Law in Contemporary Society
Today, in the midst of the broader discussion of the Arnold reading, Professor Moglen talked about “winning the lottery”. I’ve thought about this frequently – that the place where I am today, and indeed most of the places I’ve gone in my life, were predetermined by the time and place where I was born. Obviously there have been choices made along the way, but I’m not interested in addressing how frequently these choices were actually conscious decisions or to what extent a conscious decision can even be reached. Rather, I’d like to address the issues that arise for me when I presume that my privileged position in life is largely due to random chance.

The main difficulty, when I think about the circumstances that brought me to law school, is that I have trouble feeling that I’ve really earned my achievements. Granted, I succeeded at test-taking in college and then learned how to take a four-hour exam, but in doing so, I’ve felt like one of the multitude of ants following my prescribed role in building the anthill. With this sentiment, and with my experiences in other countries not as fortunate as our own, I find it exceedingly difficult to justify spending my life at a firm. My concept of justice may be subjective or insignificant, but that concept nonetheless makes me reluctant to see such a life stretching ahead of me.

I’m sure there are many people in the class who have traveled or lived outside of the “developed world”, and I’m curious to know how others feel about working as a part of structures that often seem to deepen existing inequities. If you accept that there is some abstract thing called justice (albeit defined differently for each of us), is it unjust for a law student, with a wealth of opportunities, to work within the structures in place in this country to make a comfortable life for herself and her family? I also wonder what kind of dialogue would follow if we consider the contention that the United States has won the lottery multiple times, and that this country’s prosperity is due more to chance than to any superior system of values or organization.

-- WalkerNewell - 05 Feb 2009

Why should you feel like you've "really earned" your achievements? I don't really consider it a "trouble" at all.

-- MichaelDignan - 05 Feb 2009

Like Michael, I was having a lot of trouble relating to the cognitive resistance to the idea that your achievements are partially, if not largely or entirely, a function of external conditions that aligned to create your birth, your personality, and your choices.

Although Walker, it seems like you are saying that you have a hard time with the thought of becoming a lawyer who works for a law firm and gets rich because, as a function of this whole, my-achievements-are-not-entirely-my-own thing, you didn't work hard enough to get to a position where you could live somewhat selfishly and take a job that didn't really pursue "justice." If free will was real, and if you had 100% control and responsibility for where you are today, would you feel better about going to a firm? I may be misunderstanding your point.

-- MolissaFarber - 06 Feb 2009

Walker, Professor Moglen's comment that recognition of the randomness of our position should make us think harder about our choices made me pause as well. I don't think that this acknowledgment dictates (or bars) any specific line of work – I do think that it means that we need to think harder about our choices and how those choices will enable us to help others.

If a given person will be able to impact the world in a more positive way by working at a large firm (and donating a significant chunk of their salary to worthwhile causes) than by working at a non-profit, wouldn’t the law firm be the more responsible choice? (I recognize that working for a large firm reinforces the economic structure of our profession. While I think we’re all capable of changing the world for the better, I don’t think we’re all capable of changing the very way in which the legal world operates.) In today’s world, money can accomplish a lot - and I think it would be wrong to ignore that. If a given person will be able to impact the world in a more positive way by working at a large firm (and donating a significant chunk of their salary to worthwhile causes) than by working at a non-profit, wouldn’t the law firm be the more responsible choice (assuming large firm work was suitable for the individual)? (I recognize that working for a large firm reinforces the economic structure of our profession. While I think we’re all capable of changing the world for the better, I don’t think we’re all capable of changing the very way in which the legal world operates.) In today’s world, money can accomplish a lot - and I think it would be wrong to ignore that. Realizing that we owe our position in the world to a lot of luck (without forgetting that we’re also here because of our hard work) means that we ought to make less selfish choices – but that recognition, to me, doesn’t mean that choosing to work at a law firm would be selfish, or that choosing to work for a worthy social good would be selfless. I think it’s all about the net positive change in the world our choices will enable us to make.

-- MelissaMitgang - 06 Feb 2009

I think the topic may be confused as to which is my point vs. Michael's... My point isn't so much that I didn't work hard enough to get to this point. My main question is, given the random advantages that many of us have enjoyed, whether others feel an obligation to do something other than merely forge a comfortable life for themselves.

