Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, November 21, 2023

Giving Thanks

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We may be out of COVID quarantines and lockdowns, but we don't seem to be out of anxiety. With increased polarization and decreased composure, we seem to be, as a society, increasingly unsettled and angry.

Of course, as lawyers, we are used to this. Our profession is combative. We are polarized by the nature of our profession. And we take on the fears and pressures of our clients as we fight their battles so they can feel some peace. But just because we are used to that anxiety doesn't mean it is good.

I stay in contact with many students after they graduate law school. I try to help them navigate these dangerous waters. And the primary advice I give them when they call and say they are miserable happens to have a lot to do with the day we will be celebrating soon - Thanksgiving.

Last year, the ABA GPSolo Report published an article by Rebecca Howlett and Cynthia Sharp (of legalburnout.com), titled The Legal Burnout Solution: How to Improve Well-Being Through Gratitude. In that article they quote Robert A. Emmons, professor of psychology at the University of California Davis and a leading scientific expert on the science of gratitude, who notes that “The practice of gratitude . . . can lower blood pressure, improve immune function and facilitate more efficient sleep. Gratitude reduces lifetime risk for depression, anxiety and substance abuse disorders, and is a key resiliency factor in the prevention of suicide” (Thanks!: How the New Science of Gratitude Can Make You Happier (Houghton Mifflin Harcourt, 2007)).

The article gives several tips for cultivating gratitude, including journaling, breathing exercises, writing thank-you notes, and prayer and meditation. All of these exercises are intended to help us shift our thinking from dwelling on negatives to focusing on positive things. In doing so, you don't lessen the amount of work you need to do or the seriousness of our client's problems. But you do put those issues into perspective, and reframing your experiences, just like reframing the facts in a legal argument, has lasting impact.

In fact, as appellate practitioners and instructors we should know this lesson better than anyone. We know the lasting impact of framing issues in a given way. We know what to emphasize and what to de-emphasize in our writing. We know that our descriptive language will influence how our readers see the characters we write about. And we know that how we characterize the facts can impact how those characters are ultimately judged.

So this week, I'm going to take my own advice and try to focus on things that are noble and good and true. The friends I've made and kept, not those who are gone. The family I have left, not those I've lost. The people I've helped, not the cases I've lost. The good that I've done, and not the mistakes that I've made. And the time I have left, not the time I've wasted.

And I'm going to say "thank you" much more often. And as I try to think of people to say thank you to, I'm going to be thankful that the list is long. And growing longer.

Thank you for reading. Thank you for being who you are. Now, please, go give thanks of your own. And, in doing so, write yourself a better story.

(Image credits: Library of Congress, Udo Keppler, Lawyers at least have plenty to be thankful for, Puck, v. 74, no. 1916 (1913 November 19), centerfold)

November 21, 2023 in Legal Profession | Permalink | Comments (0)

Sunday, November 19, 2023

Legislatures, Initiatives, and the Courts

Commentators have long likened the legislative process to sausage-making, something that those with weak stomachs should not observe too closely. Nonetheless, courts have respected legislative decision-making by providing outsized deference to that body as the policymaker most likely to enact laws in accordance with popular sovereignty. When voters object to the decisions rendered, they can throw the rascals out, and different policy choices can then prevail.

Yet, legislators often seem to disapprove of voters who bypass them to enact laws or constitutional provisions by initiative – especially when it supports ends that the legislators oppose. At the moment, we see this playing out in Ohio. In light of the Dobbs decision,[1] which overturned Roe v. Wade[2] and declared that abortion was an issue that could be decided state-by-state, pro-choice voters have sought to enshrine a right to abortion in state constitutions through the initiative process in several states. To date, all have passed.

In Ohio, the legislature attempted to put up an obstacle in advance of the vote. It sought approval of its own initiative on a quicker schedule that would have increased the requirement for approval from a simple majority to 60 percent, as well as from 44 to 88 the number of counties represented in signatures to qualify for the ballot. That initiative failed. Then the secretary of state proposed language, approved by the state ballot board, designed to make the proposed amendment less desirable.

