Law in Contemporary Society
Dear class,

I need your help. If I write my third paper in my usual style (disorganized, meandering, nonsensical ...), my identity will show through. That's either bad for me and good for you, or vice-vice versa -- but we can all agree that masking my identity is the best private strategy for all of us -- e.g. if low self-confidence makes a student act like a teacher's pet, the former of which only the student can know, the latter only the public. (Is this like re-characterizing the numbers in the prisoner's dilemma grid, so that the selfish actor helps all the actors?)

So, please tell me how you would have written this essay, so I can make this essay look as generic as possible. Thanks.

(Because this thread is now anonymous, I suppose that Eben reads further at his own risk (i.e. of inferring something he could get penalized for knowing)

[... for clarity, I have replaced all uses of the phrase "2nd paper" with "3rd paper".]

If anyone wants to trade 2nd 3rd paper ideas, please shoot me an email. [email address redacted]

Title: "Taking my Father's Oath"

Theme: aspirations hit reality

Text's: What happens when a law student heard himself stereotyped as a surgeon's son?

  • Isn't the person most needful of a hypocratic oath, precisely the aspiring surgeon of Leviathans?
  • Surgeon : body :: "first do no harm" : organs :::: lawyer : state :: "first do no harm" : bodies
What happens when a law student was asked "why do you want to be a lawyer?"
  • Parents teach us to prefer action to speech: being nervous whether we'll function in their absence, they have brainwashed us (axis: strength of surveillance, cf. Rapaczynski) to Do not Think, Act not Write, be not just Good, but Verifiably Good.
    • Assumption: we are as risk averse as our parents; only, we decline another's brainwashing when we think we can surveil ourselves, i.e. recalibration * I am flummoxed whenever I juxtapose the notion that words are "merely" labels, with the observation that language is power. * All my classmates said they wanted to pursue justice. So why did they come to law school? To write “fair trade” on lattes? An army crawls on its stomach: The state speaks on behalf of police, and its licensed advocates can represent any client they want to. That we perfunctorily remind each other to give to Caesar what is Caesar’s doesn’t make us any less mercenary than any other agent. * "Preamble: A lawyer's responsibilities": [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice".
        • ZEALOUS REPRESENTATION: as long as your client can cover the costs, do everything you can that is not a lie.
        • [how do you distinguish between a lie and bad zealousness/rule 11? The legal system, like its members, doesn't KNOW anything objectively. Every professional & nonprofessional does the following: he answers to his conscience [/preferences] & the consciences of those who can hurt him. Professionals cherish their club membership and can be blackmailed accordingly. Formal club ethics only matter insofar as the club can blackmail, contractually and/or legislatively. "A lawyer is a person who markets himself to a client of his choice, then does whatever the fuck he wants until he gets fired -- or disbarred." Ethics thus is only tangentially related to ethical behavior: Ethical question get hairy, but ethics-as-power always gets answered: You can monetize questions that way, in terms of risk assessment. * Sure, blackmail solves prisoner's dilemmas. But when work is hard to account for (quality hard to surveil, e.g. translators / BCG / behavior of children & lawyers), P-dilemmas get solved by internalization-superego-brainwashing. Rapaczynsky is wrong to think this is unique to the pre-modern state. * A lot of us say we want justice, (mothers'nachas) … but it seems we have chosen the wrong profession to do that, unless our mothers are dearly deceived: To achieve justice (including self-help), Correlate justice with prestige -- help others do the same; help others trust you to help them * Like every professional, the lawyer chooses his clients to maximize his nachas-product in the eyes of his mother. Our mothers are as hypocritical as we are: they like to hear words that can be syllogized to justice, but see conspicuous consumption Lawyers, more than any other professional, can syllogize the rhetoric of conspicuous consumption to the rhetoric of justice. Nothing uniquely justice-ish or powerish about JD and bar-passage (esp. “getting a JD opens doors, and gives access to levers of power, such that a person who wanted to do justice, would be wise to get a JD”)
* visible tension IN ME between justice and cynicism -- "I want power and hate myself", the mark of a surgeon's "son," is EXACTLY the character of persons will get power -- e.g. in the allegory of the cave, the folks who bother leaving the cave and learning how things work, are motivated by condescension and impatience towards folks in the cave, and a fascination with, literally, how shit works. * Notice the irreverence of the surgeons in MASH. We want to be surgeons of Leviathans. Isn't that what Spitzer is getting punished for? * "chronic irreverence:" criticizing everything Eben and the readings say: e.g. attacking functionalism (Jerome Frank) in E’s class, ; using functionalism to attack tort law (my B- and my downhill epic); elsewhere
        • Define irreverence. ("Being nice to everyone except the people who can hurt you.") I thought it was unique to me, but Fagan says we’re all addicted to it.


