Just when you thought it was safe to post a comment again, the debate over the closed comments at the CCR Symposium reignited.  Paul Horwitz revisited his Uneasy Feeling post over at PrawfsBlawg in order to address some of the backflap received on his original post.

Though couched in benign terms, and with the requisite caveat that he’s not saying it applies to this situation, Horwitz states:

At times, legal bloggers will suggest, gently or otherwise, in “confidential” back channel communications that one ought not criticize one’s fellow law-bloggers in public.  The reasons for this range from professional courtesy, to politeness, to the occasional veiled threat of professional consequences.  These arguments strike me as unpersuasive, and in some cases counter-productive; I assume that any half-way virtuous scholar, if she is told not to write about something, will put that topic at the top of her agenda.

Though he refers to “legal bloggers,” he means law professor bloggers.  These are the double-secret rules that frame the way that some lawprofs expect of their own, and on their blogs.  Horwitz was attempting to make clear that he’s not telling others what to do (as he was accused of doing by those who asserted the right to chose to close comments), but that he’s entitled to express his view on his blog about the impact of another blog’s choice.  His view was the closing comments produced a weaker format and allowed argument by fiat that defied peer scrutiny.  That was his view, and he’s sticking to it.

And just as Horwitz felt the need to address the reactions to his uneasy feeling, so too did Dan Solove, one of the proprietors of Concurring Opinions.  In a comment to Horwitz’s post (note irony), Solove let loose:

Regarding your comments about law professor bloggers not wanting criticizing other law professor bloggers, I have no problem with strong disagreement. I welcome vigorous disagreement, and I think many do as well. What I find particularly unproductive are commenters who make rude and insulting remarks, who believe that everybody who disagrees with them is stupid or fascist or malevolent.

And it gets stronger:

This whole discussion makes me feel like an old curmudgeon defending manners. I cling to a perhaps outmoded belief in thoughtful reasoned discourse, with people disagreeing yet treating each other with respect. How old fashioned of me! Maybe I should join the club — “Paul, you’re an idiot! Your views are moronic! Despite the fact you allow me to comment here, your entire blog is anti-free speech and you and all your co-bloggers are just dumb. [Insert crass generalization about law professors here.] Don’t you dare delete or ignore me, or else you are close-minded and not willing to engage with those who disagree with you. So there, you buffoon!”

Both barrels ablazing, Dan made his point.  First, let me note that the curmudgeon reference is assumed to be Dan’s application for admission into the club.  It’s taken under advisement, though this is a particularly good showing. 

More to the point, however, is that Solove found the tone and manner of discussion unacceptable.  But what I saw, as opposed to what Dan saw, was entirely different.  I assume, for the sake of discussion here, that the unspoken distinction is in the way in which lawprofs express their views as opposed to the way non-lawprofs handle things.  For purposes of this discussion, I’m going to adopt Randazza as a non-lawprof, since he has issues with playing the lawprof game.

This has been a huge problem for me, personally, since I began blawging.  I find many things posted at the lawprofs’ blogs interesting, and some downright fascinating.  They taught me much and made me think.  These are some very smart and interesting people, and their posts have added enormously to my understanding of the law.

The problem is that I don’t express myself the way they do.  I can’t even conceive of doing so.  It’s just not in me.  I’m using myself as the example not because I’m necessarily the norm, but to avoid impugning anyone else in the process.

I don’t mean to be rude or offensive.  Perhaps it’s because, as a trial lawyer, I express myself in a clear, strong manner.  Perhaps it’s because I personally enjoy humor and think that a bit of snarkiness is funny, but I can occasionally be sarcastic.  I don’t use academic jargon because (1) I don’t know it, (2) others who read what I write won’t have a clue what I’m talking about, and (3) I find it obfuscates the point more than clarifies it. 

I admit that I indulge in “crass generalizations” about law professors.  With regularity.  But then, they are so often proven true that it’s hard to avoid.  Let’s be honest about this, there are some things that are pervasive amongst the lawprof bloggers (note that it doesn’t mean that the shoe fits every lawprof, or that it’s even a smear), and by chiding lawprofs I hope to make a point.  Some of the bigger issues:

• Use of jargon when your ideas can be expressed in clear language
  
• Constant equivocation, as if disagreement is an inherent evil, and the requisite exculpatory clause
  
• The need to preface even the mildest disagreement with a compliment, no matter how insincere, thereby confusing rendering it difficult, if not impossible, to ascertain the point
  
• Over sensitivity to any challenge

What’s ironic is that Dan Solove’s comment to Paul Horwitz’s post is harsh, yet entirely comprehensible.  Finally, we’ve got a clear idea of what the problem is.  We’re Philistines.  And we are, indeed, Philistines in the secular world of law professors. Oops, there I go again, making a crass generalization.  I just can’t stop myself.

But I also think that I’ve come to appreciate something about Dan’s perspective.  Within the Academy, there is (was?) a level of gentility and courtesy that framed discussion, including dispute, that would be lost if they modified communication to adopt the ways of us barbarians.  I can admire this, to some extent.  It’s expressive entropy, and Dan and others are fighting it.  They do not want their level of discussion to devolve to ours.  As a curmudgeon myself, I can well understand this.  Some of my complaints are likely designed as a barrier to entry to those they want to keep out, and they do their job well.

I realize now that the problem may well be mine, not the lawprofs.  I want to join in their conversation when I think it interesting, and they don’t want me there.  Perhaps it’s because my ideas are unworthy, or lack sufficient depth, or just aren’t that helpful to them.  Perhaps it’s just because I can’t express myself (or control myself) sufficiently to meet their sensibilities.  Or maybe they are angry with me because my snarky comments are offensive, and they just can’t take a joke?  Granted, I’ve been particularly harsh with some lawprofs, but then I believe that they deserve it.  In spades.  Being a lawprof doesn’t immunize someone who’s a total jerk.  Or maybe the law professors just don’t care whether trench lawyers participate, read or engage with them, and they are happier without us?

For as long as I’ve been blawging, I’ve enjoyed and appreciated the content of numerous lawprof blawgs.  This should be pretty clear from my posts linking to them, some of which are critical but most of which reflect my admiration of their efforts.  While some walls have been broken over this time, lawprofs and lawyers still live in two separate walled villages, and rarely find common ground.

I believe that trench lawyers, vulgar though we are, have tried to embrace and engage with the law professors.  I believe that most law professors refuse to slum with the trench lawyers.  I believe that this has made both of us poorer.

I think Dan’s description of how we behave is a bit exaggerated, and although we tend to use words that most law professors would never type out, they are not pure invective and reflect ideas that are worthy of consideration no matter how ugly they are phrased.  But I do realize that our “forthright” language can go over the top, even if we think it accurate. 

Can we find no common ground? 

Update:  Aside from Randazza, the silence is deafening. I know from my stats that at least some folks from the referenced law professor blawgs have stopped by to read this post, but nary a word from them.  Is that the answer to my question?

Lest anyone suggest it, obviously no one is required to respond, and I have no plans for injunctive relief.  But it was a serious question and I had hoped for a serious response.  This is about that dialogue thing that we’re always talking about, with me hoping that we can clear up the hard feelings between branches of the blawgosphere to engender greater communication for everyone.

I suspect that someone might have responded, but for Randazza’s comments that still have his “bite”, and the fear that any response would devolve to Dan Solove’s worst nightmare.  No one wants to be subject to attack, or walk into an ambush.  But then, any fear of what could happen in my comments could be averted by a post on your own blawg (with comments open or closed as you think best) where there is a measure of protection in a more secure environment.  This can still be done.  I hope it’s considered.