is awaiting finality, what the ultimate system will entail is bleak.  The procedures UNC administrators found too onerous on the accuser victim were already slanted starkly against the accused:

 • “Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”

• If the accuser has simultaneously filed a criminal charge, “the accused student may be accompanied to the hearing by a licensed attorney who may confer with the student during the hearing so long as the attorney does not address the hearing panel, those hearing the appeal, or other parties or witnesses, and so long as the attorney does not delay or disrupt the proceeding.” (emphasis added)

• In either case, the right of the accused student to present evidence to clear his name is severely limited by a clause that prohibits presentation of evidence that “does not otherwise infringe the rights of other students.” (source)

These provisions are somehow unfair to accusers?  One can hardly imagine the procedures, or lack thereof, that will take their place.

Even if UNC maintains its current procedures and creates a separate body to adjudicate sexual assault charges on a preponderance-of-the-evidence standard, the outcome is clear an unmistakable: An allegation of sexual impropriety will result in university discipline.  Given the severity of sexual assault, such discipline is likely to entail expulsion – and career ruination even if it does not.

Seeing the liability that rushing to believe accusers has caused universities in the past, and that flimsy due process protections have harmed them before, it is surprising to see UNC (and doubtless other schools) moving in this direction.  And while there are many things wrong with higher education that keep men away – skyrocketing tuition untethered to any measure of value, diminishing job prospects, the dilution of bachelors and even graduate degrees due to for-profit diploma mills ranging from the University of Phoenix Online to Florida Coastal University that confer degrees upon even the most marginally qualified students  – turning higher education into a gauntlet where a man can have his life ruined on only the allegation of a classmate, evaluated by the lowest standard of proof and without any input from actual attorneys, is unlikely to reverse the gender skew of college attendance and graduation.


This is COLUMBUS DAY!!!

October 7, 2011

Pick another day, Crybabies!!!!

Pick another day, Crybabies!!!!

This is COLUMBUS DAY.

I’d like to invite anyone whose name ends with a vowel (Persians excluded) to raise their hands, extend their middle fingers, and flip off the Native Americans, the hippies, and everyone else in the International Association of Crybabies who has a piss and a moan about Christopher Columbus.

This is not “indigenous people’s day,” it is not “la dia de la raza” and it isn’t frigging “wear a beret, listen to Joni Mitchell, and wear patchoulli day.”

To the “Native Americans” who have a beef with Columbus Day — suck it. First off, it isn’t as though you sprang from the goddamned earth in Foxwoods. You’re immigrants too. You just wandered across ice to get here. We took boats. You were here first? I give a fuck?

There was a war. You lost. That’s how it works. That’s why the Celts wound up living in Ireland, Scotland, and every shitty rain-soaked crag in which they could cling to life — because they lost wars. That’s why nobody speaks Gaulish or whatever Vercingetorix spoke. They lost the damn war.

Sorry you crybaby fucks. That’s what happens when you LOSE A WAR. Trust me, the Italians know how you feel. We suck at wars. We used to be awesome at them. That ended some time around 400 A.D. Italians are the Chicago Cubs of warfare. (But you’re the Padres)

Tons of us came here to get away from the consequences of being really shitty at fighting wars. It worked out for us. We gave the world the thermometer, barometer, piano, electric battery, nitroglycerin, eyeglasses, the radio, and The Telephone.

We turned ghettoes into neighborhoods where people would kill to have a studio apartment. (Yes, I know that is the Gays’ job now, but it used to be ours) We taught the mayonnaise-faces what good food tastes like. We gave America 39 Medal of Honor recipients. We gave America Filippo Mazzei, John Basilone, Frank Sinatra, Tony Bennett, Lawrence Ferlinghetti, Bruce Springsteen, Vince Lombardi, and Gino the Ginny. You know what their middle names are? “Fuckin” that’s what.

We gave America its NAME for chrissakes.

You know what America gave us in exchange? A holiday. Good enough for us.

