Home / General / Censoring ourselves: Legal academia and the code of silence

Censoring ourselves: Legal academia and the code of silence


This is a story about one way in which a code of silence is enforced in legal academia. That code is unwritten, informal, and unacknowledged — and all the more powerful as a result. Most legal academics have internalized it so completely that they would deny such a thing exists, and moreover they would do so sincerely. This code, in other words, is an example of the most powerful and effective form of censorship, which is self-censorship.

Last Thursday, Michael Teter, a junior (that is, tenure-track but untenured) member of a middling law school’s faculty put up his second post on Prawfsblawg, a blog run by a collection of more senior legal academics. Teter has the status of a “guest poster,” which I gather means he has posting privileges on the blog for a limited time. The post, entitled “Paul Campos is Right,” was a self-consciously overt and “light-hearted” (meaning awkward and anxiety-ridden) attempt to be acknowledged by the poster’s hierarchical superiors – the theory being that such a provocative title was sure to elicit a response from at least one of them. Among other things Teter noted the first response his first guest post had elicited had been deleted as spam by Dan Markel, one of the senior professors who run the blog.

Teter’s second post inspired a quick response from Voodoo94: (preserved here)

I feel that this post is just sad. In its own way, it bolsters Campos’ argument that it is nearly impossible to get most legal academics to see the human and financial toll of the law school crisis facing most recent graduates – particularly those at 3rd and 4th Tier Schools.

Instead of taking a stand – one way or the other, right or wrong – on Professor Campos’ work, the author uses the post as an obsequious ode to the “LawPrawfs” who run the blog. No opinion is even ventured about the state of legal academia or the sustainability of the current educational/financial model at schools ranked lower than the Top 50. Hell, even the candid perspective of a junior faculty member entering academia at a time of such uncertainty over the efficacy and viability of the current US News-driven business model would be helpful. After all, in a time of contraction, wouldn’t the untenured be the first to go? Those of us outside the Ivory Tower, would find your thoughts on this quite illuminating.

I do not mean to single out Professor Teter here, but isn’t this emblematic of the go-along-to-get-along culture in academia – particularly among junior faculty seeking tenure? It seems that junior faculty are given a long leash to critique many subjects, but there is an unspoken rule to stay away from examining the stability of the Langdellian mothership.

My frustration extends beyond the junior faculty (who at least have the power dynamic of tenure status to explain their behavior). The uncritical examination of the status quo is also endemic to senior tenured faculty. I am especially frustrated by many of the 50, 60 and 70 somethings that comprise the remnants of the “critical legal studies” movement. If the law school “scam” (I use the term as a colloquialism, not as a statement of fact), isn’t a ready-made issue for CLS examination, what is? It’s got all the elements that should theoretically spur CLS inquiry. It hasn’t. The silence of the CLS community also reveals that in most quarters of legal academia, it’s safe to rail against many things – just not the structure of legal education itself.

Finally, I take a far less charitable view of Professor Markel’s censorship than Professor Teter does. In my limited and admittedly brief time reading this blog, I find that Professor Markel’s “quick draw” efforts to delete posts and close comments unsettling. I don’t know why he finds differing opinions so unsettling, but he does. His recent decision to delete a benign (and on topic) comment questioning the ethics of faculty accepting free food and drink from fourth tier Drexel Law School stands out to me. Of the “regulars”, he stands out as especially dismissive of any concerns raised by recent graduates and that is unfortunate. Dismissing the viewpoints of others grounded in personal experience/tragedy is unfortunate, but heavy-handed aggression towards those with different viewpoints is especially problematic. There is a special irony that this censorship occurs on a blog purportedly dedicated to “intellectual honesty.”

Dan Markel deleted this comment (which I hadn’t seen), and I noted this in an update to a post I had published Friday morning, commenting on how there were no panels at AALS formally dedicated to discussing the employment and debt crisis, after a commenter posted this comment in a thread following an earlier post:

Thanks for bringing attention to Professor Dan Markel’s censorship over at Prawfsblawg.