(Fixed erroneous post attributions and associated references above -- MichaelHolloway - 09 Feb 2009)

-- WalkerNewell - 06 Feb 2009

“…given the random advantages that many of us have enjoyed, whether others feel an obligation to do something other than merely forge a comfortable life for themselves.”

As I alluded to in my post ExplainingWhatISaidInClassToday, I certainly do feel the kind of obligation Walker inquires about here. I hesitate, however, to use the word “obligation” because – much like “duty” – it connotes some level of altruism. I do not believe in altruism: My sense of obligation stems from the discomfort I know that I would feel if my work had no greater purpose than financial gain. In this way, the sense of “obligation” is grounded more in selfishness than in selflessness.

The way I think about our privilege is similar to the court’s reasoning in Evans v. Merriweather, a water-rights case we read in Property this week (wait, bear with me!). In essence, the court said that a riparian landowner may withdraw enough water from a stream on his land to satisfy his “natural” needs (drinking, farming), but not his “artificial needs” (consuming the entire flow of the stream for his mill). In short, Evans's right was one of “reasonable use.” Similarly, I may use my happenstance privilege to live a reasonably comfortable life, but to use it entirely for my own benefit in complete disregard of the rest of the world would be satisfying an artificial need. It would amount to greed.

In my mind, this is such a basic conception of justice that I have difficulties understanding how it is not clear to everybody in the room. I thought that most people come to law school because they want to explore and exploit a theretofore inexplicable sense of “right/wrong, fair/unfair, justice/injustice” lodged in their guts. Assuming, arguendo, that I am foolishly na´ve on this matter (it would certainly not be the first time), and some people study law for reasons other than to serve their gut sense of justice, it would be interesting to explore the factors that lead some people to feel a sense of obligation and others not. A nature-nurture type exploration: To what extent does exposure to inequality matter? Parental or community values? Religion or lack thereof? The inexplicable phenomenon that constitutes our souls?

Personally, I remember the very first moment I felt it: It was in 1991, after the fall of Communism in Eastern Europe, when I first went to visit my father in Poland. I looked around at what I then thought was poverty and instantly realized the randomness of my own privilege, having grown up in Sweden, a two-hour flight away. Since then, I have felt an obligation to give at least as much as I take from "the world." But does this mean that absent that early exposure I would not react the way I do today in the face of injustice?

-- AnjaHavedal - 06 Feb 2009

I agree with much of what has been said regarding the lottery of birth. John Rawls has a very insightful essay on this topic in A Theory of Justice. Rawls writes, “[It] is neither just nor unjust…that persons are born into society in some particular position. These are simply natural facts. Justice stems from the way that institutions deal with these facts.” Yet, I believe that it is not only a matter for institutions; it is also a matter for individuals. So if you accept that we are the privileged lottery winners, what does this mean for our actions and our careers?

First, I believe one should take as much benefit as possible from the privileges given, specifically your education. If we think about how many people are not given the privilege of any formal education, let alone graduate school, it will make us realize that we should get the most out of each day in class and out of our careers.

Second, I believe one should try to better the inequalities that are present in our society. I don’t think that means that everyone should necessarily work at a non-profit organization, but I do think that means one should make sure that work has a socially beneficial effect. There are lots of ways that our careers can be socially beneficial and if we work with Professor Moglen and each other, we can start to discuss how to achieve this.

Lastly, I wanted to address a lot of what has been said regarding the difficulty in thinking about this arbitrariness of position. It seems to me that it goes back to fear. It is very uncomfortable to think about how millions of people in developing nations without clean drinking water are no different than us. These fears tend to shut down our brains to avoid thinking about the situation. But when we don’t think about it, we can’t do anything about it. So if we can learn to accept the arbitrariness of birth and the fear that maybe we don’t “deserve” the privileges we have been given, then we can start to use these privileges to benefit society.

-- LaurenRosenberg - 06 Feb 2009

I think Melissa's point is a very reasonable counter to my post discussing being uneasy about working for a firm. To say that prosperity and comfort are morally reprehensible would be a difficult, and for me, hypocritical, statement to make. I also recognize that you can use the resources that career provides to attempt to make change. It does, however, seem difficult to reconcile a need to address injustices with a lifestyle which devotes 90% of waking hours to making money.

