More Thoughts on AutoAdmit — and on the Remarkable Thick Skins of Tenured Law Professors with Widely Read Blogs
I have a few more thoughts on the AutoAdmit lawsuit.
Prof. Volokh is correct, I think, to warn of the general dangers of filing libel suits. The suit itself publicizes the allegation, and provides a legal vehicle for the discovery of further embarrassing revelations about the plaintiff(s). This is a real concern that should not be minimized.
But I think Prof. Volokh overstates the concern that law firm partners are going to come to court and start listing off the deficiencies of the plaintiffs as job applicants:
[T]he result will be testimony from sixteen prominent law firms explaining why they didn’t want to hire Doe I. What’s more, the law firms aren’t being painted as the bad guys in this law suit, so it’s not a case where (for instance) someone sues an employer for discrimination and the employer’s badmouthing of the plaintiff could be put off to the employer’s racism or sexism or what have you. It’s just sixteen law firms that come across as largely disinterested bystanders (despite the possible reason to shade the truth that I mention above, a reason that is likely not to be prominent in observers’ mind) and that talk about how Doe I botched her interview, or about how her grades were really pretty weak.
Oh, I sincerely doubt that. I can’t in my wildest dreams imagine that we will see hiring partners talking about a plaintiff’s weak interview or poor grades. Unless there is a paper trail located in discovery that forces the hiring partners to acknowledge specifics regarding a particular candidate, their testimony (if it happens at all) is likely to be incredibly bland. It will consist of assertions that the plaintiff was a great applicant, together with explanations that “other applicants better fit our specific needs.” I deeply doubt that the plaintiffs have any realistic cause to worry about a hiring partner ticking off their deficiencies and faults; that would send a very scary message to future applicants, and the law firms know it.
Volokh thinks that the hiring partners might be candid because they can’t be sued for their honest testimony. But the danger isn’t being sued — it’s having the “buzz” about your firm be that nobody interviews there, because the hiring partner might trash your character or credentials at some future date.
Moreover, I think that Volokh, Althouse, Ilya Somin, and Glenn Reynolds (law professors and prominent bloggers one and all!) all trivialize the effect that allegations like the ones in this complaint might have on a young lawyer’s career. For example, Volokh quotes his co-blogger Somin as saying:
[E]ven if law firm hiring committees did believe the comments, … [m]ost big law firms care very little about associates’ personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.
I agree that once as associate is on board, law firms (at least initially) care little about their social lives. But I disagree that it’s true when hiring decisions are made. There are so many qualified applicants that it is easy to envision a scenario where any potential negative is a disqualifier.
Take a simple hypothetical: A and B are both excellent candidates, but A has a nasty Internet trail and B doesn’t. Might not a rational hiring partner prefer B to A? Why buy potential trouble when you can avoid it? If the issues that surface in the Internet trail loom large two or three years down the road, the hiring partner may be taken to task by his colleagues for having missed or ignored the warning signs. Better to avoid the problem altogether. That’s what the institutionally conservative individual would do — and if you don’t think law firm partners are institutionally conservative, you don’t know law firm partners.
I continue to hold this view, even though disagreement with my opinion has been expressed by several tenured law professors who haven’t interviewed for a job in years.
Speaking of which, it is indeed quite a spectacle to watch law professors with established reputations and prominent spots on the Internet — both of which they can use to counter any unjust criticism of themselves — labeling as oversensitive fledgling lawyers with no established reputation and no platform for responding to scurrilous allegations. I think it’s nice that these professors consider themselves “thick-skinned about Internet trash-talk,” as Glenn Reynolds put it — but they have established reputations to fall back on, that were formed before the trash-talk came. These women haven’t had a chance to form their reputations; this controversy may well be the dominant impression many people have about them — and thanks to Google, that could well be the case even absent this lawsuit.
I understand the argument that defamation causes greater harm to people with established reputations, but I don’t agree that this is always the case. I think that sometimes the greatest harm can be caused to people with no other reputation to fall back on. For example, if a rumor were spread at the Torrance courthouse (where I don’t work) that I’m devious, that would arguably harm me more than a similar rumor at Compton (where I do work), because the people in Compton know me, and know it’s not true — so they’d be less likely to believe it.
I find myself most disturbed by the dismissive attitude of Althouse. Reading through her comments, I see her labeling the women as “imperious” and “sensitive” and running off to government for help by filing a lawsuit. But I see repeated evidence that she is minimizing the gravity of the allegations the women are making. For example, Althouse says in a comment:
I don’t have a problem with claims for defamation and there may be some in amongst the jumble of that complaint.
There “may be”? There most assuredly are.
The impression conveyed here is: I can’t be bothered to read the complaint and determine whether there really are valid defamation claims, but I really want to argue for free speech and not be overly concerned with the actual facts at issue. Similarly, she says:
Even if they believe it, what’s to believe? That’s she’s really good looking? They can see what she looks like. They might think she has herpes? Why would that matter? That she causes sexual desire in men? They can see that by looking at her too. That there are some idiots on a chat board who type about their sexual desires? It has no relevance.
How about that she committed sexual assault, or slept with an admissions dean to get into Yale? If a hiring partner believed those allegations, would it matter? Of course it would — but Althouse doesn’t mention those allegations.
I think the bottom line for Althouse is that she reacted to a silly comment made by one of the women’s lawyers — that the suit was over “the scummiest kind of sexually offensive tripe” — and didn’t really bother examining the specifics, to see that the lawsuit is about much more than simply annoying comments. Now that this point has been made, she appears to continually minimize the seriousness of the allegations, for whatever reason.
In any event, I’d like to see a little more sensitivity from all of these tenured professors concerning the real harm that comments like these can cause — when people have no developed reputation and no platform to respond, as all of these professors have.
UPDATE: Reading this post over, I think I’ve been a little too sarcastic. I’ll leave it as-is, but if I had it to write again I would be a little less sharp with my words.