Law in Contemporary Society
I could put this post under the OnWhyIAmReluctantToTalkInClass parent topic; I think it became obvious today that I usually keep quiet because my brain-to-mouth filter is very porous and speaking one’s mind is too often a bad idea.

  • I for one was very glad you had at last decided to stop preventing yourself.

I have been told that I called Prof. Moglen a failure. That was certainly not my intention. I merely intended to highlight that it is not always clear that he lives up to the standard he sets for us.

  • I'm a little surprised people had that response. I thought your line of questioning was entirely fairminded. Perhaps if you hadn't prefaced it by remarking that you might be about to commit academic suicide (which seemed to me a very extreme apprehension of external censorship) you would have shown less vulnerability and therefore received less aggressive criticism. Even people who do not know they are doing so often drive hard against positions that have been self-identified as risky.

If we were truly lawyers, Prof. Moglen said, we would not have a problem fighting the grading curve.

  • Of course, my comment is meant to be ironic, because (with the exception of Messrs Lochore, Bruening, etc.--whose status is a little more ambiguous--you aren't lawyers yet, which is why we are working together.

I applied this logic to my impression that Prof. Moglen wants to change the trajectory of Columbia graduates, but that he still thinks 99 percent of them end up unhappily grasped by the claws of almighty law firms.

  • Of course, that might be a more difficult problem for one person to solve than ending the use of the curve would be for 100 or so....

This, in my mind, rendered somewhat hypocritical the recurring statement that “I decide what I want to change, and then I figure out how to change it.”

  • You do not think that I have any ironic sense of my self?

I was happy to hear that my impression was incorrect, and that Prof. Moglen thinks that a moment of change is approaching. I wish I had heard this sooner. Elaborating on Prof. Moglen’s metaphor, I believe that to establish credibility as a leader, a “good general” must show his troops that victory is within reach. In other words: We all need a carrot, lest we grow numb to the stick.

I also feel that I need to clarify my “So what?” response to the Arnold-induced realization that our lives are more affected by non-choices than by choices. I completely agree with Arnold on this point. What I meant by my admittedly vague two-word question was: Now how do we turn this realization into something useful and constructive? Prof. Moglen gave us an excellent answer: Let the awareness of our happenstance privilege nourish our commitment to change and justice, and let it reinforce our ability to resist the temptation of six-figure salaries. That was exactly what I wanted to hear.

The assumption, however, that we are unaware of the non-choices that have given us a life of privilege is offensive. I am sure that many of us have considered this issue prior to reading the Arnold piece. I grew up in Sweden, one of the world’s most egalitarian and prosperous societies, where all university students get equal stipends, health care is free and universal, and cabinet ministers use public transportation. The awareness of my own privilege has motivated every major choice I have made in life. I came to law school after spending two years in a war zone. My daily commute had me traversing open sewers; the cook at my house lost his daughter to fundamentalists who could not stand seeing a woman’s face on TV; and the Taliban killed six people in the changing room at my gym. I could not be more aware of my own privilege, and I know full well that I did nothing to earn it.

I also find offensive the assumption that law school is the first-ever challenge to our commitment to the public good. I am sure that many of us who are committed to pursue a career in public interest law have already tested that commitment. For the first months of my six years of non-profit work, my husband and I slept on an air mattress because our combined paychecks did not cover both rent and a bed. Unless law firms possess some magic of which I am unaware, I consider myself capable of sustaining my commitment even in the face of hardship.

  • Here I do think you are being a trifle unfair. My point was not that everyone in the room is ignorant of this truth, or even that anyone in the room was completely ignoring it. But the desire to vindicate individual identity sometimes leads some people to underestimate its importance, as other comments made in this wiki since we parted may perhaps tend to show.

Finally, the assumption that women care about what they eat because society wants them to be bulimic is offensive. After inviting discussion on the issue, Prof. Moglen ignored his own professed principle – whereby one should never merely seek to prove an idea wrong – by vehemently declaring that he was right.

  • This, I think, is entirely just. I said at the outset that I would occasionally be found to be breaking the rules through negligence and hastiness in debate, and--as you say--this was certainly an instance. I thought you were being dogmatic, and I was regrettably dogmatic in response.

As is the case with much of what we discuss, there is more nuance in this issue. I, for one, care about what I eat because my mother is so obese she can no longer walk.

  • But surely your concern about her is not primarily that she increases the public health care expenditures. Yet that was the point you made at the moment of speaking, and the difference between your private feeling and the public argument advanced might be fruitful to follow up.

