¶ The Laboratorium (3d ser.)

I regret to inform you that there is even more to the story of how Cornell President Michael Kotlikoff backed his car into a student. I also regret to inform you that Cornell’s Board of Trustees has made things worse.

For ease of reading, I’ve put a timeline at the end of this post with all of the primary documents: videos, statements, op-eds, etc. The first section is background; feel free to skip it if you’re familiar with the story and my own op-ed about the incident.

1. Background

On April 30, a group of people followed President Kotlikoff after an on-campus event, repeatedly asking him questions about Cornell’s speech and discipline policies. He eventually declined to engage further, walked to his car, turned it on, and then backed it into a student. The next day (May 1), Kotlikoff issued a statement describing the incident, the key paragraph of which was demonstrably false:

They continued to follow me to my car and then surrounded the car, banging on the windows, blocking the car, and shouting. I waited until I saw space behind the car and then, using my car’s rear pedestrian alert and automatic braking system, was able to slowly maneuver my car from the parking space and exit the parking lot.

We know it is false becase one member of the group took a video of the collision, which the Cornell Daily Sun published that same day. The video unambiguously shows Kotlikoff’s car making contact with the student, who backs away as the car continues to reverse into him. The university then released security-camera footage of the interaction in the parking lot, which also showed the contact. The university’s statement, attributed to Vice President for University Relations Kyle Kimball, said, “This is complete footage of the parking lot interactions, instead of clips to support a narrative” (confirming that Cornell considers what the video authentic and authoritative).

Over the next week, several organizations—including Cornell’s AAUP chapter and the Sun editorial board—criticized Kotlikoff’s actions and his statement. The Sun’s editorial described the statement, accurately and presciently, as as emblematic of “an administration that protects itself, not its students.”

On May 7, I joined them with an op-ed in the Sun. I argued that his statement was false or misleading in three ways that were disproven by the video evidence. I wrote:

1. The videos do not show anyone “banging on the windows” and the audio does not contain the sounds of banging or “shouting.” The car was not “surrounded” until after he began driving. Taking the University at its word that the security video is “complete footage of the parking lot interactions,” Kotlikoff’s claims are false.
2. The videos show that a person (identified by The Sun as a Cornell student) was stationary behind the car in its path of travel when Kotlikoff backed up, and that he backed the car up into them several times. His claim that “I waited until I saw space behind the car” is explicitly false.
3. His claim that “using my car’s rear pedestrian alert and automatic braking system, [I] was able to slowly maneuver my car from the parking space and exit the parking lot” is materially misleading. A reasonable reader of this passage would be under the false impression that Kotlikoff used his car’s safety features to avoid striking anyone.

I added that a student who engaged in similar conduct would be subject to disciplinary action, and that intentionally driving a car into someone and giving false statements about it could have serious legal consequences. I listed the tort of assault, the tort of battery, the crime of reckless endangerment, and the crime of making false statements in an investigation.

That same day, an Ad Hoc Special Committee of the Board of Trustees announced that it had been established “to oversee an investigation into the events of April 30, 2026, involving Cornell President Michael I. Kotlikoff and a group of individuals.” The committee consisted of the Board’s chair (Anne Meinig Smalling) and its three vice chairs (Howard L. Morgan, Beckie Robertson, and Stephen C. Robinson). The actual investigation was to be conducted by the Cornell University Police Department (CUPD), and Kotlikoff would be recused from any involvement in it.

A correction: I said on Bluesky that the Board’s announcement was “two hours later” than my post. That was wrong; in fact it was almost exactly two hours earlier. I did not see the announcement until after my op-ed was live, and I failed to notice that it had been sent out well before then.

2. Kotlikoff’s May 15 Statement

On May 15, the committee released another statement describing the results of the review, and later that day, Kotlikoff released his own statement looking back on the incident and review. I want to start with Kotlikoff’s statement, because he has substantially changed his story about what happened in the parking lot:

When I shared my experience with the community on May 1st, I did not believe, based on the information I had at the time, that my car had made any contact with anyone. Only when I saw the videos circulating later did I realize that a student had placed himself directly behind the car without my being aware of it as I backed up. Only the following afternoon did I understand that my experience would look very different in the selected video clips posted on social media and be framed in ways that I found genuinely shocking. In the moment, my goal was extricating myself from the situation safely without escalating it. In retrospect, I certainly should have remained in my car, locked it, and called the police. (emphasis added)

I find this explanation credible. It is consistent with what is visible in the videos, and it parsimoniously explains why his May 1 statement said what it did. Taking what he now says at face value, I belive that his May 1 statement was false but not intentionally so. In particular:

1. The “banging on the windows,” “shouting,” and “surround[ing]” the car take place after he backed into the student (and in substantial part because of it). These claims no longer read as excuses by someone who knows he drove his car into someone; they read as context provided by someone who didn’t think he had.
2. “I waited until I saw space behind the car” is a mistake of fact. There was not space, but he thought that there was.
3. The implied claim that he used his car’s safety features to avoid striking anyone is also a mistake of fact. He was under the same incorrect impression that a reader of this passage would take away from it.

You don’t need to agree with me. Indeed, part of the point of having a neutral and thorough adjudication process is so that a well-informed fact-finder can decide whether testimony is credible. All I am saying is that I personally believe Kotlikoff when he now says that he didn’t know at the time there was someone behind his car.

