ClassNotes2008Jan16 10 - 16 Sep 2024 - Main.StevenRaphan
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META TOPICPARENT | name="ClassNotes2008" |
Class Notes for Wednesday, 16 January 2008 | | Moglen: I wan the intros because I want to start learning from people
what THEY care about. We’re not making bricks without straw in
that regard. “What you did and thought before doesn’t | |
< < | matter now, rather, what you thought __ as lawyer.” | > > | matter now, rather, what you thought Trash. as lawyer.” | | Everyone is a nongerman speaker learning german by immersion,
foundering around. | | You figure out how to get paid for making it happen.
You find it in stuff written by lawyers, by people here who want to | |
< < | say something; we learn what it is to _ to be a lawyer. e.g. from a | > > | say something; we learn what it is to Trash._ to be a lawyer. e.g. from a | | wonderful book called RobinsonsMetamorphosisTalk, by a prof who’s also a poet &
teaches in Saint John’s. Just recorded conversation –
monologue – by different lawyers who live and work in NYC,. | | this,
But biographically To the rest of the world, this speech will stand | |
< < | for the beginnings of a PARTICULAR outlook on legal __. An outlook | > > | for the beginnings of a PARTICULAR outlook on legal Trash.. An outlook | | that never er ally takes hold among the English speaking lawyers.
Elsewhere too, US law will be thought rather distinctive This is the
beginning of something and I come to it that it’s a beginning | | My point is that the broadest theories, the one which draw from the
most widespread set of understandings, have the advantage of the
production of new ideas. Creativity comes from breadth of mind. When | |
< < | you have one way of looking at a a question, you tend to __ the way | > > | you have one way of looking at a a question, you tend to Trash. the way | | you look. Isaiah Berlin called the hedgehog frame of ind: using the
same mental view to solve every problem. We see the obsessive
character of hedgehog thinking: he’s got a hammer and thinks | | framework
I wan to propose instead a framework based on consilience, consilient | |
< < | _. | > > | _Trash.. | | The great life scientist EO Wilson was a great proponent of idea of
consilience in natural science thinking. The drawing together of
multiple lines of science,data experience from several fields –
the idea that reinforcement derives from multiple lines. | |
< < | It’s not a comment on present sate, though lugubrious to | > > | It’s not a comment on present sate, though _lugubrious_Trash. to | | think it would be – That what makes Darwinian postulate of
Darwin irresistible is that all the work from 1860s till now has
created a great consilient argument for natural selection as source of
biological evolution.
No matter where you look on any scale or place you see reasons to | |
< < | accord natural selection a role in __. What I want to do is suggest | > > | accord natural selection a role in Trash.. What I want to do is suggest | | the value of consilience in arguments about social actions: Think of
us as not pursuing a social science but many social sciences—
For purposes of gaining many insights into way people think in groups. | | painting smiles at you.
There w have a biological explanation for how that ambiguous smile | |
< < | comes into being But you can also given social reasons for how__ | > > | comes into being But you can also given social reasons for how_Trash._ | | paintings come into existence. | |
< < | For calling into Earl __ experienced in a task which contemporary | > > | For calling into Earl Trash. experienced in a task which contemporary | | humans don’t pursue: they’re very good at estimating the
volume of irregular shapes. | | Psychology (Intrapsychic) How do people, in their multiple
personalities, respond to situations? Biology | |
< < | The goal is to move back and forth among __ of human behavior, not to | > > | The goal is to move back and forth among Trash. of human behavior, not to | | predict what someone else might think, but to learn HOW TO develop our
own ideas. |
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ClassNotes2008Jan16 7 - 28 Feb 2008 - Main.EbenMoglen
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META TOPICPARENT | name="ClassNotes" |
Class Notes for Wednesday, 16 January 2008 | | You find it in stuff written by lawyers, by people here who want to
say something; we learn what it is to _ to be a lawyer. e.g. from a | |
< < | wonderful book called Lawyerland, by a prof who’s also a poet & | > > | wonderful book called RobinsonsMetamorphosisTalk, by a prof who’s also a poet & | | teaches in Saint John’s. Just recorded conversation –
monologue – by different lawyers who live and work in NYC,.
We’ll read it just to understand what their alternatives |
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ClassNotes2008Jan16 6 - 18 Jan 2008 - Main.AndrewGradman
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META TOPICPARENT | name="ClassNotes" |
Class Notes for Wednesday, 16 January 2008 | | Again, I really appreciate the thoroughness.
-- AdamCarlis - 17 Jan 2008 | |
> > |
Looking at the text, "we called the manufacturers, asked them what security mechanism protects the remote interventions in your pacemakers. Everyone of them refused to discuss. Everyone has, essentially, a bad story. Turns out they’re death machines. Hacking them is deadly."
I can't deny, this idea is terrifying. Don't think I'm challenging the human threat. Instead I quibble, because if you look at AndrewGradmanIntro, I view life as a sequence of word games. And so I have to say: inferring that "they have essentially a bad story" is unfair to draw from a refusal to comment. I'm sure Eben did not MEAN that inference but it came across that way.
I was reminded in that moment of the day that Helen Caldicott spoke to my high school. She has all sorts of theories to explain the nuclear weapons conspiracy, my favorite is that our generals are stockpiling arms because all these men are compensating for their private inadequacies. She refers to the rhetoric -- "penetration" is the only one I remember -- and the phallic shape of the weapon, etc.
Okay, she adduces evidence, and that's great. But then she said, "And I know I'm right, because none of the agencies and officers I've criticized have ever responded to me." And that little fallacy infected the rest of her credibility.
Okay, there are huge qualitative differences between the two primary arguments, but it was just the connection that leaped into my head at the moment, and ... I like to quibble.
Also, Eben points out that 86% of counties don't have access to abortion services. I can't find a statistic online stating what percent of WOMEN don't have access to abortion services, but it is doubtless much smaller, and of course much more informative.
The fact that the statistic is so hard to find on the whole internet, of course, illustrates (1) the laziness of people like me to crunch data, (2) my poor search skills, or (3) the ideological hazard of statistics.
-- AndrewGradman - 18 Jan 2008 | | |
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ClassNotes2008Jan16 5 - 17 Jan 2008 - Main.AdamCarlis
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META TOPICPARENT | name="ClassNotes" |
Class Notes for Wednesday, 16 January 2008 | | In several places the notes are sketchy and probably should be filled in. References could usefully be added in a couple of places.
-- EbenMoglen - 16 Jan 2008 | |
> > |
Thanks, Andrew ... Taking a hint from Andrew's introduction, I wonder if folks could talk about the style of notetaking that they prefer so that we can ensure usability of the notes without overwhelming potential notetakers (particularly those who can't type as fast as you or have trouble both typing and listening). I for one, am a big fan of the summary of key points. I will go through the notes that are posted for today's (Thursday) class and add a summary to the top and see if it is useful to people.
Again, I really appreciate the thoroughness.
-- AdamCarlis - 17 Jan 2008 | | |
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ClassNotes2008Jan16 4 - 16 Jan 2008 - Main.EbenMoglen
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META TOPICPARENT | name="ClassNotes" |
Class Notes for Wednesday, 16 January 2008 | |
< < | I decided to take a transcript since I couldn't predict what other people would find important. -andrew | > > | I decided to take a transcript since I couldn't predict what other
people would find important. -andrew | | | |
< < | -- EbenMoglen - 16 Jan 2008
LESSON ONE: LISTEN. Something law school does not teach you to do. Something your career requires you to do, and you will have to do in this class.
[I didn't catch the next stuff]
Every day someone should volunteer to take notes, so you learn to share. Will anyone please volunteer to takes notes today?
General admin RE course.
I made a topic page, Eben Moglen intro: less than a hundred words on what I wanted from being a lawyer. In the course of the next 24-36 hours, write 100 word: [yourself]Intro, 100 words or less, about what you wanted out of being a lawyer. So that we can begin to understand about who we are, why we care, as we talk about what creative legal ideas are.
Participate on the wiki. Comment on the class notes page. We will all go back and look at the comments; some of us will mark them up.
No exams: Exams are stupid, they don't test anything useful, as you've now found out.
FORMALLY you owe 3 written exercises not more than 1000 words each.
The first two essays will be public, though the wiki structure has access control if you want the classmates not to read. But in general it's better for all to read what others write. These essays are not practically different from your other contributions.
Owing to foolish rule, fifty percent of the grade, must be based upon some anonymous activity. Though it doesn't really remain anonymous since it has to be correlated with the attributed part. Odd, that I put a bag on your head, then take the bag off and correlate with the rest of the grade. But at the end of the semester we'll set up the bizarre halfblind mechanism and you'll write your third essay anonymously. And then I'll put that alongside your other two essays and your other contributions to the wiki, and that constitute your grade as a whole.
It's about developing conversations. The goal is to treat all your contributions as communal. Everything you do will be signed in the wiki, and I can evaluate the quality of your contributions, including to what degree they interacted with others students' contributions.
