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
randyjet, I’m often amazed how folks don’t get the obvious and hilarious point in Chris Rock’s classic video. I’ve been on other blogs where some folks were clueless. Rock is from a blue collar, work 2 jobs, family w/ a strong father figure. His rants about how black people don’t take responsibility for their own behavior are classic and consistent w/ that video.
David,
Public defenders should be above reproach. Unethical conduct isn’t conducive to the public trust. I resent my tax dollars being wasted on a salary for such a person.
“Zipser
anniofwi –
Sexist comments are not sexual harassment, at least in most systems.”
***
Actually they are when the attention is unwanted, causes or contributes to a hostile work environment and or causes personal or professional damage. There are a number of remedies depending on the environment in which they occur. A bar complaint is one of those remedies if the local bar association has guidelines or regulations baring the harassment or its effects.
Personally, I would have outed dubyuk in a New York minute. If this guy is in fact a public servant in a position of decision making authority over enforcing the law (on the taxpayers dime) I wonder about his judgment as any taxpayer should..
Was he making any of those postings on work time’? Is there a difference in the way he treats cases featuring women and men? How about in the way he treats men and women working in is office? Are the airing of spanking/dom fantasies and repeated sexualy oriented statements about a professional peer (officer of the court) the level of behaviour and attitude a Public Defender should demonstrate? That says nothing of the level of the critical analysis to a peer’s theories and work products included with such postings. Is that what a responsible PD should to be posting in public fora?
He should have been outed long ago and a hard look at his work practices should have been taken by his superiors.
__________
Zipser: “For Leong the best thing that could happen is that this thing dies down – too many lawyers and law professors think the ethics complaint was a mistake, ….”
***
Maybe they are wrong. Maybe she didn’t go far enough, fast enough.
The esteemed Senator from Ca., Diane Feinstein, wants to define journalists and exclude bloggers from that protected group. the DC folks know they can control the MSM, but these pesky bloggers aren’t part of the cocktail party circuit.
davidm2575
Generally I agree with you. I do note (Leong is wrong in this number when she says 6,000) that there are about 12,000 full time law professors (according to the Bureau of Labor Statistics) in the US. Law school have massively increased their employment over the last 25 years, so most law professors are 20 or more years from retirement, even at top law schools. Assuming the scambloggers are right, or the Feds impose some sort of standards for student loans, a lot of law schools could close in the next few years – while the top law schools may stop hiring for a while. Junior professors at lower ranked schools are very much in the medium term firing line – a situation not helped by the pressure to have more practically experienced faculty.
I’d add, relations between academic lawyers and the actual profession are really awful right now. The contempt that academic lawyers have over the last 3 decades shown for practitioners is being returned heavily – but it is academia that cannot really survive that situation. Jonathan Turley is unusual in his practice and academic role.
Off topic–but on the subject of blogging and the First Amendment:
Blogger’s Incarceration Raises First Amendment Questions
By CAMPBELL ROBERTSON
January 11, 2014
http://mobile.nytimes.com/2014/01/12/us/bloggers-incarceration-raises-first-amendment-questions.html?referrer=
Excerpt:
BIRMINGHAM, Ala. — For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer, a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy. Some of these allegations he has tested in court, having sued his neighbor, his neighbor’s lawyer, his former employer, the Police Department, the Sheriff’s Department, the Alabama State Bar and two county circuit judges, among others. Mostly, he has lost.
But even those who longed for his muzzling, and there are many, did not see it coming like this: with Mr. Shuler sitting in jail indefinitely, and now on the list of imprisoned journalists worldwide kept by the Committee to Protect Journalists. There, in the company of jailed reporters in China, Iran and Egypt, is Mr. Shuler, the only person on the list in the Western Hemisphere.
A former sports reporter and a former employee in a university’s publications department, Mr. Shuler, 57, was arrested in late October on a contempt charge in connection with a defamation lawsuit filed by the son of a former governor. The circumstances surrounding that arrest, including a judge’s order that many legal experts described as unconstitutional and behavior by Mr. Shuler that some of the same experts described as self-defeating posturing, have made for an exceptionally messy test of constitutional law.
“You’ve got a situation where sometimes there’s no good guys,” said Ken White, a former federal prosecutor in Los Angeles who writes about and practices First Amendment law.
Davidm — I can’t say that I approve of speculation about behind scenes connections. I don’t see any evidence of it myself, other than the fact that you don’t like the underlying article.
As for my comment about the procedural posture: As I understand it (from the Westlaw history), the Supreme Court GVRed the opinion (usually done because of subsequent authority by the Supreme Court). Such a disposition doesn’t particularly undermine the logic of the majority opinion, but indicates that the Supreme Court has subsequently decided a case on the subject. My point was that often an opinion concurring in the judgment identifies flaws in the majority’s reasoning, and therefore, a GVR from the Supreme Court may buttress the reasoning of the concurring judge (although not necessarily).
These are all just general comments, and not specific to this particular case (which I don’t know much about).