And you know what? America didn’t even give it to us, we took it. You know why? Because at the turn of the last century, Italians and other Catholic immigrants weren’t exactly what you would call “welcome” here. Yes, they used to lynch Italians too. So, the Catholics and Italians started organizations like the Knights of Columbus as a way to band together against the bigotry they encountered. They thought that by choosing Christopher Columbus as their symbol, it would show that if an Italian “discovered” America, then as Italians, they belonged here.

So you assholes can run your little left-wing crybaby agenda on any one of the 364 other days. I don’t give a damn if you managed to get every crap stained woodstock love child, fucking peruvian flute band, and liberal academic to weep with you as you look at the pollution on the highway. This is our holiday, and you can kiss my ass if you have a problem with it.

Don’t get me wrong. I generally have nothing but love for my Native American brothers and sisters. I think that they got a crappy deal. I’m with them when they get pissed off at the completely racist Cleveland Indians logo, and I don’t think you should call a team “The Redskins” if you wouldn’t call it “The Jigaboos” (yes, its the same damn thing). I think that America DOES owe the Native Americans a little something — and it ought to be something better than the right to build casinos. We owe them respect, help, and dammit, we ought to put a hell of a lot of effort into preserving their culture.

Shaddap about Columbus Day or I'll give you somethin' to really cry about!

This guy is actually SICILIAN.

But you know what, Tonto? If you have a beef, its with the damn British, the French, the Spanish, and the white-bread assholes who kicked your asses. Lord Jeffrey Amherst gave you the smallpox infected blankets, not Al Pacino. You picked a fight with the wrong people, because the Italians never did jack to you. So get the fuck off my holiday.

Personally, I don’t know why we’re all down on the Conquistadors anyhow. Leonidas killed 20,000 ill-equipped, poorly trained, forced-to-fight losers and we call him a hero for the ages. A couple hundred Spaniards kick the crap out of an entire empire of human sacrificing, child-raping, savage nutbags who make Jerry Falwell look sane, and we think it was an awful sin?

Columbus sailed the ocean blue in 1492 and then your lives started to suck. Boo hoo frigging hoo. The Conquistadors followed Columbus and took all the gold. Yeah that sucks. I got news for you, your lives sucked before Columbus got here.

You know what else sucks? When you screw with our holiday.

So here’s the deal. Take out the calendar. No, not that stupid Mayan one that is going to be worthless next year, the REAL calendar.

You want a holiday? Be my guest. Pick any day on the calendar except October 31, February 14, March 17, January 1, or July 4. I don’t even care if you want Christmas, but picking THAT will be a marketing nightmare.

You know which day would be an awesome Indigenous People’s Day? How about the Friday after Thanksgiving? Most of us have the day off anyhow. The pilgrims wouldn’t have survived without your help. So, the day after Thanksgiving, as we’re all resting up and glad that we have four days in a row off, we can thank you. Thank you for saving the Pilgrims’ asses. Thank you for basketball, and chewing gum, and chocolate. Thank you for potatoes and tomatoes. Thank you for the windtalkers. Thank you for really cool art. Thank you for whatever the hell else you did for us. Thank you for not stabbing every person in a Cleveland Indians shirt. Thank you for not setting off bombs at Redskins games. Thank you for being pretty damn cool about one of the most royal screw jobs in the history of mankind.

But most of all, thank you for quitting your damn bitching about Columbus Day.


Toilet Law School Files Feces Defamation Suit

September 30, 2011

Thomas M. Cooley Law School Diplomas - Take One!


By Marc J. Randazza

I’m not much of a prestige whore, but I’m not blind to the reality that Thomas M. Cooley Law School is a standalone punchline within the legal profession.  I’m familiar with its absurdly large class sizes, its questionable practice of culling the bottom few percent of its students each year to ensure high enough bar passage rates to maintain its tenuous grasp on ABA accreditation, and its bizarre self-ranking system that places an inordinate emphasis on library seating capacity.  After all, “[t]o study, a student needs a place to sit”! (source at xiv.)  Also, if the NFL based its draft selections on US News-style rankings – if they applied to football programs – only 30% of NFL quarterbacks would be on a roster!  Think that sounds like Bullshit?  It’s a major rationale for Cooley’s student recruiting.  Still confused?  Welcome to Cooley Law.

