1. Background on this paper

In my Columbia admissions essay (relevant excerpts in bold) , I critiqued my undergraduate debate team for never inquiring WHY we could defend any position. This kind of higher awareness, I argued, would have made it easier to constructively criticize our experienced and novice debaters alike.

This semester I finally found premises (Best, Briefest, First) that would permit me, I believe, to write that account. But I would like to play with magic just a little bit longer. In each section of this paper, I first paraphrase the model/narrative/world-view of a popular authority; then I defend strange positions in light of these models.

Comment ruthlessly. Attack, defend, ruin my grade, ramble on a random inspiration. [Then email me, so that I can get the last word.] As always, I am trying to provoke, if not dispute, dissonance.

Many people have commented that this is an unusual paper.

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POSITION: I know. I'm trying to save my less idiosyncratic paper idea for the third exercise -- in which the school encourages us to pretend not to be ourselves -- in which, as in sibling rivalries and pissing contests,
Long peers learned to long
To be ranked by uniform
Not in spite of it.

-- AndrewGradman - 31 Mar 2008

2. Freud on Socrates

The "Big Bang" Theory of Western Civilization

• • Young Sigmund: Socrates, why are you attracted to young boys?
  • Socrates: The truth is just the opposite -- I'm satisfying my desires with precisely those people that I find UNATTRACTIVE!
  • Sigmund: Why?
  • Socrates: ... so that I can be SURE that what attracted me to them, was not their great beauty, but their great sense of justice. I'm controlling a variable.
  • Sigmund: Which variable?
  • Socrates: Here's the truth: I'm controlling beauty, in order to figure out justice. Girls are Beautiful and Boys are Just; therefore, justice is a function of the boy I happen to be having a ... dialogue with.
  • Sigmund: Is that a dialogue in your pocket, Socrates?
  • Socrates: Yes, I got it last night while thinking about the Muse. We could read it together, if you'd like ...
  • Sigmund: Help, help! Socrates is corrupting the youth of Athens!

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POSITION: Truth is a symptom of minority status

-- AndrewGradman - 04 Apr 2008

3. Hippocrates on harming

Surgeon : body :: "first do no harm" : organs :::: lawyer : society :: "first do no harm" : bodies

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POSITION: Alan Dershowitz (who defends unpopular plaintiffs and makes their narratives symbolic of social malaise) is the best doctor among us.

-- AndrewGradman - 04 Apr 2008

Perhaps a definition of what you mean by "harm" when referring to the law would be helpful?

-- SandorMarton - 05 Apr 2008

1. Let medicine to lead the way. Last night my dad told me that he once accepted a stroke patient from the mafia who told him, "I knew I had a problem when I wasn't able to pull the trigger." And the boom in cheap MRIs is creating incidentalomas -- i.e. it's making people nervous (i.e. "likely sick") faster than it's making them healthy. Surgery, like litigation, wastes resources, and society can't cap the costs because it doesn't know, "What's too much to spend, on health or on justice?"

2. If the surgeon-body-organ relationship is analogous to the lawyer-society-body relationship, then I don't need to define harm.

-- AndrewGradman - 05 Apr 2008

This is an interesting point, but you need to make it more clear. (You tend to talk around your thesis but never directly express it.)

I see you are making several sub-points, but your main point seems to be that the doctor's emphasis on no harm in the direct and personal sense is roughly equivalent to the ethical requirements of bar admission, and that in both cases, the forest can be lost for the trees -- i.e. a system that focuses on the requirements of a specific case can lose the ability to see the requirements of the system. Is that right?

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

My personal opinion (since you ask) is that we're not losing forests for trees -- we're finding more forests than we ought to! (cf. Heller, we're finding more "Commons" than we ought to )

But my thesis is that no system can define how many trees becomes a forest. Since I can't define it, I don't try to define it.

-- AndrewGradman - 05 Apr 2008

I think we are framing the metaphor differently... =) I think your forests (of which we are finding more than we ought to), are what I was referring to as trees (of which we are finding more than we ought to).

-- TheodoreSmith - 05 Apr 2008

I agree with you: we haven't agreed on anything.

