July 15th, 2015

Professorial Malpractice (Updated)

Professor Franks, via LinkedIn

Professor Franks, via LinkedIn

Monday someone blocked me on Twitter. It’s the first time that has happened to me since I started sporadically using the service in 2009.

Me? Blocked?  What malicious and impertinent crime had I committed?

Apparently, I committed the vulgar, discourteous and insulting crime of asking a law professor for a citation, and then discussing it.  I kid you not.

As I skimmed my Twitter feed upon return back from a delightful vacation, I saw this curious tweet from Professor Mary Anne Franks about the de minimis likelihood of a rape allegation being false:

InfinitesmalNow I’m no student of rape statistics or studies for sure — it isn’t what I do, and it isn’t one of the issues I’ve routinely tackled in the 1,300+ pieces I’ve written here since 2006.

But I was curious about the comment, certainly, since it carried a presumption of guilt, which is deeply at odds with our jurisprudence. And it was also at odds with stories in the popular press about rape accusations that turned out to be either questionable or outright false.

This includes such front page stories as the Duke Lacrosse players scandal, the poorly sourced Rolling Stone article from the University of Virginia for which it apologized (A Rape on Campus), Columbia University student Emma Sulkowicz who carried a mattress around campus after claiming she was raped, and the Central Park Jogger case. And, of course, there is the infamous case of the Scottsboro Boys.

But you know what the problem is with all those reports? They are not empirical evidence. While they discuss the facts of those particular cases, this means nothing for the big picture as to whether the incidence of false rape accusations is “infinitesimal,” or common, or somewhere in the vast gray area between.

While I don’t do criminal defense work, I do try civil cases, and I am aware of how stories in the popular press help to shape societal opinions (and, therefore, the jury pool). A classic example from my field is the McDonalds hot coffee case. I can’t remember the last time I picked a jury without discussing it.

The problem is that such stories are, by definition, outliers. If they weren’t outliers, they wouldn’t be on the front page where they then go on to shape public opinion.

Wanting to know the source of Professor Franks’ conclusion, I inquired with a very simple and benign citation request regarding her claim that false accusations of rape were “infinitesimal.” And with that she directed me to a Washington Post article that cited a variety of statistics, from different studies:


While I won’t summarize the entire article — since as you will see in a moment that is not the point of this post, and you can read it if you want — the author wrote about one significant study stating that there is “a profound disagreement on what counts as a false allegation.”

Due to the problem of shifting definitions (as well as unreported rapes), you can see by the article that it’s difficult to get a real handle on the extent of the problem. In fact, the very story that Professor Franks cited to me had studies showing  false rape accusations varying between a low of 2% to a high of 45%.

The only thing that seemed to be clear about the statistics is that nothing was clear.

So I noted to Professor Franks that not only wasn’t the word “infinitesimal” part of the story, but that the very citation she gave me seemed to demonstrate otherwise:



Two to 45

And she blocked me. For challenging the conclusion she reached from her very own citation. This is academia?

Now where I come from, a lawyer doesn’t make an assertion that can’t be backed up with proof. Evidence is the heart and soul of any case or argument. I get challenged on my proof all the time, and I challenge defendants on theirs. Over the course of the 30 years since I was graduated from law school, I’v become pretty confident that this is the way the system works.

The challenging of proof is what, hopefully, assists the finders of fact (be they juries or judges) to become the proverbial fly on the wall that determines what “actually happened” when one bit of evidence contradicts another.

It’s therefore routine in trials for each side to look at the opening statements of the other, and try to find some fact that they claim wasn’t proved at trial, and then pound away at this, calling it an exaggeration or falsity in an attempt to tarnish the entire case of the other side.

And that is why lawyers speak carefully in making assertions of fact, for otherwise we tarnish not only ourselves, but worse, our clients or causes.

I can’t help but wonder: What happens if a legal adversary challenges an assertion that Professor Franks makes in a motion or appeal? What happens if a judge challenges her cite? Will she stand in the well of the courtroom and try to block the judge?

And what happens when a student challenges a citation that Professor Franks gives in class? Does she block the student? Will she cover her ears and sing?

What kind of lesson does she teach her students by saying that, if a person challenges your citation, you just block them?

This post isn’t about rape. It’s about evidence. And teaching. And lawyering.

I’m reminded by this episode of an experience I had as a newbie blogger, with just months under my belt. Walter Olson at Overlawyered had written something and I posted an opposing view. So what did Olson do? He amended his post to read, And for another view, see Turkewitz. With a link.

This was the exact opposite of blocking. And it brought home to me in a heartbeat what the whole blogging thing was about. It’s about an exchange of ideas, some of which may be critical. Olson and I may butt heads on issues from time to time, but I’m indebted to him for that lesson.

And it was the subject of a post I wrote a few years ago celebrating that very fact (Twittering With the Enemy– A Blogospheric Celebration). Professor Franks would do well to take note.

