Wednesday, April 01, 2015

Cassell and Dershowitz to Settle Grudge in MMA Match

by Michael Dorf

Legal scholars and tabloid readers alike have been waiting for months to see what would come of a contretemps between two legal titans who, in early January, traded heated accusations of serious misconduct. Yesterday's news provided a partial answer. Emeritus Harvard Law Professor Alan Dershowitz stunned the blawgosphere when he announced on his Twitter page that he would go "mano a mano w/ soon-to-be-disbarred-hack Cassell in Caesars MMA match."

MMA stands for "mixed martial arts," sometimes known as "ultimate fighting" because the rules permit a variety of fighting techniques drawn from boxing, wrestling, and various martial arts such as karate, judo, and taekwondo. The fight will be held in Caesars Palace in Las Vegas on April 21 and televised on pay-per-view.

The immediate reaction was, naturally, eager anticipation, with commentators disagreeing about who should be considered the early favorite. "Although scrappy by anyone's standards," opined UCLA criminal law expert Eugene Volokh, "Dersh is over a decade older than [University of Utah Law Professor and former federal Judge Paul] Cassell. Plus, this is practically a home game for Paul. I mean Vegas is less than a one-hour plane ride from Salt Lake."

Still, it would be foolhardy to bet against Dershowitz. DoL caught up with his longtime Harvard Law School colleague Charles Nesson in a coffee shop in Amsterdam. "Alan is a fighter," he said, then paused for several minutes while staring intently at the backs of his hands. Professor Nesson finally added, "Alan is a fighter . . . dude."

NYU Law Professor Barry Friedman also expressed admiration for Dershowitz but disappointment that the fight will not occur in Madison Square Garden--which he called the "natural home of no-holds-barred pugilism." (Friedman has sued to invalidate New York State's MMA ban as a violation of the First Amendment.)

Already some observers are comparing the impending match to Ali-Frazier III (the "thrilla in Manilla") or, more ominously, to Hamilton versus Burr. But the matchup is nearly unprecedented.

Nearly. Harvard Law School Dean Martha Minow, who insists that she had no advance knowledge of Professor Dershowitz's plans for the match, explained that her predecessor now-Justice Elena Kagan would "from time to time wrestle faculty members" who were unhappy with their teaching schedule. "But only a few times," Minow hastened to add. "After Elena pinned [critical legal studies pioneer] Duncan [Kennedy] only 30 seconds into the match, people pretty much got the message that you teach your 9 am class and shut up or you could find yourself in the hospital." Asked whether Dershowitz might have gotten the idea for the MMA match from Kagan's approach to difficult faculty, Minow declined to comment further.

Likewise, neither Professor Dershowitz nor Professor Cassell could be reached for comment but nearly everyone with whom I spoke assumes that the MMA match arises out of the legal battle that erupted when Cassell, acting as an attorney, filed papers in a federal lawsuit seeking to vacate a 2008 plea agreement that Dershowitz negotiated for his client Jeffrey Epstein. In the course of arguing on behalf of one of the victims that Epstein's punishment was too light, the papers aver that Epstein forced minor girls to have sex with Dershowitz. Professor Dershowitz emphatically denies the allegations. (More of the backstory can be found here.) Because the accusations were made in court-filed documents, they could not be the basis for a defamation lawsuit by Dershowitz, but after Dershowitz publicly accused Cassell and his co-counsel of lying, they sued Dershowitz for defamation, providing him with his day in court.

The wheels of justice spin slowly, however, so that day will be a long time coming. Meanwhile, the MMA match provides for the possibility of instant closure. Indeed, according to a rumor that could not be verified before this post went up, the loser of the match will issue a public apology to the winner.

It is not clear why either man believes that victory in the MMA match would bring public vindication, given the circumstances of the apology it would occasion. University of Michigan Emeritus Law professor Yale Kamisar slyly speculated that Cassell--a persistent critic of the Supreme Court's landmark ruling in Miranda v. Arizona--might "think that kicking or punching an apology out of a 76-year-old law professor doesn't vitiate its probative value."

So far as Professor Dershowitz is concerned, victory--or even defeat--could bring some measure of satisfaction. As one of his junior colleagues who spoke with DoL only on condition of anonymity explained: "The MMA match can't fully restore Alan's personal good name but it will bring him something he values almost as highly: publicity."