Archive for the ‘Law Student Discussions’ Category
posted by UCLA Law Review
Volume 60, Discourse
|The Benefits of a Big Tent: Opening Up Government in Developing Countries||Jeremy Weinstein & Joshua Goldstein||38|
|The Case Against Tamanaha’s Motel 6 Model of Legal Education||Jay Sterling Silver||52|
posted by Lawrence Cunningham
Welcome all first-year law students to the wonderful world of law! I teach Contracts at George Washington University (though I’m visiting at Fordham University this fall). My students find it useful to begin our journey into that subject–which many find can be difficult–with a step back to look at the shape of the first-year law school curriculum.
It has not changed much in a century and does not vary widely among law schools today, from Cooley to Columbia. I also try to be sure to connect the topics and examples appearing in today’s casesbooks (which have also not changed much over time and do not vary from school to school) to current topics in the news. Students at other schools can share in these stories by obtaining a copy of my book, a fun supplement to the Contracts course, Contracts in the Real World: Stories of Popular Contracts and Why They Matter.
Some thoughts about the shape of today’s 1L curriculum appear in the beginning of the book, including the following excerpt. I summarize this for my students on our first day of class to give a sense of why today’s curriculum looks as it does and where contract law fits within it.
The curriculum dates to a legendary figure of nearly a century and a half ago. In the 1870s, C. C. Langdell, as Dean of Harvard Law School, designed a simple way to organize the vast field of law still used to this day. He thought that underlying law’s complexity were a handful of basic ideas. Examining leading cases organized around these ideas would reveal law’s elements and rhythms.
Common law actions, meaning those courts resolve one by one, were of greatest interest to Langdell and dominate many 1L courses, including Contracts. In the United States, following English traditions, common law is developed by state courts as disputes arise. Originally referring to law “common” to all citizens, today this system yields some variation among states, but general principles tend to prevail. Though the common law evolves as society and the economy change, judges draw on precedents when evaluating new cases—under the principle of stare decisis.
Langdell organized the welter of cases on numerous topics according to basic questions: how, what, and why. The question of how isolates the procedures private parties follow when resolving disputes using civil litigation. This is the practice of the lawsuit, arranged into the sub-field of study called civil procedure. Read the rest of this post »
posted by Angela Harris
“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.
Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.
My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.
Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean ”democratic”) road to justice.
So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.
For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.
I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.
What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.
In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing; and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.
More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.
What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.
Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.
April 20, 2012 at 1:35 pm Tags: justice, legal process Posted in: Civil Rights, Conferences, Constitutional Law, Courts, Culture, Jurisprudence, Law Student Discussions, Legal Theory, LGBT, Teaching Print This Post 3 Comments
posted by Dave Hoffman
A number of students have recently asked me about opportunities to work in transactional practice in the summer after their 1L year. That kind of job search is challenging, as the typical kind of 1L practice revolves around planning for or resolving litigation (i.e., government agency litigation interns, judicial interns, public service interns). Indeed, I imagine that a large plurality of law students who obtain a legal internship this summer (paid or not) will end up writing some kind of multi- or 50-state survey litigation memorandum.
However, there are transactional opportunities – at law firms (though these are hard to secure for 1Ls); in general counsel’s offices (same objection); in government; and, in particular, in tax and estate planning small practices. I thought I’d open up a thread for folks to share ideas/experiences with transactional practice in the first summer. If you had a great job, please tell us about it and what you did. If you’ve ideas for networking of job search, let’s make a public good of them.
posted by Dave Hoffman
Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968). In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise. She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement. She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.
It’s a good teaching case. But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry. Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.2 But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.” Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)
But how far, I mused outloud in class, does this argument run? Let’s say a student comes to your office hours early in the Fall semester. They are lost. Really, desperately, lost. They are working all the time, but they can’t see the forest, the trees, the continent, the planet. Law’s greek to them. What to do? One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.
posted by Gerard Magliocca
There is an intense conversation going on about the cost of legal education as compared to its benefits. The New York Times is doing a series of articles, Paul Campos at Colorado is offering his views, and Brian Tamanaha is posting a lot on this topic over at Balkinization. Almost all of this discussion, however, focuses on the law schools or on lenders of student debt.
