Alienation, Violence and Law School

• Eben: Thank you for your comments on my papers.

• I read your comments on this paper after reading EvaluationPolicy, as well as your discussion of meat grades. I thought it might be useful to clarify what I was getting at in this paper, in light of those two essays. (This is a draft response, which I hope to sharpen over the next few days.)

• I certainly take your point that, in law practice as in life, "there are conflicts of all sorts," and that these conflicts do not require that one break off communication--I don't think that's what I was suggesting, exactly. I think you're right to note that communication can help to mitigate the harm that arises from conflicts: Coventry and Kunz, for example, were finally able to persuade their client to agree to release confidentiality upon his death, with the result that Logan was imprisoned for 26 years instead of the rest of his life. I think this is a valuable observation that I wish I had put in my original essay---that even if we have clients whose interests are not aligned with ours, communication and transparency can help mitigate the resulting violence. Communication can also help us make conscious choices about the harms we inflict, to help us avoid the sort of unthinking, reactive lashing-out of Cerriere, Singleton, and Wylie's partner.

• Even if conflicts don't require us to "dissociate" by breaking off communication, however, they do end up forcing us to balance harms and compromise. The quantum of the resulting violence can be mitigated through communication, when that communication is aimed at trying to bring interests as nearly as possible into alignment; and the resulting good may also be worth the price, under some sort of cost-benefit analysis. But the harms are there nevertheless.

• I do think that, in some sense, that's embedded in the structure of the relationship between client and attorney, as principal and agent. Perhaps it's also embedded in any collaborative effort. We can learn stoutness from Bartleby, but he has nothing to teach us about how to be someone's agent, or how to collaborate with others successfully. Bartleby does not mitigate the harms of conflicting interests by talking it out; he refuses to be complicit in the injustices of the world, which is the source of his greatness, but also the source of his own peculiar dissociation from the world, and a cause of his eventual death.

• So, what does this have to do with your two essays on law school grades? I think what I'm terming the "alienation" and "violence" resulting from conflicts, you've described in EvaluationPolicy as "injustice" and "complicity" with "occupying forces." The interests of teachers are, of course, never identical with the interests of their students. But the grading structure, which is one channel mediating the relationship between law teacher and law student, also helps to constitute that relationship in ways that are pedagogically unsound, and which do violence to students as well as teachers. If we want to be teachers and students in a world where the relationship between teachers and students are mediated and constituted thusly, then there is no avoiding some measure of complicity with the harm this structure causes, some measure of alienation and violence.

• What does one do about this? Bartleby would have nothing of it; there is no way he would submit himself to the indignity of being graded as a student, and he would refuse to be complicit by handing in grades as a teacher. Which is why he wouldn't last long as either a student or a teacher under the current regime, just as his own occupation of No. -- Wall Street did not last long in the face of the overwhelming violence of the state. If we're interested in actual change, and if we want a more just world, we have to balance the harms of our complicity in ways that Bartleby refused to do, while consciously confronting and managing the fact of that complicity in ways that Cerriere, Singleton, and Wylie's partner were unwilling to do.