April 16th, 2018

Should the Disruptive CUNY Students Be Punished?

Last week I wrote about a group of students at CUNY Law who decided to disrupt the First Amendment speech of Prof. Josh Blackman. They didn’t like the way he thinks laws and the constitution should be interpreted, so they figured if they could shout him down this would magically change the way laws and the constitution get interpreted.

It didn’t go well for the students, and they’ve been widely widely ridiculed regarding their conduct. And yeah, the talk was to be about free speech, of all things.

But Prof. Eugene Volokh of UCLA Law — also the founder and longtime editor of group law blog The Volokh Conspiracy — has this interesting thought about whether these students should be punished:

The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations.

But the question of punishment is twofold: For even if you think they should be metaphorically spanked, the question remains as to constitutes suitable punishment. A punishment must, after all, fit the crime.

So here’s my two rupees on the subject. The answer to the first question is an easy yes. An organized effort to silence a speaker is a major no-no, not just for any university students, but especially for law students. They should know better.

And the “punishment” should be compulsory participation in CUNY’s Moot Court program, which exists as a competition among students.

For those non-lawyers reading here, the usual moot court format is for a legal problem to be given and a team of students to write a brief. One student might handle an issue of whether the case is properly in this court (jurisdiction) while another might handle the substantive part (i.e. Is it constitutionally protected speech if a person does xyz?).

The Moot Court room at SUNY Buffalo, my alma mater.

But this is the kicker, and the reason it’s such a valuable teaching tool: The students argue the side that they briefed on day one, but the next day must argue the other side. And they do it before a panel of “judges” that are busy firing questions at them as if in an appellate court. It’s the closest, most realistic, experience to an actual courtroom that a student will have in law school.

The requirement of arguing both sides forces the students to look at problems in a more objective light. It may force students to make arguments that run contrary to their own feelings about how a law should be read. It will force students to look at the warts of their own arguments, as almost all arguments have warts someplace.

Without an ability to understand all sides of an issue, it’s impossible for practicing lawyers to give objective advice to their clients — and that is what we get paid to do. This forces the issue to the forefront.

The moot court competition law school was, for me, the single most valuable experience of my academic experience. It did more to turn me from a student into a lawyer than anything else.

Those students that were disruptive — and it is yelling and screaming that are disruptive, not holding signs no matter how inane they may be — clearly have not yet learned enough about the law if they are acting out the way they did. They are not even close to ready for their legal careers and representing people.

While it may be easy to think some other, more traditional, type of punishment should be administered, the question any laws school should ask is, “What will make them better lawyers?”

And ten years later, they will send thank you notes to the administrators that made them do it and the professors that oversaw the program.

April 12th, 2018

Did CUNY Law Just Commit Suicide?

Was it smart for a CUNY Law student to try to stop Prof. Josh Blackman from speaking by yelling “Fuck the law?” Did this student’s friends and classmates think it wise trying to shut down a speech on, of all things, free speech?

Is this what they learn at CUNY Law? That if you don’t like the arguments or positions of another you scream and yell and have a tantrum?

Does anyone think this is good training for lawyers?

What would a judge think of such lawyers? What would clients think?

Is their training so shoddy that they don’t grasp there are differences of opinion on how a law or the constitution is read? Do they understand that certain things are inherently subject to interpretation, such as “unreasonable” search and seizure or “cruel and unusual” punishments?

Do they really think that the way to “beat” a conservative legal theorist is to holler?

Is their education so deficient that they don’t understand the long-term debate between those that think (loosely) that the Constitution is a living breathing document to be interpreted with the times and those that think it shouldn’t?

Do they understand that reasonable people can disagree on interpretations without name-calling? Do they not know that liberal icon Notorious R.B.G. was great friends with liberal boogeyman Antonin Scalia? Do they not know that sometimes liberals actually fall in love with conservatives and marry?

Why are they afraid of words? Shouldn’t people secure in their ideas welcome the opportunity to openly debate? Are they afraid that in the marketplace of ideas they are unable to sell what they have? Do they understand that when they yell and scream others assume that they can’t win a debate?

How can someone get to law school not knowing that if you disagree with what a laws says, that the law can be changed? Have any of then ever tried?

Do they think that trying to shout down Josh Blackman will somehow change the law?

Are they so foolish that they don’t understand that the First Amendment is not a liberal thing, or a conservative thing, but an American thing?

Are they so clueless they don’t grasp that if one of them was stupidly arrested for holding a stupid sign calling Josh Blackman stupid names, that it would be the same Josh Blackman defending their right to display their stupidity to the world?

Have they never heard the saying, “I disapprove of what you say, but will defend to the death your right to say it?”

Are they so daft that they fail to understand the magnitude of difference between interpreting what an existing law is, and advocating for what one hopes it should be?

More to the point, perhaps, but if these students are unable to tell the difference between interpreting the law and advocating for changes in the law, why are they in law school? What firm would ever hire them if they can’t grasp such a concept? Why would any firm trust a client to them? What client could possibly want them?

How could such lawyers, hell-bent on trying to shout down the opposition, ever argue a point of law in court? Indeed, how could they even handle a residential closing? A contract? A transaction of any kind?

And this is a public interest law school? What public interest group would want lawyers so terrified of their opponents that they feel the need to shout them down?

Have you ever met a client, lawyer or judge who felt such behavior was persuasive to make a point? Have any friends or family ever thought that shouting someone down was persuasive argument?

Which is more likely to occur, that these people will be disappointed as lawyers, or that they will be disappointing to clients?
———-

Elsewhere:

Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech (Volokh @ Reason)

…The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations….

