A disturbing anecdote about how some in the legal academy treated Professor Chris Fairman when he wrote his serious law review article entitled “Fuck”

A reader of my recent posts could not be faulted if he or she concluded that I have it in for all law professors. That is not true. But if you read this long post, you will find a disturbing anecdote that should give the reader pause about the health of law teaching.

I have enormous respect for those who devote the themselves to teaching the law. If I have a complaint, it is that many law teachers ignore the legal profession and the judiciary. But for those who devote their scholarship to areas that make a difference to the legal profession and the judiciary, the legal academy provides a critical service. Let me mention a few professors for whom my respect is particularly high.

Nancy Gertner retired from the federal district court bench and now teaches at Harvard. Her insights are penetrating and deserve the attention of federal judges and practitioners if only because she is brilliant, has “been there and done that” and pulls no punches when it comes to legal realism and the federal courts.

My law school–the University of Nebraska College of Law–is the proud first home of Roscoe Pound and sports numerous professors whose committment to the practice is evident and very much in the spirit of Pound. Dean Susan Poser‘s scholarship and teaching regarding legal ethics provides one good example. Kevin Ruser, the M.S. Hevelone Professor of Law at the College, and Steve Schmidt (who I had the pleasure of teaching), Associate Professor of Law and Courtesy Associate Professor of Forensic Science, are responsible for the very high quality clinical side of legal education at the College.

A former DOJ trial lawyer, the legendary Professor Mike Fenner at the Creighton Law School has devoted his decades of acclaimed teaching and penetrating scholarship, on evidence and other federal matters, not only to his law students but to lawyers and federal judges alike. Same, same for Pat Borchers. He is a former law clerk to Justice Kennedy when the Justice was on the Ninth Circuit and, after that, Pat was a litigator of important cases in California. Pat, the former Dean of Creighton Law School, is now Professor of law and head of the Werner Institute on conflict resolution at Creighton. Among other things, Pat brings his subject matter expertise on the federal courts to that important new endeavor, an endeavor that is already having a huge impact on federal practice and the federal courts.

But the “superstar” when it comes to helping the federal bar and federal judges is Professor Doug Berman at Ohio State’s Michael E. Moritz College of Law. His blog entitled Sentencing Law and Policy has been the most important contribution a law professor has made to the federal courts in my lifetime. He singlehandedly took a new medium and turned it into an interactive teaching and information tool of incalculable value to solving the real world problems facing federal practitioners and federal judges.

I want to make clear that the reader should not assume that any of the professors cited above agree with anything I have written in this blog. I have cited these scholars as examples of professors I highly respect. They may think I am a jerk and an idiot. That said, let me next turn to turn to the precise point of the post.

Until now, I have believed that law school professors thought of themselves as a community of scholars engaged in the joint enterprise of seeking the truth. I assumed that there was a warm collegiality that fostered investigation into legal subjects that the rest of the world might ignore or find too disturbing to contemplate. I earnestly believed that among this community of scholars that there were no taboos. Intellectual honesty was the only requirement for the law professor and scholar. If the following anecdote is representative (and I fear that it is), my assumptions were dead wrong.

Like Doug Berman, Christopher M. Fairman teaches at Ohio State. He is a full professor–the Alumni Society Designated Professor of Law–and the Associate Dean for Faculty. He graduated Phi Beta Kappa from the University of Texas. After nine years as a high school history teacher in the public schools in Texas, he received his J.D., in 1994, with Honors, including Order of the Coif, from the University of Texas School of Law. Professor Fairman teaches Civil Procedure I and Legal Writing and Analyses to 1L students and Civil Procedure II, Professional Responsibility, and a seminar on ADR Ethics available to second- and third-year students.

Fairman knows his way around the state and federal courtrooms. He was law clerk to the Honorable J. Woodfin Jones, Texas Court of Appeals for the Third District, Austin, Texas (1994-95).  He was a law clerk to the Honorable Fortunato P. Benavides, United States Court of Appeals for the Fifth Circuit, Austin, Texas (1995-96). He was a litigation Associate at Weil, Gotshal & Manges LLP, Dallas, Texas (1996-2000).

