Is this really relevant for the profession? It’s a tawdry affair and private. In what way do either of these parties represent this profession? *Must* I choose one of them as the paragon of the profession and then indignantly take sides?

This lawsuit concerns the two parties and their friends and intimates. If I am neither, it concerns me no more than a lawsuit between any other two members of the profession. Why does THIS lawsuit especially merit the attention of those not close with any of the parties? Is this lawsuit really of profession-wide significance?

For those who are friends with the two being sued, by all means Jenkins and Ichikawa deserve your support and care in these circumstances. But this warranted concern is personal not professional.

I suppose many friends of J&I feel this is of deep political significance. Maybe. But it’s hard to disentangle the personal from the political here. Angry Internet fights between two very prominent academics with full professorships, armies of supporters, and blogs to boot just don’t seem as politically significant as so many other issues (even with this lawsuit thrown in). I do not see my own position in the profession – or the positions of most in the profession – in either of these well-off, politically powerful parties.

I guess I don’t see the point of caring about Leiter’s antics. He’s by his own admission often rude (or at least uncivil) but does not speak for the profession. The APA does that. Can’t we all just start ignoring Leiter’s antics? (I know Jenkins and Ichikawa can’t, but let us learn from this bad situation and treat it as a reason to focus our attention on DN and whatever institutions have a real claim to represent the profession.)

I wish the best for J&I. May this come to a swift satisfying end. They seem like nice enough people. But then again most people in the profession seem nice enough for me to hope that any troubles they face, including not getting a job, not resolving two-body problems, suffering under the burdens of adjuncting, etc., are quickly resolved happily. In fact, I worry more about those people (especially the jobless and marginally employed).

I guess the fact that he has to live with himself every day proves that you get what you deserve.

Also, LOL all day long at the fact that the litigation notice had to include his professorial title. He’s gotta let people know who he is at every turn. It’s like he’s begging to be psychoanalyzed.

Root and others have the relevant law wrong. Prof. Jenkins will need to offer proof of her claimed distress and that it was caused by Prof. Leiter’s conduct. The normal standard is that of a reasonable person.

What was Leiter defamed by? Here is the entire text of Jenkins’ tumblr post:
—

Yesterday was my first day as Full Professor at UBC, so it seemed like as good a time as any to reflect on a few points about how I want to conduct my professional life.
I think of the following as pledges concerning my future behaviour qua professional philosopher. I’m making them public in the hope (and expectation!) of being held accountable to them.* This isn’t a complete list of my aspirations in this domain, of course; just a few basic things to start out with.
When I look at these statements, formulated quite generally as they are, they sound so basic that it feels important for me to note that there have been occasions where I haven’t behaved according to them (and this was received as entirely normal).
1. In my professional capacity, I will treat other philosophers with respect.
• In particular, I will treat other philosophers more junior and/or professionally vulnerable than myself with respect.
• I will not make negative personal comments about individual philosophers in professional contexts.
• If I disagree with someone’s work or ideas, I will find ways to express that disagreement without suggesting the person is unintelligent, lacking in credibility, unfit to be a philosopher, or otherwise undeserving of respect.
• I will not treat other philosophers or their work in ways that are belittling, trivialising, and/or exclusionary.
2. I will not react to behaviour that does not meet the basic standards described in 1 as if it were normal or acceptable within my discipline.
• I will make clear, in public, that in my opinion behaviour which does not meet the basic standards described in 1 is both unprofessional and unethical.**
• I will not accept or treat those whose behaviour regularly fails to meet these standards as normal or representative members of my profession.
• I will not lend my professional authority or support to such behaviour or to the people who regularly engage in it.
3. I will work with like-minded colleagues to find ways to make philosophy a discipline in which junior and otherwise professionally vulnerable academics are not routinely subject to behaviour that does not meet the basic standards described in 1.
* For clarity: it’s not my intention here to suggest that these or similar pledges should be made by every philosopher. These are statements about my own intentions.
** It’s good to get to work on one’s to-do list right away, right?

—

Note that Leiter is not mentioned in this post at all. It was Leiter himself that, egocentrically, assumed it was about him. After Jenkins posted this, Leiter writes to call her a “sanctimonious asshole.” But seriously, who but an asshole could have a problem with this post?

