By Mark Esposito, Guest Blogger
When I was a young lawyer twenty-five years ago or so, I remember a particularly enlightening client meeting. A 30ish woman had scheduled an appointment to discuss a sexual harassment case against a prominent lawyer in town. Being the new guy at the firm but with some considerable jury trial experience even then, I was asked to sit in while our senior partner met with the client. The client arrived and began a convincing narrative about a sexually charged work place replete with provocative innuendo, being subjected to daily dirty jokes, some pass-by groping in the hallway and even arriving at the office in the morning with an open Penthouse magazine on her desk. Despite complaints to the other partners with nothing of substance being done, she claimed, the client had taken all she could and resigned citing this treatment as the reason. Since the claimed harassment involved a superior and a text-book hostile work environment seemed evident, we were seriously considering taking the case despite what we knew would be a no-holds barred defense.
When we came to the part of the meeting where we asked about corroborating evidence in the form of witnesses or documents confirming her version of events, the client’s demeanor changed from cool professionalism to anger. “Don’t you believe me?”, she shot back like a dagger. “No, it wasn’t that,” our senior guy said. “We just need to know what kind of case we can present.” Wrong answer! ” I don’t want a lawyer who doesn’t believe me. I know what happened and all you have to do is subpoena every staff person there and they’ll tell the truth.” I recall thinking at this moment about all the clients I represented and their look of absolute betrayal as witness after witness “couldn’t remember” this event or that one in deference to preserving their job status. I didn’t say anything, but the senior lawyer did. “Look,” he said quite understandingly I thought, “This is a bad situation for you but he’s a prominent person in the community. His firm is on tv doing all kinds of charitable work around the holidays. He has represented thousands of people in the area, is well-connected politically, and has tons of financial resources to throw at you. We need to know how strong your evidence is going to be.” That broke the camel’s back. “You’re in cahoots with him aren’t you?,” spat the client. “I was told you would take the case because I was in the right, but now all you want to do is talk me out of it by telling me how good his case is going to be.”
“No, not at all,” came the reply as the client was gathering up her papers to make a fast exit. “I not interested in you representing me ,” came the terse rejoinder and “I’m thinking about reporting you to the bar for being in league [with her tormentor].” With that she turned on her heel and strode out the door. A little sheepish, I asked “Should I go and try to get her to come back? It looks like a winnable case to me, if we can get some confirmation of her story,” I asked. “No,” came the seasoned reply. “She’s a chip person, and juries can smell that a mile away.” I went back to my desk thinking here was an intelligent person with a potential case who can’t step away from the emotion of the moment to aid even those who want to help her. It’s an emotional blindness we all suffer from.
I thought about that while reading about the dust-up between Professor Leong and her Moriarty, dybbuk, as well as the unseemly sandbox dispute between Professors Campos and Leiter. Let me know how these statements strikes you, the blog jury. First from Professor Leong’s website, Feminist Law Professors:
Some argue that racial and gender harassment are part and parcel of participation in online discourse. As one white man commented on my prior post: “Welcome to the jungle . . . . If you want to have a voice . . . just do what we have been doing for over a decade and laugh it off.” (In context, “we” meant “white men.”) Of course, it’s easy to talk about “laughing it off” when, because of your status as a white man, you’re virtually never the target of identity-based harassment that deploys historically subordinate or marginalized status as a silencing tool.
My obvious question is how does Leong know that her poster is a “white man”? Does he say so? Did she ask? Did she track him down and call his workplace to find out? Or is she just assuming and making the same stereotypical argument of which she complains herself? Are her assumptions about white men any more venomous than the assumptions about a “white man’s” reaction to her identity? My reaction, which I think some will share, is that Professor Leong is a “chip person.” That is she views every criticism through the lens of her own personal battle and doesn’t understand how the same statement would be viewed by an independent person freed from the emotional involvement of her circumstances.
