Law in Contemporary Society
Dear Professor Moglen,

I am writing this letter because I think you provide a vital voice to the Columbia Law School community, and because the time you devote to students in office hours and the work you do on the wiki is more than commendable and should be more common. However, though you are one of the most engaging and dedicated professors I have encountered at CLS thus far, its not all just peachy.

In class today, we had a brief exchange about Apple computers. There is more to the story, and perhaps you remember our conversation last time I came to your office hours, but that isn't important here.

Whether any of what Apple does environmentally is enough (it isn't) and whether greater strides can and should be made (they can and should) isn't the point. The point is also not to build up or promote or praise Apple, Apple products, Steve Jobs, Apple users etc. in any way.

The point is that you hide behind tenure and an aura of genius (no one disputes you are smart Eben, but your point today applies to you as well: there are things in this world you don't know.) to disparage all of us every time you make sweeping comments such as those today, and other comments that vastly oversimplify and polarize complex issues.

Usually, you will immediately attempt to justify this by saying "I'm trying to make you uncomfortable" or to "frustrate you" or ask whether we can't "separate the actor from the play," then allude to some greater but equally amorphous purpose (like encouraging students to use their licenses for justice). Like most statements of this kind, this is a misdirection. It attempts to disguise or distract from the fact that you are, in fact, simply pissing on us. (Eben likes to say students should not do EIP b/c it is an opportunity for firms with no jobs to offer to "piss on" us; thanks for the terminology Eben, I guess I have learned something)

I am tired of being pissed on, especially by a man who continually implies that he is morally against such behavior. I say "imply" b/c you have never quite said, that I know of, that you are morally against the kind of abuse you claim law schools and big-law firms dole out to law students on a frequent basis. You certainly imply, however, that you are against this as a matter of principle, because you believe we should instead be taught how to "use our license" for the the "pursuit of justice" (back to that old refrain).

I have come to the conclusion, that in fact you do not oppose these things you decry based on principle. Despite Apple being one of the less offensive major computer manufacturers with respect to the environment, you single them out. Why? Your constant disparagements of Steve Jobs, Microsoft, the entire financial industry, big-law, etc. are due more to personal vendetta than anything else. I understand you have ideological, legal and other kinds of problems with these entities, but that's not what you base your comments on.

If Apple switched tomorrow to computers so environmentally friendly you could bury them in your garden and your tomatoes and tulips would grow better, you would still have a problem with them. Its that closed operating system, the "flat keys," that they run hot, etc. Fine. But don't preach your ideology as gospel every alternate Tuesday and Thursday and decry people who don't agree as ignorant, heretics, or as (in your words) "having Steve Jobs looking up their assholes and liking it." It's unprofessional, unproductive, intellectually immature, and wrong. Not to mention it undermines your supposed goals.

If you have a real problem with these companies and practices, a real interest in your students, their pursuit of "justice," and possess knowledge that we don't, then do your job. Teach us.

I write this from the vantage point of a frustrated student, who came to your office hours interested in learning more about privacy law, and was instead berated for 45 minutes because I unapologetically own a Mac and an Ipod. I will not change my beliefs and practices simply to better coincide with yours. I will, and did, approach the question openly to learn more and come to an educated conclusion. When I tried to explain this, you called me a "moron." Again, unprofessional, unhelpful, and nothing but so much pissing.

I hope you enjoy your year off, and if you happen to change your mind about things, let me know. I have an extra Ipod you can borrow.

-- ArtCavazosJr - 06 Apr 2010

As someone who has been accused of flattery towards Eben (granted, by the man himself) it is probably redundant to explain the reasons I have a deep appreciation and the utmost gratitude for our Professor and his class.

I also find it interesting that nobody wants to touch this post when I know many of you feel strongly about how this class is run. But Eben has to give us a grade and nobody wants to piss him off, so I guess it is expected. All the power to you Art.

With respect to Art's criticisms I must say that the single most distasteful and upsetting part of this class is Eben's willingness to resort to name calling. I wish that Eben's brilliance would extend to his treatment of the people he does not like.

One of the legs on which this class stands is that of the presumption of kinship. We are all descendants of a mitochondrial Eve, and to hide this fact is to give ourselves permission to oppress what Eben calls the other. Thus, we hear Eben's eloquent insistence on the humanity's collective right to a fair shot. We owe the same respect to the Afghan children who are killed by our bullets, to the crippled Bangladeshi computer student, and to the hardworking librarians at the Supreme Court. Even more than respect, it is incumbent on us, as lawyers, to advocate for those who will need us the most. We need to save Joe Stack from himself.

It is curious to me, then, that this same respect is not extended to our kin who have been dealt a set of cards that have ended up to be most favorable to him or her. If we recognize that we are all kin, and that recognition demands a level of respect for everyone, it should extend to EVERYONE-- blood sucking capitalists deserve it just as much as misguided men who fly planes into buildings.

I find the name-calling offensive, rude, and demeaning to me as a student and as a person. It is the most resounding flaw in this class and every time Eben does it I cringe at how he is undermining himself and my admiration for him. Eben talks about the most oppressed groups of society with a level of empathy that is unmatched and that extends to his fight for freedom. I couldn't imagine him talking about stupid and lazy poor people, or homeless people who are idiots and morons. Unfortunately, I have heard him use these words with respect to people in his owner class.