A last thought. When I was a kid, I remember one of my teachers telling me that the best students were the ones that challenged their teachers with questions. This was the pool of students, he told us, from which he hoped would one day emerge a son-in-law.

Good teachers are happy when students’ minds are buzzing with inquisitiveness.  Good teachers aren’t afraid of the questions. Or the answers. Or of learning something new.

Update (7.16.15) – In exceptionally stark contrast to Professor Franks, 9th Circuit Judge Alex Kozinski had this to say in an article that deals with his ideas (in part) on how to change the jury system:

If my proposals raise controversy and opposition, leading to a spirited debate, I will have achieved my purpose.

Now ain’t that refreshing?


Elsewhere, some on point, some tangential:

Professor Franks and the False Dichotomy (Jay WolmanLegal Satyricon, who was also blocked)

The ITIF’s Confusion on Free Speech and Revenge Porn (Scott Greenfield @ Simple Justice)

Professor Twitter and the Problem of the Low False Rape Narrative (Francis Walker @ Data Gone Wild)




December 2nd, 2011

Best Law School / Worst Law School

via Stu's Views

Over at Above the Law, Elie Mystal ran a bit asking his readers to vote the worst law school in New York City. The Above the Law readers, it’s important to note, have a pretty significant bias toward BigLaw and big salaries and big bonuses. The site dwells often on the gossip that comes from the big schools and firms.

So it got me to thinking —  a dangerous subject I know — where did New York’s top judges go to law school?

For comparison’s sake, we’ll first look at the US Supreme Court. Why? Because I need some other top court for a yardstick. And because it is frequently criticized for, among other things, being top loaded with lawyers that have never actually been in private practice, spending all their time in government or academia. I think that, of the list, only Justice Kennedy was in private practice for himself for any length of time, with Justice Scalia doing a brief stint in commercial law and Justice Sotomayor famously hanging a shingle in her apartment for a short time.

Here’s the Supreme’s law school list, and let me know if you see a pattern:

US Supreme Court:
Chief Judge John Roberts: Harvard Law School
Antonin Scalia:  Harvard Law School
Anthony Kennedy:   Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg:  Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

OK, even a pre-tween kid could see a pattern. But that pattern is also a problem.

It’s a problem because people choose law schools based on three fundamental criteria: Geography, money and academics. Some folks couldn’t go to those schools regardless of their grades. Now let’s turn to New York’s top court, since that is where we are going with this:

New York Court of Appeals:
Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo:  Albany Law School
Susan Phillips Read:  University of Chicago Law School
Robert S. Smith:  Columbia Law School
Eugene F. Pigott, Jr.:  University at Buffalo Law School
Theodore J. Jones:  St. Johns University School of Law

That’s a pretty good mix giving quite a bit of diversity. Four of the seven went to schools that would not be considered first tier. And yet, there those judges are, at the top of the heap on one of the most influential courts in the country. (And several of those judges, it’s worth noting, have actual lawyering experience, as I culled from online biographies; and by that I mean they knew where to find the courthouse and stand in the well on behalf of an actual, living breathing human.)

It is, perhaps, easy to stick one’s nose in the air and feel good about where you were privileged to go to school. But as the New York Times pointed out recently, law school doesn’t teach lawyering.

And I’ve never had a client or judge ever ask me were I went to law school, nor has any juror ever asked me when the trial was over. So take all that law school stuff with a few shakers of salt.


January 6th, 2010

Can A Cartoon Law Exam Help You in the Practice of Law?

We start with a law professor that wants to make an exam “fun” by having students relate a cartoon to course materials. Then we move to a practicing lawyer that rips that idea to shreds and beyond. But, believe it or not, I think the concept can lead to better lawyering.

This little idea emanated from Howard Wasserman at TortsPrawf, who wrote:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Scott Greenfield, who often writes of how out of touch law professors are with the actual practice of law, was not amused by this “fun.” He wrote:

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.

But the idea clicked in my head, though not for the reason Wasserman stated. Many practicing lawyers, the folks in the trenches, can’t write because they can’t sharply identify the issue and present it up front. One-frame cartoonists, however, know all about succinctly nailing the issue.

That succinctness is something I first practiced when working for my dad after law school, because one of his office rules was that every case had to be reduced to a “one-liner.” Thus, a complicated medical malpractice case, that might have many different issues, would be reduced to:

1 year delay in diagnosing breast cancer in 52 year old woman, married, three kids

And that one-liner came in handy not just for office management, but when you approached the bench at a conference and the judge asked what the case was about. Five seconds later the judge knew what is going on and could delve into those parts of the nitty-gritty that might be needed for the conference. That one-liner also served as the opening of every brief.

Law school exams teach you to write, and write and write. Then write some more. And that may be wrong. Perhaps they would better serve aspiring lawyers if they taught them to more sharply focus the issues and write less.

