Sunday, July 19, 2009

Anonymous postings are the last vestiges of cowards.

After reading the latest barrage of comments over at Wild Wild West's post about late grades (here), which managed to get picked up by the Wall Street Journal's law blog (here), I have to confess that I'm stunned that so many people feel compelled to post vitriol anonymously. Based on the tenor of their comments, I'm going to assume that the bulk of the anonymous posts were written by law students.

Even on the theory that law students often don't make the connection that they're actually going to be lawyers after they graduate and pass the bar, surely they realize that they'll have to sign letters and pleadings with their names as lawyers and that they won't be able to hide behind "Anonymous" sobriquets then? So why do they--as well as so many others--hide behind anonymous postings on blogs?

I doubt that most of them have a true fear of retribution. There are people in the world who can fear retribution: those who suffer abuse in relationships; those who are here seeking asylum from other governments; those on the wrong end of power imbalances with very nasty bosses. Those reasons are good ones for seeking anonymity. Lobbing nastygrams, especially without investigating the reasons that may have caused the complained-about situation in the first place? Not a good reason.

To you budding lawyers out there who are writing anonymous comments on the Wild Wild Law post above: maybe you should be anonymous. Were I to write some of what you've written, I'd be ashamed, too. When you become lawyers, though, you'll have to stop behaving so childishly. I'd be a lot more impressed with you if you'd have the courage of your convictions and sign your name to your comments. I have.

16 comments:

Legal Eagle said...

Professor Rapoport, while you may be disappointed in the nature of the comments shared by anonymous posters on WWL, I disagree with your premise that anonymous posting is only for cowards or that anonymous posting does not have benefits for the general reading public.

Behind a shrouded identity, posters can reveal information that they would otherwise not share due to fears about career and interpersonal relationships. The legal community is notoriously protective of itself. The legal business is a self-regulated industry, relying on its members to protect the general public from the worst aspects of legal practice. However, many attorneys in Las Vegas refrain from criticism or ethical reporting of their colleagues believing that some of the most unethical practitioners of law in Nevada are also the most powerful.

For this reason, attorneys, judges and other members of the legal community rarely share information about the worst practitioners and unethical community members. They choose not to inform on their colleagues, bosses, professors and judges for fear that speaking out about the darker aspects of legal practice will bring retribution. For this reason, the need for anonymous comment has been recognized by the Nevada Bar Association, which provides a telephone number for members to anonymously report unethical conduct by Nevada attorneys.

Legal Eagle said...

As you have pointed out, this retribution will not likely take the form of imprisonment or violence. However, there are very real consequences for whistleblowers and industry critics who choose to speak out about unethical practices. Outside of the legal community, there are numerous examples of professional retribution for those who speak out against the worst aspects of their community. In the so-called Medical Mafia case, the Nevada doctors who have testified against the alleged corrupt practices of Nevada Plaintiff's attorneys and medical consultants like Noel Gage has suffered financially and professional for their attempt to clean up the Las Vegas medical community.

As for law students posting anonymously, they have much to fear in an academic system that is based on fierce competition and professional recommendations. This week, several anonymous posters at the WWL blog criticized the Boyd law school administration for protecting a professor against the outrages of first year students who have been placed at a competitive disadvantage to their colleagues due to a professor’s failure to turn in grades. If those posters are indeed Boyd students and were to openly criticize members of the faculty, it is likely the faculty and administration would develop a bias against the commenting students. This bias would lead the professors and administration to be less likely to choose the students for classes, teams, projects or recommendations that can make or break a students career in the legal community (at least during the crucial first few years when grades and law journal determine which students many law firms will and won't hire).

In law school, the students stand in awe of their professors as keepers of the law. Faced with the choice of whether to publicly criticize the gatekeepers to their professional career, many law students would remain silent. Whether a professor’s failure to timely turn in grades is as important an issue as some commentators have made it is a debatable issue. (The editors of WWL have no opinion other than the story is newsworthy when a gatekeeper to a profession based on timely filing of documents can’t fulfill his or her professional grading responsibilities and reportedly faces no consequence for that failure). However, we think you sell the free speech value of anonymous posting and anonymous blogs short when you refer to anonymous posters as nothing but “cowards”. Some topics and discussions are so controversial that mere discussion of them can bring ruin down upon the author. Many of the founding fathers knew this and engaged in anonymous debate of the principles that would make up the U.S. Constitution in their publishing of the Federalist Papers. Anonymous posting and commenting in the blog age may have taken on a more juvenile tone, but the value of anonymous comment has been proven time and time again. The power of remaining behind the curtain can lead some to act upon their worst instincts—name calling and unsupported attacks—however, the possibility of sharing powerful secrets with the world without destroying oneself can also appeal a profession’s better angels and shine a spotlight on aspects of an self-regulated industry that should be rooted out for the sake of the general public.