Cooley is an abysmal institution. And, as a blind squirrel eventually finds a nut, and a broken clock is right twice a day, Cooley does accidentally drop decent lawyers into the system on occasion. However, the general public’s esteem for lawyers would improve above cockroaches and approach Nigerian e-mail scammers if this dump were to close its doors — at all four(!) campuses.

And as evidence that Cooley really is the Righthaven of law schools — I present to you this lawsuit it filed against four critical John Doe defendants is even worse.

Naturally, those who climbed up out of the Cooley garbage disposal, only to find themselves with a mortgage-sized chunk of non-dischargable debt and the indelible resume stain of a Cooley law degree, were a bit pissed at the school.  So, a number of people – presumably alumni, former students, or even current ones – began posting at a blog titled “THOMAS M. COOLEY LAW SCHOOL SCAM.”  This is the basis for Cooley’s lawsuit.

If the four defendants had asked me for pre-publication review, I would have advised them against making some of their statements without presenting supporting evidence.  But that poses an even larger issue for Cooley: What if the people it’s suing for claiming the law school’s employees conceal their identities, and are on the take from financial institutions, are correct?  Is Cooley ready for discovery relating to the alleged investigation of “serious Title IV violations”?

Plain and simple, this is a SLAPP suit.  If Cooley were in California, Oregon, Texas, or DC, the Doe defendants would be looking at a healthy payday from Cooley, and would have pro bono representation lined up around the block.  Alternatively, if Rep. Steve Cohen had his way in enacting a federal anti-SLAPP statute, the defendants would have that protection at home.  But because this action is pending in Michigan, the defendants have no such recourse.  Hopefully they won’t have to retain Cooley grads to defend them!

It’s out of character for me to dump on law schools and their graduates out of prestige concerns.  But Cooley truly is on a level all its own in embodying all that is wrong with legal education.  At the very beginning of its Complaint, Cooley brags about having the largest enrollment and four campuses, as if this is a mark of accomplishment.  Harvard and Georgetown have large law school enrollments – but they also send many of their students, and likely the preponderance of them, onto gainful employment – or employment period.  

Can Cooley say that more than half of its graduates in any given year are employed in the law, or at all?  If someone is accusing your nationally mocked law school of being a scam, perhaps bringing a lawsuit over such allegations isn’t the best way to disprove them.  The louder one screams about something, the more likely it is to be the truth – and allegations of “lur[ing]” students to a school so they may be “prey[ed]” upon isn’t something that should be dignified, let alone potentially substantiated, with a lawsuit — if it’s untrue.

Even if the allegations against Cooley are false — so what?  They’re anonymous comments on a blog that are not going to be heralded as being immutable reality.  If the comments are true, then this is the dumbest thing Cooley could ever do.  Considering how many members of Cooley’s faculty are school alumni, though, is it any surprise nobody advised the school otherwise?  

This lawsuit is a heinous crime against free expression.  May an even worse pox than the one currently afflicting it befall that institution for turning the courts into an instrument to beat down free speech and censor the reality that everyone – including many jobless and hopeless Cooley alumni – knows to be true: Cooley sucks.

Read the Complaint.


S.C. Public School Invites Christian Rapper to Perform

September 27, 2011

I understand why people want the government and the public schools to back up their religion. Here you have a bastardization of a 2000 years old cult. It is based upon lies, fairy tales, and superstition. How else are you going to perpetuate this set of beliefs without brainwashing impressionable young kids with it, or getting the government to stamp its seal of approval on it?

If christianity is such a good idea, it ought to sell itself without this blatantly unconstitutional foolishness.

H/T Death and Taxes


Northwestern University: anti-sex whining trumps academic freedom

March 4, 2011

Last week, a human sexuality class at Northwestern University was followed by a non-mandatory demonstration. The professor warned everyone that it would be “explicit and graphic.” 467 of the 567 students in the class left. 100 stayed behind “to watch a sexual act involving a woman, a man and an electric-powered device.” (source)

Initially, Northwestern had a pair of academic balls.

