Law in Contemporary Society

Class Notes for Wednesday, 16 January 2008

I decided to take a transcript since I couldn't predict what other people would find important. -andrew

LESSON ONE: LISTEN. Something law school does not teach you to do. Something your career requires you to do, and you will have to do in this class. [I didn't catch the next stuff]

Every day someone should volunteer to take notes, so you learn to share. Will anyone please volunteer to takes notes today?

General admin RE course. I made a topic page, Eben Moglen intro: less than a hundred words on what I wanted from being a lawyer. *In the course of the next 24-36 hours, write 100 word: [yourself]Intro, 100 words or less, about what you wanted out of being a lawyer.* So that we can begin to understand about who we are, why we care, as we talk about what creative legal ideas are.

Participate on the wiki. Comment on the class notes page. We will all go back and look at the comments; some of us will mark them up.

No exams: Exams are stupid, they don't test anything useful, as you've now found out. FORMALLY you owe 3 written exercises not more than 1000 words each. The first two essays will be public, though the wiki structure has access control if you want the classmates not to read. But in general it's better for all to read what others write. These essays are not practically different from your other contributions. Owing to foolish rule, fifty percent of the grade, must be based upon some anonymous activity. Though it doesn't really remain anonymous since it has to be correlated with the attributed part. Odd, that I put a bag on your head, then take the bag off and correlate with the rest of the grade. But at the end of the semester we'll set up the bizarre half-blind mechanism and you'll write your third essay anonymously. And then I'll put that alongside your other two essays and your other contributions to the wiki, and that constitute your grade as a whole.

It's about developing conversations. The goal is to treat all your contributions as communal. Everything you do will be signed in the wiki, and I can evaluate the quality of your contributions, including to what degree they interacted with others students' contributions.

I'll give you the highest grade I can possibly give you. Watch out how meaningless your grades are. The 1L grades are the most meaningless of all. I've taught second semester courses: 1L property, this lots. And so I have seen lots of first semester transcripts. They all bear a very deceptive mark: First semester transcripts plus or minus a half a grade, are almost always the same thing in every course. And the same thing is measured: the speed of language uptake. What you just went through in the first semester is language training by immersion: immersion IN LAW TALK. Semantically similar to English, but grossly culturally distorted.

The speed at which you acquire law talk as a 1L is irrelevant. It doesn't predict anything useful. Whether you learn it this year or next year, you'll know it seventy years from now. Whether you got lawtalk in 2007 and only acquired it in 2008 is not going to be relevant to anything you say in court. All over nothing, over an illusion, over a simple alphabet with a diacritical mark, placed there by what you will see as an irrational process.

Note how the world is ruled by words, and if you are to be a person whose specialty is to be done using them, you should be able to cultivate some critical distance form them or you'll be cooked But cultivating critical distance from the grading system is something the school won't teach you. Grades are designed to make you feel better at someone else's expense. When I came here in the 70s, there was a thriving industry to associate names with the social security numbers posted on the wall. This is a wall made of invisible grades, yet I have watched heads beating themselves bloody against it year after year. Like William Blake, Everywhere I go I hear the sound of mind-forged manacles clanking.

- - - - - - - - - - - - - - - - -

We should make law school more like business school: foster cooperation and teach 21st century technology. Another gripe about law school is that it refuses to learn, so it doesn't stop doing things that don't work. Teachers don't change it because they're lazy, students don't change it because they're frightened. So if we are to become good lawyers, we must learn to overcome other people's inertia and fear.

You're entering a period of enormously rapid social change, which will affect both your personal lives and your legal practice. It will sweep away barriers and nonsense, and cast up new forms of social activity with new rules.

The practice w/ which you're going to engage will be very different from that engaged by firms that today you're afraid won't hire you. If you do what you're trained to do, you'll volunteer to be cut meat for a law firm, and you'll be disappointed because the firm won't be there any more, because the pace of change is very rapid. The smart thing to do (though I'm tenured 50 yrs old don't need to change salary) is to maximize your creativity, because you'll need it to be flexible and be what you're trained to be: young smart people trained to meet the 21st century not the late 19th -- if you train yourselves, because my colleagues won't.

