Law in Contemporary Society
#### 01.26 Tuesday

Generally, redistributing income to your client helps your client.

If you want to maximize your utility according to what you think utility is in the world, go for it.

But - don't take wooden nickels. Things are what they do.

Unless your client is better off, you have not succeeded. Have standards of effectiveness - don't compromise them. When you compromise them, you compromise everything else.

Statistically, most of you will do this. That's how establishment is established.

The most dangerous thing to power is smart young people who have no mortgage. We went to a debt-financing system for law school. We send students out the door with a mortgage designed to disempower them. I have been watching this for a generation.


What makes a certain concept transcendental nonsense for Felix Cohen?

An idea not related to experience. Thus, it can only be talked about on its own terms.

It doesn't have a truth value if it doesn't relate to the world - it's not true and its not false.

Where is a corporation? The only way to answer that is with some kind of law talk?

What's the limit on where a corporation can be?

Intl Shoe: It is where you can sue them in all fairness and justice.

Read the Brooklyn Law Review article on Sunday school ethics he cites, to learn more.

If the man on the bus can't get it, it's probably not right.

Here are some people trying to democratize these types of thoughts.

You have consequences, and you have values that determine if these consequences are right. Evaluations require a theory of value.

From Cohen's point of view, it's an advantage to move your value system out of system of assessing consequences.

Cohen is trying to form a democratic system of ethics founded on common sense. I find this unsatisfactory - I have some interest in rights, myself.

He believes there is no way a formal system can work. Because he believes that, he has to stop short of the concept that an evaluation of consequences combined with a theory of value can produce justice. So he recurs to this common sense idea.

Felix Cohen went to go work for Interior Department. Produced a legal handbook on treatment of Indians.

If things are transcendental nonsense because they can only be expressed in legal terms - what are lawyers for? What is the difference between lawyers in his world and Holmes' lawyers?

If the goal is to predict the judge, you're not predicting judges - you're predicting this judge. If everyone needs information about their particular judge, why can't we just print it? What would be the problem?

Judges would not want to admit that their human characteristics have consequences for judicial decisionmaking.

The first concept of legal realism: Things are what they do

and then: And the reasons given for what they do are rationalizations rather than accounts.

what do we do with that? (assuming it for the moment)

What follows for us as lawyers?

In the 1980s, on the right, there was the idea that Brennan was smart but wrong, and Thurgood Marshall was propped up by his clerks who voted for him. If you were a law clerk, you knew that to change Brennan's vote, you could press claims that he was being inconsistent with a previous footnote. Thurgood Marshall - would ask - who confirmed you?

People's views of judges is colored by ideology.

The beauty of Supreme Court litigation (and there are downsides) - you know who you're going to be talking to. The people who do this often have an advantage. They know what will happen.

Most litigation - you're facing more unknowns.

Cohen is at end - saying the thing that Holmes has to believe, that its uncomfortable to say. You're not not predicting what the judge will do - you're predicting how what the judge can do can be affected by what lawyers can do.

Trial judges have acquired an instinct for the difference between the conversation and the transcript. Transcript reads like sweetness and light - even if was different in conversation.

Sometimes - lawyers try to make the judge mad to induce reversible error.

This is where Felix Cohen is at work. These really are the social forces set loose in the court room by the fact that there are human beings there.

If you're really into this prediction thing - you have to stop thinking its about where the judge went to law school, or his attitude about labor-management. It's a feeling for the organism, his attitude at the moment.


If Cohen's really talking about a form of applied social psychology - the influence of minds on minds. How minds really work - not how they think they work.

We're back to something distinctive about 20th century American law thought. The recognition of the role of the unconscious. Maybe implicit. We live in a culture which got the point of Freud in a basic way.

Cohen: talking about how good are rules for finite deductibility. A lot of discussion of law as a sociological force. But key: understanding the role of the unconsciousness. Letting go of the idea that policy emerges from a Platonic inquiry.

The game of pretending we don't know what we know about people is a bad habit from the economist. Strong foreshortening of human behavior in order to make tractable hypothesis is economics.

Cohen: humans don't work the way they think they work - they work they actually work. Don't shorten it to get tractable answers. Cohen begins to open the window on this

Minarets poster article

Control of fears is very important.

Others could have been used instead.

What is the real grammar of power?

