Law in Contemporary Society

Summing up before the final stage of this course

By now, at more than four-fifths through the course, you should be able to look back and see the contours of what my plan was. There were two points I wanted to establish.

GOAL ONE: Test some techniques that permit creative thinking about the law

That there are ways of conceiving of The Law, such that the substance of what we are thinking/talking/taking exams about, is malleable.

    The tendency in law school is to discuss that malleability under the heading of "policy": When we relax the putative disciplinary activity (analyzing cases & holdings), we're told that we're making policy judgments.

    I think that’s just a gesture in the general direction, of that thing I’ve called "thinking creatively about law."

    Starting in the 19th century, a direction was laid out for lawyers, towards a multidisciplinary understandings of social action. But at some point, the economists imperialized those methods: soon, their way became the only acceptable way to “talk about "policy."

    I try to offer you some alternatives. We want to look at human action from as many perspectives as possible, so that the lawyer, faced with a client in trouble, can choose between a number of understandings of the relevant segment of social life.

I did not present these as normative viewpoints. I justified these perspectives in descriptive terms, in terms of descriptive models that we agree on: biology, psychology, sociology, path-dependent historical accounts; and on up, into philosophic inquiry--shared principles of ethics, morality, political engagement.

And I demonstrated how ordinary persons—such as lawyers looking at lawyer-stuff—could make these viewpoints relevant. Together we GENERATED QUESTIONS, that could be asked AGAIN IN NEW SITUTIONS: “What can I learn about [this subject] in an [e.g. psychological] way?

Permitting you to ask, Where might one multiply knowledges in order to add meaning to the present data?

I don’t care whether you find yourself more APPEALED to one particular way; everyone has favorite. My goal, rather, was to suggest that
  • the ABILITY TO THINK IN MULTIPLE MODES is accessible to each of you;
  • that the variety of modes is large;
  • and that the use of the variety of modes is
    1. liberating B. valuable

LIBERATING: in that in frees persons at this stage in law school from the belief that there’s just one right way to do it.

VALUABLE: Because the social role you are aspiring to is (hopefully) to be sellers of KNOWLEDGE rather than of time.

Which brings us to the second theme:

GOAL TWO: An appeal to hang onto the license.

That is, a characterization of your potential work-lives:

“That the usual outcome of a legal education—namely, getting a _license_—which means permission to either have, or to turn away, clients—which is the index of _power to create and shape a practice_—
is not an historic accident only,
but is also an effective, human, way for lawyers to work.

Effective, that is, in contrast to the alternative way that has developed in the last hundred years: i.e. to give up the license (the right to choose clients—the power to choose where one’s powers get applied), IN RETURN FOR A JOB. That exchange is so popular, that for many purposes, it’s the only one discussed. But it is possessed of enormous drawbacks. And, in general, it is enormously unsatisfying to the people who take it. So my goal was, for that branch, to say, YOU DON’T HAVE TO; and you probably shouldn’t.

But of course: giving up that license (or pawning it, if you prefer—merely risking not abandoning it, but at a risk that my empirical study shows to be immense)—giving it up, in return for a job, is more than just personally tempting: it is so overwhelmingly DESIRED OF YOU BY OTHER PEOPLE, whose convenience it serves—whose own lives are made simpler—so much more convient for them, for stupid reasons—that they’re not merely passively happy in your making the worst choice, but consciously conspiring to make you make the worst choice.

Including, but not limited to, those whose numbers are better if you conform yourself to their can, and gratify them with a smile when they weld the lid on, and give them three cheers as you’re sent down the conveyor belt to the purchasers they’ve arranged to be waiting for you at the other end.

Their means is to make you frightened and insecure; i.e. ignorant and uncurious. Because: if you knew that you could come out of law school without losing your license, you’d have an overwhelming to do so—and since it’s much easier for them to specialize in just one shape of can, it’s in their interests to keep you too ignorant and uncurious to learn that you could not conform to that can.

The consequence, again, that I’ve seen: is that people decompose the question,

How do I use my skills to have a good life?

Into a series of competing questions:
Do I use my skills to get …
a meaningful life?
paid enough?
Achieve a work-life balance with respect to the non-work parts of my life I care about?


the actual question is: how do I used my skills with respect to getting smarts, to give me the work, AND the non-work, that I care about.

Admittedly, no small task for a human in any era. But, traditionally, the privilege of the richest and smartest.

Julian Baez: How did you pay your debts?

Eben: I had a low-debt way of life: I had other marketable skills; I rented didn’t buy, didn't desire flashy things.

Now, in my mid-forties, I decided to make a way for other people to do things, in what you might call a high-debt way of life. Thus, I have every year a fresh debt of 2 million dollars; because that's what it costs for us to keep our doors open.

Which means that every year, and while I’m talking t you, I have to find 2m illion dollars, or else I’ll have to fire people I really care about. That feels to me the same way is it does to you, except that I don't have the option of bankruptcy. (Except in the legal way.)

So, every year, I find 2 million dollars and I give it away to other people.