Yesterday, Markel deleted my post where I made several points: 1) the inane tone of Michael Teter’s guest post; 2) Teter’s tepid unwillingness to comment one-way-or-the-other on Professor Campos’ efforts as emblematic of a risk averse professoriate; and 3)Dan Markel’s unreasonable, inconsistent and hypocritical comment deletion policies.

To me, Dan Markel is a junior varsity version of Brian Leiter. Dan talks a tough game like Leiter but I think he has a very fragile self-image. He desperately attempts to silence dissent and purge those whose comments disagree with his elitist and privileged worldview (Harvard/Cambridge/Harvard Law/9th Circuit Clerk). Prawfsblawg is purportedly dedicated to “intellectual honesty”, but Markel doesn’t support intellectual honesty. He is the epitome of the legal 1%ers endemic to legal academia. He tries to play the imperious professor role with non-academics by attempting to silence them. Little does he realize how pathetic, shallow and mean-spirited this behavior makes him look. Earth to Dan: you mean nothing to legal practitioners or those of us in the “real world” – you are a paper tiger!

Markel recently deleted comments questioning the ethics of professors accepting free food and drinks purchased by the Fourth Tier Drexel School of Law. He then closed the thread for additional comments.

Yesterday, he deleted my comments on Professor Teter’s thread.

While we need to keep the heat on Leiter, I think academic thugs like Markel deserve a little attention as well. This guy has been flying under the radar for far too long. Bullies like this need to be made radioactive. their arrogance and imperiousness speaks for itself. All means necessary must be employed.

Clowns like Markel don’t realize that the firmament they stand on in legal academia erodes every day. The public isn’t on their side. They have the losing hand.

Late Saturday night (that is, two and half days later) I received the following email from Dan Markel:


greetings and happy new year.

I wanted to alert you that I recently came across some very nasty and inaccurate comments about me on your blog.http://insidethelawschoolscam.blogspot.com/2012/01/exhibit.html?showComment=1325855371740#c5145616221828013153

I would appreciate your deleting them.

FWIW, I have a policy of not allowing Prawfs’ threads to be hijacked by anonymous commenters, and sometimes that irritates folks who want to use threads to promote their agendas (in a anonymous way). Obviously you’re free to run your blog as you see fit. But all the same, I’d consider it good manners on your part to not allow my name to be muddied by anonymous persons on your blog. (There were a couple comments after that seemed inappropriate too.)
Many thanks in advance. (And I’d also appreciate your keeping this request between us; I’m not sure what your general policy is on emails, etc.)
all best wishes,

I didn’t see this email until early Sunday morning, when I sent Markel this response:

Could you forward me copies of the comments you deleted? If that’s not possible, what precisely was inaccurate about them (leaving aside matters of opinion)?

Markel responded to my request later that morning:

Paul, I’m surprised and disappointed you would even ask for evidence as if this was a dispute worthy of your independent adjudication.

I had hoped for a more collegial and gentlemanly response.

To which I responded:


You’re asking me to delete a comment on my blog which complains about your censorship of a comment made by the commenter on your blog. You claim the comment on my blog is inaccurate.. Unless you give me some basis for judging whether the comment is in fact inaccurate, and inaccurate in a way that’s sufficiently egregious to merit deletion, it would be irresponsible on my part to delete it, especially given that the gist of the comment on my blog is that you are trying to squelch dissent on your blog. So again, I would ask you to explain why the comment is inaccurate (that it’s “nasty,” i.e., critical of your behavior, is in my view irrelevant, unless that criticism is inaccurate).


This elicited the following response from Markel:


it’s not censorship of an idea. It’s deletion of an anonymous comment that was used to hijack a thread off the topic. That’s why it was deleted. On my blog, if someone comments intelligently and under their own name and on a blog post that raises the issue, there is not deletion just because it’s in disagreement with the post’s author. (And if you were to alert me to nasty or inaccurate comments about you or others in our profession that were anonymously written, I’d happily delete them, much as I have for others.)

You can see the comment that was deleted here and I’d recommend you read the thread and the comments by me explaining my position:

Moreover, I”m disappointed and surprised again that nasty language about colleagues in the profession (or anyone else for that matter) are of no significance to you. Why wouldn’t you expect or demand that your commenters act in a way that would make you proud? What moral standards of kindness to the world do you hold? (I’m obviously not making a legal claim on you, but an ethical one, and this whole exchange finds me deeply puzzled by your putative ethical concern for students and their well-being, but not for your colleagues in the profession.)