#### 01.28 Thursday

So, we have a proposition. The law is full of meaningless questions. You can only learn by abating meaningless questions Also – if you want to do – even if meaningless questions are part of rhetoric – not really part of how things are decided – just explained. So what’s this functional approach? S: you learn by experience. Well, there was more. Why all the mathematics and Whitehead? Why not just Dewey and experimentation? If he’s not a believer in the decidability of big formal systems – writing at a time with doubt about formal mathematics – why relying on Whitehead and Russel and formalist accounts of mathematics? There are outputs which can be seen as functions of inputs. Arithmetic – applying arithmetic functions to numbers. That is how W and R were inquiring into philosophy of arithmetic. Thought they finished it in the Principia. Godel was soon to have turned that upside down. Functional approach – important for programming. Cohen: You can think of numbers as products of arithmetic – human culture product of function. Religion is what it does. These people who settled MA are Calvinists with a very strong belief in predestination. Believe that before time, all human souls are irrevocably elect or damned. How can it be that people who believe such a thing are diligent, industrious, honorable? Why are they not sinning it up? Why did believers in predestination – as Weber noted – associated with mercantile success and cultural sobriety? What is the function of Protestantism that produces capitalism? What does culture do? That’s a big question in US at the time. Franz Boas and Margaret Mead. He’s thinking about – you can think of the social sciences as functional approaches to human behavior.