I understand that from one angle, he sees our society as binary. The owners and the non-owners. I don't believe this justifies the different language he uses in talking about them.

I know that I do not have a license, but if Eben were my client I think I would advise him that his choice of words blunts the impact of his teachings and thus, his fight for freedom. -- NonaFarahnik - 06 Apr 2010

I guess this is what you would call a "concurrence", since I agree with Art's point but not all of his statements. When I first got to Eben's class, I really did think his words were gospel-- but it didn't take long before I started disagreeing with many of his points. I found myself frustrated by his one-sidedness, but I figured this is part of the experience.

I agree, his personality in class is more of a TV character than a professor, but I do believe that this serves some compelling purpose.

As far as the name calling and disrespect of his colleagues, that's something I don''t understand. Based on conversations with some of my professors, it seems Moglen's blind adherence to ideology has created a number of social conflicts. On the other hand, I also talked to a professor who described him as a gentle and kind friend.

As a student, I appreciate the effect of his class and how his teaching style furthers his purpose. At the same time, at some point I want to meet Eben the person, not simply the Moglen I know from class and office hours.

-- MikeAbend - 07 Apr 2010

Let me preface by saying that I appreciate Eben’s dedication to teaching and his efforts to make us think critically about the law. That being said, I think some of the criticisms expressed above are legitimate. I certainly do not think we should be coddled during our time at CLS, however I do not think our professors should routinely denigrate their students either. While there may be utility in unabashedly criticizing students’ ideas and being confrontational, Eben’s pedagogical methodology is too often singularly characterized by these elements. Without providing a good cop to complement the bad cop, Eben’s teaching often tends to be more frustrating than educational. Undoubtedly, Eben has the knowledge and passion to be an absolutely fantastic teacher, but without toning down the rhetoric and being a little more affable, I don’t know if he will ever be as good, or effective, as he could be.

-- TaylorMcGowan - 07 Apr 2010

I agree that calling your students names probably isn't the best way to get them to think creatively, but here we are - thinking critically on a blog.

@Art: This was ballsy. But unfortunately I think you shot yourself in the foot by stooping to the level - a low one, if I read you correctly - of saying that a professor is "pissing" on you. If nothing else, I think this class (and conversation) should make us try to know as much as we can about what we intend to argue - and to be able to take on the Ebens on the opposite side of the table. (There are a lot of morons out there.)

-- JessicaCohen - 07 Apr 2010

Also- I guess this is for Nona, but I think the name-calling makes us cringe (I'm talking about professors/the Dean and not students now) because it's those high-powered individuals to whom we are supposed to defer most. Why would Eben call a random poor (powerless) person "stupid?" We aren't up against them - nor are we living according to their rules. The crude name-calling - again not always justified - pulls the rug out from people we often don't question.

-- JessicaCohen - 07 Apr 2010

The respect we extend to each individual should not turn on what level of power they have, but on the degree to which they are human.

-- NonaFarahnik - 07 Apr 2010

What does "degree to which someone" is human mean?

I don't think Eben rails against people with power because they have power. It seems to me that it's the misuse/misallocation of power that really pisses him off.

And now I'm in this strange position of defending something I could never see myself doing. Anyway. If this about favoring "principled" arguments over empty epithets, I'm with you. I guess I just don't see it that way. Ask Eben why he thinks someone is "lazy and stupid" and he'll tell you.

I also don't want to get into this awkward debate over why our Professor speaks the way he does but it seems that calling people lazy and stupid - and other shock-inducing phrases - is meant to help us overcome our psychological predispositions of thinking professors at CLS and other figures can do no wrong. You say that if you were his lawyer you'd tell him not to curse or whatever and I guess some of it (especially knocking students, again) is unnecessary but I do maintain that it's sometimes his rhetoric that makes him so thought-provoking.

-- JessicaCohen - 07 Apr 2010

I personally do not like being called a moron or stupid. HOWEVER I think anyone who is truly offended when Eben "attacks" them, etc., needs to look beyond the surface and just focus on learning something from him. Who walks into a lion's den without expecting the lion to react antagonistically? And yet, field scientists everyday venture into the den risking the danger in order to observe the lion and learn something valuable. Maybe I'm exaggerating a bit, but I think some perspective is needed here...

-- KalliopeKefallinos - 07 Apr 2010

Unlike most of you, I do like being called a moron and stupid. Someone needs to do it.

-- MatthewZorn - 07 Apr 2010

@Jessica- I mean if someone is a person they are a person.

I can't articulate why I feel this way. I don't mind being called a moron or stupid either. I just feel like it undermines everything else Eben has to say, and creates a level of animosity that might not help us get to any end except for attention in the general law school community. For that reason, can somebody who knows how please restrict this page to our class group? Thanks.

-- NonaFarahnik - 07 Apr 2010

Is it the name-calling, or is it the EATING ego? Yeah, it sucks to believe in something and have it be exposed or for someone to call it a lie or a fraud. I have beenthere. Eben has been paid to program computers since he was 14, so I would tend to defer to his judgment. I think one part of being a good lawyer is knowing what you know, but at least as important is knowing what you don't know. While not privy to your office hours conversation, this is what I gleamed from your in-class conversation with Eben.