If all of this is correct, then many of the other legal consequences I discussed in my op-ed drop away. Battery and assault are intentional torts; without an intent to make contact or create a fear of contact, there is no wrongful act. Reckless endangerment requires recklessness—the “conscious[] disregard[] [of] a substantial and unjustifiable risk “ with a “gross deviation” from a reasonable person’s standard of care. At low speeds the belief that no one is in the car’s path of travel strikes me as a deviation but not necessarily a gross deviation from reasonably careful driving. And if one believes in the truth of what one is saying, there is no wilfully false statement.

On the other hand, this is hardly to say that Kotlikoff comes across well. The assault and endangerment sections of the Student Code of Conduct do not have comparable mental-state elements. A student who engaged in similar conduct and gave a similar statement would still be subject to Cornell discipline. A university president should know better, and should be held at least to the same standards as any other community member.

Even worse is that from at least May 1 onwards—when the Sun first published its story with the student video—Kotlikoff should have known beyond any doubt that he had driven into a student. He should have known beyond any doubt that his statement to the Cornell community was at best deeply misleading. It reflects a serious failure of judgment that he did not correct the record until May 15, a full two weeks later.

I respect that he refained from comment while the Special Committee’s review was pending (i.e. between May 7 and May 15), but that still leaves six days (i.e. from May 1 to May 7) during which he did nothing to set the record straight. Indeed, a vice president who reports directly to him put out a statement (on May 3) purporting to exonerate him but which actually did the opposite.

It is also striking that Kotlikoff’s May 15 statement does not contain any apologies. He does not express any contrition that he drove his car into a student. He does not express regret about misleading the Cornell community. I, for one, think that we are entitled to expect more from our leaders.

3. The Board’s May 15 Statement

Now for the Ad Hoc Special Committee. To summarize its findings:

1. CUPD conducted a professional investigation “without any bias or undue influence.”
2. Kotlikoff provided a sworn statement about the incident, but none of the other individuals present at the scene did so, despite repeated attempts by CUPD to contact them and collect statements.
3. The Tompkins County District Attorney determined that “no criminal charges were warranted against any individuals involved in this matter.”
4. The other individuals’ actions were “inconsistent with university policies governing expressive activity and our standards for respectful conduct, safety, and the prohibition of intimidation.”
5. “President Kotlikoff has declined to pursue a complaint against the students involved, which would have been required to initiate action under the university’s code of conduct. Appropriate action is being taken against the non-students involved.”
6. “President Kotlikoff has shown a steadfast commitment to Cornell’s values and principles, and we are confident he will continue to lead with integrity … .”

You will have noticed, I hope, what is missing from this list. The Special Committe’s statement doesn’t say anything about whether President Kotlikoff acted appropriately on April 30, when he drove his car into a student. It doesn’t say anything about his false statement of May 1, or about his failure to correct that statement once its falsity was apparent. It doesn’t say anything about whether CUPD’s investigation included Kotlikoff’s conduct on April 30, or whether the commitee itself considered his conduct. And when it discusses Kotlikoff’s behavior (as opposed to the other individuals’), it’s about his commitment to freedom of speech, not about driving his car into people.

This isn’t even a whitewash. It’s a brush-off. The reason that the Board of Trustees needed to get involved was that a university’s president cannot in good faith investigate himself. The entire point of appointing a special committee and walling Kotlikoff off from the CUPD investigation was to ensure that someone neutral and detatched, someone with only Cornell’s interests in mind, would take seriously the question of whether he violated Cornell’s standards of conduct and the trust that the university community has placed in him. Everything else is a sideshow.

Instead, the Special Committee seems to have believed that there were two reasons for their involvement: (1) to ensure that any disciplinary action taken against the other individuals would be untainted by Kotlikoff’s influence, and (2) to show that the Board still has confidence in his leadership. Neither of these reasons stands up to serious scrutiny. The issue of disciplinary action is moot, because Kotlikoff chose not to initiate a complaint. And the Board’s confidence is misconceived, because there is no legitimate basis for them to have that confidence unless they have actually seriously considered the reasons other people might question his fitness. If the committee did any of this work, they have not said so.

The Special Committee’s report did Kotlikoff and Cornell no favors. What he needed—what we needed—was a thoughtful discussion of his conduct on April 30 and May 1. The Trustees needed to ask whether it is a problem that the President did not check his rear-view mirrors properly, whether it is a problem that he did not stop after someone shouted that he’d run over their foot, whether it is a problem that he issued a statement without investigating facts within his ability to find out, and whether it is a problem that he failed to correct that statement promptly once he knew it was false. I am willing to accept answers to those questions that differ from my own. I am not willing to accept the implicit assertion that these aren’t even questions worth asking.

4. About the Other Individuals

There is a running theme in much of the commentary on this incident: to make it about the people who followed Kotlikoff to his car. That was the emphasis of his initial May 1 statement, and it is a major theme in his later May 15 statement and the Special Committee’s statement. Simiarly, in letters to the Sun, Paul Muller ‘91 criticized the students involved as “utterly, stupidly pretentious,” and more recently a group of over 500 community members expressed support for Kotlikoff, describing the individuals’ actions as “a breakdown of the rules that protect us all.”

I want to be extremely clear about this. I take no position on their conduct. I have my own thoughts on the matter, and I intend to keep those thoughts to myself. For a detailed discussion of demonstrative protest and the relationship between speech and safety on Cornell campuses, I recommend the report of the Committee on Expressive Activity that I served on. Many other people have weighed in in on the individuals’ actions, and I have linked to their commentaries in the timeline below. I invite you to consider their views and make up your own mind about the appropriateness of disciplinary action, criminal charges, and persona non grata orders.

