Sticky Slopes Draft Posted

You can download the full text of the draft at my SSRN page. Below is the abstract:

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.

I'll be presenting this paper at the 2010 Law and Society Conference this May, in a panel entitled "Social Change in Unexpected Ways". The discussant is scheduled to be Gerald Rosenberg, Lecturer in Law and Associate Professor of Political Science at the University of Chicago, and author of The Hollow Hope: Can Courts Bring About Social Change? Any comments you have are greatly appreciated. And I might note, in blogging solidarity, that this paper originally was a blog post I wrote back in May of 2008.

The AK47 Motion and Anonymous Internet Speech

Jill at Feministe has made a post about the motion to quash a subpoena directed at AT&T filed by pseudonymous defendant "AK47" in the AutoAdmit litigation (the motion is available here).

Jill makes a good point about the identification issue. I don't find AK47's "I was just talking generally about Jills... not that Jill" to be very persuasive.

What I do find persuasive is the argument that the claims themselves -- at least with regard to AK47 -- lack any legal foundation.

I have no sympathy for AK47. If I take off my "uphold and defend the constitution" hat, I too want to see him outed and roughed up. But I can't remove that hat. Therefore, while I want to see him outed, I don't want to see it happen this way.

Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.

In fact, this very issue reared its head on the Feministe blog in the past.

Naturally, Zuzu's speech is hardly to be compared to AK47's speech. The first is intelligent and informative, yet her reasons for wishing to remain anonymous are similar to AK47's.

She wishes to avoid harassment for her views, which are not quite mainstream. I think that she should be proud of what she's wirtten, but that is legally irrelevant.

The latter (AK47) is just a little boy who thought that he could wear a klan hood and that would keep his identity secret.

Nevertheless, when it comes to free speech, we have to turn off our taste buds. Yes, that is quite difficult when we are looking at speech that turns our stomachs. Of course, I see evidence that Jill agrees:

I do have sympathy of the argument that people shouldn’t be outed for making anonymous comments on the internet. And of course I believe that free speech rights apply anonymously online as strongly as they apply in “real” life. Identifying anonymous internet commenters can have a real chilling effect, and I don’t think that people deserve to be outed simply for saying things that others don’t like — even if those things are sexist or racist or offensive.

But back to the main point -- is the underlying suit meritorious enough to validate a request to unmask an anonymous speaker? With regard to AK47's speech, I think not. That doesn't mean that the plaintiffs don't have a right to gripe -- I just see zero legal support for their claims. There are lots of nasty, mean, and brutish things that people do to each other, which have no legal remedy. This is one of them.

If the court disagrees, so be it. Then AK47 should be legally unmasked. But based on both parties' filings, I'm just not persuaded that the claims have any legal validity.

So what should be done?

Should AK47 "get away with it?" No, I'm not advocating that. I say "go get him!"

A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked.

Why doesn't Feministe offer a reward for the identities of some of the worst posters? The Feministe blog seems to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47's friends turn on him. Then you can splash his name from one end of the Internet to the other, and let society (and future employers) judge him for his speech.

That method would

1. not create bad precedent that could cause unintended consequences,
2. preserve the First Amendment, and
3. be a lot more fun.

Wouldn't opponents of this sort of speech rather see a character like AK47 betrayed by a friend than pried from under his rock by a court? Even if one is not motivated by constitutional concerns, isn't that method just so much more poetically satisfying?

Should Jill take my suggestion, I pledge $100 to start the fund.

David's J.L. & Cool Stuff (Vol. 4)

Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 Cardozo L. Rev. 97 (2007)

Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev 223 (2007)

Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell L. Rev 1261 (2006)

David's J.L. & Cool Stuff (Vol. 3)

It's been awhile, but thanks to Concurring Opinion's "law review table of contents" project, finding neat articles is easier than ever!

Dan Ortiz, Nice Legal Studies (draft paper).

Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?, 101 Nw. U. L. Rev. 1759 (2007)

And of course....

David Schraub, When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, 5 Dartmouth L. Rev. 145 (2007) [note the pagination is wrong in the PDF].

***

Volume Two

Volume One

The Id, The Ego, and Equal Protection Symposium

The Connecticut Law Review is going to host a symposium on the 20th anniversary of Charles Lawrence III's influential article, The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism, published in 1987 by the Stanford Law Review. It's a great article, and the cast of the symposium looks pretty high caliber as well.

November 2nd, 2007--should be good.

I'm #9!

According to SSRN download statistics for the past two months (May 11th to July 10th), my article is ranked #9 in downloads among all articles in the Law & Society: Public Law section. It reached that lofty position with 58 downloads.

The article, in case you've forgotten, is entitled When Separation Doesn't Work: The Religion Clauses as Anti-Subordination Principles, and it is forthcoming soon in the Dartmouth Law Journal. Thanks to everybody who has read and commented on it.

The Motive and The Message

Over at my home base, I give some thoughts on the proposed hate crimes bill moving through Congress.

It's A Start

It certainly doesn't compare to some of the fancy-schmancy venues of my illustrious co-bloggers. But it's a start, and for an undergrad, it ain't bad.

I'm pleased to announce that my article, "When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles," will be published in the upcoming Spring 2007 edition of the Dartmouth Law Journal. Here's the abstract:

Since the Warren Court era, strict separation between church and state has been the hallmark of liberal religion clause jurisprudence. Separation between church and state has been understood to protect minority religions from majoritarian oppression, preventing dominant religious faiths from using the state apparatus to instill an official orthodoxy or creed. Minority faiths, cognizant of these risks, have thus dutifully supported strict separationism as their preferred legal principle.

Yet strict separation may not be to the optimal benefit for religious minorities. Using the experience of Jews in America, I take a critical view of the separation of church and state, showing how both in theory and in practice it takes inadequate account of religious difference and thus is intrinsically biased in favor of dominant religious paradigms (Christianity or secularism). At the same time, separationism is indifferent or even hostile to the particularistic needs of less prominent sects. I then use these observations to construct a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. This principle, inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate an establishment and free exercise perspective that sees as its goal the equalization of status between majority and minority faiths in America.

You can download a draft copy here at SSRN.

E-Scholarship

Peggy McGuiness excerpts from an interesting speech by Nancy Rogers, chair of the AALS and Dean of the Ohio State Law School (Moritz). It's a good read for anyone interested at the next stage of interaction between blogging and scholarship in the legal academy.

The First CLS President?

What does President Bush's legal....creativity imply about the Critical Legal Studies movement?