And for Exhibit A consider this screen shot of the exchange between Leong and dybbuk which she entitles “Luau Train”:
Leong’s take on the first comment: “Rather than explaining why (for example) he thinks that the racial capitalism framework is analytically flawed, the first commenter disparages my Native Hawaiian background with a reference to the “luau train.” He then attempts to undermine my intellectual contribution to an academic conference by claiming that the reason for my presence is to serve as an object of sexualized attention for a presumed heterosexual male audience.”
Professor Leong in word and deed (naming the image) obviously considers this comment by dybbuk to be a slur aimed at her heritage, but there is also a more benign interpretation that dybbuk is merely commenting about the location of her speech and not her heritage. Why does an educated person fail to consider the view of things than a simpleton like myself would have to concede could also be true? For his part, dybbuk claims he has no knowledge of Leong’s Hawaiian roots and was referring to the sumptuous spreads some speakers get at these seminars that never seem to be scheduled in Dubuque in the winter time.
Now consider the case of the dueling professors. Prof. Campos sends the following email to his apparent long-time intellectual adversary:
From: Paul F Campos [mailto:paul.campos@Colorado.EDU]
Sent: Tuesday, December 31, 2013 11:03 AM
To: Leiter, Brian
Subject: Dybbuk
Brian,
I have been asked by somebody who has passed on (unsolicited) some potentially very embarrassing personal information about you to me, regarding your activities in cyberspace and some related goings-on in the real world, to make this information public, should you choose to “out” Dybbuk.
Paul
Professor Leiter upon receipt of the email launches a broadside attack lambasting Campos for, what he says, is “resorting to blackmail.” He then adds the following dittie that struck my logistician’s eye:
I am told by a colleague who teaches criminal law that this threat is blackmail (criminal “intimidation” as we call it in Illinois, or “extortion” or “criminal coercion” as it is in many other jurisdictions). I have no idea what fabrications Campos would produce this time, but there is nothing truthful he could post, and he knows it. (Remarkably, this is also not the first time Campos has tried to coerce another law professor with threats.)
You guessed it the classic logical fallacies of an ad hominem attack (Campos is bad because he’s done bad before and he lies ergo he is not to be believed) and a borderline appeal to authority (My colleague teaches criminal law hence he must be knowledgeable in charging decisions by local prosecutors. Maybe he does, but Leiter never tells us.) by an unknown source.
For his part, Professor Campos says his email was mere warning and the twisted grammar aside, it’s a reasonable interpretation especially if Lieter has already “outed” dybbuk thus making any such disclosure of “embarrassing personal information” an empty threat since the trigger on the disclosure has already been pulled.
Leiter comes off as prickly and seeking to find the worst possible interpretation of Campos’ actions. I don’t think a fair-minded person would make the same mistake in the courtroom or that other bastion of democracy, the court of public opinion. So why lose your case in both courts simply because you need to “strike back” by questioning anyone and anything that contradicts, in the slightest way, your interpretation of other people’s motives.
Ultimately these two episodes prove to me why litigants need to arrive at court with everything except that chip. It’s unattractive and lends an air of holy crusade to a civil dispute that the resolver of fact will assuredly sniff out. Juries have their limitations but divining motivation isn’t one of them. Oh, they can be mislead and fooled but they never miss a chip the size of a 2×4.
As the pre-eminent blue ribbon jury on the blog-o-sphere what say you about these two alleged wrongs? Chip people or victims — or both?
~Mark Esposito, Guest Blogger
I would like to remind folks again that dybbuk is a public defender. And as I’ve said, I have NEVER met a conservative PD. All the ones I’ve known are liberal, quite liberal actually. I’ve known @ least 20-25. I have a couple as good friends, one is on my VERY limited cell phone contacts. I’m sure there are a few conservatives, but my guess is less than 5% or so. Just sayn’!
It’s becoming obvious that women need to speak in a louder voice when it comes to cyberstalking, harassment and sexism.
