Autoadmit Litigation Update

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 at 10:21 PM | Comments (7) | TrackBack

Some More Thoughts on Autoadmit

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.)

More: Howard Wasserman at Prawfs on the Civ/Pro aspects of the case and Salon, on the possibility of tracking down trolls.

Posted by Dave Hoffman at 11:37 AM | Comments (1) | TrackBack

Former Penn Law Student Dropped from Autoadmit Lawsuit

Here's the amended complaint, filed yesterday. Details to follow later in the day, if I get a chance. Here's why I think this happened.

[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 3: Brian Leiter offers interesting commentary here. The WSJ Law Blog reports here.]

[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 at 08:47 AM | Comments (3) | TrackBack

What's Going on With the AutoAdmit Lawsuit?

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 at 11:20 AM | Comments (13) | TrackBack

Latest Xoxohth Fallout

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 at 12:21 PM | Comments (15) | TrackBack

De Novo on Xoxohth

PG at De Novo has written a terrific post that you should read if you are still interested in the Xoxohth board.

(A caution while indulging. It seems that the increased attention paid to the Board, and associated cascades of rumor, is exacerbating its ugly side. Odd. Doesn't sunlight usually cleanse?)

h/t: Belle Lettre

Posted by Dave Hoffman at 11:25 PM | Comments (0) | TrackBack

Nesson Moderating Xoxohth Panel

Late last week, Charles Nesson moderated a panel sponsored by JOLT (among others) on Xoxoth. Charlie is (of course) one of academia's most skillful moderators and provokers of discussion. Check out the audio stream here.

Posted by Dave Hoffman at 09:00 PM | Comments (0) | TrackBack

Studying a Law School

Here are some suggestions for studying a law school you may be thinking of attending. A lot of this information can be gleaned from the school’s website, and you can use the time you have on campus to get your questions answered.

First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent graduates as part-time instructors, to teaching fellows on three year terms, to full-time faculty. In my opinion, writing programs taught by full-time, permanent faculty are likely to be most effective because those teachers gain experience that can be lavished on you. Teachers who are themselves students, or whose time at the school is limited, cannot do likewise.

Beyond the first year, look for the richness of program in areas that interest you. Don’t necessarily assume a school’s offerings in an area are superior because they have a specialized “program.” Look under the hood. Does the school have full-time faculty teaching the courses that matter to you, particularly the core courses in your area? Are they experts in the field? There’s nothing wrong with seeing some adjunct (i.e. part-time) faculty in a program. Very often they’re experienced lawyers with a lot to offer. But, if there are too many, there won’t be anyone around for you to talk to when you need it most because the adjuncts will be at their regular jobs. Take some time to study the skills program as well. Clinics or externships offer great exposure to the profession and practical experience that can serve you well.

Second, take a look at the strength of the student services program. Every school has a Dean for Students, career counseling, financial aid, and placement offices. However, not every school puts enough resources behind them. How many people are available to speak with you if you want advice? How many job listings does the placement office have, and in how broad a range of jobs? Is there specialized counseling for public interest or government employment? Are there vibrant student organizations you’d like to join?

Third, get a sense of the library because you’re going to do a lot of research and studying for 3 years. You may be tempted to think all libraries are the same, but they’re not. Collection size matters. If you’re doing research and can’t get a book, you’re stymied while you wait for it to come in on interlibrary loan. Reference staff also matters. They’ll help you find things, and they’ll also be helping you learn to conduct research. Finally, when you visit, go into the library and see if you’d enjoy studying there. Is it quiet, comfortable, and well-lit? Believe me, some libraries will make you want to stay and read, and others will drive you to Starbucks.

Fourth, study the physical facility. Go to a classroom and check out the sight lines, particularly from the back of the room with people sitting in front of you. You might be surprised how many large classrooms make it very hard to see the professor when the room is full. If you can attend a class, make sure you can hear the professor and the students. Are there places for students to gather and talk? Space for student organizations? Take a look too at information technology. Is the library/campus wireless, and are there adequate terminals and printers for your use? Is there power for laptops in the classrooms? Is there audio-visual capacity in classrooms so instructors can use the latest technology? If you’ll be driving to and from school, is there enough parking?

Fifth, try to meet some students and faculty. You’ll spend three years talking to them, so get a sense of whether you’ll enjoy them and learn from them.

And last, but not least, get a feel for the place. Every school has a unique atmosphere. It’s a bit like hunting for an apartment. Ask yourself if it feels right.