I'll give you the highest grade I can possibly give you. Watch out how meaningless your grades are. The 1L grades are the most meaningless of all. I've taught second semester courses: 1L property, this lots. And so I have seen lots of first semester transcripts. They all bear a very deceptive mark: First semester transcripts plus or minus a half a grade, are almost always the same thing in every course. And ahe same thing is measured: the speed of language uptake. What you just went through in the first semester is language training by immersion: immersion IN LAW TALK. Semantically similar to English, but grossly culturally distorted.
The speed at which you acquire law talk as a 1L is irrelevant. It doesn't predict anything useful. Whether you learn it this year or next year, you'll know it seventy years from now. Whether you got lawtalk in 2007 and only acquired it in 2008 is not going to be relevant to anything you say in court. All over nothing, over an illusion, over a simple alphabet with a diacritical mark, placed there by what you will see as an irrational process.
Note how the world is ruled by words, and if you are to be a erson whose specialty is to be done using them, you should be able to cultivate some critical distance form them or you'll be cooked But cultivating critical distance from the grading system is something the school won't teach you. Grades are designed to make you feel better at someone else's expense. When I came here in the 70s, there was a thriving industry to associate names with the social security numbers posted on the wall. This is a wall made of invisible grades, yet I have watched heads beating themselves bloody against it year after year. Like William Blake, Everyewhere I go I hear the sound of mind-forged manacles clanking. | > > | LESSON ONE: LISTEN. Something law school does not teach you to do.
Something your career requires you to do, and you will have to do in
this class. [I didn't catch the next stuff]
Every day someone should volunteer to take notes, so you learn to
share. Will anyone please volunteer to takes notes today?
General admin RE course. I made a topic page, Eben Moglen intro: less
than a hundred words on what I wanted from being a lawyer. *In the
course of the next 24-36 hours, write 100 word: [yourself]Intro, 100
words or less, about what you wanted out of being a lawyer.* So that
we can begin to understand about who we are, why we care, as we talk
about what creative legal ideas are.
Participate on the wiki. Comment on the class notes page. We will all
go back and look at the comments; some of us will mark them up.
No exams: Exams are stupid, they don't test anything useful, as you've
now found out. FORMALLY you owe 3 written exercises not more than
1000 words each. The first two essays will be public, though the wiki
structure has access control if you want the classmates not to
read. But in general it's better for all to read what others write.
These essays are not practically different from your other
contributions. Owing to foolish rule, fifty percent of the grade,
must be based upon some anonymous activity. Though it doesn't really
remain anonymous since it has to be correlated with the attributed
part. Odd, that I put a bag on your head, then take the bag off and
correlate with the rest of the grade. But at the end of the semester
we'll set up the bizarre half-blind mechanism and you'll write your
third essay anonymously. And then I'll put that alongside your other
two essays and your other contributions to the wiki, and that
constitute your grade as a whole.
It's about developing conversations. The goal is to treat all your
contributions as communal. Everything you do will be signed in the
wiki, and I can evaluate the quality of your contributions, including
to what degree they interacted with others students' contributions.
I'll give you the highest grade I can possibly give you. Watch out
how meaningless your grades are. The 1L grades are the most
meaningless of all. I've taught second semester courses: 1L property,
this lots. And so I have seen lots of first semester transcripts. They
all bear a very deceptive mark: First semester transcripts plus or
minus a half a grade, are almost always the same thing in every
course. And the same thing is measured: the speed of language
uptake. What you just went through in the first semester is language
training by immersion: immersion IN LAW TALK. Semantically similar to
English, but grossly culturally distorted.
The speed at which you acquire law talk as a 1L is irrelevant. It
doesn't predict anything useful. Whether you learn it this year or
next year, you'll know it seventy years from now. Whether you got
lawtalk in 2007 and only acquired it in 2008 is not going to be
relevant to anything you say in court. All over nothing, over an
illusion, over a simple alphabet with a diacritical mark, placed there
by what you will see as an irrational process.
Note how the world is ruled by words, and if you are to be a person
whose specialty is to be done using them, you should be able to
cultivate some critical distance form them or you'll be cooked But
cultivating critical distance from the grading system is something the
school won't teach you. Grades are designed to make you feel better at
someone else's expense. When I came here in the 70s, there was a
thriving industry to associate names with the social security numbers
posted on the wall. This is a wall made of invisible grades, yet I
have watched heads beating themselves bloody against it year after
year. Like William Blake, Everywhere I go I hear the sound of
mind-forged manacles clanking. | | - - - - - - - - - - - - - - - - - | |
< < | We should make law school more like business school: foster cooperation and teach 21st century technology.
Another gripe about law school is that it refuses to learn, so it doesn't stop doing things that don't work. Teachers don't change it because they're lazy, students don't change it because they're frightened.
So if we are to become good lawyers, we must learn to overcome other people's inertia and fear.
You're entering a period of enormously rapid social change, which will affect both your personal lives and your legal practice. It will sweep away barriers and nonsense, and cast up new forms of social activity with new rules.
The practice w/ which you're going to engage will be very different from that engaged by firms that today you're afraid won't hire you. If you do what you're trained to do, you'll volunteer to be cut meat for a law firm, and you'll be disappointed because the firm won't be there any more, because the pace of change is very rapid. The smart thing to do (though I'm tenured 50 yrs old don't need to change salary) is to maximize your creativity, because you'll need it to be flexible and be what you're trained to be: young smart people trained to meet the 21th century not the late 19th -- if you train yourselves, because my colleagues won't.
We will investigate 1. the source of creative legal thought, and 2. the source of career creativity.
We can look intellectually to try to find what characterizes creative legal minds, that adapt to new situations well and powerfully.
However, to understand how to be flexible with respect to one's own life -- how not to be cut meat --
I've been doing this for 21 years, and I've seen many of my peers and students enter careers they're very unhappy with. One of those unhappy lawyers came to see me, feeling trapped in the 6th year feeling overwhelmed with inner anomie. "You told me not to do this and I didn't listen because I missed class so many times." and I said "I know." and he said, "The dean visited my firm, and he told the partners how privileged and proud he and his colleagues were to supply meat for the firms." Moglen: "That's because the law schools cut the checks day to day, because they're too scared to change." This student said he'd never realized that he was a unit of supply, a packaged good; that a conveyor belt had pushed meat to a firm, and that he was a piece, and part of the anomie that he was experiencing was that he didn't find it satisfactory being raw meat.
He had a 2nd kid, bought an apartment. And his wife told him, she understands the concept of downshifting. In theory.
2nd major theme, how not to touch the third rail and die.
Of the thousands of law students I've sent into the world, 15-20% were really happy: because they fell in love with a technical specialty; or the money; or they found an outside satisfaction, and could close the door to their house and split their lives.
But I wouldn't take those odds with my life. Even leaving aside the question of whether you want to get anything done in the world. Which, when you were applying to law school, most of you told us you did.
For thousands of years, in English-speaking law, when you finished being trained to be a lawyer you got a law license: a license to do something otherwise not permitted -- seeking and soliciting clients -- to be a person who says, I think you need help, and I can help you; I think you have goals that need furthering and I can help you further those goals.
You become a specialist at making something happen in society using words.
That will be my definition in this room of what lawyering is. | > > | We should make law school more like business school: foster
cooperation and teach 21st century technology. Another gripe about
law school is that it refuses to learn, so it doesn't stop doing
things that don't work. Teachers don't change it because they're lazy,
students don't change it because they're frightened. So if we are to
become good lawyers, we must learn to overcome other people's inertia
and fear.
You're entering a period of enormously rapid social change, which will
affect both your personal lives and your legal practice. It will
sweep away barriers and nonsense, and cast up new forms of social
activity with new rules.
The practice w/ which you're going to engage will be very different
from that engaged by firms that today you're afraid won't hire you.
If you do what you're trained to do, you'll volunteer to be cut meat
for a law firm, and you'll be disappointed because the firm won't be
there any more, because the pace of change is very rapid. The smart
thing to do (though I'm tenured 50 yrs old don't need to change
salary) is to maximize your creativity, because you'll need it to be
flexible and be what you're trained to be: young smart people trained
to meet the 21st century not the late 19th -- if you train yourselves,
because my colleagues won't.
We will investigate 1. the source of creative legal thought, and
2. the source of career creativity. We can look intellectually to try
to find what characterizes creative legal minds, that adapt to new
situations well and powerfully. However, to understand how to be
flexible with respect to one's own life -- how not to be cut meat --
I've been doing this for 21 years, and I've seen many of my peers and
students enter careers they're very unhappy with. One of those unhappy
lawyers came to see me, feeling trapped in the 6th year feeling
overwhelmed with inner anomie. "You told me not to do this and I
didn't listen because I missed class so many times." and I said "I
know." and he said, "The dean visited my firm, and he told the
partners how privileged and proud he and his colleagues were to supply
meat for the firms." Moglen: "That's because the law schools cut the
checks day to day, because they're too scared to change." This
student said he'd never realized that he was a unit of supply, a
packaged good; that a conveyor belt had pushed meat to a firm, and
that he was a piece, and part of the anomie that he was experiencing
was that he didn't find it satisfactory being raw meat.
He had a 2nd kid, bought an apartment. And his wife told him, she
understands the concept of downshifting. In theory.