What is the function of the architecture of this room? How does it affect community, education? How does it recapitulate the law in its majesty? Or to reduce it some? CLS faculty decided to remove podiums. Functions: majesty of law, reassure professor Architecture fights us. I have to project my voice to reach the back, people think I’m yelling. Issue: many functions simultaneously operating on the world is very large. Same difficulty in sorting them out as in identifying results. Cohen: judges do what legislatures hate to do – legislate. Making law, rules, to guide prospectively the determination of disputes – legislatures hate to perform this. Allen – Roman legal historian – legislatures, over history – prefer to do the work that is legislating – collect taxes and spend them. When it comes to building systems of law to govern future disputes – they punt. 2 predominant ways in the US: 1. New Deal – create an agency to do it, within broad guidelines. 2. Punt to elite institutions, like ALI, run by guys like Lance Liebman for guys like Harry Monaghan The difference between courts and legislatures is that it is hard to bribe a judge. People are entitled to equal justice under law, legislatures are always more corrupt, so judges can always make decision to fulfill their judge. The law: 1. actual conduct of litigation 2. actual conduct of private ordering in shadow of litigation Function of legislature is to take bribes to get in the way. What actually happens – too obvious to hide unless you pretend law and politics are different. We will chase down the implications. Criteria for supreme court justice – obama – real world effects – functionalist criteria? No. They always say the same thing. Bill Clinton – want a “big heart” – he nominated the two most heartless leftists he could find. He nominated them because they could survive confirmation. Obama not different from Clinton in any relevant respect. Both were constitutional law professors in law schools. They know the difference between bullshit and reality. They know bullshit wins in politics. If Cohen thinks we should publish the truth about judges – surely you should publish the truth about legislatures – what would people think about them then? Why shouldn’t judges explicitly use policy argument? One of the ways power conceals itself is to invoke the neutrality of law to explain why losers lose, not politics. Why are judges less easy to bribe? They – at federal level – don’t run for office. At state level, the roar of money into state judge elections has produced an eminently bribeable system. Teach you how to change the world not with formal power but power you can hold in your hands. Less corruptible. Learn to be ambitious for what you want to do – not what you want to be Learn that money just chips in a game where the real win is somewhere else Courage is more important power. We could skip the whole question – don’t need to be judges or legislature – go and get justice done. That’s the name of the business for me. You will go see the elephant for yourselves, as you should. You will be under a lot of pressure to tell yourself a lot pretty lies. Judges do that all the time. They learned it in law school. Al C. Hastings: corrupt judge – became Congressman. Con law – is all transcendental nonsense. Reading pretty lies in to it. Con law has the function of producing and distributing transcendental nonsense. Citizens United: 2 layers of TN on both sides 1. are corporations persons under the 14 amendment >>> No. 2. is money speech? >> No. Underneath: There is a way to keep money out of politics. Republican side: 1. corporations are persons with natural rights. 2. money is speech. Underneath: Gingrich: you can clean politics with money. Need more money in politics. Both sides are talking absolute rubbish. What we are really talking about is the balance of power in money in politics. Between the Dean campaign and Obama campaign – balance of money-making power shifted. First time in a generation. When Democratic Party had single party control of South, had control of oil business in Texas. Controlled the primary heartbeat of industrial economy. For that reason, LBJ’s dem party had enough money. But, Reagan/Goldwater – drew money from from very rich, and many contributions from small business owners. Got an advantage. Campaign finance reform after Nixon – bipartisan. Dems: gleeful. Republican: Success of current FCC commissioner and internet in shifting venture capital in Cal to Dem – Obama money. Got both houses – industrial bribery of K street – had to give to Dems. Republicans – could not allow this. Republican judges – made the Bush presidency – rectified. The rest is transcendental nonsense. This was not a case about the first amendment Much more important for you to understand how politics works than the bullshit about how law and politics are different. The experiment. Con law class: Moglen’s Con law realist student went into con law class and got hammered. Moglen went to visit prof – he said – you should stop beating on him – she: he has to learn it the wrong way before you learn it the right way. S: What is the function of the functional approach? To prevent a certain hardening of the play-doh in your ears. Consciousness. Being alive is good. What’s the best way to be alive and consciousness? That’s the fun part – any way you want. Consciousness itself: harm limitation function. Guys come talk to me. Didn’t listen to your warnings. Became an IP lawyer in securities firm. Did you buy the big apartment? Riverside and 106. Did you have the second kid? Does your wife understand downshifting? In theory. Thoreau Steps: mass of men lead lives of quiet desperation > drinking > adolescent son in trouble because his role model has cracked up. This is self destruction of unconsciousness. Pain you don’t understand and can’t acknowledge the root of. Conscioussness is harm reduction Instead of addressing desperation – incremental Get to people’s real ambitions. The people in this room. I read people’s Intros. A lot of anxiety in there. This is how I live my life as a teacher. Young people took their best shot – lifted all this weight – behaved like performing pigeons ofr 20 years. Borrowed a heap of money which scares the crap out of them. They are now bit by bit wondering if what they want in life is out of the question. If the functional approach reduced that by a percentage point – damn good outcome. I get notes – I reread your perspectives materials (old name of course)– they’re so interesting – subtext – my job bores me to tears. Htat’s the functional importance of the functional approach. Cohen’s – FA for ideas We’rea talking about what I smuggled in FA applied to teaching second semester law school – justice is a function of the reduction of anxiety and an icrease in personal freedom. Re Cohen: No matter how sharp you are as a thinker on social progress, not always right. A necessary condition, not sufficient .. Sunday school ethics is too weak for ethics .. also – what implications for how it should com eout? First you become free, then you become responsible for your actions. Existentialist difficulty in a nutshell. So I am free – how do I behave? Cohen: also very clear about who he is addressing . Mosques article Guy is trying to reach people who are resentful. He assumed – if you are educated and not rich, you are a leftist. The closest approximation to Mr. Riger in our world is Roger Ailes. Ailes is a very good workman, very highly paid. To produce TV NYT: he took the talk radio formula and gave it television with authority and went into the news business. Brilliant effort. Changed television. Riger: not a believer, like Ailes. He’s engaged in functionalism. You want to say – that can be morally dangerous. S: I used to work in television – smart people make stupid television. If you want to make torture acceptable in a country, you make pulse-pounding entertainment where good guy tortures and wins. 24 was just another part of how Murdoch made torture acceptable in America. We have to do 2 things: 1. Teach children about media. 2. Teach people like you how persuasion really works. Years ago, I said we should have a first year course on persuasion. The two people who taught that were Robert and me – now Robert teachs it. This is the pivot on which FA happens. Why talk about rhetoric without learning about how rhetoric affects social forces. Why do it in a self-referential way? When it’s in the world of social persuasion. The primary problem with the US reports in my day – they were being written by people like me. Bosses I worked for – not capable of thinking of another way of addressing our problems in our society. What do the judges mean to do? We need to think about that. The abatement of meanginless q FA Moral theory drawing from outside law Refusal to separate law and politics Those are the centerpieces of the puzzle of legal realism in the 1930s. Very fresh and very hard to handle type of thinking. Vibrates in your hand and bursna little. Not totally easy to cohabit with. If you believe in rights – problematic - hwat are rights? This language will not embody this kind of stuff. Intl human rights – woozy nonsense. US HR engagement in Mexico: selling more helicopters to mexico to destroy people. /s Why take legal realism to something other than cynicism? Cohen: you go to Sunday school. Hang tough with that. Not good enough. Hta’ts why Cohen is dead. It bothers me. Legal realism burns through the gloves. You have to put it down a little ebit. These are ideas that are meant to be complicated to hold. Simple to understand, difficult to fully take. It made where we live – but where we live is the softened down – Elvis Presley sounded electrifying to white guys. They had never heard it before. It had been there for a long time. We live in a world where realism happened. It gave shape and pulse to the things we learn and talk about it. But some of the sharp edges got knocked off along the way. – Horowitz: Crisis of Legal Orhtody. About how legal realism posed corrosive threat to law thought. The response: comes back from the brink: Wechsler created the idea of neutral principles. W: said that he couldn’t think of neutral principle to support Brown v. Board. Couldn’t think of racial equality as a principle. But equality can’t be neutral in our society. When judges do what they are supposed to do so – they are thinking about what it means to do what they do. Warren Burger – mass of putridity. He noticed that reading habeas petitions before dinner disturbed him. He left papers saying – when the writ is delivered, say it was denied for abuse of writ. At first, most justices thought that voting without reading the papers was wrong. Then some more did it. Those of us in the death watch chambers – spent evening looking for 5 votes. You got taught that whatever you thought about the rule of law was bullshit. One time: these justices put the name of a person who they killed last week. This piece of paper came around in triplicate. I called up his super clerk, “I said you are so stupid and corrupt.. Within 45 seconds, supreme court police came and collected all official copies of the memo. I hade made 6 photocopies. You are right. If you’re not right, it’s pretty to think so.

#### 02.02 Tuesday

Where does legal creativity come from and how does it operate?

Need to clear more brush. Law and how to learn it.