As the incident gained notoriety in the Chicago media, Northwestern University initially supported Prof. Bailey.

“The university supports the efforts of its faculty to further the advancement of knowledge,” a Northwestern spokesman said earlier this week. “Northwestern University faculty members engage in teaching and research on a wide variety of topics, some of them controversial.” (source)

But, after an “outcry” by “a substantial number of people expressing concern and unhappiness,” the University changed its mind.

What I would like to know is how many of these “people” who were “expressing concern and unhappiness” were actually in the room? If any, they were forewarned. (So they should fuck off) or the were not in the room (and thus should fuck off). College kids can handle seeing a live sex act, especially when done in the context of a human sexuality class. Anyone who is scandalized by it should, in a painful manner, fuck off.


ABA mulls dropping LSAT requirement

January 13, 2011

By J. DeVoy

Once upon a time, professions had meaningful barriers to entry.  The inability to participate was not a mark of personal failure for the unsuccessful applicant, but an indicia of the profession’s selectivity, a characteristic retained largely for the public’s benefit.  One such guild was the ABA — until the mid 1990s.  Around that time, Janet Reno put a vise grip on its balls with the DOJ, making it enter into a consent judgment that required the ABA reduce the hurdles needed to enter law school.

The aftershocks to this consent decree have been clear for the last decade.  New schools constantly open at a rate of approximately 10 for every one that should actually exist (U.C. Irvine gets a pass).  Rudimentary legal work that, while low value, provided experience to new attorneys, is shipped off to India without requiring India to make a single concession back.  The ABA won’t carte blanche refuse to accredit overseas law schools.  And now, all but knocking down the last piece of battered fence keeping the teeming hordes out of law school, the ABA is considering making the LSAT optional.

On one hand, the LSAT is an arbitrary measure of potential with tangential relation to skills needed to compete in law school.  Like everyone, I too know smart people who bombed it and idiot strivers who did well after studying for three years.  I also know smart people with good scores and dumb people with appropriately bad ones.  As bad as the system may be, there is a need to group people roughly by cognitive ability and order them – something easily done by the LSAT’s 120-180 point scale.  When coupled with GPA, people of similar ability are, on paper, put together and then sorted into the academic institutions that best suit their ability.

To the extent the LSAT has value outside of an applicant’s score, it demonstrates the commitment to study for and take a test that could run an applicant several hundred dollars in expenses.  Law school applications, compared to PhD and even MBA processes, are a joke.  LSAC allows you to upload essays to its site and batch-process them with applications to several schools.  Virtually no school requires more than three essays, including optional ones that address diversity and interest in the school.  Considering that most colleges are bad and a high GPA can be manufactured with a series of intro-level courses, the LSAT is the only difficult thing about applying to law school.

The beneficiaries of this process will be law schools, like the colleges that dropped the ACT/SAT requirement before it.  Thousands more people will pay application fees directly to schools with the unfounded hope that they can gain admission.  If the system works as the starry-eyed applicants hope, either bar exam passage rates will plummet or school dropout rates will greatly increase.  It does not take much of a logical leap to see that the people to whom this prospect would be most appealing are also the most likely to bomb the LSAT, and want to preempt a bad score (despite a policy change a few years ago that allows for multiple retakes without penalty).

Ultimately, the LSAT will still be the best predictor of law school aptitude, even if an objectively bad one, but allow schools to admit more subjectively interesting candidates without this admissions priority being reflected in its LSAT or GPA reporting.  The same kind of Worldcom-style accounting that controls employment reporting for law schools will come to its admissions statistics as well.  Beyond defeating the utility of sites like lawschoolnumbers.com, this decision would make admissions a black box process at schools that choose to go along with it.

By obfuscating student quality, the employment prospects all but 5-10 elite schools would suffer, as employers would not be sure just what quality of students they were getting.  While a law school has time to pay its recent graduates $8/hour to sift through applicants who couldn’t be bothered to take the LSAT and find the touchiest, feeliest application of them all, a law firm does not have that luxury.  Nor does it want to.  The best thing a lawyer can have is information, and for law schools to deprive employers of that vital resource is a disservice to its students.  Nobody, rationally, would buy something of unknown contents or quality.


