Attorneys have heard – or heard from other attorneys – nearly every cockamamie story there is. Thus, we have developed internal “bullshit-detectors” that are so finely tuned that they are is probably exceeded by only those of cops. Thus, when I heard the first reports about lacrosse case in 2006 (on ESPN), I was skeptical to the point just short of disbelief. The story is that several Alpha-male college students were going to risk reputations, diseases, paternity lawsuits, future careers, and family shame to put their most precious body parts into a party stripper? As we say in the legal business, that story already “strained credulity”.

And that’s even without the added allegation that the sex was involuntary. A party stripper with such fastidious morals and high standards of sex partners that she was going to turn down a chance for mating with such Alpha-males? Again, the bullshit-detector is sounding like an air raid siren. Hell, if nothing else, the chance for a fat paternity settlement alone makes this notion exceedingly unlikely.

And that’s before I knew the races of the alleged victim and perpetrators. I assumed from the first reports that all involved were white. When I learned later (a week or so) that the “victim” was black, I had no more doubts. For all the talk in this case of “racialized sexual violence”, all attorneys know that’s pretty nearly a one-way street. Single-offender white on black rapes are so infrequent that they show up usually as asterisks in crime statistics, and white multiple offender rapes of black women are barely more frequent than carjackings by Amish farmers.

But apparently a completely fictionalized history has seized much of American society making the fantastical charges in this case plausibly true in some circles – notably in academia and media. At a minimum, Mr. Zimmerman, you and everyone else who was in one of those circles should educate themselves as to the true character of this nation’s history (past and present) of “racialized sexual violence”. It might save your university millions of dollars in the next hoax.

This is also quite interesting. I may have more to say about it later, but I’ve been sitting on these comments for too long. [Update: I did eventually have more to say about it.]

As perhaps your only supporter at DiW, I hope you will keep that quote in focus as you read the rest of this comment. I say this because I know you have called the Listening Ad “a blip” and criticism of it “vastly overblown”.

It is true, as you say, that “attorneys have their way of looking at the situation and it’s quite different from [yours]”. Based on the events of this case I could say something similar about professors. At least, some professors. The distinction is important because I assure you that all attorneys had substantially identical reactions to the 88ers ad— the lacrosse players’ lawyers, the university’s lawyers, lawyers who were uninvolved in the case, tall lawyers, short lawyers, black lawyers, white lawyers, brown lawyers, sober lawyers and drunk ones. You get the picture.

Some of us may be scoundrels of the first rank, but few of us are stupid. We are chosen on the basis of the LSAT which focuses most strongly on “reading comprehension”, “logic”, and the ability to “draw proper inferences and deductions”. Then we are subjected to three years of intense study designed mostly to make us better at these abilities. The reaction of attorneys to that ad, in a word, was “shock”.

In seven words, the reaction was what Mr. McDevitt reported above.

The word “tort” comes from the same French root that gives us “torque” - in other words, “to twist”. It means that something “is twisted”, is … wrong. These are actions that are not “crimes” (usually) but are recognized as being so harmful to society that a legal remedy is justified. There are four elements of a action for tort: Duty, Breach, Causation, and Damages. This was the type of action brought against Duke.

What you need to understand, Mr. Zimmerman, is that this ad—and Duke’s seeming to reward some of the 88ers and the 88ers own subsequent statements—was what lawyers call a “damages multiplier.” This is the kind of document that causes jurors during deliberations to send out notes asking, “Can we award more money that the plaintiff has asked for?” or, “How much is, ‘Every last cent the defendant has’?” If you don’t believe that, let me suggest to you to read the comments in The Chronicle to the above-cited article. That’s not Liestoppers, not DiW. That’s the jury pool.

In the above paragraph, I’ve probably just quoted, substantively, what Duke’s lawyers said to Pres. Brodhead and Chairman Steel. If you think otherwise, do this experiment: Find one or more lawyers who are familiar with the case. Ask them two questions: (1) “How much money do you think Duke paid to the three indicted players last year?” and then, (2) “How much money do you think Duke would have had to paid if not for the ‘Listening Ad’ and the fallout (university’s positive response and subsequent statements of 88ers)?” My guess is that a typical answer would be “the plaintiffs would get about 10-times as much with the Ad than without it.”

I think, given my reading of your past writings, that you are thinking at this point: “So what, I’m not addressing the legal case. I’m offering a critique of KC Johnson!” I submit, Mr. Zimmerman, that you are acting as a juror—and a bad one at that. First, you fail to understand the case at all. Second, you consider facts not in evidence—to wit, “I know some of the 88ers, and they are really nice people”. Finally, you fail to exclude unreasonable inferences.