2nd major theme, how not to touch the third rail and die. Of the
thousands of law students I've sent into the world, 15-20% were really
happy: because they fell in love with a technical specialty; or the
money; or they found an outside satisfaction, and could close the door
to their house and split their lives.
But I wouldn't take those odds with my life. Even leaving aside the
question of whether you want to get anything done in the world. Which,
when you were applying to law school, most of you told us you did.
For thousands of years, in English-speaking law, when you finished
being trained to be a lawyer you got a law license: a license to do
something otherwise not permitted -- seeking and soliciting clients --
to be a person who says, I think you need help, and I can help you; I
think you have goals that need furthering and I can help you further
those goals.
You become a specialist at making something happen in society using
words. That will be my definition in this room of what lawyering
is.
There are of course other ways of making things happen, apparently
more effective in the short run: bullets, money. The lawyer's premise
is that using words, rather, is more likely to achieve the state we
call justice. The license is A RIGHT TO TRY THAT OUT.
Yet I have watched thousands of people take that license to a law
firm, which is a pawn shop for licenses; and immediately pawned the
license in return for a job. The law firm takes the license, tells
you which side you're on, what to do, and that you're not allowed to
represent anybody except of the pawnshop's choosing. Because the pawn
shop's job is to farm out your labor and maximize the number of hours
that you work.
The argument in this course will be that pawning a license is a bad
idea.
I spend a lot of time figuring out how to free music. Musicians are
the people who benefit if it is done right. I grew up at a time when
musicians pawned their instruments on fifth avenue between gigs and
got a day job. If they had another gig soon enough the instrument
would still be there for them to buy back.
The problem with the lawyer who pawns her license is, she never gets
it back. Even if the pawn shop lets her go, she never gets it back.
She's gotten used to working as a pawn. Now it's scary to use the
license. The pawn shop trained her to be a horse in harness, and so
she goes and finds another owner, and hope it pays well.
So the second part of the course is to offer you, in the beginning of
law school, some questions as a backstop. Keep these in mind when
you're at the cocktail parties held by pawn shops. [pregnant pause]
We'll look at those two themes in tandem: we'll look at things written
about law, but we'll never read a case or statute or regulation in
this room: I'm not interested in the official materials of the law for
these purposes. There are lots of other people who have things to say
about that.
My question is, how do we think about the law when we look outside
that little box? What do we think about when we think about law AS
OURSELVES, as subjects of our lives, rather than as someone else's
objects?
My general purpose is to present a scheme, a skeleton, for
understanding the organization of knowledge about the law: an
alternative to the structure that presents it largely by organizing
doctrine. This is called legal realism. But I want to afford some
sense of how legal realism might work for you. How it might work in
your own encounter with the law.
This is why I emphasized what you You can figure it out by listening
in between our sentences. If you listen in a room where you are
talking: in between your words and sentences, you will hear whether
people are listening, or whether they are bearing up manfully against
you.
If you can hear the feet shuffling and the clicks. And as I
watch you get more conscious of those, I’ll know that
you’re becoming a better lawyer. Because everywhere you
go all all the time, you should be listening .
Kate: so we’re going to spend a lot of time in the class about
how to avoid becoming a meat product. The question, are we going to
spend time avoiding talking about the alternative?
Moglen: I wan the intros because I want to start learning from people
what THEY care about. We’re not making bricks without straw in
that regard. “What you did and thought before doesn’t
matter now, rather, what you thought __ as lawyer.” | | | |
< < | There are of course other ways of making things happen, apparently more effective in the short run: bullets, money. The lawyer's premise is that using words, rather, is more likely to achieve the state we call justice. The license is A RIGHT TO TRY THAT OUT.
Yet I have watched thousands of people take that license to a law firm, which is a pawn shop for licenses; and immediately pawned the license in return for a job. The law firm takes the license, tells you which side you're on, what to do, and that you're not allowed to represent anybody except of the pawnshop's choosing. Because the pawn shop's job is to farm out your labor and maximize the number of hours that you work.
The argument in this course will be that pawning a license is a bad idea.
I spend a lot of time figuring out how to free music. Musicians are the people who benefit if it is done right. I grew up at a time when musicians pawned their instruments on fifth avenue between gigs and got a day job. If they had another gig soon enough the instrument would still be there for them to buy back.
The problem with the lawyer who pawns her license is, she never gets it back. Even if the pawn shop lets her go, she never gets it back. She's gotten used to working as a pawn. Now it's scary to use the license. The pawn shop trained her to be a horse in harness, and so she goes and finds another owner, and hope it pays well.
So the second part of the course is to offer you, in the beginning of law school, some questions as a backstop. Keep these in mind when you're at the cocktail parties held by pawn shops.
[pregnant pause]
We'll lok at those two themes in tandem: we'll look at things written about law, but we'll never read a case or statute or regulation in this room: I'm not interested in the official materials of the law for these purposes. There are lots of other people who have things to say about that.
My question is, how do we think about the law when we look outside that little box? What do we think about when we think about law AS OURSELVES, as subjects of our lives, rather than as someone else's objects?
My general purpose is to present a scheme, a skeleton, for understanding the organization of knowledge about the law: an alternative to the structure that presents it largely by organizing doctrine. This is called legal realism. But I want to afford some sense of how legal realism might work for you. How it might work in your own encounter with the law.
This is why I emphasized what you
You can figure it out by listening in between our sentences.
If you liten ain a room where you are talking: in between your words and sentences, you will hear whether people are listening, or whether they are bearing up manfully against you.
If you can hear the feet shuffling and the clisk.
And as I watch you get more conscious of those, I’ll know that you’re becoming a better lawyer.
Because everywhere yougo lal all the time, you should be listening .
Kte: so we’re going to spend a lot of time in the clas about how to avoid becoming a meat product. The question, are we going to spend time avoiding talking about the alternative?
Mogeln: I wan the intros because I want to start learning from people what THEY care about.
We’re not making bricks without straw in that regard.
“What you did and thought before doesn’t matter now, rather, what you thought __ as lawyer.”
Everyone is a nongerman speaker learning german by immersion, foundering artound. | > > | Everyone is a nongerman speaker learning german by immersion,
foundering around. | | You figure out how to get paid for making it happen. | |
< < | Ou find it in stuff written by awyers, by people here who want to say something; we learn what it is to _ to be a lwyer.
e.g. from a wonderful book called lawyerland, by a prof who’s also a poet & teaches in Saint John’s. Just recorded conversation – monoglue – by different lawyers who live and work in NYC,.
We’ll read it just to understand what their alternatives are.
I want to talk about stuff that’s reall.
The more you bring ral ppeople, the more
SgtdenT? :
I’ve become slaveto note-taking. Would that irritate you?
- Moglen
- ou do what you want to do. I’m in the job of exposing you; but you do whatever yo’d like. If it interferes with your listening, YOU might have a problem with it.
Moglen: And we’ll be discussing current events.
UYeah! That’s where things happen The conversation will be a converation. We’ll talk about what you want to talk about.
Moglen: if you think it’s worth brining here, then it’s worth talking about – but if no body wants to talk about it, I can’t make them and won’t. | > > | You find it in stuff written by lawyers, by people here who want to
say something; we learn what it is to _ to be a lawyer. e.g. from a
wonderful book called Lawyerland, by a prof who’s also a poet &
teaches in Saint John’s. Just recorded conversation –
monologue – by different lawyers who live and work in NYC,.
We’ll read it just to understand what their alternatives
are. I want to talk about stuff that’s really. The
more you bring real people, the more
Student:
I’ve become slave to note-taking. Would that irritate
you? Moglen: You do what you want to do. I’m in the
job of exposing you; but you do whatever yo’d like. If
it interferes with your listening, YOU might have a problem
with it.
Moglen: And we’ll be discussing current events. Yeah!
That’s where things happen The conversation will be a
conversation. We’ll talk about what you want to talk about.
Moglen: if you think it’s worth bringing here, then it’s
worth talking about – but if no body wants to talk about it, I
can’t make them and won’t. | |
[some music. I wasn’t listening.] | |
< < | I want to present a proposition about the path of the law.
This is a speech about what it means to be a law student.
Oddl enough Holmes is not talking down to the students – if he’s not exactly bulding a report, he’s at least attempting to have an actual converation.
Being a chief jstice on MA supreme judicial court
He’s risen to be chief justice on the SJC of MA and hes bored.
Maybe … maybe he’s experiencing extramarital affection and is starting to feel inner renwal? Speculative, but SOMETHING CERTAINLY HAPPENED that summer that’s playing a role that if he can’t get off the supreme judicial court, he ought to do something more important –
This problem WILL be solved by his translation to the supreme court—
But we must say that when he’s writing this,
But biographically
To the rest of the world, this speech will stand for the beginningos of a PARTTIULCAR outlook on legal __.
An outlook that never erally takes hold among the enlgish speaking lawyers.
Elsewhere too, US law will be thought rather distinctive
This is the beginning of something and I come ot it that it’s a beginning
The object of lw, he sahys, is prediction
The prediction of what the courts will do in fact; and nothing more complicated than that, he tells us what he means by law
So what about that idea, that the law is for us as students of it, in fact a series of prediction about what courts will in fact do?
