The days when a father gave his offspring his first penknife to carry as a tool that will serve her well in life in so many ways are gone.  Today, the carried penknife would be the surest route to the penitentiary, for no other reason than its mere possession as a terrorist threat.  Were we all potential terrorists, but didn’t know it?  It doesn’t matter. That’s the rule now.

But the Garden State, in knee-jerk and premature reaction to the suicide of Tyler Clementi, passed a law. What use is a tragic death without a new law?  From the New York Times :

The law, known as the Anti-Bullying Bill of Rights, is considered the toughest legislation against bullying in the nation. Propelled by public outcry over the suicide of a Rutgers University freshman, Tyler Clementi, nearly a year ago, it demands that all public schools adopt comprehensive antibullying policies (there are 18 pages of “required components”), increase staff training and adhere to tight deadlines for reporting episodes.

Each school must designate an antibullying specialist to investigate complaints; each district must, in turn, have an antibullying coordinator; and the State Education Department will evaluate every effort, posting grades on its Web site. Superintendents said that educators who failed to comply could lose their licenses.

Schools are now requires to investigate allegations of bullying, even anonymous claims coming through the police-operated “crimestoppers” phone lines.  Not surprisingly, the definition, beyond the obvious, is broad:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school sponsored function, on a school bus, or off school grounds as provided for in section 16 of P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students; or

c. creates a hostile educational environment for the student by interfering with a student’s education

In other words, anything that hurts anyone else’s feelings. This isn’t about the lunchline bully any more, but about the new world order where no mean words are ever uttered (or typed, as the case may be).

Caveat: For those who will respond in outrage that I just don’t get it, that they/they’re child has suffered horribly at the hands of bullies who destroyed their lives with invectives and lies, stop.  There is bullying, and bullying is bad.  Not every mean word is horrible bullying, and not every child who utters a mean word is a criminal who belongs on the bullying registry and should be given life in prison.

New Jersey has managed to find a way to criminalize every child.  Admit it or not, kids say mean things sometimes. They do it out of anger and insecurity; they do it because they’re children.  We did it. Our children did it. The teacher’s children did it. Tyler Clementi did it. We all do it.

But this law goes so far down the road that even an anonymous allegation will give rise to the demand for an investigation, at the risk of the teacher’s license and the district’s reputation.  You can bet your bottom dollar that no teacher is putting their career on the line for your li’l darling.  This has the potential to be rife for abuse, not to mention the loss of personal and class time spent in teaching children to “respect” each other and celebrate their differences (upon threat of imprisonment).

Don’t ask me to define what should constitute actionable bullying as opposed to normal child behavior, or bad behavior that was addressed on the school level by attentive and pro-active educators who exercised reasonable discretion in keeping their charges safe.  Granted, with the introduction of the internet into the mix, dealing with the school yard tough isn’t sufficient.  But distinguishing between conduct that presents a serious threat and conduct that every child, at one point or another, engages in defies legal definition.

What is clear is that defining crime by the way it makes the “victim” feel is a looming disaster.  By making “hurt feelings” the dividing line between acceptable and criminal behavior, we turn every child into a victim and every child into a perpetrator.  Sure, no parent believes her baby could do such a thing, but the kid not only can, but invariably will, do something that some other kid will feel is hurtful.  Just as it happens with adults.

This law, which is the toughest in the nation and may well serve as the model for “save the children” laws elsewhere (since no one wants to have a worse bullying problem than Jersey, of all places), may present one of the worst threats to children ever.  As it is applied, as schools are mandated to investigate and “prosecute” bully after bully, as anonymous “tips” are use to get, and get back at, any child who didn’t invite someone to their birthday party or picked them last in gym, we may end up with a state where every child is on the bullying registry.  Or in juvenile hall.  Or in jail. At least in trouble. How’s that going to look on their college application?

This is not a defense of conduct that physically harms children.  Nor is this a defense of harassment that crosses the line of hurt feelings to real harm, whatever that means.  This is a call to stop the headlong rush to make every child a criminal in a world where no one’s feelings are every hurt.  This is a call to remember the old adage, “sticks and stones can break your bones but words can never harm you.”  We need to toughen up to mean words.  We need to get over hurt feelings. We need to avoid the creation of a society where every child is a criminal.

This is a defense of children.  All of them. They’re all bullies at one time or another. And they’re all victims. But they are not all criminals.

