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Using the legal process to silence critics

[ 45 ] May 4, 2012 |

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to this civil action. The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”

Now it so happens that this discovery request isn’t going to discover much. A year ago Anziska called me a couple of times because he wanted to discuss the class action suits Kurzon Strauss was then contemplating against various schools, but to the best of my recollection we didn’t talk about Cooley specifically. And while I’ve published the equivalent of a fairly long book since then on various aspects of the law school scam, I’ve barely mentioned Cooley, and have certainly never bothered to break down the school’s post-graduation rates for anyone.

I haven’t warned people about the dangers of enrolling at Cooley for the same reason it would be a waste of time to warn a parent that it’s a bad idea to hand a 15-year-old boy a bottle of Jack Daniel’s and the keys to a new sports car. Some things are so obvious that it’s pointless to belabor them.

In retrospect I rather regret having practically nothing to produce in response to this particular legal command. After all, in the context of the gathering disaster that is contemporary American legal education, Cooley is without question the prime example of a shameless diploma mill that would be shut down immediately if American law schools were subject to more than the most cursory regulation by either the ABA or the federal government, which through its no-questions-asked student loan programs pays a large portion of Cooley’s operating budget.

Nevertheless, there is something potentially useful about reviewing Cooley’s employment stats at the level of detail that is now available through the efforts of people such as Law School Transparency, in something of the same way it’s useful to show 15-year-olds gruesome films of alcohol-related car crashes. In that spirit, let’s compare Cooley’s stats to, say, Stanford’s, on the working assumption that the outcomes SLS graduates obtain are the kinds of things people borrow $115,364 (this was the average law school debt load of 2011 Cooley graduates) in high interest non-dischargeable loans in order to be able to do.

Graduating class of 2010:

Percentage of graduates who obtained jobs with law firms of more than 25 attorneys:

Cooley: 1.1%

Stanford: 51.1%

Percentage who obtained federal clerkships:

Cooley: 0.0%

Stanford: 29.3%

Percentage who were unemployed nine months after graduation, or whose employment status was unknown:

Cooley: 34.4%

Stanford: 0.6%

Percentage who were employed and reported a salary:

Cooley: 6.5%

Stanford: 88.5%

And so on.

One of many useful things law schools tend to fail to teach their students is that lawsuits are often filed for reasons that have nothing to do with actual legal rights and wrongs. A classic example is a strategic lawsuit against public participation (SLAPP). The point of a SLAPP suit is not to litigate valid legal claims but rather to censor critics, through legal intimidation.

It is something of an irony that the first exposure many current law students and people considering going to law school will get to how a SLAPP suit works is being provided by the suit Cooley has filed against the attorneys representing former students suing the school, and the even more preposterous suit the school brought against four scam bloggers.

For instance the law school is suing “Rockstar5” for defamation and wrongful interference with its business relations. As a strictly legal matter, the complaint against Rockstar5 is very weak. For example, it claims the author is defaming Cooley and its representatives by calling them “criminals.” The specific passage in which that word appears criticizes the school for admitting people who shouldn’t be in law school, and allowing them to spend $50,000 per year in tuition and living expenses, even though such people “don’t have a shot in hell of practicing law.” The author then says, “Congrats you criminals, you have accomplished robbery!”

You don’t have to be a lawyer to realize the author is not literally accusing Cooley’s administration of robbery, but rather is employing a metaphor to state his opinion regarding what he considers the ethically dubious character of Cooley’s business model. Indeed with trivial exceptions, almost everything in the post is either a matter of undisputed fact or the statement of an opinion-neither of which can form the basis for a valid defamation suit. But SLAPP suits have little to do with legal rules, and everything to do with the economic rule that rich and powerful institutions can employ the legal process to crush dissent, by burying critics in a blizzard of litigation expenses.

Cooley’s real problem has nothing to do with supposed defamatory claims on what, until it filed this suit, was a profoundly obscure blog, and everything to do with what has been dubbed the the Streisand Effect. The Streisand Effect got its name from an ill-fated lawsuit brought by the famous singer against a photographer who published a photograph of her Malibu house on the internet. Streisand’s suit backfired when publicity regarding it led to the photograph being viewed by hundreds of thousands of web surfers.

