Actually I have no particular view of the Kozinski matter in part because the facts seem to change hour to hour. The materials that he allegedly possessed, as described initially, sounded degrading and generally awful. Each time something is tracked down it seems that the descriptions may have been a bit misleading. It's not that I am a fan of Kozinski, far from it. In fact, my own view is that I have never heard of a law professor or judge so obviously focused on his image, trying to get attention, and wanting to be viewed as "out there." (Not that the need to seem to be unconventional is usual for law professors. My own theory on this, which could be dead wrong, is that after years of kissing butt, never saying anything controversial, never showing emotion, and always being close to the vest some just have to go crazy and so they grow a beard wear jeans or stop wearing a tie.) For Kozinski, who seems to try so hard, I suggest wearing a beanie with one of those little propellers on top. It would be so much easier and he would not appear to be trying so hard.
What interests me are the efforts by some to defend him (here and here). The second one by Lessig is embarrassing. Unfortunately it also is representative of what passes for sound reasoning when done by someone with the right credentials or teaching at the right law school. Faster than I think anyone can imagine institutional authority and self promotion seem to be elevated above fact finding and reasoning. It reminds me of one of my first articles. I got to a point in the article where I wanted to make a general statement like "In general courts are likely to . . ." The problem was that what I was saying seemed to require some empirical assessment and I was stumped. I mentioned it to a more seasoned law professor who looked at me and said "That is where you put the 'See e.g.' cite, list a couple of cases and you're good to go."
One of the commentators on the Lessig post captures it when he says it sounds like you (Lessig) knew what you wanted to conclude first and then essential made up a way to get there. Obviously not a law professor commentator because if he were he would know that that is legal research.
I am sure there are equally bad arguments condemning Kozinski but there is only so much of this you can read. Thus, I cannot put one of those "heres" here to send you to one of those.
2 comments:
Lessig's analogy to jiggling a door handle isn't accurate, I think, but his broader point - that "norms of privacy should ... apply" doesn't seem like an unreasonable or laughable position. Like him or not, if none of the pictures was illegal (and I haven't seen any account that alleges that any was), then I don't see what the story is, and I don't understand why there was pressure for him to recuse himself.
It's not like he had, say, child pornography on his computer.
I agree with all the privacy points and I am not at all sure that Lessig knows any more than either of us what Kozinski had. In either case, Lessig had one line worth saying. My point is that the facts do not get in the way of the shoddy reasoning of those with a sense of entitlement.
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