I say this because it’s dangerously easy to fall into the trap of thinking that exactly one side must be right. If the individuals were behaving threateningly, then Kotlikoff was justified in driving into them—or, if they were acting innocently, then what he did must be grievously wrong. But that’s not how it works. Both sides in a dispute can be behaving well (an impassioned but respectful conversation), or both sides can be behaving badly (a duel with pistols at twenty paces).

Whether these other people crossed a morally or legally significant line is mostly irrelevant to whether President Kotlikoff did. It matters only insofar as they did or did not put him in a state of reasonable fear or confusion that could justify or excuse his actions. By his own later admissions, I think it is fair to say that they did not.

Conclusion

I care about this case because I care deeply about the university that Michael Kotlikoff and the Board of Trustees lead. I care enough to want Cornell to do the right thing, both when other people are behaving well and when they aren’t.

I no longer have confidence in the Special Committee’s members, which means I no longer have confidence in the Chair and the three Vice-Chairs of Cornell’s Board of Trustees. They took on a discrete task of great importance to the university, but they utterly failed to understand the assignment. These are not people who have demonstrated the judgment we require from our leaders. The Board of Trustees should dismiss them and replace them with officers who can actually do their jobs.

Timeline and Source Documents

May 1: Kotlikoff statement: “Harassment and intimidation incident at Day Hall”

May 1, 11:06 PM: Cornell Daily Sun article (including handheld video)

May 1: Kyle Kimball statement: “Video of harassment and intimidation incident at Day Hall” (including security-camera footage) (updated May 3 with “enhanced (zoomed-in and brightened) version”)

May 4: Students for a Democratic Cornell statement: “Statement to the Community Regarding Recent Events”

May 4: Persona non grata order issued to Milton Taam ‘73, per the May 15 Sun article “Alumnus Present at Kotlikoff Car Incident Issued Persona Non Grata, 3-Year Ban From Campus”

May 5, 1:14 PM: Paul Muller ‘91 letter: “Students, Get Over Yourselves”

May 5, 6:18 PM: Cornell Daily Sun editorial: “President Kotlikoff, It’s Time To Hit the Brakes”

May 6, 12:00 PM: Graduate student op-ed: “Kotlikoff Must Resign”

May 7, 5:00 PM: Cornell AAUP op-ed: “President Kotlikoff’s Actions Demand an Independent Investigation”

May 7, 5:28 PM, “Statement from Ad Hoc Special Committee of the Board of Trustees on Investigation”

May 7, 7:30 PM: James Grimmelmann op-ed: “Kotlikoff Makes the Rules; He Needs to Follow Them Too”

May 15, 10:03 AM: “Statement from Ad Hoc Special Committee of the Board of Trustees”

May 15, 3:40 PM: Kotlikoff statement: “Observations on April 30 incident”

May 18, 4:00 PM: Letter from 500 community members, “In Support of Peaceful Protest”

May 20, 12:00 PM: Paul Sawyer op-ed: “Kotlikoff’s Record on Dissent Raises Concerns About His Fitness to Lead Cornell”

May 20, 5:30 PM: Milton Taam op-ed: “Kotlikoff Weaponizes Dialogue”

May 20: “Inter-organization statement on April 30/May 1 incident””

May 21, 4:22 PM: Joseph Margulies ‘82 op-ed: “The Potemkin Process”

Here in higher education, the capitulations will continue until morale improves. After Columbia’s shameful deal with the Trump administration last summer, I pledged not to donate to the university or to perform any service for it unless and until it repents and atones. Since then, several other universities have followed suit. I want to focus on two—Northwestern and Cornell—that raise similar enough issues to require a response on my part.

Start with Northwestern. Although its agreement includes a disclaimer that it does not give the “United States authority to dictate faculty hiring, University hiring, admission decisions, Northwestern’s curriculum, or the content of academic speech and research,” several provisions do in fact trade away core university principles of institutional autonomy, academic freedom, and openness to all. Among other things, the agreement requires Northwestern to disband one committee (§ 10) and create another (§ 15), prohibit nondisruptive acts of protest (§ 13), change its admissions (§ 21) and hiring (§ 25) in ways that make it harder to prevent invidious discrimination, prohibit diversity statements in hiring (§ 26), exclude trans women from female-designated athletic facilities (§ 28), and cease providing gender-affirming care to minors (§ 29). The university is also paying $75 million in what can only be described as protection money. I regret to say that Northwestern has compromised its fundamental values in the name of expedience, just as Columbia did.

As a result, I’m adding Northwestern to my pledge. I will not speak at conferences held at or organized by Northwestern. I will not publish with Northwestern publications or provide peer reviews for them. I will not provide outside tenure evaluations for Northwestern departments. I will not contribute in any way to the institution until everyone who is responsible for its shameful decision has resigned, retired, or been fired, and until Northwestern repudiates their catastrophic choice. If any other universities strike similarly repugnant deals, I will add them as well.

Now for Cornell. Things here are different in two ways. First, while its agreement is not good, it is nowhere near as bad as Columbia’s or Northwestern’s. Unlike their deals, there are no terms in Cornell’s that significantly compromise the academic freedom of the university’s affiliates or the university’s own institutional autonomy. My colleague Nate Foster and our local AAUP chapter have published thoughtful critiques of the Cornell agreement. I agree with their criticisms of the provisions on admissions data, campus climate surveys, and providing tendentious training materials to faculty and staff. But I think that while these terms are harmful and ill-advised, none of them cut to the heart of what it means to be a university.