Cooley is getting more on-line publicity than ever these days, such as for example this blog post, pointing out that the school’s founder, “Professor Emeritus” Thomas E. Brennan was paid more than one million dollars between 2007-08 and 2009-10 for what even the school characterizes as less than ten hours per week of “work.” Brennan’s days seem to be in significant part filled by authoring a blog chock full of classic cranky old man rantings about, among other things, how The Gay is destroying the nation’s moral fiber, while being paid more than $700 per hour (this assumes a 52-week work year) to compile “Judging the Law Schools,” Cooley’s very own ranking system, whose 2010 edition is gracious enough to allow Harvard to deny Cooley the honor of being ranked the top law school in America (global and inter-galactic rankings are not yet available).

Rather than analyzing this matter any further I’ll defer to the (apocryphal) words of P.T. Barnum, and cite H.L. Mencken’s most famous dictum.

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  • UberMitch

    Isn’t Cooley the one that publishes their own law school rankings that declare Cooley to be the second best law school in the country after Yale?

    • UberMitch

      Oh. Now I see that mentioned in your penultimate paragraph. That will teach me to not fully read things.

      • Colin Day

        It was second after Harvard. Yale was tenth (Stanford was 30th).

        • R Johnston

          Ironically enough under the current circumstances, offering fine grounds for Yale, Stanford, and every law school that isn’t Harvard to sue the Thomas M. Cooley Law School for defamation.

  • Next time that I have to teach Spinning with Stats, I’m using the law school ranking system as a teaching example.

  • Funkhauser

    That’s just great. Measuring law school quality by the square footage of a school’s law library and the number of periodicals to which it subscribes. That’s fantastic.

    • Hogan

      Yes, it makes complete sense that Cooley should get big points for having the most students and the second most faculty; that completely outweighs the fact that they’re 190th in faculty/student ratio.

      • JBL

        Not only that, but it counts repeatedly: they use enrollment numbers for the entire school as well as for the first-year class; categories like minority enrollment and foreign student enrollment (raw #s) appear as well.

        • bexley

          To be fair they also come out top in the key “salary/hour for the founder” metric.

  • Warren Terra

    Dammit Campos, you’re burying the lead here. That “Judging The Law Schools” is fricking hilarious.

    We’ve got the title page, with the subhead (bolding mine):

    An extensive, objective comparison of American law schools by a distinguished jurist and a law school president who challenge the subjectivity of the U.S. News and World Report rankings.

    Now, the title gives the surnames but not the titles of the authors, you need page five for that:

    Thomas E. Brennan, Founder and Former President, Thomas M. Cooley Law School
    Don LeDuc, President and Dean, Thomas M. Cooley Law School

    At which point any sane person who’s made it this far might be wondering about the whole “objective” thing.

    I will admit that I skipped the long pages of text, but I’m sure there are mangoes galore. And, indeed, they did put the esteemed Thomas M. Cooley school second in their rankings. I don’t know enough about law schools to judge the rest of their rankings, but (except for conceding #1 to Hahvahd) they looked pretty suspect to me – I would cetainly never have guessed Yale would fall below the University Of Texas and Northwestern, nor that Berkeley would be at position 27, well below the UC Hastings.

    It appears that a lot of the work in skewing the ratings may be done by finding at least a half-dozen different ways to award points for having extremely large numbers of enrollees. Anything normalized is ignored or under-weighted; and selectivity, undergraduate achievement, percentage graduating, and of course percentage subsequently succeeding seem rather less important to the rankings.

    • Warren Terra

      Oh, and also: is the President And Dean really named “Donald Duck”? Maybe so, though it would suggest his parents were cruel. Or maybe it’s an alias in support of a con game …

      • Tcaalaw

        “LeDuc” would mean “The Duke.” French for “duck” is “canard.”

        • Warren Terra

          I did realize that. But he’s not in France, and “Don LeDuc” doesn’t mean His Grace Donald The Duke Of Whatever, it means “Donald Duck”.

          • njorl

            That’s quite the canard.

            • I will permit myself my daily LOL for that comment.

              • firefall

                use mine as well

    • Hogan

      Actually it’s skewed toward having extremely large numbers of anything.

    • C.S.

      I would cetainly never have guessed Yale would fall below the University Of Texas and Northwestern . . .

      Let me guess, you’re either not a lawyer or not a lawyer who’s worked extensively with Yale Law grads. Because that’s the only part of the rankings that made any damn sense to me.

  • You should link “Law School Transparency” I think.

    “Diploma mill” is an interesting provocation: if they’re gonna sue over a metaphorical claim that’s a term that begs for it.