So, her being harassed for over a year on 5 different blogs by Dybbuk was mere “arguing”?
She took plenty of punches before she fought back.
annie wrote: “So, her being harassed for over a year on 5 different blogs by Dybbuk was mere “arguing”? She took plenty of punches before she fought back.”
How many remarks were questionable? He says 20, she says 70? That might be high over a period of a week, but a year? That seems very low to me. Furthermore, verbal assaults are not punches. She took no punches before she threw her punch that could be serious trouble for this public defender.
Bron:
I think you need to read the article and then the citation. Link is above.
Bron — That’s a fair point that judges may not be looking for “quality.” But that really depends on how you judge quality. I could be wrong about this (and Zipser seems to somewhat disagree, but I’m not sure), but the problem that some of the lawyers I work with have about law review articles is that they are too theoretical, abstract, and off-point to be useful to judges and practicing lawyers. These are civil litigators, so things might be different in the criminal law world. An article that is sufficiently topical to be relied on by a lawyer or judge, is more useful in this way than the vast majority of articles. That doesn’t mean it’s a fantastic article, as I said, I don’t really have the credentials to know. But the fact that it was of use to a judge — even if that judge is ideologically motivated or not that smart (and I’m not saying this is true in this case) — is a significant mark in its favor. At least that’s my view.
Zipser/Dr. No JD:
“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.” (Dr. No JD)
It doesnt necessarily follow that the scholarship has to be good. Poltical agendas in court decisions are nothing new. An activist judge could use her [Leong’s] work to bolster his cause and codify her work for further use toward whatever end he has in mind.
Who cares what level of scholarship is involved if your agenda can be furthered by using a particual scholar’s work.
I am not a lawyer so I would be interested in your opinions.
Davidm — I don’t know much about criminal law, but I do know a fair bit about appeals. The fact that the Supreme Court reversed the decision if anything buttresses the credibility of an opinion concurring in the judgment — which by it’s nature expresses misgivings about the majority opinion.
Dr. No JD wrote: “The fact that the Supreme Court reversed the decision if anything buttresses the credibility of an opinion concurring in the judgment — which by it’s nature expresses misgivings about the majority opinion.”
I’m not sure what you are trying to say here. The Supreme Court caused the the majority opinion of the appellate court to change their opinion. Instead of upholding the lower court decision, they remanded it back to them for reduced sentencing. The opinion we read that quoted Leong’s work was not upheld. I don’t see how that adds credibility.
If you read the actual reasoning, however, it doesn’t really matter. The reference to Leong’s law review article was extremely gratuitous. It did not affect the case either way. I suspect relationships behind the scenes that we don’t know about, and I am sure that Ms. Leong was very appreciative that her law review article was quoted in an actual appellate court ruling.
Zipser — This is getting pretty off topic and ‘m not sure why you’re advancing all of these arguments that are pretty irrelevant to the actual topic at hand. But I’m feeling a bit invested in having this thread contain accurate facts.
On the tenure front, the ABA article says she’s an untenured professor (or, more accurately, quotes her as saying she’s an untenured professor). The Leiter blog says she’s an untenured professor. The post I mentioned was written recently. Her title says she’s an untenured professor. The length of time she’s been teching says she’s an untenured professor. Moreover, the tenure-track professor means untenured but in a position that is eligible for tenure (see http://www.merriam-webster.com/dictionary/tenure-track), so when she refers to herself as “tenure-track” that means untenured.
As for your comments about the job security of PDs, I have no idea how things are in the relevant office. But I suspect that getting fired from that job is a tough as it is to get fired at other government jobs.
Inter alia if her defenders here think they are doing her a favor in this debate – they are not. For Leong the best thing that could happen is that this thing dies down – too many lawyers and law professors think the ethics complaint was a mistake, and associating herself with Leiter profoundly stupid. I cannot see how she gains in any way from being regarded as one of Leiter’s minions – it was foolish to accept his help in the first place. I assume he was the source of Dybbuk’s identity – a more experienced person would have looked that “gift horse” in the mouth and considered the state of its teeth. Leiter has being using her, and like everyone he has used so far, it has fulfilled his objectives at huge cost to her.
Zipser wrote: “For Leong the best thing that could happen is that this thing dies down – too many lawyers and law professors think the ethics complaint was a mistake, and associating herself with Leiter profoundly stupid.”
The earlier statement about not being tenured seemed to be part of her complaint, not something she said years earlier. I do not believe that Nancy Leong has tenure. More importantly, I’m not sure you fully understand the politics involved in a professor securing tenure. If she is not tenured, let me explain my take that puts a political strategy on this whole thing and somewhat contradicts your perception that it would be best for this to die down for Leong.