-- JohnAlbanese - 07 Apr 2010

Usually, I laugh when Eben does these things, or I chalk it up to his method and move on. Yesterday I happened to write the above.

@ Jessica, I'm sorry if my use of Eben's metaphor offends you, but I think its obvious to everyone that is why he uses such parlances. They offend. This has a certain power and he wields it. For some, this apparently makes him a "lion." Whatever. And I didn't say he was doing it to me, I said he was doing it to all of us.

I'd like to reiterate that there are a lot of things I really like about this class, and its professor. We discuss topics we never could in any other class, and learn quite a bit in the process. I also agree that most of the time, most people should just roll their eyes if they don't like what Eben is saying and pay attention to what he says next b/c it might be something really good. But that's not a free pass. Not for me at least.

I want a license because I have seen the kind of disrespect that people direct at one another. Open your conlaw book and you can see plenty of examples of it if you want. Most of our greatest crimes against humanity boil down to a lack of respect: for people, for life, freedom, thought. Respect is something you demand, and apparently we're not. If you think you like being called a "moron" then good luck to you. As for me, I have seen loved ones disrespected by slurs and actions worse than that, and I understand the long-term harm to entire communities that such disrespect can foster. I may not yet have my license, but I can certainly call them as I see them. Fortunately, this is just a class, and I'll soon have more important things to worry about. But while I'm here, and until I have my license and bigger fish to fry, I'll demand the same respect for myself and others today that I expect to fight for with my license tomorrow.

-- ArtCavazosJr - 08 Apr 2010

I’m not someone who participates in class, or puts himself out there during office hours. Maybe this makes me a coward, which I can accept, but I also really like when he calls other people “morons.” It just seems to come so effortlessly, and with such conviction. If it’s all an act to ‘shake up the law school experience’ (which I do not believe is the case here) then he sells it well enough. I have the highest respect for everyone in the classroom, but come on… sometimes, we’re wrong about stuff, and in that instance, we’re moronic and idiotic and etc. It’s humbling for some, entertaining for others, but I really don’t see how this type of blunt honesty can genuinely offend anyone in our class, or cause 'long-term harm to entire communities.'

On another note, from my perspective, the original entry up there unfairly frames the exchange during Tuesday’s class. I wasn’t in office hours, so I probably don’t have the whole picture, but it seemed that the environmental concerns raised by Eben were tangential, and did not specifically target Macs. He said that LCD power source (or whatever it was) was in every computer in class (right?). I also don’t remember him arguing that laptop heat management issues are confined to Apples… Anyway, I thought his broader point was that its super toolish to pay a premium (let alone that much of a premium) for a computer that so effortlessly takes away the consumers’ ability to modify/customize it (pre- or post- sale). Also that the store’s extravagance annoys him.

-- JoshuaHochman - 08 Apr 2010

I have found myself wondering why Eben sometimes takes such a demeaning tone toward his students. I have also noticed that he often refuses to genuinely consider arguments from students and simply brushes them off as irrelevant or poorly conceived. However, it seems to me that Eben really does care about our education and well-being, so I tend to believe these are strategic choices. That said, I don't know if it's the best approach.

On a few occasions, I have been frustrated by how dismissive Eben is with students who disagree with him. I try to genuinely consider the issues that are raised in class, but when Eben refuses to concede even the most marginal argument in opposition, or to honestly rebut others, it's impossible to really delve into an issue. The example that comes to mind was in February when we had our "Grades don't matter" debate. If I remember correctly, Eben wouldn't even acknowledge that getting good grades will help you land a big law job out of school. The discussion then begins to lose credibility. I think a better approach would be for Eben to concede certain modest points and genuinely explain why he disagrees with others. Good grades will obviously help you get a job at Cravath. I believe the point Eben really wanted to focus on was that working at Cravath when you're 25 isn't what you need to be successful or happy. But if you want us to engage in the argument with you, you can't start by denying the premises that we know are true.

But maybe Eben isn't trying to walk us down a path. Take the same example as above. There was something genuinely frustrating about not getting the answers we were looking for. Satisfaction has a way of ebbing in a way that frustration doesn't, and maybe that's the point; not only are you not going to get the answer you're looking for, you're not even going to get the argument you're looking for. That means you're going to be annoyed. You're going to be mulling it over for the next two days. And you're going to figure out why you actually disagree with the extreme viewpoint being presented in class. Personally, I don't think this is more effective than a back and forth discussion, but I'm just trying to explore possible explanations for why this method may be desirable.

To build on Jessica's point, this class has engendered participation in ways that none of my other classes have. Shortly after we turned in our first papers, I was at a birthday party on the Lower East Side with several other students from our L&CS class. For a few of us, the major topic of discussion that night was what we had each chosen to write about for Eben's class and why. Even at the time, we took notice of the fact that we were actually excited to talk about a law school class on a Friday night. Perhaps there is an argument that the fear of insulting red text inspired us to think about these papers in ways we otherwise wouldn't have. I certainly was excited to talk about my paper, although that apparently didn't help me avoid a ton of red text. (On the upside, I learned what 'jejune' means.)

-- DanKarmel - 08 Apr 2010

I think we can best discuss all this material, which is very interesting even to me, if we separate some of the pieces.

