Law in Contemporary Society

Trying Not to Die a Little

-- By MichaelDreibelbis - 03 Mar 2009


I sat slack-jawed, contemplating the unthinkable:

“Multiple personalities? No free will? That's Bonkers!”

Enter Bruce Springsteen

And suddenly, it all didn't seem so bad.

Truth and Meaning

The theory made just as much sense this time as it had in the past. That was never the problem; it had always seemed at least as logical as the alternatives. But the theory had always depressed me, so I had just tried not to think about it. But my own contingency no longer felt like such a burden with Bruce on the speakers. Free will or not, I could still go racing in the street, and I liked the song so much that racing in the street seemed like enough.

The theory, then, did two things: first, it made sense of my experience. Secondly, by way of Bruce Springsteen, it made me feel like a life without free will could still be worth living. Assuming that this experience is typical, we might hypothesize that whatever rational conclusions we may arrive at remain inchoate unless we can embrace them with our whole selves, and we can't do that unless those conclusions inspire us.

1L Year

How might a recognition of the existential character of our search for truth inform our legal education? Whether we realize it or not, law school will shape us into the lawyers we will become, both in terms of our substantive conception of justice and our career choices. So we had better figure out how, before it's too late to do anything about it.

Legal Education

1L year initiates us into the legal fraternity, and all that that implies. This is not to criticize it, but rather to point out that it establishes membership in a community sharing certain social practices. These social practices form the canvas on which the initiate creates meaning. New values come to the fore as they prove themselves better suited to the new social circumstances.

Our textbooks and professors don't just transmit rules, they breathe life into the judges who create them. Holmes, Cardozo, and Learned Hand are portrayed as legal heroes. We scrutinize their every word, and if we answer all of our professor's questions right when we are called on, the story seems to go, maybe one day we can grow up to be as smart as they are.

The drama is necessary because the rules would not be persuasive on their own. As we have all realized by now, choosing between legal rules that advance unverifiable, seemingly incommensurable values often feels like a toss-up—much like we never really know for sure whether we have free will or not. To whom is a duty really owed in Palsgraf? Yet, for stability's stake, the American legal system has to convincingly, unanimously resolve these difficult questions of law by inspiring confidence in the result. This is why they give us the great judges to read. Holmes, Cardozo, and now Posner: it is no accident that the most read judges in law school are also the most literary. And the name “Learned Hand” speaks for itself; it actually sounds just. We follow their lead not because they destroy the counterarguments; they don't. But they sound so good that we just don't care about the counterargument.

Law Firms

It is no secret that law firms woo us with prestige. As we have all seen, IsBeingACorporateLawyerImmoral is a tough question to answer. Law Firms don't bother trying. They know that the problem goes away over lunch. Rather than logic, they treat us like a big deal. They make us feel like we matter.

Prestige is also closely tied to exclusivity: law firms exploit the achievement-oriented personal narratives of law students who have always found validation in good grades from exclusive institutions. An offer from a Vault 100 firm plays into this narrative, just as admission to CLS does.

Law and Contemporary Society

Eben uses the same sorts of tricks as everyone else to win us over. Aside from the music, the Wiki reinforces his philosophical, psychological, and political positions. As response turnaround time decreases and we begin to edit one another's work, the individual identity of the writer ceases to be important. And as our belief in our own individuality becomes practically irrelevant, the idea of living without it becomes increasingly bearable. The Wiki actually animates the logical principles he wants us to confront. Similarly, editing one another's papers allows us to practice thinking:“what can I do with this idea?” Developing, rather than disagreeing with others' papers requires a different kind of response. And as with the rest of law school, grading incentivizes adoption.

Walking a Fine Line

All of this rhetoric suggests that law school is a field of competing interests, each trying to win our allegiance.

This fracturing of authority renders obsolete the achievement-oriented narrative which has probably animated the lives of many 1Ls up to this point. As the showpieces of a culture characterized by micro-managing parents, hyper-competitive school admissions processes, and organized team sports from a young age, many of us probably got to Columbia by spending our lives fighting as hard as we could to do as well as we could at whatever we have been told we should want. In a world where different authorities working towards radically different end goals compete for our loyalties, however, simply keeping our noses to the grindstone entails a delegation of responsibility for our lives to whoever employs the most effective rhetoric (which is often just a matter of using exclusivity as bait).

Navigating this landscape requires the ability to alternate between reflection and engagement. We need the courage to follow inspiration rather than obligations of the letter but not the spirit. We can only do so much if we are divided within ourselves. At the same time, we need to constantly turn a critical eye to those sources of inspiration to assess their true purposes in enlisting our support. Gold stars may not signify where our true interests lie.


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r5 - 08 Jan 2010 - 22:10:51 - IanSullivan
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