You seem to think that (at least some) of these 88ers are “nice people” and that someone could “make sense” out of their writings. The only 88er of whom I’m aware who in this episode acted with any character is Arlie Petters—by quickly disassociating himself from the Group. From my personal perspective, Prof. Petters by his actions has absolved himself of blame in this incident. What an insult it would be to Prof. Petters for the other 88ers to be forgiven without repentance.

And repent for what, you ask? How about repent to you, Prof. Zimmerman? After all, their actions drained tens of millions of dollars in resources out of Duke—millions that good professors like you could have used. Do yourself a favor: Divide up what you think the Ad cost Duke (my guess $20 million) and figure out how much you or your department lost. Next time you see your friends in the 88, you can have that to talk about.

No one can “make sense” of what the 88ers say, not about this case. For an attorney, the prospect of getting Holloway or Lubiano on the witness stand—well, the testimony of each would be worth an extra $1 million in added damages. The Cathy Davidson article in which she tried to say the ad was “really” about “national healthcare, affordable childcare, and Canadian baby seal hunting”: An extra $1 million in damages even without her on the stand. Jurors hate people who try to insult their intelligence. (I made up the part about Canadian baby seal hunting.) I can think of at least one or two professors who might not even be allowed off the stand - by the time their testimony ended, the judge could be ordering involuntary psychiatric examinations.

I didn’t go to law school until my mid-thirties. I mention this only to show that I can recall a time when I “thought normally”. I realize that lawyers can seem cold - caring about little besides facts, logic, and “reasonable inferences”. I want you to know that I know very little about melody or harmony - and would never think that just because I can sing means that I can judge a piece of music half as well as you can. Is that a sugarcoated way of saying that I think you are out of your element? I plead guilty.

I hope you will accept this in the spirit it is written. I hate to see you looking like the constable who stands over the corpse — ridden by bullets, pincushioned by knives, and decapitated — and says, “What body? …. Oh, that one …. Well, it looks accidental.”

If you want to be taken as a serious investigator — even an investigator of the investigation — first you must acknowledge the crime.

That’s quite a dose of perspective—a pretty good payoff from a couple of offhand comments on my part. And for whatever it’s worth my remark about the difference between an attorney’s perspective and mine was a straight-up observation, not a sarcastic jab at attorneys.

Brian Leiter probably did pretty well on the LSAT, and he clearly didn’t have the same reaction to the “listening” statement that you had. Maybe a law professor with a JD doesn’t count as a lawyer, or he’s the exception that proves the rule.

What you say about the “listening” ad as a damages multiplier is interesting. I don’t see any justice in those figures, and it’s definitely a shame if it did in fact cost Duke that much. It wouldn’t surprise me at all to find that, with respect to the ad, I’m out of step with a typical jury pool. I don’t see any reason why I should try to read the ad like a lawyer or a juror, and even less reason to treat their readings as grounds to dismiss everything else the “88ers” say.

I’ve never said that any particular professors are “nice,” and whether they are or not is completely irrelevant. And after 10 years as a part-time “visiting” instructor at Duke, the difference between the pittance they throw my way and nothing is not something I’m going to get worked up about.

I don’t take reactions to things I write about the lacrosse case personally, so no need to worry about whether I get the spirit of your comment (I think I do). And I don’t care one way or another whether I have any supporters on DIW. I do appreciate that you seem to make a sincere effort to understand what I’ve written and respond constructively. That sets you apart from most of the present-day commentariat and from the master of ceremonies as well.

I wondered, when I first read that, “Why ‘irreconcilable perspectives’?” It’s dawned on me: Our perspectives of ‘the Duke faculty reaction to the lacrosse case’ are rooted in how we perceived the case when we first heard of it and what our perceptions were of the case on the date of “Listening” ad three weeks later. If our perceptions of the likely veracity of allegations in that initial time period were significantly different, then that would explain why we will always view the actions of the 88ers in “irreconcilable ways”. If you thought — in the early days of the case — there was at least some truth to the charges, that at least “something bad happened”, then you will forever be willing to project your feelings onto the 88ers, resulting in you seeing their actions, at worst, as less than cold-calculated and self-aggrandizing betrayals of the team members.

I wonder if I could ask you: On a scale of 1 to 10, with 1 being “almost certainly false” and 10 being “almost certainly true”, how did you perceive the first report that Duke lacrosse players had raped a stripper at a team party? I would appreciate if you could explain why you assign whatever number you do. I promise to reciprocate, if you are interested (btw, my number was “1”).