Nonetheless, the amendment was approved by voters earlier this month. Immediately after the election, Ohio House Speaker Jason Stephens claimed that “multiple paths” exist to prohibit abortion despite the constitutional amendment.”

Most troubling for those who believe in the rule of law and judicial independence is the proposal some Ohio lawmakers have advanced to strip the courts of the authority to review cases that would implement the newly passed constitutional amendment. They released a statement justifying this extreme measure by asserting, without demonstrating any basis for the claim, that “foreign election interference” tainted the vote. The election denialism that infected the last presidential election apparently provides fodder for undermining the courts.

Those courts are currently reviewing a constitutional challenge to a 2019-enacted six-week abortion ban that contains no exceptions for rape or incest. The constitutional amendment would appear to make invalidation of the ban a simple and straightforward inevitability. A jurisdiction-stripping bill, if valid, would prevent that possibility.

At stake is not only the status of abortion, but the authority of our courts – and the place of popular sovereignty in our representative democracy. Certainly, there are arguments against amending laws and constitutions through the initiative process. It can be overused, trivialize the law with popular but ill-considered or poorly drafted mandates, and has spawned an industry that raises and profits from the process. The same, however, can be said of the legislative process itself. While in place, the initiative, a product of progressives a century ago, still provides the rules that we are obliged to follow.

Ohio and the abortion issue is not the only time that legislatures have rebelled against voter initiatives. In 2018, Floridians approved an initiative to restore voting rights to people convicted of felonies and who had completed their sentences, excluding murderers and sex offenders. Months later, the legislature enacted a law that defined completion of a sentence as having repaid in full all fines and fees, even though that often could not be determined. The Florida Supreme Court, in response to a request of the governor while a constitutional challenge was working its way through the courts, read the new law as consistent with the amendment passed by initiative. Whatever one thinks of that conclusion, it conformed to a process that allowed the courts to determine the law.

My favorite example of a voter initiative and a legislature at loggerheads occurred in Massachusetts. In 1988, voters approved the Massachusetts Clean Elections Law, which created a system of public campaign funding for candidates who limited the private financing they accepted. The Massachusetts initiative provision required the legislature to fund it, but no appropriation was ever made. Plainly, legislators were not anxious to fund their challengers. Supporters of the initiative, including a candidate for governor, brought a lawsuit in 2001 to obtain the missing funding or void any election without public funding.

The Massachusetts Supreme Judicial Court held that the initiative, unless repealed, required the legislature to a money judgment in the amount that would provide the public campaign funding promised by the law, while the court would retain jurisdiction with a single justice assigned to assure that other eligible candidates also receive the money.[3] When the legislature dragged its feet in providing the funding, that justice threatened to execute on the Commonwealth’s property to assure that the funding would be forthcoming. The threat proved sufficient, although the legislature exercised its right to repeal the Clean Elections Law a year later.

Ohio’s legislature cannot repeal a constitutional amendment on its own. It could argue that the amendment should not be interpreted to invalidate its 2019 statute. What it should not do, if the rule of law is to prevail, is block the courts from construing the state constitution and measuring legislative acts against its restrictions.

 

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[2] Roe v. Wade, 410 U.S. 113 (1973).

[3] Bates v. Dir. of Off. of Campaign & Pol. Fin., 763 N.E.2d 6 (2002).

November 19, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Saturday, November 18, 2023

Welcoming Judge Ana de Alba to the Ninth Circuit

On Monday, the United States Senate confirmed President Biden’s nominee, Judge Ana de Alba, to the Ninth Circuit Court of Appeals seat left open when Judge Paul Watford resigned in May 2023.  As the Ninth Circuit news release explained, “Judge de Alba has served as a district judge on the U.S. District Court for the Eastern District of California since July 2022, when she became the first Latina appointed to that court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Before joining the Eastern District of California bench, Judge de Alba also served as a Fresno County Superior Court judge and a litigator in private practice.  Id. 

When she formally takes her seat at the Ninth Circuit, Judge de Alba will be the fourth Latina to serve on that court.  Senator Alex Padilla told Law360:  "The daughter of immigrants from Mexico, Judge de Alba's path to her confirmation to the Ninth Circuit today embodies the American Dream."  Courtney Buble, Eastern District Of Calif. Judge Confirmed To 9th Circ., Law360 11/13/2023.