You understand what I’m trying to say about the debt? The debt’s a state of mind. Smart people can get money. If you need money, get money. But you shouldn’t get it by selling your autonomy. Because there isn’t enough money to justify the sale of the autonomy. In the long run, it isn’t worth it.

That just opens up questions; but at least we are asking the right questions.

We ought, if we can, to begin using this course to answer questions like that: Because what we’ve done, so far, is the foundation for that inquiry.

Student: Can't you be a Partner, and do all the things that you want to do?

Eben: You can call that an option. But [notetaker blacks out]

The system asks you, to mortgage your youth, when you are least encumbered; the system asks you, during that part of your life, please chain yourself to the desk, and understand that you sell your time to us at a fixed price whereas we sell it at a variable rate; such that we would be silly not to tax every neuron of yours at much as possible -- that’s "leveraging assets" -- which means taking your brain, when it’s young and fresh and full of new ideas, and selling it to someone for a long time.

I know a lot of law firm partners, who when they were associates thought they would have the practice of their dreams; and they don’t. I know a lot of partners who were chased out of their practices because their ideas conflicted with those of _. That's one of the reasons people like me _need to have our own practice: because a lot of people get an offer from Microsoft -- "I'd love to give you 9 million $ but your partner is in my way" -- and that has a remarkable way of breaking up partnerships.

So, I say: every time you are offered to sell now, in order to place a bet on later, You ought to closely scrutinize:
because every time you are given a _ to sell what you certainly need, _ Because every time, they are afraid that they won’t be able to _ on their own.

I hear this: “I went to Columbia – they didn’t teach me how to be a lawyer, they taught me how to be a law firm associate."

But the system has a responsibility to teach you what it is you want to learn, not what it's easiest to teach you.

The institution could have said, "We don’t have any room this year for lawyers, just for dentists or journalists.”
In fact, YOUR option actually has been, to use the university to teach you what you want to learn.
Which is to say: your option has been, “How can I learn to live well?”

Student: Is this about what classes I should take, or what?

Eben: [note taker blacks out]

REMAINING GOAL: to frame and answer questions permitting us to use law school to teach us to be lawyers

We’ve got one more exercise in which everybody will participate, and everybody will get the same grade.

My goal with that exercise, is to begin to compile and answer the real questions, as to what it would take to come out of law school prepared to be a lawyer.

I suggest that we use the exercise towards that question, “why you’re here” – not just this spring –

I expect that you should use those answers to collaborate – that it should be a resource for you, to identify what alternatives there are, in your lives, really.

Bcause there are many questions:
How WILL I get the mentoring I need if I’m NOT sold out to a law firm?
How could I manage the risk?
How could I cover my costs?

I am providing you the tools, now, with which you can assemble the other side of the story, later: so that going through law school you can say,
HERE is what we don't know yet, in the __ of alternatives.

Of course, for those three years, I will contribute. So will eighty people, and then perhaps twelve.

Femi: I’m looking for an example. In your personal life, how did you learn to utilize your license on your own?
Eben: No, I went to Yale: I wasn’t taught to.
Femi: So where’d you get that knowledge?
Eben: Well I’ve been out of law school for a while. Worked for judges, taught ...
I invented arrangements in the world. Things worked economically, partly because I developed my capacity for getting: I learned how to ask for money, a things that most law professors don’t know how to do, because they’re shielded by immense bureaucracies doing it for them.
Femi: It seems that one of the questions you’re asking is, How do we learn to use our licenses on our own while in law school. Eben: TO PREPARE to be able to use the license on your own outside the firm.
I don’t expect you to acquire two decades of experience because we made a Wiki. Did Abraham Lincoln know how? He learned. And he was a good lawyer. And out of it, he financed the love of his life, which was politics.

It’s a funny thing because as you walk through streets of New York you see signs, “X & Y attorneys at law” and you think, “well, they didn’t go to Columbia, mere legal scum." But they’re doing it! But you think, I couldn’t do that, I’m too this, I’m too that – But it doesn’t make sense! If the system is one in which persons with fewer advantages than I can do that, how come I can’t do that?

Femi: Why can't you engage in the mass of trial-and-error in learning to use your license, while at a firm, interacting with great lawyers? Eben: great, if that’s what actually happened. Femi: but that’s what you did Eben: I worked at a very large law firm, as a summer associate ... [note taker blacks out]

The reason it’s hard to get out of the army is, IT’S A TOTALIZING INSTITUTION: They possess mechanisms to make you feel a certain way: insecure, self-doubting, but hoping to grasp the brass ring in the end. ... The biggest problem I have with the times I’ve been told that, is that I don’t see it actually occur very often and I know why.

One of the good things about hard choices that you make yourself, is that they’re hard choices that you make yourself.

Kate: you mentioned students that did something different. How?

Eben: sell your services for prices you set: don't sell you time on an outputs contract to a middleman.

Alternatively you maybe decide while you’re here, to become an expert in writing Greenmail complaints for law firms. Law firms always have a shortage in persons able to write Greenmail complaints. There was a guy in the clerkship mafia in my generation ... And said “I bought an island off the coast of Maine, I’m leaving there. _. Yes or no, I’m leaving next week. And Jones day said “sure” Another colleague who’s a talented patent lawyer – used to practice @ 10th & boradway – who decided with his partner in life that it’s important to be able to ski more often, so they put the lawfirm in cyberspace and moved to _ Colorado, and practiced law from there, while skiing.