BRAINSTORMING (the following is NOT ready for comments)

(the PAPER will aspire to remove MOST of these and make the remaining ones COHERENT)

There is a difference between philanthropy & charity: only in one can you see what you're doing

  • Socrates said everyone knew justice; then we were born, forgot it, and are struggling to remember it.
    • I can only remember INJUSTICE, i.e. crying when I got pushed
      • Justice as self-defense: when mom told me to practice cello, I didn’
      • Altruism as means to that end: convincing others that the people pushing me were pushing them too.
      • Hating movie previews: my friends raced to see them; but I said, "I didn't pay to be fucked with." (Andrew, age ten, learning that marketing is brainwashing.)
      • Flirted a few months with being a ballerina. Finally decided to be a writer.
      • We chose law school because it seemed the least-risky (viable) way to express ourselves in a way we enjoyed. Either the market, or us, is to blame for our not being freelance writers ... But we make the market. (consumer preferences is "just us.")
    • My disenchantment with law school: Not where/how a person facile with words can maximize his power/pleasure. e.g. limited marketing (client base/character) & innovation (fixed law)

* Rousseau’s lawmaker = anyone who is observed

  • all acts are externalities
    • (good or bad?) (long term or short term?) (so labeled by a court, or not?))
    • Education, marketing, campaigning, trust, map-writing -- how do we distinguish these from propaganda, exploitation, slavery, campaigns from propaganda? -- how do we distinguish positive from negative externalities?
  • We’re going to have to be comfortable with the threat of a slippery slope – that sharing is telling others what to do. There's no such thing as freedom: nothing is NOT “responsibility” and “duty”.
    • My enemy: Objectivists.
      1. whose "self" is a thing whose changes they call "choice" -- i.e. whose changes, which they believe can be fully accounted for by internal changes reflecting outside changes, they believe they can call "spontaneous." PROBLEM: the model is full of people who make very bad choices.
      2. who assume the sort of self that can choose, "What degree of altruism to take?" But who decides the boundaries of Self that separate altruism from selfishness? That's the OUTSIDE SELF.
      3. We're living in a hearsay society -- magic (oaths on bibles, or other grounds to trust in character) is the very evidence we seek to "weigh".
* The cave-leaving intention: Ask yourself some simple questions about mazes, like, "How do you get out of a maze? How do you know when you're outside the maze? Under what conditions is it IMPOSSIBLE for a maze to be exited?"
  • Mellifluous answers, right or wrong, are cave-leavings: e.g. human existence is one of those mazes that can never be exited (for any number of reasons -- though I prefer "because the maze was built around us at the very moment when we were built"). We are surrounded by people who can solve problems in a way that looks, to us, like MAGIC. That's the closest evidence that an EXTERNAL observer can use to measure the likelihood that another person has ACTUALLY been out in the sun; a person cannot make the judgment of himself. It comes back to the basic Plato/Socrates paradox, "which one was the prophet, and how do we know?"
  • I have been remembering Jacques-Louis David's The Death Of Socrates. I cannot decide whether David wanted us to imagine Plato as physically present at Socrates's execution, or whether David wants us to imagine Plato's texts as "constructions" ("lies") in which he pretends to be an unobserved fly on the wall. It dissatisfies me -- and rouses me to action -- to think that I cannot "learn" whether Plato was merely a faithful journalist (stenographer), or was the ultimate Jayson Blair -- it is harder to decide, because there seem to be two Platos; the second is touching Socrates's knee. It also dissatisfies me to know that we cannot tell prophets from normal men. And that we cannot tell power from justice. Strict liability from negligence. anything from anything. DIGNITY FROM PROSPERITY. ANOMIE FROM HAPPINESS. ROUSSEAU FROM HAYEK/ADAM SMITH. ERNST BLOCH FROM PETER DRUCKER. * "lawyers are interpreters -- memorizers of dictionaries; professors write the dictionaries." i.e. professors DEFINE justice, lawyers FIND and SIGNAL it. (but that sounds specious -- perhaps the difference is the type of client and the cost structure. i.e. Tenure as the means to attain independence; publications as the way to attain prestige -- a question of how each vocation signals-out its most prestigious members. NARRATIVE CONTROL: who decides what narratives are permissible? WHO MAKES CULTURE?)