Nancy Rapoport said...

Thanks, Legal Eagle. I think it's a sad world when lawyers fear retribution and must rely on anonymous reporting of unethical comments. As for students fearing my colleagues at Boyd, I'm really surprised--I don't see most of my colleagues as being that small-minded as to mind criticism and to penalize students for it (as long as the criticism was done in a professional--not childish--manner). I've been criticized publicly many times, excoriated more than a few. Only when I believed that a student behaved irresponsibly did I hold it against that student. I don't think that I have a lock on the right way of doing anything, so sometimes criticisms have given me good ideas and caused me to change the way I've done something.

But I would far rather take criticism from someone who was willing to face me directly than from someone who disguised his identity. I go back to my original premise. Good lawyers have to sign brave pleadings and send brave letters, and they don't get to do so under the "anonymous" tag. My guess is that more people fear retribution than should fear it.

UNLV 3L said...

Prof. Rapoport,

You may not consider your colleagues to be petty and small-minded, and because you are familiar with them, you may be right. However, most law students won't have anywhere near your familiarity with the faculty. Given the students' limited knowledge, consider the cost-benefit analysis for any given anonymous poster:

On the one hand, by posting their name, they gain some amount of credibility for their statements. Ultimately, though, their statement is an unimportant comment about an unimportant topic. They may gain some name recognition from future colleagues, who just might remember their name.

On the other hand, because a student is operating under limited information about the faculty's willingness to be criticized, a student who discards his or her anonymity takes a risk that a professor will see the posting and take it out against the student. The extent of the risk is unknown, but it exists.

Unlike your comparison to attorneys, law students and law professors have a substantially unequal relationship. One side holds the keys to the kingdom. On side can make class discussion very, very uncomfortable. [By contrast, every professor's syllabus that I've seen reserves the right to eject a student for actively disrupting the class.]

So the benefit is very, very, small, while the risk of adverse consequences is unknown, but potentially grave.

As an attorney, though, the risk is known. No matter how strongly worded the pleading, as long as you can base it on a reasonable interpretation of the facts, you are on safe ground. The other side may be furious, and you may damage a professional relationship, but you will still be an attorney.

Think of it as the difference between a batter insulting a pitcher, and a runner doing the same. Sure, the pitcher can try to get them both out as retribution. But only one of them runs the risk of getting a fastball in their ear.

Legally UnBound said...

I have been a proponent of anonymity for years, especially on the web and in the legal arena in Las Vegas. It is good to see LE standing up for WWL and the anonymous users. While all your points are well thought out and correct, LE, you most accurately pinpoint the Las Vegas legal arena when you state:

"...many attorneys in Las Vegas refrain from criticism or ethical reporting of their colleagues believing that some of the most unethical practitioners of law in Nevada are also the most powerful."

Many of the most unethical attorneys & judges ARE the most powerful. This is true. It is not conspiracy theory talk, it is not fear mongering. It is an undesirable reality.

Nancy, your logic is really outgunned here, though you are certainly entitled to your opinions. There are other law blawgs out there that have commented on this in greater detail. Even when a well known legal blawger was recently "outed" by another blawger that wanted revenge, the Outer, later apologized and recognized the err of his ways. (See www.popehat.com)

Anonymous Posters are NOT Cowards. They are either lazy, or they are smart enough to recognize that the potential for retribution is too high to use their real name. Anonymity is woven into the foundation of our country. Many of the founding fathers were anonymous, until the outbreak of the revolutionary war. Once they knew they had power in numbers, they were willing to sign their name to their arguments.

Of course, you are correct in noting the cowardice of the one-line insults and the juvenile hacks. You are also correct in noting that as an attorney, you don't have the luxury of being anonymous. However, as an attorney, you also have the choice of whether to take a case or not, whether to alter your degree of aggressiveness and whether to contribute to a judge's campaign. Those attorneys that do seek change by voicing their opinions of unethical norms or backdoor dealings, pay dearly in reputation and retribution if they don't have any clout in the community.

