Law in Contemporary Society

Robinson & Brown

I do not believe that determining whether his methods were right or wrong is a useful exercise. I think that we have spent too much time focusing on the violence. The overall message is to continue to fight for something. I think that Thoreau’s emphasis on Brown’s decision to fight despite not getting any monetary reward for it and without it affecting him directly gets at where we would come in.

In trying to piece together the readings and figuring out what they mean to me, I realized that Brown and Robinson are similar. First, Robinson and Brown prepared or readied themselves to take action. It was not a hasty knee-jerk reaction. Robinson fought in the Vietnam War, went to law school, worked at the prosecutors office, SEC, and then became a private defense attorney. Similarly, Brown prepared himself by learning through experience. He got familiar with the military and war. And although he chose not to engage in it (unless for liberty) it was important for him to understand the costs, and not just the pecuniary costs, of “firing a single bullet.” He prepared himself in other ways—eating and living a certain way and recruiting specific people (among other things).

Second, both of these men tried to get in touch with, as Robinson puts it, the thang, or as Thoreau writes living a life of exposure.

With respect to us, I think that the point to take here is that we have options. We can sit and be na´ve—let the world continue and only get up when everyone else has—or we can do something about what we see is unjust. The “what” we do is very particular to who we are and what we can do as individuals. We would need to make informed choices that make sure that our steps help us to develop and mature as attorneys. The problem is that too many of us are way too far from “the thang” and live a life not fully exposed and as a result have a harder time seeing injustices.

It is much easier to sit back and judge than to do something. I think Wiley put it best when he said that he said he was cynical but not a cynic. I think that we are critics but not critical. We can point to methods we think are right or wrong without looking at the message or at least offering an alternative. Instead we are content with the contribution of criticism instead of actually trying to wrestle with the concepts that make us uneasy.

In our discussion of Brown we focused too much on the violence used instead of talking about the importance of taking action and dealing with resistance or the non-action of others. I think that focusing on when to stop does not make sense when (for the most part) we have not started. Thus I would not ask what but I’d ask would you (try to) do something if today 20 million+ people were slaves?

-- LissetteDuran - 01 Mar 2012

I wish I saw this before writing my last post in DecidingInThePresent 2 minutes ago but I just wanted to say that I love the distinction you made in the last sentence between "would you" and "what would you" - sums up really well what Eben wants us to focus on and what a bunch of people, myself included have been focusing on, at least until today. I totally agree with you that the "would you" is much more important right now than "what would you" and I totally get why Eben wants us to focus on the former and not the latter, at least at this point. I feel, and maybe other people would agree, that it seemed in class like Eben was completely disregarding, and perhaps even disparaging, the second question. If I may criticize Eben for a moment (oh what the hell, all my chips are on the table already as it is), I think it might have been more productive to acknowledge that "what would you do" is a legitimate and difficult question (which I still think it's reasonable to say) but that it's not the question we should be focusing on at the moment and that we should put it aside until we've sufficiently answered the "would you" question for ourselves. I think that would have allowed people, including myself, to more easily shift our focus back to the real issue. Just my 2 cents and again, I loved your post!

-- JosephItkis - 02 Mar 2012

I like your comparison of Robinson and Brown – I thought of this as well when doing the readings. I think that together they serve as a good foil to Wiley, who identifies himself as cynical but not as a ‘cynic’ and states, “how can you be a lawyer and not be cynical? But not a cynic – cynics don’t give a damn about the rules”. At the risk of being slightly reductionist, I think this framework presents a useful spectrum upon which Wiley, Robinson and Brown, in their engagement with social and legal institutions, can be positioned.

Wiley is very self-perceptive, acknowledging that his life is governed by the pursuit of money and that he and his fellow attorneys have essential split and sold their souls for the job. When he states that “you can make a million dollars a year by pretending to know what you’re doing, and being able to sit through interminable meetings without developing any serious maladies”, he is clearly being cynical – offering up a rather bleak and realist view of the art of practicing law. However, he has come to terms with his own practice and life – he recognizes it for what it is but has no real desire to affect change or critically engage, as he is comfortable in the life he has fashioned for himself within the institutional moors. He is not a ‘cynic’ – his cynicism and critique of his profession do not define him, subsume him, or influence his day-to-day behavior in any way.

On the other hand, Robinson, and Brown – to a greater extent - breach the land of the cynical and move towards becoming cynics. Unlike Wiley, they are not inert observers, passing judgment on the legal community from the comfort of a bistro chair, while drinking expensive Chilean merlot and espresso. They have consciously refused to “commit acts of violence against [themselves] and acts of violence against others” in the name of becoming another suit chasing the next buck. Robinson has fashioned his own practice in a way that suits him, and refuses to be enslaved by his profession. Both men have taken their criticism or cynicism and applied it to practice and life, and in doing so have fashioned identities as 'cynics'.

