The odds are about 50-50, I’ll wager, that what used to be known as the
“Streisand Effect,” [
http://en.wikipedia.org/wiki/Striesand_effect ] within a
decade or even less will become widely known as the “Cooley Effect,”
after a cautionary tale involving Michigan’s Thomas M. Cooley Law
School.
That tale presently is unfolding, in a Lansing, Michigan court and now in the
media. The impending spectacle promises great entertainment value for lawyers and
non-lawyers alike, far beyond the borders of our state.
Why is Cooley Law School in court? Well, because a pseudonymous Internet
blogger, who attended Cooley (but, like many Cooley students, moved on to other
things), published some unflattering opinions about the school. The blogger,
identified only as “Rockstar05,” attracted a handful of comments, expressing
agreement, from other sympathetic pseudonymous posters. The content of what the
blogger actually said does not matter so much as the Cooley administration’s
amateur-hour reaction to the public expression of those opinions.
In its lawsuit, Cooley demands the usual remedies for which litigants
customarily pray in lawsuits – injunctive relief and money damages – as if some court
actually can put the shaving cream of free expression back in the can, at this point.
Setting aside the usual posturing, Cooley principally seeks to “out” the blogger,
and other Internet posters, presumably because revelation of their identities is viewed
as a potential vehicle to discredit opinions which, conveniently, happen to be
reproduced in Cooley’s own court filings, for the benefit of posterity. Whether the
outing strategy succeeds, or backfires, depends in part not only on whether Cooley
succeeds or fails in unmasking Rockstar05 (and Cooley stands a good chance to fail
at that venture), but also on what the blogger’s identity turns out to be, if revealed.
Without knowing in advance who the blogger is, it would seem that there’s at least
as much chance that revelation of his or her identity will increase sympathy for the
blogger’s message, as the likelihood that sympathy might decrease in any meaningful
way. Most likely, the identity information won’t matter much one way or the other,
at the end of the day, to the impact of the blogger’s message, even if revealed.
Perhaps, Cooley also is pursuing a “general deterrence” strategy, and hoping
that the prospect of further expensive litigation, against even more defendants, will
cut down on the future volume of “me, too” postings, by additional voices, supporting
the views of Rockstar05.
Perhaps. Or, alternatively, perhaps additional critics will instead emerge, who
are adept at using a somewhat more subtle and elegant choice of words, to deliver an
even more devastating critique. And who can rule out the prospect that large number
of new Rockstar05 supporters, both anonymous and self-identified, will elect to start
posting so many “me, too” messages, in a variety of fora, to make it pointless for
Cooley to hope to sue them all? It doesn’t take too much imagination, having seen
enough similar episodes play out on the Internet, to see where things are heading.
To be fair, this is not necessarily just about some random blogger. Cooley also
apparently has some concerns about a New York class action law firm, that has
started making inquiries about lining up prospective class representatives for potential
litigation against Cooley. Whether that litigation materializes, remains to be seen.
Now, in contrast to some others already in the debate (including the Cooley
administration, itself), I’m not particularly interested in deriding the academic quality
or educational value of any law school, or of offering any opinion on whether one of
them is better than any other. Personally, I count many Cooley graduates among my
valued friends and professional colleagues.
I will respectfully suggest, however, that “truth in admissions” standards ought
to apply broadly not only to all law schools, but to higher education, generally – in
much the same way that the 1933 Securities Act and state Blue-Sky laws regulate
prospectuses prepared for securities investors. After all, for many students,
borrowing tens or hundreds of thousands of dollars to go to college or graduate
school is one of the most important investments they ever will make in their lives.
Student loans, in June 2010, surpassed revolving credit (mostly credit cards)
in terms of the total amount borrowed. Many student loans are bundled in batches,
securitized, and sold off to investors, in ways similar to the preparation of the
mortgage-backed CDOs about which we’ve all heard so much in the news, lately.