Here are the relevant lines from the September Statement:

“Professor Jenkins has been targeted by Professor Brian Leiter (University of Chicago) with derogatory and intimidating remarks privately by email in July, and recently with further derogatory remarks publicly on Twitter.” – TRUE

“Professor Jenkins wrote the following blog post in July:
http://csi-jenkins.tumblr.com/post/90563605390/day-one
in response to which Professor Leiter sent her an email saying that she comes across as a “sanctimonious asshole” (and indicating that he is not sure whether “in real life” she is a sanctimonious asshole or a “civilized person”). The email also intimates that Professor Leiter is contemplating litigation against Professor Jenkins, states that he is wondering “what she is ‘thinking’ if anything”, and asks if she plans to spit at him at the APA or chase him with a bat.” – TRUE

“He has now followed this up by saying publicly on Twitter that he has called Carrie a “sanctimonious arse”. He sent her another email in an attempt to apologise for ‘upsetting her’, “ – TRUE

“The effects of this on Professor Jenkins since July have been very serious, impacting her health, her capacity to work, and her ability to contribute to public discourse as a member of the profession.” – This is what’s disputed, but there seems to be evidence that it is TRUE.

(As far as I can tell, the September Statement does not use the word “tormenter” to describe Leiter — a word that only appears in HIS lawyer’s letter.)

—

Brian Leiter’s lawsuit threat is pathetic bluster aimed at scaring the entire profession away from criticizing him and his awful behavior. This is not the first time he has threatened stupid lawsuits, and it probably won’t be the last. I hope we stand together and make it clear that we disapprove of his strong arm (not to mention ineffectual) tactics to protect himself from criticism.

Ah well, time to add Leiter to that excellent category of people who can dish it but can’t take it.

Anon Grad Student and Bogart:
I simplified the issues because this is a non-attorney audience. While I am not a Canadian lawyer, I am a lawyer; I presume you are not. Anon, my point was that Leiter has a much harder burden than Jenkins when it comes to establishing what she felt. I was speaking in terms of litigation strategy rather than law. Bogart, you are conflating two things I believe; the reasonableness requirement you are talking about would apply only if Jenkins was trying to sue Leiter for an emotional distress tort or something similar. There is certainly no requirement that every time someone expresses how they feel that they are required to legally support that such feelings are reasonable under an objective standard. The central legal question would involve whether Jenkins was telling the truth, not whether her reaction to Leiter was substantiated or not.

New Year’s Resolution: never read Leiter Reports again!

I think this comment by “Towards Clarity” was right, with one exception:

> I take it that when reading Leiter’s lawyer’s letter, we need to keep an eye out for statements that are (a) alleged to be false, and (b) alleged to cause Leiter harm. If so, the only such statements I see are that Leiter was a “tormentor” whose actions had “very serious” “effects” on her, including “impacting her health, her capacity to work, and her ability to contribute to public discourse as a member of the profession.”

The exception is that the claim that Leiter was a “tormentor” doesn’t seem to appear in the September Statement or anywhere else that Jenkins and Ichikawa have been involved in. Unless I’m missing something, it appears for the first time in Leiter’s lawyer’s description of events, even though it occurs in quotation marks there.

Also, about whether the profession as a whole should care about J&I here: if their version of events is correct, then they’re facing a threat of a lawsuit only because they took measured steps to make professional philosophy a safer and more respectful place. Anyone who cares about that ideal should care about this case, assuming their version is true.

Also, if it’s relevant, while Jenkins is a full professor, Ichikawa is untenured.

Perhaps the “tormentor” reference is to this discussion:

http://rgheck.blogspot.com/2014/09/the-more-things-change.html

Anon478 said:
“You may be disgusted, but you also didn’t read: there is nothing in the lawyer’s letter that claims Jenkins’s Tumblr post was defamatory. That was one way in which Ichikawa misrepresented the letter.”

Leiter’s purported cause of action is libel, which is a species of defamation, so Ichikawa made no such misrepresentation.

Ditto–viz., I, too, feel like I need to shower after reading Leiter Reports.

Anon Grad Student: do you really think Jenkins just made up her distress? All she has to do is testify about what she says she went through, and put witnesses up who can testify as to her behavior around the time. She doesn’t have to show that her mental distress reached some
specific level or objective standard of mental damage beyond what she said. How on earth would he disprove this? No reputable psychologist would testify that he or she is certain she was lying about this. No jury or judge is going to see Leiter’s communications and not believe it. The prior medical condition, even if true, isn’t relevant. All she needs to do is show that she subjectively felt this way based in his communications.

