A Lawsuit is Not a Press Release

If I were a judge, I think I'd be a lot more sanctions-happy than most judges.

Bad legal arguments bother me. And more specifically, lawsuits that are filed not because there's an actual colorable legal claim, but as a form of press release -- a ritualized airing of grievance trying to drape itself in the seriousness of a lawsuit -- strike me as intolerably obnoxious and abusive. Many defamation suits fit this profile (who needs SLAPP when there's Rule 11?), but there are others. And too often I see people cheer these suits (at least when they fit the right ideological profile), and I hate to see it -- these lawsuits serve no purpose other than to allow gloryhounds to chest-thump their virtue while wasting time and resources, not just of the judiciary, but of the very social movement they claim to be advocating for.

One example is the "class action" lawsuit recently filed against two Bay Area Democratic Representatives claiming that their votes in favor of aid to Israel caused emotional distress to constituents who believe that Israel's conduct in the Gaza war constitutes a genocide. As a matter of law, the suit is patently frivolous -- it is obviously foreclosed by the Speech and Debate Clause, and a moment's reflection should make anyone with half a brain recognize that enabling disappointed constituents to sue their representatives for their congressional votes is a capital-B Bad Idea. The suit has no chance of succeeding and serves no purpose other than to generate headlines, and that is not the purpose of the judiciary. I don't know if the named plaintiffs are willing participants in the charade or are genuinely deluded into thinking there is valid legal claim here, but if it's the latter, then they're being exploited in a terribly grotesque fashion. Either way, I hope the lawyers who filed it are sanctioned.

But lest anyone get too smug, this is not a sin with any particular ideological proclivity. A federal court in the Eastern District of Pennsylvania just dismissed a lawsuit filed against Haverford College alleging a hostile environment against Jews on campus. The dismissal was based on the fact that the pleadings were, in so many words, a sustained rant rather than an attempt to communicate a cohesive legal complaint.

At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs' Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.

I am familiar with this sort of "legal" writing, and I am glad to see a judge call it for what it is. It's written by lawyers who forget that their job is to craft a legal complaint and instead view the courts as a suitably august forum for airing every point of grievance and riding every ideological hobbyhorse they've ever encountered. In some ways, the Haverford case is worse than that Bay Area one, because in the former the judge agreed that some of the allegations might have presented cognizable claims under Title VI but couldn't move forward on them because they were buried inside such an amalgam of irrelevant ranting that they failed to present an actionable complaint. The (potentially) valid grievances of the Jewish plaintiffs at Haverford were, in effect, sacrificed so that their lawyers could play soapbox orator. They treated the lawsuit as one big press release, and everybody -- their clients included -- is worse for it.

The lawyers suing Haverford aren't stupid, at least in the traditional sense (they attended Harvard and U. Chicago Law). But they decided that this issue was too important for them to act as lawyers, and instead decided to act as demagogues. That's despicable. It's an abuse of the judicial process, it's unfair to Haverford College, and it disserves the Jewish community they nominally purport to defend.

Loving the Sinner

When someone commits a crime, or otherwise breaches the moral code, there are expanding circles of victimhood.

First and foremost, there is the actual, literal victim -- the person robbed or cheated or abused -- followed by the victim's family and loved ones.

But I think after that, the persons hurt most, and hurt in a distinctive and devastating way, are the perpetrator's family.

When someone is arrested for a serious crime, it is normal for the media to seek commit from the perp's loved ones. On occasion, you'll see someone seize upon a letter written by perpetrator's mother to the judge pleading for clemency, juxtaposing the letter's description of the perp (which is, of course, written through the lens of parental love) against the usually vicious facts of the underlying offense. How out-of-touch, how classless, how blind.

For my part though, I have no idea what we expect them to say. The position they are in seems unbearably cruel, and I hate -- hate -- the people who treat the family as an easy target. It is of course true that a serious crime doesn't become less serious because a person you love committed it. And yet, it strikes me as unreasonable to demand a parent partake in what would otherwise be the obvious, perhaps even obligatory, practice of condemnation. In concept perhaps there is a tightrope one can walk of still expressing love while in no way diminishing the underlying offense; in practice I doubt it's possible to anyone's satisfaction. A columnist who concentrates on a convicted arsonist's volunteer work and urges others to see him in the light may be guilty of himpathy; the arsonist's father is not. The acquaintance who remains friends with the serial catfisher may be judged harshly for not cutting someone who hurts others out of his life; the swindler's mother should not be. This doesn't mean we abide by the parental perspective -- we know full well it is skewed -- but they're not wrong to hold it. They are in a fundamentally unfair and cruel position; the best thing we can do is just ignore them.

And that, too, is part of the cruelty. At least the primary victims have an obvious claim to our empathy, care, and concern. The perpetrator's family has, at best, a much shakier claim to emotional support. The fact that this order of prioritization is obviously justified -- of course we care more about the immediate circle of victims than we do about the feelings of the perpetrator's family -- in some sense compounds the wound; they don't even have the salve of knowing that their social abandonment is unjust. Or worse -- we know families come in for attack by people who think they must in some way be culpable too, looking for ways to accommodate a thirst for retribution that cannot be solely slaked on the body of the actual wrongdoer. They are blamed for not anticipating the misconduct, or they are blamed for somehow facilitating it, or they are blamed for not cutting loose the bad guy once his crimes became clear. 

Of course, occasionally the family really will have been complicit in a direct way (the parents who give their obviously disturbed teenager free access to firearms, for instance). But more often than not, they are victims who are not treated as victims. And I suspect there is, lying underneath everything else, a feeling of betrayal -- surely, they had to know that doing these dreadful things would hurt us; was our relationship of love not enough of a reason to refrain? What a terrible thought, and how much more terrible to have to endure it alone.

I'm soon going to start raising a son. I hope he turns out to be kind and smart and generous and every other quality one would hope to have in a person. I hope that for all the obvious reasons (I'd hope that everyone turns out that way!), but also for the more (selfish?) reason that if he doesn't turn out that way it would be heartbreaking, and I don't know what I would do. Brining a child into the world means committing to unconditionally love someone you haven't even met yet -- that is a terrifying vulnerability, when you think about it. To be sure, the overwhelming majority of the time it goes fine -- most people, whatever foibles and missteps they might make as part of a normal human existence, don't do anything so egregious as to provoke this sort of crisis. But if it goes wrong, boy does it go wrong.

As one moves away from the most intimate circles -- parents, spouses, siblings -- the obligation to be clear-eyed about the wrong waxes, while the indulgence we might concede for one who loves the perpetrator probably fades. But in any relationship of love -- familial, romantic, platonic, even political -- it hurts when someone or something you love does something objectively cruel, shameful, or even monstrous. It hurts because it is wrong, and it hurts because nobody's empathic attention will be focused on you, and it hurts because you know at some level that this loneliness and abandonment isn't even unjust, and it hurts because all of that means that even trying to articulate this sense of loneliness and abandonment and pain is inevitably going to be viewed as trying to wrongfully redirect care and concern from those who need and deserve it more.

What a terrible cruelty to endure.