Realism itself is a creative event. It had a great influence on the US. It also generates legal creativity.

The premises of legal realism: 1. Things are what they do, not what they’re called. 2. Legal decisions are their consequences, primarily 3. Judicial decisions, like legislative outcomes, but more so because more reasons are given, are rationalizations for results otherwise arrived and otherwise explained.

The life the law has not been logic, but experience. It’s not by deducing rules that you figure what law is. The desire, unconscious or conscious, for certainty or stability, is a strongly unrealistic component of the way we address legal concerns.

If we can’t understand the world in certain terms, it disturbs us.

We have an anxiety when we have trouble separating law from politics.

This threatens the peace of the people in charge and their being in charge. A subsidy to their power comes from people thinking law is separate.

There’s less resentment when losers think they lose because of laws, which protect their freedom.

If losers think law is politics, which it is, struggles will grow more heated, and the rulers will lose sometime.

Creative legal thought thinks outside the box. The box: everything is certain, and everything works because law is a scientific discipline.

You can take some legal thing, and drop in little depth charges: race, class, religion, and there will be little explosions.

I will occasionally raise one of these questions, to lead us to a bigger thing.

Law professors: generally not creative thinkers. Roman jurisprudence – grew more conservative and useless.

Law students: characterized by anxiety.

Can you understand your presence here as mere chance? There are millions of people in the world who are not here, because they were never given a chance. If you can’t have that recognition, you can’t see reality for what it is.

Real issue: insecurity and lack of self-worth.

Free yourself from certain illusions, to begin struggling with life.

If you take Jerome Frank seriously, all that’s left is do go home. His fact skepticism is the most corrosive at all. You don’t know if you know anything.

But he has a limit which is just as phony as Sunday ethics of Cohen or the glimpse of the infinite in Holmes.

No one really thinks that the indeterminacy means that we should drop off a cliff. They mean you should pull yourself back.

A lot of what they are struggling for we take for granted. And other stuff – its taboo and we can’t think about it.

So, contact with the writing is distressing.

Question: does law reflect politics?

Law is politics. It’s all one ecosystem. Look at how public opinion, as well as judicial opinion, creates the reality within which decisions are made and implemented. Power is allocated – that is politics. Power is allocated in many ways - some in Lawville, some in Bribeland.

Stripe 2:

I have said: don’t pawn your license for a job.

I have said: millions of people need your help. No justice will occur without you. Many of them have lost everything which middle class stability was supposed to contain. 6 people are looking for a job for every job. Labor market less unionized than in 1939. Very few people your age think the pension system – which eliminated old age poverty – will care for them.

Among the millions of people smarter than you who will never get a chance to come here are many Americans, who are viciously discriminated against when it comes to law schools.

There’s lots of work for you to do. If you use your license well, you can do it. Make comfortable livings, and be dangerous. Power will do what it can do to keep you from learning how. You will take a job with a firm that will be increasingly hard to leave. They will pick a role that will not be dangerous in any meaningful way. You will make money but have significant distress for decades of your work life.

One thing we need to do: is meet some lawyers.

What does it mean to be a lawyer?

How does what kind of lawyer we are determine what we are like? How we are like? What it feels like to be us? We need to spend time with the inner lives of lawyers?

Pawn shops: On 6th Avenue, musicians kept their instruments in the pawn shop. Got them for a gig. Then when their money ran out, they pawned them again.

However, be careful. Your license is the most valuable collateral you have. Americans use to only take out second mortgages for financial distress. Then, smart people got them to think of their houses as ATMs.

Public debt: are owners of the society affected? Notion of “our debt” and national public debt. No. Conceals that there are a few winners, and a vast mob of deluded losers.

Fraud. Lying about material issues and profiting from them. Knowing activity.

Law firms: asleep.

1967: people started realizing that adults had no idea what was going on, and it was going to kill them. The people running the society did not understand what was going on, didn’t care, and were going to kill them. That had a very good effect on American society.

It was a good time, because young people got very serious. Bill Clinton and his friends went off to Oxford. Didn’t worry. His roommate killed himself, though.

When Strobe Talbott lost an eye on the squash court – response of his friends well, don’t have to worry about the draft.

I remember the law students of 1968. They were in the streets. They were defending the rights of people who didn’t want to fight.

I wish for the sense that there is life or death at stake in all this.

The US government has decided the sensible way to fight the war in AFG is targeted large scale assassination.

William Colby – Vietnam – Operation Phoenix – killed VC sympathizers.

Now, robots in the sky. Often kill others.

Student: Where are the concentrated causes?

You see black folks getting a fair shake?

We’re living in a torturing country. That’s not urgent?

We have people in jail without charges?

I have a few causes I’m working on.

You have millions of dollars being taken by pharmaceutical companies with invalid patents.

There’s this thing called global warming?

There’s, as always, people being ground into poverty.

There’s been a generation of propaganda to teach people that causes are bad for you and government is bad.

We’ve had a year where white people stopped supporting Barack Obama. That took a lot of work.

