Saturday, April 21, 2007

Interesting Inside Report From Hastings Law Student on Security Measures There: More on AutoAdmit Threat to Hastings

Posted by Alan Childress
After we posted this entry on the evacuation of UC Hastings in response to a perceived threat from AutoAdmit, a Hastings law student, Travis Hodgkins, posted this interesting comment on our blog, about current severe security measures on his campus.  It is worth a read.

Travis also wondered whether the perp can redeem himself or herself before bar admission time and pass C&F screening.  My own assessment is that this is very unlikely, in the current climate, at least without some massive rehabilitation and time delay before the character process is invoked (and even then...).  Bar examiners simply do not hold applicants to the same standards that their state bars do in disciplining (or not) an already-licensed lawyer.  Mike (with much more experience inside bar structures) and Jeff (with more worldly experience in practice than I) may see it differently, but my hunch (consistent with research) is that this student is toast for the bar.  [UPDATE:  See Mike's Admissions Ruminations, in the post above this one, which I puppetmastered him into with my prior sentence there.]

And I do recognize that, to his or her credit, the student came forward and fessed up -- and that some will say that this message by one "Trustafarian" was patently offensive but not a serious threat (the latter as another commenter does).  Still, the school in fact evacuated.  I doubt the C&F screeners will take seriously the student's own statements of intent and instead will use an objective test of how the message was perceived.  If it had been ignored by Hastings (unlikely in the post-VT world and the scathing criticisms of its administration), maybe it would not be treated as a threat.  But it was and, I think, that characterization is etched in stone and will not dissipate with time. 

It was an awful lapse of judgment and maybe even worse -- I do not know -- but there is something sad if the reality is that some immature kid has thrown his or her life away with just one thoughtless comment on an "anonymous" message board.  I have written before, in the context of "permanent disbarment," about the power of redemption and the need not to quit on people too soon.  John Dean learned from Watergate, I noted.  Travis's question left me, without knowing any more about the other facts and character surrounding "Trustafarian's" life, feeling sad. 

I think my sadness is in part that I doubt that the bar examiners will really evaluate all the other stuff, good or bad, and that this foolish or awful prank (or serious threat) will stand alone as sufficient to mean this person can never be a lawyer.  Even if he or she has learned more morality and consequences from this situation, in two days, than many lawyers learn in a lifetime.  To me, that is not at all the saddest thing that happened this week, but it is sad and societally wasteful.  More collateral damage.

Anyway, thanks for the thoughtful comments by Travis.   I hope he will keep us posted on the aftermath at Hastings and what he hears from Boalt, either on his group's blog or in further comments to ours.

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People don't realize that AutoAdmit/Xoxo is largely a theater of transgression. Anyone who is even remotely familiar with the site can tell that. No reasonable person who is even passingly familiar with the site would have taken the "threat" seriously.

Posted by: Mike McDougal | Apr 21, 2007 10:36:18 PM

I knew nothing whatsoever about AutoAdmit/Xoxo, but to learn from Mike that it 'is largely a theater of transgression' does help confirm my belief that for some time now this culture has become besotted by an ethics and ethos of transgression (evidenced in advertising, 'extreme sports', the entertainment industry, fashions, personal behavior, the arts, etc.). To some degree, I think this is a futile yet understandable reaction to both the commodification of life and conditions of living determined by an ever-accelerating pace of technological change. When so much of our lives is seemingly determined by outside forces (i.e., 'beyond our control') and in a time when many traditional metaphysical and religious worldviews have been abandoned, ignored, forgotten, or unable to provide their adherents with plausible or persuasive explanations of these often mysterious yet ubiquitious forces, transgression is an adolescent and reactionary response that gives individuals a false sense of 'power' in a time characterized by their powerlessness (I suspect Erich Fromm could help us here with regard to the social psychological dynamics). Perhaps it's because I'm getting older and more conservative (in some 'cultural' sense; in politics I remain institutionally Liberal and spiritually Leftist) but transgression of norms of etiquette, social norms, rules, laws, ethical principles, and so on have become the norm, that is, the norm of transgression has become entrenched both among the hoi polloi and the intellectual trend-setters. This is not the same thing as the occasional endeavor to trump or transcend or alter norms and rules and laws that have become stultifying, meaningless or oppressive, as there seems to be little attention or thought paid as to the specific rationale for such transgression which, let us be clear, amounts to transgression for the sake of transgression. I'm not bewitched by Burkean Burkean traditionalism nor have I succumbed to what Albert Hirschman memorably termed the 'rhetoric of reaction,' but I find my fascination with 'the law,' my fondness for sophisticated conceptions of ritual praxis (e.g. the essays by Kline, Ganeri and Kepnes in Kevin Schilbrack, ed., Thinking through Rituals: Philosophical Perspectives, 2004, and Steven Lonsdale, Dance and Ritual Play in Greek Religion, 1993), and my interest in the developmental role of 'token concerting' and concerted activity as emulative models of behavior and a species of thinking (see Derek Melser's The Act of Thinking, 2004), arises from a determination to contemplate how we might counter if not transcend this culture of transgression.