There outta be a law, or is here one already, underused? Free speech isn’t an excuse for this type of activity. It makes free speech appear cheap, ripe for the taking, to be used and abused.
From what I’ve read, dybbuk left many dozens of derogatory and sexist comments about Leong (and others) at five different blogs over the course of more than a year. Is being fed up/upset with ongoing sexual harassment in the work place or a cyber harasser to be equated with having a chip on one’s shoulder?
Mespo – Extremely well argued. I think you are right, that chip people is the overriding factor. Nevertheless, I assume you would agree that some lessons in civility are warranted for everyone involved.
annie,
I posted the following on another thread earlier today:
Why Women Aren’t Welcome on the Internet
By Amanda Hess
January 06, 2014
http://www.psmag.com/navigation/health-and-behavior/women-arent-welcome-internet-72170/
Excerpt:
“Ignore the barrage of violent threats and harassing messages that confront you online every day.” That’s what women are told. But these relentless messages are an assault on women’s careers, their psychological bandwidth, and their freedom to live online. We have been thinking about Internet harassment all wrong…
A woman doesn’t even need to occupy a professional writing perch at a prominent platform to become a target. According to a 2005 report by the Pew Research Center, which has been tracking the online lives of Americans for more than a decade, women and men have been logging on in equal numbers since 2000, but the vilest communications are still disproportionately lobbed at women. We are more likely to report being stalked and harassed on the Internet—of the 3,787 people who reported harassing incidents from 2000 to 2012 to the volunteer organization Working to Halt Online Abuse, 72.5 percent were female. Sometimes, the abuse can get physical: A Pew survey reported that five percent of women who used the Internet said “something happened online” that led them into “physical danger.” And it starts young: Teenage girls are significantly more likely to be cyberbullied than boys. Just appearing as a woman online, it seems, can be enough to inspire abuse. In 2006, researchers from the University of Maryland set up a bunch of fake online accounts and then dispatched them into chat rooms. Accounts with feminine usernames incurred an average of 100 sexually explicit or threatening messages a day. Masculine names received 3.7.
I won’t speak to the racism of his comment, though I think it is there. As a female law professor, the sexism of the comment is breathtakingly obvious to me, and I am flummoxed by your assertion that her comments about this make her what you call a “chip person.” That someone would respond to a scholarly presentation by sexualizing this woman with crude comments about her appearance is sexist and demeaning, and meant to be so. Female colleagues, as well as myself, have had similar experiences and find them offensive.
Let’s be real: online harassment isn’t “virtual” for women.
Another one. These cases are just the tip of the iceberg.
Mespo, Those are the type of coaching stories I love. However, it is a bit melancholy. A great coach left “the calling” as I call it, for righteous reasons. You have expressed how much you miss it. What about baseball or basketball? Football is obviously your love. But, I coached basketball on a lower level for about 5 years and really enjoyed it. But, I didn’t love it as I do baseball.
Rachel Nichols is a great addition to CNN. She did a good interview of Russell Wilson last night that’s up on the website if you didn’t catch it. I would vote for that kid for any political office. “Kid”..he’s a man!
mespo, thanks for responding. Let me just share my perspective. It doesn’t surprise me that once some feels attacked because of something about her identity, she acquires jaundiced eyes with regard to the person making those comments. In other words, the blatant sexism exhibited in the comment informed Leong’s reading of the ambiguously racist comment. But once that comment is read as racist, it could take prominence, particularly because as annieofwi notes, women defending themselves against sexism are often put down and ignored.
To make up an example. Imagine if someone wrote a rambling internet comment about me that included: “I hate white. And you’re a man pig with an over-sized ego.” The second statement would inform my reading of the first. The person could be making a non-race-related comment about color preference for shirts, but once they’ve attacked me based on my gender, I’d read the first sentence more ominously and infer racism. And at that point, the ambiguously racist statement would strike me as the more problematic. I don’t think that would make me a “chip” person. Rather, I’d be using the information available to me (commenter makes sexist comments) to inform my understanding of the ambiguous statement (ambiguously racist comment more likely to be racist because commenter is type of person willing to attack people based on sex).