-- AndrewGradman - 05 Apr 2008

And I agree that no system can define what is the forest in an objective sense, but on a "observable behavior" level, that is exactly what systems do. Will you argue that this feature of human intellect (defining categories and contextual levels) should be rejected? Is it even possible for a human to not instinctually make these distinctions?

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

4. Rousseau on legal realism

Rousseau’s lawmaker = every perceived artifact

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POSITION: All observable behavior consists entirely in externalities; all externalities soon become either failed or successful revolutions; Law is the voice that teaches us: (good vs. bad) / (long term vs. short term) / (surveil or don't) / (education, marketing, campaigning, trust, map-writing vs. propaganda, exploitation, enslavement, lies, art).

-- AndrewGradman - 04 Apr 2008

Is your premise, that all objects of perception are bound by conceptual forms, that we created and use as the context in which they can be perceived? If so, I don't think "law is the voice," but simply one of the voices (and probably not a very powerful one at that). Also, along with what Sandor mentioned in 3, I think that your dichotomies (good vs. bad) may not be helpful, and may distract from your central point.

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

I responded to Sandor: You're right, law is one voice among many; but only law passes judgment on revolutions.

And given that the law, like medicine, gets implemented in binary (i.e. plaintiffs ask questions, and courts say "Yes" or "No" / inpatients present symptoms, and doctors say "intervene/don't"), I think that "good"/"bad" is as useful as any other dichotomy.

-- AndrewGradman - 05 Apr 2008

Why can revolutions only be judged by the law? If you are defining acts as revolutions, than the "revolutions" you are talking about get judged constantly in all kind of non-legal contexts... Your claim may be too strong - some "revolutions" can be judged only by the law, but certainly not "all observable behavior." There are plenty social and individual judgments passed on acts, that are more definite and far-reaching than what we call "law" (the pronouncement of the king in the "ingenious patriot")

That's why the dichotomy is unnecessary here. Good/bad is as useful as any other dichotomy, but the dichotomy is unnecessary in the first place. Legal actions can be dichotomized, but not always (e.g. courts are not limited to Yes and No). Dichotomies make your argument more punchy, but also harder to understand; the emphasis on dichotomy distracts from your real point.

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

I define "attempted revolutions" loosely, as out-of-court acts, legal or illegal; the important dichotomy is the successful attempted revolution, the illegal behavior that accumulates into a groundswell that eventually changes the law. For example, Rosa Parks on the bus, and Hitler at his 1923 trial for the beer hall putsch.

My point is precisely that my loose terms let me defend ANY ethical position. I'm not going to defend one over another. We're all first year law students. Why should I bother convincing you of my opinion, when none of us will be able to act upon it for at least a decade?

-- AndrewGradman - 05 Apr 2008

It's true, I was not focusing on the purpose of the paper as a whole, however, my argument here is that you are not defending your position ("tolerable narrative") effectively because your terms are too loose. =) (and no invoking the overall purpose of the paper... it makes it too difficult to suspend disbelief!)

I like the idea of the participatory paper, by the way!

-- TheodoreSmith - 05 Apr 2008

You seem to be making some kind of instability-of-semantics argument, which isn't that controversial to me or to Felix Cohen when you consider that the 'law' is anything that brings the coercive force of the community to bear on individuals. I suggest reading 'Law is Love' by WH Auden where he lists the forms of coercion, i.e. 'law', in our society. In this sense, I agree with Teddy - the binary model fails because the question of what kind of law of which we speak must precede the binary judgment. Since the answer to that question is indefinite and indeterminate, that falsifies the binary judgment model entirely.

-- JesseCreed - 05 Apr 2008

I love your suggestion of "Law is Love." I read it once but didn't make this connection.

I agree that it's really-really-hard to come up with a binary system that is both falsifiable and really-really-hard to falsify; so how should I presume?

But we're faced with a real problem: society actually does sort continuous phenomena into binary categories (e.g. by means of scientists, judges, doctors). So (as you know), we as advocates need to ask, "How does one upset the structure of the assignments between terms and things?"

My long-term strategy is to upset assignments by upsetting people. My near-term tactic is to attack texts they associate with stability. It's old news that "The rules change as the rules are applied." By contrast, the notion that Rousseau, the very Framer of the West's vision of "society," defines "lawmaker" flexibly enough to include any artifact -- including e.g. the identity of the butterfly that started Hurricane Katrina -- that's a threat from left field.

