LawCulture

The headlines of op-ed columns

One very strange-- and occasionally distressing-- tradition at newspapers is that editors write the headlines even for opinion pieces written by other people. In other words, and those who have  written op-eds know, you submit your op-ed, and the editors give it some weird headline of their own choosing, instead of the one you thought would be good. Sometimes this works out very well -- the editors think of something pithy and clever you'd never have thought of-- but other times they come up with something that's completely off base, or even actively misleading in terms of its (non)relation to what you wrote. (

I felt that way about my most recent LAT column, which was about the implications of the Hamdan decision for potential liability under the War Crimes Act. This time, the headline ended up being Did Bush Commit War Crimes?, which was frustrating, since the piece was intended as sober analysis, and never suggested that Bush himself commited war crimes or could be prosecuted for the same-- but the headline was, well, rather provocative, and so far about fifty people have sent me enraged emails.)

I wonder about the origin of separating the writing of headlines from the writing of articles-- especially opinion pieces. Is it just an odd tradition? Or is there some logic behind it?

The Washington Post likes it, too

Their headline:

U.S. Identifies al-Zarqawi's Successor

What is it with these people?

Emails from Students

Rosa linked below to today's NYT article about students emailing professors.  The piece suggested that email has increased communication between students and professors, both for better and worse.  Better because it can provide instant feedback, a more comfortable venue for  shy students, and greater convenience than the phone or in-person meetings.  Worse because students may expect instant response and access in a way that isn't feasible or realistic, either creating or reflecting a sense of entitlement that (from the faculty's perspective) isn't justified, and perpetuating the idea of students as consumers.

Do most faculty members really suffer from a constant deluge of borderline inappropriate emails from students?  In my case, the answer is: no, not a deluge, but certainly a trickle. A few of my favorite examples:  the time when a student emailed me by accident in the middle of class no less, (ah, the joys of wireless access in the classroom) while trying to write some other 'Jennifer" (oh, the horror of 'auto-fill' technology). She whined about her ex-boyfriend and asked me to come with her to a party that night where she feared she'd run into him.  Ooops!  Then there was the time when a student wrote to me asking if I could tape record the next three classes for her because she was going to the carribean for a week because she got a really good deal on a resort.

Frankly, though, these are exceptions. Most of the academic year, the biggest problem I have with email is sheer quantity:  when my inbox is overrun, the information overload means that sometimes messages move off of my mental radar screen (and too far down my inbox) before I get to them.

When exam-time comes around, however, I do sometimes have real problems with student email.  Students will sometimes write very long and detailed questions mere days -- or sometimes hours -- before the exams.   Some of these are really good questions.  Some of them are really bad questions. (The ones that really get to me are when a student writes me instead of looking up something that is literally written down in the casebook or in the Federal Rules of Evidence.  Whatever my job is, it's surely NOT to spend my time directing you to the appropriate page of your book as finals approach in order to remind you that Rule 801(d)(2) clearly states in the language of the rule that it applies only when offered against a party. . . .)   So yes, I do wish that some of my students would better internatlize the basic adage: if you can figure out the answer yourself by doing five minutes of research, please don't bug the professor about it.

But this isn't the only issue, or perhaps even the main one.  At the end of term time, I've sometimes felt that I could  spend my entire workday answering student questions via email -- and I still might not get through all of them!  At some point a couple of years ago, when I'd spent at least half an hour answering just one student's extremely detailed email, and during that same half an hour, three more equally lengthy lists of questions had appeared in my inbox, I realized that this was going to have to stop.  So I've instituted a new rule:  I don't take substantive questions via email in the week before the exam.  I do set up lots of extra office hours during this time.  If students want to bother coming in, I'll certainly talk to them.  And during the course of the semester, I"m delighted to have students email me about substance. But email during exam period?  Uh-uh. 

I'd be interested in thoughts and reactions from both faculty and students?  Is this restriction  of mine draconian or legitimate self-protection? Do others place similar limits?

Chilling Faculty Speech

At UCLA, thirty supposedly ‘radical’ professors have been listed at ‘uclaprofs.com,’ along with detailed profiles of each, describing their alleged biases and radical activities.  Uclaprofs.com describes itself as devoted to “exposing UCLA’s most radical professors.” While it is perfectly reasonable to critique and comment on faculty members’ views and biases, this site seems to me to go way too far.  They are PAYING students to provide detailed notes and/or tape recordings of classes – which, as my colleague Jerry Kang points out,  may possibly be illegal, but regardless of legality certainly can’t be a good idea. 