According to his faculty page, “Professor Fairman’s scholarly interests can be easily summed up: Words matter.” Professor Fairman first book is entitled Fuck: Word Taboo and Protecting our First Amendment Liberties (Sourcebooks 2009). The book builds on his scholarship in taboo language found in his highly popular law review article, “Fuck,” 28 Cardozo Law Review 1171 (2007).*

Christopher M. Fairman Associate Dean for Faculty; Alumni Society Designated Professor of Law

Christopher M. Fairman
Alumni Society Designated Professor of Law and Associate Dean for Faculty

The reader will recall that I favorably cited Fairman’s law review article in an earlier post. In my view, that law review article was written by an accomplished legal scholar and former practitioner with a proper sense of the real world. After carefully analysing the historical, linguistic, etymological, legal, and other sources, Fairman came to believe that the word “has no intrinsic meaning at all . . . .” I found the ending remarks of Professor Fairman’s article particularly important:

Regardless of its source, when taboo becomes institutionalized through law, the effects of taboo are also institutionalized. If we want to diminish the taboo effect, the solution is not silence. Nor should offensive language be punished. We must recognize that words like fuck have a legitimate place in our daily life. Scholars must take responsibility for eliminating ignorance about the psychological aspects of offensive speech and work to eliminate dualistic views of good words and bad words. Taboo language should be included in dictionaries, freely spoken and written in our schools and colleges, printed in our newspapers and magazines, and broadcast on radio and television. Fuck must be set free.

Having obtained tenure before the article was published, Fairman was proposed for elevation to full professor after the article came out. In that process, Ohio State sends out requests to law professors at other universities inquiring about their views of the candidate. Fairman ran into a buzz saw.

Although his article was the most downloaded article that year on the Social Science Research Network, one silly reviewer said the law review article wasn’t even competent scholarship, much less of high quality. Another law professor known for producing empirical information and analysis regarding the penetration of legal scholarship excluded Chris’s article from the list and analysis even though he was using the Social Science Research Network and the article was the most downloaded from SSRN. The reason? Because it was  “provocatively titled.” Professor Fairman wrote a response to that slight which, in my opinion, revealed beyond doubt that the exclusion was, in my words, stupid and, perhaps, the product of a rank and mean elitism.** Despite all of this, Fairman was promoted. That says positive things about Ohio State.

So, why I have I written this post? Believe it or not, I have written this post because I care deeply about the legal academy. Federal practitioners and judges need law professors to help us. If Professor Fairman’s experience is any indication, a fair number of law professors ought to stop eating their young. If they continue to put obstacles in the path of other young scholars like Fairman, the law schools will become completely populated by professors known by practitioners and the judiciary for their utter irrelevance. That would be disaster.

Update:  Please go and read Scott Greenfield’s piece entitled Teaching Law, for Real

RGK

*I read the article when it first came out. I was particularly interested in the article because of an experience I had with a big law firm in Ohio in the summer of 1971 when I worked as a “summer associate” while also avoiding the draft. I was doing research for one of the partners who, acting for the ACLU, was defending a kid charged with some sort of crime for wearing a tee-shirt in public that read, “Fuck the draft.” I wish I would have had that article in 1971. 

**Professor Fairman rightly asked whether Randall L. Kennedy’s “Nigger!” as a Problem in the Law, 2001 U. Ill. L. Rev 935 (2001) would have been excluded.

13 responses

  1. A bit off topic – but this brings to mind the initial portion of the oral argument in the original “fuck the draft” case (Cohen v California, probably still on oyez). Chief Burger clearly uncomfortable made an awkward attempt to get the appellant’s attorney to skip saying “fuck” but he to his credit was unmoved and went on to say it immediately.

    In the recent FCC argument, there was some informal order from the Court before the argument and the appellants stuck to referring it as the “f-word”. That was pretty ironic, since the appellants main argument was fuck has become so ubiquitous that FCC punishing its use served little purpose.

  2. TF,

    Yes, it must have been pretty funny. If anyone reads Fairman’s article they will see why there is a culture resistance to saying “Fuck” in polite society even though the word has absolutely no meaning by itself.

    Cohen was decided June 7, 1971. My ACLU research ended. I then was assigned to determine whether migrating geese were compensable in a condemnation proceeding involving high capacity power lines coming from a nuclear power plant. Just like the partner wanted, I concluded that they were not. I think I said they belonged to Canada.

    All the best.

    RGK

  3. Human nature is immutable.

    “WOLF, meeting with a Lamb astray from the fold, resolved not to lay violent hands on him, but to find some plea to justify to the Lamb the Wolf’s right to eat him. He thus addressed him: “Sirrah, last year you grossly insulted me.” “Indeed,” bleated the Lamb in a mournful tone of voice, “I was not then born.” Then said the Wolf, “You feed in my pasture.” “No, good sir,” replied the Lamb, “I have not yet tasted grass.” Again said the Wolf, “You drink of my well.” “No,” exclaimed the Lamb, “I never yet drank water, for as yet my mother’s milk is both food and drink to me.” Upon which the Wolf seized him and ate him up, saying, “Well! I won’t remain supperless, even though you refute every one of my imputations.”