The worst terms in the Cornell agreement are the financial ones. Cornell will pay $30 million to the federal government over three years. This is straight-up protection money, and paying it is shameful. Cornell has also pledged to spend $30 million on programs that combine agriculture with AI and robotics. Although the money will be spent on potentially worthwhile research, this particular cause is serving as such an obvious fig leaf that in a way it is even more embarassing. This said, I have seen universities lose far larger sums in even more pathetic ways. I don’t feel that mishandling money like this requires me or others to avoid performing academic service for Cornell. (Donors, however, might rightly question whether they should be supporting a university that squanders its money on bribes to a bullying government.)

The other relevant difference for Cornell is that I work here. My labor is not a gift that I gave freely and can freely suspend. I negotiated the terms under which I provide my labor to the university. Among those terms is that they pay me. The roof over my head and the food on my table are not trifles. For my part, I’ve promised to teach my courses, advise my students, perform my research, serve on commitees, and do the million other things that make up the job of a professor.

There’s something else to this, too. I’m a member of a community here, one with tighter bonds and greater commitments than the general worldwide community of scholars. I have obligations. My students are counting on me. My advisees are counting on me. My colleagues are counting on me. I know the names of the people who’ll be left in the lurch if I don’t show up to class. They signed up to take my course, with me. My first responsibility is to them, because, again, this is what it means to work at a university.

This is not to say that I feel obliged to support Cornell no matter what. There is no institution in the world that you should support no matter what. Rather, as I said last time, universities exist to promote the discovery, preservation, and transmission of knowledge, and upholding that value means different things depending on one’s relationship to the university in question. I can certainly imagine that Cornell could do things so repugnant that I would feel obliged to resign—but the bar is much higher when it comes to one’s own university.

Universities exist to promote the discovery, preservation, and transmission of knowledge. While they can help make to make a society virtuous, prosperous, and free, they do so by pursing their mission, which is truth. They can offer their service to government, but it is not their purpose to serve it. If the civil power makes demands of them that are incompatible with their commitment to the freedom of thought, they are bound in conscience to refuse.

In pursuit of its political goals, the Trump administration has attempted to intimidate and extort numerous universities. It has threatened them with with severe consequences, including the loss of federal funding, termination of accreditation, and denial of the ability to enroll foreign students. Some have resisted, filing lawsuits against these unlawful threats. Others have capitulated, including most recently Columbia University.

Columbia’s agreement with the federal government includes a $200 million fine, restrictions on its admissions and hiring processes, modified disciplinary processes, mandatory faculty appointments, and changes to its curriculum and educational programs. No court has held that these changes are required by law, and many of them are seriously inconsistent with Columbia’s purported commitments to institutional autonomy, academic freedom, and a campus environment that is welcoming to all.

Columbia’s actions are immoral, unwise, and dangerous. In the name of compromise with the administration, it has compromised the core values to which universities are dedicated. Worse, it has done so in the face of a widespread authoritarian crackdown not just on higher education, but on all the civic instutitions of a free society: the legal profession, the news media, nonprofit organizations, and many more. Columbia’s failure to defend its own freedoms threatens those freedoms for all. It gives aid and comfort to tyrants, and exposes others to the same kind of extortionate threats.

Universities have institutional moral standing because they stand apart from private profit and public power. The knowledge they produce and maintain is not reducible to the coin of the realm, and so they can legitimately call upon the generosity of others to sustain their mission. The alumni donor who writes a check and the outside reviewer who writes a tenure letter are participating in a gift economy built on payment forward rather than on payment in return. They give purely so that knowledge may grow and continue—or at least that is what the university should be able tell them with a straight face when it calls upon their aid.

Columbia can do so no longer. Along with the $200 million and the laundry list of promises, Columbia has traded away its soul. How can a university that lets the government illegally dictate who it admits and hires tell its faculty and students that they are truly free to think for themselves and say what they believe? It cannot. How can a university that pays Dane-geld promise donors that their geld will not go straight to the Dane? It cannot. How can a university that grovels in the face of demands for ideological control assure speakers that they are contributing to learning and not just the accumulation of power? It cannot.

Or so it seems to me. As an academic, I have committed myself to the mission of the university, to the pursuit of knowledge, to the continuation of the three-thousand-year tradition we have inherited. And unlike the cowards, quislings, and fools who run Columbia, I remember why we do what we do—and what we must not do.

I pledge that I will not provide any service to Columbia University. I will not speak at conferences held at or organized by Columbia. I will not publish with Columbia publications or provide peer reviews for them. I will not provide outside tenure evaluations for Columbia departments. I will not contribute in any way to the institution until everyone who is responsible for this week’s shameful decision has resigned, retired, or been fired, and until Columbia repudiates their catastrophic choice.

Although it may seem like a thin distinction, this is not a boycott of Columbia’s faculty and students. I have many Columbia-affiliated friends and colleagues who are in no way responsible for this week’s debacle—indeed, many of them made heroic efforts to prevent it. They are committed to knowledge and freedom, even if their university is not. I will continue to work with Columbia scholars and speak with Columbia students, as I always have. That too is part of the mission of the university; the community of scholars knows no borders and answers to no authority. It is Columbia the institution that has gone wrong, and it is from Columbia the institution that I withhold my aid.

I have a choice of where I will put my efforts in my limited time on this earth. There are many good causes, both within the academy and beyond. There is no shortage of work to be done, now more than ever. I will do what I have always done, which is what I can. It just won’t be for Columbia.