I thought that this was also meant as a private communication. But I see in the DIW comments that RRH is expecting it to show up here. So here it is.

As to the question, as I wrote in my first lacrosse-case post, I was very much preoccupied in the fall of 2006 when the allegations surfaced. I can’t reconstruct my first reaction to the allegations with much clarity. I believe that my superficial opinion, based on hearing haphazard bits of news, hovered around 5 on RRH’s scale of 1 to 10. I didn’t think of it as a sure thing either way. There are four impressions that I remember from fall 06 and they pulled in opposite directions—on one side, the details of the party, which I’ve always found to be fairly revolting, and the McFadden email. On the other side, early doubts about the accuser’s credibility and sanity, and a feeling at the time the indictments were announced that the players charged seemed to have been picked out more or less at random.

I wasn’t aware of the “listening” ad until many months after it was published. I read about it—in DIW, probably—before I actually read it. After reading it I found the criticism vastly overblown (I still feel that way). There seem to be irreconcilable differences in the impression that ad leaves—that’s one basis for the comment RRH is talking about. I don’t think I project anything on the “88ers,” though, since I don’t think it’s a meaningful grouping.

I was also reacting to RRH’s inclination to think about the situation in legal terms—it seems like attorneys have their way of looking at the situation and it’s quite different from mine.

First, just as an overview of the situation, I note that this is one of many, many arguments over what an 88er (in this case Karla Holloway, but there have been so many of these) “really meant” when s/he wrote this or that. I would ask reharmonizer to reflect on what we can judge about the most elemental competence of purportedly intelligent people when what they write can be interpreted, and quite reasonably, in so many different ways.

The body of reharmonizer’s article consists of two parts. In the first, he criticizes KC’s critique of Karla Holloway. I find this the best part, but I would offer two related defenses to KC’s critique. First, KC critiques of the 88ers are hamstrung by his own adherence to “collegiality”. After all, the charge against this brilliant scholar during his tenure fight was his alleged “lack of collegiality”. It is apparent that he strives very hard to avoid that charge again being leveled at him. In the case at hand, it prevents him from addressing some of the possible wellsprings and motives of Holloway because to do so would cause shrieks of “uncollegiality!!” from those who acted with the opposite of collegiality towards the accused students. The second reason is that KC is not trained as an inquisitor. He’s an academic; he researches and writes. He’s an expositor, not a prosecutor.

The other part of reharmonizer’s is an attempt, to which I alluded earlier, to explain what Holloway maybe, possibly, perhaps, might have “really meant” when she wrote what she wrote. I would ask reharmonizer — while he is imagining all the possible benign interpretations of Holloway’s writings — to ask himself: If there are such plausibly benign interpretations, why did Duke pay tens of millions of dollars (my estimate) to keep Holloway off of a witness stand?

Holloway should thank her lucky stars if KC Johnson is the harshest examiner she ever faces. And she doesn’t deserve to be defended by scholars of reharmonizer’s quality.

RRH

It’s clear that we have very different, and probably irreconcilable, perspectives on Holloway specifically and, in general, Duke faculty reaction to the lacrosse case. Given that, I appreciate your efforts to read, understand, and respond. I don’t claim to be passing any kind of definitive judgment about Prof. Holloway, especially not in connection to legal aspects of the case, which I’m not following that closely.

It won’t surprise you that I don’t find the considerations of experience/training and collegiality to be much of an excuse for what I see as an excessively biased and uniformative reading of Holloway’s texts. I’m more sympathetic to your point about the range of reasonable interpretations. For sure, Holloway’s “Bodies of Evidence” could have been a better and clearer article than it was. But I think the point is just as valid flipped on its head—all texts are subject to interpretation, and KC and others have been much too quick to pronounce the one and only reasonable interpretation of things. As with most everything, this isn’t an either/or, one-side-is-right-and-the-other-is-wrong proposition.

I like to think I know Prof. Holloway fairly well, and I think she’s a great lady who got beat down a number of times - I may not always agree with her, but I like the idea of civil disagreement, as opposed to, you know, the uncivil kind.

I’ve thought about the issues surrounding Duke Lacrosse a lot - since I wrote my original post, since I left Durham, etc. I’ll think about them for the rest of my life, probably (well, unless I get senile first). Like many people, I have blind-spots.

I really appreciate encountering nuanced thinking on the subject.

I appreciate the encouraging note, and the personal angle on Prof. Holloway. I think everyone has blind spots—I know I do. I wholeheartedly agree with KC Johnson that a couple of years ago Natalia was saying things that needed to be said.