Now, may be true: the tactics of 50 years ago might not work.

If you choose to do something, you can do it. If you know what you want, and what to do to get it.

Books: Parting the Waters Time on the Cross

Issue: were 1960s youths just protecting themselves from draft?

No. What was it that people were doing when they gave up their summers to register people to vote? Just staying safe?

Issue: Protests work?

This isn’t the Columbia School of Protest. That’s a tactical question. I want you to think deeply about strategy.

What are your objectives? What are your resources? How to get the most objectives?

Assessing protest efficacy – depends on the objectives.

Issue: Is society more conservative no than the 1960s?

The problem is cowardice. I support Obama’s skill, but for courage – not clear. We will see.

LBJ was a better politician than BO. He had many many decades of experience. BO has talent, but less experience. BO has the benefit of studying LBJ.

But he’s about to make the same mistake. We know from the tapes that LBJ knew he was making a mistake. He knew Vietnam would break his largest plans. He put 400,000 troops in. In real dollars, cost less than the troops in AFG. A million dollars per year per pair of boots.

This is where belief comes in.

This is just the second strand. Where I say don’t pawn licenses.

Third strand – there’s this wiki.

. Make topic pages .. Why these ideas do or don’t help me

If you make a topic page, and you put at the bottom of it,


Which adds a comment box. Sort of turns it into a blog. After comments pile in, refactor it. Make an honest and thorough summary of it.

A said, and I think, but B and C agree. Then you remove the comments. Anyone can still edit.

. Class notes

Assessing wiki:

Effort Commitment Improvement

Can examine all the edits. What’s happenings as a result of that?

You can give any page an index. Most people don’t want to make a deeply tree-structured wiki.

#### 02-04-10ThursdayNotes

Eben: got 6 messages from people in the last 36 hours saying, what do I do now that my career is ruined, referring to first semester grades.

[Ella Fitzgerald and Joe Pass – I Ain’t Got Nothing But the Blues]

First semester grades do not measure anything useful about anyone. They measure an irrelevant quantity - speed of acquisition of law talk. This is an outcome by the fallacy of mensuration – that what can be counted is what counts. Often false – and particularly false in this situation.

In addition to actually not measuring anything, they do not predict anything either. Speed of acquisition is not correlated with the qualities that we are trying to develop as good lawyer and not correlated with where layers wind up, at all.

The really important part of this story – nothing has happened.

Student: how do you overcome the fact that opportunities might be less?

This is bullshit. Take aboard that the anxieties being induced in you are a product. Not an inherent fact about the world. Insecurity was what held the employment system together. Your insecurity. Producing that insecurity both deliberately and passively.

I have watched for 26 of the last 28 years. I teach second semester first year students. I like doing so. But every year I see immense amounts of real hurt caused by imaginary collateral damage. Given the kind of guidance you generally get around here, you wil likely end up caught up in the bullsit machine.

I urge you to disentangle yourself.

But the biggest producer of fear is yourself.

Student: What would htat look like?

Freedom. You don’t have to give a shit. You can grow your own life, in your own way. What everyone else does matters not a whit. The system that produces anxiety is rolling on around you, and you don’t have to care.

You would be so much less concerned with what others think, what it looks like wouldn’t matter. Think about the inside, not outside.

In rooms like, law students play games. They compare themselves to the idealized well put together person down the row. Tremendously self-destructive form of ideation which is so private people don’t realize it. Let alone able to talk about it. Or focus on putting themselves together.

it’s like watching people strap a bomb to themselves.

You are being asked to strap yourself to a bomb. Just say no.

Student: later grades?

Different measurements of a different thing.

Not helpful to learner, though. Basically just how many right answers you got in a place and time.

Can say: grades are stupid all the time. But stupid in different ways.

First semester grades – easier to reject. Start with those.

2 years ago – Stanford 1Ls – circulated a document – agreeing to take all first semester courses pass fail.

You did! You took them pass fail. This is the problem – we are waiting for someone.

Blake: sound of mind forgd manacles clanking.

To bring other people freedom, you have to free yourself.

Frederick Douglass.

Freedom is a thing we make. If its made for us, it isn’t freedom. What we don’t make isn’t durable, and it has a tendency to go away.

660,000 lives we spent trying to make freedom in the US. But we were extremely people we were trying to free to make their own freedom. And it wasn’tdurable. And it go tmostly taken waayw.

This one you can do for yourself. We’re now on the question of whether you will.

I have said that – bad grades – I call them just noise – will not hinder you. It will have no effect on you . None. You will of course measure success by a bad measure – law firm job. Pile nonsense on nonsense.

But somebody here will be the exception. Someone is going to get free. I wish it will be you.

Also – you’re at fault for looking. If you have a trash talking boyfriend – who says all the time how ugly you are – you should have moved out. Listening to hostile shit is not a good way of living.

I knew my second semester was important in law school. I did my work. I went to work for the summer. Then I went to graduate school in the fall. I checked my grades in December. I knew the grades were important, but not urgent.