We will investigate 1. the source of creative legal thought, and 2. the source of career creativity. We can look intellectually to try to find what characterizes creative legal minds, that adapt to new situations well and powerfully. However, to understand how to be flexible with respect to one's own life -- how not to be cut meat --

I've been doing this for 21 years, and I've seen many of my peers and students enter careers they're very unhappy with. One of those unhappy lawyers came to see me, feeling trapped in the 6th year feeling overwhelmed with inner anomie. "You told me not to do this and I didn't listen because I missed class so many times." and I said "I know." and he said, "The dean visited my firm, and he told the partners how privileged and proud he and his colleagues were to supply meat for the firms." Moglen: "That's because the law schools cut the checks day to day, because they're too scared to change." This student said he'd never realized that he was a unit of supply, a packaged good; that a conveyor belt had pushed meat to a firm, and that he was a piece, and part of the anomie that he was experiencing was that he didn't find it satisfactory being raw meat.

He had a 2nd kid, bought an apartment. And his wife told him, she understands the concept of downshifting. In theory.

2nd major theme, how not to touch the third rail and die. Of the thousands of law students I've sent into the world, 15-20% were really happy: because they fell in love with a technical specialty; or the money; or they found an outside satisfaction, and could close the door to their house and split their lives.

But I wouldn't take those odds with my life. Even leaving aside the question of whether you want to get anything done in the world. Which, when you were applying to law school, most of you told us you did.

For thousands of years, in English-speaking law, when you finished being trained to be a lawyer you got a law license: a license to do something otherwise not permitted -- seeking and soliciting clients -- to be a person who says, I think you need help, and I can help you; I think you have goals that need furthering and I can help you further those goals.

You become a specialist at making something happen in society using words. That will be my definition in this room of what lawyering is.

There are of course other ways of making things happen, apparently more effective in the short run: bullets, money. The lawyer's premise is that using words, rather, is more likely to achieve the state we call justice. The license is A RIGHT TO TRY THAT OUT.

Yet I have watched thousands of people take that license to a law firm, which is a pawn shop for licenses; and immediately pawned the license in return for a job. The law firm takes the license, tells you which side you're on, what to do, and that you're not allowed to represent anybody except of the pawnshop's choosing. Because the pawn shop's job is to farm out your labor and maximize the number of hours that you work.

The argument in this course will be that pawning a license is a bad idea.

I spend a lot of time figuring out how to free music. Musicians are the people who benefit if it is done right. I grew up at a time when musicians pawned their instruments on fifth avenue between gigs and got a day job. If they had another gig soon enough the instrument would still be there for them to buy back.

The problem with the lawyer who pawns her license is, she never gets it back. Even if the pawn shop lets her go, she never gets it back. She's gotten used to working as a pawn. Now it's scary to use the license. The pawn shop trained her to be a horse in harness, and so she goes and finds another owner, and hope it pays well.

So the second part of the course is to offer you, in the beginning of law school, some questions as a backstop. Keep these in mind when you're at the cocktail parties held by pawn shops. [pregnant pause] We'll look at those two themes in tandem: we'll look at things written about law, but we'll never read a case or statute or regulation in this room: I'm not interested in the official materials of the law for these purposes. There are lots of other people who have things to say about that.

My question is, how do we think about the law when we look outside that little box? What do we think about when we think about law AS OURSELVES, as subjects of our lives, rather than as someone else's objects?

My general purpose is to present a scheme, a skeleton, for understanding the organization of knowledge about the law: an alternative to the structure that presents it largely by organizing doctrine. This is called legal realism. But I want to afford some sense of how legal realism might work for you. How it might work in your own encounter with the law.

