Using the legal process to silence critics

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 Daniels 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.