People checking grades on lawnet – compulsive behavior. The correct thing to do is to say no.

Q: grades?

You’re treating yourself like canned meat. Either grade A, or grade B.

You are who you are. You are going to be a first class lawyer. There is nothing in my life that you can’t do. Except stop worrying. I can, because I have 30 years more experience.

I am earning 2 million per year in my law practice, and giving 85% of it away. You want to tell me the way to make lots of money is to be canned meat?

You’re wrong. You’re assuming the thing that somebody who wants you to be canned meat wants you to think.

Issues: What is your soul worth What is easy? What is the double line at the bottom?

English barristers: trained to say, I am just a taxi driver. I take people places.

I want to tell you – not nec that that’s not moral. It’s not healthy.

But – you are paying me a lot of money – I can tell you how to be really good at it. That way of thinking limits of good you can get.

The real problem is over here – it isn’t – can you dissociate – it’s what happens when you’re a professional dissociator and no clients – a taxi driver, chained to the wheel.

Even someone who only has orders to take – they’re in danger. If you want to be a good hitman – fine. But get your head above the game. Otherwise – wrap car around tree, divorce.

If you’re only a hired gun, and don’t have any limits – Robinson discusses.

I got a note from a former student last night. Student’s been out two years. Got a job in a prestigious firm. “I wasted law school. I could have learned, but I didn’t. It was the end, I thought, that was important…Now I am sitting here, with nothing to do anything.”

I had a former student. Worked for Edwards. She idolized him. I said – he’s kind of typecast. There’s an easy way to identify narcissitic self destructive jury lawyers. She was offended. Truth of the matter – it wasn’t really that hard.

In law school, you meet a lot of people. You don’t want to link your credibility to someone else.

I pick people I work for. Not based on transcript. Based on trust. Clarence Thomas – his transcript.

You don’t want the transcript. You want the person.

What do you look for in people you hire?

One word. Courage. Begin there. This is why I’m on your case. You really really need it.

You’re not selling grades. Selling judgment. Expert judgment. The way you get to have judgment is by having it. Not by having certified grade A.

You get judgment by taking risks and learning to see around corners – thinking about what is around, then turning around it, and correcting your vision.

The grades are wrapping paper. Who the fuck cares?

Your idea – you are selling yourself to a mass market that doesn’t care what it gets. That’s broken.

The right person for me in this graduate class. Has the technical skills. Took a job with X and Y. Furloughed. SFLC. They called – will furlough 2011 to.

This is what the child dean is hiding under his desk. The system of selling first year associate’s hours to enterprise buyers is over. Enterprises are not buying hours. The mass market is over. Not an issue anymore.

The issue is – how do you become a great lawyer? How do you make a living?

Start casting aside manacles. Once you have your arms and legs free, less likelihood of drowning. If we made you canny, swim the right way. Otherwise, scooped up in fish bowl.

End is not only thing that matters.

The bad news – you can’t fix this problem by saying – don’t be frightened. That’s like telling depressed person to cheer up.

You can’t just tell people with anxiety disorder induced in them to just not be anxious.

The anxiety holds you up against the drowning.

But the system is deteriorating your identity. This is why its hard to be the life partner of a first year law student.

The personality deteriorates.

Unless you’re lucky enough to have someone who knows what to do about induced identity crisis, have trouble.

You have to give priority on means. Can’t forget about ends – beyond our capacity. Problem is: what is an end?

I started working for my living when I was 13. By the time I got to law school, I had had many jobs. And I knew who I was.

I think it is a disadvantage to have not had little foot in the world.

Identity is not constituted by a piece of paper in a filing cabinet.

If what you do is a commodity, you’re screwed. So don’t allow yourself to be one. Don’t let yourself be alienated.

If you allow yourself to be a product, you’re the product. You don’t want t obe that.

The fear is the production process for commodities. How do I measure up. Am I grae A or not.

I grew up around classrooms. I spent a lot of time watching teaching happen in different colleges. When I got to undergrad, I was an experienced consumer. When I got to law school, I felt that the trick was working on me. I could feel myself fallinginto the idozliation trap.

You’re in a very totalizing environment. You can have fantasies that will make the anxiety worse. You could be idiosyncratically more susceptible.


How many slaves can I take out of slavery?

A sad question. But based on a wrong presumption.

If I did that, I would be cheating myself, putting a colar around my neck.

The real purpose of teachers is to tell you what experience shows. The real value of a teacher is being able to say – I can’t put this in your head for you 0 all I can do is make you want to learn it.

All I can tell you – the raod you’re on is not where you want to go. You want to switch roads.

I don’t expect peoppe to agree with me. That’ suseless. I want a question to be in your mind.

Grey hair says: ask this question

Why are you letting the end be more important than means? Lable more than contents. Let sloppy careless dubious uncertain judgments made on the run by people who have yet to justify them to you with reason oust your own needs concerns wishes in this way.