I was just reviewing the Septmeber Statement material l, including reading Professor Jenkins tumblr, and came across this passage she wrote 9/25, “Some people have mistakenly attributed bravery to me; I have to correct this misattribution. I have been mostly just very scared, and at times despairing. The people who are standing up to take action are the people who are brave. I’m certainly no cartoon hero, and I want to emphasize that nobody here is a cartoon villain either. Everyone involved is a real, complex person.” I think it is a fairly interesting paragraph, especially the last two sentences, but I also find her statements regarding being scared and in despair to be pretty significant given Professor Leiter’s position regarding the statements that are alleged to be defamatory.

Root,

Thanks for that. I had imagined that Leiter’s strategy would be to show that Jenkins had given x talks, written x papers, and so on during or since the time of their exchange, and then to argue that, because her level of professional activity during this time is roughly comparable to her activity prior to the conflict, her claims are simply not true. But I have no idea about the relevant law and, as I said before, no real sympathy for either party.

Transparent attempt to try to chill speech, no one should be cowed by this. The only reasonable response is utter and abject disdain and shunning of Leiter.

I’ve no idea how accurate the Wikipedia article on Canadian defamation law is, and I’m certainly no lawyer. But here’s the link:

http://en.wikipedia.org/wiki/Canadian_defamation_law

I found this remark (in the article) fairly interesting: ‘Broadly, Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.’

If it’s correct, then a) the joke about Canadians being under a legal obligation to be nice probably isn’t a joke after all; b) one could probably be sued for saying so ; and c) not much follows from a legal response to being sued over a statement not insisting on a statement’s truth.

I wouldn’t be surprised if Leiter was aware of this. It’s interesting that he chooses to use the words ‘smear’ and ‘innuendo’ so much when describing other people’s words and actions.

“No reputable psychologist would testify that he or she is certain she was lying about this.”

What matters is not whether a reputable psychologist would testify to certainty that CJI was lying, but whether any would admit to doubt about whether what she said was true.
As Ligurio suspects, evidence about behavior is quite adequate to meet the Preponderance standard for a conclusion about distress. There is no particular problem in principle.

Before we commence “shunning” (a new favorite remedy around these parts), maybe we should wait to find out who is the real wrongdoer? Until the facts are adjudicated, we do not know. Friends of CJI and JJI will support them, friends of BL will support him, others may wait to see what else becomes known.

Another anony, @62, I don’t accept your claim that we should subordinate our judgment as to collegial behavior to the Canadian legal system’s means of handling libel suits. Indeed, as no suit has yet been filed, what is under discussion is Brian Leiter’s having his lawyer threaten suit against some of our colleagues over what amounts to a blog fight.

So we are perfectly well able to say, and I do say it, that Leiter is wrong to have had his lawyer write such a letter, regardless of how the eventual suit might turn out. What is collegial is more restrictive than what is legal; it is within Leiter’s legal rights to have his lawyer write letters threatening suit over a matter of such triviality, but it is wrong of him to do so in any sense of collegiality that values reasoned discourse and avoids legal bluster.

Leiter had his chance to argue his case for having been wronged in the blogosphere; that he has recourse to the law to make up for what he must feel was his inability to win there is a perfectly good topic of discussion well before any suit occurs, let alone the result of the suit.

@Another Professor (#65): You nailed it.

For 1 and 2 you need only look at the evidence he’s adduced for a “smear campaign” over the past several months. For 3 (as well as 1 and 2), you need only look at the current statement on LR. I think a common sense of decency, as well as self protection, would have entirely precluded 4. My strong hunch is that virtually everyone else thinks so too, including his friends.

Someone really needs to sue Leiter and his lawyer buddy for frivolous/vexatious litigation and try to get him disbarred. These lawsuit threats are just absurd — if they actually file a suit based on the stated reasons then it is an obvious abuse of the legal system to harass people. (And no I’m not a lawyer but my spouse is and he agrees completely).

Huh, a Nietzsche scholar who sues when insulted. Will he sue Nietzsche soon?

—

A: I feel bullied by you.

B: I will sue you now for lying about how you feel.

A: Your bullying is evidence that you will misuse your position of power and perhaps we should remove you from that position.

B: I am going to use my connections to the best lawyers to improve the chances of my lawsuit.

What a philosopher! He sues instead of argues!

Is this really the best use of our time? There are thousands of unemployed PhDs who are no worse or better than many employed philosophers. Who cares if the elite are having some infighting? Can we address the profession’s real problems?

HK Anderson @ 73: Amen.

[note: The following is by a lawyer who prefers to remain anonymous, and raises a new legal point; I thought it would be of interest to readers. — JW]

If Professor Leiter was a student, rather than a professor, in a high (or even low) ranked law school, he would not receive a high grade for his defamation threats. This is because the professor and his lawyer have missed the key issue, i.e., whether Canadian law would apply to his threatened action.