I may be wrong, but I think that Prof. Moglen is to some degree preaching to the choir, which makes his abrasiveness somewhat unnecessary. We are all in this class for a reason: We do not want to be “canned meat.” I am in this class because I had tears in my eyes when Prof. Moglen finished speaking at the 1L electives panel. I want to be a happy lawyer, I want to effect change. I did not expect that the process would involve being told that, no matter what I think about my own commitment to serving justice and the public good, I will end up as canned meat.

  • I am not intending to abrade your spirit, Anja, and I hope you will acquit me on further consideration of any such purpose. I understand, even if I do not entirely share, your view that my role is to lead you towards your intended future primarily by the force of general and enthusiastic encouragement that victory is nigh. Instead, you must permit me to take a slightly less optimistic view of the situation based on my own lengthy experience in this environment. Time has taught me that the initial strength of peoples' desire for meaningful practice and balanced lives is eroded from within as much as from without. Let us suppose--which may well be true for all I know to the contrary--that your commitment to your intended life path is the firmest of all commitments in the room, not excepting my own. Your grasp of the paradox involved in accepting fully that you are the product of intersecting social forces and contingencies, on the one hand, and also the captain of your fate and chooser of your destiny, on the other, may rise superior to everyone else's, including mine. In that case, everything I say and do to help others deal--first with encountering and later with accepting that paradox--productively in their own psychic and moral lives, will be wasted on you. That would be too bad, but it would be neither insulting nor harmful. And if, just if, our collective conversation turned out to play a role in strengthening even your already steely moral resolve, that would be well worth the sting of your criticism.

All of this said, let it be known that I really enjoy this class – because it makes me feel something (even if that feeling is mostly frustration with a sprinkling of confusion).

  • Please have patience; we have only just met and begun our travels together. Six, let alone twelve, weeks from now, I think you will find yourself neither so frustrated nor confused. I hope you will also have found many more reasons not to be silent.

-- AnjaHavedal - 06 Feb 2009

Hi Anja,

I share some of the frustrations you write about here. When you say it's insulting to be told of the privileges we have as if this is new information, I agree. But I think it can actually be worse than insulting: it can be merely banal. I understand that people often forget or underplay this, and many of us may not have had our commitment to doing something with our "lottery earnings" tested as you have. But for me, since the circumstances of my life make it difficult for me to ever forget how privileged I am, being told about it is rather like being told what my name is. And I suspect I'm not all that unusual compared to others in that class. I don't think you and I are necessarily more aware than anyone else. So I sympathize, and I hope we'll soon start talking more about what we can do about our awareness of privilege and less about becoming aware of it in the first place.

I also could relate to what you said about needing some reason for optimism. However, I don't know that this class is the place to look for it. I'm sure people's commitments to working for change and justice do diminish over time. I've seen a few examples of this myself. But it surely cannot strengthen people's commitment to be told that it's almost inevitably going to go away anyway. At least, I don't think this approach would strengthen many people's commitment. Some may respond in a "reverse psychology" type of way, I guess, as if they are being dared to do something.

But as I said, I don't know if this class is the place to look for optimism because obviously Professor Moglen has experience-based reasons for his pessimism. And I wouldn't want him sugarcoating his view of reality for us, nor do I think he would. So you and I and others who feel the same might be better off searching in other sources for reasons for optimism, and perhaps use this class as (among other things) a reminder of what we're up against.

-- AnjaliBhat - 06 Feb 2009

I'm curious about the shape that a conversation about what we can do about our awareness of privilege might take. I have doubts, though, about whether this "coming to awareness" is really a positive moment to the extent that this awareness would translate into socially constructive change. Does being aware of your own privilege necessarily make you more useful in contributing to a more equitable distribution of privilege in your community? And if so, how? Does being aware of your own privilege allow you to internalize some sort of baseline of privilege above which your socially constructive work aims to bring others less "fortunate"? I realize that these questions are loaded and most likely stand tenuously on many assumptions that make this conversation more idealistic than concrete. For one, working to distribute your kind of privilege might be far from "socially constructive" efforts. But hopefully, asking these questions will invite more insights about what we can do (or not do) after becoming aware of privilege.