I’m publishing this exchange, despite Markel’s initial request that I not do so, for several reasons. First, Markel’s behavior in this matter is so extraordinary that I believe it would be a failure of professional obligation on my part not to reveal it. Markel deleted an especially cogent, well-written and well-argued comment from his blog. Markel of course has the legal right to delete any comments he wants to delete from the blog he manages (although it would appear he deleted this comment from the thread following another blogger’s post without consulting the author of the post), but obviously we are not talking about legal rights at the moment. We’re talking about censorship (again, obviously not in the narrowest legal sense, as in this context Dan Markel is not a state actor – thank Tebow for small favors). That Markel has the legal right to delete such a comment does not mean his decision to do so is defensible on broader grounds. Indeed, the deleted comment strikes me as exactly the kind of thing law professors need to read at the moment, and deleting it from a Prawfsblawg thread seems to me an irresponsible abuse of discretion.

Second, consider Markel’s first email to me. He asks me to take what I would consider the fairly extreme step of deleting a comment from my blog (I almost never delete comments, with the exception of the occasional ongoing shouting match between commenters that’s derailing a thread), on the basis of the claim that the comment is “nasty” and “inaccurate” and muddying his otherwise good name. At that time I had no basis for judging whether Markel’s characterization of the comment on my blog as “nasty” and “inaccurate,” was itself accurate, since I hadn’t seen the comment Markel had deleted to which the comment on my blog referred. So I asked him if he had a copy of the relevant material, and, if he did, to let me see it. (He did, since the comment he deleted from his blog had been copied onto another blog – a fact he was aware of when I responded to him).

His response to this request is telling. He is clearly taken aback — one might even say shocked — that he’s being asked (very nicely I might add) to produce some evidence for the assertions he is making in support of his extraordinary request that I censor a comment on my blog criticizing his censorship of dissent and criticism on his blog. Such a request on my part is, in his view, neither “gentlemanly” nor “collegial.” Apparently, it is part of some shared code that if someone posts a comment on one’s blog about a fellow legal academic that is considered “nasty” or “inaccurate” by the person being criticized, then the gentlemanly and collegial thing to do is to remove that comment, no further questions asked, if requested to do so by the legal academic at whom the criticism is directed.

The substance of such a request, apparently, is not “worthy of independent adjudication.” A colleague is being subjected to criticism by the anonymous rabble, and that, according Prof. Markel, is simply unacceptable. (Note he reveals he has deleted comments from his blog under circumstances similar to those that have led him to ask me to delete a comment from mine).

Third, when I point out – with as much gentlemanly and collegial reserve as I can muster – why his request is actually problematic, he first retreats into lawyerly distinction-making (comments won’t be deleted if they’re sufficiently intelligent, completely non-anonymous – note the deleted critic in this case was posting under a consistent handle – and sufficiently germane to the topic at hand), and then goes on to make the following remarkable observation:

Why wouldn’t you expect or demand that your commenters act in a way that would make you proud? What moral standards of kindness to the world do you hold? (I’m obviously not making a legal claim on you, but an ethical one, and this whole exchange finds me deeply puzzled by your putative ethical concern for students and their well-being, but not for your colleagues in the profession).

This is apparently going to come as a profound shock to Prof. Markel, but the actions of the commenter whose comment he deleted do in fact make me proud. They make me proud to know I belong to a profession in which not everyone keeps his mouth shut and his head down in the face of the suffering caused in no small part by the apparently bottomless narcissism of people like Prof. Markel, who, when confronted by an eloquent description of just one aspect of the human tragedy unfolding before his eyes, reacts by placing the potential hurt feelings of law professors who might read a blog comment critical of their behavior on par with the economic and emotional devastation that has shadowed the lives of countless law graduates over the past generation.