Similarly, the Chief District Judge for the Eastern District of California, Kimberly J. Mueller, offered  “[h]earty congratulations to Judge de Alba! We are thrilled that the U.S. Senate has recognized her stellar qualifications and substantial experience as fully supporting her elevation to the federal appellate court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Bloomberg Law reported that “three judges she served with on the Superior Court of California” found Judge de Alba “exceptionally well suited for appellate work” because “[s]he excels at research and writing, carefully and meticulously prepares for matters before her and approaches cases and issues with an open mind.”  John Crawley, Latina Judicial Trailblazer Elevated to Largest Appellate Court, Bloomberg Law, 11/13/2023.

Judge de Alba will maintain her chambers in Fresno, where she has deep ties to the community.  Born in Merced, California, Judge de Alba attended the University of California at Berkeley for her undergraduate and legal studies.  As the Ninth Circuit press release explained, Judge de Alba has served on the board of many public interest and bar association boards in the Eastern District and throughout California.  Judge de Alba has received service awards from the Rape Counseling Services of Fresno, Centro La Familia Advocacy Services, Central California Legal Services, and many more.  Id.; see also Ben Shatz, New 9th Cir. Judge de Alba!, http://socal-appellate.blogspot.com/2023/11/new-9th-cir-judge-de-alba.html, Southern California Appellate News, 11/14/2023. 

Welcome Circuit Judge Ana de Alba!

November 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

Tuesday, November 14, 2023

Stigmatizing AI Usage

Last month, fellow blogger Charles Oldfield posted about some courts requiring lawyers to disclose their use of AI in preparing briefs for the court.  In the post, he noted that, while the goal seemed to be ferreting out the use of generative AI, the requirements may have inadvertently stretched beyond that scope.  But both instances raise the questions of why and how to cite AI.

I’ve been attending a wonderful conversation group of legal writing professors, led by Professors Kirsten Davis from Stetson University and Carolyn Williams from the University of North Dakota, discussing legal writing and generative AI. And a recent discussion addressed whether and, if needed, how to cite generative AI in legal writing.

Professor Davis first addressed the question of how we, as legal writers, should view the role of generative AI: as the author or authority, as a co-author, as an assistant, or as a tool. She aptly pointed out that our view of the technology directly informs whether we should cite or disclose our use of generative AI. Professor Williams (author of the 7th Edition of the ALWD Guide to Legal Citation) then addressed the purposes of citation:

(1) allowing the reader to locate the source of the writer’s information;

(2) giving credit to the author of the words or ideas the writer used;

(3) showing the reader that the writer conducted proper research;

(4) protecting the writer from plagiarizing;

(5) increasing the writer’s credibility with the reader; and

(6) providing additional information about the sources used and their connection to the writer’s assertions to aid the reader’s choices about whether to pursue the source.

These considerations made me wonder how those judges requiring disclosure are viewing AI and what purpose they believe disclosure serves.  And it seems their concern has less to do with the technology, itself, and more to do with skepticism that lawyers will use it in a way that violates the rules of professional conduct.

ABA Model Rule 5.1(b) provides that “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”[i]  When a lawyer uses generative AI to draft motions, pleadings, briefs, or other filings with the court, the lawyer is treating the technology as a subordinate attorney and, therefore, should be reviewing the output for compliance with the rules of professional conduct.  This review includes verifying that “each and every citation to the law, or the record in the paper, . . . [is] accurate”[ii] and does not reflect any “personal prejudices, biases, and beliefs.”[iii]  But these same purposes are served when an attorney signs the document under Federal Rule of Civil Procedure 11.[iv]  So including the certification seems superfluous, especially given that supervising attorneys do not habitually credit their subordinating attorneys’ work in drafting.

Requiring the disclosure also fails to serve any of the traditional purposes of citation. Because generative AI rarely, if ever, produces identical output in response to a repeated prompt,[v] a reader cannot use a citation to either verify the accuracy of any assertions or investigate the source any further. And, because generative AI uses predictive language, it is—by design—drawing on the ideas of others represented in the text used in its training; thus, citing it does not serve to give credit to the proper authority or even protect the writer from plagiarism. If a legal writer treats AI-generated drafts as work produced by a subordinate attorney, then the attorney will have already checked the accuracy and validity of legal assertions and associated citations to authority, so the added layer of citing the AI tool(s) used does not further the purpose of establishing thorough research.