I do not think Robinson goes as far as Brown, however, in refusing to ‘give a damn about the rules’. This is where their paths diverge. Robinson still recognizes that other people ascribe to, depend on and orient their behavior in a way that conforms to institutional rules. This makes knowledge of the rules valuable to Robinson, as they serve to indicate the actions that others may take and the institutional confines operating on individual behaviors. While Robinson may not always follow the rules himself, he still plays the game, because abandoning them completely would inhibit his ability to use them as leverage in manipulating others and working the wheels of the system. Brown has adapted his cynicism to become a cynic in every sense of the word. He not only refuses to conform to the rules himself, but advocates direct action against them. I think Lissette is on to something in highlighting how these different approaches are instructional and can serve to guide us in our personal decisions regarding how we choose to interact with the legal system. As Lissette rightly points out, it is awfully easy to criticize the legal profession from a cushy leather chair on the 50th floor of a downtown firm office (or, for that matter, from a significantly less cushy desk chair in JG). Brown is a cynic, because, as Eben said, he can’t find a way not to see the elephant when it is in the room at the dinner party, while Wiley, merely making the occasional cynical observation from the comfort of his armchair, can. While the Wiley, Robinson, and Brown approaches are not necessarily so discrete, it may still be useful to look to each individual to draw out the components of engagement and personality (if any) that inspire us and to adapt those approaches for our own purposes.

-- MeaganBurrows - 03 Mar 2012

I really like Meagan’s description of Wiley – I think she’s spot-on that Wiley is not unaware of the destructiveness of his life. The only way he can deal with the negative feelings is by sequencing the drugs carefully, hating on other lawyers (Boola-Boola), and concentrating on the idea of chaos and complexity. Wiley splits because he's aware that he's not living. He's not John Brown, because, as Thoreau expressed, Brown is a rare case of a person who actually lived.

One distinction between Brown/Robinson and Wiley/most of us is courage. Maybe Brown inherently had that courage or maybe he trained himself to have courage. I suspect that at least part of it came from the fact that Brown knew the cost of a human life because he had lost a few. Thus, he understood that "it costs us nothing to be just" because the cost of not being just is human life, which is incomparable to the material costs that his critics based their decisions on.

"How do we feel about ourselves after encountering John Brown?"

The answer to this question is clear from the fact that our class discussion devolved into discussions of: 1) whether John Brown was a terrorist or a murderer and 2) how he might have been prematurely anti-justice (Why didn't he wait until the Civil War became surely inevitable? Why didn't he wait for permission? Why didn't he wait to find out if it's okay to go up against injustice?).

The ironic thing is that our reaction mirrored exactly what Thoreau observed about John Brown's critics: “They cannot conceive of a man who is actuated by higher motives than they are…Accordingly they pronounce this man insane, for they know that they could never act as he does, as long as they are themselves.” Most of us can't either - which is why we compare him to terrorists and murderers, in the same way that Brown's contemporary critics called him insane. It doesn't take courage to get into law school and many of us will never train ourselves to be courageous. It's not that we're too far away from the thang, as Lisette wrote, but that we don't see the thang even when it's all around us. We hear stories about injustice but we don't remember them. We feel bad for a few minutes after reading a sad news article about some injustice that doesn't directly affect us, and like the Christians, we turn our computers off at the end of the day and go to sleep quietly. When we measure ourselves against John Brown, we get cognitive dissonance and we deal with it the same way that Brown's contemporaries did: 1) classify him in a way that makes him different from us, and 2) don't think about it for too long.

"How we feel about the apprehension of the trauma – knowing that we’re running toward a moment of working in exhaustion at 2am and knowing we're on the wrong side?"

I went to a firm event the evening after our first John Brown discussion and went away feeling somewhat depressed. All day, I had been troubled by the thought that I probably don't have the balls to do anything about 20 million people being enslaved, and at the firm event, I realized that I'm not going to grow balls by working for a firm. I brought this up at a table of law school students the next day. One friend got really angry and went on a rant about how we should be grateful for being at Columbia (Don't we know how many people would kill for this opportunity?), and how he's disgusted by people who complain about the work. Another said, "What else would we be doing instead?" and everyone else agreed. A third mentioned the money. The final comment was, “I’ll go work for a big firm and support you while you go save the world."

-- MichelleLuo - 04 Mar 2012

I enjoyed Michelle's thoughts on the firm reception. I'm curious about connecting the general enthusiasm about the receptions with Eben's comments on prestige. Why is it that most law students here consider working for a plaintiff's personal injury firm to be worse in some prestige sense (aside from money or hours) than practicing at a large corporate firm? Why have I repeatedly heard that white collar criminal defense work is considered the most prestigious litigation at those same large firms? None of these ideas are consistent with at least my basic moral intuitions, so maybe part of the function of law school is to teach us to ignore those intuitions.