I’m struck by this fact. Applications to law school are not going down much (or at all) notwithstanding the sharp increases in tuition and the decline of the job market. Demand for legal education seems relatively inelastic. So I’d like the students who read the blog to answer this question–why did you decide to go to law school given the current economic conditions? The floor is open.
posted by Lawrence Cunningham
As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.
Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.
In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.
posted by Lawrence Cunningham
At a Faculty Meeting years ago, our distingished new Dean, who’d been Dean elsewhere, President of a University, and CEO in the private sector, began by saying how people often ask him: “What’s the difference between the academic world and the corporate world?”
Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean, quipped: “Do you mean, in academia, it’s GOD EAT GOD?” Louder knowing laughter erupted and I still laugh about it today.
Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for younger scholars, doing graduate work at elite institutions. It usually gets better but it can be tough later too.
There are many ways to cope. One is remembering to research and write for yourself, in the first instance, not to please or even influence others. Of course, it can be rewarding to have those effects and, especially, to be cited favorably, but that usually comes in due course.
Keeping a sense of humor and some sobriety about also helps. Whenever I hear about the lion cages of graduate study, or vexing insecurity during early years of untenured appointments, I share the foregoing memorable scene.
posted by Jonathan Lipson
For those of you who had any doubts, our friends at Kaplan have just confirmed it: Aspiring law students care more about law school rankings than anything else, including the prospects of getting a job, quality of program, or geography.
1,383 aspiring lawyers who took the October LSAT . . . [were] asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%. Only 8% of respondents consider a law school’s job placement statistics to be the most important factor. In a related question asking, “How important a factor is a law school’s ranking in determining where you will apply?” 86% say ranking is “very important” or “somewhat important” in their application decision-making.
Mystal at ATL expresses shock–shock!–that potential law students could be so naive. Surely, he fairly observes, they should care most about job prospects.
Yes, that would be true if they were rational. Yet, we all know from the behavioral literature that we apply a heavy discount rate to long-distance prospects. How much can I or should I care today about what may happen 3 (or 4) years from today?
If you think about it from the perspective of any law school applicant today, the one concrete thing they can lock onto that has present value is the school’s ranking: It is simple, quantified, and–perhaps most important–tauntable. No one’s face burns with shame because their enemy (or friend) got into a law school with a better job placement rate. Jealously and envy–the daily diet of anxious first-years–are driven by much simpler signals: Is mine bigger (higher) than yours?
This is not to defend the students who place so much faith in numbers that have repeatedly been shown to be incredibly stupid. It just means that Kaplan’s survey (and I have not seen the instrument or data) makes intuitive sense.
Which leads to me to offer two modest (and probably unoriginal) proposals:
November 17, 2010 at 9:21 pm Tags: behaviorial economics, Law School (Rankings), legal employment, LSAT, US News, USNWR Posted in: Behavioral Law and Economics, Law School (Rankings), Law Student Discussions Print This Post 10 Comments
posted by Glenn Cohen
I’ve been thinking a lot this week about workshops. I regularly participate in three. One I co-run with Einer Elhauge on Health Law, Bioethics and Biotechnology as a class that students can enroll in which also attracts a number of faculty and fellows from Harvard Law School, other faculties, and the greater Boston area. I also regularly attend and sometimes present at our general faculty workshop, which also occasionally involves presentations from scholars outside of the law school. Finally, the Harvard Juniors get together about once every two to three weeks to workshop one of our papers in a small and informal group.
Each of the workshops have a different rhythm, format, and purpose. Our school is large enough that we can sustain both the general workshop and more specialized ones. Lately, though, I have been thinking about how workshop formats facilitate some kinds of discussions or developments but not others. If, as I constantly tell my students in Civ Pro, procedure often shapes substance, why should that be any less true when it comes to workshops? So I’ve started asking around to hear how others run their workshops and here are some variations I have heard of:
The first dimension is the presence/form of a “presentation”.