      • I’ve always sympathized with Marxists and Christians. Not that I’m swept up by their logic; but my gut says we’ve not yet defined “progress” or “justice” so that it empowers us to stop making things worse.
      • I strongly suspect Eben's message would have been more welcome last year at Admitted Students Week, but I tried it this year and got called

* Describe or demonstrate the concept of "sheep in wolf's clothing": Convince liberals to read Peter Drucker, teacher of backhanded functionalism, the non-atheist version of Mother Theresa (“in order to maximize shareholder value, you need to be socially responsible.” What a noble lie!) (WHY do I always have to write essays starting with the assumption that no one's heard of Peter Drucker? There are three people in this world I'm incapable of questioning: Darwin, William James, and Peter Drucker.) * False signals: But, is the cost of law school so high BECAUSE Dean Schizer expects that we'll make so much money from Big Firms? ... are Schizer and Big Firms MAKING the decision to go to law school be a decision to work at a Big Firm? ... who do we blame? the Big Firms are capable of making the Schizers think that what they do is prestigious (or whoever it is who appoints our deans) -- but Wasn't it the Saintly Barbara Black who started CLS down the corporate law track, anyhow? On the subject of good intentions and hell, who needs allegories when you've got real life?

  • I believe that the corporation is the best cost structure for marketing and innovating visions of justice. My 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, Columbia law professor, and nostalgic former Marxist (i.e. my thesis adviser). That antidepressant will be consumed ocularly, i.e. in the form of books, essays and editorials. My business plan is to obtain tenure at a university, so that my factory will never be overwhelmed by costs. My challenge is believing that such a product exists. I don’t even know whether publicly traded companies believe in it—whether, for example, pharmaceutical companies agree what degree of external regulation the industry should invite upon itself, in order for its members to maximize their sum and share of short-term and long-term social value. I do not know how much of a socialist my books should portray me as. 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.
    • Die Gedanken Sind Frei : isn't that a name for an antidepressant?

* The difficult dichotomies of justice v. power; justice v. prestige; justice v. utility; justice v. legitimacy ... sum up my version of functionalism here ... tell the story of my tort law gasket-blowout, where I "learned" that the terminology of case law and legal academia -- tell the story about my security guard, the only guy who understood what I meant when I said that "the law is BULLSHIT." * occams razor impossible to prove (variables and processing power: every theory can be characterized as having visible and invisible character, facts & ideologies, sense-thoughts & value-thoughts -- THE CHURCH WAS RIGHT AND COPERNICUS WAS WRONG * A tenured professor is the only person with accountability to no one except himself (especially in the age of organizations) (except that he wants to look good in the eyes of certain people) * Step 1 the rhetoric of choosing a client (My mock firm interview "wsj creating value" & got laughed at * But business students don't laugh at that. Litigation does capture market share, improve productivity, help industry. But it does so clad in the rhetoric of justice. Commodification of justice – for money you could make your cause just. e.g. Steve, "Dershowitz thought OJ was guilty, but not guilty beyond a reasonable doubt." but Guilty beyond a reasonable doubt = a jury would say, “execute him.” That’s something Dershowitz CREATES. He marketed oj to a jury, using legal language, IN ORDER TO MARKET A NARRATIVE OF RACE RELATIONS TO SOCIETY. Corporations do the same thing – marketing products that people don’t yet want. A brand is marketing, condescension but also a noble lie (information)--The surgery analogy again—to be a good marketer, or a good surgeon, you have to treat the body as an object.

  • I have a nightmare, that in my lifetime technology will continue to improve. And as the bread and circuses grow more complex, Americans will lose faith in anyone’s ability to predict their own tastes; and as the logistics of distribution grow more complex, Americans will lose patience in ability of a centralized decision-maker to provide the RIGHT bread and circuses. Bureaucrats will replace legislatures, and corporations will replace bureaucracies; Marketing will replace elections, and all values will be monetized; Senates will be usurped by Boards of Directors; Presidents will yield to CEOs; ... The publicly-held corporation will assume the function of the state ...
  • I have a dream, that one day Boards of Directors will stop firing CEOs who don’t brainwash the species into “voluntary” servitude.


Webs Webs

r5 - 21 Jan 2009 - 22:56:32 - IanSullivan
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