    The tyrant will always find a pretext for his tyranny.”

    –Aesop

  4. Rich, thank you for the kind words. I do not think that you are either a jerk or an idiot. Given your legendary candor I have concluded that you think neither of these things about me. Thank you.

    I have to say that I find the (undoubtedly accurate) information in your post a little surprising. Having done some empirical work, I cannot imagine excluding from a data set a data point based something as subjective as the provocative title of an article. If the article is an outlier in terms of its frequency of download (a reasonable proxy for it being read) that’s cause for investigation, not exclusion. Actually, the researcher’s decision to exclude the article makes Prof. Fairman’s point.

    I have not read the article, though now I probably will. When I review scholarship for the promotion and tenure process for professors at other schools, I always try to be as constructive as possible. Any article worth anything is subject to criticism. A former professor of mine wrote an article critiquing a very long article that I wrote, so I returned the favor by critiquing his critique of me. It was all perfectly civil. But anyway, it’s a little hard to see how an article that has generated this much interest could be dismissed as being unserious.

    Unfortunately, the legal academy is not free of those who indulge in the sin of envy. There are quite a few academics who’d cut off their left pinky to have the most downloaded article on SSRN.

    As far as the disconnect between the legal academy and legal practice (broadly defined to include judging), I believe the economic realities of the market for legal education will leave very few schools with the luxury of curricula filled with boutique courses that are built around very particular research interests of certain faculty members. One of the really exciting things at the Werner Institute has been watching both our J.D. and Master’s of Science students learning critical skills like negotiating effectively, active listening skills (lawyers, ahem, are generally way better at talking than listening), participating effectively in mediations and arbitrations, and so much more. Best, Pat.

  5. I would have thought the dispositive question is: how tasty are Canadian geese cooked at a high voltage?

    Have you ever presided over ‘awkward content cases’ (e.g., criminal obscenity prosecution or 1983 alleged-censorship cases)? I always wondered how juries deal with them since I would expect it would draw a mixture of those who cringe and those who can’t keep a straight face.

  6. TF,

    Nope. None of my kiddie porn cases (and I have a ton of them) have ever gone to trial.

    All the best.

    RGK

  7. Judge:
    TRIGGER WARNING. PLEASE SKIP THIS ENTRY IF YOU ARE EASILY OFFENDED BY SO-CALLED VULGAR LANGUAGE.
    I guess you could say that I’m a graduate of the Lenny Bruce School of Law. Bruce, in performing his comedy act many years ago in which he casually used so-called “dirty words”, taught society that these words only have power when we choose (or are told) not to utter them. An orthodoxy concerning speech, whether one wishes to call it “political correctness” or anything else, is paradoxical in a country such as ours. In fact, in a truly free society, the idea of “dirty words” would be abhorrent. Maybe that’s the problem: perhaps we no longer live in a free society, in which case I mourn for my country and for what has been lost. And whether what has been lost is regained through the efforts of law professors or next generation Lenny Bruces, I will be pleased as punch to see its return. So, for the benefit of all I say the following because perhaps it needs to be said: “SHIT”, “PISS”, “FUCK”, “CUNT”, “COCKSUCKER”, “MOTHERFUCKER”, and “TITS.” Thank you.
    Robert

  8. The community of scholars vision of a law faculty could only occur to someone who never attended a law faculty meeting. One of the first books I read when I became interested in law was Jerome Frank’s Courts on Trial, almost 60 years ago. Nice to see Federal Judges’ complaints about law school scholarship have not changed. Still the Cheyenne Way was a better read than Through Sales on Horseback.

  9. As I say, despite my blogging on legal realism, I can be a romantic–that is, the community of scholars reference. Or, perhaps more accurately, I could be called a shmuck. All the best.

    RGK

  10. I read the title of the post expecting some sort of ostracism or actual mistreatment, but all I see is that at least 2 professors didn’t think “Fuck” was a serious article. Having read the article many years ago, it reads like self-indulgent performance art. Maybe there’s some value in that, but the amount is fairly debatable. For another professor to question whether the article is serious or worthy strikes me more as the sort of honest criticism one would consider to be a virtue in the legal academy rather than a disturbing anecdote. I find it hard to fault someone who analyzes SSRN rankings for concluding that “Fuck”‘s download count wasn’t a measure of its “scholarly impact,” and I’m not seeing any evidence of actual shabby treatment of Prof. Fairman.

  11. Dear Downloader,

    On this, we will have to agree to disagree. But I appreciate your engagement.

    All the best.

    RGK

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