This is why I emphasized what you You can figure it out by listening in between our sentences. If you listen in a room where you are talking: in between your words and sentences, you will hear whether people are listening, or whether they are bearing up manfully against you. If you can hear the feet shuffling and the clicks. And as I watch you get more conscious of those, I’ll know that you’re becoming a better lawyer. Because everywhere you go all all the time, you should be listening .

Kate: so we’re going to spend a lot of time in the class about how to avoid becoming a meat product. The question, are we going to spend time avoiding talking about the alternative?

Moglen: I wan the intros because I want to start learning from people what THEY care about. We’re not making bricks without straw in that regard. “What you did and thought before doesn’t matter now, rather, what you thought __ as lawyer.”

Everyone is a nongerman speaker learning german by immersion, foundering around.

You figure out how to get paid for making it happen.

You find it in stuff written by lawyers, by people here who want to say something; we learn what it is to _ to be a lawyer. e.g. from a wonderful book called RobinsonsMetamorphosisTalk, by a prof who’s also a poet & teaches in Saint John’s. Just recorded conversation – monologue – by different lawyers who live and work in NYC,. We’ll read it just to understand what their alternatives are. I want to talk about stuff that’s really. The more you bring real people, the more

Student: I’ve become slave to note-taking. Would that irritate you? Moglen: You do what you want to do. I’m in the job of exposing you; but you do whatever yo’d like. If it interferes with your listening, YOU might have a problem with it.

Moglen: And we’ll be discussing current events. Yeah! That’s where things happen The conversation will be a conversation. We’ll talk about what you want to talk about. Moglen: if you think it’s worth bringing here, then it’s worth talking about – but if no body wants to talk about it, I can’t make them and won’t.

[some music. I wasn’t listening.]

I want to present a proposition about the path of the law. This is a speech about what it means to be a law student. Oddly enough Holmes is not talking down to the students – if he’s not exactly building a report, he’s at least attempting to have an actual conversation. Being a chief Justice on MA supreme judicial court He’s risen to be chief justice on the SJC of MA and hes bored.

Maybe … maybe he’s experiencing extramarital affection and is starting to feel inner renewal? Speculative, but SOMETHING CERTAINLY HAPPENED that summer that’s playing a role that if he can’t get off the supreme judicial court, he ought to do something more important – This problem WILL be solved by his translation to the supreme court— But we must say that when he’s writing this,

But biographically To the rest of the world, this speech will stand for the beginnings of a PARTICULAR outlook on legal __. An outlook that never er ally takes hold among the English speaking lawyers. Elsewhere too, US law will be thought rather distinctive This is the beginning of something and I come to it that it’s a beginning

The object of law, he says, is prediction The prediction of what the courts will do in fact; and nothing more complicated than that, he tells us what he means by law So what about that idea, that the law is for us as students of it, in fact a series of prediction about what courts will in fact do?

You’re a weatherman, to predict. And under circumstances, the question is , where is the great axe to fall. What are the consequences of encounter with a superior force: people want layers to predict litigation for them. What do you think?

Michael: it ignores the effect of the quality of lawyering: I would say a more apt description is how to get the courts to do what yo u want them to do.

he agrees with you, taking what we’ve said, as a first step FOR tat.

One problem is, predicting one judge’s behavior is difficult, and the kinds of sources aren’t the info people have access to And people go that route, People accumulate index cards on judges. In the course of my work, we had to investigate medical appliance market RE embedded software. Which had a great deal of

Every single pacemaker currently used for implantation in the US is equipped with the ability to recalibrate itself on the basis of an exterior radio frequency signal. If you’re a patient, you get a little informed consent (supposedly informed) pamphlet fro the manufacturer. And it says, “this is like a TV remote control). We had interest, called manufacturers, asked what the security mechanism concerning the remote interventions ins your pacemakers. Everyone of them refused to discuss. Everyone has, essentially, a bad story. Turns out they’re death machines. Hacking them is deadly. You should be able to stand 35-40 feet away from dick Cheney and turn his heart off.