That is not necessarily to say that securitized bundles of student loan obligations are
just the same as the investment vehicles that brought down Lehman Brothers and
nearly tanked AIG. But default rates on student loans certainly are growing. And while
that result may be alarming for investors, just think how borrowers whose
student debts are not dischargeable in bankruptcy, might view the situation.
Some people, but far too few, were asking the right questions about the housing
bubble, before it collapsed. Some critics, like PayPal co-founder and Silicon Valley
venture capitalist Peter Thiel, presently are sounding the alarm about their view that
higher education is the next bubble about to collapse. Only time will tell whether
today there are too many such critics, or too few.
Is it fair to compare institutions of higher education to subprime-focused
mortgage brokers such as Countrywide, or certain school administrators personally
to former Countrywide CEO Angelo Mozillo? Perhaps not, and even Rockstar05
does not appear to have ventured such a direct comparison. But the temptation to do
so may potentially become much greater, for a great many educational institutions in
many states, and for a great many of the people profiting off of these schools’
business operations, if Thiel’s (and many others’) predictions turn out to be correct.
I think it is fair for any prospective student, applying to law school, to expect
candid and accurate answers to all the following questions from each of the schools
to which they might apply:
• Of the students who borrow money to attend your institution, how many
of them actually graduate with degrees and secure law licenses? What
happens to those who do not, and what is the loan default rate over time
for such students?
• Of the graduating students who you report as having post-graduation
employment, how many of them actually have jobs lined up at the time
of graduation, to deliver legal services as lawyers? Within one month
after graduation? Six Months? One year? Two years?
• How many of the students who have graduated from your school, at the
one (1), five (5), and ten (10)-year marks, continue to work as legal
services professionals?
•What is the statistical compensation distribution, at the one (1), five (5),
and ten (10)-year marks (i.e., what does the 20th percentile take home,
the 50th, the 90th, 95th, and 99th), among graduates of your school who
work as legal services professionals?
• Compared with the number of graduates that you turned out between
seven (7) and fifteen (15) years ago, how many presently occupy high-
paying partnership positions at “top” law firms? How many actually are
highly-compensated for performing legal services using their law
degrees, whether or not in such a position?
• Of the students who borrowed more than half their tuition to attend your
school (as opposed to having the means to afford it some other way),
and who graduated between seven (7) and fifteen (15) years ago, how
many presently occupy high-paying partnership positions at “top” law
firms? How many actually are highly-compensated for performing
legal services using their law degree, whether or not in such a position?
• What correlation is there, if any, between high academic performance at
your school, and later occupying such a highly-compensated position?
What is the correlation between graduates who borrow little or no
money to afford to attend your school, and their later professional
compensation and overall gross income levels?
And the list could go on.
Not only do I respectfully suggest that such information ought to be available,
but that prominent disclosure of accurate, reliable, and candid information, would
have a variety of beneficial effects in the marketplace for legal education. If some
schools close as a result, I cannot say that would necessarily be a bad thing. I
understand that there’s unfulfilled demand for good engineers, these days, not only
in the engineering field, but also from investment banks.
Let’s all be honest: There is no shortage of lawyers or law students, but a glut
of them. The vast expansion in the number of seats to fill, at law schools collectively,
all over the country, has not been driven by any equivalent increase in the number of
paying clients requiring legal services, or in aggregate market demand for lawyers’
skills. It has been driven, instead, by a completely different kind of demand – not
entirely unlike the demand for American Idol audition slots. The demand driving the
proliferation of law schools (including Cooley campuses) is demand from students
and applicants (all of whom, when applying, envision themselves at the top of their
classes, and later, the top of the profession), for a shot at becoming a lawyer.
I’m not presently aware of any law school that actually is fully candid with
incoming and prospective students, about what school administrators know about
students’ in-school and post-graduation experiences with the field of law.