The way I read part of this dispute is that Dybbuk probably doesn’t quite like the favoritism that Leong’s female sex grants her, and this is why he calls attention to her sex. Perhaps I am giving Leong too much credit for what I am about to say, but it is possible that she is actually using this situation to help herself secure tenure. She surrounds herself with discrimination issues, so why not capitalize on her own discrimination? Would this not be brilliant? By filing a complaint with the Bar, whether the complaint is successful or not, the tenure committee has yet additional reasons to grant her tenure. First, they have certain diversity goals in hiring anyway, so being a female helps her there, but second, here is a woman who allegedly has been discriminated against. I would imagine she would have the vote of virtually every other female professor for tenure on this basis alone. Third, the notoriety for being discriminated against is highly desired by academics, so in contrast to your suggestion here that she benefits if the situation dies down, the very opposite is more likely in play. For a university, publicity means fundraising success. Fourth, filling a complaint gives her additional real world experience of how it is done, something that works toward her credit by the professors evaluating her for tenure. She can use this experience in her teaching. So what I propose might be happening here is that Leong is shrewdly playing her cards right for advancing her career. We would need to know more about her actual IQ and the IQ of those who counsel her to consider seriously the likelihood of this hypothesis.
Now I am not saying that I agree with Leong filing a complaint with the bar. I don’t. From my perspective, it is like two people arguing with each other, and then one person throws the first punch. In my book, that crosses the line from free speech to criminal behavior. She’s not physically assaulting a person, but from my perspective, she is crossing a line and throwing the first punch. She is stepping this situation up to a new level where it does not need to go. Inappropriate anonymous remarks on a website do not rise to this level of trouble.
I will make this prediction: If this is being carefully calculated by Leong, she would never publicly out this person dybbuk because this would discredit the judiciary. Her strategy would be to urge a private investigation by the Bar. In contrast, if her motive is spite or revenge, she would find a way to make him known to the public.
Gring,
A public defender operates within a public defender office or bureau in which results matter – does he/she get acquittals. Moreover the public defender is under the observation of senior public defenders and judges – all of whom can say whether he/she is doing a good job. You do not get work at a public defenders office as a retained lawyer unless you are pretty good in court (though you may be utterly under-resourced.) It is pretty easy to be fired as a public defender – hard for a tenure track or tenured professor.
You and annieofwi have decided that the first year law student evaluations of neophytes, plus the assessment of senior professors who share her lack of practice experience is a good way to judge her credentials. I would submit that that the employment results of the Sturm School of Law is a pretty blunt assessment of whether the school is doing a good job (they are pretty awful.)
So no, I would not call you a voice of reason – and as for annifromwi – she really is utterly predictable in just about everything she says, and monotonic in her single topic assessments – I could type what she will say with little or no thought.
Dr No JD – she wrote that with reference to a comment about 2 years ago – since then she has characterised herself as either tenure track or tenured.
Hey where’s our welcome committee? Asleep on the job?
Ok, I’ll do the honors, welcome Gring! Good to hear another voice of reason!
Zipser — I would say the qualifications of a public defender paid directly by taxpayers has a more direct relevance to the public interest. It is important to the profession that public defenders are qualified. So by your reasoning, we should out dybbuk and put his credentials on display so that everyone can judge whether he is qualified. Although we have never met him, we should speculate as to what sort of public defender he is based on what little we know about him or can find on the internet.
Or would that be just taking general concerns about the qualifications of taxpayers and using it to harass a particular public defender.
Zipser — that’s actually not the part I was thinking about. In discussing her discovery of the identity of the commenter, she writes: “he was a public defender in his late forties who apparently has nothing better to do than harass an untenured professor.” I don’t know how to read that as anything but saying she’s untenured — which also lines up with her title and the amount of time she’s been teaching (three years — aren’t tenure tracks usually 6-8 years?).
Dr No JD
She did not say she was not tenured – as I recall she said her qualifications were comparable to many “tenure track and tenured professors” leaving her actual status a non-sequiteur.
rafflaw – I wholly disagree with you that her credentials to teach law should be left up to law schools. The Federal Government is allowing unlimited student loans to attend ABA accredited law schools, loans that are non-dischargeable in bankruptcy, loans that your social security can be garnished to pay, loans that taxpayers will subsidise in IBR/PAYE. Law schools have responded by hiring such unqualified professors that the average law professor has 1.6 years of actual legal practice experience (Leong has less), and charging huge tuition. The credentials of the professors at such law schools is a matter of public interest — it is also a matter of professional interest for members of the profession. That law schools can charge $50,000 p.a. to attend a law school whose faculty are so ludicrously unqualified is a public and professional issue.
Mespo at 1:14 — You asked me to point to the “comely young narcissist” post. Here is the comment on Campos’ blog where dybbuk gratuitously raises Professor Leong’s name (on a post that is not about her), in which he calls her a “comely young narcissist on Campos’ former blog:
http://insidethelawschoolscam.blogspot.com/2012/09/camille-andrews-threatens-to-sue-anyone.html — look at the comment signed dybbuk 9/11/12 at 6:16 pm.
This is a year before she filed any ethics complaint or started fighting back against her harassers. What do you think?