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
Found her teaching evaluations at http://udenver.academia.edu/NancyLeong/Teaching-Evaluations. Judge for yourself, but it looks to me like she’s quite an able teacher. On the Leiter-minion front, as far as I can tell, hasn’t he only gotten “involved” in the last couple of weeks, long after Leong became the focus of all this criticism? Am I missing something?
anniofwi –
ask your daughter if she thinks an ethics complaint was justified – I have yet to find a lawyer who agrees – who is not an academic. When you ask her, I’d make sure she has the actual facts of the situation, not what you, Leong (or Leiter – or the ABAjournal) says are the facts.
I think you really do not understand how serious a bar complaint is, what it means. You may need to ask her about that too.
It appears there’s a number of law schools that feel she IS qualified to teach criminal law.
And that is the point that many want to make … would you hire her if you were charged with a crime – I would not. But law schools think she can teach those who will be fighting for the rights of those facing incarceration or worse.
Does she need to be the sole target for people like Dybbuk – I’d rather he picked a good few more poster children (he did do this to a male protégé of Leiter already.)
Much of the animus against her is that she has apparently decided to be one of Leiter’s minions. I certainly would not give a damn if she were not.
Elaine, precisely.
It appears to me that what we may have here is jealousy, cyber harassment and sexism run amok by a public defender that should’ve known better, which brings me to the conclusion that he acted unethically and has rightfully opened himself up to investigation.
zipser,
isn’t the decision whether Leong is qualified to teach left up to the school or schools that hire her? You may not like it, but if a school hires her, at least they think she is qualified. Her students are free to complain to the school if they think she is unqualified or not doing a good job. One teacher I had in law school comes to mind that I don’t think belonged in the job and the school figured it out and he was not there too long.
aniofwi:
FSU – one of the two top law schools in Florida – a state with 12 (way too many) law schools, most of which are outright ripoffs. UW Madison is a top regional law school in a state (unlike Florida) that has just 2 law schools. Overall, debt aside, she is better off than most law graduates – not something I’d hold against her. I’d say moving to UW Madison may have been very wise. Florida is a terrible place even for top Florida graduates – not as bad as Vegas, but bad.
I think your daughter is in a better place than most of her peers.
Once someone has written a paper/article/book/poem/essay and “put it out” in the public, said piece is fair game for criticism. Tear it to shreds, if you want. But why feel the need to make sexist and other derogatory comments about its author?
And now we have someone who is critical of Leong’s supposed attempt at career advancement.
*****
All this sniping about one law professor that some individuals appear to have a rabid dislike for seem like scenes from Mean Girls.
“I am suggesting that the sexism in certain things said by Dybbuk is being highlighted to hide the fact that she is embarrassingly unqualified to teach criminal law and criminal procedure and that at least as far as the Open Road article her so called scholarship is what lawyers call “scholarship” of the most puerile quality.”
****
It appears there’s a number of law schools that feel she IS qualified to teach criminal law. I’d add that some of the criticism of Leong can certainly be described as puerile.
randyjet — I’m not saying that appellate judges are necessarily brilliant (or even competent) and I don’t know anything specific about Judge Davis. Instead my point was that if a judge uses the article, that is good evidence that it is useful. Even if the judge is a moron, the judge found this article to useful. If you want to see the opinion, it’s in a case called US v. Mubdi (http://caselaw.findlaw.com/us-4th-circuit/1608673.html). I don’t know enough about criminal law to be able to assess whether his opinion is any good.
Dr. No JD wrote: “I don’t know enough about criminal law to be able to assess whether his opinion is any good.”
It is interesting how they referenced Leong’s paper like three times, but the thesis of her paper was not used. The courts decision was actually contrary to Leong’s thesis. So it seems to me like the references are somewhat gratuitous, and overly gratuitous if you ask me. If I had the right resources (maybe PI Nick Spinelli does), I would look for a connection of some sort between Leong and either Judge Diaz or Judge Shedd. Looks like someone threw the dog (or fox in this case) a bone. 🙂
In regards to the court’s opinion, it is notable that the Supreme Court sent the case back to this court just weeks later, and the reversed their ruling, remanding the case back for reduced sentencing.
See: http://isysweb.ca4.uscourts.gov/isysquery/511516d7-cc18-43d5-a713-ba0dbe0d808c/2/doc/105008.U.pdf#xml=http://New-ISYS/isysquery/511516d7-cc18-43d5-a713-ba0dbe0d808c/2/hilite/
Dr NO, Thanks for the cite and I also read her article which I found to be astounding that it would be in any law review since it seems that it would be more appropriate in a review of American Lit. The judge who used a very small portion of it missed the main points, which is funny since he CONCURRED in the finding of the whole court affirming the judgment that the traffic stop WAS legal and justified. Even though the original intent even after finding lots of other things was only to give a warning, the subsequent search was only initiated after another patrol car with a drug dog came on scene and alerted.