First, although Art's initial posting may give a different impression, he isn't actually saying that I called some student, himself or anyone else, "stupid" or "a moron" in class. I don't run a recording device in this class all the time, as I do in my other classrooms for other reasons, so we don't have tape to prove the negative, but although class is a theatrical performance and I use all the registers available to performers, that would be censurable conduct falling outside the rules I play by. Art is angry at me, and certainly feels, perhaps justifiedly, that I've been unnecessarily hard on him in a private conversation—which being private I wouldn't talk about here except that he's brought it up—but Tuesday's class conversation, as Joshua Hochman noted, was until its last quick exchange, not personally about Art at all. He has criticisms to level that I want to respond to, but I think we should be able to take off the agenda the most inflammatory charge he seemed to make, but wasn't as far as I can tell actually making, and which would not be justified. The particular phrase "lazy and stupid" was applied, as people will remember, to law professors at Columbia Law School, not to students, and whatever else may be true about my colleagues, they can take care of themselves.

Nona, on the other hand, is specifically criticizing my class "name calling" with respect to non-students, particularly corporate entities that own cultural or intellectual property, and the oppressors of law students both in academia and in firms. Her criticism is that those portions of my performances make her cringe, and are, as she puts it "blunt[ing] the impact of his teachings and thus, his fight for freedom."

Dan Karmel speaks for many in raising two other criticisms, that I am sometimes dismissive of student arguments in class, and that I am "insulting" in comments on written work.

All of these criticisms are seriously-intended, useful to me as well as to the people making them, and deserve considered response.

I want to begin with Dan's two points, and I want to begin there because I addressed them, prospectively, at our first class meeting. I said then, as you remember, that people were going to get cross with me for cutting off student arguments, or for being dismissive, and for being hot rather than sweet in commentary on written work. I explained then that from my point of view, these feelings, which I recognized would be strongly felt, come from conflict with a basic necessity on my side. Editing, I said then, is a job that cannot be done with primary or even secondary concern for the personal sensitivities of the author. The only way it can be done, I said, is with a degree of candor that will always be, and will much of the time feel like, brutal honesty. I told a story on that first day about an old friend of mine, a former criminal defense attorney in private practice, who has been a professional journalist for more than a decade now. I said that he recently described himself to me as a sexual assault survivor after completing an edit with the very professional and accomplished editor at the famous magazine where they are both on staff. I said that the very nature of his immensely exaggerated metaphor showed just how complex and fraught the nature of the editorial relationship is. I warned that I was acting as an editor of our class conversation as well as all the writing here, that there would be moments of hurt feelings, which as a human being I genuinely regret causing, but that I would nonetheless do the job in the only way I believe it can really be done.

So here we are. Nona has referred before to my "scary red type," and although she tries to be as appreciative as possible of my efforts, she, like Dan, shows here serious signs of wishing I were different in precisely the way I warned in advance I would sometimes annoyingly refuse to be.

One of the reasons I work the way I do, in this and all my other classes, is that I am fully, publicly accountable to the whole class for every comment I make on all the work done by all the students who work with me. Whether my editorial interventions are "scary" or "insulting," whether they are fair comment too bluntly or just bluntly enough phrased, whether they are productive or useless in helping people to write better—each reader here has access to all the information and can judge. I wish all teachers worked this way. That they don't is—allow me to amplify my earlier comment—lazy, cowardly, and stupid.

I am no different from those who criticize me in this respect: I have always found being aggressively edited an uncomfortable and ego-bruising experience. But except when it was conducted by inept editors, as it sometimes was, I always found it in retrospect, when my temper had cooled, a valuable experience that improved my use of language. Whether I am skillful or inept is in the end for each of you to judge. Experience suggests to me that you should expect your eventual judgment to differ from the view you take in the heat of the moment, when the web page on which I have been bleeding red ink is yours.

Nona's criticism points in two other important directions. First, let me state simply that the reason I talk with disdain and contempt for the forces of wealth and power in this exceedingly unjust society is to remind you as often as I can that this is precisely the lawyer's job. Our task, in Mark Twain's phrase, is to comfort the afflicted and afflict the comfortable. You are subjected every day to various forms of propaganda—from teachers, placement workers, and colleagues, among others—telling you that your real interest lies in propritiating power—in order to get a grade, an interview, a job, a client, a fortune, or a sinecure. If you come to believe this corrupting nonsense, society will in the end be worse rather than better for your presence in it.

Second, I don't want this class to be part of my fight for freedom: I don't think I have any business making this class about my work. We don't read here what I write, we don't talk in any depth about the substantive issues on which I work. And although I consider myself to have had some creative legal ideas, I don't use them as fodder here. Art says "If you have a real problem with these companies and practices, a real interest in your students, their pursuit of 'justice,' and possess knowledge that we don't, then do your job. Teach us." I am teaching two other courses this year that have precisely that purpose, and in your third year, when I get back, I will be teaching them again. Those courses too have wikis, and in those almost every word of what I say is recorded and transcribed; you are free to listen, read, and learn as much as you like. Here however, at this stage in your passage through law school, I am teaching something else, with which I believe that would more or less completely interfere. Accordingly, Art says, "I have come to the conclusion, that in fact you do not oppose these things you decry based on principle." But his conclusion is based on what I haven't talked about; even the "neutral point of view" taken by the Wikipedia advances the opposite interpretation. I think, in short, that Art is jumping to a conclusion, which is a habit I have called to his attention, as you know.