Cooley, of course, presents a particularly interesting case, but it is not
necessarily entirely unique. Among other notable public relations and admissions-
related information adventures by the Cooley administration, is their annual
publication for the last 12 years of “rankings,” purporting to compare Cooley
objectively with its competitors. Personally, I’m no fan of any “rankings,” generally,
but Cooley’s annual efforts to project a public image as a disinterested arbiter of what
law school rankings ought to be assigned, belong in a category of communication
previously occupied almost exclusively by Rupert Murdoch businesses and tobacco
companies. According to the 2010 “Cooley Rankings” published by Thomas E.
Brennan, the founder and former president of Cooley, and by Don LeDuc, Cooley’s
current President and Dean, schools like Yale, Georgetown, Columbia, Texas, and a
nearby law school in Ann Arbor, have nothing on Cooley. Rather, according to
Brennan and LeDuc, Cooley is number 2 in the country, right behind Harvard.
So, with those “fair and balanced” rankings in mind, no doubt it is galling to
Cooley’s administration that Rockstar05, after spending some time as a Cooley
student, would be somewhat less-than-enthusiastic about sharing the views of
Brennan and LeDuc, about the Cooley value proposition.
But the Georgetown and Michigan Law School graduates hired by Cooley, to
file Cooley’s lawsuit, are hardly the first or the only lawyers, to have a client walk
through their door upset about something published on the Internet.
I personally have advised such clients and prospective clients, from time to
time, over the years.
And I cannot remember ever offering the advice that such a client might be
better off in court, squaring off as Goliath against a blogger’s David.
There are far too many counter-examples. Don’t just ask Barbara Streisand,
but also Amsterdam-based energy company Trafigura, and a host of others, how their
lawsuits turned out.
Mere hyperbole is not enough, in the age of the Internet, for an idea (what
biologist Richard Dawkins would call a “meme”) to rise to prominence and “go
viral.” With rare exceptions involving spectacular new levels of excess – such as
columnist Dan Savage’s rebranding of the word “Santorum” – most extreme, pointed,
or even critical, rhetoric on the Internet is drowning is a sea of hyperbole – virtually
all of it remaining little-noticed and quickly forgotten. Rockstar05 certainly did not
say anything so noteworthy or special, that it might be viewed as likely to “go viral”
without Cooley’s own active intervention and assistance.
Failing to dignify Rockstar05 with any response at all, would have been a
perfectly legitimate strategy for Cooley to employ, to help keep Rockstar05’s
audience as small as possible. Some companies even have taken things a step further,
and sought the advice and help of Internet critics, to improve their products and
services –-and, ultimately, to improve customer satisfaction. There’s much to be said
in favor of a diplomatic, discrete, and conciliatory approach.
In contrast, there are four reasons why a lawsuit seeking to suppress Internet
speech such as the one Cooley filed, is likely to boomerang. And four reasons why
Cooley is likely already to have make itself the subject of another cautionary tale.
First, as mentioned above, no single factor seems to catapult an otherwise-
obscure meme on the Interent, into widespread prominence, than the initiation of a
lawsuit. Lawsuits often are filed to get someone’s attention, and they do. When the
Internet is involved, lawsuits tend to attract attention from far more people than just
the intended audience. This factor is particularly likely to kick in, when one of the
parties easily is identified as engaging in some kind of expressive activity, and the
other can be portrayed as filling the role of self-appointed censor. Audiences find this
narrative especially compelling, and the compelling narrative drives interest.
Second, the filing of the lawsuit, and other events that happen along the way
while the lawsuit progresses, tend to serve as a “hook” for news media. The mere
publication of some remarks by a random blogger, rarely is viewed as a newsworthy
event, and rarely triggers any secondary coverage. The filing of a lawsuit, or some
other court document, on the other hand, potentially can trigger the unintentional viral
multiplication of an Internet meme, and repeatedly has been observed to do so,
precisely because journalists have been trained to view such a “hook” as the very
thing that makes a story (or hundreds of stories, all over the Internet) possible.