Now it’s true that “luau train” doesn’t immediately strike me as racist — but I’m not a native Hawaiian, so I don’t have an ear for racism directed at that group.
Remember the Randy Newman song called Short People?
{music}
Chip people got no reason.
Chip people got no reason to liiiivvve!
They got little bitty eyes, and little bitty feet.
An little bitty voices that go beep beep beep.
Don’t want no Chip People.
Don’t want no Chip People round here.
Where is my last comment? Chip off the old block et al.
Gring:
I haven’t read that post but if you point me there, I’ll be happy to give you my thoughts. I may have seen it. I just don’t recall it.
as for the women in the original post who had a “chip”, lawyers in local areas do[can] stick together [not a universal statement] so it isnt necessarily something to be dismissed as having a chip. I know people who have had to leave a local area to seek legal counsel because of the old boys or old girls network to get a lawyer who would advocate for them.
Small towns are the worst for this sort of thing but in large cities lawyers are a small community so I imagine the same would hold.
Mild criticism? Really?
Dr. No JD:
“To me, it doesn’t matter whether the comment is also racist, the sexism it exhibits is itself worthy of condemnation. Why do you view the sexism as an afterthought that doesn’t justify a response?
******************
That’s a fair question. The reason I emphasize the almost breathless attempt to couch the poster’s words as anti-Hawaiian is because that’s how Prof. Leong sees it. She raised the issue of her ancestry before commenting on the gender prejudice and she named the screen shot “luau train” and then proceeded to assume the poster knew her racial identity. A point the poster denies. That tells me the racial prejudice issue was primary in her mind yet ironically that case was the hardest for her to make. While the sexual comment was important and NOT an afterthought it was literally secondary in Dr. Leong’s mind in my judgment. No one is promoting sexual stereotyping, minimizing it, or justifying it. That was the point of my little anecdote about a probable valid claim. I was merely pointing out that even meritorious claims are undermined by a rabid sense of self-justification and indignation at mild criticism. Hence,a “chip person.”
No Dr. No JD, as I see it most racism is easy to spot, in your face, so to speak. Sexism can be excused as having a chip, or in the case of women, they are “overly sensitive, emotional, a harridan, a nag, a biatch”, so many things that get attached to a strong woman. And to go a step farther, when a woman defends herself against sexism, she is doubly dismissed or vilified.
I’m not an attorney, my daughter is. I’m a nurse who has seen sexism in action.
Annieofwi, an interesting thought. I don’t know enough about the First Amendment to know if it’s true as a legal issue, but it sounds true to my ear. Is your thought that because as a legal matter racism receives less protection, that means that the rest of us are more willing to overlook sexist comments?
I would be interested in hearing what the author of the post thought of dybbuk calling leong a “comely young narcissist” in a different post. Your analogy to the chip person in your law firm fails because the client was seeing her lawyer as part of a conspiracy because she had experienced it by others, rather than anything the lawyer had done. Here, she was clearly subject to sexist harassment by dybbuk and a lot of others in posts he started, read ALL the posts she cited in her thread. Maybe you can parse any specific post and think she overreacted to that one — but viewing a post as sexist because someone previously made a sexist post about you is being a reasonable viewer, not a chip person.
WIth respect to the Leiter-Campos feud, it is appropriate for either of them to view any communication by the other as hostile; they clearly hate each other and have for a long time. The chip person would be someone who projects their feud onto interactions with others they perceive to be friends of their enemy. Sometimes, that is misplaced.
Sorry for the double posting, WordPress took a long time posting my first comment.
Could it be Dr.No JD, that because sexism is easier than racism to hide under the guise of free speech in today’s world?