Which brings us at last back to Art's original "Open Letter," which kicked off the present conversation. Those who have no experience with the Cult of Mac will perhaps be surprised that in a document so full of hurt and personal anger there would be so much discussion based upon, and so much quotation from, Apple Corporation press releases. On Tuesday, as you recall, we were discussing Thorstein Veblen, who has been dead for seventy years, but who—unlike many famous dead people—has never been appropropriated for an appearance in an Apple advertisement. This is not because Thorstein Veblen didn't "think different." As I pointed out on Tuesday, Apple products are perfect examples of Veblen's theme of the superseding economic value of waste. They are glitzy, overpriced, underfunctional, coercive artifacts designed to appeal to the personal image snobbery of non-technical, creative people, breathing not just indifference but elevated levels of contempt for the very folks who pay way too much to buy them. Apple is a cargo cult; it makes hyperexpensive shiny things designed to ensnare consumers in a system that is technically and psychologically difficult to escape, but which integrates so completely with the self-image of the consumer that it creates organizational loyalty making it possible to sell cult members a lifetime supply of wallet-busting schlock with total predictability.

As those who were there will recall, Art asked me, rather pointedly, to give an example of what Apple could do differently. In response, I described the design and function of the display of the OLPC—technology invented by Mary Lou Jepsen—whose properties emerge from a culture of respect for the users of the device (specifically children), and which achieves fundamental innovation in performance, safety, power-consumption and maintainability as a consequence. When I finished this somewhat tedious technical example, Art asked me, again aggressively, what I took from it. I said, "that you don't know everything." He considers that belittlement, and is plainly very mad about it. I thought it was fair comment then, and I do now. I think it is patent that I wasn't calling him stupid, or even ignorant. I was telling him that there's more in the world than he knows about, and that he jumps often to conclusions on the basis of one-sided or incomplete evidence.

In the office hours conversation Art mentions, he did indeed ask me to explain to him more about privacy law. I didn't say, "I teach some courses on the subject, and you could take them." I did, however, say nothing to him that can't be found on those course wikis. Among those things, I said, "If you care about privacy on the Net and technological freedom, and you use Steve Jobs' stuff, you're a moron." As students in my other courses will tell you, and as you can hear yourself if you care to listen to the endless tedious recordings on the wikis, this was not a personal comment aimed at him, though he takes it that way. His resistance then was as concerted as it is now, and although he exaggerates in saying that it consumed 45 minutes—because the whole conversation was shorter than half an hour—his determination does indicate how successfully Apple has caused him to increase perilously his ego investment in his consumption.

The sacrifices of freedom and privacy necessary in order to live in Jobsville may well be worth paying for some individuals; I have no problem with that. I would never tell Art or anyone else what computer to use or what to run on it. What I told him then, and what he apparently bitterly resents, is that if someone can't see those sacrifices, I have nothing to teach him about privacy and the Net.

(A digression: When we made SFLC, my Legal Director, Dan Ravicher, decreed as a rule of recruiting that we automatically discard any job application containing a resume in Microsoft Word's .doc format. Anyone doing that despite our published instructions, Dan reasoned, surely was of no professional interest as a trainee or colleague. I was skeptical at first, but it has turned out to be an excellent decision.)

With those who believe my teaching could be better, I am in vehement agreement. I have been teaching for a quarter-century now, and I can count on the fingers of one hand the individual classes in which I fully lived up to my own intentions. There has been none this term. I think it is much easier to be a great lawyer than a very good teacher. It may be worth remembering once again that teaching is a performing art, in which the actor ought not be either completely conflated with or utterly separated from the role. You will have noticed that we meet in an amphitheater, that there is an overture, and often an interlude. Mike's concurrence sums up a frustrating truth, that who we "are" as teachers is never exactly who we are.

One last thing should be said. I am impressed and pleased that all of those who have criticized my conduct, sometimes with as much brutal honesty as I could have wished, have shown no doubt that their courage in speaking would be fairly received. I hope that Nona was wrong in saying that people are reluctant to criticize my conduct of this course because I am grading it. I am glad, at any rate, that neither she nor Art shows the slightest concern. That's as it should be.

People here, even the ones who are mad at me at the moment, have probably realized that I don't do this work out of love of law school, or a desire to be liked by law professors, or in hopes of being appointed to something, or in order to buy stuff for my family. I do it out of commitment to and admiration for young people who are capable, through talent, hard work and sheer luck, of growing up to change the world. I'm trying to help you crack the shell of the egg that has your future self inside it. But sometimes you can't break eggs without making an omelette. To those on whom I've been too hard, including Art, I apologize. To those who wish I'd stop trash-talking about the owners of everything, okay I will. Someone else will have to pick up the task of voicing Thorstein Veblen then, of course. But yes, you can.

Dear Professor Moglen,

Thank you for addressing our criticisms. Our reactions are of course engendered by the fact that, as Art noted, you devote an extraordinary amount of time and effort to us.

Insofar as you claim this class is not about your fight for freedom, I disagree. The themes and stories that underlie your work frequently appear in class. That you even took the time to write such a comprehensive response while you are away for your "real work" is commentary in and of itself.

