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
Zipser – I’m not sure that her status as tenured or not matters, but I think that the “assistant professor” title indicates that she is not tenured. I’m not sure that means she faces serious job security issues since, as you say, there’s some interest in her from higher ranked schools.
Zipser,
You asserted twice that Leong was tenured. Now you’re not so sure.
Zipser, my daughter is an attorney, she obviously was a law student. I’m empathetic to people like her who mean well, do well, treat others with dignity and respect, work hard to make it to their goals. I give respect to people until they prove they are unworthy of it.
If Leong’s scholarship is indeed bad, what would be he best way to go about critiquing her and her work? The way “Dybbuk” did? Did he lack the courage/conviction to post his critcisms of Leong under his own name? Why the ongoing cyber harassment of Leong? Sounds as if the man has a fixation on her.
annieofwi –
your lack of empathy for the law students and graduates I described is notable – as is your silence to fair questions. I have looked at a few of your posts – they are all variations on the same theme and show little empathy beyond the limited group you save it for. Would Irma Grese would attract your support if characterised as a victim of sexism.
And Elaine –
Sturm described her as at least tenure track (actually they said she was a hire, which could mean tenured) two years ago – since she left a tenure track role at William & Mary, it is a fair assessment that she is tenured by 2013/4 (usually no one moves from one tenure track job to another without a short decision being offered.) (She has also compared herself to both tenured and tenure track professors.) Nothing you posted contradicts that assessment. So she enjoys substantial job security, such that she can take a year off to look for a better job at UCLA. Try going to your boss and saying:-
“hey, I have a chance at a job at a more prestigious company, can I have a year off this crappy place, with the right to come back at the same pay and maybe a year more seniority so I can give it a try?”
Zipser — You are trying to project your feelings about law school onto one untenured professor at one random school, as if the point of the scambloggers is to promote good scholarship rather than bad scholarship, or to promote hiring people with a lot of practice experience over those without.
You then take that and say she should be subject to all manner of sexism and uncivility, in people suggesting she should not have her job (and thus, I guess someone else should have it), because she apparently stood up to the sexism and uncivility she was receiving.
If you and dybbuk succeed in trying to sabotage her career, and another professor takes her place — maybe a while male with some practice experience and some scholarship that you approve of — have you solved the law school problems that you are idenfying? I mean, it does not change the number of people going to law school, or the available jobs. There are obviously going to be fewer law students in the future, and fewer law professor jobs available, shouldn’t dybbuk not be interfering with her fair chance to compete for what is available? I really see this as him trying to interfere with her career first.
Zipser- You seem to know a lot about this situation, although your allegiances are also clear (and clearly disclosed — which I really appreciate).
I do have a question about the scathing (as you describe it) critique of Leong’s article. As I understand it, isn’t one of the primary criticisms of legal scholarship that it is not useful? In one of the other posts I read, a Leong defender made the point that this particular article seems like it’s actually a pretty bad poster child for that line of criticism because it was quoted extensively by an federal appellate judge in an opinion. That seems pretty persuasive to me — i.e. the argument that scholarship is useless can’t stick because this article has already been of use to a judge. I didn’t see much discussion of that point from Leong’s critics and I’d be interested in your perspective on it.
More abstractly, I’m curious about your thoughts about what makes a good teacher. I’m generally aware (although in honesty I haven’t paid that much attention) that some have been vocally criticizing professors for not having any hands on experience. I can see some merit to that line of criticism, but I do wonder whether it’s really the best metric for who will be good at teaching. Both my parents were teachers, so I’ve always had particular respect for the profession, and I’ve also always thought of teaching as a particular skill/gift. I would think teaching evaluations would be the way to determine if someone has that skill/gift and I would hope that law schools would pay attention to those. (I also recognize that may be a vein hope because some schools probably don’t value teaching nearly as much as they should). Are her evaluations a matter of public record?
Both of these questions are a bit off the topic of the thread, but I’ve been wondering about them and thought you might have some insight. I also do seem them as related to one of Leong’s concerns about being the target of these online attacks — which I take to be the “why me?” question. You’ve offered two explanations — her scholarship is bad and she’s a bad teacher — if those explanations don’t quite fit the facts, her concern seems better founded.
(And thanks all for the history of the civility policy — Zipser– I’m new here too and wasn’t aware of that).
Elaine, it’s evident to me and perhaps to some others by this point as to what is really going on here. I hope an investigation brings more to light and as I said, let the chips fall where they may.
anniofwi –
Sexist comments are not sexual harassment, at least in most systems. I think you are prone to exaggeration to make your points – an no, I am not jealous of Leong, though I find your long range psychoanalysis indicative of something….