-- DavidHirsch - 04 Mar 2012

I think a relevant difference between Wiley and Brown is the source of their destruction. John Brown is murdered by the system whereas Wiley is slowly killing himself.

When I read about and think about John Brown I am in awe of his courage and willingness to sacrifice his own life for his cause. I look at it and immediately hate myself because I feel like it's something I will never be capable of because I am too scared of losing my life.

But then I look at Wiley - who has pursued money and self preservation through attainment of power - and he too is being killed. Drinking wine to obliterate feeling, drinking caffeine to force the body to work at pique level when it would otherwise be incapable of doing so, working under a level of stress that surely eats away at his insides - all of these tactics chip away what used to be "Wiley" and leave in his place a stunted, split personality. Almost everybody I interact with at law school or in law firms has increased their usage of whatever substance (alcohol, caffeine, aderol, marijuana, melatonin, ambien, etc.) they have always used as a way to regulate normal functioning. But regulating bodily functions in this way is not life - it's a slow death. It's a slower death, and thus more concealed, but one of which I realized I should still be afraid.

-- SkylarPolansky - 18 Mar 2012

I think Leff might be able to shed some light on why Wiley (and lawyers like him) are content to remain in their state of cognitive dissonance, even when they are – as Wiley is – so self-aware and disenchanted. Leff contends that cognitive dissonance and the sunk-cost fallacy cause “the present and actual [to have a] competitive advantage over the future and hypothetical”. Wiley already has sunk costs – decades of them. He has committed to this lifestyle, has pursued it with dedication and has spent time, money and effort to come to terms with the effects it has on his self-perception and the meaning he derives from life. Once you have invested so much in pursuit of a particular objective or travelled so far down a particular path, it is extremely difficult to say ‘to hell with it’ and start from scratch. You become wedded to the stock you have invested in – regardless as to whether you still believe in it, value it, or desire it – and “the possibility of prospering through it seems better than that attending any alternative uses of [your] money [or time]”.

This insight might also be useful in analyzing our own motives at this early stage in our legal careers and help us to fashion ourselves into ‘Robinsonian’ lawyers as opposed to carbon copies of Wiley. Leff notes that the “critical con move was that initial push in the right direction; damping the later impulse to unbuy takes further energy”. Here at Columbia, the Big Law funnel, we have all already been subjected to that initial push in the ‘right’ direction – we are now “partial prisoner[s] in a sort of spatial monopoly”. Some of us came to Columbia to do corporate law. If that is your goal and ambition - I say all the more power to you and go get em’. What really saddens me, however, is those of us here who are averse to Big Law but see no other option. I had a conversation with a friend of mine recently who is questioning her decision to continue with law school. When I asked her why, she said it's because she knows she doesn’t want to do corporate law. I reminded her that although living in the Columbia bubble may make it seem as though the corporate life is the only option upon graduation, this is in no way true. Some of us – myself included – have developed tunnel vision at Columbia, and forgotten about all of the other career alternatives we once imagined. In line with Leff’s analogy, Columbia has us in “a particular store” and now the “universe of choice [has begun] to seem limited to what is there”. With copious firm networking events and email reminders about EIP, we often forget that we have the opportunity to ‘shop around’, and our “contours of choice” are consequently distorted. For those of you with an unnerving feeling that you are being manipulated into “selling wigs door-to-door – something you would never have done if all you could expect to earn were the normal profits from such extraordinarily hard work”, it’s not too late. You have two years to get creative and pass Eben’s imagination test. Any initial costs you may have sunk by attending firm events or lunch panels are minimal, and certainly worth abandoning if you fear the cognitive dissonance that may result from pursuing a career your heart is not in.

-- MeaganBurrows - 21 Mar 2012

Martha Tharaud's description of "most lawyers" gave me some more insight on Wiley's situation. I loved this passage from p. 128 of Lawyerland:

"But the older you get, you realize you've wasted so much time, so much time lost. No appreciation of subtlety, of beauty. That's what it is. That, finally, is what it is. To know anything about beauty, you have to take the trouble to learn. Most lawyers are like most everyone else they don't take the trouble to learn anything other than what puts money into their pockets. I know it sounds like a cliche, but it isn't even a cliche anymore no one talks about it any-more. What happens is, one day the dimwits wake up in a 'what-is-life-really-about?' stupor, but it's too late, it's already over, so they try to bring you down into their misery. It happens over and over again every generation, the same thing happens. How many lawyers do you know who think of themselves as sophisticates, cosmopolitans, when, in reality, they don't know very much about very much at all. In the scheme of things it's all so silly, but, in the scheme of things, there are a lot of people hurt by it, really hurt. I'm not sure, either, what you can do about it, other than protect yourself, protect what you believe in, those whom you love. I'm really not sure there's a whole lot more you can do about it."

