Law in Contemporary Society

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AshleySimpsonFirstPaper 3 - 01 Mar 2010 - Main.EbenMoglen
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 There are many methods by which the institutional biases of the justice system can be alleviated. Groups like the Legal Defense Fund and the Sentencing Project are effective organizations that work to pressure the criminal justice system to reform its institutionalized biases, especially with regard to drug policies and three strikes legislations that significantly contribute to minority incarceration rates. But, having said that, they obviously cannot reform the 200 year-old system on their own. A multi-lateral approach must be taken to effectively reform and maintain changes in policy and its application. There is value in promoting a criminal justice system that represents all communities, even if it is simply to give that system legitimacy or the perspective necessary to truly navigate the complex racial and legal issues in our society today.
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It's hard to think of anyone who would really want to disagree with any of the propositions you advance, Ashley. There may be people who aren't familiar with your statistics, but they're not people who have ever thought about these issues before, and no matter how inexperienced they are, the case for not having more minority representation in the justice system is not very popular or very easy to make.

So the primary drawback to this essay is that you played it completely safe. I can't dispute with you the proposition that the ideas expressed here seemed unfamiliar to you: if you tell me these are the ideas you had, as opposed to familiar ideas that you've seen before and that felt a little old to you even as you put them down on the page, I'm not going to doubt you. But when I look at the publications of the organizations you mention, or consider what was said ad nauseam about that single sentence of Sonia Sotomayor's as a result of the meaningless Arnoldian flap created by Republicans seeking partisan advantage from opposing her nomination, I can't locate any sentence of your draft that isn't something said elsewhere within reach of the sources you cited or the incident you discuss.

It seems to me that you've worried so much about not failing that you've hindered yourself from success. The goal is to experiment with two activities: (1) generating new ideas, and (2) communicating them to others in ways that persuade others to engage. There's an inherent risk in having new ideas, but the risk lies in a different quarter than it seems to me you expect. It feels to me as though your primary concern is to avoid having a "wrong" idea. But as I keep struggling to express for people, a "wrong" idea can be more useful than a "right" idea if it leads to other ideas that are in turn valuable to our process of thought. Failed experiments and wrong ideas are inherently necessary to learning; it's only brain-dead systems of perversely stupid mis-evaluation that treat failed experiments as indications of poor performance.

Suppose you want to teach people to ask better questions, meaning questions that are more insightful, more basic, and which lead to broader and more durable learning experiences? How would you teach asking better questions? In my view, you would encourage people to ask questions, first by providing examples of provocative questions that people haven't asked themselves before, then by experiments in asking questions, following the questions beyond their answers to their implications, and then lastly by editing the resulting thought process to improve the breadth, daring, and sophistication of the question asked.

So that's what we're doing. But if concern to avoid failure of an experiment—which is not in itself a bad thing and is absolutely certain to accompany most meaningful learning experiences—prevents you from asking questions of any breadth or daring, the progress we can make is stringently limited.

So I'd shift the question someplace much less familiar, less safe, and more likely to lead in new directions.

Revision 3r3 - 01 Mar 2010 - 15:17:39 - EbenMoglen
Revision 2r2 - 26 Feb 2010 - 21:53:27 - AshleySimpson
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