The degree of possible imaginative resolution how to practice --- or at least __ how to practice –

Julian: how can we develop a niche like this in law school? Eben: AH! I believe we are now ready to begin making a Wiki Julian: But your’e the one who knows! (laughter) (Kate: we do know, we’re just scared!) Eben: I can help you find answers—that’s what being a teacher means. But for god's sake -- for me to become the _ of first years students? If you have the technical skills I happen to need, SURE, that would be a traditional way to work. We begin with the traditional recruitment system; I could see how to put you on the payroll; but that would be wrong. I’m not starting the House Clinic: I don’t have the will, the resources, the right.

The question is, how can you frame good questions, and how can we, together, frame answers.

Julian: but to fight fear and insecurities ... [blackout]
Eben: Yeah, great: in order to fight fear, what I need is certainty.

Let’s work together. The exercise in imagining what we might do, and what we might need in order to do it, is a good exercise.

Or to put it as I’ve put in the past, Law school is an imagination test. Almost everybody fails. The most popular mode of failing is Not showing up for the test at tall. So I’m suggesting that collectively we prepare a little bit, FOR THE IMAGINATION TEST. Those who don’t want to take it, don’t have to take it. It remains optional. My observation is, those who skip the imagination test wind up unhappy.

The nature of the risk, and the nature of the reward, and the nature of the problem presented by stretching yourself --

I didn't write the second version of the GPL -- I needed to find ways to make deals without force. After a while, things got more complicated. There was an appellate brief to write -- though I'd done that before.

The first time I found myself sitting in a senate aide's office, trying to have a discussion about free world's need __, with lobbyists from Hewlett Packard & IBM on either side of me, I thought: "A new kind of practice I'd never looked for, which my client's needs created for me." And so I learned ho to do it. Now, in the middle of my career, I find myself mostly running a counseling and advising practice -- a very diferent practice than I'd trained myself to do, which was mostly litigation focused. The opportunity to stretch didn't worry me too much. And that was true, even though I didn't take malpractice insurance. ... and it didn't bother me that I'd gone to Yale and wasn't taught.

Julian: So if I understand your proposal for the Wiki ... we're going to formulate a list of questions that you'd ... [blackout] ... risk averse.

Eben: Questions that you'd like answers to. I'll help you.

Jesse: I think a problem is that in law school, we're not used to collaborating: It's hard to establish trust with other people when we don't trust our own skills and knowledge.

Eben: yeah, why is that? I'm sure you're not alone in the observation.

Student: Because we can't distinguish our smart ideas from our stupid ones, so we share none of them.

Eben: Every year I see so many ... It's amazing how much condescension goes on, but you're not supposed to face some child dean whose idea solution to diversity is to send you off to different law firms. You're supposed to face some law-statesman, who says, We need everybody to become the best that they can become, which is the real honest to god truth.

[ stenographer spaced out ]

But the LAW FIRMS have an incentive in keeping you the way you are -- atomized, uncertain ...

You want proof? every one of you who participates in EIP in August is going to wind up feeling like shit. If you were as dear to me as life itself I would give you the same advice: You will feel pissed on if you go to EIP.

One more thing: the school has a panic drill about the third years who don't have jobs. Karma Trouble, NYU sneaks around the curve ... So if you're accustomed to this place you'll know, that every April they'll go into overdrive to find jobs for those last three or four people who are VERY HARD TO SUIT. You wan to fool them? Wait until April, then put a short list on their desk: "this is where I'd like to work. Make the calls." They can't afford to have little cans of tuna fish rolling of the assembly line and into the corners. I swear, you wouldn't believe the truth if it's told to you.

So maybe the thing we do is to ask about a lawyer, since we've got a lawyer to work with today.

So who's judge day?

She's a good government lawyer. What makes her a good government lawyer?

What skill does she use to figure out when the argument is over? She discerns. That is to say: good lawyers are catching the imploicit. they're separating otu enough to see what's tehre. that's discernment. She's good at that.

So what was it like being a junior lwyer at the FTC? She had a policymaker under her eye; and she did the work, in order to have the privilege of seeing how it was actually do be done.

What interests her: how is law really made? why is it the way it is? If you've started wonderign that at the FTC, you'll __, including that judges don't make law. Now she's also been a prosecutor; she's got discernment, balance. The theory is

[ notetaker spaced out]

she's got slut pasted on her. That's her unspoken label (though all labels are unspoken here).

[ notetaker spaced out]

So she told the story about the guy on the subway, the lawyer. how's he related to other lawyers, in her mind?

Links / resources

People asked a few questions today about Eben's career path.
Here's a Trash.YouTube clip about his choices in more detail.
Also, a clip on how to change the world.

-- WendyHuang - 10 Apr 2008

Thank you Wendy for the great links. "Standing on the shoulders of giants" is not the answer but it is an answer.

-- JulianBaez - 10 Apr 2008



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r10 - 31 May 2017 - 01:54:10 - TyCarleton
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