I am serving on Cornell’s Committee on Campus Expressive Activity. We have been charged with “making recommendations for the formulation of a Cornell policy that both protects free expression and the right to protest, while establishing content-neutral limits that ensure the ability of the university community to pursue its mission.” Our mission includes formulating a replacement for Cornell’s controversial Interim Expressive Activity Policy, making recommendations about how the university should respond to violations of the policy, and educating faculty, staff, and students about the policy and the values at stake.

I have resolved that while I am serving on the committee, I will not sign letters or other policy statements on these issues. This is a blanket abstention. It does not reflect any agreement or disagreement with the specifics of a statement within the scope of what the committee will consider.

This is not because I have no views on free speech, universities’ mission, protests, and student discipline. I do. Some of them are public because I have written about them at length; others are private because I have never shared them with anyone; most are somewhere in between. Some of these views are strongly held; others are so tentative they could shift in a light breeze.

Instead, I believe that a principled open-mindedness is one of the most important things I can bring to the committee. This has been a difficult year for Cornell, as for many other colleges and universities. Frustration is high, and trust is low.A good policy can help repair some of this damage. It should help students feel safe, respected, welcomed, and heard. It should help community members be able to trust the administration, and each other. Everyone should be able to feel that the policy was created and is being applied fairly, honestly, and justly. Whether or not we achieve that goal, we have to try.

I think that signing my name to something is a commitment. It means that I endorse what it says, and that I am prepared to defend those views in detail if challenged. If I sign a letter now, and then vote for a committee report that endorses something different, I think my co-signers would be entitled to ask me to explain why my thinking had changed. And if I sign a letter now, I think someone who disagrees with it would be entitled to ask whether I am as ready to listen to their views as I should be.

Other members of the committee may reach different conclusions about what and when to sign, and I respect their choices. My stance reflects my individual views on what signing a letter means, and about what I personally can bring to the committee. Others have different but entirely reasonable views.

I also have colleagues and students who have views on the issues the committee will discuss. They will share many of those views, in open letters, op-eds, and other fora. This is a good thing. They have things to say that the community, the administration, and the committee should hear. I don’t disapprove of their views by not signing; I don’t endorse those views, either. I’m just abstaining for now, because my most important job, while the committee’s work is ongoing, is to listen.

I have just posted a short essay, Scholars, Teachers, and Servants, which sets out my views on the essence of a professor’s job. The heart of an academic’s duty is research in the pursuit of truth; scholarship, teaching, and service are three different but mutually supporting uses of the fruits of research. I also say a bit about intellectual corruption, academic freedom, tenure, free speech, and some of the special characteristics of legal academia.

Most of the essay is not new. I wrote it for Jotwell’s fifth-anniversary conference in 2014, Legal Scholarship We Like and Why It Matters, then put it aside while I worked on other things. But recent events have convinced me of the topic’s urgency, so I’ve decided that rather than work on it or sit on it indefinitely, I should post it now with minimal revisions.

I expect higher education to come under a great deal of pressure in the coming years: some political, some financial, some moral, some intellectual. A lot of people will be shouting a lot of things about what universities and professors ought to be doing. Some of it will come from the academy’s enemies, who would like to destroy its institutions, either out of malign contempt or simple expedience. But some of it will come from the academy’s supposed friends, who will ask it to do things it cannot do well while forsaking the ones it can. I’m posting the essay now, in calmer times, as a reminder to myself of what I believe, to help me keep my own intellectual footing in the storms to come. If it is of any use to others, so much the better.

My casebook says things like, “This case involves allegations of online harassment and threats of violence.“ This raises two questions. If a case needs a warning, why include it at all? And if a case is is worth including, why warn students about it? To some people, the first question is more troubling; to others, the second.

My book and my courses feature a wide range of materials I have selected because I think they provide the best learning experience. Some of those materials are upsetting, not because I want to make my classes upsetting for its own sake, but because the world we live in is upsetting. (If you can read U.S. v Petrovic with no emotional reaction, check your empathy lobe.) Much of the anti-“trigger warning” discourse proceeds as though the classroom ideal is complete and detached emotional obliviousness. But that’s not right. It’s best to be able to encounter material – and the world – as complete human beings, both rational and emotional.

This is why the ideal of the university is an intellectual safe space – where ideas are safe to discuss, but we are also safe from them. A good classroom is one where everyone is genuinely comfortable taking on difficult material. My job is to help build that comfort. (I say help build rather than assume or impose.) That content warning is also a content assurance: we are in this together.

It’s ironic when professors give speeches about why they don’t give trigger warnings. What else are the speeches but trigger warnings given further in advance? I prefer ones closer in time, to flag the specific materials that call for more care. Maybe you want to leave yourself a few minutes before class to rest and compose yourself, maybe you don’t. I respect you enough to let you make that call. 99% of the time, there is no reason in the world to ambush students with challenging and troubling material. Present, yes; ambush, no.

As for opting out of those discussions, there are often good pedagogical reasons not to allow it. Class proceeds on a schedule; discussions are shared experiences; a course is a coherent program of study; some topics are important to pass by. Often – but not always. Sometimes a student can do an alternative assignment with no great loss of learning and without disrupting the rest of the class.

I pick the readings I think are best overall, but it’s not as though our syllabi come to us from the transcendent realm of Plato’s Forms. I make these decisions in the abstract, before the semester. But when it comes time to work with particular students, it’s often the case that there are readings and discussion topics I could replace with ones that are better for them. If a student has experience with patent law, it does little good to make them sit through Prometheus v. Mayo again. The same is true for the student who has experience with sexual assault.