This, then, is just one illustration of the code of silence with which we all live. It is a code that, as the commenter whose words Markel tried to silence so perceptively noted, ensures that “in most quarters of legal academia, it’s safe to rail against many things – just not the structure of legal education itself.” The code of silence demands that, when your school publishes egregiously misleading employment and salary data, you say nothing about this to your students, or potential students, or most especially the public at large. The code of silence demands that you leave matters such as skyrocketing tuition and crushing debt loads to be dealt with by the dean and central administration who, after all, are paid to deal with these important topics. (I’ve seen considerable evidence that until a few people finally started asking uncomfortable questions recently, an astonishing number of legal academics didn’t even know how much it costs to attend the institution which pays their salary). The code of silence demands that you hide even from yourself the misery and desperation of so many of your graduates, including many who are “practicing law,” so that there’s even less risk that you might say something to someone — or at least someone who matters — that could be considered less than gentlemanly and collegial.

But that code is beginning to break.

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  • Wow! I am on record of thinking a disproportionate number of US based academics are pretty much jerks. I know nobody else agrees with me here. But, Markel takes it to eleventy! So that is one outstanding data point in favor of my position.

    • Mudge

      I have posited that if ever an ego-seeking missile is invented, it will first destroy university campuses.

    • Slocum

      Actually in Europe too the academics are disproportionately jerks, in my experience.

  • The “collegial and gentlemanly” line is immensely telling, almost charming in its retrograde elitism.

    • nonunique

      He is a man of Harvard, afterall.

  • Murc

    Let me get this straight. If I’m reading this exchange right, this guy, because you’re both law professors, expects you to keep forums under your control free of comments that denigrate him, and expects you to consider your shared profession to provide sufficient incentive for you to do so merely on his say-so, because his word should be all you need.

    Have I got that about right?

    • Paul Campos

      To be fair, he expects me to extend this courtesy to all other law professors, not just him.

      • Anderson

        Markel reminds me of why sharks don’t eat lawyers – “professional courtesy.”

      • Walt

        The only thing I can think of in his defense is maybe he means it as a general rule for anyone, not just law professors?

      • catclub

        Sounds like the proper response may be to ask how much he will pay you to delete said post.

  • Njorl

    The actual Professor Markel seems to be a parodic extreme of the person described in the deleted blog post.

  • LoriK

    That is some serious pearl-clutching. I have major issues with secondary embarrassment, so I wish that Prof. Markel had thought things through more carefully before hitting “send”. Or that I hadn’t read this post.

  • Western Dave

    Shorter Markel: People shouldn’t be anonymous on the internet because it makes it harder to blackball them.

  • Gwen Dallas


    You did the right thing.

    Markel could have just ignored this. I doubt anyone reading his resume would ever care to look up what some random “anonymous” posters are saying in blog comments.

    He could have also, if he cared, refuted it, and explained why he felt it was wrong.

    At the very least, he doesn’t “get” that when you ask someone to do something, particularly something that is extraordinary, you alone have the burden of proof in explaining why they should do it.

    If I made a list of important things about life I learned in law school, that would surely be in the top five.

    The fact of the matter is that there is a growing gap between academics of all stripes, but particularly law profs at prestigious institutions, and the students and alumni. I was shocked to find out that tuition at my law school (Houston) appears to have doubled since my 1L year (2004) and yet UH remains a relative bargain.

    This might be a good time for the law profs (whose salaries get paid for by the most vulnerable people in the equation) to show some humility, or at least humanity.

    • Hogan

      Professor Markel doesn’t seem to think that deleting a blog comment is anything extraordinary. Not only that, he doesn’t think having someone else delete comments on their blog for the vaguest of reasons (“best left unsaid, you understand, old boy”) is anything extraordinary.

      • R Johnston

        Professor Markel doesn’t seem to think.

        • Gwen Dallas

          This is a matter of pure reason. The purpose of a blog is to generate content. It is therefore unnatural to delete posts.

          I post this teleological case against comment deletion with full awareness of the irony, given that I am LGBTQ. =)

  • Gwen Dallas

    Another thing I learned (not in law school, but in subsequent practice) is that if someone wants something based on “professional courtesy” alone, then they’re probably trying to screw you.

    • Captain Splendid

      Have had a couple of those already this year, and in general, the rate is definitively up.