I would like to clarify that I do not have a problem with your "trash-talking about the owners of everything." I just don't like when you use trashy words to do it.

-- NonaFarahnik - 08 Apr 2010

"Apple is a cargo cult; it makes hyperexpensive shiny things designed to ensnare consumers in a system that is technically and psychologically difficult to escape, but which integrates so completely with the self-image of the consumer that it creates organizational loyalty making it possible to sell cult members a lifetime supply of wallet-busting schlock with total predictability."

You can make this exact argument, or the same argument, for so many other companies, and even for entire industries. But how do you respond when someone says that this is an unavoidable consequence of a free market economy. Some will see it as a benefit - people can sell what they want to sell, and people can buy what they want to buy, waste or not, and they see this as a great thing. Is there any way to get around this argument without blaming it on capitalism? Also, how do you get around the problem that might arise when you try to solve this problem....people will never agree on what constitutes "waste" and will never agree on how much "waste" is enough "waste" to become a problem that we should address. Where do you draw the line?

So, two questions that I will clarify if I haven't presented them clearly but whose answers I'm interested in hearing from people.

-- JessicaGuzik - 08 Apr 2010

@Jessica: 1. I think that that is why Art is so annoyed. Eben just has a super vehement dislike for Apple because its behavior contradicts his own work so deeply (again, I maintain that this class is about his fight for freedom). I think Apple's products are beautiful (even with the understanding that my conception of beauty is socially defined to a great degree).

2. Anything beyond bare necessity is waste. I don't think the question is agreement about what constitutes waste, but an understanding that waste is the way we define ourselves to others. How else can I explain my expensive watch graduation present or any jewelery for that matter? I guess it would be least wasteful to tell the time by the sun.

-- NonaFarahnik - 08 Apr 2010

Maybe my comment requires some slight clarification and elaboration:

I do not mind (or rather like) being called a moron, stupid, etc. or someone really pressing my beliefs because it needs to be done for two fundamental reasons: (1) Many (if not most) of us have been coddled our entire academic lives to this point and need someone to press us (2) In any job you plan on pursuing post-graduation, you will find people calling you a moron in some fashion. And since most of us (or many of us) are going into biglaw, I'd assume a fair number of us will be receiving daily "moron" updates.

There is an important (3) though, which is, Eben has the courage to say what he feels on the issue and put the belief out there on the open. I cannot say the same for most of my classmates, myself included. I feel like I am being called a moron in an assortment of non-verbal ways, almost daily. To be honest, the fact that Eben has the courage to call someone a moron to their face, even if it is in the context of one grand theatrical masterpiece (or hack job) means to me that he has profound respect for us as individuals. But I could be wrong.

Can Eben improve his rhetoric to make it more effective? Sure, I suppose. However, I'd just like to remark that all great advancements, scientific or otherwise, require some sort of sacrifice. In this instance, Eben has sacrificed the cordiality of the classroom (etc.) in order to establish a point and further, what I believe to be, a legitimate and honorable objective of the course. Does he have to do it? Probably not. But, this thread seems to serve as prima facie evidence of its effectiveness in ways that other means could not have achieved. Most important, I'd rather it be Eben, a professor who truly cares about his students, call me a moron than another professor or student. To me, it is like someone hitting me over the head with a wiffle bat.

-- MatthewZorn - 08 Apr 2010

At the risk of being accused of ass-kissing and without commenting on whether I agree with the ideas presented in class, I'll say that I enjoy the directness and bluntness of the professor's teaching style. I think the point is that, behind the veneer of professionalism and respectability presented here at Columbia, there are serious fundamental problems with the system of teaching and learning law school. Simply making law school cosmetically nicer by having a generous curve, passing everyone through Legal Methods, or not having Paper Chase style Socratic isn't going to produce good lawyers nor is it going to reduce the anxiety level among students that causes them to make bad career choices.

The abuse doled out by the law school (pissing on us) is not the same as what Professor Moglen does. Law school pushes people into high-anxiety periods where they are implicitly threatened with life-ruining failure (bad grades, no job, huge debt), and it does this with a smile (a veneer of "respectability"). I'd rather have a system that is rough around the edges but is based on respect for the students than one that is respectable on it's face but rotten inside.

However, I wonder whether Professor Moglen's hostility towards some faculty members might make them unwilling to adopt some of his teaching methods, such as the Wiki, even though the effectiveness of the medium in terms of participation and feedback is obvious.