Good News; Racism Solved

January 4, 2011

by Jason Fischer

Regular readers of the LS know how we feel about thought control through the implementation of Newspeak.  (We think it is retarded).

Apparently, there are at least a few out there who have a hard-on for eradicating crimethink.  In their latest effort, a newly sanitized edition of Mark Twain’s classic, The Adventures of Huckleberry Finn, will be published as part of a collection that is more suitable for classroom consumption, i.e., sans all uses of the “n-word.”  In its place, the publishers, NewSouth Books, have inserted the word “slave.”  Also deemed too offensive for print: “injun”

H/T Evren Seven


Advice to Law Students looking for a job — don’t be a goddamned crybaby

December 22, 2010

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

Precisely.

Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.


Jamey Petree – Asshat of the Week

November 12, 2010

A Michigan father has filed a lawsuit against his daughter’s local school district, claiming that her civil rights were violated when her fifth-grade teacher read certain portions of a children’s book by Julius Lester, the noted civil rights scholar and author. The passages from the book apparently used the word “nigger” in them and discuss the buying and selling of slaves.

Lester’s book, From Slave Ship to Freedom Road, is intended to teach children about slavery in the United States. From the Amazon.com review:

Slavery is a difficult concept to address with children, especially because many adults would prefer to forget that period of American history. In From Slave Ship to Freedom Road, award-winning author Julius Lester takes older children (and adults) on an intense, personal journey through the slave experience. As he gently explains the factual horrors of slave-ship conditions, auction blocks, plantation life, and the risks associated with escape, Lester consistently prods young readers with probing questions: “How would I feel if that happened to me?” “Would you risk going to jail to help someone you didn’t know?” “You are free, but are you?” Lester also asks us to imagine the voices and feelings of the African Americans in the illustrations–another brilliant call for active participation.

Rod Brown’s paintings are achingly vivid, so much so that a few may be too powerful for younger children. Certain depictions are difficult even for adults to bear: a lynched man with the bloody blows of a whip marking his back; slaves stacked seven-high in the hold of a ship, packed onto shelves with less room than the drawers of a morgue; and black bodies bobbing in the ocean. These are horrible images, but nonetheless historically accurate and important to remember. Brown took seven years to create these startling images, and his careful attention is reflected in the paintings’ power and emotion. Children may be initially startled by From Slave Ship to Freedom Road, but they will also be engaged and enlightened. (Ages 10 to 13) (source)

Petree, of course, seems to have internalized the crybaby reflex that any time a black person hears the word “nigger,” a lottery ticket falls into his lap. Unfortunately, nobody taught this asshole that neither he, nor the African American community at large gets to own any word – not even “nigger.” Lets take a look at his legal arguments:

The school district violated the state Elliott-Larsen Civil Rights Act by inflicting “intentional racial discrimination, disparate treatment and/or outcome, racial harassment, (and) hostile environment,” the lawsuit says. The district also intentionally inflicted “emotional distress, racial discrimination and racial harassment” as well as “retaliation for refusing to acquiesce” in committing those acts, the lawsuit says.

The actions “have proximately affected the conditions of learning duties and the advantages of her further education, and seriously affected her mental and emotional well-being, past, present and future.” (source)

If Petree’s daughter’s emotional and mental well being are damaged, there are likely only two causes — the legacy of slavery itself, which her dad seems to think she should not learn about, and the natural consequences of being the daughter of an abject tool.


An evening with Chief Justice John Roberts

October 22, 2010

By J. DeVoy

On Tuesday, October 19, John Roberts visited his home in Buffalo, New York, and gave an uncommonly intimate talk at Canisius College.  Rather than a lecture with a specific topic, Roberts sat down with Canisius alumnus and trustee (and Harvard Law grad) Joseph Hassett to discuss pre-selected questions by students and alumni.  In an unusual act of bravery, Roberts later took questions from the floor.