It’s a question. You do with it as you will.

My role is to keep helping you push.

Can you make a question live in someone’ smind long after you are gone? That’s teaching. Htat’ smy goal. I do it about 5% of the time.

What do you mean by taking chances?

I had a really terrible Evidence teacher. But one smart thing- he said - Heresy - HP, Hearsay - P, Heersay - LP.

When I was a student in that palace of lies, the law school refused to release grade distributions. At some point, we assembled distribution. There turned out to be two transcripts at Yale. All H or all P. It depends on who you know.

It is a pain in the ass ,bullshit job reading law school exams.

To take chances, do well – heresy. Tell them what you think, not what they think.

other graders: They think what I do is too much work. They don’t realize it’s not work.

Say you’re working way through it – and you pick up something out of the stack that sings, that says something for a goddamn change? Can either give an A or an F. F is more work.

I’ve been sitting in the law school for two weeks in Torts. I told a joke. I felt waves of hatred. Telling a joke meant I felt comfortable. Very threatening for them.

Conrad Johnson and I were discussing Bruce – great NY judge. Johnson composed a motion in verse, for Bruce. And Bruce was sick that day.

Issue: need to learn how to speak your mind, and still “get in the room.” I can teach you that.

Sign above SCOTUS. SCOTUS used to have a segregated cafeteria. Charles Evan Hughes – who said – the constitution is what 5 justices say its – took the clerk out to the plaza – read the sign – it says Equal Justice Under law. And they desegrated the cafeteria.

So you want to know what it says above law school? How to use freedom to produce justice.

But then of course – we’d have to have freedom. And we are pretty much fresh out of that, here. Which is sad.


I would like to get to Jerome Frank and Robinson.

But this the most important thing. It sort of just hovering out of reach. I understand. It’s not going to be imple to take it. You have to. Otherwise you will hurt unnecessarily. And in the course of that pain you are going to make bad life choices, hastily. And another pain, called regret. And people think they can wash it away with whiskey, or cheap sex, or money, or power, or all of them. And that’s an illusion. But there are people who will be happy for you to live under that illusion. Because they will girnd your bones to make their bread. They are very successful.

People used to ask Marshall – what would you do if you could do it all over again?

He was a good liar. And liked to get people’s goats.

He would say – I’d go to Wall Street and make a heap of money.

A lot of people believed him.

When he died, we buried him. In Robert E. Lee’s front lawn. When the Union won they war, they put Arlingon National Cemetary, a cemetary for the soldiers who died fighting for freedom, on Robert E. Lee's mansion. So Marshall - In exactly the place he ought to be. And you can look down the slope across a thte Lincoln memorial. And it is very good.

And every time I go there, I find pennies heaped on the grave and headstone. Arlington is very clean. You know what that is – they’re giving him the people’s medal of honor. Abraham Lincoln on the front, Lincoln memorial on the back. And everyone has one. He changed the world. Justice doesn’t last forever. But he made a heap of justice. And he lived a decent life, and he was loved. And there’ always a heap of money on his grave.

### 02.09

. Jury duty Called for jury duty at a time when had two scheduled talks. Talking to shrink friend. He said – I never serve. I have a perfect way of getting out of jury duty. When I am asked whether I can decide cases based on the evidence – I say, I havade had a long career in psychology

We spent last week on track 1. We’re on track 2. Where is creative legal thought and where does it come from?

What is Jerome Frank saying? S: Witnesses are fallible and judges are fallible witnesses of witnesses. For law to be a science, you have to be able to discover rules and apply those rules deductively in other circumstances. Felix Cohen said the problem with that view: rules never add up. Rules skeptic guy: it depends on the belief in a complete logical rule set. Frank has a different problem. He says – even if you can construct a complete logical rule set, you can’t ever know what the facts are.

Judges can’t be replaced by calculating machines. You can write a program for applying law to facts. Perhaps you could even have a program that predicts legal outcomes. But you still wouldn’t be able to predict outcomes of cases, because you wouldn’t be able to determine the facts. Why does he think this is not a problem for appellate judges? Appointing Jerome Frank to 2nd circuit was hugely controversial. He wrote about judging as an immature activity, said law was a neuroses. Now on the great appellate court of the US. Now, as a judge on upper courts. He says – there’s no such thing as fact finding. But I am a judge on upper courts. These judges get to make it up. Can restate it any way they want. They can also distinguish cases. When I was clerking, there was a bad Circuit decision on statute of frauds about carrots. But it stood. For about 60 days. Then a new case came up. They distinguished it as a potatoes case. And didn’t publish the opinion. That’s how they got away with it.

