Law in Contemporary Society
Robinson’s declaration reminded me of this scene from the television show The Wire. For those of you who have not seen the show, the witness, Omar Little, is testifying to the fact that he saw the defendant, “muscle” for a local drug operation, shoot and kill an innocent person. The attorney—a man whom Robinson would describe as a criminal lawyer in both senses—represents this particular drug outfit in all of their legal matters.

Omar’s words “I got the shotgun, you got the briefcase” are another articulation of one of the themes in Lawyerland: the attempt to sort people into “good” and “evil” can be an exercise in reductionism. The belief in such dichotomies undermines society’s ability to analyze the social forces at work within it. Recognizing this, The Wire tries to challenge conventional categorizations of good and evil surrounding crime. Watching the show you will empathize with the drug-dealing murderer, hate the commissioner of the police department and feel an overwhelming ambivalence towards most of the main characters. Each hero is, at times, an antihero. Each character is good, evil, both and neither.

Though ostensibly an advertisement for my favorite TV show (Obama’s too!), this post actually means to extend outside of the world of TV drama. There are many areas in our personal and professional lives where we distill people/groups/concepts into circumscribed categories so that we can avoid having to deal with their complexity. What do we lose and/or gain in doing so? How do we stop?

-- TomaLivshiz - 08 Feb 2012

You drew an excellent and inspiring analogy to one of my favorite shows which forced me to think, and edit the questions you posed above. I don't know that distilling people/groups/concepts into circumscribed categories is necessarily a bad practice that we should try to stop, however we should pay attention to what we lose and gain by this practice. I feel like the reason we make these categorizations is animal nature. We are wired (pun intended) to rapidly classify unknown objects into known categories, in order to understand how to deal with them. For instance, we naturally need to figure out whether an approaching person is a friend or foe - a threat we need to protect against, or a companion we can allow into our territory.

I don't think we can or should try to change these initial categorizations of people/groups/concepts; but perhaps by paying attention to our individual patterns in how we categorize different people/groups/concepts we will gain insight into how and why we make our initial categorizations, whether they are accurate, and how helpful or detrimental they end up being to us. For instance one might realize they are too quick to categorize somebody who wears an “I voted for Bush” pin as evil, and thus miss out on communicating with and understanding somebody from a different political view and additionally miss the chance to figure out how to argue with and communicate with that person. Or on the other hand one might realize that by making such an instant categorization he/she is shields his/herself from having a pointless, blood-pressure raising interaction with a person of opposite views. Or another example of a beneficial instant categorization is Robinson's quick judgment of the Federal Prosecutor who asked him to stop being so vulgar, which allowed him to not waste time trying to explain his viewpoint to the man who probably wouldn't listen anyway.

The above reasoning is why I edited the questions at the end of your post. I agree we should try to look at what we lose from our quick categorizations, but I think it's also important to look at what we gain. In posing the question “How do we stop?”, I believe you already came to the conclusion that those categorizations are wrong. I think this is similar to what Professor Moglen said last week in class about it being easier to come to a conclusion before fully thinking about it (see Sandra Day O'Connor's Supreme Court decision), which is something that I do often and I am trying to correct. So before determining the practice of rapid categorization is wrong, maybe we should look at the empirical evidence of what happens to us before we make our categorizations and the empirical consequences of those categorizations (similar to Felix Cohen's suggestion of how we should treat judicial decisions) to determine whether it is something we want to stop in the first place. Thoughts?