As for the article itself, I was amazed that the thesis was one of the damage to the freedom to violate the law. It also was poorly edited since obvious errors of wrong words were used in writing it or was not caught in editing. Just one example is the one of the Chris Rock video of how not to get beaten by a cop. She goes on about the injustice of driving while black, and missed the MAIN point Rock made which is OBEY THE LAW! If she wanted to actually provide some good points on discrimination in traffic stops, that would have been a better article, but instead she goes off on the psychic damage and imagination, and other things that are totally outside the scope of law. I also noted in her published references she does NOT refer to that one at all. I don’t blame her for not wanting too many lawyers to read that one.
randyjet wrote: “I also read her article which I found to be astounding that it would be in any law review since it seems that it would be more appropriate in a review of American Lit. The judge who used a very small portion of it missed the main points, which is funny since he CONCURRED in the finding of the whole court affirming the judgment that the traffic stop WAS legal and justified.”
Exactly right! To reference her three times too, surely it was a gratuitous gesture to help along a rising student.
randyjet –
and anifromwi –
yes, a lot of appeal judges (and judges) are far from intellectual giants – many are clowns. Practicing lawyers tend to be discreet about this, because it would not help my client for Judge ***** to know I think he is hopeless or Judge —– to know I think she is lazy and indecisive. We bite our tongues, because speaking up is not in our clients’ interest.
Zipser, One of the reasons I came to this blog is because Mr. Turley is both academic and real world. He teaches, writes, and works cases in both civil and criminal court. Again, it’s motivation that is key. Folks come here for all type motivations, respect for Mr. Turley, inquisitiveness, libertarian, etc. But, not all come here w/ positive motivations. You will learn a lot in this forum. Hang in there!
Poppo:
I am not as you say suggesting that Leong “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.”
I am suggesting that the sexism in certain things said by Dybbuk is being highlighted to hide the fact that she is embarrassingly unqualified to teach criminal law and criminal procedure and that at least as far as the Open Road article her so called scholarship is what lawyers call “scholarship” of the most puerile quality.
I will add that many of those blogs that seek to address the law school crisis are frequently puerile (images of turds in toilets!) and many of those posting on those blogs are sexist and fixated on affirmative action. Certainly to suggest that at least in getting into law school Leong benefited from affirmative action is silly – women are generally overrepresented at law schools – to the extent that any affirmative action is happening they are probably looking for male students, while Asians are also overrepresented in US colleges and again cannot be said to need or be benefiting from affirmative action (and I am not getting into the debate of whether it is right or not.)
At times it seems impossible to have a debate without the issue of race or sex coming up. Dybbuk did not need to mention that Leong was a woman or attractive – it was stupid to do so (the racism accusation is ludicrous.) However, in my view the main animus against Dybbuk is not driven by his sexist comments – it is because he has highlighted issues that many law professors, law schools and Leong would like to be ignored.
bfm:
“Don’t they realize that when I got that ticket I was steeping in the mythology of freedom, escape, friendship, romance and the possibility of a better life. Don’t they realize that the judicially authorized policing procedure of pulling my vehicle over inflicted the imaginative injury of keeping me from my American dream – not to mention a hundred bucks plus court costs.
Look, I am working on it – this is a first draft.”
********************
Look, bfm, you’ve painted the word picture just fine for me. I can see you tooling down Route 66 somewhere just outside of Amarillo in your white ’69 Camaro with the blue racing stripe. Bright sun, top down, and traveling the speed of whatever’s “reasonable and prudent.” Hair billowing in the wind with your Molly Hatchett cranked up and singing along to “Flirtin’ With Disaster.”
I “damn sure know what you mean!”
Zipser, yes indeed she still owes plenty in student debt. She got her JD from Florida State. She was a visiting student in her 3rd year at UW Madison.
Sorry for the multiple posts, but one follow up. Isn’t DU sort of a strange school to target as the example of a school churning out grads with poor employment prospects? I realize rank 64 (just looked at US News) isn’t the best by a long shot, but there are more than 140 schools ranked worse. Does Colorado have lots of law schools in it? I guess if DU was the fifth best law school in the state that would make it a fairer target, but I can only think of one other myself. Compare that to San Francisco which has tons of law schools and DU seems like it’s better situated in terms of getting students jobs.
Zipser,
Can you provide proof that Leong is a tenured professor at the Sturm School of Law at the University of Denver?