- Let the presenter present the paper for the usual 15 minutes.
- Let the present present for only 5 minutes.
- No presentation at all, right into the Q & A.
- Have another individual present the paper instead of the presenter.
- Have both the presenter but also a separate commentator.
A second dimension goes to how questions are handled including questions of how to manage a queue.
- Have “protected” time for presentation versus allow questions immediately.
- Have a strict queue that people get on in sequence by raising hands and the moderator writing their names down.
- Have a queue but allow follow-ups from the questioner or others on that line outside the queue.
- Take raised hands each time without a queue.
A third dimension goes to attempts to mold the type of questions.
- Require anyone who asks a question to also suggest something they liked about the paper.
- Have the presenter spell out precisely what they want feedback on in advance.
Finally, for workshops that mix students and faculty, there are further questions about whether to keep separate queues for the two groups, begin with faculty, begin with students, etc.
I’d be curious to hear about the results from experiments with workshop format along these and other dimensions. Did the quality or type of interaction change significantly? Are there best practices we should be thinking about?
posted by Lawrence Cunningham
We are delighted that our esteemed guest blogger, Professor Alfred Yen (Boston College), with us this past month (and before), will stay another one. (You can see my post introducing Fred, my former colleague, here.)
In March, Fred contributed an amazingly insightful, thoughtful, reflective, and useful series of seven posts called Thoughts on Choosing a Law School. The 7-part series broke down as follows: (1) limited utility of popular rankings; (2) curriculum; (3) faculty staffing of instruction; (4) subject matter distinction; (5) faculty strength; (6) physical facilities; and (7) faculty publishing record.
These were formally directed to students considering which law school’s admissions offer to accept; and they also mean a great deal to we suppliers of legal education. We’re grateful for these contributions. And we’re delighted Fred will be back to contribute more wisdom, on these and the many other subjects within his capacious expertise.
posted by Dave Hoffman
A draft paper by Raymond Fisman (Columbia Business), Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications. Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different. Perhaps “Law and Economics Eats Law Students’ Hearts.”
The authors looked at first-year students at Yale Law School taking contracts and torts. They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.* They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?
The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency. By contrast, students taught by humanists were more generous and also likely to see fairness as a matter of equity.
These are important results for those interested in legal education.
- First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them. I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism. It’s also surprising that Yalies are so impressionable! I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
- Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine. As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments. We should do more work like this!
- Third, and most personally, this makes me nervous. I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case. I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions. But maybe I’m also indoctrinating the students to grab more of the pie for themselves. Nuts.
*The method they used to code economic preferences was, to be frank, a little mystifying. They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set. Why not simply ask the professors themselves how much they emphasized economic rhetoric in class? Or the students?
May 18, 2009 at 6:17 pm Posted in: Behavioral Law and Economics, Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Law School (Teaching), Law Student Discussions Print This Post 4 Comments
posted by Kaimipono D. Wenger
This is a conversation I have every year, at least once, with students. It happens individually; in groups; at events. It’s a topic that can be very important for law students (and attorneys and professors, too!). I feel a little silly giving the talk — I’m really not much of a drinker myself, and hardly an expert on the topic. But I do know what I’ve observed. And so I tell my students, this:
When you go to work for a law firm, you will be invited to events that involve drinking. These events can provide good networking opportunities; they can help your career; and they can be a chance to relax and have fun. However, any time work and alcohol mix, you need to be extremely cautious.
posted by Dave Hoffman
Curiously, in a motion filed Friday to extend the time to file their amended complaint to August 7, plaintiffs state that they “recently learned that the subscriber disclosed by AT&T is not John Doe 21 (“AK47″) but likely knows his identity.” In light the admissions in AK47′s pro se motion to quash, I’m left a little confused as to what is going on in the litigation. Also of interest, plaintiffs state that they are “close to identifying five additional pseudonymous defendants in the case. Specifically, Plaintiffs are in the process of scheduling a deposition with one pseudonymous defendant . . . Plaintiffs have discovered the identities of three additional pseudonymous defendants, and are very close to deciding whether to name these individuals as defendants.”