      Mind you, I also expect quite a few single practitioners to close up shop in 2012 and at least one major firm here in town to go through a major restructuring. It’s tough out there for a pimp lawyer.

  • dl

    Fantastic obliviousness to Lebowski by DM in the comments of Jan 9, 2012 12:53:45 PM and Jan 9, 2012 1:33:44 PM.

    • dl

      cut and paste, in case it gets deleted:

      On the topic, I should note that I’m meeting with a tech guru soon and I’m thinking we might create a special passport to commenting on posts, if that’s technically feasible. The idea would be only pre-cleared commenters would be able to comment, sort of similar to the way facebook allows you to comment on things without intermediation, but only b/c the poster knows who’s commenting. Anyway, we’ll see, discuss and explore. Stay tuned.

      Oh please, dear? For your information, the Supreme Court has roundly rejected prior restraint!

      DM: Walter, I’m afraid to disabuse you, but prior restraint affects government actors, not private ones. Cheers.

      Posted by: Walter Sobchak | Jan 9, 2012 12:53:45 PM

      Professor Markel, I am a Vietnam vet. I did not watch my buddies die face down in the muck only to see comments deleted indiscriminately. Am I the only one around here who gives a crap about the rules?

      DM: Walter, no, you’re not the only one. (And thanks for your service). The rules for this privately run blog are that comments should be signed, substantive and civil. If they’re not, they run the risk of being deleted.

      Posted by: Walter Sobchak | Jan 9, 2012 1:33:44 PM

      • The most amusing part of this exchange is the notion that anyone needs to consult a tech guru for what is, on virtually every blogging platform, a push-button setting.

  • Gwen Dallas

    And if I may post a third thought: the big criticism on Paul is that you haven’t been publishing articles (and I imagine, although feel free to correct me if I am wrong, the related digs of “didn’t present anything interesting at symposia” and “didn’t file any mind-blowing amici briefs recently.”)

    I mean, it’s academia in a non-hard science field, so naturally the issue comes up.

    But it really is an indictment of academia that collegial pissing contests can be won or lost on the basis of how many words-worth of intellectual masturbation you publish under your name.

    (Remember, a lot of the grunt work on scholarly articles gets done by research assistants and students).

    If academia doesn’t give credit for things like, having an engaging teaching style, or advocating (like you do) for students’ best financial interests, then academia has a serious problem.

    To put it bluntly: people go to law school in the hopes of being taught how to engage in a noble and lucrative profession, not to be impressed by cutting-edge wankery.

  • This guy seems like a horse’s ass, but is it really okay to publish the email exchange when he asked you not to? Leave the comments up, sure. Even mention that Markel asked you to take it down, and that you declined, fine. I suppose he is hoist by his own petard, but I think professional courtesy should extend to at least adhering to the request that his pompous correspondence not be made public.

    • Anderson

      but is it really okay to publish the email exchange when he asked you not to?

      What is the law on this, I wonder? I vaguely recall J.D. Salinger’s claiming ownership of letters he sent to other people.

      Law aside, the common-sense approach seems to me to be: ask for confidentiality first, and if you don’t get it, then don’t e-mail whatever you want kept confidential. Asking after the fact is at best requesting a favor.

      • (the other) Davis

        What is the law on this, I wonder? I vaguely recall J.D. Salinger’s claiming ownership of letters he sent to other people.

        I’m pretty sure the only legal claim he could make is that republishing the email like this constitutes copyright infringement (you can claim copyright over damn near anything you write that’s longer than a sentence or two, as long as there’s a shred of creativity in it). But this publication also falls clearly within the ambit of fair use — republication in order to criticize is one of the uses that Congress had in mind when it codified that defense against infringement.

    • JupiterPluvius

      Legally? Or morally?

      I think it’s morally awesome. If Prof. Markel thinks it’s legally suspect, he has remedies.

    • Slocum

      It has amused me, it is completely justified.

  • Michael H Schneider

    I had hoped for a more collegial and gentlemanly response.

    I am reminded of something I read several decades ago. I was following a reference in a law school textbook. Unfortunately I can’t remember the textbook, or the citation. It was to the transcript of a meeting of some official part of the American Bar Association.