The slide from “Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law” into the attack on Paul Campos’ was nearly seamless, not because it was smooth, but because segues are for kids.  Dave Hoffman at  Concurring Opinions writes:

Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility –  aporia  – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

As an example of the how Campos’ revelations have been seized by the Philistines, Hoffman goes on (with my added paragraph breaks to make readable):

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. 

Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education”  exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  

Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Machoblawgers?  There’s a nice ring to it.  Yet Dave contends that we, the Machoblawgers, may come off tough and manly, but wholly unpersuasive.  Persuasiveness, as asserted in Harvard Law Review, comes from the delicate, nuanced language of the effetes (his word, not mine, but I like it). 

Putting aside the resort to logical fallacies ranging from the weak ad hominems to the false dichotomy, and ignoring the blatant confirmation bias, Hoffman delivers the coup de grace:

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

We are not merely anti-intellectuals for our blunt and strong arguments, but Hoffman argues that we are ineffective.  To be a “better lawyer,” we should sound more like law professors. 

Missing from the analysis is a basic understanding of communication, that it consists not merely of sending but of receiving as well.  What we say is only as valuable as what others hear.  He would be absolutely correct in his assessment of persuasiveness if we were playing to the Academy, where the strain to mix in ten dollar words and such depth of nuance as to make every utterances indecipherable is what distinguishes the poseurs from the pretentious.  But we don’t live in that world.

There’s a reason why few outside the Academy read the “intellectual” lawprof blogs. No, it’s not just because they tend to be tedious and boring. It’s that they’re too difficult to understand.  Rather than say things like “I agree with this and disagree with that,” they can go on for paragraphs with such clue as “this is ‘notable,” but that is”curious.” Scholars write that way. The rest of us don’t.  And they wonder why law reviews have never gained widespread popularity.

Even here, where I use language that Dave considers brutish and vulgar, overly strong in making my point and lacking in the humility (meaning acknowledgement of the legitimacy of opposing arguments or points of view), a significant percentage of readers think I’m too subtle and nuanced, and feel the need to reduce my point to a far more simplistic and gross level.  One thing that lawyers learn in the real world is that we speak to a wide spectrum of folks, and it’s very difficult, if not impossible, to express things in a way that will work for everyone.

Communication. Making our point in a way that the listening/reader will understand and appreciate it, is something that comes not from argument, but experience.  We start learning at birth and development this experience every day of our lives.  We talk to others, from society’s lowest to its most powerful, and adapt our communication to suit our purpose.  As lawyers, we adapt to our clients, our judges, our juries.  Not too many juries consist exclusively of lawprofs.  There is the occasional effete juror, but since neither side plays to their sensibility, they can think we’re all brutes.

No one is persuasive talking a different language from their listeners.  While I’ve been critical of lawprofs’ refusal to lay down the big words and hiding behind the pedagogical jargon, if it makes them feel less anti-intellectual when chatting among themselves, that’s fine.  Many insular groups feel better about themselves by using their own secret lingo, which creates a sense that they’re special. 

When advocates argue a point, they do so for the purpose of prevailing in their position.  We argue to a trial judge differently than an mid-level appellate bench.  And often differently to a top level judge.  We often know who we are arguing to, where they came from and the nature of argument they find persuasive.  We know that some are biased against us from the outset, and we try to address that bias.  We research our audience to try to find a way to squeeze our arguments into their mindset.  We often knew them when they were younger, advocates just like us, and are aware of their intellectual proclivities.  Or lack thereof.  What they aren’t, and weren’t, were lawprofs, who used words like “normative.”  We know this.

As for blawgs, where Hoffman tries to apply the lessons from the Supreme Court and law review editorships, we aren’t writing to persuade the effete or bore the reader to absolute death by belaboring every point.  For the most part, we already know the counter-arguments, and they don’t have to be spelled out “in fairness.”  We are writing for our fellow groundlings, and sometimes trying to be informative and others times explanatory.  Sometimes, small shifts in understanding among those inclined to agree serve this purpose, though our own nuance is used differently than would scholars, who can’t see it because they lack the experienced gained in the trenches.

It’s not that I don’t appreciate the sometimes interesting ideas raised by lawprofs who are doing much of the heavy-lifting when it comes to new ideas about the law.  Every once in a while they come up with something truly insightful and novel, and I suffer the naive and leaden posts to find those rare nuggets.  It’s just that I wish they would use real words and express clear thoughts so it wouldn’t be so brutally difficult to read their posts to figure out whether they have anything worthwhile to say.  I can live with being a brute to their effete, if only they would engage in some occasional “intellectual” noblesse oblige for the benefit of the manly.