With respect to establishing the writer’s credibility, disclosing the use of generative AI might very well have the opposite effect considering highly publicized recent follies involving generative AI and legal filings.[vi]  And this negative effect is likely to be exacerbated by disclosure requirements rooted in skepticism.

Mr. Oldfield included as his final endnote that he “used Word’s Editor in preparing th[e] post.”  I assume the inclusion was done in jest to emphasize the absurdity and breadth of some of the existing disclosure requirements. But it raises an interesting point: by requiring lawyers to disclose their use of AI, are courts discouraging lawyers from using a potentially valuable tool?

In the small group I was in for our legal writing discussion on if and how to cite generative AI-created content, we concluded that asking students to cite their use of AI on submissions would be futile because it would either discourage them from using AI or encourage dishonesty about whether they did. Requiring attorney disclosure feels the same.

And, if the true goal of requiring disclosure is to ensure ethical usage of AI, it is likely to have the opposite effect. Discouraging lawyers from using AI could cause violations of Rule 1.1, requiring lawyers to “provide competent representation to a client” through “legal knowledge, skill, thoroughness and preparation.”  Comment 8 expressly directs that the duty of competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[vii] Discouraged usage might also result in violations of Rule 1.5, requiring only reasonable fees,[viii] if a lawyer avoids using generative AI where the AI could complete the same task in less time, resulting in a higher-than-necessary fee for a client.[ix] And, to the extent required disclosure imposes a stigma on lawyers using generative AI, disclosure requirements could encourage dishonesty about usage, causing violations of Rule 3.3’s duty of candor to the tribunal.

While generative AI has not yet reached a point where it can replace lawyers, it is certainly capable of being a valuable time-saving tool that benefits both lawyers and clients. Lawyers should be encouraged to learn about and understand it, rather than avoid it. And, to that end, disclosure requirements should be abandoned.

 

[i] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/

[ii] https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[iii] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[iv] “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

Fed. R. Civ. P. 11(b).

[v] Charles Ross, Does ChatGPT Give the Same Answer to Everyone?, Medium.com (March 20, 2023), available at:  https://medium.com/@charles-ross/does-chatgpt-give-the-same-answer-to-everyone-521e3e9355a4

[vi] See, e.g., Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, New York Times (May 27, 2023), available at https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.

[vii]ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/

[viii] ABA Model Rules of Professional Conduct, available at:  https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/

[ix] Brad Hise and Jenny Dao, Ethical Considerations in the Use of A.I., Reuters.com (Oct. 2, 2023), available at: https://www.reuters.com/legal/legalindustry/ethical-considerations-use-ai-2023-10-02/

November 14, 2023 in Appellate Practice, Appellate Procedure, Legal Ethics, Legal Writing | Permalink | Comments (0)

Monday, November 13, 2023

Opportunity to contribute to Burton’s Legal Thesaurus' Top New Terms and Expressions in Law for 2023!

This is a guest post from Prof. Margaret Wu.

Two years ago, William Burton, the publisher of Burton’s Legal Thesaurus, established a program to identify new words and expressions that should be added to the lawyer's lexicon, with the goal of creating a helpful resource as well as promoting the growth of clear and precise language.  Since then, Burton’s Legal Thesaurus has published an annual list of terms that gained currency during the year and often reflected trends in legal writing, thinking, practice, and advocacy.  As reported in Law360 as well as this blog, last year’s terms included:

  • Complicit bias: An institution or community’s complicity in sustaining discrimination and harassment.
  • "Computational law," or "complaw”: An interdisciplinary field concerned with the automation of legal reasoning.
  • Lawfare: The use of legal proceedings and systems to damage an opponent.
  • Major questions doctrine: The legal doctrine used for the first time in a United States Supreme Court majority opinion in 2022, striking down the EPA’s 2015 Clean Power Plan and raising major questions of its own as to future effects on agency actions. See Virginia v. Env't Prot. Agency, 142 S. Ct. 2587, 2609-10 (2022).
  • Return to Office (RTO): Referring to issues and policies concerning employees returning to work in their employers’ workspaces after working remotely during the pandemic.