You’re a weatherman, to predict. And under circumstances, the question is , where is the great axe to fall. What are the consequences of encounter with a superior force: people want layers to rpedict litiatgion for them. What do you think?
Michael: it ignores the effect of the quality of lawyering: I would say a more apt descritpino is how to get the courts to do what yo uwnat them to do.
- Moglen
- he agrees with you, taking what we’ve said, as a first step FOR tat.
One problem is, predicting one udge’s behavior is diffiult, and the kinds of sourcs aren’t thie info peole have acces to
And people go that route,
People accuulate index cards on judges.
In the course of my work, we had to investigate medical appliance market RE imdedded software.
Which had a great deal of
Every single pacemaker currently used for implantation in the US is equipped with the ability to recalibrate itself on the bais of an esxterior radio frequency signal. If you’re a pateitn, you get a little informed consent (supposedly informed) pahemplet fro the majufacturer.
And it says, “this is like a tV remote control). We had interest, called manufacturers, asked what the security mechanism concerning the rmote interventions ins your pacemakers. Everyone of them refused to discuess.
Everyon has, essentially, a bad story.
Turns out they’re death machines. Hacking them is deadly.
You should be able to stand 35-40 feet away from dick cheney and turn his heart off.
Suppose you bring a lawsuit about this. There will be lawsuits against the anufacturers and there will be hell to pay – and one of the reaons because I know there will be hell ot pay – is because eif I file this lawsuit on diversity of citizenship, in any court, the odds are better than even that the judge is wearing a pacemaker.
And the decision courts will make will surely be affected by the fact that judges are wearing a pacemaker.
So you’re talking about the behavior of small groups of people.
That’s not a grand philosophic problem.
Which is why you find everthing you can about the local judge. Which is why you go off and find out about that human being.
Prediction broadly taken must predict individual human beahavior, so lawyers must become adept in dealing with those problems.
Holmes as you see is concerned with the policy judgments they make and how to improve them. | > > | I want to present a proposition about the path of the law. This is a
speech about what it means to be a law student. Oddly enough Holmes
is not talking down to the students – if he’s not exactly
building a report, he’s at least attempting to have an actual
conversation.
Being a chief Justice on MA supreme judicial court He’s
risen to be chief justice on the SJC of MA and hes bored.
Maybe … maybe he’s experiencing extramarital affection and
is starting to feel inner renewal? Speculative, but SOMETHING
CERTAINLY HAPPENED that summer that’s playing a role that if he
can’t get off the supreme judicial court, he ought to do
something more important –
This problem WILL be solved by his translation to the supreme
court— But we must say that when he’s writing
this,
But biographically To the rest of the world, this speech will stand
for the beginnings of a PARTICULAR outlook on legal __. An outlook
that never er ally takes hold among the English speaking lawyers.
Elsewhere too, US law will be thought rather distinctive This is the
beginning of something and I come to it that it’s a beginning
The object of law, he says, is prediction The prediction of what the
courts will do in fact; and nothing more complicated than that, he
tells us what he means by law So what about that idea, that the law is
for us as students of it, in fact a series of prediction about what
courts will in fact do?
You’re a weatherman, to predict. And under circumstances, the
question is , where is the great axe to fall. What are the
consequences of encounter with a superior force: people want layers to
predict litigation for them. What do you think?
Michael: it ignores the effect of the quality of lawyering: I would
say a more apt description is how to get the courts to do what yo u
want them to do.
- Moglen
- he agrees with you, taking what we’ve said, as a first step FOR tat.
One problem is, predicting one judge’s behavior is difficult,
and the kinds of sources aren’t the info people have access to
And people go that route, People accumulate index cards on
judges. In the course of my work, we had to investigate
medical appliance market RE embedded software. Which had a
great deal of
Every single pacemaker currently used for implantation in the US is
equipped with the ability to recalibrate itself on the basis of an
exterior radio frequency signal. If you’re a patient, you get a
little informed consent (supposedly informed) pamphlet fro the
manufacturer.
And it says, “this is like a TV remote control). We had
interest, called manufacturers, asked what the security mechanism
concerning the remote interventions ins your pacemakers. Everyone of
them refused to discuss. Everyone has, essentially, a bad story.
Turns out they’re death machines. Hacking them is
deadly. You should be able to stand 35-40 feet away from dick
Cheney and turn his heart off.
Suppose you bring a lawsuit about this. There will be lawsuits against
the manufacturers and there will be hell to pay – and one of the
reasons because I know there will be hell to pay – is because if
I file this lawsuit on diversity of citizenship, in any court, the
odds are better than even that the judge is wearing a pacemaker.
And the decision courts will make will surely be affected by
the fact that judges are wearing a pacemaker.
So you’re talking about the behavior of small groups of
people. That’s not a grand philosophic problem. Which
is why you find everything you can about the local judge.
Which is why you go off and find out about that human being.
Prediction broadly taken must predict individual human
behavior, so lawyers must become adept in dealing with those
problems. Holmes as you see is concerned with the policy
judgments they make and how to improve them. | | | |
< < | Holems: I think the judges themselves have failed to recognize ]responsibility], and [quotation from text.] | > > | Holmes: I think the judges themselves have failed to recognize
]responsibility], and [quotation from text.] | | | |
< < | Of course American judges of 20th century have accepted,
And the policy | > > | Of course American judges of 20th century have accepted, And the
policy | | Everything is about the legislative goals. | |
< < | You can start from the law of logic, and policy consequencdes, is the operation of rules, that produce actual circumsatance that have cause and effect, so we should study the consequences of rules.
The steop that causes so many difficulties is when the consequences are thought of only in econmic terms. (problem to me)
But this brings us to what I will offer to you RE where judicial creativity comes from
Legal creativity comes from the roadest pssible understanding of the roots of social action: how to analyze and understand, and ow to affect. Them.
Straightforward modification of idea that layers are people who tmake things happen in society using words.
That person asks, what’s my theory of social actiona and how tdo I use my theory to produce social effect? | > > | You can start from the law of logic, and policy consequences, is the
operation of rules, that produce actual circumstance that have cause
and effect, so we should study the consequences of rules.
The step that causes so many difficulties is when the consequences are
thought of only in economic terms. (problem to me)
But this brings us to what I will offer to you RE where judicial
creativity comes from
Legal creativity comes from the broadest possible understanding of the
roots of social action: how to analyze and understand, and ow to
affect. Them. Straightforward modification of idea that layers are
people who make things happen in society using words. That person
asks, what’s my theory of social action and how do I use my
theory to produce social effect? | | Well theories of social action ma not grow on trees, | |
< < | My point is that thre roadest theories, the one which draw from the most widespread set of understandings, have the advantage of the production of new ideas.
Creativity comes from breadth of mind.
When you have one way of looking at a aquestion, you tend to __ the way you llook. Isaihah Berlin called the hdedghog frame of ind: using the same mental view to solve every problem.
We see the obsessive character of hedghog thinkg: he’s got a hammer and thinks everytig’s a nail. | > > | My point is that the broadest theories, the one which draw from the
most widespread set of understandings, have the advantage of the
production of new ideas. Creativity comes from breadth of mind. When
you have one way of looking at a a question, you tend to __ the way
you look. Isaiah Berlin called the hedgehog frame of ind: using the
same mental view to solve every problem. We see the obsessive
character of hedgehog thinking: he’s got a hammer and thinks
everything’s a nail. | | | |
< < | But the purposes our purposes, it’s about whenter crativity emerges from the hedghog point of veiew. | > > | But the purposes our purposes, it’s about whether creativity
emerges from the hedgehog point of view. | | | |
< < | It’s hard – thinking cratgively is difficult inside that framework | > > | It’s hard – thinking creatively is difficult inside that
framework | | | |
< < | I wan to propose instead a framework based on consilience, consilient _. | > > | I wan to propose instead a framework based on consilience, consilient
_. | | | |
< < | The greaet life scientist EO Wilson was a great proponent of idea of consilience in natural sicene thinking. The drawing together of mulptiple lines of science,data epereince from severa fields – the idea that reinforcement derives from multiple ines. | > > | The great life scientist EO Wilson was a great proponent of idea of
consilience in natural science thinking. The drawing together of
multiple lines of science,data experience from several fields –
the idea that reinforcement derives from multiple lines. | | | |
< < | It’s not a comment on present sate, though lugubrious to think it would be –
That what makes Darwinian postulate of Darwin irresistible is that all the work from 1860s till now has created a great consilient argument for natural selection as soruce of biological evolution. | > > | It’s not a comment on present sate, though lugubrious to
think it would be – That what makes Darwinian postulate of
Darwin irresistible is that all the work from 1860s till now has
created a great consilient argument for natural selection as source of
biological evolution. | | | |
< < | No matter where you look on any scasle or place you see reasons to accord natural selection a role in __.