    It quoted someone (sorry) as saying something like ‘if we don’t do something about enforcing standards in legal education, we’ll have the sons on itinerant shoelace peddlers practicing law alongside us in the courts of this land.’

    Now I don’t want to be taken as calling Mr. Merkel a racist, but somehow the words ‘collegial and gentlemanly’ do seem to echo back to that more, uhm, genteel time.

    • Michael H Schneider

      I do remember that it was in the volume reporting events from 1929. Sorry, I meant to mention that in the first comment.

  • Stag Party Palin

    Yet another in the infinite series of examples of why intelligence and empathy are bit players when they come up against the Lizard Brain.

  • Jeffrey Beaumont

    Wow Paul, kudos for publishing all this. It is bound to have fallout, but you are totally right in pointing out that the vanity of legal academia should not be given more accord than the terrible problems caused by modern legal education.

  • […]note the deleted critic in this case was posting under a consistent handle[…]

    This is the difference between pseudonymity and anonymity. Posting under a consistent handle, using the same name — even if that name doesn’t happen to be written on any government-issued forms — means having an individual, recognizable voice.

    It’s something whistle-blowers and dissenters have historically done, especially when they fear their voices being censored or silenced by others, or when they may risk retaliation in another aspect of their lives by speaking out. It certainly seems reasonable to me that if someone wished to break this code of silence, that they might do so under a pseudonym. For Prof. Markel to call it “an anonymous comment” is not only dismissive, but inaccurate.

  • Anonymous37

    This reminds me of a post on The People’s View. In response to Kay Whitlock’s posting, I wrote a comment asking if her condemnation of Felon Fitness extended to Convict Conditioning, the book that FF was clearly ripping off.

    My comment seemed to post with no problem, then suddenly disappeared. So I then posted a second comment:

    My previous comment didn’t post for some reason — trying again …

    Regrettably, this despicable offering isnt’ the only book of its kind – a tome that promotes for profit the purported “astonishing” results achieved through prison-inspired exercise that utilizes no free weights or other strength-building/exercise equipment but relies only on body weight. (I won’t link to other because I can’t bear to give them either the attention or the business.)

    There is a book, Convict Conditioning, written by Paul Wade, that was written and published before Felon Fitness, and is referenced quite a bit on fitness websites as a solid reference on bodyweight exercises, unlike Felon Fitness. And it’s quite clear, just by looking at the 2 titles (the alliteration, the fact that “felon” and “fitness” are rough synonyms for “convict” and “conditioning”) that Felon Fitness is an attempt to rip off Convict Conditioning and exploit its success.

    Paul Wade is actually an ex-convict who spent more than a decade at maximum-security prisons. So my question is this: you write that “these books are by no means the only or even primary ways in which the lives of prisoners are culturally commodified and exploited for commercial purposes” and you allude to books other than Felon Fitness that you “won’t link to … because you can’t bear to give them either the attention or the business”. Is Convict Conditioning, a book written by an ex-convict, which spends something like 8 pages out of more than 200 actually talking about prison before moving onto ancient and old-time conceptions of fitness and detailed descriptions of various exercises, and which has no actual prisoners of convict physiques (unlike Felon Fitness, whose “promotions admire male prisoner bodies to the point of fetishizing them — particularly the bodies of prisoners of color”), one of these books that you decry?

    And less than 2 minutes later, they had deleted that comment as well. Leaving aside the issue of censoring comments only because they are critical of the bloggers’ arguments, I’m still appalled that the bloggers on The People’s View would allow this drive-by smear by association of Paul Wade’s book. Now, had Kay Whitlock actually made a case that Convict Conditioning deserved to be condemned as well, despite the fact that it clearly is not anywhere near as exploitative a book as Felon Fitness, that would be one thing. But the deletion, like Markel’s, strikes me as an attempt to get around having to make one’s case by simply flushing critical comments down the memory hole.

  • Funkhauser

    Hey Dan Markel from the SCR at Lowell! Insufferable then, and seems insufferable now. Hooray!

    • Charlie

      Somehow I think this is the comment that will bother Markel the most. A whole bunch of blog-readers learned what a prick he is just today, but Funkhauser has known it since Markel was a loud-mouthed undergrad in the early nineties.