Learning to be a lawyer is, in part, about learning to make and parse arguments.  Surely our students are better off if there is political diversity among the faculty – it’s not that all faculty should be of any particular ideological stripe or another, and certainly we shouldn't all be the same. We do, I think, have the obligation to elicit and take seriously a wide range of views, but that doesn’t mean we should have to hide our own.

Also, while claiming that their concern is about bias in the classroom, when I skimmed through the profiles of a few of my colleagues who made the list, what I saw instead was nasty, vitriolic attacks on their scholarship, their political activities, and nary a word about alleged bias within the actual classroom.  In both tone and vehemence, it seemed to me like familiar right-wing radio tactics brought home to the ivory tower, not a pretty sight.   

Even some conservatives agree that the site goes too far:  prominent Harvard historian Stephen Thernstrom, who was initially a member of the organization’s board, resigned recently.  According the the LA Times,

Thernstrom said, "I felt it was extremely unwise, one, to put out a list of targets of investigation and to agree to pay students to provide information about what was going on in the classroom of those students. That just seems to me way too intrusive. It seems to me a kind of vigilantism that I very much object to."

Well, hooray for Thernstrom.  Encouraging dialogue, open discussion and classrooms that cultivate a wide range of opinion and dissent is something we should all favor. But blacklists and snide attacks should be publicly condemned.

More on L'affaire Frey

Earlier today here on LawCulture, Jessica Silbey mused about James Frey and the blurry borderlands of fact and fiction.  There’s been a lot of buzz about this recently, including  a thoughtful piece by media journalist and ex-heroin addict (and, as it happens, my wonderful first cousin) Seth Mnookin. Interestingly, Seth suggests that the tendency to exaggerate one’s own criminal exploits is classic addict behavior – and that part of  recovery requires making peace with the more honest but less swashbuckling story of your own past. On this analysis, Frey just might not yet be over his addiction.

Jessica suggests that one reaction to the outcry may be for publishers to create blended genres – autiobiographical fiction, or maybe memoirs with disclaimers, language to alert readers that what they're about to take in is kinda sorta true, but not actually true. And why not? Wouldn’t this be an improvement?  It’s the difference between documentary film and those Hollywood products that tell us that they are “based on a true story.”  Both genres get part of their punch from their connection to the ‘real,’ but we nonetheless have different expectations for the two categories.  It’s not that the first is ‘authentic’ and the second is ‘fake.’ No doubt documentary films are inevitably constructed, partial, and to some extent fictional.  And surely docudramas can have emotional resonance and the ring of truth that can linger with us long after the screen goes black.  But that doesn’t mean there’s not a difference.

Similarly,  it’s not that the memoir qua memoir is literally true – remembering is inevitably an act of invention.  But we nonetheless have different expectations about the extent to which the literary creator is permitted to rework history, to change the story on purpose in significant, meaning-making ways, depending on how they frame their book, whether they sell it to us as fiction or memoir. Even in memoir, we may forgive and even expect a certain degree of creative license, but we equally expect it to be tempered by the unspoken – and inevitably contestable –  line between narrative embellishment and fiction.

In Sunday's New York Times, Mary Karr, herself the author of the wonderful and wrenching memoir, The Liar’s Club, explained why she found "JT Leroy a fine little prankster and Mr. Frey a skunk."    She too cared about labels:  that JT Leroy sold his work technically as fiction mattered – notwithstanding that "he" created a backstory, a persona, and spent enormous energy convincing the literary world that he existed and what he wrote was his own truth.   While I see her point, it seems to me unduly formalist, as if putting the proper label on the back of the book excuses all the rest.  It has to me a certain “but my fingers were crossed so it doesn’t count” quality. 

Truth and Consequences? The latest in literary scandal and the search for Truth.

Over dinner the other night, conversation dwelled on the difference between hoaxes and frauds, be they literary, scientific, or journalistic. We talked about the most recent, that of A Million Little Pieces, the best-selling book by James Frey that Oprah Winfrey inaugurated with her book club this past October.  Supposedly a true story about Frey’s recovery from drug and alcohol addiction, allegations now circulate that Frey invented many of his narrative punches.

Among the accusers, the widely-visited The Smoking Gun website here has announced that weeks of investigation into court records, police reports and other documents has turned up many falsehoods in Frey’s phenomenal account. Frey denounces his critics as “the latest attempt to discredit me” at his website here. 