-- SkylarPolansky - 08 Feb 2012

I have been rewarding myself with an episode from Season 2 of The Wire every night before bed, and I just happen to have watched this very episode the other night. Both of your assessments are thought provoking. As Skylar points out, we have developed categorizations and social constructs in order to deal with the complexities of day-to-day life and the overwhelming amount of information we are bombarded with in modern society. It would be exceedingly difficult (and perhaps unwise) to be prematurely dismissive of the value of these categories and the purpose they serve in allowing us to engage interpersonally, respond to social cues, govern our own behavior, and – perhaps most importantly in the legal profession - influence others. I also agree with Skylar that acknowledgment and critical analysis of our own assumptions, stereotypes and categorizations is extremely important. The more self-aware and self-critical we are, the better we are able to recognize when we may be oversimplifying or undervaluing a complex individual or situation. I think the process of recognizing, analyzing and responding to/manipulating these categorizations is something that Robinson has developed a knack for. While he acknowledges the stereotypes prevalent in the world around him, he also recognizes the inherent inadequacies of these categorizations with regards to capturing the multi-faceted essence of the actual person. The kid is not only a ‘criminal’ –as branded by the state – but is a complex individual with a family, a future and a capacity for good as well as evil. Robinson doesn’t pass moral judgment on his clients because he recognizes that they are more than the sum of their parts and cannot be defined/confined by their actions. It is not his business to assume the role of a philosopher king, but simply to represent his client, and to use the skills he has acquired to work the legal ‘system’ to his advantage. While Robinson may critique prevailing social constructs, and refuse to ascribe to them himself, he accepts the reality that they DO exist and has learned to use them to his advantage. He may choose to play up or manipulate existing social constructs and categorizations when it serves his purpose, and he may also fight against/attempt to redefine these categorizations when necessary. The point is that Robinson is AWARE of the existence of these embedded societal assumptions and people’s conceptions of/reactions to them. This valuable capability gives him an advantage in the legal profession, as he is able to use his insight in order to strategically manipulate and play off of the systemic social, legal and interpersonal realities that govern human behavior and action.

-- MeaganBurrows - 08 Feb 2012

I think Skylar and Meagan's points about the value of social constructs speaks to the main theme that has run through our discussions and readings thus far: That there is a hidden truth behind what all of us - judges, lawyers, businessmen, criminals - say and do, and by acknowledging our biases and pre-dispositions and understanding the biases and pre-dispositions of other actors, we can discover that truth and use it to our advantage. To me, the main point of the first few weeks of classes has been to try to teach us how to be a "good" lawyer: Not by knowing the law, but by understanding people and systems and institutions and using that to our (and our clients') advantage. While I think this is an incredibly valuable skill to have and one that makes you a very "good" lawyer in the sense that you are able to exploit situations to get your desired outcomes, I worry that the focus thus far has been too much on how to exploit situations and not enough on which situations you SHOULD be exploiting. I hope not to sound too preach-y here, but I look at the students at the top law schools in this country as the future leaders of this country - the ones who will make the laws and enforce the laws and judge the laws, the 'high aristocracy' that seems to be such a embedded notion in traditional legal society - and I also look at a legal education system where 80% of top law graduates will go to work for big firms, serving only corporations, corporations and corporations. So if we DO learn this skill of legal manipulation (and it's probably a stretch to say that more than very few graduates actually do), who are we manipulating? At the service of whom? To achieve what end? I'm not sure if it's a law school's job (or even within its capacity) to teach morality, but I've just been so disheartened by how much Columbia is set up to funnel you into Big Law jobs and not force its students to question who they are, what role they have in society, and what they can and SHOULD do with the skills they learn here. I want them to do more to instill in us how to be a "good" lawyer in another sense altogether.

(I realize I may have taken this somewhat off-topic, so I'll only end by saying that that episode of The Wire is the best ever.)