So, yes, Blawgs are one of the few places we can voice our true & honest thoughts without consequence. The majority of us are not blithering idiots. We are law students, legal secretaries, paralegals, associates, and long time partners. Even some law professors leave the comfort of their theoretical Blawgs to engage us, such as yourself (which greatly enriches us both). If we are to enter into well-reasoned, inflamatory discussion for improvment & change, our honesty demands our anonymity.

As I mentioned in my post on WWL on this topic, law students are well taught in anonymity with testing by #.

For other well reasoned discussion on anonymity of blawgers, go to www.popehat.com & www.legallyunbound.com. Search topics anonymous or anonymity.

California lawyer said...

"I doubt that most of them have a true fear of retribution."

Well, now, this presumption *must* be incorrect, though, musn't it? Why else would someone post anonymously? If one had no fear of retribution whatsoever, logically speaking, one wouldn't bother hiding his or her identity (unless, perhaps, it were a question of sheer laziness -- not wanting to take the few seconds it takes to write one's name into a comment box -- unlikely given the author has clearly gone to the effort of commenting in the first place). Now, whether such fear is justified or rational is another question. But, clearly, at least some anonymous commenters MUST remain anonymous out of some sort of fear of *some* form of retribution, be it from a professor, colleague, classmate, employer, etc.

Further, although your point about nastygrams and the like is well taken, bear in mind that your larger premise comes from a place of significant privilege. You, I take it, are tenured. The entire point of academic freedom and tenure are the ability to speak one's mind without fear of retribution. Indeed, the very existence of tenure itself implies there is some pre-existing *need* to protect people from retribution. Tenure only exists because it adds value -- in other words, we can infer from tenure's existence that the state of the world without it (that is, the state of the world as the vast majority of the world experiences it, given the very very small number of professions and positions in which one can obtain tenure) is one in which speaking one's mind in fact has very real and sometimes dire consequences.

To put it bluntly, it strikes me as conveniently easy for you, as a tenured professor, to sit in judgment on those of us whose superiors are not as forgiving as yours. You might bear this in mind when criticizing others' (perhaps more justified than you previously thought) fear of speaking out publicly.

Nancy Rapoport said...

I really enjoyed UNLV 3L's post and thought it exceptionally well-reasoned. As for California Lawyer's post, sorry--nope. I was untenured once, and I spoke up when I needed too, then, as well. Yes, I was at a school where character and integrity was valued (Ohio State). I was surrounded by good people of character. But I was also raised by parents who taught me to stand by my convictions.

I recognize that there are power imbalances, as UNLV 3L said, and that some people don't want to risk everything by revealing their identities. But there are other ways to get one's point across if one is afraid. Anonymous comments on blogs--for the sake of this discussion, let's limit them to those of the vitriolic variety, rather than those of the whistleblowing variety--are, IMHO, just for people who want to take cheap shots without taking responsibility for their actions.

Need to be a whistleblower? Fine. That's another story. But piling on with nastiness but no willingness to take what you dish out? Don't tell me it's because you're afraid of retribution. Of course you are, as California Lawyer points out. And you should be. You're hiding behind someone else's apron.

Legally UnBound said...

Come on Nancy. It seems like we are all saying the same thing here. We would prefer not to have the "nastiness", but are willing to accept it in the name of free speech. The one-line insults are from boneheads or cowards, take your pick. You're right.

However, my parents taught me to stand up for what I believe in as well. Doing it anonymously because one does not desire to expose others to ridicule or disdain (e.g. spouse, children, partners) does not make one a coward. If you can't concede that point, maybe you could at least concede that you learned a bit of stubborness from your progenitors. True?

Certainly you don't think you are alone in that group of honorables simply because you use your real name in the cloud. If such is the case, I'll gladly sit in Ben Franklin's camp of anonymouse writers seeking to uncover bias and injustice, whether I'm amongst kind or rude folks.

P.S. I hope you didn't choose the UNLV 3L as the "well reasoned" comment because the other is from CA.

Matt Knepper said...

Hi Prof. Rapoport,

My name is Matt Knepper, and I was one of those unfortunates without a grade.

With respect to this matter, I e-mailed Dean White my frustration, and spoke with Dean Durant personally .

I enjoyed the class, and just days before the issue was first addressed by Dean White, I had e-mailed Prof. Henderson to find out if she would be teaching ConLaw II in the Spring: so I could plan accordingly. Frankly, even with the tardiness of the grades, I would have gladly taken her class again. While I have not heard back from her yet (understandably at this point), I would still consider the class. However, not without reservation.

Frankly, while I still remain very disappointed about the tardiness of the grades, my disappointment with administrative decision to move forward with the pass/fail option and nothing more weighs far more heavily.

