Law in Contemporary Society

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JosephAveryFirstPaper 5 - 11 Apr 2009 - Main.EbenMoglen
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Stepping Outside of the Swindle

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 In my understanding, we have begun, in this course, to address an important question: How can we forge lives full of meaning in a society in which there is a lot of pain?
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  • Is this the question? One would think that question had a comparatively simple answer: help those who suffer.
 

Perpetuating Inequality

That question has given rise to the following argument, which has, in various shades and forms, surfaced in our classroom and wiki discussions. Broadly, it goes like this: inequality is a product of what Leff, in his essay “Swindling & Selling”, would term swindles and sales. The line between the two – swindles and sales – is a bit hazy and tough to distinguish. What is of import, though, is the fact that these cons/sales are perpetuated by those in power (those who have wealth) in an attempt (1) to remain in power and (2) to ensure that the poor remain poor. Lawyers, as unwitting pawns in, and oblivious contributors to, the swindle, help maintain this societal construct. They are paid far too little, and much value is skimmed off the top of their labor, by corporate firms.

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  • What has Leff got to do with it? If his conclusion, so far as it concerns you, is that one cannot easily tell the difference between acceptably fair and abusively unfair exchanges--I don't think that's really what interests him, but never mind--then your proposition, that inequality results from exchange, doesn't require Leff. Whether it is correct that inequality results from exchange is a different matter, and perhaps the one to which you should have addressed the paragraph. I disagree, at any rate, that it's what has been said in class, if you mean by me.
 Now, in this present and uncertain economic climate, the con is being exposed and the damage revealed: people are without healthcare, without proper education, without a cent of savings.
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  • That's all been true for a generation. There's only exposure going on if you mean that for the first time in your life you are paying attention to what has always been there.
 The solution, we have posited, is for us, as attorneys, to step outside of the con and have the confidence to produce something of value. We are equipped with various skills, such as an understanding of how to use and exploit the legal system (see “The Path of the Law”, or “Transcendental Nonsense” or “Legal Engineering”), and we should use these skills to break free of the con. This will, in turn, give people the opportunity to grow up in a just society and to perpetuate that just society.
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  • This seems to me a cartoon. Perhaps you are claiming that the conversation has been this flat-footed and cartoonish, or perhaps you are deliberately simplifying rather than misunderstanding. If the first, I think you are wrong: the conversation has avoided this oversimplistic idea that if you do jobs that bring meaning to your lives the lion will lie down with the lamb and justice will be done. If the second, what is the benefit of creating a strawman to argue against. If the third, I think you need to reinterrogate the sources to differentiate between the idea that most lawyers do not do work that as meaning to them, and the idea that the work of doing social justice is meaningful. The first is a sociological observation with personally psychologically relevant consequences, while the second is a proposition of personal conviction with which any given individual might or might not agree.
 Two questions spring to mind from this argument. First, why should we do this? Second, will our becoming “confident and independent value-creators” actually lead to a just society?
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  • The first, fairly put, is: why should I want meaningful work? The second is a purely straw question that cannot have a useful as opposed to merely rhetorical answer.
 

Why Break Free?

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I’m not sure that the con is harming me, so why should I break free of it? I believe, even though many will say I am misguided, that (yes, even in this current economic environment) I will make vastly more money in BigLaw than I would on my own. Moreover, while many of the wiki posts deal with the perceived unhappiness of BigLaw associates, I have friends who recently graduated from top law schools and are now working in big firms, and many of them are extremely happy. They are making a lot of money; the work is interesting; they have more free time than they did in law school. Moreover, I don’t think that BigLaw will force me to do work I don’t want to do. It has been argued in class that we should do what we want to do, produce something of value, and money will then come to us. But if what we desire is not to do certain things but instead to do any of a class of things while making a certain amount of money, then it only makes sense to pursue money directly.
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I’m not sure that the con is harming me, so why should I break free of it? I believe, even though many will say I am misguided, that (yes, even in this current economic environment) I will make vastly more money in BigLaw than I would on my own. Moreover, while many of the wiki posts deal with the perceived unhappiness of BigLaw associates, I have friends who recently graduated from top law schools and are now working in big firms, and many of them are extremely happy.

  • "Extremely"? Did you need to boost the thing with an adjective in order to convince yourself you were making an argument? You are trying to use short-term evidence to counter an argument about long-run consequences. You know that's not logically compelling, so you attempt to make it work by adding an intensifier. Is this actually intended as an effective counter to the long-term data? Does it speak to the issue of meaning?

They are making a lot of money; the work is interesting; they have more free time than they did in law school. Moreover, I don’t think that BigLaw will force me to do work I don’t want to do.

  • You do not even purport to offer a factual basis for this absurd statement.

It has been argued in class that we should do what we want to do, produce something of value, and money will then come to us. But if what we desire is not to do certain things but instead to do any of a class of things while making a certain amount of money, then it only makes sense to pursue money directly.