University of Denver
Sturm College of Law
2012 Year in Review » New and Visiting Faculty
http://www.law.du.edu/index.php/2012-year-in-review/new-and-visiting-faculty
Excerpt:
New Faculty. We continue our 5-year plan to add 10 new tenure-track faculty members with two excellent new hires last year, including Professors Nancy Leong and Justin Pidot. Denver law also hosted outstanding visiting faculty such as Professor Stephen Daniels, from the American Bar Association, who taught a groundbreaking course in empirical methods…
Professor Nancy Leong graduated magna cum laude from Northwestern University before attending Stanford Law School, where she graduated with distinction and was a member of the Stanford Law Review. After earning her law degree, Professor Leong clerked for Judge Kermit Lipez of the U.S. Court of Appeals for the First Circuit. Prior to joining the University of Denver faculty, she was an assistant professor at the William & Mary School of Law, an adjunct professor at the Washington College of Law American University in Washington D.C., and a visiting scholar at Georgetown University Law Center. She also practiced First Amendment law with Americans United for Separation of Church and State. Professor Leong’s scholarship and teaching focus on constitutional rights, antidiscrimination law and judicial decision making. Her work has appeared in the American University Law Review, Boston University Law Review, Northwestern University Law Review, Stanford Law Review, and the peer-reviewed Journal of Legal Education, among others.
*****
When was Leong given tenure?
zipser, NOTHING you have said is remotely in violation of the civility rules. I am just sharing some general background information as did you. Serendipitously, you came here @ a time where some emotions are raw and some chips the size of basket balls are sitting on both shoulders of some. We need folks like you. So, hopefully I did not make you gun shy. I am cautious by nature, and while the politics of college professors on campus in cyberspace can be bare knuckled, that has been the case here as well.
From the comment you just wrote to me, and from your previous comments, it is obvious to reasonable people that you are a bright, reasonable, and serious person. Additionally, as stated previously, you were totally upfront in disclosing your involvement in this brouhaha. As you go though this complex world you’ll see there are some folks w/ chips, agendas, involvement, etc. who are not so forthcoming. I think this Leong situation has been edifying for you. It is maybe more important than what you learn in class.
Not being an attorney, but having worked w/ them for 35 years, I have a unique perspective. You look like someone to me who will be a good one. Looking for motivation, which you are doing vis a vis the Leong debacle, bodes well for you. Again, you have done NOTHING to violate any rule here, not even close. Just giving you a heads up. Folks have given me heads ups here and in the real world. They can be valuable.
Sounds like someone has an axe to grind.
Ah, now I see Zipser is trying to circle the wagons around him. This really has gotten to be ridiculous. I wish Ms Leong good luck and let the “chips” fall where they may.
Leong is tenured at University of Denver, Sturm School of law where she is full time assistant professor. She is not tenured at UCLA where she is a visiting professor, but retains her job at Sturm to return to. She is trying to trade up to a higher school and has been given a leave from Sturm to do so – a peculiarity of the academic world is that this is allowed.
Nick – lost my reading glasses, small iPad – autocorrect, argggh. Switched to laptop.
I’ll read the civility rules.
One of the big issues that has arisen in the law school debate is that certain professors, sheltering behind tenure, have engaged in prodigious efforts to silence critics of the current state of affairs in legal education. Those efforts have included cyberstalking (Leiter), outing (Leiter, Diamond), contacts to employers, etc. In effect Leiter and his crew of colleagues have, secure in their own tenured employment, sought to destroy the careers of their critics. Leiter has engaged in a protracted campaign against two critics in particular, Campos and Dybbuk (though there have been quite a number of others.) Some of Leiter’s helpers in this have included Steve Diamond and Dan Filler. So, to be blunt, Leong’s behaviour, especially since she seems to be coordinating it with Leiter and Diamond, is seen as her joining Leiter’s little cabal.
I do have to say that I fail to see what I have said in response to annieofwi that remotely approach her comments to me and many others … I suppose she suffers from a little myopia.
It is a fair question – how could sexist comments by Dybbuk hurt Ms. Leong’s career? It seems that she is exploiting them pretty successfully to portray herself as a martyr.
On the other hand the accusation of poor scholarship, getting people to read On the road and drawing attention to her lack of practice credentials to teach criminal law and procedure – that may be very damaging to her promotion and lateral prospects – though being considered a tool of Brian Leiter is probably worse.
