Nov 19, 2021Liked by David Lat

I appreciate your even-handed coverage, and I've just subscribed primarily for that reason. There is far too much one-sided commentary out there (e.g. Sibarium, who did the important work of surfacing these stories but has often lacked nuance). I appreciate you for presenting balanced commentary and not falling into that trap. With that said, I also subscribed to leave this comment critiquing your equivocation here. I think this statement is in large part a defense of Cosgrove and Eldik (C&E hereafter) and their actions, and stronger criticism is warranted. This moment demanded accountability, and I think she's instead chosen to circle the wagons - for her own good, independent of the Law School's.

Gerken indeed explicitly apologizes - but *only* for the email that was sent out to the 2Ls, not nearly the greatest offense against Trent. We could also interpret Gerken as implying fault when she asserts that in the future, free-speakers will be alerted that they are not subject to disciplinary action. But let's also note that when Trent/Zack wouldn't apologize, C&E intimated reputational and professional consequences, not a referral to the complaint committee or minor offenses tribunal. I think Gerken is shying from imputing any fault to C&E here.

Instead, Gerken stated that C&E were "attempting to carry out their obligations under University policy whenever a discrimination complaint is filed." I'm glad you thought this was bad, but in light of the above, it's extra objectionable. She's excusing their actions, while simultaneously praising their motives and goals - defending them! When they were acting like thugs running a protection racket, on tape! I would be shocked (were it not for what I'll get to in a bit).

The above is what Gerken mentioned. What she *didn't* is also significant. Pre-written apologies, both for Trent and FedSoc. Maliciously deauthorizing a previously approved FedSoc retreat. Deleting portions of FedSoc's website, then lying about it until called out, then lying more about it. Much of their most brazen conduct is unaddressed here - what "obligations under University policy" did these actions fulfill? And what in the statement accounts for this campaign of harassment?

In the end, I think Gerken's statement is worse than a "missed opportunity." It's a conscious decision to reject accountability, written to *look* like a statement of accountability. It's not stale bread to be choked down with gritted teeth. It's a piece of cake laced with sedatives - sweet, but designed to distract and ultimately empty.

And let's also not forget: Gerken, Cosgrove, and Eldik are now the named defendants of a lawsuit, in their personal capacities. I didn't expect that to be mentioned in Gerken's statement, and it's not (what is there for her to say besides calling it a lie?). But that background has implications you didn't acknowledge, in that Gerken, Cosgrove, and Eldik have a powerful common interest.

To go a little further into speculation: suppose the allegations in that lawsuit are broadly true; I believe this to be likely. If so, is Gerken really going to throw C&E under the bus here? They may have emails showing that she approved of, even directed, some or all of their actions towards the two plaintiffs. They have *all* of each others' messages - from Dinnerpartygate, Traphousegate, Fedsocgate, Cokergate, and maybe more that never hit the presses. In the same spirit of reasonable self-preservation you cite in footnote 10, now is not the time for Gerken to turn on C&E, or for them to turn on her. Their fortunes - and more pertinently, their liabilities - are all bound together.

How to judge the truth of this speculation? Only with time. In your piece on the FedSoc intimidation, you predicted that Cosgrove and Eldik will lose their jobs. Based on my speculation, I counter-predict that at the beginning of next semester, both will have officially retained their positions, even if they are sidelined and kept out of public view. (Chloe Bush may be offered as sacrificial lamb.) Perhaps I'll be wrong, in which case I'll try to be less conspiratorial in the future. But if I'm right, I hope you'll consider injecting a little more cynicism into your own view.

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Nov 19, 2021Liked by David Lat

The “I can’t talk about personnel matters” statement does not explain the line between what can be discussed publicly and what cannot be discussed publicly. If an employee does something egregiously wrong is it ever permissible to speak about it or is it always a personnel matter that will not be discussed? Why is a personnel matter different than a student complaint about another student? It would seem appropriate to describe the process that is being used to handle this particular personnel matter.

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Nov 18, 2021Liked by David Lat

Heads should roll at OSA. Anything less is unserious. There should also be a similar investigation into and mea culpa on dinner party gate, though with the lawsuit I imagine this will be unlikely.

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My thoughts on this email (and the controversy) as an outsider:

(1) The Dean's email should not matter. What's important are the actions of Dean Gerken (and others). That being said, the email sounds, to me, forward looking, as it should be.

(2) "Free speech" is generally understood to authorize a wide range of speech including lies, fallacies, hate speech, and impoliteness. However, at YLS, and in any community of scholars, speech and other acts are presumed to be "in good faith". In other words, intentions matter, which should not come as a surprise to law students. So, it should be acceptable to discuss seriously, even some very disturbing and controversial ideas. But, it should be forbidden to put forward those same ideas with the aim of disparaging, triggering, or upsetting colleagues, or to create arguments that rely on fallacies and lies.

(3) "Good faith" also requires that we give serious consideration to the speech of colleagues, including the above presumption. In other words, it requires that we maintain an open mind so that we could, in principle, be convinced by a good argument. Law students should also be familiar with this -- it is what juries are supposed to do.

(4) When we encounter bad faith in an academic setting, then the social contract is broken. Repeated instances can condition us to presume bad faith, and we may then feel freed from that obligation of good faith ourselves. Trolling, with the aim of eliciting this reaction in adversaries, is particularly pernicious, and should be condemned.

(5) It is my understanding that these YLS controversies have resulted from instances that are plausibly bad faith, including trolling, together with a mistaken understanding of the role of free speech on campus.

David: I ask you to consider whether the unreasonable behavior of "the other side" that you have rightly condemned is exactly such a conditioned response to years of bad faith and trolling.

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deletedNov 18, 2021Liked by David Lat
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