Two stories. First, my recent draft on the CFAA makes a lot of comparisons with rape law in understanding “authorization” under the CFAA. A student who read the draft thought it was distracting. I thought long and hard about whether I could make the points differently. I kept most of the discussion, because the legal theory on consent has been developed most extensively and clearly in thinking about rape law. But some of the examples really were unnecessary, or could be replaced with ones drawn from elsewhere, e.g. theft law. I’ve changed them in the version that will be published. Is my paper worse because I deviated from my original ideal? No. It’s better now. A good paper is one that convinces actual readers.

Second story. I started law school in the fall of 2002. The one-year anniversary of September 11 fell on a day I had Constitutional Law. My professor decided to mark the occasion by giving a mini-speech extolling why September 11 showed the importance of the Constitution. I stood up quietly, left, and came back five minutes later, after he was done. Draw whatever conclusions you wish.

Thanks to Chris Peterson for Storifying the tweets on which this post is based.

Greg Lastowka died last night, much too young, after a long and difficult struggle with a rare and aggressive throat cancer. Greg was a law professor at Rutgers-Camden, the world’s leading legal academic authority on virtual worlds and online games, and a friend. He will be missed.

I discovered Greg’s work the way a great many people did: through his groundbreaking 2004 article with Dan Hunter, The Laws of the Virtual Worlds. It gave the first in-depth treatment of virtual worlds in the legal literature, and it posed fundamental questions about how property and governance ought to work online. When it hit SSRN, I had just competed a long and sprawling paper on law in virtual worlds, and my first reaction – after the sinking sense of being preempted – was to wonder just who it was who had beaten me to the punch.

The answer, it turned out, was a modest, generous, and thoughtful young law professor who was more interested in being part of a thriving academic community than in building a superstar’s reputation for himself. Greg, I came to learn, was a loving husband and father, a former Peace Corps volunteer who had served in Turkmenistan, and a dedicated public servant who took on the most unbelievably thankless tasks that university administrations can slough off onto their faculty. He was a booster of good scholarship wherever it could be found, a low-key and patient institution-builder, and a calming presence in contentious debates. Greg was a mensch.

He was a generation ahead of me in the academy, and he was one of my favorite people to see at conferences. We wrote on overlapping topics and he was helpful and encouraging to me on many occasions, something that matters a lot when you are just setting out in the academy. One of the great satisfactions of my first few years of teaching was to give a reader’s report enthusiastically advising Yale University Press to publish his book, Virtual Justice. Greg built a professional and personal identity for himself that struck me as very much worth emulating. At work, he studied amateur creativity in Minecraft; at home, he played Minecraft with his son the precocious programmer.

His illness was a bolt from the blue. It came on quickly and awfully, and gave him no good options. He tried experimental therapy, but he also – from what I could see – made his peace. He spent his final year with his family, whom I have never met but feel almost like I know through Greg’s wonderful stories. And he connected with his friends and colleagues, old and new. He was a gentleman to the last.

Good bye, Greg. Thank you for logging in and playing awhile with us.

Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legal academy. He frequently collaborates with colleagues, offers extensive comments at conferences, and works tirelessly to build the community. The rest of us aspire to do one fifth as much one fifth as generously.

This is necessary background to my explanation of my concerns with Lemley’s latest essay, Faith-Based Intellectual Property.¹ The essay is an edited version of the Melville B. Nimmer Memorial Lecture, which he delivered at UCLA in the fall, and it will be published in the UCLA Law Review. The best summary of the argument is Lemley’s own:

The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t justify IP rights. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society. (1)

The essay makes six notable claims, all of them on display in this summary. I would like to unpack the rhetoric going into them.

First, Lemley argues that “it is far from clear that IP is doing the world more good than harm.” (7) The essay devotes several extensively footnoted pages to backing up this statement. It runs through experimental, sociological, and econometric studies that consider the relationship between intellectual property law and how people actually behave. Lemley concludes that the evidence about intellectual property’s effects is “complicated” (6) and “decidedly ambiguous” (7). As he summarizes,

The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy. The studies of the behavior of artists and inventors are similarly complicated. Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so. At the same time, the money provided by IP allows the existence of a professional creative class that may be desirable for distributional reasons or because we like the sorts of things they create more than we do the work of amateurs.

In presenting this overview of the evidence, Lemley straightforwardly lays out his own epistemological and normative commitments: he is an empiricist and a utilitarian.

Second, Lemley refers to two “sides of the IP debates.” (8) One of those sides supports “expanding IP rights” (7), or at least “like[s] the status quo” (8). The other side prefers “weaker IP rights” (15).

The third claim builds on the second: only one of these two “sides” really cares about empirical truth, and it is the side Lemley is on, the side of the intellectual property skeptics. His opponents “have instead sought ways to ignore the evidence and keep on doing what they have always been doing” (7), in part by “retreat[ing] to a belief system that doesn’t require evidence at all” (8). He writes, “If you like the status quo, the very last thing you want, it seems, is to take a good hard look at whether it is working” (8), and quotes critically Richard Spinello and Maria Bottis’s A Defense of Intellectual Property Rights, which in his view “avoids the need for empirical validation” (10).