The Chief Justice led off with a discussion of the Court’s technological advancements.  Transcripts from oral arguments are now posted at the end of the day of argument, with audio recordings available on a 3-5 day delay.  While not going so far as to allow live broadcast – something Roberts acknowledges has positive and negative aspects – this is a step forward for the historically stoic institution, which by its very nature is resistant to sudden or unproven changes.

Roberts then took an on stage seat opposite Hassett and began his dialogue.  The rough highlights are as follows:

Most decisions are not difficult, controversial or particularly contentious.

Many of the Court’s decisions are unanimous or with little question as to their outcome.  A great example from last term is U.S. v. Stevens, where only Alito dissented about the First Amendment protection of crush films.  Of course, the narrow decisions tend to be over sexy issues, like gun control and – surprisingly – campaign finance (though cast as a big business issue in FEC v. Citizens United), that already have captured the public’s attention.

Elena Kagan is a valuable addition to the Court and already participating constructively.

Despite a lack of experience at the appellate level, and a thin résumé as a practicing attorney, Roberts had kind remarks about Kagan.  Obviously, though, Roberts wouldn’t comment on the likelihood that Kagan will have to recuse herself from a number of cases likely to come before the court, or how her true prowess as a Justice has yet to be revealed to the public — Kagan has yet to publish a single opinion as the mouthpiece of any court.

Nonetheless, the nomination process for Supreme Court Justices is pointless.

Ironically, this is an indictment many made of Roberts for painting himself as an independent centrist when his record of decisions puts him squarely in the court’s conservative bloc.  Roberts was probably telling the truth during his confirmation hearings, and likely does view himself as an independent centrist… as did Sotomayor and Kagan when they described themselves similarly, despite their radically different jurisprudential perspectives.  Roberts’ point is that the system is broken – Harriet Miers excluded, the people nominated to the Court are qualified, and ensuing hearings are little more than regurgitating the same trope about being “independent,” “centrist” and “in the mainstream,” however starkly those claims clash with reality.

Pre-law classes are worthless.

Roberts went out of his way to condemn a pre-law curriculum, but carved out exceptions for classes that give undergraduate students grounding in basic legal concepts, such as a survey-level constitutional law or civics classes.  Describing a broad liberal arts-based education as the ideal foundation for later legal education, the Chief Justice wasn’t saying anything new.  For those unsure about a career in law, though, a broad liberal arts education probably doesn’t look great to potential employers.

It’s possible that the reality of the poor legal market for recent graduates hasn’t seeped up to his level of awareness, as Supreme Court clerks aren’t hurting for jobs, but Roberts made no mention of the bad conditions for starting attorneys.  But why would he?  If anyone is the profession’s standard bearer, it is him, and it would look bad for Roberts personally, the Supreme Court, and lawyers as a class if he began railing against (or merely acknowledging) for-profit diploma mills with anemic bar passage rates and employment statistics that are on life support.  We can do the dark bidding of the lord below and speak unvarnished truth about law as a profession on this blog, so it’s good for someone like Roberts to be the stately public face of an esteemed vocation.

Clerkship hiring will likely continue to be restricted to the top schools.

When asked about the hiring of his judicial clerks, Roberts said he relies on recommendations from other judges and faculty, as well as demonstrated excellence.  In fairness to Roberts, his roster of clerks has been more diverse than other Justices’.  Relative to peer schools Yale, Harvard and Stanford seem underrepresented, while NYU and Columbia are shut out to make way for graduates from George Washington, Vanderbilt, Berkeley and a surprising number of Virginia graduates.  Though not as willing to deviate from the t14 as Justice Thomas, Roberts has already had marked diversity in his clerkship hires.

Roberts shared an anecdote about the need for assertiveness in his clerks.  During one interviewing season, Roberts told his secretary to note any candidate who took one of the Krispy Kreme donuts he had available for guests in his chambers – either glazed or powder sugar – so he could immediately offer them the job.  Complicating Roberts’ job, nobody took a single donut.  Whether or not the story is true, it illustrates the need for potential clerks to have assertiveness in defending their positions in the face of smarter, more experienced and vastly powerful bosses.  And, if you are ever lucky enough to interview with Roberts, take the donut.