-- JaredMiller - 10 Feb 2012

I appreciate the point Jared makes about the fact that if top law school students successfully learn how to exploit situations to their advantage and how to be good lawyers, they will be doing so only to serve corporations. But what about the fact that law schools don't really teach us how to successfully manipulate situations and/or the law to our advantage, but rather, how to feel comfortable doing that solely on behalf of the rich? The learning we acquire in law school seems to me in no way related to how to successfully manipulate the law. We learn this skill in the jobs we will have after law school, regardless of whether that job is in BigLaw? or in public interest. One of the biggest pieces of bullshit Columbia feeds us is that we will only get the right training if we work at a firm after school. I just don't think this is true. We will get training in how to manipulate the law regardless of where we work, the only difference is that a firm will teach us to be comfortable doing this magic on behalf of solely people with money, whereas a job elsewhere will teach us how to be comfortable doing this magic on behalf of some people with money and some people without. Why do top schools try and instill this level of comfort in us? Maybe because it's unnatural to feel comfortable working our butt off for corporations which are non-natural, non-entities. One doesn't have to convince herself of the goodness in helping an underprivileged person navigate our legal system - there is an emotional reward that comes naturally with such a deed. Convincing ourselves of the goodness in helping an extremely privileged person takes a lot. It takes about $150k in tuition.

Sidenote: I enjoyed Moglen's statement yesterday (2/9/12) that we are kind to the rich and just to the poor. I found this point beautifully poignant. It is concise (11 words) and highlights the way we manipulate our legal system disparately depending on the socioeconomic status of who we are helping, and then try to mask this disparity with language. Taken out of context being “kind” to a person, or “just” to a person are normally both good ways of treating people so we think it's good to treat a person either way. However when these words are inserted into the above sentence the negative aspect of treating somebody just “justly” becomes apparent. I love word-play - perhaps that's why I enjoyed this point.

-- SkylarPolansky - 10 Feb 2012

I appreciate the edits above. There is undoubtedly much to be gained -- both in legal practice and in society more broadly -- from effective use of categories. If we are to be successful legal practitioners, it will behoove us to be able to identify and anticipate the frameworks employed by the judges before whom we argue, and to tailor our work accordingly. Indeed, as Eben has mentioned, a course in human psychology might prove more helpful in our legal careers than would some of the other courses which we are told to take.

Perhaps the reason that I was more concerned about what we lose in categorization is best expressed in Courts on Trial. Scholars of Legal Magic do not have the good fortune of physicists and mathematicians of being able to use an idealized model in order to make groups of cases/legal matters/fact patterns. Efforts to do so in jurisprudence and legal theory have little predictive power; they are so out of touch with reality that they are quickly made obsolete by a unique fact or witness (which most facts and witnesses are). As Frank points out, in attempting to create prognostic models, legal magicians take the the F factor for granted, when in fact, it is often determinative. Judicial discretion, it seems, will often find home in the interstices between clear fact patterns. My fear is that because of the comfort which I find in categories, I will be blind to the stray fact, the integral detail, the game changer. To be a good lawyer, one must be vigilantly creative--to simultaneously see the "categories" and see past them. Like many of us, I am not sure that our legal education is giving us the tools to do that. Will I leave law school with a lobotomized imagination and, in its place, the second restatement of contracts?

Here is where my concerns converge with those expressed by Skylar and Jared: our education leads us to think that law and the legal profession are monoliths, buttressing a system which is kind to the rich and just to the poor. Both of you brought up the salient point that the training we receive is in pursuit of a questionable end. We are really not far from evil. Only, we probably cannot place responsibility on Columbia alone; that might be too easy. Of course, our teachers and administrators sculpt our academic trajectories and help us to design our professional goals. But, we too -- some of us complacent and others eager -- seek a role in the system we find so contemptible in the classroom and the remuneration which accompanies it. I admit that I am in this category; though I tell myself the my career will be unique, that I will merge my interests in social justice with my desires to live comfortably, I do not always do so with confidence. So, if we want the administration to do things differently, we cannot give them reason to keep thinking that they are meeting the needs/wants of their students. We need to cease being an audience, and become actors. Maybe as we continue to refine/edit our thoughts on these message boards (especially the "Law School as a Training For Hierarchy") we can come up with specific things we want changed.

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r9 - 22 Jan 2013 - 18:14:04 - IanSullivan
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