The nature-nurture distinction that Anja brings up is also, I believe, very relevant. Its worth noting that there is something of a correlation between the life experiences and the career goals of students here. Individuals who grew up in a certain environment want to replicate that level of prosperity for themselves. A natural tendency, and something that I can recognize in my own thought processes, but is it something we should resist or accept?

-- WalkerNewell - 07 Feb 2009

Anja,

Interesting question! I think people come to law school for many different reasons.

Some possibilities:

  • Greedy
  • Like to argue
  • Interested in the law
  • Like writing
  • Power-hungry
  • Want to help people
  • Want to change society
  • Nothing better to do/seemed like a good idea at the time
  • Parents shamed them into it
  • Want prestige/respectability
  • Like charcoal and navy, hate pastels
Some of these reasons seem more legitimate than others. Intuitively, "justice" is "better" than "greed" (is it really?). Moglen wants to redirect people to "justice."

But is that really possible in a classroom? Doesn't it have to be like a religious experience, where one has a revelation that gives him faith, because it can't be derived by logic? In the real world, people rarely change their minds by being argued with. They do it because their gut decides for them. That would be your visit to Poland. So how can we be for "justice" if we haven't had the same type of epiphany?

-- GavinSnyder - 07 Feb 2009

  • For what it's worth, I thought this little anecdote might help us think about epiphanies:

    I finally met Mirzad on Thursday, after seeing him every day for months. As I came back to my apartment, the next-door building's Super was out on the street taking out the garbage, as usual. We exchanged our usual nods and hellos, but this time I stopped and asked his name on a whim--Mirzad. He proceeded to tell me about how he had been a lawyer in Bosnia before being forced to take refuge in Germany, and now the United States, during the Bosnian civil war in the 90's. He was separated from his family for years, and will never go back to his country. We went on to have an intelligent, frank conversation about the relative merits of the US, and then said goodbye. I went in to my apartment to attend to my $150,000 education, while he continued to take out my trash.

-- MichaelDreibelbis - 08 Feb 2009

There have been some comments made above concerning the value of using our potential wealth as lawyers to fund efforts of promoting justice versus working as lawyers for the public interest ourselves. On the one hand, it is true that money is powerful in today's world. Surely many organizations working to promote justice are strapped for cash and could accomplish more if they were better funded. On the other hand, the true strength of any organization comes from the power of the minds behind that organization. You can fund a cause with as much money as you want, but unless the right talent is behind that cause nothing will ever be accomplished. When we talk about "winning the lottery," I think we should focus more on the fact that we have been given the opportunity to develop our minds into effective tools for promoting justice rather than that we have been given the opportunity to be financially well-off.

-- JustinPurtle - 08 Feb 2009

Selflessness is Overrated

I think we are making a big mistake if we frame our career search as a choice between selfishness and selflessness: wealthy, soulless corporate lawyer or poor, noble public interest lawyer. For the many of us who do not have interests which fit neatly into the rubric of public interest law, this kind of thinking is probably only going to lead only as far as a couple of short guilt trips before we accept a career path with long hours, uninspiring content, and zero creative control.

Instead of constructing this false dichotomy, I think we should be asking ourselves, first, where is my community? Once we've figured that out, the second question is, how can I develop a legal practice which benefits my chosen community? Framing the question this way makes a couple things clear:

  1. The first question is the hard question.
  2. The first question is not actually a professional question at all; it's a personal one.
  3. The reason why we all end up going to big firms is not that we're evil, or even selfish, it's that we haven't answered the first question. We are all so busy getting A's on our homework and getting into the next big school that we never quite get around to the first question. And once there's no more school to go to, and somebody's willing to give us a safe paycheck and a safe answer to the first question, we take it.
  4. After devoting our whole lives to maximizing our own potentiality and keeping our options open, answering the first question requires that we stop asking ourselves what we can do to become more powerful and starting asking ourselves questions like: “what interests me? What kinds of people do I want to be around? What kinds of day-to-day activities do I want to do with those people?"
  5. Answering the first question should take us to a place where we feel excited to be, not guilty about not being
  6. The second question is probably pretty easy. Everyone needs a lawyer. Once we each figure out where we fit, it should not be hard to figure out how to make a living off of our trade.
-- MichaelDreibelbis - 08 Feb 2009

During class, I also thought about Rawls. This is a nice article for people who may want to read something about Rawls and the Original Position: http://plato.stanford.edu/entries/original-position/

The idea that we all won the (material-wealth) lottery by being born in America does provoke difficult questions about what we can do with the idea that life is random, and that we are all the same before we are assigned a role by a bingo wheel.