Zipser, Thanks for providing the additional context, and I have to say I share some of the concerns that you and others voice. Particularly the concern about costs and debt. I still don’t see two things: how is this particular piece of scholarship “inane” (or useless) if a federal judge quoted it extensively in a circuit court opinion? I’m certainly not saying that all judges are brilliant, but that would strike me as the gold standard in terms of an objective measure as to the usefulness of a piece of scholarship (of course, each of us can make our own subjective assessments). Second, do you have any information about her teaching specifically, rather than inferring that she is a bad teacher based on her amount of experience?
I actually think Leong did speak directly to the tenure question in one of her blog posts, where she describes herself as an “untenured professor.” (It’s the one anniefromwi and others linked to above). A quick search didn’t turn up anything about DU’s policies, but the ever reliable Wikipedia states that assistant professors are untenured positions. Again, I’m not sure this is a central point, but I do think it’s worth having the facts right.
annieofwi:
Does you daughter carry significant law school debt? Were you well off enough to pay her way through law school – it is a fair question? If she is not in debt, talk to some of her peers.
Did your daughter go to a top law school or to a lowish ranked but expensive law school with poor employment outcomes like say Sturm College of Law (where??) If your daughter went to a T-6 to T-20 law school your perspective may not be the same (I went to a fairly highly regarded law school compared to Sturm.)
Though you may not like doing it, I think you need to ask the same hard questions Dybbuk asks Leong about the overall morality of teaching at a place like Sturm. I think Dybbuk needs to ask himself whether his view of the moral bankruptcy of Leong’s role at Sturm justifies making sexist comments on top of the cutting if probably fair other points he made. I frankly did not think he needed to go to comments on her looks.
I will say though that there is an interesting issue around “lookism,” i.e., that attractive men and women are treated, from childhood, with considerable favouritism. I just don’t think that the law school debate is a good place for it – I mean neither Campos nor Leiter can be described as good-looking, while Jonathan Turley’s photo certainly makes him appear a reasonably handsome man.
The entire debate (in multiple fora) has pointed out, again and again, that she is a tenured law professor. She has not denied it – she was at some point tenure track and that has a time limit. Assistant professors can be tenured (it is a matter of pay and seniority.)
Dr. No. JD
You are getting into one of the central issues in the current debate, what qualifies someone to be a law professor.
In colleges there are various categories of schools – most academic, some liberal arts, some sciences and engineering. Then there are “professional schools,” i.e., those that exist primarily to provide the pre-requisites to practice a profession – medicine, nursing, dentistry, law, education (though less serious than in say Finland), etc.
At the heart of what is happening with law schools is the desire of law professors to straddle the line between been a professional school – and hence argue for pay that reflects what they say they could have earned as lawyers – but to also present themselves as academics in a research university – thus getting opportunities to engage in what they call “research” and also have very light teaching loads. The problem for most law professors today is that their legal education is 3 years for a JD on top of a degree in some not very relevant subject, like say English. Most are incapable of real research or scholarship. The catch is that compared to professors at other professional schools, medicine, dentistry, nursing, etc. they have negligeable practice experience.
This situation has run hard into a second issue – law school tuition and law school debt. The problem is that the cost of attending law school, tuition and living expenses is now typically in excess of $200,000. A rough guidelines is that educational debt should not exceed a likely starting salary – but according to the Bureau of Labor Statistics, lawyers’ average earnings is around $100,000 p.a., less for women and minorities (not something I will defend.) That is for all lawyers – and experience matters in practice.
This has led to demands that legal education do a better job of preparing young lawyers for actual legal practice and become less focused on “research and scholarship.” This is where the issue of the very minimal practice experience of so many law professors is becoming a very hot topic, along with the utter irrelevance of their scholarship. It is also an area where many professors are hugely defensive, because it is something that those without practice experience but tenure or tenure track cannot fix. If you are 2-15 years out of law school, but with no real experience but being a professor, no one will employ you as a lawyer, certainly not paying what a law school would pay.
Leong’s misfortune is that she managed to display in one individual all the aspects of the modern legal academy that attracts fury on the part of recent graduates and practicing lawyers:-
-no-real qualifications beyond a Yale law degree;
– a ludicrous lack of experience, teaching subjects – criminal procedure and criminal law – where experience is important;
– smug preachiness to public defenders and prosecutors;
– inane writing;
– a willingness to take legal junkets to luxurious conferences;
– presence at a law school with notably poor employment outcomes and high tuition;
– and an overall aura of being very pleased with herself.
Cripes, there was so much ammunition – why Dybbuk was foolish enough to mention that she is attractive (though she may highlight her advantages in that regard) is beyond me. She was already a caricature.