The Select Committee on Terminology of Burton’s Legal Thesaurus* is in the process of compiling the list for 2023 and seeks input from a diverse array of legal scholars and practitioners to identify the words and expressions that made an impact in legal writing and the law this year. There have been a number of technology-related terms that lawyers have had to learn this year, but we also encourage you to think about other developments in our legal vocabulary. If you have a neologism to suggest, please send the term and  suggested definition to  [email protected] by November 21, 2023.  If we select your word or expression, your name and title will be listed in the next edition of the book and in all press releases.  Thank you in advance for helping us build this resource, and we look forward to seeing your submissions!

*The members of this year’s Select Committee on Terminology of Burton’s Legal Thesaurus are Virginia Wise, former Thayer Senior Lecturer on Law at Harvard University; Megan Ma, Assistant Director of the Stanford Program in Law, Science and Technology; Cindy Thomas Archer, Professor of Lawyering Skills at UC Irvine School of Law; and Margaret Wu, Professor of Legal Writing at UC Berkeley School of Law and Chair of the Committee.

November 13, 2023 | Permalink | Comments (0)

Sunday, November 12, 2023

The Unsettling Politicization of Higher Education (Including Legal Education)

Law schools should train students how to think, write, and practice like a lawyer. They should only admit students, based on LSAT scores and undergraduate grade point average, who are likely to succeed in a law school and the legal profession. And they should produce competent graduates who can pass the bar examination on their first attempt, and who obtain jobs that justify the non-dischargeable debt that graduates often incur.  

To do so, contrary to the views espoused by some scholars, the Socratic method is necessary, as it teaches students the value of, among other things, preparation, thinking on your feet, and performing capably in front of a large audience.[1] And if cold calling causes students stress and anxiety, so be it. Law schools should teach students how to cope with, not avoid, anxiety, pressure, and stress because that will prepare them for the legal profession – and life. Additionally, legal writing courses should be integrated within the law school curriculum and courses should blend doctrine and practical skills to produce marketable graduates. In short, law school is about teaching students how, not what, to think, providing students with real-world skills, and respecting the diverse viewpoints that students of all backgrounds bring into the classroom.

Recently, however, some law schools – and universities – have become so liberal that division and discord have replaced civility and respect, and ideological uniformity has replaced the tolerance of diverse viewpoints.[2] The bias against hiring conservative scholars at many law schools is one example that reflects the liberal bias and discriminatory behavior that pervades some institutions.[3]

Sadly, the current conflict in the Middle East underscores how political – and often extreme – institutions of higher education have become. To be sure, the history of the Israeli-Palestinian conflict is complex. Both Israelis and Palestinians have suffered horribly, and both sides bear responsibility. One would expect that academics, including law professors, would have a balanced view that recognizes the nuances of this conflict and appreciates the diverse points of view that students and citizens express on this tragic situation.

Think again.

For example, despite the torture and murder of Israelis last month, a professor at Albany Law School posted on social media "Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid."[4] Did this professor express compassion for the horror and suffering that so many Israelis endured? No. Additionally, a professor at Cornell University described the attacks by Hamas as “exhilarating,”[5] and a professor at Columbia University described Hamas’ attacks as “astounding,” "incredible,” and a "stunning victory."[6] Not to be outdone, an organization that a New York University professor  co-founded praised “heroic Palestinian resistance.”[7] And an adjunct professor at the City University of New York posed on social media that “Zionists are straight Babylon swine,” who are “racist arrogant bullies” affected by a “genocidal disease.”[8]

In response, major donors at some institutions, including Harvard University, Stanford University, and the University of Pennsylvania, criticized these universities for failing to explicitly condemn Hamas’ attack, with one Penn donor expressing disgust at the university’s “silence in the face of reprehensible and historic Hamas evil against the people of Israel.”[9] Considering the expressed and unrelenting desire of some of Penn’s faculty and administration to fire Professor Amy Wax, one would have expected that Penn’s administration would immediately condemn the torture and slaughtering of countless Israelis. It did not.[10] Given the increasing toxicity in academia, it should come as no surprise that students are so afraid to disagree with their professors.[11]