What I want to do is suggest the vaue of consilience in arguments about social actions:
Think of us as not pursuing a social science but many social sciences—
For prposes of gaining many insights into way people think in groups. | > > | No matter where you look on any scale or place you see reasons to
accord natural selection a role in __. What I want to do is suggest
the value of consilience in arguments about social actions: Think of
us as not pursuing a social science but many social sciences—
For purposes of gaining many insights into way people think in groups. | | | |
< < | Think if you like as oriented into some vertical arrangement.
Though how that arranges itself is not worth fighting about. | > > | Think if you like as oriented into some vertical arrangement. Though
how that arranges itself is not worth fighting about. | | | |
< < | Let’s begin saying that we begin inquiries into hman behioavir at the biological leve.l. | > > | Let’s begin saying that we begin inquiries into human behavior
at the biological leve.l. | | | |
< < | It takes a great capacity for denial to deny that we’re interested in mating behavior.
It would be a peculiar proposition. Of course we know much more about hat. If we think just about the biology of perception as oppose to sociology or biology, you can see how overlapping elements might build pu that would allow us consiliently to explain a phenomeon. | > > | It takes a great capacity for denial to deny that we’re
interested in mating behavior. It would be a peculiar proposition. Of
course we know much more about hat. If we think just about the biology
of perception as oppose to sociology or biology, you can see how
overlapping elements might build up that would allow us consiliently
to explain a phenom eon. | | | |
< < | That moment of listening ais a moment when ideas are created . Don’t lose it. Dlon’t ever lose it. | > > | That moment of listening is a moment when ideas are created
. Don’t lose it. Dlon’t ever lose it. | | | |
< < | Coniser, yes this is a law school and perhaps you don[t care about renaissance paiting. | > > | Consider, yes this is a law school and perhaps you don[t care about
renaissance paiting. | | | |
< < | Explaining why mona lisa seems to be smiling at some times and not at others, human retinas are differently constructed at center than peripeherally – shad NYT article.So when looked at indirectly the painting smiles at you. | > > | Explaining why mona lisa seems to be smiling at some times and not at
others, human retinas are differently constructed at center than
peripherally – shad NYT article.So when looked at indirectly the
painting smiles at you. | | | |
< < | There w have a biological explanation for how that amgiguous smile comes into being
But you can also given social reasons for how__ paintings come into existence. | > > | There w have a biological explanation for how that ambiguous smile
comes into being But you can also given social reasons for how__
paintings come into existence. | | | |
< < | For calling into
Earl __ experienced in a task which contemporary humans don’t pursue: they’re very good at estimating the volume of irregular shapes. | > > | For calling into Earl __ experienced in a task which contemporary
humans don’t pursue: they’re very good at estimating the
volume of irregular shapes. | | | |
< < | Early modern Europeans constantly looking at sacks, barrels, other forms of nonstandard packaging.
Your’e very good at gauging how much stuff is in .
Manuals hw to decompose a seris of irregular shapes into geometric shapes and decomopose a sack into a series of cubes and cylanders
Baxendal said look at all this: these are the people who buy the paitings. Is it any surpsie that when they buy the apinting they need the three dimsensions ot be right? They bringing the gauger’s eye.
And rpetty soon the painters who sell them paitings render 3d shapes well on 2d to accommodate their eye.
Social action gets accommodated partly on biological, partly on antrhopoloigal level. | > > | Early modern Europeans constantly looking at sacks, barrels, other
forms of nonstandard packaging. Your’e very good at gauging how
much stuff is in . Manuals How to decompose a series of irregular
shapes into geometric shapes and decompose a sack into a series of
cubes and cylinders Michael Baxendall said look at all this: these are
the people who buy the partings. Is it any surprise that when they buy
the painting they need the three dimensions to be right? They bringing
the gauger’s eye.
And pretty soon the painters who sell them partings render 3d
shapes well on 2d to accommodate their eye. Social action
gets accommodated partly on biological, partly on
anthropological level. | | | |
< < | So let’s say we have a seris of thigs to think about. | > > | So let’s say we have a series of things to think about. | | | |
< < | Phil}
Hist}
Socilogy
Econ
Psychology (sociology)
How do minds influence midns? Here we wer talking about the role played by
Of course we want to think about the economics of social action.
How does social organization affect social outcomes?
History & political science about understanding regularity & contingencies
We take a philosophica l aproache about social questions
Jurisprudence, and the philosophy of morals, and so on. | > > | {Phil} {Hist} Sociology Econ Psychology (sociology) How do minds
influence minds? Here we were talking about the role played by
Of course we want to think about the economics of social
action. How does social organization affect social outcomes?
History & political science about understanding regularity &
contingencies We take a philosophical approach about social
questions Jurisprudence, and the philosophy of morals, and so
on. | | | |
< < | Psychology (Intrapsychic)
How do people, in their multiple personalities, respond to situations?
Bilogy | > > | Psychology (Intrapsychic) How do people, in their multiple
personalities, respond to situations? Biology | | | |
< < | The goal is to move back and foth among __ of human behavior, not to predict what someone else might think, but to learn HOW TO develop our own ideas. | > > | The goal is to move back and forth among __ of human behavior, not to
predict what someone else might think, but to learn HOW TO develop our
own ideas. | | | |
< < | Because it’s by moving between these fields that we acquire NEW ideas about how these things work. | > > | Because it’s by moving between these fields that we acquire NEW
ideas about how these things work. | | | |
< < | I have friends who are still interested in the logic of copyright law. Thlos of us interested in the morality of copyright law have finished that off.
But making the morality real involves going between tehse questions. | > > | I have friends who are still interested in the logic of copyright law.
Those of us interested in the morality of copyright law have finished
that off. But making the morality real involves going between these
questions. | | | |
< < | The invention of the walkman was the beginning of the end of the thugs who ran the music industry because once it was in your head, | > > | The invention of the Walkman was the beginning of the end of the thugs
who ran the music industry because once it was in your head, | | Death of the people who claimed to be the owners of the music | |
< < | But in order to see how that would happen, you had to be thinking beside the logic of copyright or the economics of the music industry.
What holmes did was to cut all of that loose. | > > | But in order to see how that would happen, you had to be thinking
beside the logic of copyright or the economics of the music industry.
What Holmes did was to cut all of that loose. | | | |
< < | Let’s talk abut the text tomorrow, get our understanding of what Hlmes was saying. It pays dividens almost immediately. | > > | Let’s talk abut the text tomorrow, get our understanding of what
Holmes was saying. It pays dividends almost immediately. | |
-- AndrewGradman - 16 Jan 2008 | |
> > |
I corrected the spelling, which I won't do again for anyone else. A vote of thanks to Andrew for starting us out.
In several places the notes are sketchy and probably should be filled in. References could usefully be added in a couple of places.
-- EbenMoglen - 16 Jan 2008 | | |
|
ClassNotes2008Jan16 3 - 16 Jan 2008 - Main.AndrewGradman
|
|
META TOPICPARENT | name="ClassNotes" |
Class Notes for Wednesday, 16 January 2008 | |
< < | I will clean up this raw draft today. -andrew | > > | I decided to take a transcript since I couldn't predict what other people would find important. -andrew | | -- EbenMoglen - 16 Jan 2008 | |
< < | 1. Listen. Something law school does not teach you to do. Something your career requires you to do, and you will have to do in this class. | > > | LESSON ONE: LISTEN. Something law school does not teach you to do. Something your career requires you to do, and you will have to do in this class. | | [I didn't catch the next stuff] | |
< < | Will anyone please volunteer to takes notes? (Andrew raises his hand.) Andrew. | > > | Every day someone should volunteer to take notes, so you learn to share. Will anyone please volunteer to takes notes today? | | General admin RE course. | |
< < | Comment on the class notes page. We will all go back and look at the comments; some of us will mark them up. | > > | I made a topic page, Eben Moglen intro: less than a hundred words on what I wanted from being a lawyer. In the course of the next 24-36 hours, write 100 word: [yourself]Intro, 100 words or less, about what you wanted out of being a lawyer. So that we can begin to understand about who we are, why we care, as we talk about what creative legal ideas are.
Participate on the wiki. Comment on the class notes page. We will all go back and look at the comments; some of us will mark them up. | | No exams: Exams are stupid, they don't test anything useful, as you've now found out. | |
> > | FORMALLY you owe 3 written exercises not more than 1000 words each.
The first two essays will be public, though the wiki structure has access control if you want the classmates not to read. But in general it's better for all to read what others write. These essays are not practically different from your other contributions.
Owing to foolish rule, fifty percent of the grade, must be based upon some anonymous activity. Though it doesn't really remain anonymous since it has to be correlated with the attributed part. Odd, that I put a bag on your head, then take the bag off and correlate with the rest of the grade. But at the end of the semester we'll set up the bizarre halfblind mechanism and you'll write your third essay anonymously. And then I'll put that alongside your other two essays and your other contributions to the wiki, and that constitute your grade as a whole.
It's about developing conversations. The goal is to treat all your contributions as communal. Everything you do will be signed in the wiki, and I can evaluate the quality of your contributions, including to what degree they interacted with others students' contributions.