This risk of information contagion is vastly increased when a bigger issue or
idea impacting a large number of people – such as, perhaps, the story that a “student
loan bubble” allegedly is on the verge of bursting – also just happens to be primed to
explode into the public consciousness. Media outlets constantly are on the lookout
for an illustrative example, to help explain a broader emerging phenomenon that
requires more and better coverage. Patent policy, for instance, is pretty dry as a
subject for audience consumption, but an anecdote about a lawsuit by Intellectual
Ventures, or a related company, can provide just the right additional ingredient, to
trigger both coverage and widespread audience interest.
No doubt, Cooley’s administration does not want their school to get caught up
in a hypothetical “student loan bubble” conflagration of unwelcome media coverage,
if or when that story ever takes off.
One way to reduce the risk of inclusion in such a firestorm of controversy, is
to exercise self-restraint, and not to throw off public-relations “sparks,” in an already-
combustible environment. People today do not remember the names of too many of
Mrs. O’Leary’s neighbors, whose methods of construction made the Great Chicago
Fire both possible, and difficult to contain. But we all certainly do remember,
generations later, whose cow allegedly kicked over the lantern that started it all.
And if the fire inevitably is going to start sooner or later, better to let someone
else’s cow kick over the lantern. Don’t let your lawyers be remembered for
generations due to their presence near the flash-point.
The third issue to be concerned about is the possibility that the initiation of a
lawsuit might just motivate additional commentators and actors to leave the sidelines,
and to enter the field of debate or action. Worst of all, for the target of negative
Internet comments, is the prospect that a lawsuit against a critic easily portrayed as
shrill or hyperbolic, to whom few would have been inclined to listen, might motivate
multiple, more moderate and more persuasive, voices to enter the debate, and to point
out that the blogger actually might just have a point that requires additional attention.
In this case, whatever views one may have about the particular words chosen
by Rockstar05 (and they do not actually appear to be especially shrill or hyperbolic,
at least compared with much of what passes for debate on the Internet today), the
underlying point about the value proposition of many institutions of higher education
(not just Cooley), appears to merit serious and thoughtful consideration. Moreover,
Cooley’s own transgressions in the marketplace of ideas (number 2 – really???),
simply cannot be overlooked. The antidote for bad information in the marketplace
of ideas is not the censorship of disfavored messages, but more and better speech in
rebuttal.
Finally, the fourth concern about litigation in this context, is the potential that
the wider audience might feel greater sympathy for the litigation target, than they
might in the absence of what is commonly viewed as an aggressive action by the
plaintiff. Particularly if the audience feel that their own access to information might
be in jeopardy (for instance, if they feel they have the right to know about injuries to
Abidjan residents, allegedly due to toxic waste disposal in the Ivory Coast, but a
lawsuit prevents the Guardian from delivering the news), then the audience will often
tend to feel sympathy for the defendant. In essence, it is much easier to dismiss
Rockstar05 as a crank (whether that characterization is justified or not), if you are not
on record as viewing his or her remarks so seriously that you are willing to pay to
have a lawsuit filed, in an effort to suppress his or her expression. In a very important
sense, the dramatic step of filing the lawsuit, tends to give the expression in question
more credibility, rather than discrediting it, precisely because the message is seen as
being taken so seriously.
I think it is fair to say that, by the time this entire episode concludes, the vast
majority of people who elect to say something about it, will be voices who joined the
debate precisely because Cooley filed its lawsuit, and who otherwise would have
ignored the controversy entirely. Some of those voices will turn out to deliver even
more effective critiques both of Cooley’s value to students/customers, and of its litigation
strategy, than Rockstar05 ever could have hoped to achieve all by himself
or herself. In short, this episode promises to become the classic and textbook
example of how litigating about an Internet critic is precisely the wrong strategy to
pursue, and much more likely than not to boomerang in a dramatic, memorable (and,
for many bystanders, entertaining) way. Thanks, Cooley, for teh lulz!
Copyright © 2011 Eric C. Grimm.
Some rights reserved.
Creative Commons BY-NC-SA License 3.0
Electronic Frontier Foundation Attorney (University of Michigan)
http://www.whcfirm.com/ourlawyers/ericgrimm.html