Fourth, the essay rejects all normative frameworks other than Lemley’s own. He criticizes scholars who have “jettison[ed] utilitarianism for talk of morality.” (9). He argues that non-utilitarian theories are problematic because they are “impervious” (18) to evidence, because they cannot supply “limiting principle[s]” (15), because “it is awfully hard to come up with a moral theory of IP that can explain” why one person’s right to own information trumps someone else’s right to use it (15), and because they are “not really about maximizing value at all.” (14) Ultimately, he writes, “the move to moral justifications is designed to bias the analysis in favor of the IP owner.” (16)

The essay’s fifth claim turns the same normative and methodological critique against scholars on Lemley’s own “side.” He writes, “The ‘information wants to be free’ crowd is often guilty of the same sort of conduct, substituting a freedom-based or cultural vision of the way they think the world should be for reasoned analysis based on the evidence.” (16-17) The footnote that follows disapprovingly cites Hugh Breakey, Amy Kapczynski, Anupam Chander, and Madhavi Sunder for making non-utilitarian arguments. The Kapczynski article, for example, argues for considering distributive justice and not just overall social welfare in setting intellectual property policy. The implication is that Mark Lemley disagrees and that Kapczynski’s concern for equality is a “flight from evidence toward belief.” (16)

These first five claims, taken together, are a familiar political strategy. They assert that the world is divided into two parties (second claim), that the evidence favors the speaker’s party’s position (first claim), that the other party refuses to admit that it is wrong on the facts (third claim), that the the other party’s worldview is illegitimate (fourth claim), and and that ideological purity is a condition of membership in one’s own party (fifth claim). This is how pundits and politicians argue all the time. It is a little startling to see such rhetoric used in a debate among academics.

It is the sixth and final claim that really sets Faith-Based Intellectual Property apart. As the title suggests, the essay recasts academic debates about intellectual property as a conflict between science and religion. On the one hand, Lemley links skepticism about intellectual property to the Enlightenment project of rationality:

“We live in an age of reason. Or at least, we’re supposed to. Science has explained most of the things that in a prior era seemed like magic or the will of the gods, from the seasons to lightning and thunder to the diversity of the natural world. … The age of reason has extended to the economy.” (1)

“If we had evidence that any other kind of government regulation – or medical advice, for that matter – probably wasn’t helping much, or was only helping people in a few specialized areas, and might in fact be making things worse, the enlightened, reasonable thing to do would be to reassess that policy.” (7)

On the other hand, he describes support for intellectual property as a kind of religious superstition:

I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself – that IP is some kind of prepolitical right to which inventors and creators are entitled. Because that is a belief, evidence cannot shake it any more than I can persuade someone who believes in the literal truth of the bible that their god didn’t create the world in seven days. Sure, there may be geological and archeological evidence that makes the seven-day story implausible. But faith is not just ambivalent about evidentiary support; it is remarkably resistant to evidentiary challenge. (10)

Citing Karl Popper, Lemley adds, “Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.” (18) The comparison is inapt. Just as evidence proved one theory about the motion of the planets and disproved another, evidence might prove or disprove empirical claims relevant to a given theory. But empirical evidence cannot settle foundational moral questions of what is best. Lemley’s utilitarianism is no more falsifiable than Spinello and Bottis’s “natural law” (9) or Kapczynski’s distributive justice.

Instead, the metaphor that support for intellectual property is a kind of religious belief is doing a different type of rhetorical work. It links Lemley’s skepticism about intellectual property to modern secular liberalism, and brands his opponents as irrational, close-minded, and culturally conservative. Readers whose religious faith plays a significant role in their lives may find this equation unconvincing, or even baffling. But I suspect that such readers are a fraction of the essay’s intended audience of law professors. By and large, intellectual property scholars are heirs to the Enlightenment tradition. They share broadly humanist values and prize reasoned debate over appeals to revelation or authority. They work in basically secular institutions; their politics often tend toward solidly Democratic liberalism. “Faith” is a pejorative in the language of academic discourse.

Lemley’s essay is an attempt to turn a scholarly debate into a culture war. It takes questions about which reasonable minds can and do disagree and recasts them such that reasonable minds cannot disagree because one of the alternatives is by definition unreasoned. In so doing, it harnesses intellectual property law – not usually thought of as a fraught subject – to genuinely divisive controversies. The anti-religious frame of Faith-Based Intellectual Property is familiar from the fights over abortion, same-sex marriage, and Hobby Lobby. This kind of culturally charged polarization might or might not be an effective tactic in pushing back against strong intellectual property laws. But it is a disappointing development for intellectual property scholarship.

In his conclusion, Lemley writes:

But if you are one of the faithful, I probably haven’t persuaded you. The psychology literature suggests that while people are willing to be corrected about factual inaccuracies – things they think are true but are not – they are essentially impervious to correction once the thing that turns out to be untrue crosses the line into a belief. And that leads me to the last – and, to me, most worrisome – problem with faith-based IP. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong. The inevitable result of a move toward faith-based IP is that we will make policy based on our instincts without being able to engage in a meaningful conversation about the wisdom of that policy.

This is the last and most unfortunate consequence of turning conversations into culture wars. The central claim of the Cultural Cognition Project is that once people perceive an issue as a cultural litmus test, they harden their positions because changing their minds would call into question affiliations they consider central to their identities. This is not unique to religious belief; it is a general characteristic of any issue that plays a role in defining competing group identities. Recasting an empirical issue in cultural terms, as Lemley has done, makes it harder, not easier to reach empirical consensus. I consider it a regrettable turn for a scholarly community that has largely been cordial, collegial, and supportive – as exemplified by Mark Lemley himself.