Facts: comes down to what people to say, and you know people aren’t honest. Nuances are important, but are lost in the transcript. Once facts are found, it is difficult to unfind them. People assume that unless like cases are treated in a like manner, there is no justice. Question – video can reduce this problem? But – need to determine whether a piece of tape represents all the relevant reality. Rodney King. Issue – if you had the 15 min before – would you change your mind? Another issue: whom you show the tape to will affect whether that tape is taken as the whole relevant reality? So, venue for the trial matters. Prosecution objects: South Central LA – that will be a prejudiced jury. Go to Ventura. Defense: Ventura country is where police live. Suggests Riverside. Judge: think about the traffic. Can’t go to Riverside. So trial goes to Ventura county. In Ventura, that jury doesn’t think the video is the whole story. What about DNA testing?

That one too. There’s a scam. DNA analysis only happens at the end of a long chain of possibilities for contamination. All of which is no better than the testimony about the activity. The Innocence Project factory down the street run by Barry Sheck. Attacks on all the state crime laboratories. Places that seem never to have done anything honest, since formed. Think of all that labwork that is nothing but lies. One person I went to law school with. Had many mishaps as a prosecutor for SDNY. One of them: coke bust. Gets lab report day before trial. It’s heroin. Did the gym bags get mixed? Even with all the technology – still relying on human testimony. Have even more propositions need testimony too. What level of certainty needed for facts for crime?

There are two classes of people on death row. Thousands of people there. 1. People with behavior with behavior we do not wish to recognize as human beings. Hundreds. 2. The bulk of people there were in the wrong place at the wrong time, have fired, and someone is dead. Our execution system is basically a subsidy to all night retailers. Want people to feel safe working late at night. In my time working on capital murder, seemed 2 people could have done it. Defendant, or the state’s star witness. First time looking at certs for death. In the first bag, there was someone who was arguably innocent. He’s in Florida. Someone robbed the restaurant where he worked. They fired a shotgun at supervisor. Shotgun found in backyard of state’s star witness. Witness said he did the crime with defendant. D is represented by public defender, with 55 other cases, and never tried a capital case. Prosecution puts 61 witnesses up for trial. PD interviews none of them. PD makes motion that he cannot handle case – workload. Conviction upheld by Florida SC. Key point: who made the deal with prosecutor. After that, the facts will fall into place. Only one person will die for the murder, and prosecutor has decided who it is. Evidence: we have social processes for instituting facts. We convince a fixed collection of people about those facts. Most of the guys I know in Robinson’s line of work – they do believe most of the time that a criminal trial is over when you pick the jury. Robinson doesn’t quite believe that. Friend – met on courthouse steps – said he lost today. Jury got picked. My feeling always was – take the first 12 in the box. You never do as much by shaping it as you do by shaping it – you annoy people. Since I don’t do criminal trial work, I still think that. Guys who do criminal work – take it very seriously. Evidence tends to run that way. If it’s true – jury matters so much. What do you do? . We go beyond Holmes. We’re not just predicting public force. We are active in engineering outcome. We can’t make the rules consistent, but we can shop around until we’ve figured out in focus groups what it will take to get that case perceived as unanswerable. SCOTUS: get together recent clerks and practice your case. This is the way in which wealth and power wins. Determine life and death. To get evidence, you have to get it.

Heavy trucks that run on highways, the wheels are not solid. Interlocking tongues. Goodyear invented multipart – K rim. Became clear it was unsafe. Problem occurs during inflation. Began doing harm to people who were inflating tires. National Highway Safety Authority – recommended recalling. Industries refused. Goodyear got sued a lot about this. Goodyear has 4 warehouses full of information about rims. If you sue, they make you move to compel disclosure one piece of paper at a time. Then, one the morning of the trial, they settle. And make you sign something that you won’t sue them again. So always litigating against first-timer. When I was a clerk, got one of these cases. Duchess County, happened. Solo practitioner representing. Goodyear – provides witnesses in cities around the country. Solo moves. My judge – says – you have to provide all discovery in SDNY. They go out in the hall and settle.

Facts? Who gives a damn about facts? Everyone knows what the facts are. If Frank is right, there’s a lot wrong. There’s a big problem. There is no perfect system. But the weaknesses here are exploitable unequally. That leads to systematic biases in results, which are invisible. Unless you’re enough a realist not to believe in the facts, unless you’re enough of a shrink to ignore the evidence.

To sum the first strand so far: Holmes: lawyers have overdepended upon some lements of the stack for understanding social process: logic, history. Underdepended on modes of social science that are more sci: stats and econ. Cohen: true to a point: the real purpose of legal investigation is to understand social process by its conseqne. And understand social forces as change sof antecedent conseq. You need a system for knowing what ocnseq to absorb and which to leave behind. That is a theory of value, which weighs consequences. Frank: that would be easy if it were true. It’s not true. The uncertainty is really in the facts. That is hidden behind the certainty of the fact finder. My judge used to say – if we’re wrong about the law, court of appeals can correct. But we have no right to be wrong about facts. If Frank is right and we can’t do that – we have to ask – what are we doing? 2 things we have to do. Understand how that works it out.

Then go to Robinson.. Then John Brown. Next week it might be a good time to do some writing.


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r8 - 13 Jan 2012 - 22:03:46 - IanSullivan
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