Most opinions – Supreme Court or otherwise – are crap.

When talking about his writing style, Roberts said that he tried to write for an educated lay audience, something he believed his predecessor William Rehnquist did as well.  Because the Supreme Court does not speak in one unified voice, though, it is difficult to ensure consistency across its decisions.  This problem is exacerbated across lower Federal Courts, and state courts are presumably like the Wild West in this regard.  With every judge or justice in the nation writing for a different audience and purpose, priorities, tone and depth may vary vastly and unpredictably.

Speaking of crap, the “living constitution” is ridiculous.

Roberts said that the idea of a living constitution doesn’t make sense.  In the same breath, he rejected the notion of textualism and mockingly called it a “dead constitution” perspective.  Ah, classic Roberts.  Though few would dispute that Roberts is closer to a textualist than a proponent of the living constitution, looking to social science and international law for guidance, he’s far enough away from being a strict constructionist in the mold of Scalia and Thomas for his statements to be true.

Social science is useful to the Court, but not too useful.

Responding to a question about the value of social science research in determining culpability, Roberts equivocated a bit, saying that it was valuable, but to a point.  Roberts acknowledged that it was helpful, but of limited utility.  Simply put, the Court lacks the ability to bore down into the science and its meaning with the ability of an expert in the science’s field.  While this kind of evidence may be useful to a case, relying on it for more than collateral support likely will not sway the Roberts court.

Undergraduate students ask terrible questions.

It was shocking that Roberts allowed for open questions and answers in a forum of 1,300 people.  As best as I could tell, few members of the bar approached the microphone to ask any.  Instead, the crowd was treated to a barrage of pointed questions addressing hot button issues, including:

-Don’t Ask Don’t Tell, and whether the Supreme Court would repeal it

-The propriety of Supreme Court Justices not attending the State of the Union address

-What he thought of a proposed Constitutional amendment enhancing parental rights

-What he thought of the imbalance between corporations’ and labor unions’ resources in obtaining political voice in the wake of FEC v. Citizens United.

At first, Roberts was polite about not answering questions that could come before the Court.  Though he was not apologetic about it – nor should he have been – he explained his refusal to answer.  By the second offending question though, he adeptly moved on to the next hopefully legitimate question, and smoothly put the offending participant in his or her place.  It was transcendent; it was more than adept, it was alpha.  Roberts’ years of wordsmithing and carefully avoiding other’s characterizations of him – and his words – were most obvious in those moments.  He put forth a strong frame of control, and refused to let anyone wrest it away from him.  Without denigrating any other aspect of the evening, those were the most impressive moments, and the most instructive as well.

The (legal, hyper-local) stars were out that night.

Without naming most names, as doing so on this blog probably would do more harm than good to their legal careers, many of the people who have shaped my legal education and career were present.  It was a pleasure, as always, to see them.  From catching up with a friend working on the contentious litigation for the control of Facebook in the Western District of New York, to hearing other law students tell me of their non-law business plans, the range of conversation did not disappoint.  Other attendees included Magistrate Judge William Schroeder, before whom I argued my first hearing in Federal Court, District Court Judge Richard Arcara, and Chief District Court Judge William Skretny, who administered Nevada’s Oath of Attorney to me the next day.  The driving force behind the event, though, was my unintentional mentor and vizier, Robert Klump, who has already received some coverage in this blog.  Without his efforts, the event never would have happened.


So You Want to Go to Law School?

October 20, 2010

H/T Kara Marie


The Academic Feminist Witch Hunt

August 26, 2010

An audition for a blogging spot at Feminist Law Professors


By Marc J. Randazza

“Feminist Law Professors,” is a blog that throws cyber-tantrums at the notion of anonymous speech on the internet. (more and more) Their comment policy prefers that the authors name themselves, of course.