-- JonathanWaisnor - 08 Apr 2010

While I have been tracking this wiki conversation and added nothing, I have one thing to say. Regardless of how I feel about Apple (as i type this on my Macbook), law school, whether professors are "lazy" and "stupid", I appreciate Eben's commitment to us. His statement -" I do it out of commitment to and admiration for young people who are capable, through talent, hard work and sheer luck, of growing up to change the world. I'm trying to help you crack the shell of the egg that has your future self inside it. But sometimes you can't break eggs without making an omelette." indicates that he cares about us and us doing what WE WANT. The ego is a fragile thing and as many will continue to argue the merits of what he has said, whether or not he is engaging in his fight for freedom, pissing on us, the method, etc...I'll take away the fact that he actually cares. Yes, the teaching methods can be shocking and sometimes cringe-worthy, there is a clear pedagogical purpose. Instead of fighting it, take what you can, learn from it. You don't have to agree with everything but Eben is Eben, who will you be after his class? I guess I'd rather be "pissed" on (though I don't think this is what's happening) now than for the rest of my life waking up at 35 like "WTF?!". My point is simply this class should be more about you - the individual, the future practitioner - than Eben's harsh comments. Yes, the red-type is scary (though my sensibilities have yet to be offended, I'm preparing myself. ha). We can analyze and argue all day about whether he's offensive, effective, engaging in a personal agenda, but isn't that the easy thing to do? It's easier to focus on him, and your hurt feelings, instead of on what you'll do with his words and how you will use them to motivate you in order to actually be the lawyer YOU want to be (big firm, small firm, public interest, representing apes in the jungle...whatever). My suggestion (though 2 cents is all it is worth) - Be more selfish. Make this about you.

Anyways, I appreciate the fact that he took the time to respond. And while I don't feel the need to say this, since others have I will- I'm not prone to ass-kissing. I care about grades but ehh not at the expense of my sanity or dignity. It's just not that deep to me.

-- KrystalCommons - 09 Apr 2010

I think Krystal's comment is head on... whether or not we like Eben or think he's a terrible person is irrelevant. If we let these feelings take over, we are going to miss the point.

Eben says things that are vulgar and abrasive and sometimes I feel like I'm going to vomit in class. But why is this a bad thing if no one is forcing me to sit through class? I even have the option of going to class and completely tuning out while surfing the internet if I'm concerned about attendance. I chose this elective after reading comments on lawnet that do not, in any way, misrepresent the nature of this class. Not only did most of us know what we were getting ourselves into, but no one (not even Eben) cares whether or not we attend. This fact alone is enough to prove to me that Eben isn't doing this for anyone except us, and also, that most of us WANT to hear what Eben has to say. I really believe that he cares about us in a way that most of our professors do not. If we forget this, we may miss out on something that could help us find the right careers for ourselves and be happier people.

Consider the task that Eben is trying to undertake. He has even said to us that it is unlikely that he'll achieve this task because the odds are so stacked against him. He gets 1 hour and 20 minutes with us twice a week. This is NOTHING compared to the pressure we are under 24/7 and messages that we are bombarded with the rest of the time. We've got: our 3 other classes, the time we spend with the casebooks, the e-mails that we get flooded with, the briefs, the interviews, the lunches/firm things/events...the list goes on. Every time we take money out of the bank we're reminded of this stuff. When we socialize, our classmates are talking about this stuff. When we're trying to get DRUNK our classmates are talking about this stuff. I have often found myself completely overwhelmed by the feeling that there is no escape from this stuff. And Eben is coming into the picture with information that goes against the messages we constantly receive from the world that we are immersed in. Not only is it going to make us uncomfortable, but it is going to be nearly impossible for Eben to have a voice that is as strong and as loud as all the stuff that he is trying to get us to take a more critical look at.

If Eben came into class on Day 1 with a gentle smile and said, "Hello students! Today we're going to listen to some nice music, and then I'll explain to you why working at a law firm may not be excatly what it seems," then his voice would DROWN. Even being as loud as he is now, I still find that many of the ideas that seem so true and honest in class fade when I get home at the end of the day and realize that I'm stressed about X Y and Z. I think Eben HAS to do what he's doing if he wants to have even a small chance of getting through to us. I think all he wants us to do is to be honest with ourselves and true to ourselves. Unfortunately, we're living in a world where those values are at the bottom of the ladder, and we're being pushed to adhere to this value system, because it sustains a large part of the legal profession. Eben is waving the red flag for us. I don't think he cares if we decide not to listen...he's just doing what he can to make those of us who want to hear from him understand the things about the legal profession that no one else will tell us. And he has experience and perspective that none of us have this early in our careers, no matter how smart or able we are. So like Krystal said, be selfish....especially when you're seeking approval. It shouldn't come from the wrong people, and Eben is one of those "wrong people" from whom we might wish to seek approval (which would explain why we get upset by the scary red letters). We are the only ones who need to be happy with our choices....Eben wants to help us figure this out...we should take advantage of this.

-- JessicaGuzik - 09 Apr 2010

I just want to type in the scary red text.

-- NonaFarahnik - 10 Apr 2010

All right, in that case I'll use a cooler color for a change.

I just want to thank Krystal and Jessica for having seen and understood the nature of my stylistic choices. Because teaching is a performance, because what we "are" in the classroom can never be exactly what we are, my choices are not about honesty or not honesty, not about likability or not likability, nor even about what will work and what will not work. Every human being learns differently, hears and sees differently, understands differently. No work of art is ever known by any two observers in the same way, or in the way the artist thought she intended. So you make it the way your soul tells you it has to be made.

But one thing you can be sure of, that if you want to oppose the dominant consensus you have to speak up. As Arlo Guthrie said in Alice's Restaurant, "If you want to stop the war and stuff, you've gotta sing loud." Jessica has expressed with unfortunately accurate intensity the forces that constantly push students off center and away from self-discovery. I try to make my art capable of pushing back against that pressure enough to create a zone in which free thought is possible, and I try to create not just the opportunity but the desire to ask hard questions about choices we make, non-choices we do not make, and how to figure out what matters most.