Josh Blackman And The Guy Who Wanted To Hear (Greenfield @ Simple Justice)

…It was a talk about free speech on campus. Josh was invited. Some students, however, didn’t want him to speak and instead wanted him to know he was unwelcome.

The best answer to “why Josh” seems to be that these students were knee-jerk antagonistic to anyone, any idea, that wasn’t theirs. Children do this, which makes it all the more ironic that when they were finally shut down by an administrator, one protester responded, “we’re not children. You can’t talk to us like that.” Children say that, too….

The Disgrace at CUNY Law School (Hawyard @ Powerline):

…Prof. Blackman was greeted with a protest that was off the chart even on the usual scale of infantile campus protests. Go see his own full account and pictures of the event at his website. Among other offenses, Blackman had written that the Trump Administration was legally correct to rescind DACA because it exceeded the President’s authority. But Blackman supports enacting DACA through proper congressional legislation. This was apparently not sufficient for “law” students at CUNY Law….

“F*ck the law” – CUNY Law students attempt shout-down of conservative law prof (Jacobson @ Legal Insurrection)

…Blackman was invited to speak by the Federalist Society Chapter at the City University of New York (CUNY) Law School. That did not sit well with some progressive law school activists, who tried to shut down and shout-down the event…

CUNY students call law prof ‘racist’ for supporting free speech (Sabes @ Campus Reform)

…Blackman told Campus Reform that he was “shocked” by the disruption, saying this was the first time he was protested.

“I had hoped they would protest before my speech, and ask me tough questions afterwards,” he said. “Instead, they decided to heckle and interrupt me. At the time, I had no idea if or when they would stop heckling. Fortunately, it did not last the entire time.”…

“Stop debating”: CUNY Law students disrupt speaker and his critic (Harris @ FIRE)

…As you can see from the video, Blackman abandoned his planned remarks about free speech and instead tried to engage the protesters on their substantive criticisms of him, such as his writings about DACA. He explained that he actually supports the DREAM Act and would have voted for it in Congress, but that he believes the DACA policy — which President Obama adopted after Congress failed to pass the DREAM Act — was “not consistent with the rule of law.” He cited this (over jeers and interruptions) as an example of how one can “support something as a matter of policy, but find that the law does not permit it. And then the answer is to change the law.”

That sounds like the premise of an interesting debate, but the protesters would have none of it. Instead, they shouted out that he was “gaslighting” them and “lying to [him]self” — apparently, they already understood his views better than he did, so there was no need for any intellectual engagement. When an administrator intervened to remind the group that they had to let Blackman speak, they asked her, “Why are you bringing racists into your school” and (before Blackman had spoken more than a few prefatory words) “Why are you not providing support for students affected by this hate speech?”…

February 14th, 2017

Class Action Action, Here We Come…

Alison Frankel

We may be in for some serious action on the class action front, due to two big items:

First, legislation has been introduced in the House by Representative Bob Goodlatte that would eviscerate class action law suits. Those suits, started under Federal Rule of Civil Procedure 23 allow numerous people with small claims to group together to bring suit. Because one can’t realistically hire counsel to sue for getting screwed on a defective $10 widget, but if 1,000,000 people get screwed, justice has a good shot at being served.

Or, perhaps, if someone wants to create a phony university about selling real estate with phony promises, the class action is the way that the group can come together for justice against a grifter.

Make no mistake about it, the class action suit is a major factor in empowering the little guy to keep Big Business honest in consumer dealings, and I’m a big fan of them when used right.

As Alison Frankel points out in a Reuters column, however, those class actions are now under a new assault. With Republicans now controlling both houses of Congress and the White House, there is the potential for the courthouse doors to get slammed shut in the faces of consumers.

Since Frankel has already done a great job writing the story up, no need for me to do it again. Read it here.

Next up on the class action front is a potential showdown in the United States Supreme Court on how legal fees are calculated when class actions settle.

Prof. Josh Blackman

In Blackman v. Gascho, the court will face this issue regarding the computation of legal fees: Should a trial court look to the full value of the settlement, as if every person redeems a coupon that may be offered? Or should it be based on how many people actually redeem those coupons (if coupons are used). In other words, on a claims-made basis.

Regular readers know I have been down this path before having been screwed on a class action once. I then proceeded to hire Ted Frank to represent me as an objector, despite him being a tort “reformer.” As Scott Greenfield once pointed out, Frank had now become a plaintiff’s lawyer of sorts, by standing between members of the class and lawyers that he felt (in certain cases) had over-reached on the legal fee.

The issue arose when law professor Josh Blackman — who has been producing constitutional commentary regarding the Trump administration on his blog, twitter and cable shows like a fire hose going full blast — was a class member regarding a gym contract. The gym was sued and the matter settled.

But rather than simply mailing checks to the class members on a pro rata basis, postcards and emails were sent with directions on how to redeem the funds. This, Blackman argues, was designed to lower the actual payout to class members with a low response rate, and thereby give a disproportionate share of the recovery to the lawyers.

While the gym argued that the entire class settlement was $15.5M, thus justifying a $2.39M award of costs and fees, Blackman and Frank contend that they anticipate less than 10% response, and that therefore the funds were paid disproportionately to lawyers instead of class members.

The case is set to be conferenced by the Supreme Court this coming Friday, February 17th, to decide if cert should be granted.

If cert is granted, and the Goodlatte bill moves forward, expect class action discussions to come to the forefront of legal discussion.