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Enablers of fascism

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I should probably get a 12-step program sponsor, so that I can give that person a call the next time I’m tempted to surrender to the urge to hate-read a Bari Weiss SubStack excretion. This person remains a hypothetical entity, however, so:

[A]n associate in her late twenties stood up. She said there were lawyers at the firm who were “uncomfortable” with Boies representing disgraced movie maker Harvey Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms. Boies, who declined to comment for this article, said no.

That lawyers could be tainted by representing unpopular clients was hardly news. But in times past, lawyers worried about the public—not other lawyers. Defending communists, terrorists, and cop killers had never been a crowd pleaser, but that’s what lawyers had to do sometimes: Defend people who were hated. 

When congressional Republicans attacked attorneys for representing Guantanamo detainees, for example, the entire profession rallied around them. The American Civil Liberties Union noted that John Adams took pride in representing British soldiers accused of taking part in the Boston Massacre, calling it “one of the best pieces of service I ever rendered to my country.”

But that’s not how the new associates saw Boies’s choice to represent Weinstein. They thought there were certain people you just did not represent—people so hateful and reprehensible that helping them made you complicit. The partners, the old-timers—pretty much everyone over 50—found this unbelievable. That wasn’t the law as they had known it. That wasn’t America.

“The idea that guilty people shouldn’t get lawyers attacks the legal system at its root,” Andrew Koppelman, a prominent liberal scholar of constitutional law at Northwestern University, said. “People will ask: ‘How can you represent someone who’s guilty?’ The answer is that a society where accused people don’t get a defense as a matter of course is a society you don’t want to live in. It’s a totalitarian nightmare.”

Right: if a particular lawyer or law firm declines to accept Harvey Weinstein’s money, we’re on the road to a totalitarian nightmare. Do I have to point out how absurd this is? Does Andrew Koppelman want to argue that I have some sort of constitutional right to be represented by David Boies? Because that constitutional right costs about $2,000 an hour the last time I checked, although it’s probably more now.

ETA: I should have known better than to trust Weiss to be honest about this. She provided no link to Koppelman’s comments, which in fact have nothing whatsoever to do with the question of whether it’s appropriate for a private criminal defense lawyer to decline to represent a particular client. A law professor friend writes:

On top of everything else, Bari Weiss quoted Andy Koppelman badly out of context. The quoted passage was about Ketanji Brown Jackson’s work as a public defender, not about David Boies and Harvey Weinstein: https://thehill.com/opinion/judiciary/595960-ketanji-brown-jackson-and-the-job-of-a-public-defender

Obviously the ethics of lawyers like Boies choosing to represent clients like Weinstein have nothing to do with the work done by public defenders such as KBJ. I apologize to Koppelman for assuming that Weiss wasn’t quoting him completely out of context to buttress an argument that Koppelman wasn’t in fact making.

I acknowledge that an ethical quandary could arise here if a lawyer declining to take Weinstein’s money took place in a social context in which there wasn’t a line three parsecs long of other pricey criminal defense lawyers ready to take it instead, AND there was no legal right to be represented in criminal court by competent counsel, even if nobody else will take your case (Spoiler: There is).

This is the tip of the iceberg when it comes to the endless mewling in Weiss’s latest entry in the moral panic sweepstakes about (Law School) Kids These Days:

[A]t Yale Law School earlier this month, the school’s chapter of the Federalist Society hosted a bipartisan panel on civil liberties. More than 100 law students disrupted the event, intimidating attendees and attempting to drown out the speakers. When the professor moderating the panel, Kate Stith, told the protesters to “grow up,” they hurled abuse at her and insisted their disturbance was “free speech.”

The fracas caused so much chaos that the police were called. After it ended, the protesters pressured their peers to sign an open letter endorsing their actions and condemning the Federalist Society, which they claimed had “​​profoundly undermined our community’s values of equity and inclusivity.”

“I’m sure you realize that not signing the letter is not a neutral stance,” one student told her class group chat. She was upset that the panel had included Kristen Waggoner of the Alliance Defending Freedom, a conservative legal nonprofit that’s won a slew of religious liberty cases at the Supreme Court.

As similar messages clogged listservs and Discord forums, nearly two-thirds of Yale Law’s student body wound up signing the letter.

Stith, the professor who was lambasted for telling students to “grow up,” doesn’t see the pile-on as an isolated incident. 

“Law schools are in crisis,” she told me. “The truth doesn’t matter much. The game is to signal one’s virtue.”

You will be shocked to learn this is a wildly distorted version of what actually happened:

Interviews with participants and witnesses at the demonstration, as well as multiple videos, reveal that this account distorts reality. The students made their point at the very start of the event and walked out before the conversation began. Their exercise in free speech, however rowdy or distasteful, did not prevent the panelists from expressing their views. And their demonstration did not—contrary to the Free Beacon’s reporting—require administrators to summon the police.

This is all par for the course in the wacky world of Woke Panic, where essentially trivial incidents get blown out of all proportion, via the combination of selective reporting and outright lying that’s the right wing scream machine’s speciality.

And with heroes of academic freedom like this guy, ginning up a panic is about as difficult as getting your cat off your counter with the judicious use of a spray bottle:

One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

“I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.”

I’m going to assume, perhaps recklessly, that Weiss isn’t just making up all of her anonymous quotes — surely an epidemic practice in editor-free SubStack land — and that this is a real person.

In that case, as a law professor who teaches an entire seminar on theories of punishment, let me in the spirit of Constructive Engagement and Civil Discourse send along the following message to Weiss’s informant: What the hell do you think tenure is for, you shameless coward? You admit that you won’t teach what you think you should teach because of the .01% chance that serious professional consequences could come your way if the snowflakes get sufficiently upset by having their sophomoric insouciance disturbed? Newsflash: Doing precisely that is your whole fucking job, Prof. Socrates!

In world in which elderly Ukrainian women are doing things like this, you disgust me.

Weiss goes on:

Other law professors—several of whom asked me not to identify their institution, their area of expertise, or even their state of residence—were similarly terrified.

OK for the sake of what’s left of my sanity I’m going to assume this part really is made up.

BTW I say this as somebody whose dean made a very serious effort to fire me, when I caught him cooking employment stats and confronted him about it. (That incident is what led eventually to the Inside the Law School Scam project). I want to make clear that my own actions in that context required about one ten-thousandth of the courage displayed by the woman in the video linked above, but that’s apparently infinitely more courage than is possessed by many of my colleagues, assuming again that Weiss isn’t just making all this stuff up.

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