Suppose you bring a lawsuit about this. There will be lawsuits against the manufacturers and there will be hell to pay – and one of the reasons because I know there will be hell to pay – is because if I file this lawsuit on diversity of citizenship, in any court, the odds are better than even that the judge is wearing a pacemaker. And the decision courts will make will surely be affected by the fact that judges are wearing a pacemaker.

So you’re talking about the behavior of small groups of people. That’s not a grand philosophic problem. Which is why you find everything you can about the local judge. Which is why you go off and find out about that human being. Prediction broadly taken must predict individual human behavior, so lawyers must become adept in dealing with those problems. Holmes as you see is concerned with the policy judgments they make and how to improve them.

Holmes: I think the judges themselves have failed to recognize ]responsibility], and [quotation from text.]

Of course American judges of 20th century have accepted, And the policy

Everything is about the legislative goals.

You can start from the law of logic, and policy consequences, is the operation of rules, that produce actual circumstance that have cause and effect, so we should study the consequences of rules.

The step that causes so many difficulties is when the consequences are thought of only in economic terms. (problem to me)

But this brings us to what I will offer to you RE where judicial creativity comes from

Legal creativity comes from the broadest possible understanding of the roots of social action: how to analyze and understand, and ow to affect. Them. Straightforward modification of idea that layers are people who make things happen in society using words. That person asks, what’s my theory of social action and how do I use my theory to produce social effect?

Well theories of social action ma not grow on trees,

My point is that the broadest theories, the one which draw from the most widespread set of understandings, have the advantage of the production of new ideas. Creativity comes from breadth of mind. When you have one way of looking at a a question, you tend to __ the way you look. Isaiah Berlin called the hedgehog frame of ind: using the same mental view to solve every problem. We see the obsessive character of hedgehog thinking: he’s got a hammer and thinks everything’s a nail.

But the purposes our purposes, it’s about whether creativity emerges from the hedgehog point of view.

It’s hard – thinking creatively is difficult inside that framework

I wan to propose instead a framework based on consilience, consilient _.

The great life scientist EO Wilson was a great proponent of idea of consilience in natural science thinking. The drawing together of multiple lines of science,data experience from several fields – the idea that reinforcement derives from multiple lines.

It’s not a comment on present sate, though lugubrious to think it would be – That what makes Darwinian postulate of Darwin irresistible is that all the work from 1860s till now has created a great consilient argument for natural selection as source of biological evolution.

No matter where you look on any scale or place you see reasons to accord natural selection a role in __. What I want to do is suggest the value of consilience in arguments about social actions: Think of us as not pursuing a social science but many social sciences— For purposes of gaining many insights into way people think in groups.

Think if you like as oriented into some vertical arrangement. Though how that arranges itself is not worth fighting about.

Let’s begin saying that we begin inquiries into human behavior at the biological leve.l.

It takes a great capacity for denial to deny that we’re interested in mating behavior. It would be a peculiar proposition. Of course we know much more about hat. If we think just about the biology of perception as oppose to sociology or biology, you can see how overlapping elements might build up that would allow us consiliently to explain a phenom eon.

That moment of listening is a moment when ideas are created . Don’t lose it. Dlon’t ever lose it.

Consider, yes this is a law school and perhaps you don[t care about renaissance paiting.

Explaining why mona lisa seems to be smiling at some times and not at others, human retinas are differently constructed at center than peripherally – shad NYT article.So when looked at indirectly the painting smiles at you.

There w have a biological explanation for how that ambiguous smile comes into being But you can also given social reasons for how__ paintings come into existence.

For calling into Earl __ experienced in a task which contemporary humans don’t pursue: they’re very good at estimating the volume of irregular shapes.