I'll give you the highest grade I can possibly give you. Watch out how meaningless your grades are. The 1L grades are the most meaningless of all. I've taught second semester courses: 1L property, this lots. And so I have seen lots of first semester transcripts. They all bear a very deceptive mark: First semester transcripts plus or minus a half a grade, are almost always the same thing in every course. And ahe same thing is measured: the speed of language uptake. What you just went through in the first semester is language training by immersion: immersion IN LAW TALK. Semantically similar to English, but grossly culturally distorted.
The speed at which you acquire law talk as a 1L is irrelevant. It doesn't predict anything useful. Whether you learn it this year or next year, you'll know it seventy years from now. Whether you got lawtalk in 2007 and only acquired it in 2008 is not going to be relevant to anything you say in court. All over nothing, over an illusion, over a simple alphabet with a diacritical mark, placed there by what you will see as an irrational process.
Note how the world is ruled by words, and if you are to be a erson whose specialty is to be done using them, you should be able to cultivate some critical distance form them or you'll be cooked But cultivating critical distance from the grading system is something the school won't teach you. Grades are designed to make you feel better at someone else's expense. When I came here in the 70s, there was a thriving industry to associate names with the social security numbers posted on the wall. This is a wall made of invisible grades, yet I have watched heads beating themselves bloody against it year after year. Like William Blake, Everyewhere I go I hear the sound of mind-forged manacles clanking.
- - - - - - - - - - - - - - - - - | | We should make law school more like business school: foster cooperation and teach 21st century technology.
Another gripe about law school is that it refuses to learn, so it doesn't stop doing things that don't work. Teachers don't change it because they're lazy, students don't change it because they're frightened. | | But I wouldn't take those odds with my life. Even leaving aside the question of whether you want to get anything done in the world. Which, when you were applying to law school, most of you told us you did. | |
< < | For thousands of years, in English-speaking law, when you finished being trained to be a lawyer you got a law license: a unilateral license to do something otherwise not permitted. The license permits seeking and soliciting clients -- to be a person who says, I think you need help, and I can help you; I think you have goals that need furthering and I can help you further those goals. As a lawyer, I’m a specialist at making something happen in society using words.
That will be my defintion in this room of what lawyering is.
There are of course other ways of making things happen, apparently more effective in the short run: bullets money.
The premise of what we do is that using words, rather, makes it possible, not certain, to achieve a state we call justice; which it is our postulate that money and bullets can’t do.
The license is, A RIGHT TO TRY THAT OUT.
Yet I have watched as thousands of people have taken the license to a law firm, which is a pawn shop for licenses; where they have immediately pawned the license in return for a job.
So the law firm takes the license, tells you which side you’re on, what to do, and tells you you’re not allowed to rprestent anybody except of the pawnshops choosing.
Because the pawn shop’s job is to farm out your labor and maximize the number of hours that you work which will maximize the income which you pawned for
The argument in this course will be that pawning a license is a bad idea.
I spend a lot of time figuring out how to free music. Musicains are the people who benefit if it is done right. But I rew up at a time when musicians pawned their instruments on fifth avenue etween gigs
The problem with the lawyer who pawns her license, she never gets it back.
Even if the pawn shop lets her go, she never gets it back.
They’ve gotten used to working as a pawn. Too scary to work with the license. Because the pawn shop trained them to be horses in harness, and so they go and find another owner, and they hope it’s a good one. | > > | For thousands of years, in English-speaking law, when you finished being trained to be a lawyer you got a law license: a license to do something otherwise not permitted -- seeking and soliciting clients -- to be a person who says, I think you need help, and I can help you; I think you have goals that need furthering and I can help you further those goals. | | | |
< < | So the second part of the course is to set, in the beginning of law school,
To put some questions there for you as a backstop.
Think of them as questions t keep in mind when at cocktail parties held by pawn shops. | > > | You become a specialist at making something happen in society using words.
That will be my definition in this room of what lawyering is. | | | |
< < | When the weather gets warm there will be concern | > > | There are of course other ways of making things happen, apparently more effective in the short run: bullets, money. The lawyer's premise is that using words, rather, is more likely to achieve the state we call justice. The license is A RIGHT TO TRY THAT OUT. | | | |
> > | Yet I have watched thousands of people take that license to a law firm, which is a pawn shop for licenses; and immediately pawned the license in return for a job. The law firm takes the license, tells you which side you're on, what to do, and that you're not allowed to represent anybody except of the pawnshop's choosing. Because the pawn shop's job is to farm out your labor and maximize the number of hours that you work. | | | |
< < | Those two themes in tandem: looking at tings written about law. But never to read a case or statute or regulation in this room: I’m not interested in the official materials of the law for these purposes.
There are llos of peopole who have to say
My question is,
How do we think about the law when we look outside thet little box – the what do we think about when we think about law AS OURSELVES, as subjects of our lives, rather than as peolple doing __ for someone else.
Hypothesis that if we’re to live
My general purpose is to present a scheme, a skeleton, for understanding the organization of knowledge about the law: an alternative to the structure that presents it largely by organizing doctreine.
This is called legal realism. But I want to afford some sense of how legal realism might work for you. How it might work in your own encounter with the law.
The places where all of this goes on is in the wiki.
Your formal responsibility, work product: 3 written exercises not more than 1000 worsd each.
Owing toa oolish rule, fifty percent of the grade, must be based upon some activity that was anonymous in character. Though ti doesn’t really remain anymous since it has to be correlated with the other part.
Odd that I put a bag on your head, then take the bag off and correlate wit hthe rest of the grade.
So the first two essays will be public, though the wiki structure has acess control if you want the classmates not to read.
But in general it’s better for each to read wwhat others write. They’re not dfferent from other contributions, like in class.
At the end of the semster we’ll set up the bizarre halfblind mechanism and you’ll write your third essay anonymously. And then I’ll take and put that along with your other two essays and your other contributions to the wiki, and that will be part of your grade as a whole.
The goal is to treat all your contributions as communal. Everyting you do will be signed and there in the wiki, and I can evaluate the quality of your contributions, including to what degree they interacted with others’ contributsion.
It’s about defveloping conservations.
I made a topic page, Eban Moglen intro: less than a hundred years what I wanted about be ing a lwyer.
In the course of the next 24-36 hours, write 100 word:
yourself intro, 100 words or less, about what you wanted out of being a lawyer.
So that we can begin to understand about who we are, why we care, so we can use it as we talk about what creative lagl ideas are.
If you don’t make an intro after a day or two I’ll get the wiki to rely to you.
I’ll give you the highet grade I can possibly give you.
Watch how meaningless what’s asaid about the grades.
The 1l grades are the most meaningless of all
I’ve taught second semester courses – property, this lots.
And therefore I have seen lots of first semetster transcripts
They all bear a very deceptive mark.
First semeter transcripts plus or minus a half a grade, are almost always the same thing in every course.
And this
The same thing is measured.
Namely speed of language uptake.
What you just went through in the first semester is language training by immersitoin – IN LAW TALK.
Semantaically simlar but grossly culturally distorted by being art of a
The speed at which you acquire You can measure law-talk absorption but it’s utterly worthless as a measurement because it doesn’t predict anything useful for seventy years. Whether you got lawtoalk in x 2007 and only acquired it in 2008 is not going to be releveant to anything you say
All ofver nothing, over an illusion – over a similpe alphabet with a diacritical mark, place d there by what you will see as an irrtional process
Note how the world is ruled by words, and if you are to be a erson whose specialty is to be done using them, you should be able to
Cultivate some critical distance form them or you’ll be cooked | > > | The argument in this course will be that pawning a license is a bad idea. | | | |
< < | But cultivating critical distance from the grading system is something the school won’t tach you | > > | I spend a lot of time figuring out how to free music. Musicians are the people who benefit if it is done right. I grew up at a time when musicians pawned their instruments on fifth avenue between gigs and got a day job. If they had another gig soon enough the instrument would still be there for them to buy back. | | | |
> > | The problem with the lawyer who pawns her license is, she never gets it back. Even if the pawn shop lets her go, she never gets it back. She's gotten used to working as a pawn. Now it's scary to use the license. The pawn shop trained her to be a horse in harness, and so she goes and finds another owner, and hope it pays well. | | | |
< < | It’s designed to make you feel better at someone els’es expense | > > | So the second part of the course is to offer you, in the beginning of law school, some questions as a backstop. Keep these in mind when you're at the cocktail parties held by pawn shops.
[pregnant pause]
We'll lok at those two themes in tandem: we'll look at things written about law, but we'll never read a case or statute or regulation in this room: I'm not interested in the official materials of the law for these purposes. There are lots of other people who have things to say about that. | | | |
< < | Wehen I came here in the 70s, there was a thriving industry to | > > | My question is, how do we think about the law when we look outside that little box? What do we think about when we think about law AS OURSELVES, as subjects of our lives, rather than as someone else's objects? | | | |
< < | This is a wall made of invisible grades, yet I have watched heads being blodied against it
Everyewhere I go the sound of mind-forged manacles clanking.