As suggested by Lauren, Rawls suggests we can create a theory of justice, focused on justice as a mechanism of institutions. Because few of our institutions reach the archetypal impoverished world citizens (third world children, perhaps), turning thought into action is difficult (arguments could be made that we do actually interact with such institutions, coca-cola for example, but we have little perception of control). So we are left wondering: what can we do by accepting this idea, nothing?

I suggest we can shift our definition of ‘fairness’. If we think that individual advantages are a matter of chance, Rawls would suggest that we should only benefit by them as far as they are of benefit to all (which may be helpful with the idea of a non-dichotomous selfish/selfless divide). From here, we can use the ‘original position’ to measure governments, and a standard of “fairness” for creating institutions, policy, and law. If changing existing structures is too ambitious, we can guide our lives toward jobs within that benefit others. Justifications for progressive-taxation, estate-taxation, public education, foreign aid, rehabilitative prison systems, and public health services are all furnished by this Rawlsian ideal.

Such social programs face opposition. Arnold would, I think, argue that the opposition comes from a psychological attachment to the :American Businessman” as an ideal, and a belief that “enlightened selfishness” produces the best results, and to suggest otherwise is heresy. Everyone is aware of these arguments; perhaps best stated by Joe the Plumber, an unlicensed handy-man earning 40k/yr., who took great offense to repealing a 4% tax cut on individuals making more than six-times as much money as him. Arnold’s argument, that we base political decisions on ‘creeds’ and ‘folklore’, helps explain this.

As a separate note, the ‘92 Clinton execution was mentioned in class, and I thought some background material might be useful. First, I am against capital punishment. I am especially opposed to the state killing people with diminished mental capacity. Mostly, the idea of state killing for political gain is repulsive. However, I am uncertain whether this instance of state-mandated killing was worse than others, perhaps because I went to college in the town where the victim shot several strangers over three dollars--- killing one of them. Then, after saying he wished to turn himself in, he murdered a police officer and shot himself in the head, causing the brain damage which made his eventual execution controversial.

-- AndrewMcCormick - 09 Feb 2009

A critique of Rawls can be found in Gerald Cohen's book "Rescuing Justice and Equality" (2008).

Rather than looking at where one is born, perhaps a better way is to consider Pierre Bourdieu's idea of social capital, symbolic capital and cultural capital. An individual who possesses or has access to these forms of capital has won the lottery too!

A person who is a part of the power elite in Bangalore or Soweto need not worry about going hungry, unlike some people I've seen in the US.

-- AlfianKuchit - 09 Feb 2009

The discussion about the relative merits of Biglaw versus public interest careers is definitely valuable. However, please don't forget that government (at all levels), small firms, academia and - after some firm experience - in-house positions all offer alternative practice options. Personally, I found government litigation to offer a great combination of early trial experience, work that I believed in and a pay / hours combination that facilitated a good lifestyle.

-- PetefromOz - 09 Feb 2009

The reason that there is this magically attachment to the laissez faire way of life is not because of a psychological attachment. Arnold would probably rather argue that people like the Joe the Plumber have never had that choice to be able to live a non laissez faire way of life. He really never had a choice at all, being born in Ohio.

-- XinpingZhu - 09 Feb 2009

The discussion in regards to the "American Businessman" and the ideas that cause an Average Joe to become attached to the laissez faire way of life is an interesting one. I would, however, suggest that Arnold would indeed support the idea that there is a psychological attachment of some kind. He makes an argument that the creed that has been reinforced throughout history and celebrated in our institutions of learning suggests that an individual, free from the control of others, stands atop of a mythological hierarchy and shuns governmental interference. The Joe the Plumber example, a case of a man who seems not to acknowledge the very fortune he has been bestowed by virtue of his "lottery" (which I would suggest is not only his status as an American citizen but also his sex, race and other immutable characteristics) seems as though it highlights the deeply rooted psychological fear of Arnold's Devil (p.37).

-- UchechiAmadi - 10 Feb 2009

 

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