First, it might be interesting to wonder about why being not aware is a bad thing. And I mean to use the ambiguous "bad" because I think people's tendency (at least based on my own observations) to disapprove of being not aware is equally ambiguous. It is simply irresponsible for a person with privilege to not acknowledge the fact. I can think of some reasons that might give this "bad" feeling deeper contours. Not being aware of your own privilege, whether by passive indifference or active protest, maintains a personal view of "how the world works" that is false and possibly dangerous. There is of course the lurking assumption that there is an actual, correct view of the world. Admittedly, then, maybe more focus should be situated on the fact that this personal view is dangerous. In a sense, a privileged person's education, wealth, reputation, power--they are artificial. More precisely, how the privileged person comes to her position of advantage is arguably a cumulative process of chance and the efforts of antecedents. ("Artificial," then, would go to show that the privileged person is privileged not entirely because of her own investment.) And if the privileged person ignores the non-personal nature of her advantage, then a false sense of entitlement may emerge to separate herself from the unprivileged: "I earned this position. I have no responsibility toward those who have not worked as hard as me. They should be more like me." The sense of entitlement, then, both atomizes the privileged person and dissolves any sense of social responsibility that might be necessary for a community to become better.

On the other hand, I can imagine why being aware of one's privilege might undermine collective efforts to improve a community. Once a privileged person becomes aware that her advantage is artificial, she might guard it on the knowledge that privilege may be largely out of any individual's control. Instead of the self-congratulating egoist who isolates herself from others who she thinks should "try harder," this formulation is the self-conscious hoarder who thinks that privilege is a scarce commodity that is, to a large extent, arbitrarily distributed in a competitive market of privilege-seeking people. Being aware of one's (arbitrarily acquired) privilege, then, leads now to a sense of entitlement to guard one's advantage. Moreover, is being aware of one's privilege simply a personal feat of introspection that humbles the sense of self? If so, at what point, if ever, does this awareness become outward-oriented? Bottom line--how does this awareness actually translate into helping the community? Under this "hoarder" formulation, it is possible that privilege becomes sequestered in a corner of the community in a way that it keeps the haves having and the have-nots otherwise.

-- JosephLu - 09 Feb 2009

Your "hoarder" argument for not being self-aware is not a good argument for maintaining the illusion of individualism because it assumes that "privilege" is a finite and limited resource. It's valuable insofar as it exposes the dangerousness of thinking that "privilege" can't be expanded.

I do think you lay out a pretty good argument for why being self-aware is a valuable and good thing.

-- MichaelDignan - 09 Feb 2009

I actually think that privilege can be finite. Isn't scarcity of resources the basic assumption in economics? For example, there is not infinite number of colleges, if you consider education as "privilege." I believe that the tension between the privileged class and the underprivileged class, in which the privileged class is trying to guard their privilege, is one of the most recurring patterns in the history. However, I think good can still come out even when you perceive your privilege as finite. Granted, some people have more privilege than they need, and if diminishing marginal utility is ever true and people realize that, then privilege can be shared. I saw statistics that there are 300 million children in the world who never owned a pair of shoes. Projects that give used shoes that people donate to these children can be a small example of how people can share their resources when they have more than they need…

-- EstherKwak - 09 Feb 2009

Upon first glance of Joseph's post, I wondered why exactly it is "irresponsible" for privileged persons to not acknowledge their artificial status. I thought that if an entitled person still gives back to his/her community, still strives to do well to help those that haven't worked as hard (as the ignorant person might assume), what is the wrong with this? I immediately thought of Holmes' classic point that things are not what they are called, but are what they do. To my mind, the "irresponsible" argument did not falter because it assumes the existence of a correct view. Rather, I thought that the argument does not succeed because there was no functional backing behind the claim that unawareness is bad.

After re-reading and further analysis, I find that I come to the same conclusion, but through slightly different reasoning (similar to the second half of Joseph's first theory). In my judgment, the unaware, privileged person does not normally behave as I described above. Surely there are counter-examples, but I believe that success generally promotes an "us vs. them" mentality - similar to that described by Arnold - which does not promote positive social action. Becoming aware evokes our emotions (such as compassion or outrage at the situation) that overcome our disaffection towards the situations of others. In other words, being unaware is “bad” because it prevents humans from acting in a socially constructive manner that can materialize through awareness. The anticipated response would be similar to Joseph’s second formulation that awareness can in fact foster “hoarding” and less social action.

I am not positive, however, that the aware elite hoard more than the unaware. If the egotist believes that the unprivileged are simply “not trying as hard”, wouldn’t he still try to protect his interests against the striving poor? If the unaware truly believe that everything is a matter of choice, I think they might still try to “hoard” as much as an informed elite, perhaps even more so. For me, the bigger problem posed by awareness is the “bonkers” consequence that Arnold supports. To me, whether this outweighs the positive effects (with respect to both justice and distribution of wealth) of becoming aware is still not settled.

-- KeithEdelman - 09 Feb 2009

 

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