Being a lawyer is not simply | > > | My general purpose is to present a scheme, a skeleton, for understanding the organization of knowledge about the law: an alternative to the structure that presents it largely by organizing doctrine. This is called legal realism. But I want to afford some sense of how legal realism might work for you. How it might work in your own encounter with the law. | | This is why I emphasized what you
You can figure it out by listening in between our sentences. |
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ClassNotes2008Jan16 2 - 16 Jan 2008 - Main.AndrewGradman
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META TOPICPARENT | name="ClassNotes" |
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< < | | | Class Notes for Wednesday, 16 January 2008 | |
< < | Put class notes here. | > > | I will clean up this raw draft today. -andrew | |
-- EbenMoglen - 16 Jan 2008 | |
> > | 1. Listen. Something law school does not teach you to do. Something your career requires you to do, and you will have to do in this class.
[I didn't catch the next stuff]
Will anyone please volunteer to takes notes? (Andrew raises his hand.) Andrew.
General admin RE course.
Comment on the class notes page. We will all go back and look at the comments; some of us will mark them up.
No exams: Exams are stupid, they don't test anything useful, as you've now found out.
We should make law school more like business school: foster cooperation and teach 21st century technology.
Another gripe about law school is that it refuses to learn, so it doesn't stop doing things that don't work. Teachers don't change it because they're lazy, students don't change it because they're frightened.
So if we are to become good lawyers, we must learn to overcome other people's inertia and fear.
You're entering a period of enormously rapid social change, which will affect both your personal lives and your legal practice. It will sweep away barriers and nonsense, and cast up new forms of social activity with new rules.
The practice w/ which you're going to engage will be very different from that engaged by firms that today you're afraid won't hire you. If you do what you're trained to do, you'll volunteer to be cut meat for a law firm, and you'll be disappointed because the firm won't be there any more, because the pace of change is very rapid. The smart thing to do (though I'm tenured 50 yrs old don't need to change salary) is to maximize your creativity, because you'll need it to be flexible and be what you're trained to be: young smart people trained to meet the 21th century not the late 19th -- if you train yourselves, because my colleagues won't.
We will investigate 1. the source of creative legal thought, and 2. the source of career creativity.
We can look intellectually to try to find what characterizes creative legal minds, that adapt to new situations well and powerfully.
However, to understand how to be flexible with respect to one's own life -- how not to be cut meat --
I've been doing this for 21 years, and I've seen many of my peers and students enter careers they're very unhappy with. One of those unhappy lawyers came to see me, feeling trapped in the 6th year feeling overwhelmed with inner anomie. "You told me not to do this and I didn't listen because I missed class so many times." and I said "I know." and he said, "The dean visited my firm, and he told the partners how privileged and proud he and his colleagues were to supply meat for the firms." Moglen: "That's because the law schools cut the checks day to day, because they're too scared to change." This student said he'd never realized that he was a unit of supply, a packaged good; that a conveyor belt had pushed meat to a firm, and that he was a piece, and part of the anomie that he was experiencing was that he didn't find it satisfactory being raw meat.
He had a 2nd kid, bought an apartment. And his wife told him, she understands the concept of downshifting. In theory.
2nd major theme, how not to touch the third rail and die.
Of the thousands of law students I've sent into the world, 15-20% were really happy: because they fell in love with a technical specialty; or the money; or they found an outside satisfaction, and could close the door to their house and split their lives.
But I wouldn't take those odds with my life. Even leaving aside the question of whether you want to get anything done in the world. Which, when you were applying to law school, most of you told us you did.
For thousands of years, in English-speaking law, when you finished being trained to be a lawyer you got a law license: a unilateral license to do something otherwise not permitted. The license permits seeking and soliciting clients -- to be a person who says, I think you need help, and I can help you; I think you have goals that need furthering and I can help you further those goals. As a lawyer, I’m a specialist at making something happen in society using words.
That will be my defintion in this room of what lawyering is.
There are of course other ways of making things happen, apparently more effective in the short run: bullets money.
The premise of what we do is that using words, rather, makes it possible, not certain, to achieve a state we call justice; which it is our postulate that money and bullets can’t do.
The license is, A RIGHT TO TRY THAT OUT.
Yet I have watched as thousands of people have taken the license to a law firm, which is a pawn shop for licenses; where they have immediately pawned the license in return for a job.
So the law firm takes the license, tells you which side you’re on, what to do, and tells you you’re not allowed to rprestent anybody except of the pawnshops choosing.
Because the pawn shop’s job is to farm out your labor and maximize the number of hours that you work which will maximize the income which you pawned for
The argument in this course will be that pawning a license is a bad idea.
I spend a lot of time figuring out how to free music. Musicains are the people who benefit if it is done right. But I rew up at a time when musicians pawned their instruments on fifth avenue etween gigs
The problem with the lawyer who pawns her license, she never gets it back.
Even if the pawn shop lets her go, she never gets it back.
They’ve gotten used to working as a pawn. Too scary to work with the license. Because the pawn shop trained them to be horses in harness, and so they go and find another owner, and they hope it’s a good one.
So the second part of the course is to set, in the beginning of law school,
To put some questions there for you as a backstop.
Think of them as questions t keep in mind when at cocktail parties held by pawn shops.
When the weather gets warm there will be concern
Those two themes in tandem: looking at tings written about law. But never to read a case or statute or regulation in this room: I’m not interested in the official materials of the law for these purposes.
There are llos of peopole who have to say
My question is,
How do we think about the law when we look outside thet little box – the what do we think about when we think about law AS OURSELVES, as subjects of our lives, rather than as peolple doing __ for someone else.
Hypothesis that if we’re to live
My general purpose is to present a scheme, a skeleton, for understanding the organization of knowledge about the law: an alternative to the structure that presents it largely by organizing doctreine.
This is called legal realism. But I want to afford some sense of how legal realism might work for you. How it might work in your own encounter with the law.
The places where all of this goes on is in the wiki.
Your formal responsibility, work product: 3 written exercises not more than 1000 worsd each.
Owing toa oolish rule, fifty percent of the grade, must be based upon some activity that was anonymous in character. Though ti doesn’t really remain anymous since it has to be correlated with the other part.
Odd that I put a bag on your head, then take the bag off and correlate wit hthe rest of the grade.
So the first two essays will be public, though the wiki structure has acess control if you want the classmates not to read.
But in general it’s better for each to read wwhat others write. They’re not dfferent from other contributions, like in class.
At the end of the semster we’ll set up the bizarre halfblind mechanism and you’ll write your third essay anonymously. And then I’ll take and put that along with your other two essays and your other contributions to the wiki, and that will be part of your grade as a whole.
The goal is to treat all your contributions as communal. Everyting you do will be signed and there in the wiki, and I can evaluate the quality of your contributions, including to what degree they interacted with others’ contributsion.
It’s about defveloping conservations.
I made a topic page, Eban Moglen intro: less than a hundred years what I wanted about be ing a lwyer.
In the course of the next 24-36 hours, write 100 word:
yourself intro, 100 words or less, about what you wanted out of being a lawyer.
So that we can begin to understand about who we are, why we care, so we can use it as we talk about what creative lagl ideas are.
If you don’t make an intro after a day or two I’ll get the wiki to rely to you.
I’ll give you the highet grade I can possibly give you.
Watch how meaningless what’s asaid about the grades.
The 1l grades are the most meaningless of all
I’ve taught second semester courses – property, this lots.
And therefore I have seen lots of first semetster transcripts
They all bear a very deceptive mark.
First semeter transcripts plus or minus a half a grade, are almost always the same thing in every course.
And this
The same thing is measured.
Namely speed of language uptake.
What you just went through in the first semester is language training by immersitoin – IN LAW TALK.
Semantaically simlar but grossly culturally distorted by being art of a
The speed at which you acquire You can measure law-talk absorption but it’s utterly worthless as a measurement because it doesn’t predict anything useful for seventy years. Whether you got lawtoalk in x 2007 and only acquired it in 2008 is not going to be releveant to anything you say
All ofver nothing, over an illusion – over a similpe alphabet with a diacritical mark, place d there by what you will see as an irrtional process
Note how the world is ruled by words, and if you are to be a erson whose specialty is to be done using them, you should be able to
Cultivate some critical distance form them or you’ll be cooked
But cultivating critical distance from the grading system is something the school won’t tach you
It’s designed to make you feel better at someone els’es expense
Wehen I came here in the 70s, there was a thriving industry to
This is a wall made of invisible grades, yet I have watched heads being blodied against it
Everyewhere I go the sound of mind-forged manacles clanking.
Being a lawyer is not simply
This is why I emphasized what you
You can figure it out by listening in between our sentences.
If you liten ain a room where you are talking: in between your words and sentences, you will hear whether people are listening, or whether they are bearing up manfully against you.
If you can hear the feet shuffling and the clisk.
And as I watch you get more conscious of those, I’ll know that you’re becoming a better lawyer.
Because everywhere yougo lal all the time, you should be listening .
Kte: so we’re going to spend a lot of time in the clas about how to avoid becoming a meat product. The question, are we going to spend time avoiding talking about the alternative?
Mogeln: I wan the intros because I want to start learning from people what THEY care about.
We’re not making bricks without straw in that regard.
“What you did and thought before doesn’t matter now, rather, what you thought __ as lawyer.”