posted by Dave Hoffman
Keker & Van Nest has responded to ““AK47′s” motion to quash the subpoena seeking information about his identity. Looks like we’ll soon be seeing some exposure of the Autoadmit posters. As Mark Randazza puts it:
I must say that it was a whole lot of overkill. The same thing could have been accomplished in a one-line opposition “the issue is moot.” Apparently, AT&T has already outed AK47. Accordingly, the 29 page opposition is a bit puzzling.
My guess is that KVN must be using this case as a “training exercise” for its younger attorneys. Otherwise, I can’t see why they would be going to the wasteful lengths they have thus far.
While you are over at Mark’s blog, be sure to download the letter allegedly sent by this defendant to the plaintiffs.
posted by Dave Hoffman
A few more thoughts on Friday’s developments in the Autoadmit lawsuit. (Yes, I do have better things to do, but those things all involve coding and STATA, and my mind wanders.)
- There is Much More Here Than Ciolli: The changes from the original to the amended complaint extend quite beyond dropping Anthony Ciolli. Plaintiffs’ theory of harm seems to have shifted – from one grounded largely in loss of employment, to one grounded largely in a tort (IIED/false light/defamation). Claims about loss of employment are gone, replaced by much more detail about the attempts by Board posters to harass the Doe plaintiffs. The result is a more streamlined theory of relief, coupled with a viable damages claim. Moreover, the complaint ties the XO board to an aborted attempt to set up a googlepages account to host a “contest” ranking law student attractiveness. This would seem like a chink in defendants’ anonymity shield.
- The Board Responds: Read this thread, or this one, or this one. (Or, try a search for “lawsuit” on the Xoxohth page.) Lurkers and posters alike are reacting to the allegations by distancing themselves from the Board: “it is too risky to be associated with some of this s**t, and i need to focus on my exams.” Some purported named defendants are debating whether to turn another in, and others are struck by the nastiness of the place, as if for the first time. Others turn to technical solutions, seeking to preserve their anonymity. But you can’t unbreak those eggs.
- What to make of all this? Clearly, the case has taken a more serious turn. It looks like settlement is off the table, and plaintiffs intend to go forward and actually name individual posters. The defendants’ threats and statements are chilling (and it is, in my view, a weak defense that in the speech’s original context it was surrounded by like-sounding bits of shock humor). Any poster so named will, I think, be unemployable by reputable law firms and at serious risk of failing character and fitness evaluations by State Bar Examiners. (I have some doubts that the really vile posters are law students, but maybe that is just wishful thinking.)
posted by Dave Hoffman
[Update 1: Ciolli issues a statement.]
[Update 2: Skimmed the complaint. It is much more damning than the original. Keker did a nice job reshaping the factual allegations to focus on the worst conduct. It also looks like they are staffing up, which means they must think they have a way to find actual defendants.]
[Update 4: Just came across this Harvard Law Record article from earlier in the week, purporting to report on the traffic patterns of HLS students reading and posting on Autoadmit. The Record wasn't exactly a groundbreaking publication when I was at HLS, but maybe times have changed.]
posted by Dave Hoffman
What the heck is going on in the Autoadmit lawsuit? Last week, Judge Christopher Droney granted plaintiffs’ third extension of time to serve their complaint, giving them an extra thirty days to effect service. He explained that the plaintiffs are investigating some “recently revealed” information concerning one of the parties. To date, none of the defendants has been served, and the defendants (including the headliner, Anthony Ciolli, Penn Law ’07) have of course not moved against the complaint. It’s been over four months since the case was filed, and the litigation is stuck at go.