She, however, has filed an ethics complaint against Dybbuk, one in which inter alia, if her postings are to be believed, she has not just accused him of certain sexist comments – but accused him with transparent dishonesty of racist comments and attributed statements to him that he did not say. That bar complaint targets his career and his livelihood – something that annieofwi ironically seems to ignore, while accusing Dybbuk of attacking Leong’s career.
The debate over the current status of law schools is very heated because the consequences for hundreds of thousands of law graduates have been very painful indeed. Between 2008 and 2013 some 500,000 law students have graduated, most with debts over $100,000 – half of them have been unable to find jobs – and many of the worst impacted have been minorities and women. The majority of those who did find jobs secured paychecks in the region of $60,000 p.a., or not enough to pay their student debt from law school. Their career prospects have been wrecked – they find it hard to even get non-law jobs. It is hardly surprising that they, and many lawyers commenting on this situation, are angry.
By contrast, there are a lot of law professors, of which Nancy Leong is somewhat of a poster child, who have managed to secure highly paid jobs teaching a few hours a week of classes, despite embarrassingly tiny real experience. They attract a lot of the anger of the law graduates who feel screwed – it is hardly surprising that some of that anger gets pretty irrational when broke and in debt graduates see gloating over a bacchanal in Hawaii paid for by very inflated tuition.
As far as I can tell, while many law professors may agree with their students in principle – all are frightened by the implications of addressing the crisis (and it is a crisis), which would be reducing law school output from circa 45,000 to 50,000 graduates per annum to a number closer to 20,000, while cutting cost by more than half. That implies a lot of law schools closing and a lot of layoffs at the remaining law schools and stinging pay-cuts for remaining professors. Moreover, the average law professor has 1.6 years of practice experience, which is, for those professors, a very sensitive topic, for multiple reasons. First it means that when such a professor yells at a student “think like a lawyer” he or she has no clue what that means. Second, it means that their non-academic job prospects are very poor. Third, it means that if law schools choose to address this issue, practice-inexperienced professors will be severely disadvantaged when it comes to promotion and lateral transfers between schools. (Leong it should be noted appears to be trying desperately to get a job in a law school other than her current tenured role at Sturm, probably because it is a school with a dubious future.)
A small group of junior professors in lowly regarded law schools (and Leong could be put in that category as could Leiter’s other vocal supporters) seem to have decided that by attacking the “scammers” they might curry favor with the law school establishment and somehow keep their schools open, or maybe as payback be hired at a more stable school. It is hard to say if this hope is likely to be requited, but it seems that much of the law school establishment is trying to “hide under the parapet” and would not want to bring in someone too closely associated with Leiter, et al.
In any even, as far as annieofwi is concerned, my questions were unanswered. I see no reason to put them again.
Or Zipser knows and is jealous of Leong for some strange reason and wishes to misrepresent any harm that may have come to her because of dybbuk’s sexual harassment and obsession with her.
So Zipser is ignorant of the fact that Leong is not tenured.
Zipser wrote: “Leong and Leiter are tenured – what harm could Dybbuk do to her professor status?”
*****
From the ABA Journal:
Blogging law prof requests ethics probe of ‘dybbuk’ commenter
Posted Jan 7, 2014 6:13 AM CST
By Debra Cassens Weiss
http://www.abajournal.com/news/article/blogging_law_prof_files_ethics_complaint_against_pd_after_concluding_he_was/
Excerpt:
Leong says in the letter of complaint that dybbuk’s “sexualized comments about my appearance and other disparaging remarks made me concerned for my safety.” She says she was relieved to learn he lived in a different state.
“There are over 6,000 tenured and tenure-track law professors in the United States,” Leong writes in the complaint, filed with the Illinois Attorney Registration & Disciplinary Commission. “Many of them have less practice experience than I do. Most of them have weaker publishing records than I do. Most of them have weaker teaching evaluations than I do. Almost all of them have been members of the legal academy longer than I have. Almost all of them have more power and prominence than I do. In light of these facts, it is difficult to think of a reasonable explanation for [dybbuk’s] obsessive attention to an untenured professor.”
Oy.
zipser, You’re new here. We had a recent dust up and Mr.Turley codified the civility rules. You should read them. Some loathe them and will try and sucker you into breaking them w/ an escalating tit for tat. You are welcomed here by myself and virtually everyone. But I’m sure you’re urbane enough to identify “chips” yourself. Again, welcome, and stop in for a drink anytime. This is a Vegas bar, open 24/7!