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Saturday, May 05, 2012

"Using the Legal Process to Silence Critics"

Paul Campos writes at his blog that he has been served a subpoena by Thomas Cooley Law School, presumably (the post wasn't entirely clear) as part of its lawsuit against some lawyers and anonymous lawyers alleging that they defamed it by claiming fraudulent conduct on the law school's part. The subpoena seeks "all my communications with the defendants, and 'all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.'"

One parenthetical note and one primary note. Parenthetically, I'll say that on a few occasions Campos has referred on his blog to conversations with reporters (including, if I recall correctly, David Segal of the Times) in advance of various stories; in some cases he was quoted in those stories and in some cases (including, again if I recall correctly, at least one Segal article) he wasn't. At the time, I found it a useful reminder that just as important as reading a newspaper article for the people it quotes is reading it with some thought in mind for the people it doesn't quote, but who have influenced the story. I'm not a vociferous Segal critic; I have problems with his stories but they strike me as perfectly reasonable, if imperfect and crusading, journalism on a topic--the failings and wrongdoing of law schools--that is well worth the attention. (I'm not much of a fan of crusading journalism and, having hung out with my share of investigative reporters, I read their work both appreciatively and with caution. But it seems to me that many people who excoriated Segal for his crusading style and the imperfections in his reporting would be more than happy to see a crusading spirit directed at other targets.) Still, it's always useful for a reader to know who guides the hand that guides the pen, and certainly I would be grateful to have a clearer sense, both in reading Campos's blog (which I still do, just about every day) and in reading news reports, of just when he is a reporter and when he is a participant.

But that is really strictly parenthetical. My primary point is that this story is worth attention. If the legal blogosphere can spend as much time and space as it does on trivia, it can surely devote some attention to the fact that a law professor and public critic of law schools has been subpoenaed in a lawsuit by a law school against its external critics. The title of this post is given in quotes because those are Campos's words. But whether one feels comfortable agreeing with them or not, one should certainly feel very comfortable about being uncomfortable about Cooley and its actions. The lawsuit struck me as having been a terrible idea in the first place; this latest piece of it doesn't help any. I hope there will be more legal blogosphere coverage.    

Posted by Paul Horwitz on May 5, 2012 at 11:32 AM in Paul Horwitz | Permalink

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Comments

Among the various abuses of the legal system that people ought to be concerned about, this seems pretty far down the list. Campos has been presented with one of the least oppressive legal demands (it's not like he's been named as a defendant.) He's among the small percentage of this country who's a sophisticated legal professional capable of defending himself with a relatively small investment of time or capital. And by his own admission he has plenty of time to spend on trying to get the subpoena quashed.

Maybe Cooley's wrong about this. But this doesn't even come close to comparing to a standard nuisance suit, and it seems to me a bit ridiculous that professors should pay more attention to this case just because it involves one of their own.

Posted by: Andrew MacKie-Mason | May 16, 2012 3:20:28 AM

Paul,

I agree it's worth talking about. Maybe you could host the relevant complaint and subpoena at Prawfs?

Posted by: dave hoffman | May 7, 2012 1:01:45 PM

David, I'm not sure whether your second comment eases the concerns in your first comment or not. I should say that I was not trying to make some blanket statement that such requests are always illegitimate or to offer unconditional agreement with Campos's view that this is really a SLAPP-type move (although I think there is some merit in that view). And as I said in my post, I too would like to know the extent of Campos's non-public discussions with both reporters and others--not because I think it constitutes wrongdoing, but because it would certainly help me sort out his public statements more effectively. Even so, I do think it is reasonable cause for concern when a public critic of law schools is subjected to what seems to me a very broad demand for information about a host of public and private conversations. At the very least, as I said in my post, I think that given the range of subjects outside of their expertise on which legal blogs lavish bytes, we can afford to spend some time on a matter so close to our own enterprise.

Posted by: Paul Horwitz | May 7, 2012 12:45:22 PM

Point (i) in the subpoena seems overbroad. Campos isn't a defendant. His communications with the defendants might be relevant. But what's the relevance of his communications with other third parties?

Posted by: AF | May 7, 2012 11:26:06 AM

Forgive me, Paul, I read the post wrong. This is part of Cooley's affirmative lawsuit, not the lawsuit against it.

Posted by: dave hoffman | May 7, 2012 10:58:19 AM

Paul, can you explain more why "one should certainly feel very comfortable about being uncomfortable about Cooley and its actions." What if (as may be the case) Cooley is wondering about the factual investigation that went into plaintiffs' claims, to figure out if a Rule-11 motion is appropriate. Or to see if Campos was providing the plaintiffs with legal advice while also commenting on their claims publicly? Would investigating him under those circumstances be inappropriate? Honest question here - guess I'm wondering whether you think that any questions directed at a law professor who writes about law schools would be silencing?

Posted by: dave hoffman | May 7, 2012 10:52:03 AM

Why is the Cooley lawsuit so deeply problematic? It is pretty well known that libel can be used to silence critics, but that is precisely why libel has some many protections and restrictions against that. The NY Times v. Sullivan standard will doubtless apply. So how is Cooley any different from any other libel plaintiff?

It seems that you are either saying (a) Cooley's lawsuit is bad because it is a sure loser and is being filed for its harassment value, or (b) it is not a sure loser, but ought to be, and the Sullivan standard is not protective enough. If it is (a), then it seems a premature judgment, given that I--and I suspect you--have no idea what the lawsuit actually says (cue your prior post on not engaging in pseudo-economic thinking and assuming the worst motives of anyone). If it is (b), then I think it is a highly contestable value judgment, and it would be difficult to say that anyone should feel "very comfortable" about making it with absolute confidence.

Posted by: TJ | May 5, 2012 1:28:53 PM

Segal's articles were, in the main, execrable. As far as I know, he never answered Brian Tamanaha's questioning of his reporting on Duncan Law school and the ABA's rejection of its accreditation. With that said, it is interesting that there is an intense drama going on in the profession that will shake the lives of students and law schools, and few professors who have blogs are even covering it. Campos is a deeply problematic figure in many ways, but he has become part of a conversation that is worth having.

Posted by: CHS | May 5, 2012 11:49:41 AM

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