The End of 1L Year

• I don't understand what the first phrase means in relation to the rest of the sentence, because I don't understand what sociobiology could have to do with it. But the idea that humans can define their own phenotype seems to me obviously wrong. An immense element of our culture is taken up with offering people examples of genetically unusual humans to emulate, and to feel sorry about being unable to emulate. Our definitions of beauty and sexual attractiveness are almost exclusively tied up with inimitable genetic results, and the industries that offer people opportunities to pretend that they are closer to the genetically improbable "ideal" are among the most important and profitable industries in the global economy.

• Not just the judge, but also the client, the opponent, the juror, the reporter, etc. This is done less with the manipulation of phenotype than through psychological insight and the forms of social resonance we call "tact." By persuading yourself that this is all a matter of "phenotype" (passive recapitulation of genetic instructions in contact with the environment) you are both overshooting Judge Day's target and making our own more difficult to understand, thus to reach.

• I think that Judge Day's use of her doctor colleague's somewhat more literal use of "phenotype" to mean "archetype" or just "type" is confusing you. Why not jettison the scaffolding and come to what she means by what she says. A lawyer can sound sincere while actually telling an untruth, you mean she means, I think.

• I don't know whose morality is the "morally" at the front of your sentence, but her view about the limits of lawyers' talk seems not idiosyncratic but conventional to me. In my daily working life I may do all sorts of things in professional interaction with another lawyer--hide the ball, misdirect attention, shade the picture so as to benefit my client--but if I make a bald and straightforward misrepresentation of fact I have crossed the line.

• I don't think that's her idea, though it's an interesting idea and you might want to develop it further in another way. But planting it on her doesn't work very well, in my opinion, because she isn't concerned with the appearance of truth, there or elsewhere--she's concerned with the relation between law and politics. What she means in describing the lawyer's responsibility to separate facts from what you call "spin" is an internal disciplinary norm more than an external representation: laymen expect lawyers to lie more than they do, and in particular don't grasp that a lawyer who lies to other lawyers about facts will not survive unless heavily fortified.

• NO. She says that trial judges don't have real power, because they don't make law, they just adjudicate its application. Their discretion, she says, should be differentiated from power precisely because they don't make law.

• Lawyers who make law, in Judge Day's view, have real power. We may not that she has worked as administrative agency staff and as a prosecutor before being a trial judge: She has never been in the legislature, or she might not view the power to make law as she does.

The truth of the record

• I don't see this second part emerging from the text.

• I don't think this is the point of her story at all. She's telling the story about someone she has to sentence. You are interpreting the story as though she were telling it from outside. But she isn't outside: she is coping with the requirement that will make her sentence this woman to a decade of prison time, harming or destroying her children's lives and even the business the defendant tried to preserve while killing the husband who abused her.

• Let's work on this more after we have had a chance to read closely together the text on which the essay is based.

To add a wrinkle: Judge Day is herself a phenotype (how some group of lawyers appears, in its habitat, to Lawrence Joseph). We're reading [in this essay, what you think about] what Joseph thinks this particular [composite] phenotype thinks about phenotypes.

-- DanielHarris - 06 Apr 2008

Amanda,
This is a beautiful read. I didn't read Day's essay, but you make it sound so profound, that now I'm indifferent whether I read your version or hers. In fact, it’s so clearly written, that it empowers me to comment anyhow.

It's exciting how you start with Ortega Y Gasset's quote. If Day characterizes a person "objectively," i.e. by how he (mis)represents thought and fact, then she hasn't yet captured his identity. But I say this (disagreeing with you?) because identity gets constructed “subjectively,” i.e. by an observer. A person could never misrepresent himself, because his selves are a social construct. (In Jen Burke's paper, I said there's no such thing as autonomy, which is too extreme for this context. Also, I accused her of being The Man, but I won't call you a liar.)

So, the freedom Ortega Y Gasset describes sounds Utopian -- “man is the novelist himself … lacking constitutive identity, not [having] subscribed to a determined being". I'd rather say that a man’s various identities get determined by the position his past behaviors take in each person’s subjective social web -- I'd rather say, that if “the novelist of himself” tried to write one novel for everyone, it would be path-dependent, and he'd inexorably lose self-control and eventually "subscribe to a [series of] determined being[s]."

On the other hand, that personal novel could contain a multitude of characters, in which case Ortega Y Gasset is saying, “control your relationships, like a good author controls all his characters.” A person’s subjective social web changes as he makes new acquaintances; in the law, "the rule is made as the rule is applied;" in Pride and Prejudice, Elizabeth continually re-defined Darcy's identity by meeting new persons who knew him …

An actor can only learn a person’s premises by entering his network, i.e. by making first impressions. (My paper calls it the "act/actor/observer" trilemma.) And it’s easy to make bad first impressions with strangers. But what we learn from these encounters empowers us to make good first impressions with their friends; their two identities of us interact, somewhere, and (somehow?) change each other.

But I can't write an autobiography in which I make everyone a Marxist. Again, a lovely paper.

-- AndrewGradman - 06 Apr 2008

Introduction- “The Circles of Deceit”

“What goes on in people’s minds,” or double-talk, triple-talk, what can you do?

In international law, what you say can trump what you do. That is to say, international laws are derived from custom (what countries are doing) and belief (whether those countries believe they are following custom out of legal obligation). If a country says it is following a law, even though in practice it is not, the law will stand because the belief trumps the practice. Or, rather, the avowal of belief trumps the practice, although it may be inferable from the practice that the country does not really believe what it is saying. Day sees this as the way lawyers operate generally. She relates a story told to her by a friend, and concludes with the caveat that “he sounds so sincere—the way he looks and talks— and he is, but sometimes you don’t know when he’s kidding you” (italics mine). In Day’s conception of the world, a lawyer can be both sincere and a liar simultaneously, no conciliation necessary.

Relying on representations, or why Day will get you if you say you did something when you didn’t

So lawyers can lie with their clothing, and can lie with their thoughts, but Day asserts that lying with actions is taboo, that is: “You make a material misrepresentation of fact to another lawyer, you’d better be prepared to be hit, and hit hard.” Day goes on to define this kind of lying as a betrayal, saying “what you’re really doing is not providing information to a person who trusts you to do so.” The difference between lying about what you did and lying about what you think is that one is provable, while the other is spin. Morally they may well be equal, but in the realm of the law custom dictates that one is allowable, and even encouraged, while the other is punishable by consensus. Cerriere says “mop and pail are mop and pail,” and indeed, they are tangible items with which to enact change in the world (while getting paid). What is the tangible for a lawyer? If the world is defined by double talk (and here perhaps lies Day’s distinction between types of lies) then what tangible reality do Cerriere and Tharaud have outside of their arguments? It is all right to lie about what you feel but not what you’ve done, simply because words, in the law, are more important than actions—ideas are what they do, not what they mean. Cerriere might say he hates ideas, but perhaps that is where Tharaud is simply a better lawyer, for what is the power of the law if not the power of ideas?

“Man, in a word, has no nature; what he has is—history.” José Ortega y Gasset

The Phenotype of a Liar

-- By AmandaRichardson - 04 Apr 2008

Introduction- Types of Lies

"Dress as an Expression of the Pecuniary Culture," or How Lawyers Lie with Clothing

“The question ought to be why. Why the law is what it is.”

Tharaud vs Cerriere

The truth of the record

<--/commentPlugin-->