We can do better.

Certainly, the Administration needs to move forward such that scholarships, law review and so on will not be left in dysfunction. Yet, why can't the grades upon being -- complete and available -- then be applied?

While this would not have an immediate and equitable administrative impact this year, it would give those who earned their grades (for better or worse) their due.

True: there can be no perfect answer to this issue.I get that. However, the approch upon which we have settled is incomplete to say the least. Still, those horrible words on Wild Wild blah blah were totally reprehensible, and I am sorry I read them. I am sorrier still that this has now become for national fodder.

Ulitimately, we deserve to be rewarded and respected for the efforts we made (or didn't make for that matter).

Respectfully,

Matt Knepper

Anonymous said...

Professor Rapoport,

I am a recent Boyd Graduate and I commonly post as "anonymous." I do so not because I am afraid of what I am saying, but because I want to voice my opinion, and have my opinion given the weight the reader feels that it deserves.

I feel as though people assign weight to comments, rather consciously, or unconsciously, based partly on who the speaker is. Whether they would lend the comment more weight or less, is of no concern. I don't want them to dismiss my claims because of my identity nor attribute my claims more weight without rationally thinking through them for themselves.

I understand that as a new lawyer I will have to sign my name to pleadings and stand by them....but at that point I am not expressing my opinion per se, I'm expressing the opinions of my clients

Anonymous said...

also, if you do not mind I would like to respond to Matt. I'm glad you enjoyed Professor Henderson, she was one of my favorite teachers because she cared for the school, and her students.

Although I feel bad for you guys having to receive incompletes, if I was in the administration, I would have done the same thing. A "pass" does not lower your gpa, mess with your chances of getting on law review, or anything else. The rankings have to come out. For one, many people's scholarships are based on rankings and FASFA needs to know how much the student will be receiving. Secondly, and possibly more importantly, as you prepare to do OCI, students need to know whether they are ranked to apply for certain jobs and/or buff up their resumes. They can't go back and give you a grade once they are graded because that would change people's rankings.

you paid for a class, and got exactly that....an education on a heavily tested area of the bar.

Every year has some sort of "unfairness to it" My 2L year they raised the curve. This means that when I compete for jobs against lower classman (lets say I clerk for a year), their grades may be higher than mine simply b/c the curve was raised. I can't explain that in an interview b/c then I sound like I whine too much. The year beneath me had their tutition doubled. Many people in that class signed up for a $10,000 a year school. Then suddenly they received notice that their tutition would be doubled. They switch to another school, they lose the contacts they built in vegas (doing externships and such)

all in all, if I was in your position I would like to see my grades, but more for curiosity and to see what I got marked down for.

Legally UnBound said...

@ 10:43 PM

Well thought out statement. We can't avoid prejudice. Often the higher minded one is, the more prejudice they have (whether intentional or not). It is just manifested in different areas. Thus, your posts as anonymous for the sake of equality is quite sensible. Even my persona created for anonymity generates certain bias. If I were to post as "anonymous" without my persona, that bias would be wiped clean. If I were to post with my real name, certainly many of you would take note and different bias would enter into the picture, positive & negative. Either way, you clearly demonstrate the value of anonymity in your post.

Nancy Rapoport said...

Well, I've definitely hit a nerve (or two or three) with my opinion about anonymous comments. Let's leave it as reasonable people disagreeing, at least when it comes to risking retribution (real, not imagined).

Yes, people take into account who's writing something when they read the person's comments. IMHO, they should. I read Thomas Sowell's editorials (which I usally love) very differently from Ann Coulter's (when I bother to read hers at all). People build reputations based on what they're willing to say--and stand behind. But again, I see your points and will agree to disagree, respectfully.

Matt, there are limited options that a law school can use when grades are very late. Schools can give the class pass/fail grades or can give each student his or her average from that semester. There are pros and cons for both approaches, and no one's completely satisfied with either approach. And there are a lot of good reasons that grades can be late, ranging from illness to accident to lost exams. (I once had a mini-panic when United lost my suitcase full of exams, but United later found the bag.) At some point, the school has to "call the ball" and figure out what to do about grades, because class rank has to get calculated.

I agree that the prof in question really, really cares about her students, and I'm glad that the feeling is reciprocated.

Anonymous said...

I have always thought Professor Rapoport was lovely as well as brilliant.

signed,

A.K.Howard

Nancy Rapoport said...

Dear A.K. Howard,

I'm blushing. Thanks! :)

Anonymous said...

Yes