My interest in the scandal was not the same as my dinner companions, who considered it unethical on the part of the publishing house to have published a book that is claimed as true when in fact it wasn’t. Their argument, to which I am partly sympathetic, is that a story of addiction and recovery is read by people who care that there is truth to the possibility of recovery (and indeed rich monetary desserts) after such long personal and physical struggle. In such cases (as distinguished from stories, say, only about love or adventure?), the book publisher and the author have special responsibilities.

I was interested in this hoax (fraud?) because it illuminated the still-vibrant stake in being able to tell the difference between truth and fiction, reality and imagination.  But in the realm of literature and literary studies (and film, of course), it is commonplace to glean lessons of life from stories that are obviously made up.  Do we care that Crime and Punishment is a work of fiction when we teach it in classes on philosophy, justice or ethics? Are the lessons of To Kill a Mockingbird diluted because Harper Lee invented Atticus Finch? Do those lessons change significantly were a teacher to announce that Harper Lee may have based some of the characters and plot of her novel on people from her Alabama home town? I have heard rumors to that effect, but I have a hard time believing that were they true, the legacy of To Kill a Mockingbird would change all that drastically.

So why do people care so much that James Frey may have made up some parts of his book?  Think back to earlier “hoaxes”: Alan Sokal and the “Social Text” affair here; Sidd Finch, the rookie baseball player who, it was reported in a 1985 issue of Sports Illustrated, could throw a fast ball at 168 miles per hour, here; Stephen Glass, who fabricated sources and some articles while writing for the New Republic; A3G and her "self-outing" as a "he" discussed here on the blogosphere! As lawyers, we can distinguish the hoax with a moral (Sokal) from the April Fool’s joke (Finch). And we can say, likely with ease, that Glass as a journalist had an ethical obligation to other journalists and to his readers to report facts.  But what of the moral outrage the followed A3G's revelation?  Was it simple play, a sophisticated hoax, or does the misrepresentation border on breach? Fraud? If so, how does Frey “making it up," for example, differ from those literary autobiographers such as Gertrude Stein, Mary McCarthy, Sherwood Anderson and Roland Barthes, who also “took liberties” when telling their lives?  Where does Frey’s obligation as a writer come from? Does it come from the genre category on the book jacket that says “nonfiction”? (If so, watch new categories spring up, say, one called “autobiographical fiction.”)  Perhaps he breached his obligation based on his statement to his readers that the story he tells is true, a kind of oral promise? If so, these other more famous writers, with arguably much larger followings, were that much more in the wrong.  And certainly, there is no detrimental reliance or materiality for a legal claim here. 

But it is not a lawsuit Frey’s readers seek. Readers are disappointed because the special amazement that “reality” engenders has been lost. Reading A Million Little Pieces, you just can’t believe Frey endured the trauma he did. Reading it, and believing it, is much of the fun, the attraction.  This is the same lure, I gather, of reality television. You watch it not because it is interesting in and of itself (who cares, really, what the renovated house will look like, if the nanny will get the kids to behave, who will lose the most weight?).  We watch because it is actually happening.  It is the voyeurism that attracts.  But what do we learn? What do we know? I am pushed to ask: so what if it’s real? Crime and Punishment endures as a model lesson about individual responsibility and criminal justice, about the relation between retribution and forgiveness.  And it is good entertainment too. Perhaps the answer is that Frey is no Dostoevsky, and that is enough.

On Being Misquoted

A friend of mine wrote me today to tell me that I was quoted in the Washington Times -- for something I wrote almost 20 years ago as a student.  Puzzled but mildly curious (c'mon, who among us hasn't ego-googled from time to time?), I of course clicked on the Washington Times story -- available here -- and sure enough, there I was.

The article was criticizing Ted Kennedy -- who has expressed strong concern about Alito's membership in a Princeton organization formed in the 70s to oppose the admission of women to the college -- as a hypocrite, because Kennedy himself was actually  a member of the all-male Owl Club, one of the finals club at Harvard College. The finals clubs were and are invitation-only social clubs that had parties, created networking opportunities for members, and excluded women. I was quoted in the article as follows:

After one student government officer's association with the Owl was exposed in 1986, student Jennifer L. Mnookin took the young man to task in a column published in the Crimson.
    His "membership in a final club is an insult to women undergraduates and to the 90 percent of the student body that the clubs deem unworthy of membership," she wrote. "Final clubs perpetrate an attitude that encourages members to treat the rest of the world as second class citizens -- to make them enter the clubs through side doors, to bar them from certain rooms, to devalue and look down upon them."

"Hmm," I thought as I read the quote.  "That's more or less what I believed as an undergraduate. Doesn't quite sound like me, though.  And I sure don't remember writing it."