Everyone is a nongerman speaker learning german by immersion, foundering artound.
You figure out how to get paid for making it happen.
Ou find it in stuff written by awyers, by people here who want to say something; we learn what it is to _ to be a lwyer.
e.g. from a wonderful book called lawyerland, by a prof who’s also a poet & teaches in Saint John’s. Just recorded conversation – monoglue – by different lawyers who live and work in NYC,.
We’ll read it just to understand what their alternatives are.
I want to talk about stuff that’s reall.
The more you bring ral ppeople, the more
SgtdenT? :
I’ve become slaveto note-taking. Would that irritate you?
- Moglen
- ou do what you want to do. I’m in the job of exposing you; but you do whatever yo’d like. If it interferes with your listening, YOU might have a problem with it.
Moglen: And we’ll be discussing current events.
UYeah! That’s where things happen The conversation will be a converation. We’ll talk about what you want to talk about.
Moglen: if you think it’s worth brining here, then it’s worth talking about – but if no body wants to talk about it, I can’t make them and won’t.
[some music. I wasn’t listening.]
I want to present a proposition about the path of the law.
This is a speech about what it means to be a law student.
Oddl enough Holmes is not talking down to the students – if he’s not exactly bulding a report, he’s at least attempting to have an actual converation.
Being a chief jstice on MA supreme judicial court
He’s risen to be chief justice on the SJC of MA and hes bored.
Maybe … maybe he’s experiencing extramarital affection and is starting to feel inner renwal? Speculative, but SOMETHING CERTAINLY HAPPENED that summer that’s playing a role that if he can’t get off the supreme judicial court, he ought to do something more important –
This problem WILL be solved by his translation to the supreme court—
But we must say that when he’s writing this,
But biographically
To the rest of the world, this speech will stand for the beginningos of a PARTTIULCAR outlook on legal __.
An outlook that never erally takes hold among the enlgish speaking lawyers.
Elsewhere too, US law will be thought rather distinctive
This is the beginning of something and I come ot it that it’s a beginning
The object of lw, he sahys, is prediction
The prediction of what the courts will do in fact; and nothing more complicated than that, he tells us what he means by law
So what about that idea, that the law is for us as students of it, in fact a series of prediction about what courts will in fact do?
You’re a weatherman, to predict. And under circumstances, the question is , where is the great axe to fall. What are the consequences of encounter with a superior force: people want layers to rpedict litiatgion for them. What do you think?
Michael: it ignores the effect of the quality of lawyering: I would say a more apt descritpino is how to get the courts to do what yo uwnat them to do.
- Moglen
- he agrees with you, taking what we’ve said, as a first step FOR tat.
One problem is, predicting one udge’s behavior is diffiult, and the kinds of sourcs aren’t thie info peole have acces to
And people go that route,
People accuulate index cards on judges.
In the course of my work, we had to investigate medical appliance market RE imdedded software.
Which had a great deal of
Every single pacemaker currently used for implantation in the US is equipped with the ability to recalibrate itself on the bais of an esxterior radio frequency signal. If you’re a pateitn, you get a little informed consent (supposedly informed) pahemplet fro the majufacturer.
And it says, “this is like a tV remote control). We had interest, called manufacturers, asked what the security mechanism concerning the rmote interventions ins your pacemakers. Everyone of them refused to discuess.
Everyon has, essentially, a bad story.
Turns out they’re death machines. Hacking them is deadly.
You should be able to stand 35-40 feet away from dick cheney and turn his heart off.
Suppose you bring a lawsuit about this. There will be lawsuits against the anufacturers and there will be hell to pay – and one of the reaons because I know there will be hell ot pay – is because eif I file this lawsuit on diversity of citizenship, in any court, the odds are better than even that the judge is wearing a pacemaker.
And the decision courts will make will surely be affected by the fact that judges are wearing a pacemaker.
So you’re talking about the behavior of small groups of people.
That’s not a grand philosophic problem.
Which is why you find everthing you can about the local judge. Which is why you go off and find out about that human being.
Prediction broadly taken must predict individual human beahavior, so lawyers must become adept in dealing with those problems.
Holmes as you see is concerned with the policy judgments they make and how to improve them.
Holems: I think the judges themselves have failed to recognize ]responsibility], and [quotation from text.]
Of course American judges of 20th century have accepted,
And the policy
Everything is about the legislative goals.
You can start from the law of logic, and policy consequencdes, is the operation of rules, that produce actual circumsatance that have cause and effect, so we should study the consequences of rules.
The steop that causes so many difficulties is when the consequences are thought of only in econmic terms. (problem to me)
But this brings us to what I will offer to you RE where judicial creativity comes from
Legal creativity comes from the roadest pssible understanding of the roots of social action: how to analyze and understand, and ow to affect. Them.
Straightforward modification of idea that layers are people who tmake things happen in society using words.
That person asks, what’s my theory of social actiona and how tdo I use my theory to produce social effect?
Well theories of social action ma not grow on trees,
My point is that thre roadest theories, the one which draw from the most widespread set of understandings, have the advantage of the production of new ideas.
Creativity comes from breadth of mind.
When you have one way of looking at a aquestion, you tend to __ the way you llook. Isaihah Berlin called the hdedghog frame of ind: using the same mental view to solve every problem.
We see the obsessive character of hedghog thinkg: he’s got a hammer and thinks everytig’s a nail.
But the purposes our purposes, it’s about whenter crativity emerges from the hedghog point of veiew.
It’s hard – thinking cratgively is difficult inside that framework
I wan to propose instead a framework based on consilience, consilient _.
The greaet life scientist EO Wilson was a great proponent of idea of consilience in natural sicene thinking. The drawing together of mulptiple lines of science,data epereince from severa fields – the idea that reinforcement derives from multiple ines.
It’s not a comment on present sate, though lugubrious to think it would be –
That what makes Darwinian postulate of Darwin irresistible is that all the work from 1860s till now has created a great consilient argument for natural selection as soruce of biological evolution.
No matter where you look on any scasle or place you see reasons to accord natural selection a role in __.
What I want to do is suggest the vaue of consilience in arguments about social actions:
Think of us as not pursuing a social science but many social sciences—
For prposes of gaining many insights into way people think in groups.
Think if you like as oriented into some vertical arrangement.
Though how that arranges itself is not worth fighting about.
Let’s begin saying that we begin inquiries into hman behioavir at the biological leve.l.
It takes a great capacity for denial to deny that we’re interested in mating behavior.
It would be a peculiar proposition. Of course we know much more about hat. If we think just about the biology of perception as oppose to sociology or biology, you can see how overlapping elements might build pu that would allow us consiliently to explain a phenomeon.
That moment of listening ais a moment when ideas are created . Don’t lose it. Dlon’t ever lose it.
Coniser, yes this is a law school and perhaps you don[t care about renaissance paiting.
Explaining why mona lisa seems to be smiling at some times and not at others, human retinas are differently constructed at center than peripeherally – shad NYT article.So when looked at indirectly the painting smiles at you.
There w have a biological explanation for how that amgiguous smile comes into being
But you can also given social reasons for how__ paintings come into existence.
For calling into
Earl __ experienced in a task which contemporary humans don’t pursue: they’re very good at estimating the volume of irregular shapes.
Early modern Europeans constantly looking at sacks, barrels, other forms of nonstandard packaging.
Your’e very good at gauging how much stuff is in .
Manuals hw to decompose a seris of irregular shapes into geometric shapes and decomopose a sack into a series of cubes and cylanders
Baxendal said look at all this: these are the people who buy the paitings. Is it any surpsie that when they buy the apinting they need the three dimsensions ot be right? They bringing the gauger’s eye.
And rpetty soon the painters who sell them paitings render 3d shapes well on 2d to accommodate their eye.
Social action gets accommodated partly on biological, partly on antrhopoloigal level.
So let’s say we have a seris of thigs to think about.
Phil}
Hist}
Socilogy
Econ
Psychology (sociology)
How do minds influence midns? Here we wer talking about the role played by
Of course we want to think about the economics of social action.
How does social organization affect social outcomes?
History & political science about understanding regularity & contingencies
We take a philosophica l aproache about social questions
Jurisprudence, and the philosophy of morals, and so on.
Psychology (Intrapsychic)
How do people, in their multiple personalities, respond to situations?
Bilogy
The goal is to move back and foth among __ of human behavior, not to predict what someone else might think, but to learn HOW TO develop our own ideas.
Because it’s by moving between these fields that we acquire NEW ideas about how these things work.
I have friends who are still interested in the logic of copyright law. Thlos of us interested in the morality of copyright law have finished that off.
But making the morality real involves going between tehse questions.
The invention of the walkman was the beginning of the end of the thugs who ran the music industry because once it was in your head,
Death of the people who claimed to be the owners of the music
But in order to see how that would happen, you had to be thinking beside the logic of copyright or the economics of the music industry.
What holmes did was to cut all of that loose.
Let’s talk abut the text tomorrow, get our understanding of what Hlmes was saying. It pays dividens almost immediately. | | | |
> > | -- AndrewGradman - 16 Jan 2008 | |
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