This troubling reality, namely, academics with extreme viewpoints who show no tolerance for opposing views, is not new.  At Stanford University, former Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach told federal judge Kyle Duncan, who was invited to speak at the law school, that his opinions have “caused harm” thus placating a mob of students who tried to shout down Duncan because they disagreed with his conservative judicial philosophy.[12] Similarly disgraceful conduct occurred when Josh Blackmun, an accomplished and highly respected constitutional scholar, attempted to speak at CUNY Law School, only to be met by students who sought to censor his speech and mischaracterize his views.[13] And consider administrators and professors who, while preaching “diversity, equity, and inclusion,” condemn “whiteness,” embrace segregated living spaces and graduation ceremonies, establish “bias” hotlines where students can anonymously claim to be the victim of “microaggressions,” ban words such as “brave” and “American,” and claim that math is racist.[14]  Sadly, this is only a sample of the concerning behavior that is occurring on college and law school campuses across the country – and dividing students based on, among other things, race, gender, and political affiliation.

***

The deplorable conduct of these and other educators has affected students and inhibited the exchange of diverse viewpoints. For example, Nyna Workman, an NYU law student, refused to condemn Hamas, stating that “Israel bears full responsibility for this tremendous loss of life,” and that Israel’s “regime of state-sanctioned violence created the conditions that made resistance necessary.”[15] Remember that this gibberish was expressed by a student at NYU Law – one of the best law schools in the United States – not at some predatory law school that admits unqualified students, saddles them with non-dischargeable debt, and provides them with no legitimate prospects for long-term employment.  Thankfully, in response to Workman’s disgraceful conduct, Winston and Strawn withdrew her offer of employment.[16]

Likewise, at Harvard University several student groups stated that Israel was “entirely responsible” for the violence.[17] And few can forget CUNY Law School’s student commencement speaker who used her platform to denounce “Israeli settler colonialism” and “the fascist N.Y.P.D.”[18] Additionally, some NYU students were seen ripping down posters detailing stories about Israeli hostages,[19] and a student at Cornell University threatened to slit the throats of Jewish students.[20]  Not to mention, Princeton and NYU law graduate Colinford Mattis, who, along with Urooj Rahman, thought it would be a good idea to throw a Molotov cocktail at an empty police car.[21] This is a sample of what some universities and law schools are producing these days. Indeed, the damage that ideologically driven professors inflict has far-reaching consequences on the students that they serve because it fails to teach students how to think critically, disagree respectfully, and communicate civilly.

To make matters worse, some professors coddle rather than challenge students, placing less emphasis on the development of critical thinking and other real-world skills, and instead indoctrinating them into a worldview where diverse viewpoints are unwelcome, ‘feelings’ matter more than logic, and emotion matters more than reason.[22] Lest there be any doubt, look at the nonsense occurring on many campuses where ultra-fragile students often feel “unsafe” when confronted with a perspectives different from their own and thus demand “safe spaces,” administrators provide “cry closets,” to help students deal with the stress of examinations, or offer Play-Doh to students who could not cope with the results of the 2016 presidential election. [23] And consider the shenanigans at Yale Law School, where a group of ‘offended’ students interrupted a discussion on free speech by a speaker whose views differed from their own.[24] 

Put simply, some academics have placed a premium on identity politics, where one’s group identity matters far more than an individual’s character, and on victimhood, where students are convinced that they are ‘oppressed’ and ‘marginalized.’ As Cornell Law Professor William A. Jacobson stated, “[a]lmost everything now is viewed through an identity lens, pitting groups against each other, pitting colleagues against one another, and pitting students against their peers.”[25]  In other words, the notion of diversity, equity, and inclusion is anything but diverse, equitable, or inclusive.[26]

As Professor Jacobson stated, "[t]here is substantial evidence that such DEI programming makes race and other relations worse, not better.”[27] Moreover, the impact of this divisive nonsense is that it promotes hate and homogeneity of thought, not diversity and a marketplace of ideas. As one professor at the University of California-Berkeley School of Law stated, “if you don’t want to hire people who advocate hate and practice discrimination, don’t hire some of my students.”[28] No wonder our society is divided and riddled with ignorance.

