Should we train law students never to complain anonymously?

I read an article today that featured allegations of discrimination against a professor. (I also have left a comment after that article, but it has not yet appeared.) I read a lot of those types of articles, most recently this one. I read these types of articles in part because I am aware of the power imbalance between faculty and students and in part because I have known some of the professors in question. Some are law professors, and the one who was the subject of today’s article is a co-author of mine. I’ve been focusing on this topic lately because I’m writing an article about law students and social media for an upcoming symposium. That article will now include something about law students and anonymous complaints.

I have no reason to doubt the sincere belief of the three anonymous law students that they were in a classroom with a professor who, to them, appeared to discriminate. We come into any social situation having been shaped by our own experiences, and I grew up in a place in which I was bullied (and occasionally physically assaulted) because of my religion. I know what scars that experience leaves.

I do have some reason to doubt the skill set of the reporters who appear only to have interviewed these three students and who may not have taken the separate step of asking other students in the course for their views. A simple “we’re writing a story that includes allegations about this course—does anyone want to speak to us?” would have been easy for these reporters to do. Maybe they did. Maybe they haven’t been burned by anonymous sources before and didn’t know that they could ask for more information from others. If they didn’t know that, then this article could be a learning opportunity for them.

But here’s the disconnect that I am facing: these are law students who are making these allegations about this law professor. In a few years, they will be lawyers. As lawyers, they will have to sign their names to their pleadings, their drafts of contracts, and any other work product that they do. They will appear in public on behalf of others, and they will have to announce their names as they represent their clients. They will be bound by ethics rules that include the obligations to be truthful to the court and to others, and to avoid making unmeritorious claims. Because they are lawyers, they likely will be asked to serve on non-profit boards, and they will have to voice their opinions, as board members, in front of their colleagues. (And as board members, they will have a fiduciary duty to speak up if they see the board going off the rails.)

How do we get people who are afraid to associate their names with their allegations to develop into lawyers who may be asked to argue in favor of controversial topics or to represent controversial people?

There’s a great scene in Season 2, Episode 5 of The West Wing (“And It’s Surely to Their Credit”), in which Sam Seaborn discovers that two of the staff have left a bouquet of dead roses with the word “BITCH” in the office of the newest lawyer in the General Counsel’s office because they didn’t appreciate her criticism of them.  Here’s the scene, which I can’t figure out how to indent as a quote:

Sam Seaborn: [Having discovered in Ainsley Hayes’[s] office a vase of dead flowers with the sign “bitch” attached to it. Sam realizes that White House Staffers Brookline and Joyce are responsible, and soon bursts into their office. White House Chief Counsel Lionel Tribbey enters behind Sam, unnoticed.]

Sam Seaborn: You know what, guys? When I write something, I sign my name. Here, I’ll show you. [grabs Joyce’s desk blotter, dashing everything on it to the floor]

Steve Joyce: SAM!

Sam Seaborn:  Do you have any idea how big a harassment suit you just exposed us to? She just… She works here. Which is more than I can say for either one of you.

[grabbing a pen, he quickly scrawls a message on the blotter as they watch. He holds it up for them to see]

Sam Seaborn: “You’re fired. S. Seaborn.”

[throws blotter down]

Mark Brookline: Sam, I don’t know who you think you are around here, but you can’t fire us.

Lionel Tribbey, White House Counsel: Ohhh… Yes. He can. Leave here, and don’t ever come back. It’s time for both of you to write your book now.

I love that scene (well, I love all of The West Wing, as well as anything else that Aaron Sorkin writes, but that’s a story for another day) because Sam makes the right point. Lawyers don’t do things anonymously. We sign our names. We may be afraid of repercussions when we do so, but we identify ourselves. Even the ethics rule (Model Rule 1.2(b)) that says that “[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities” doesn’t change the fact that our names are on those pleadings/drafts/emails.

So should we train law students that they should go on the record with their names when they have complaints about the law school in order to train them for the professional jobs that they will have? I think that we should. The three anonymous students in today’s article may sincerely fear retaliation. Law students in general now are more fearful, more anxious, and more depressed that I’ve seen in prior generations of law students, and I worry about them and their ability to thrive in a world that is nowhere near gentle. If they can’t speak up as themselves now, while they are students at a school that is trying hard to protect them from discrimination, will they be able to do their jobs as lawyers later?