This is one of those rare instances where I would be grateful to learn that I am utterly mistaken....

Posted by: Patrick S. O'Donnell | Apr 22, 2007 6:31:27 AM

Erratum: 'ubiquitous' and 'Burkean' redundancy

Posted by: Patrick S. O'Donnell | Apr 22, 2007 6:34:47 AM

A theater of transgression that requires anonymity has no integrity. I'm sorry but this discussion board, AutoAdmit/Xoxo, cannot be compared to other anonymous endeavors that actually had merit such as the Federalist Papers, and a real theater of transgression would be something like the trial of the Chicago Seven, which had a design to its satire and transgression of traditional decorum.

When people can hide behind a veil of anonymity and are not accountable for their words, then those individuals are likely to make expressions without thought. Consequently, they never have to justify any of their declarations, reducing all of the statements to a menagerie of senseless signifiers. Is this what is meant by "no reasonable person who is even passingly familiar with the site would have taken the 'threat' seriously"?

Now indulge me for a moment as I digress into a brief litany of rhetorical questions: Isn't it remotely possible that an individual might say something that is at least half-true in this forum of absurd and meaningless words and ideas? Knowing that it is possible that one of these statements might be remotely true, shouldn't we take everything that is said in this forum seriously?

I'll tell you what anyone with half a brain would think: Even though the people on that discussion group do not have the courage to attach their names to their commentary, it does not somehow negate the scienter that produced the statement and it does not mean that person does not have the nerve to follow through on their threat. In fact, a threat is even more frightening when it is made by a masked individual, which is what a person is on a chat board that is hiding behind a false moniker. Believe me, it is much more horrifying to be threatened by a person in a mask than it is to be threatened by someone you can identify.

Here is the moral of this whole sad situation: Don't make statements in hiding that you wouldn't make otherwise.

On another note, I applaud transgression, and I think it is essential to the evolution of any society. However, the point of transgression is undermined when it is done anonymously. An act of transgression has power when it can be justified, and who can better justify an act of transgression than the artist? Would Marcel Duchamp's work have any meaning if he had not been available to give it meaning?

Lets assume that the discussion board is a collective work of transgression. Then who is available to justify the Autoadmit discussion board? Who is available to take responsibility for the repercussions of the discussion board? Is the Boalt Hall student a victim of someone else's attempt at a work of transgression? If so, then this person should step forward and explain why this student should not be denied his/her career! Or did this student assume the risk of losing his/her career when they decided to partake in this work of transgression? If we're going to talk about the discussion board as a work of art or even civil disobedience, then someone should assume responsibility and justify it. Otherwise, it is a wreckless act and it should be treated accordingly. To absolve it of its crimes, it is not enough to just wave a hand over the discussion board and call it a theater of transgression.

Posted by: Travis Hodgkins | Apr 22, 2007 11:17:16 AM

The supposed moral, "Don't make statements in hiding that you wouldn't make otherwise," seems overbroad to me. There are many situations in which anonymous expression is beneficial for society. For example, when perceptions about the source of a statement may distract from a balanced appraisal of its content (Travis mentioned the Federalist papers, but perhaps a more tailored example would be anonymously graded law school exams), allowing anonymous expression serves to ensure the accuracy of that appraisal. In other situations, the source may face retaliation in response to statements made; society, nevertheless recognizing the social value of the information, may offer protection (whistleblower hotlines, anonymous evaluations of law school professors, witness protection programs). In both of these situations, the cover of anonymity reduces the negative repercussions the individual may face as a result of the statements made.

In the context of AutoAdmit/Xoxo, the latter of these considerations seems more salient. Presumably, most of the posters on AutoAdmit/Xoxo are not otherwise acquainted with one another before posting. They are therefore unlikely to be worried about how others' preconceived notions might affect them (concededly, however, one might have an incentive to change handles if one develops a poor reputation). There is, however, a strong argument for allowing anonymity insofar as it allows individuals to disclose first-hand information about their schools/firms--information they would not otherwise disclose due to a fear of retribution. And, to the extent that the information is truthful/useful, this is a social benefit, as it allows individuals to make more informed decisions about where to go to school or who to work for.

Of course, we are now all aware of one potential downfall of such a system: with anonymity, one need not bear the consequences of disseminating untruthful--or even blatantly harmful--information. And without a system of retribution, such posts may proliferate. Indeed the dismissal (see above) of the AutoAdmit/Xoxo forum as a mere 'theatre of transgression' speaks to the heart of this drawback. The more untruthful--or hateful--comments posted, the less 'face value' any one comment will have. When we say that "Trustafarian" made a 'dumb joke', perhaps this is what we are referring to. Given the assumed lack of validity contained in any given post, the poster might have figured this post would be dismissed like the rest. Even if not, the supposed anonymity would keep him/her from bearing the consequences of the 'joke'.