The role of professors is to prepare students for the real world, not to indoctrinate students into a liberal or conservative worldview that is infused which the very implicit and explicit biases that professors often accuse others of harboring. Professors should develop students’ (particularly law students’) critical thinking, writing, and communication skills, and hold students to high standards. They should also ensure that the classroom is a welcoming place for all students, regardless of, among other things, political affiliation, race, gender, sexual orientation or identity, and socioeconomic status. Equally as important, professors should expose students to conservative and liberal viewpoints, and ensure that dialogue is civil and respectful. After all, if diversity, equity, and inclusion mean anything, it should mean that universities respect and welcome views with which they disagree, and that educators dedicate themselves to equipping students with the tangible and intangible qualities needed to succeed in law and life.

Put simply, educators must teach students how to think, not what to think, because teaching is not about professors or their views – it is about the students.

 

[1] See The University of Chicago Law School, The Socratic Method, available at: The Socratic Method | University of Chicago Law School (uchicago.edu)

[2] See, e.g., Robert Leroux, Woke Madness and the University (Winter 2021), available at:  Woke Madness and the University by Robert Leroux | NAS; Lexi Lonas, UPenn Loses Bog Donor, Board Member Resigns Citing ‘Antisemitism,’ (Oct. 16, 2023), available at:  UPenn loses big donor, board member resigns citing ‘antisemitism’;  

[3] See Adam Bonica, et al., The Legal Academy’s Ideological Uniformity (2018), available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[4] Michael Goot, Albany Law Professor Ripped for Praise of Palestinians ‘Tearing Down the Walls of Colonialism (October 12, 2023), available at:   Albany Law professor ripped for praise of Palestinians 'tearing down the walls of colonialism' - WNYT.com NewsChannel 13

[5]   Yarun Steinbuch, Cornell Professor Who Found Hamas Attack ‘Exhilarating and ‘Energizing’ Now on Leave of Absence (Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence (msn.com)

[6]   Tens of Thousands Sign Petition to Oust Ivy League Columbia Professor Who Praised Hamas Terror Attack Against Israel as an ‘Awesome Stunning Victory,’ (Oct. 16, 2023), available at:  Tens of thousands sign petition to oust Ivy League Columbia professor who praised Hamas terror attack against Israel as an 'awesome stunning victory' | Daily Mail Online

[7] Marya Ruth Dunner,   NYU Prof’s ‘Decolonization’ Org Praises ‘Heroic’ Hamas After Brutal Attacks Against Jews (Oct. 11, 2023), available at: Campus Reform | NYU prof's 'decolonization' org praises 'heroic' Hamas after brutal attacks against Jews

[8]  See Juni Nguyen, Some U.S. Professors Praise Hamas’s October 7 Terror Attacks (Nov. 8, 2023), available at: Some U.S. Professors Praise Hamas’s October 7 Terror Attacks | ADL

[9]  Kate Anderon, Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (Oct. 24, 2023), available at: Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (dailysignal.com); see also Judy N. Liu,  Alumni Condemn University’s Response to Hamas Attach (Oct. 31, 2023),  available at: Alumni condemn University's response to Hamas attack (stanforddaily.com)

[10] See id.

[11] See James Freeman, Most U.S. College Students Afraid to Disagree with Professors (Oct. 26, 2018), available at: Most U.S. College Students Afraid to Disagree with Professors - WSJ To be clear, there are many outstanding and inspiring law professors (and professors throughout academia) who are instrumental in helping their students prepare for the legal profession (or whatever profession they pursue). And there are many law schools whose administrations do the same. But that is increasingly becoming the exception, not the rule.