So, that's why I prefer tracing absurd ideas to Rousseau, when, you're right, anyone would do.

-- AndrewGradman - 05 Apr 2008

5. Plato on anomie

Just as we cannot distinguish whether Plato was the ultimate Jayson Blair, or was "merely" a faithful stenographer/journalist/fly on the wall, we also don't know which is the real Plato:

• the bearded old man in white, dreaming/reconstructing a narrative transmitted through hearsay (for, as Plato informs us, Phaedo said to Echecrates, "Plato, if I am not mistaken, was ill"); or
• the young bearded man touching Plato's knee -- who perceived Socrates not as disembodied words, but as a coherent body -- as if that matters.

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POSITION: As scientific progress advances the necessary division of labor, disparities in education and training will cause neighbors to look more like magicians, and act more like magicians, and be less and less capable of empathizing with each other's actual needs. For:

• without the bird's eye view, how can you determine when you've left the maze? How can you determine whether your maze can even be exited?
• even a "normal" maze, in which we can see from above a line between two apertures, might be unexitable: We can't see the vertical shafts. Man cannot reverse certain ancient falls; the problem is we don't know which.

-- AndrewGradman - 04 Apr 2008

6. Peter Drucker on the profit motive

The corporation is the best cost structure for marketing and innovating visions of justice. Market research suggests that there is a customer for an antidepressant that relieves anxiety produced when impersonal, publicly traded corporations move into one’s neighborhood: the voter and churchgoer; the unionized employee and her manager; and the senior on Medicare, University professor, and nostalgic former Marxist (reference available on request). That antidepressant will be consumed symbolically, i.e. as books, essays and editorials.

My long-term business plan is to obtain tenure at a university, so that my symbol factory will never be overwhelmed by costs. In the short term, I need to learn more about brain chemistry.

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Position:
1. [revised cover letter]: "That is why I want to work for Bristol-Myers Squibb: I trust their opinion, more than I trust the opinion of a private nonprofit with a private agenda, because it is the function of a publicly traded corporation to answer this question correctly.
2. Die Gedanken Sind Frei is the name for the competitor's antidepressant.

-- AndrewGradman - 04 Apr 2008

Is the idea that the corporation is bounded by profit... so you are more likely to be able to predict their motives/goals correctly?

"Consequently, Drucker defends the concept of corporate social responsibility, but only as a planned wealth endeavor that is profitable for shareholders, and not on the basis of the distorted view of social responsibilty that revolves around the stakeholder concept. Says he:

That such objectives (social responsibility objectives) need to be built into the strategy of a business, rather than merely be statements of good intentions, needs to be stressed here. Those are objectives that are needed not because the manager has a responsibility to society. They are needed because the manager has a responsibility to the enterprise."

-- SandorMarton - 05 Apr 2008

There is no profit motive. Investors tie CEO pay to some opaque algorithm balancing near-term and long-term stock price, then they increase the price of stocks for which the CEO's rhetoric about the underlying assets symbolizes growth in the present value of its long-term profitability.

The corporation has a survival motive, like any legal person, because the opposite of profitability is death. Investors are just gambling on the order in which corporations will die.

-- AndrewGradman - 05 Apr 2008

7. Martin Luther King on capitalism

I have a nightmare, that in my lifetime technology will continue to improve. And as the menu of possible breads and circuses grows more complex, Americans will be unable to distinguish their options; and they will have only faith that their options are different; and, being Englishmen, they will lose faith in anyone’s ability to make the "choice" that is right for them. They will call their confusion Pluralism, and their agosticism Science: and they will replace legislatures with bureaucrats, and bureaucracies with corporations; elections with marketing, and monetize all Value; Senates with Boards of Directors, Presidents with CEOs ... The publicly-held corporation will assume the function of the democratic state ... but our language will continue to contrast the two.

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POSITION: I have a dream, that one day CEOs will use those moments when they're not being watched by Boards Directors to increase consumer rather than shareholder value.

That's really my dream. My dream is to someday teach at a business school, and share my nightmares with those people.

-- AndrewGradman - 04 Apr 2008