These allegations are now part of this professor’s Google search, wherever he goes and whatever he does. This blog post is a way to link an alternative take on his story, and the comment that I tried to post (and which I hope eventually turns up) says, basically, that I know him, that these allegations don’t mesh with what I know of him, and that I wonder if the reporters spoke to any of the other students in the course. It also says that I hope that other students in the course will also speak up.

In my studies of corporate scandals, and in my various roles as a leader and as a manager, I’ve found that the most important question to ask is “but what if I’m wrong?” What if I’m wrong about the facts that someone is presenting to me? What if I don’t have the whole story? What if there is another side to the issue? That’s one of the reasons that, when I was an administrator, I always asked if we had all of the right people at the table when we had meetings. I never wanted to have only the people who thought the way that I did, or who were afraid to tell me when I was wrong. That is the whole point of diversity: to get the right people to the table so that we make better decisions because we’re hearing from others who see the world differently from the way that we do.

The best part of law school training is that we teach law students to ask questions—hard questions. For this particular article, these reporters didn’t ask all of the right questions. But they’re not law students. The three anonymous students are, and I hope that they are brave enough to push through their fear of retaliation when they become lawyers.

Like Sam Seaborn did, I always sign my name to my statements. And that’s why I’m speaking up now.

Update: as of 4 p.m. Pacific today (1/19/23, which is the date of the article in the student newspaper), neither my comment nor the comment of our other co-author has appeared on the newspaper’s website. Both of us have verified our emails, as the comment section requires us to do. (I’ll note that the comments section also requires a name to go along with the email.) We are both still waiting to see if and when our comments are posted.

Further update: as of 5 a.m. Pacific on 1/20/23, my comment is up, as is Veronica’s.

I’m officially “over” law reviews that are entirely student-run.

Let me start by saying that I have a cold and am thus crankier than usual.  And let me add that I am not “over” having students work as editors and as staffers on their law reviews.  Law review work trains students to read critically, to consider structure and tone, to look for valid supporting arguments, and to proofread obsessively–all good skills for great lawyers-to-be.  And peer-reviewed journals have dangers of their own.  (I was going to point my readers* to an online version of an exquisite article by one of my favorite authors–John D. Ayer, Aliens are Coming! Drain the Pool!, 88 Mich. L. Rev. 1584, 1587 n. 13 (1990)–but the Michigan Law Review hasn’t yet put that volume online.  Suffice it to say that Jack’s article does a great job of pointing out the pros and cons of peer-reviewed versus student-reviewed journals, and fn. 13 is a hoot.)

But I am on page 4 of a 33-page edit of one of my pieces by the editors of Well-Known Law Review.  (I don’t want to embarrass the editors here, even though I am irked beyond measure by their edits.)  Not only am I tempted to replicate footnotes 1 and 4 in The Common Law Origins of the Infield Fly Rule as a response to the editors’ numerous requests to add more footnotes, but I am also reminded that even the brightest and most mature of law students is not a subject-matter expert in any of the articles that his or her law review is publishing.  What would be the harm, except for the time commitment on the part of a professor, in having a professor review any proposed article (including my own articles, of course) to make sure that the proposed article isn’t bunk and review any proposed student edits before the edits get sent to the authors of accepted pieces?

I don’t want so much deference to my writing style that the editors miss any mistakes or errors of logic.  But there’s a reason that I’ve started putting clauses in my publication agreements that prohibit law review editors from changing my writing style.  Today’s experience with the proposed edits by Well Known Law Review has caused me to conclude that I need to be even more specific about what “changing my writing style” means.**

My bet is that a colleague professor could persuade student editors to be more judicious in their editorial suggestions.  All I can say is that I am now wholeheartedly sorry for any editorial comments that I made to authors while I was a law student, and that karma is a powerful thing.

And now, back to my review of those darn edits.


* Both of them.

** I would make an exception if the student editing my article were, for example, a former professor of English.  I don’t get the feeling that that’s the background of the person who sent me Well Known Law Review’s edits, though.