  • This isn't logic.
 Perhaps, though, the con is preventing me from pursuing justice. The argument I’ve heard is this: BigLaw, certainly, undoubtedly, surely, is not a just pursuit; Public interest law (or, say, selecting one’s own clients; or working in a boutique firm) is more likely to be a just pursuit. I am prone to thinking, though, that everyone is motivated by the same few ends: wealth, recognition, power, etc. The public interest lawyer is doing work that “society” respects. He is given recognition and is considered a good person. That gives him influence and power. The Corporate attorney, on the other hand, takes a more direct route. He pursues money, which can be used to buy power. (For some insight into this, see Albert Camus’ The Fall.) Thus, no one is really pursuing justice (where, say, we define ‘justice’ as the title character in “Robinson’s Metamorphosis” would: equality). So BigLaw is just an equally efficient route to what we want.
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  • This is an illogical refutation of a nonsensical argument. This division between "the public interest lawyer" and "the corporate lawyer" wasn't made by any intelligent observer: it's bullshit you picked up in the street, like sexual information conveyed to one another by nine-year-olds. The issue of meaning is here obscured, as in the preceding graf, by the assumption that meaning is fungible with money, which is at best unexamined and most likely just obviously wrong.
 Of course, thinking like this is what Leff predicts: the victim always thinks that he is an active participant in the con. Perhaps I have fallen prey to that trap; more likely, I have simply fallen prey to clever semantics by Leff.
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  • This graf conveys no relevant meaning for the reason given above.
 

A Just Society, Or Just Another Unjust Society?

I think that the notion of stepping outside of the con and pursuing something just and valuable is inspiring. However, given that we all have different conceptions of what is just, and given that I’m not sure anyone is genuinely motivated to promote equality, I fear that empowering us to step outside of the con will not result in a “better” society, but simply in a society that mirrors the current one.

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Say we develop the confidence to step outside of the swindle and create something, on our own, of value. Our own process of creation will likely require us to become, in a way, conmen. We will build a framework; we will create value; we will con/sell. Inevitably, we will become a new ruling class. And from this position, it is hoped that we will be able to institute equality and justice. However, this seems terribly unlikely. Just as has always happened throughout history, those who reach the ruling class will likely attempt to hold onto their wealth and power. The new swindles, no matter how “justice”-oriented at the start, will simply become iterations of the cons that are currently being exposed. The world will be no better off. There will be no increase in equality or “justice”. We will have spun our wheels, hustled, sweated, strived, conned – and for what? For power? For wealth? For a vague notion of justice? If equality were really something that people want, if it were really something that can be had, then I think we would already have it. Thus, and with regret, I must conclude that I’m not sure we can make a meaningful difference.

  • Okay, you win. If I spend a good deal of time showing all the ways in which you have misstated me for a debater's advantage, or created your own facts, or taken some other shortcut to a rhetorical victory in which no intellectual confidence could be reposed, I am merely defending my own point of view, most likely in a biased fashion. So you have chosen one of the class of subjects on which I have to refrain from exercising the full breadth of necessary criticism. You have full marks for the expenditure of effort, and whether it represents commitment to the enterprise I leave to be decided by your own conscience. Improvement we can both judge in the future.
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  • This is not a valuable point outside the debating society, because it responds to a straw proposition. There is a weak proposition inferrable from the real point, which asserts that there would be a general social improvement from everybody's having meaningful work. This is a weak proposition because, though not quite tautological, it is so universally accepted that there's not much point debating it under almost all circumstances.

Say we develop the confidence to step outside of the swindle and create something, on our own, of value. Our own process of creation will likely require us to become, in a way, conmen. We will build a framework; we will create value; we will con/sell. Inevitably, we will become a new ruling class.

  • This is purely verbal. It has nothing to do with the life span or personal choices of any individual. As an argument against meaningful work, it gains no purchase whatever.

And from this position, it is hoped that we will be able to institute equality and justice. However, this seems terribly unlikely. Just as has always happened throughout history, those who reach the ruling class will likely attempt to hold onto their wealth and power. The new swindles, no matter how “justice”-oriented at the start, will simply become iterations of the cons that are currently being exposed. The world will be no better off. There will be no increase in equality or “justice”. We will have spun our wheels, hustled, sweated, strived, conned – and for what? For power? For wealth? For a vague notion of justice? If equality were really something that people want, if it were really something that can be had, then I think we would already have it. Thus, and with regret, I must conclude that I’m not sure we can make a meaningful difference.

  • So you conflate the relevant proposition, should I have meaning in my work, with an absurdity, like "should I become a failed messiah?" and proceed to a supposedly resounding but actually silly conclusion.
 
META TOPICMOVED by="JosephAvery" date="1235756092" from="LawContempSoc.TWikiGuestFirstPaper" to="LawContempSoc.JosephAveryFirstPaper"
META TOPICMOVED by="JosephAvery" date="1235756092" from="LawContempSoc.TWikiGuestFirstPaper" to="LawContempSoc.JosephAveryFirstPaper"

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