      A side point: I imagine Markel thinks he was doing right by a junior colleague by protecting him from a pretty cutting comment and likely an ensuing stream of comments where he would be insulted. But the fact is, if Markel was really interested in doing Teter a favor, he should have let the comment stand. Trolling for comments and kissing up in the same post looks really bad. Teter is junior faculty acting like an insecure and obnoxious grad student in public, and perhaps getting knocked around a little bit would teach him a lesson. I’m junior faculty myself (not in law) this is a crucial growing period where you need to stop begging for attention and approval from eminent figures and to start developing your own voice.

      I also think it’s hilarious that the punch-line of Teter’s original joke post, Paul Campos, is the one successfully turning his content-free post into an actual discussion about blogging, ethics, and legal academia.

  • One of the most astounding traits I encountered among law professors during my 15 years (now ended) in legal academia (after 12 years of practice at the highest levels of NYC commercial practice) was the almost universal resistance to disagreement and challenge. It astounded me because disagreement is what lawyers live with moment to moment. Every representation involves an adversary who tells you you’re wrong. Clients tell you you’re wrong all the time. Judges revel in telling you you’re wrong. As a result, one of the most fundamental attributes a young lawyer must earn is the ability to judge for him or herself the merits of his or her position and the points at which he or she wishes to take a stand. In short, you need a thick skin and a willingness to trust in your own judgment.

    And yet it is almost a universal among mainstream legal academics that disagreement is taken as personal affront, that a request for support is taken as an attack on one’s integrity. Is this the way we are supposed to be training our future lawyers?

    I suppose it reflects in part that mainstream legal academics do not consider the training of future lawyers particularly important to their professional endeavors.

    It also is convenient: each professor considers his area of specialty beyond the capacity of other professors’ understanding. If that is indeed the case, disagreement is uncalled for. The person disagreeing simply doesn’t have the capacity to understand the specialized knowledge being questioned.

    If all the law professors act that way, they all remain beyond disagreement. It is very convenient.

    It is also quite pathetic. It is the rare legal argument that someone from outside the field is incapable of questioning critically.

    • This.

      I see this attitude in lawyers online as well, not just professors: any legal pronouncement by an actual lawyer must be taken seriously and definitively, even if they’re clearly taking one tendentious side of an issue, etc.

      Law, like history, is a field where amateur opinions not only are common, but matter a great deal: they define the discourse in ways that professionals must adjust to.

  • Number Three

    Law profs, and smart lawyers (the categories may not overlap) know that YOU DON’T PUT ANYTHING IN AN EMAIL THAT YOU DON’T WANT PUBLISHED TO THE WORLD. If Markel doesn’t know that, then he isn’t as smart as his pedigree would lead one to believe. Anyone who would act, or advise a client, differently, is a MAROON. Full stop.

  • Interesting post from some cobag named “Drug Monkey” on pseudonymous commenting on the internet. I will politely and respectfully say that Prof. M seems to be more in favor of the façade of discourse, though the commenter that called him a clown played right into M’s hands- because that is how the game was rigged.


    • Also regarding pseudonyms and the internet — http://my.nameis.me/ “Supporting your freedom to choose the name you use on social networks and other online services.”

      Lots of info about legitimate reasons for posting pseudonymously, along with personal stories from many folks discussing why it matters to them.

  • pjs

    Ha! When I was an articles editor of the law review, I had the pleasure of rejecting one of Professor Markel’s submissions. He was . . . just like this.

  • shg

    Not very thoughtful of you to use the copy of the deleted comment that I preserved without giving credit to its source.

    • Paul Campos

      Link added to OP.

  • JoyfulA

    I don’t seem to come across any 1%ers I like or respect anymore. I used to.

    Have I changed, or have they?

    (And who had the bright idea that Drexel needed a law school?)

    • The Fool

      Drexel’s accountants.

  • RobNYNY1957

    You know what they say about Harvard men: Frequently wrong, never in doubt.

  • Slocum

    Fight the good fight, Campos. Versions of this bullshit abound throughout academia.

    (Note to self: never fuck with Campos.)

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