Unlike Robinson, Wiley isn't a mentor to anyone. No one has anything to say about what they learned from him because Wiley hasn't taken the trouble to learn anything other than how to make money - the only thing his colleagues have to say about him is his money; the only thing that Wiley can sell is his billable hours. As Eben said, "If you don't measure time by money, you measure time by life forgone." The life forgone is the "stupor", "misery", and "hurt" that Tharaud refers to.

Cerriere has similar problems as Wiley. I think that one reason why Cerriere is so hostile to Tharaud is that Tharaud has figured out how to have a materially good life while fighting injustice (the challenge that Eben has repeatedly offered us). Thus, he makes snide comments about how Tharaud has probably made 10 mill suing the government as if this necessarily excludes her ability to do good.

Tharaud's ability to avoid Wiley/Cerriere's predicament is partly because it isn't difficult for her to see and hear injustice. She's "aware of the fact that [she's] a woman" (126). She "remember[s] all the indignities" and she's aware that indignities "change form, and in some instances even multiply"(126). The kind of lawyer that she is has very much been influenced by her awareness of certain injustices in society.

-- MichelleLuo - 23 Mar 2012

Michelle, I agree with you completely about Martha's awareness and want to expand a little more on another closely related idea that I think Martha is symbolic of. I think what makes Martha have such longevity as a lawyer is that she knows how to listen, which allows her to spot not only the changing forms of discrimination against her but also identify those bigger picture issues that haven't changed. To explain, here is one of my favorite excerpts:

"Dreiser said the favorite drama of the American people is the story of a murder trial. Nineteen twenty-five he said it. During that big-money boomtime. Notice he said favorite drama, not the real drama. The real drama? No one wants to talk about it. Work. Wages. Hours. Conditions of employment. Employment! Listen closely to what people talk about-it's what people talk about almost all the time. Let me tell you about the law. One of the fundamental legal relationships in any society--as fundamental as the relationship between the state and who the state deems its criminals--is the employment contract. It is certainly as fundamental as a commercial transaction, wouldn't you say?" (128-27)

Of course, the murder trial would be our favorite drama. These are trials that make the headlines because we're attracted to the noise -- i.e., the controversy, the sensationalism. I think of our attention to murder trials similar to the attention law students give to practicing mergers and transactions just because it's the often practice that grabs most attention. "Doing M&A" commonly sounds "sexy" and "cool" -- like this is where all the drama and excitement happens.

Martha not only can see through this, but she is capable of about knowing about the real drama because she knows how to listen. How else could she have been aware of something that "[n]o one wants to talk about"? But even if an employment case doesn't make the front pages of the newspaper all the time, Martha somehow can tell by paying attention to other public expressions that employment is the real drama. And notice that when she explains what makes employment law so important--that the employment contract is a fundamental legal relationship--she doesn't go into a complicated discussion about specific issues within this area or the different trends in the field, but she keeps things simple and focuses on the bigger picture.

Take her approach and compare it to Wylie. When the author asks him how things were at the firm, he said: "'Things at the firm? Changing,' he said, and then was quiet. I asked how. 'How? More pressure to bring business in, for one thing. That's how. You don't keep up, you're irrelevant fast--real, real fast...The business is so large now --and it's getting larger. We've got offices in seventeen cities now, eleven foreign. We just opened an office in Bombay...The game is changing as we speak'" (38). He later goes on to say that the only thing that doesn't change is what lawyers do is determined "by who pays us." Wylie, here, is clearly just hearing just the noise around him (the new offices, the demands, the firm), but is not listening to what the real issues are.

I think this comparison shows that there is an crucial difference between hearing and listening, just like there is between skimming and reading a book. Wylie is a mess because the noise tells him the business is constantly changing and that he needs to stay relevant in order to keep his job. But Martha knows how to listen and identify the real drama in our society. And when she describes it, she sticks to the bigger picture. I emphasize that again because the best advice I've ever gotten from a several professional mentors of mine (at separate times) is to keep things simple. It's so important to have this in mind particularly at law school because everything we learn doesn't seem so simple. We have fact, rules, standards, codes, exceptions, exceptions to the exceptions, etc. The times I confuse myself the most and get lost is when I focus on the details and feel like every case I read is saying something completely different -- that things are changing every time. But I'm most successful when I get myself out of that funk and force myself to keep these concepts simple. Overall, listening, rather than hearing (the noise), is much more conducive to becoming "simpler" thinkers.

-- LizzieGomez - 24 Mar 2012

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