Posted by Alfred Yen at 01:52 PM | Comments (6) | TrackBack

Penn Law Student "Resigns" From Xoxohth

Anthony Ciolli, a Penn law student, founder of Autoadmit/Xoxohth, and recent correspondent with Dan Markel, has resigned from the Board. His announcement:

This isn't the sort of post I was expecting to make until after graduation, nor is it a post I am particularly happy to write given the circumstances. But unfortunately, it's something that simply must be done.

This afternoon I was informed about an incident of cyber harassment that took place on Friday by someone purporting to be a member of this community. [A poster wrote and circulated defamatory comments about a Yale Law Student to the YLS community.] Like Jarret, I condemn this incident, and we’re both ashamed and embarrassed that anyone in this community would engage in this kind of behavior. This incident crossed a line for me that simply should not have been crossed, and I cannot remain emotionally attached to a community where these sorts of actions are condoned.

Thus, I feel I have no choice but to resign as Chief Education Director. I will continue to work on other sites with Jarret, and temporarily assist Jarret while he manages my exit, but after what happened this Friday I simply cannot remain involved with AutoAdmit anymore, at least not in its current incarnation.

With regret,

Anthony

Posted by Dave Hoffman at 01:38 PM | Comments (12) | TrackBack

A National Law Student Code of Conduct?

Reputation Defender is a new start-up that seeks to commodify internet self-help. According to yesterday’s WashingtonPost article on Xoxohth, the service will destroy harmful content about you wherever it appears on the World Wide Web, presumably through an escalating series of gentle reminders followed by hard nudges against hosts. As I blogged yesterday, the site is trying to make a public good out of this private remedy by "encourag[ing] law schools to adopt a professional conduct code for students."

How is this different from the codes of conduct that currently govern law student behavior? Temple, to take an example I'm familiar with, has a broad-ranging student code that includes the following provisions of interest:

It shall be a violation of this Code for a TLS student knowingly to do or to attempt to do or to assist in . . . a course of conduct . . . directed at a member of the Law School community which would cause a reasonable person in the victim's position severe emotional distress or which would place a reasonable person in the victim's position in fear of bodily injury or death, provided that this provision shall not be interpreted to abridge the right of any member of the Law School community to freedom of expression;

[or] . . . engage in conduct, not otherwise covered by any other provision of the Code, involving dishonesty, fraud, deceit or misrepresentation with regard to activities or programs related to the Law School, which adversely reflect upon his or her fitness to remain a student at the Law School.

Such policies are fairly widespread, often with explicit stalking provisions. I think that any law student who posts the name of another student at their school, in a public forum with a hostile sexual or racial tone, and refuses to stop making such comments on demand, would face probable disciplinary sanction if they were identified. (I understand there are First Amendment implications here, somewhere, but that is an argument I’ll leave to folks like David Bernstein to make.) This conclusion holds even if the comments were intended in jest, so long as a reasonable person would feel threatened (in the language of most codes). I assume that law students read disciplinary codes when they start their education, or would not find them terribly surprising.

Now, whether such a student would be liable for making comments about students at another university - who they may never have met, or intend to meet - is a harder problem. Individual law schools may believe that they have an attenuated interest in such cases, and that the matter is better left to Bar Committees or the police. This is a jurisdictional concern. They may also believe that they have no writ for protecting non-community members – something like an international law/statist view. (What will happen when the human rights folks get a hold of such codes is an interesting problem!) That said, I am pretty sure that a substantiated allegation of cyberharassment would be good grounds for denying bar admission, though criminal prosecution would be unlikely. So, law students submitting pictures to such contests, or commenting about the affected students, run a real risk of professional sanction if they are discovered.

What, then, does a national code add? Most importantly, I think, the goal would be to create intra-school responsibilities, resulting in a work-around of the host-immunity problem by sanctioning students who enable such conduct, instead of just the (anonymous and hard-to-reach) students that perpetuate it. Thus, the national code of conduct would make law school disciplinary committees something like private attorneys general for conduct that the criminal law will rarely reach and the ethical rules reach only on discovery.

Additionally, a national code of conduct might have a signaling function. No doubt there would be a following campaign to enlist law school student deans in education efforts about the professional consequences of cyber-stalking for victims and perpetrators alike, and to suggest that schools have ways of detecting such conduct that will (no doubt) be undisclosed. These efforts will not eliminate cyber stalking by law students, but it will push it to less public fora. Good.

Photo Credit: The Code of Hammurabi, diorite, c. 1750 bce, Old Babylonian.

Posted by Dave Hoffman at 11:34 PM | Comments (3) | TrackBack