Professor Leiter is proposing to become what is somewhat derisively — but nonetheless appropriately — called a defamation tourist.

As Mr. Leiter all but admits, his threats would carry little water if he was threatening to sue – and litigate over/make public the medical history of – a fellow scholar in his current home State of Illinois; rather, his putative claims would likely founder under either or both of Illinois law and the First Amendment.

Leiter, however, seeks to leverage the fact that two of those who supposedly defamed him by — outrageously — claiming that his abusive speech was harmful live in Canada, a nation that lacks many of the the protections for freedom of speech taken for granted by citizens of the U.S. (like Leiter, as evinced by his own habitual attacks on the reputations of others).

Such defamation tourism by foreign plaintiffs has historically been largely tolerated in Canada and other Commonwealth nations. Recently, however, Canada’s Supreme Court has begun to sketch out some common sense limits on the practice. Among other things, the Court has indicated that – in cases arising from Internet communications — it may well be proper to apply the law of the state or nation where the plaintiff primarily suffered the claimed harm to her reputation, rather than the law of the place where the statement was initially published. http://defamationlawblog.ahbl.ca/files/2013/03/Libel-Tourism.pdf (memo on the subject by a Canadian law firm; see in particular concluding paragraphs).

Of course, in Leiter’s case, the primary place of the harm would likely be deemed to be Illinois (or certainly, somewhere in the U.S.). Accordingly, Leiter might travel all the way to Canada to file suit, only to find that Illinois (and U.S. constitutional) law applies to – and dooms – his case. That would be a quite humorously appropriate outcome. That said, insofar as the targets of Leiter’s threats would nonetheless likely have to incur substantial legal costs to reach such a result, I do hope the Professor realizes what a complete fool he is making out of himself (and what additional damage he is doing to his own reputation) and thinks twice before availing himself of the legal system in Canada (or the United States for that matter) in connection with this particular matter.

Also, Leiter (while thinking, not totally accurately, that the 1st Amendment protections of US law do not apply in Canada and/or England & Wales (there are public interest/free speech issues that can be raised in both systems)) fails to really understand a key difference between the legal systems – if a party to civil litigation in Canada, whether plaintiff or defendant, loses a case, that party will normally be ordered by the court to pay some or all of the other side’s costs in respect of the litigation – i.e., the defendant’s attorney’s fees and all other expenses. This “loser pays” regime normally applies to motions, trials and appeals and, as such, represents a significant deterrent to meritless claims, defenses, motions and appeals.

But there is another aspect to the loser pay’s rule – a plaintiff who lacks assets and is not resident in the relevant jurisdiction (England or Canada) can be made to post a bond in the amount of the defendant’s anticipated legal fees and expenses, especially when the non-resident is the plaintiff. This is particularly likely in defamation/libel cases when the plaintiff appears to be forum shopping. So if Leiter, an American plaintiff, has no assets in the Canada, it is very likely that the Canadian court will order him to post security for costs (e.g., by way of bond, payment into court or other arrangement). The amount would be pretty large and can be increased, as the case goes forward. By contrast the Ichikawa’s, being Canadian residents, would face no such obligation. Leiter’s Canadian/English counsel, inter alia, would probably require a hefty retainer (especially if instructing a barrister (solicitors are responsible for the instructed barrister’s fees.) So Leiter would need to put a lot of cash up-front to bring a case.

Actually, to the extent that anyone in the unedifying spectacle of Leiter’s behaviour engages in “libel per se” it is Leiter, who regularly challenges various person’s professional bona fides and suggests that they are mentally ill.

Leiter also seems to suffer from a certain lack of self-awareness. Thus for example, one of the complaints Leiter has against Carrie Jenkins and Jonathan Ishikawa is that she published his e-mail to her, but then on that front Leiter has form, see for example: http://leiterlawschool.typepad.com/leiter/2013/03/we-get-mail-thomas-r-grover-esq-edition.html

Where Leiter published a junior lawyer’s e-mail to him openly indicating that he hoped it would damage the lawyer’s career and employment. The whole thread is quite entertaining in fact in light of Leiter current claims to be wounded.

Then there was the occasion on which Leiter organised a campaign to get the editor of the Synthese journal fired over what Leiter perceived as improper behaviour, see: http://leiterreports.typepad.com/blog/2011/05/petition-to-the-synthese-editors-now-closed.html

And as a lawyer, it is hard to ignore the entire Leiter/Aduren fiasco – which would prove pretty juicy were all the details aired in court.