As a side note, here, it seems the poster made at least two key lapses of judgement in posting: 1) that the post would not be taken seriously (note, it could be argued, though we do not know, that the post was meant to be taken seriously), and 2) that the poster would remain anonymous.
It seems that the first oversight was the most obvious. While it's true that many (perhaps most) of the posts on AutoAdmit/Xoxo are not credible, human beings tend to measure danger not only by the liklihood of the danger coming about, but also by seriousness of the danger in question. Here, the brutal massacre of 30+ students was perceived as exceptionally serious; that's not simply because of the numbers involved, but also because the post was fresh on the heels of the tragedy.
Interestingly, and still on this first point, I read that the post was up for less than 20 minutes. That the post was spotted within that 20 minute timeframe, by someone who might take it seriously--a Hastings student, and that the information was be passed on to the school, itself, might fairly be characterized as being on the outskirts of all probable consequences. However, once that chain of events was set in motion, the probability the poster could remain anonymous would seemingly decrease substantially.

In this case, I think the moral of the story is more subtle--perhaps "Absent a compelling justification that would result in a social good (i.e., dissemination of truthful information, or the need for an unbiased appraisal of a statement), do not make anonymous statements."

Posted by: Wendy Jackson | Apr 22, 2007 4:07:10 PM

correction: "likelihood"

Posted by: Wendy Jackson | Apr 22, 2007 4:15:50 PM

Wendy, Your subtle moral is better than mine and your post is very thoughtful. I was not trying to say don't post anonymously, just assume the possibility of disclosure. That still may be overbroad, but I was replying to a bunch of [other] posters who seem to really believe in some distinctions that I say are not set in stone: anonymous/non-anonymous; joke/serious threat; crimes/other wrongs as defined by C&F committee; one time/pattern. Some think law students are cut more slack than lawyers, while the law is clearly otherwise (with a constitutional justification for treating them differently). Some believe the barrier between anonymity and infamy is technological, ignoring human assets. I was overbroad in replying to that naivete, perhaps, but the advice is still the same: treat anonymous fora as if the bar could possibly root it out.

Anyway, I have been impressed by Hastings' students thoughts on your blog and the Memoirs one, and hope you will keep us posted.

Posted by: Alan Childress | Apr 22, 2007 5:04:22 PM

Let me apologize; my comment was directed, in part, to Travis's more general reply, as well. I wholly agree with your points. The calculus will certainly differ for law students, as anonymity can never be assured, and as you indicate, the criteria for judging the statements is up to the C&F screeners--not appeals to general societal values. Thanks for your response!

Posted by: Wendy Jackson | Apr 22, 2007 5:41:52 PM

The apology is mine. I see now that you were quoting Travis, not me, as to the moral (though I pretty much agreed with that and so any criticism about overbreadth applies to me), and I really do like your more nuanced statement. I also read on your site a good point you make about people lightly throwing around the term "collateral damage"; I have used that, I do not mean to offend by it, and I will not use it in the future without considering all its implications. Alan

Posted by: Childress | Apr 22, 2007 6:12:21 PM

I'm less charitable about anonymity in the context of chatboards. I wholly agree with Wendy that anonymity can serve a socially useful function - a la Publicus and whistle-blowing hot lines. Here in New Orleans there is an anonymous tip system to deal with the very real problem of the perception of retribution against witnesses to crimes. (As to employee hot lines, within the corporation we always advised employees that they had the right to anonymity, but also observed that the company's ability to deal with the complaint could be hampered by the exercise of that right.)

There's a lesser probability that the side wall of a latrine will be used for socially beneficial anonymous information sharing. And were you to choose that as your medium of expression, we might legitimately call your seriousness into question (not your right, apart from whatever tort to property you might be engaged in). You might have legitimate points in your letter to the editor of Hustler magazine or whatever rag George Lincoln Rockwell (ed. note: ignominious and, I believe, assassinated former head of the American Nazi Party)used to put out. Based on the general tenor of the discussion on these chatboards, the risk you run is getting the worst of both worlds: generally what's out there is total nut case garbage at which you can only shake your head, but nevertheless see threats that ought still be taken seriously.

Posted by: Jeff Lipshaw | Apr 23, 2007 5:43:30 AM

FYI: UC Berkeley's Dean Christopher Edley, Jr. sent a letter to the law school community detailing the consequences of the student's illicit actions. The letter basically confirms what has been said on this blog, the kid doesn't have much of a future in law. You can find the letter at the Transnational Law Blog:

Posted by: Travis Hodgkins | Apr 26, 2007 1:31:15 PM

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