I have contacted several sources to try to figure out what is going on. As best as I can ascertain, Mark Lemley and David Rosen have been negotiating with non-party Jarret Cohen over the summer, seeking a settlement that would:
- delete past and prospective threads on Autoadmit about the plaintiffs;
- de-index the plaintiffs from Google and other search engines;
- require Autoadmit to log IP addresses;
- require Autoadmit to create a term of service agreement and a complaint response system.
In return, plaintiffs would dismiss Ciolli, and (I take it) proceed against the pseudonymous defendants alone. But this settlement, which would seem to come close to giving plaintiffs all that they were seeking in the case apart from revealing the pseudonymous posters’ names, has stalled. Why?
Here are a few theories. First, perhaps Cohen (or his attorney) is concerned that if he agrees to these terms, it would create an avenue for a later claim for liability that Section 230 would otherwise have immunized, i.e., he will have created a monitoring and responsibility system where none previously existed. Second, plaintiffs’ leverage is insecure. I’ve heard rumors that plaintiffs have acknowledged that they originally named Ciolli on the mistaken belief that he had written some of the libelous posts. But if Ciolli didn’t write any of the unlawful posts, his liability is at best obscure. (Volokh agrees.) This puts plaintiffs in a bit of a bind. If they drop Ciolli now, they lose their best leverage against the board, and the opportunity to really change how it works and create a precedent for other like gossip sites. If they serve Ciolli, I think he’d have a strong motion to dismiss (accompanied by a nonfrivolous sanctions motion). All this would seem to reduce the incentive for Cohen to settle today. But the service clock is ticking – how many extensions of time will Judge Droney grant? (His chambers rules state that he’ll extend deadlines until the result materially affects his scheduling order.) Third, what about the pseudonymous defendants? Nothing I’ve heard makes exposing the defamatory posters – the most culpable wrongdoers – more likely. (Leiter’s hopes otherwise, but if XO didn’t track IP addresses before, I don’t know how likely it is that plaintiffs will be able to find them after the fact. It is small, and cold, comfort to think about such law students sweating it over the long summer if they ultimately will remain in the shadows.)
All of this suggests why lawsuits are such a bad fit for the reputational harms that sparked this mess. You can’t sue the “real” wrongdoer; the host is basically immunized; and defendants you can find are (at best) tangentially involved. This makes sense: people willing to put their names in public are likely to be more careful and less culpable. On the other hand, the lawsuit itself seems to have had significant chilling effects on the Autoadmit board, as several posters have “retired.” Whether this is a good thing or not probably depends on your perspective.
Solove, do you have a better way?
posted by Dave Hoffman
The WSJ’s Law Blog reports that Edwards Angell Palmer & Dodge has rescinded its job offer to Anthony Ciolli, the Penn 3L who was until recently the Chief Education Officer at Xoxohth. The correspondence reported by the Journal makes clear that the Firm’s decision flowed pretty directly from the Washington Post’s article about the Board.
As I’ve written before, I think the Board provides a unique view into some law students’ (and young associates’) view of the profession, which may be “frank and heterodox”, transgressive, or just plain ugly and foolish. I’ve wondered why students spend so much time on an activity that is (now clearly) likely “to lead to professional embarrassment if publicized.” Maybe, after Edwards’ action gets disseminated, they won’t.
Does the distribution of justice here seem fair? (Both respect to Ciolli and to the anonymous other commentators, who are not sanctioned)? What effect will this kind of action have on anonymous speech by law students, including anonymous blogging? I’ll leave the comments open. But I’ll be moderating them, so be civil.
[Update: There's an interesting discussion thread on this topic at XO.]
[Update 2: Also check out this very long post at Feiminste: "When it comes to internet-land, we all make choices. I’ve made a similar choice similar to Anthony’s — to co-run a website, and to do so under my full, real name. I’ve done that knowing that there will most certainly be consequences to that decision."; and this post at Overlawyered: "[I]if you ever wanted to know how damning it is in the modern legal community to be associated with a controversial website accused of misogyny, you now have an answer: it’s worse than being accused of killing someone.”
posted by Dave Hoffman
h/t: Belle Lettre