Other discussion of Faith-Based Intellectual Property includes posts by Amy Landers, Lisa Larrimore Oullette, Jeremy Sheff, and Lawrence Solum. ↩︎

Law review publishing is weird. Any system that runs on massive simultaneous submission is bound to be. Everyone who’s published a law review article knows the wistful feeling that comes after you accept an offer of publication and now need to tell the other journals that your article is taken. There is always that sense of what might have been, the temptation to hold off sending the email just a few more minutes. Prestigious Law Journal never got back to me. What if?

Then, if you are a normal person, you put the feeling aside and hit “send,” because you gave your word to the first journal when you accepted their offer, and it is time to move on and get back to prepping for tomorrow’s class. But every so often, someone gets that second email out of the blue, and the temptation to procrastinate turns into a different and much worse one. An offer from the Prestigious Law Review – how could I turn that down?

A few weeks ago, Dave Hoffman at PrawfsBlawg wrote about someone facing that second temptation, and giving in:

… And, though I’ve been teaching for over a decade, and heard literally dozens of stories like this, I’d never actually heard of anyone backing out of a law review acceptance until this cycle. Temple just had someone back out. Because that person is junior – and no doubt listening to a more senior mentor’s advice – I’m not going to provide more details. I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether publication decommitments are more widespread than I’d thought, and whether journals could (or should) do anything to stop them.

Dave’s post sparked a long and interesting discussion about the complicated ethics of the law review submission process. I found one aspect of the conversation troubling; it has been gnawing at me for a while. Several of the commenters brought contract theory into play, and argued that backing out of a law review publication agreement to take a “better” offer is a case of efficient breach. The gains to the author who runs off with Dustin Hoffman outweigh the losses to the journal left standing at the altar. Other commenters objected that the author doesn’t actually compensate the journal for its loss, as a breaching party in a contract case would be expected to. Orin Kerr playfully suggested that a “liquidated damages condition for withdrawal” might be the answer, because “law review editors get a lot of beer money if the author backs out, which they’re happy to have, and the author can pay the damages and accept the better offer, which the author prefers.”

I find the whole line of analysis problematic, because it misdescribes the relationship between authors and journals. They don’t interact in a market with prices and payments; if they did, the system of selection for scholarly quality would collapse in short order, and with it a large part of law reviews’ reason for being.

Law reviews ration article slots rather than auctioning them; the author-journal matching process doesn’t reflect willingness to pay. But that means there are significant externalities to the publication contract; authors and journals don’t fully internalize the effects on the other parties they deal with. The private costs to an author and a journal dealing with each other will almost always depart significantly from the overall social cost of their actions.

Suppose that Professor Cutpurse has already agreed to publish with the Podunk Law Review when he gets an offer from the Ivy Law Review. If Professor Cutpurse backs out, then Podunk will fill the slot by accepting an article from a second author: Professor Peppercorn. But if Professor Cutpurse doesn’t back out, then Ivy will fill its slot by accepting an article by a third author: Professor Scratchgrab. When you take into account Professors Peppercorn and Scratchgrab’s own offers and decisions, there are ripple effects for still more authors and journals.

Hence we can’t show that what is efficient between the author and the less prestigious journal is efficient taking into account the other affected parties. It might be. It might not. But we have no strong reason to think that it will be. The fact that the author values a placement with the more prestigious journal more than the less prestigious journal values publishing this particular author tells us almost nothing, because this will almost always be the case.

Some numbers will illustrate the point. Suppose that Professor Cutpurse would pay 100 quatloos to publish with the Ivy Law Review, and that the Podunk Law Review would be wiling to let Professor Cutpurse go for 10 quatloos. Obvious gains from trade, right? Not so fast. The problem is that Professor Scratchgrab would also value the Ivy placement more than her own current best offer from the Generic Law Review. If I had to guess how much Professor Scratchgrab valued an offer from the Ivy Law Review, my mean would be 100 quatloos.¹

Those 100 quatloos of utility for Professor Cutpurse don’t come out of nowhere. The value of an Ivy slot is being allocated to one professor or another, one way or another. Statistically, Cutpurse’s decision to cut and run will tend to be efficiency-improving only if there is some reason why Cutpurse’s situation is special, why Cutpurse really would value the placement more than Scratchgrab, who is next in line at Ivy. But there is no way to know that up front because, the way this market works, neither Cutpurse nor Podunk has any idea who Scratchgrab is. The system does not work in a way that elicits all of the willingness-to-pay information Cutpurse would need to make a good efficient breach argument at the time of breach.

The law review placement process doesn’t ignore price signals because of some kind of regulatory failure. It systematically suppresses them because the process is supposed to reflect something else: scholarly quality. Authors want “prestigious” law review placements because placement is a proxy for the quality of the author’s work rather than the size of the author’s bank account. Put money in the picture and the result is not that authors bid up the price of a slot in the Ivy Law Review but that publication becomes close to worthless for all authors.

There is also a deeper moral concern at work. Law reviews are able to ignore money in making publication offers because they are heavily subsidized with student time and law school dollars, both of which come ultimately from the pockets of law students and taxpayers. The only way in which that subsidy could be anything other than gravely immoral is if publishing scholarship yields social benefits and not just private benefits to Cutpurse.

So the efficient-breach claim (and with it the claim that this should be a matter for negotiation and side payments between Cutpurse and Podunk) is self-defeating. If we looked at law review placement only by asking what authors and law reviews want individually, the entire system would collapse, and would deserve to.

The law review system is broken. But it is not so broken that I would like to tear the whole thing down. And certainly not in this way.

And my best estimate of how much Ivy values publishing Cutpurse than Scratchgrab is 10 quatloos – the same amount Podunk values Cutpurse over Peppercorn. ↩︎