Early modern Europeans constantly looking at sacks, barrels, other forms of nonstandard packaging. Your’e very good at gauging how much stuff is in . Manuals How to decompose a series of irregular shapes into geometric shapes and decompose a sack into a series of cubes and cylinders Michael Baxendall said look at all this: these are the people who buy the partings. Is it any surprise that when they buy the painting they need the three dimensions to be right? They bringing the gauger’s eye. And pretty soon the painters who sell them partings render 3d shapes well on 2d to accommodate their eye. Social action gets accommodated partly on biological, partly on anthropological level.

So let’s say we have a series of things to think about.

Sociology Econ Psychology (sociology) How do minds influence minds? Here we were talking about the role played by Of course we want to think about the economics of social action. How does social organization affect social outcomes? History & political science about understanding regularity & contingencies We take a philosophical approach about social questions Jurisprudence, and the philosophy of morals, and so on.

Psychology (Intrapsychic) How do people, in their multiple personalities, respond to situations? Biology

The goal is to move back and forth among __ of human behavior, not to predict what someone else might think, but to learn HOW TO develop our own ideas.

Because it’s by moving between these fields that we acquire NEW ideas about how these things work.

I have friends who are still interested in the logic of copyright law. Those of us interested in the morality of copyright law have finished that off. But making the morality real involves going between these questions.

The invention of the Walkman was the beginning of the end of the thugs who ran the music industry because once it was in your head,

Death of the people who claimed to be the owners of the music

But in order to see how that would happen, you had to be thinking beside the logic of copyright or the economics of the music industry. What Holmes did was to cut all of that loose.

Let’s talk abut the text tomorrow, get our understanding of what Holmes was saying. It pays dividends almost immediately.

-- AndrewGradman - 16 Jan 2008

I corrected the spelling, which I won't do again for anyone else. A vote of thanks to Andrew for starting us out.

In several places the notes are sketchy and probably should be filled in. References could usefully be added in a couple of places.

-- EbenMoglen - 16 Jan 2008

Thanks, Andrew ... Taking a hint from Andrew's introduction, I wonder if folks could talk about the style of notetaking that they prefer so that we can ensure usability of the notes without overwhelming potential notetakers (particularly those who can't type as fast as you or have trouble both typing and listening). I for one, am a big fan of the summary of key points. I will go through the notes that are posted for today's (Thursday) class and add a summary to the top and see if it is useful to people.

Again, I really appreciate the thoroughness.

-- AdamCarlis - 17 Jan 2008

Looking at the text, "we called the manufacturers, asked them what security mechanism protects the remote interventions in your pacemakers. Everyone of them refused to discuss. Everyone has, essentially, a bad story. Turns out they’re death machines. Hacking them is deadly."

I can't deny, this idea is terrifying. Don't think I'm challenging the human threat. Instead I quibble, because if you look at AndrewGradmanIntro, I view life as a sequence of word games. And so I have to say: inferring that "they have essentially a bad story" is unfair to draw from a refusal to comment. I'm sure Eben did not MEAN that inference but it came across that way.

I was reminded in that moment of the day that Helen Caldicott spoke to my high school. She has all sorts of theories to explain the nuclear weapons conspiracy, my favorite is that our generals are stockpiling arms because all these men are compensating for their private inadequacies. She refers to the rhetoric -- "penetration" is the only one I remember -- and the phallic shape of the weapon, etc.

Okay, she adduces evidence, and that's great. But then she said, "And I know I'm right, because none of the agencies and officers I've criticized have ever responded to me." And that little fallacy infected the rest of her credibility.

Okay, there are huge qualitative differences between the two primary arguments, but it was just the connection that leaped into my head at the moment, and ... I like to quibble.

Also, Eben points out that 86% of counties don't have access to abortion services. I can't find a statistic online stating what percent of WOMEN don't have access to abortion services, but it is doubtless much smaller, and of course much more informative.

The fact that the statistic is so hard to find on the whole internet, of course, illustrates (1) the laziness of people like me to crunch data, (2) my poor search skills, or (3) the ideological hazard of statistics.

-- AndrewGradman - 18 Jan 2008



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r7 - 28 Feb 2008 - 03:06:45 - EbenMoglen
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