But, when they decide to start an academic lynch mob, these rules go out the window, and on go the masks. They bring us this anonymous criticism of Adam Cohen, a Yale Law professor who published a Time magazine article criticizing Judge Judith Raub Eiler. The author elected to remain anonymous, so lets do two things… lets call the Irony Police, and lets call her “Professor Useless Twat,” because that is about as fair as her criticism of Professor Cohen.

Here’s some of Cohen’s criticism of Judge Eiler.

When a defendant showed up on a traffic charge, Judge Judy delivered a zinger: “If you drive like an idiot ’cause you’re late for work, you’re gonna have to pay for it.” Then she piled on: “You can see your picture on the headlines of the Seattle Times, stupid young man who shouldn’t be driving.”

Another defendant recalled that the tart-tongue jurist humiliated and bullied her until she broke down in tears. “She frequently interrupted answers with insults,” the woman recalled.

This bullying Judge Judy was not Judge Judith Sheindlin, the tough-talking former New York City Family Court judge who has the top-rated judge show on syndicated television. It was Judge Judith Raub Eiler, her real-life doppelgänger, who sits at a county court in Seattle. Instead of high ratings and rich syndication fees, this Judge Judy’s aggressive demeanor earned her a five-day suspension without pay courtesy of the Washington State Supreme Court. (source)

Cohen criticized Eiler for being demeaning to litigants, especially pro-se litigants. Cohen applauded the fact that Eiler suffered discipline for her behavior, and said it should have been stronger medicine. He wasn’t basing his position on the reading of entrails from dead animals — the Washington Supreme Court backs up Cohen’s position.

But since Judge Eiler has a vagina, here comes Professor Useless Twat, accusing Cohen of gender bias, akin to calling a black person a “nigger.” (Well, using an illustration from a gender discrimination case in which the judge made that analogy).

What? Really?

Yes, Professor Useless Twat played the “nigger card.” Mind you, its not that she used the word, as I said last week, but what a card to play in this round of poker! Professor Useless Twat’s point was to accuse Cohen of criticizing Judge Eiler for not being “feminine” enough — as if civility in the courtroom is a “feminine” characteristic. (And somehow the “nigger card” made sense to play there).

Well dress me up in drag and call me Sally, because as caustic as I am on this blog, I know how to use my “courtroom voice” when I am in the sacred space. Courtrooms are places where you should exercise civility — even when dealing with idiots, assholes, and useless twats. Courtrooms are what we have instead of dueling fields. The lawyers and the parties are expected to be nice to each other, or at least civil. If that makes me “feminine” when I’m in court, well, fine… gimme my skirt.

When a judge refuses to show civility – especially to pro se litigants, who might not exactly know all the rules, then she deserves to be called out for it. She deserves to be criticized for it. She deserves to be disciplined for it — whether she has a vagina or not. And that was Cohen’s point. Gender wasn’t an overt subject, nor even a subtext, in his article.

There may be intelligent arguments against Professor Cohen’s article. If there are any, calling him a “sexist” sure isn’t one of them, and playing the “nigger card” is just plain retarded. Doing it from behind a mask is unforgivable.

Professor Useless Twat’s critique is bad enough in a vacuum, but lets remember the habitat in which law professors must survive. The politically correct police run the show. You must fall over yourself demonstrating sensitivity to race, gender, and whether a guy wears panties under his suit. “Racist” or “sexist” are labels that end careers in academia, and when one law prof throws them at another, the intent is abundantly clear — this bitch is pissed off about something and wants to fuck over Mr. Cohen. No, what Mr. Cohen did is not the equivalent of calling the judge a “nigger.” But, if useless twat wants a nice analogy, her piece is like going back to 1950 and calling Cohen a “Communist,” or a “faggot.” Either one could end his career, if anyone took it seriously, and she damn well knew it.

And in academia, if he dared to defend himself, Cohen would run the risk of just pushing the barb in deeper. I don’t know Cohen. I might actually hate him if I met him (or I might think he’s the greatest guy ever). I don’t care. I feel compelled to defend him, because it is obvious what Professor Useless Twat is trying to do. I don’t know what her real issue is with Cohen, but there isn’t a shred of honesty in her accusations that his work is gender biased.


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