[12] Josh Moody, Dean at Center of Stanford Law Controversy Resigns (July 21, 2023), available at:  Dean at center of Stanford Law controversy resigns (insidehighered.com)

[13]  See  Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled (April 15, 2018), available at:  Guest lecture on free speech at CUNY law school heckled (insidehighered.com)

[14] See, e.g., Paul Farrell, Florida University Adopts Radical DEI Program that Condemns US As a System of ‘White Supremacy,’ (March 1, 2023), available at:  Florida university adopts radical DEI program that condemns US as a system of 'white supremacy' | Daily Mail Online; Seattle Schools Propose to Teach That Math Education is Racist—Will California Be Far Behind? (Oct. 29, 2019), Lee Ohanian, available at:  Seattle Schools Propose To Teach That Math Education Is Racist—Will California Be Far Behind? | ;  Karsten Schneider, New York University Moves to Implement Racial Segregation in Student Dorms (Aug. 24, 2020), available at:  New York University moves to implement racial segregation in student dorms - World Socialist Web Site (wsws.org); Richard Vedder, Racial Segregation on American Campuses: A Widespread Phenomenon (Nov. 15, 2018), available at: Racial Segregation On American Campuses: A Widespread Phenomenon (forbes.com)

[15]  Danielle Wallace, Nonbinary NYU Student Bar Association President Loses Job After Defending Hamas Terror Attack on Jews (Oct. 11, 2023), available at:  Nonbinary NYU Student Bar Association president loses job offer after defending Hamas terror attack on Jews | Fox Business; Tesfaye Negussie and Aisha Frazier, NYU Law Student Who Blamed Israel After Hamas Attacks Defends Remarks (Oct. 25, 2023), available at: NYU law student who blamed Israel after Hamas attack defends remarks - ABC News (go.com)

[16] See id.

[17]  Names and Faces of Harvard Students Linked to an Anti-Israel Statement Were Plastered on Mobile Billboards and Online Sites (Oct. 12, 20203), available at:  Names and faces of Harvard students linked to an anti-Israel statement were plastered on mobile billboards and online sites | CNN Business

[18]  Ginia Bellafante, She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target (June 2, 2023), available at:  She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target. - The New York Times (nytimes.com)

[19]  Krish Dev, Students Caught Tearing Down Israeli Hostage Posters May Face Disciplinary Action (Oct. 23, 2023), available at: Students caught tearing down Israeli hostage posters may face disciplinary action (nyunews.com)

[20]  See Brian Mann, Cornell Student Arrested in Connection with Antisemitic Threats on NY Campus (Oct. 31, 2023), available at:  Cornell student arrested in connection with antisemitic threats on NY campus : NPR

[21]  Jonathan Dienst, Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty Oct. 6, 2021), available at:   Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty – NBC New York

[22]  See, e.g., Yascha Mounk The Real Chill on Campus (June 16, 2022), available at: The Real Chill on Campus - The Atlantic

[23]  See, e.g., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting Up A Generation for Failure available at: The Coddling of the American Mind; Grace Bird, ‘Cry Closet’ Installed for Finals at University of Utah (April 25, 2018), available at: 'Cry Closet' Installed for Finals at University of Utah (insidehighered.com); Jonathan Zimmerman, College Campuses Should Not be Safe Spaces (Jan. 17, 2019), available at: College Campuses Should Not Be Safe Spaces (chronicle.com); Stacy Zaretsky, T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled ‘P*ssies,’ (Nov. 14, 2016), available at: T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled 'P*ssies' - Above the Law

[24]  See Yaron Steinbuch, Yale Law Students Disrupt Bipartisan Free Speech Panel (March 18, 2022), available at: Yale law students disrupt bipartisan free speech panel (nypost.com)

[25]  Louis Casiano, Ivy League School Slammed After Professor Calls Israel Attack ‘Exhilarating’: A Much Deeper Problem (Oct. 20, 2023), available at:  Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[26]  Ryan Quinn White Professor Resigns, Alleges Reverse Discrimination (June 26, 2023), available at: White professor resigns, alleges reverse discrimination (insidehighered.com); Bonica, et al., supra note 3, available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[27] Casiano, supra note 26, available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[28]  Allie Griffin, UC Berkeley Law Professor Urges Firms to Not Hire His ‘Antisemitic’ Students (Oct. 21, 2023), available at: UC Berkeley law professor urges firms to not hire his ‘antisemitic’ students (msn.com)

November 12, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)