How sharply? Give each student a maximum of 75 words to define each issue. That is a skill they can use in the practice of law. With just 75 words, its tough to bluff.

That 75 word limit comes, by the way, from writing guru Bryan Garner. If you can’t define the issue in 75 words, he teaches, you probably don’t know what it is. Everyone that attends Garner’s CLE class walks out amazed after watching numerous videos of appellate judges discussing how poorly the issues are framed by the lawyers, and even how difficult it might be to find them in voluminous papers.

So that cartoon idea does have some merit to it, though not for the “fun”reason. Teach the students to write less, not more.

And as to the length of this post, if I had more time I’d have written less.
Addendum: Scott Greenfield wrote last year about how Twitter cruelly forces that type of brevity.


April 24th, 2009

Why is UC-Berkley Ranked #6 (When They Employ John Yoo)?

This week US News and World Report published its rankings of law schools. While exciting for the law professor and student crowds, this is usually as interesting to me as the arrival of the Yellow Pages.

But I was intrigued by John Yooone of the Bush Justice Department lawyers that rationalized torture — who has moved on to be a tenured professor at one of the nation’s more prestigious law schools, The University of California at Berkley.

Surely, I thought, such an individual would hurt Berkley in the law school rankings. But it didn’t. In 2007 and 2008 the school was tied for 8th. Now it is tied for 6th. The rankers apparently don’t really care if a school employs a torturer.

It left me thinking of the obvious issues of students and law firms potentially boycotting Berkeley, if not formally than informally. After all:

  • What does it say about a law school administration that allows a torturer to teach its students?
  • What does it say about the students that would agree to be taught by a torturer?
  • Is being taught by such an individual a detriment to employability?
  • Will alumni continue to give money to a school, knowing that this is how money is being spent?
  • Will law school rankers continue to ignore Yoo’s presence on the staff in years to come?

Berkeley, perhaps, will carry on just fine by keeping such an individual on its staff as it has years of reputation under its belt and alumni in high positions around the nation. But it seems rather incredible that a school — any school of any kind, except perhaps selected militant madrases where such conduct might be hailed — would have such a person teaching its students.

For more on the rankings (but not on how Yoo failed to influence the rankings) see:


May 30th, 2008

New York to Add Three New Law Schools? Is That Bad?

It’s been buzzing around a couple of blogs that New York is considering funding three new law schools, to add to the 15 we already have. I haven’t seen anyone support the idea yet, except the politicians who want to bring jobs into their districts. But one part of the idea might have merit and be worth considering.

First the nuts and bolts of the proposal, then we’ll go to the naysayers, and then I’ll add my two rupees on which part might be a good. This is from a May 30th New York Law Journal article:

With no advance notice and little fanfare, the Legislature included in the budget passed April 2 money for two feasibility studies: $3 million for the State University at Binghamton and $2.25 million for St. John Fisher College, a Roman Catholic institution in Pittsford, near Rochester.

Additionally, it provided $250,000 for “planning” of a law school at SUNY Stony Brook — to cover expenses such as approvals by the New York State Department of Education and the Board of Regents and accreditation by the American Bar Association. Finally, the Legislature earmarked $45 million for a Stony Brook law school building should one be required.

Now the first person to check in on any such proposal is, you guessed it, Walter Olson who isn’t too keen on the idea:

Because we all know if there’s anything New York needs to subsidize, it’s the creation of more lawyers…The future lawyers of New York thank you, taxpayers!

Next up, Scott Greenfield:

I’ve long taken the position that one of the primary problems with lawyer over-reaching, ethical issues and just plain diminishing revenues is that fact that we have too many lawyers. And if we have too many in general, you can bet that New York, the lawyer haven of the world, has too many in particular.

So what’s New York going to do about it? What else, build more law schools!

Both are right that New York has plenty of law schools. But what we don’t have is plenty of public law schools. Only SUNY Buffalo and the City College of New York are public; all others require the big bucks.

So what do those of modest means do? Do we want the bar to be overly weighted toward the well-to-do, or do we want it to be more egalitarian? Should law be open only to those fortunate enough to have chosen their parents well?

Now I happen to be a big fan of public education, and when I last checked my bio I saw I was still a graduate of SUNY Albany (undergrad) and SUNY Buffalo (law). Building additional law schools may be dumb since we have so many, but more public education is a slightly different subject.

And so those feasibility studies might better be geared toward acquiring existing law schools and converting them to public education. (And making the two that we have better.) Maybe a study will show it is doable, maybe not. It seems to me that what we need are not more lawyers and law schools, but different ones.

I would also add that, in reading the comments of some public officials, the primary concern seems to be bringing pubic money into their own area. In other words, just another porky project. That is a lousy reason to build anything.

But if existing facilities and personnel can be converted from private to public in order to make the law more accessible to talented people of lesser means, then I think that’s something to consider.