Chances are that more experienced lawprofs would cringe reading the comments to Marc DiGirolami’s post at PrawfsBlawg. They would never admit it publicly, as no one circles the wagons faster than scholars, who hate the barbarians questioning their utility, but most are pretty smart guys who get it. Some, sadly, aren’t quite as smart. And some are thick as a brick.
Meet Marc DiGirolami, a law professor at St. John’s Law School. After reading a relatively benign post directed toward nipping at the edges of David Segal’s New York Times article castigating law schools for their failure to do everything from teach students to be lawyers to make a decent cup of joe, it struck me that DiGirolami’s post served to inadvertently bolster one of Segal’s more potent criticisms, that legal scholarship was useless and irrelevant.
Others in the Academy continue to dispute this allegation. Duke Law Dean David Levi tried to salvage the sullied reputation by offering a letter to the Times, which it ignored. Instead, it’s posted at Balkanization.
Just as law practice has changed, so have the law schools. The law school of today is not the law school of The Paper Chase or of Christopher Langdell. But some things have not changed, and we should be glad of it. The faculties of the top schools include leading scholars whose work engages with some of the most important legal problems facing the country and the world, from human rights to regulation of the financial markets, from constitutional interpretation to corporate criminal liability.
Sweet words, but empty. Show me, don’t tell me. DiGirolami, a sensitive soul, disputes Segal’s claim that teaching the common law of crime was worthless by writing about New York’s “depraved indifference” standard. A good subject to make the point, but one that would have been really worth the murder of words had it addressed the cutting edge issues of whether deaths resulting from drunk driving (such as in the Heidegen or Valencia cases), where Nassau County prosecutor Kathleen Rice bootstrapped depraved indifference to charge second degree murder, a monumental departure from the historic manslaughter charge. Huge issue. Huge opportunity. And one that actually matters in real time.
I raised the notion in the comments to Marc, that he could have taken that same post — written for the purpose of smacking Segal and challenging his attack on the legal academy — and shown how Segal was wrong. Instead, he squandered the opportunity on some uncontroversial examples. It wasn’t the his post, or his examples, was bad. Just not useful. And that was one of Segal’s critical complaints.
Naturally, DiGirolami murdered words to deny and obfuscate the point. If there is one thing lawprofs seem incapable of doing, it’s accepting that they might have done better. If there’s another thing lawprofs seem incapable of doing, it’s not hiding behind their jargon and their strawman. And if there’s a third thing lawprofs seem incapable of doing, it’s realizing that they’re not only unpersuasive, but at the bottom of their self-dug hole covered in dirt.
Marc apparently figured out that his efforts to hide wasn’t going well, so he tried to spin it into some silly yarn that wouldn’t make him look too thick, and then closed the comments before anybody could tell him that his arguments made his butt look big. In all likelihood, this discussion would have remained in the comment to his post had they remained open. Since they didn’t, I’m left with no place else to go to make a point that needs making.
There’s a weird thing that can sometimes happen with blog comments, that while you’re writing one, someone else also writes on and it sneaks in a few seconds before yours, but you don’t know it’s there until it’s too late.
Ten seconds over a minute before Marc posted his final comment and shut ’em down so he wouldn’t have to cry anymore, a commenter named Brad wrote this:
I don’t see what’s the big deal with Heidegen. The Appeals Court found that the jury could reasonably have concluded that the defendant knew he was driving the wrong way. If so, it matches perfectly with the classic DIRM situation of riding a horse into a crowd. Even if you think the jury, the trial court and the appeals court all got that issue wrong, it is a highly fact specific question and thus not terribly interesting to the development of the law.
Furthermore, it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail. First do no harm and all that.
Aside from the complete misapprehension about the Hedegen decision, and fundamental ignorance about the depraved indifference standard, enough so that it would make most law students shake their head in disgust, this comment brought a new, and certainly more challenging issue into the mix. While Brad didn’t see fit to leave a surname or link, it may well be that he’s a lawprof somewhere. I certainly hope so, as any practicing lawyer who would leave such a comment should be shot.
But the second paragraph of the comment may be worthy of a place of honor on the all-time most outrageously offensive, mind-boggingly stupid things ever said on a law blog. I did a double take. Was it possible, at all possible, that someone is so fundamentally ignorant as to say such a thing? Well, clearly so.
Now it seems pretty obvious that Marc was busy writing his final attempt to salvage his tattered dignity when Brad’s comment posted, so I assume that he didn’t know of it at the time he slammed the comments shut. While Marc’s practice experience is a bit thin, he did serve as an assistant prosecutor for two whole years, one of which was as a “special prosecutor.” I’m sure he was quite special. It was in Massachusetts, so he may not have had much reason to concern himself with New York’s depraved indifference law.
Still, as a prosecutor and a scholar, he should have had some basic familiarity with criminal law that would have compelled him to address the notion that “it is very weird to see someone being chastised for *not* attempting to help a killer get out of jail.”
Not a word. Not an utterance. The comments were closed and they would stay that way.
While my attempt to help Marc DiGirolami understand the difference between using scholarship for something useful fell on deaf, and overwhelmingly defensive, ears, it came as no surprise given how academics have such a hard time admitting fault. But that he ignored this flagrantly idiotic and outrageous statement cannot be so easily excused.
Marc DiGirolami teaches criminal law to students at St. John’s Law School. If he lacks either the brains or balls to challenge the stupidity in Brad’s comment, he has no business teaching anything to anyone. Our next generation of criminal lawyers, whether prosecution or defense, deserve better.