    • Warren Terra

      I’m not entirely sure “diploma mill” is accurate: I thought a diploma mill spit out diplomas willy-nilly, requirements no object. This institution appears to graduate about half its enrollees – probably because they’ll take any warm body that comes in the door, and people change their minds or are forced by circumstance to quit; perhaps some even manage to fail.
      This seems more like a student loan mill – in the same sense that a grain mill takes in grain, grinds it up, and turns it into something highly profitable to the mill owner, this student loan mill takes in student loans, grinds them up (well, it’s certainly mangling and destroying something), and turns them into multimillion dollar salaries for its top executives.

      • I think “diploma mill” means what you think it means. If their accreditation was simply pulled they’d be an unaccredited school and not a diploma mill.

  • Jay B.

    Also, never legally threaten a man who buys pixels by the infinite.

  • DrDick

    This clearly highlights that, for all the conservatives moaning about needing tort reform to protect corporations from malicious lawsuits, the law has increasingly become a tool of the powerful to silence and oppress the weaker members of society.

    • firefall

      you think it was ever otherwise? altho I’ll admit it seems to be a bit more naked about it now

      • DrDick

        It has always been such, but seems to be getting ever more so, especially as the rightwingers increasingly succeed in limit tthe access of common people to the courts and legal redress.

        • Holden Pattern

          I am more of the opinion that we’ve reached the end of the brief interregnum during which the nation actually tried to achieve more than purely formalist equality before the law.

          • DrDick

            I think that is probably true, though that interregnum has pretty much corresponded to my 60 years on the planet. I kind of got used to the idea.

            • Holden Pattern

              Ditto, less a few years.

    • JoyfulA

      In these parts, I’ve seen rural township (population of a few hundred) supervisors discussing zoning SLAPPed for more than the monetary value of the township by corporations interested in establishing hog factory farms.

      • R Johnston

        And this is why the Supreme Court decisions limiting punitive damages are among its most dangerous decisions.

        Intentionally bringing a SLAPP suit should mean mandatory bankruptcy, however large the punitive damages on the countersuit have to be.

        • JoyfulA

          I doubt these rural townships could gather the wherewithal to countersue, although otherwise it sounds like a good idea.

          When I was a preteen, our arguments were punctuated with, “I’m gonna take it to the Supreme Court.” As an adult, that idea makes me shudder.

          • R Johnston

            With large enough punitive damages available they’d either be able to find outside counsel to take the case on contingency or they wouldn’t be SLAPPed in the first place.

            Punitive damages should always be large enough to have a very significant deterrent effect. That’s the whole point of having them in the first place.

            • rea

              Taking the defense side of a case on a contingent fee is strictly not allowed

              • What if you went to the Thomas M. Cooley Law School?

              • R Johnston

                Handling the countersuit on contingency isn’t a problem.

              • Informant

                Taking the defense side of a case on a contingent fee is strictly not allowed

                In what states? I’ve certainly heard of firms defending cases on “negative contingency fees” and have never heard anyone claim that was improper.

      • DrDick

        Don’t even get me started on the horrors that are Monsanto.

        • R Johnston

          If Monsanto were faced with the threat of being assessed $100,000,000 in punitive damages every time they tried to stop a farmer whose crop was accidentally cross-pollinated with Monsanto pollen from a neighboring farm from planting his seed the following season, Monsanto would be much better behaved.

      • Anonymous

        Aren’t there already rules against this sort of thing? What happened to Rule 11 motions to dismiss and why don’t judges grant them in these case??

    • JohnR

      “..for all the conservatives moaning about needing [A] to protect [B] from [C], [C] has increasingly become a tool of [B] to silence and oppress the weaker members of society.”

      Just tidied it up a bit for you, to create a general rule. I’m rather surprised you seem surprised at that, to be honest. I learned twenty years ago that any accusation made by the GOP against their opponents actually reflects what they are now doing, have been doing or are about to do. It’s all about ‘pre-emptive strikes’ and ‘the best defense is a good offense’. Old news.

  • Matt

    Wow, you weren’t kidding about the “cranky old man ramblings”. Though the linked one reads like a conservative position paper on sex written by a thoroughly-overcompensating clone of Jerry Sandusky.

  • jamie_2002

    At least.fib

  • jamie_2002

    At least giving a 15 year old Jack & keys gas the potential for something good to come out of the experience
    They could learn how much is too much, they could learn never to do *that* again.
    What its the good that can come from Cooley?
    Is us livelous to say it sounds like the Bethlehem of law schools
    BTW it is improvimpossible to see comments wgile using the Android- expect another SLAPP!

  • jamie_2002

    Android will sue! Impossible to leave a comment!

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