At the risk of appearing to backtrack, to say that I wish you were different is to interpret my post stronger than it was intended. I have never been personally offended by your in-class demeanor - I actually find it fairly enjoyable. I was just weighing in on a couple issues that are important to many in our class, and considering out loud whether the particular balance you have chosen is the most effective means to what I believe are your goals. The most important part of my post, and what several others have touched on, is that it's obvious to me that you care about your students, and that your objective is to help us grow as lawyers and as people. And I certainly don't think the best way to further that objective is to take it easy on us and tell us how wonderful we are no matter what. That said, there certainly are people in the class who do get personally offended, and I know at least one student who would have taken the class but for the fear of being publicly edited in scary red text. Again, I'm not saying your approach is improper or that it should change. But, like anything else, it's worth acknowledging considerations in every direction which inform our attempt to find the ideal balance.

That you are sometimes dismissive of students' arguments is a separate issue, where the admitted value of blunt and honest feedback doesn't appear to offer the same justification. However, given what I believe your objectives to be, I am open to and attempted to explore reasons why you may believe this is sometimes the best approach. One idea I suggested was that it forces us to confront the issues personally and for a longer period of time. Another possible argument is that you have 75 students in a class for less than 3 hours a week, and that requires you to be somewhat selective about where you allow our class discussions to go. If there is something we really want to talk about, we can always bring it up in one of our papers. I was not in class the first day because I switched from a different elective, but if you offered your own explanation for why you sometimes cut students off, as opposed to giving them a blunt and honest rebuttal, I would be interested in hearing what you have to say about it.

And my comment about 'jejune' was intended to be lighthearted, I hope it came across as such. It's often hard to convey such nuances in text, scary or otherwise.

-- DanKarmel - 10 Apr 2010

I think a useful frame for understanding Eben’s pedagogy is hacking. No, I don’t mean with a machete, or even necessarily just computer stuff. I mean it in the broadest sense, of solving problems by manipulating systems to produce unexpected results.

In his teaching, Eben performs a counternarrative to the dominant narrative Jessica and others discuss above. I think part of what some have reacted to negatively is this: Eben’s “tough love” radical counternarrative ironically can sometimes feel similar to the traditional narrative of law school: pointed criticism from a charismatic, impeccably credentialed sage on the stage. I don’t think Eben is going for that effect, but the parallels and the social valence remain nonetheless.

I think the hacking part is that Eben is trying to get more out of this system than it gets out of him - to get more good and justice out of a law school classroom than it does harm. But it’s a high-energy system, and complicated, and as Eben likes to say, it runs hot, not sweet.

I think that perhaps more clarity as to what is going on would be helpful at the outset of the course. For example, Eben warns that he may seem irascible when he elects to “edit” a classroom conversation. It might be helpful to explain the whys and wherefores of this and other similar pedagogical choices a little bit more at the start of the course. On the other hand, this may lessen the “shock and awe” effect that is perhaps needed to stimulate rethinking of deeply held commitments.

Or maybe it would lead to more participatory hacking. In addition to the “A Word about Grades” page, there could be “A Word about Pedagogy/Learning,” which could basically be a refactoring of this discussion - or maybe just the Arlo Guthrie quote. In addition to classroom style, actually, it might also usefully include some of Eben's comments about reading and training memory, which have prompted me to rethink my own approach to learning.

Let me be the first to note that I haven’t even been through this course once, while Eben has been hacking on it for a while now. However, I would feel remiss not to participate in such an interesting discussion. So I offer these preliminary thoughts, in case they are of use in improving what has been, admittedly, my favorite law school course so far.

-- DevinMcDougall - 10 Apr 2010

I think the crux of Art's initial post was the general lack of respect on Professor Moglen's part. I'm not the nicest person in the world, and I don't expect him to sit in class and make us feel warm and fuzzy inside. However, I do expect him to accord people with a basic level of respect I think any individual deserves. I don't participate in class, and that's because I see no point in engaging with someone whose purported teaching style consists of oftentimes dismissing students' contributions. Some find it endearing and inspiring, I find it unconstructive. Last week, I went to office hours - despite my initial hesitation, hoping to discuss my first paper about the current political disarray in Nigeria and how it fits into my future goals, with Professor Moglen. Admittedly, I am quite clueless about what exactly I want to do help , but I went in there with the intention of parsing out my rather disjointed thoughts. Professor Moglen made several inflammatory remarks, but the most shocking of his pontifications about Nigeria's fate was the following: "I'm not sure whether Nigeria will exist in 2060, and I'm not sure whether it should." While he may have had the best of intentions, I left his office rather angry more unwilling than ever to share any thoughts or ideas with him. I don't know Professor Moglen, and he does not know me. That being said, I think a crucial element of the "tough love" method is developing some iota of a meaningful connection. I thus find the classroom to be a rather inapposite condition for the approach. Pedagogical methods aside, I did not come to law school to "get pissed on." I respect those of you that find demoralization helpful. Call me old-fashioned, but I would rather engage in helpful, polite discussion. These are just my two cents.


-- TemiAdeniji - 13 Apr 2010

I'm confused by this, Temi. I'm sorry that you felt I was inconsiderate to you, but the conversation we had was conducted with entire respect on both sides throughout, and you haven't said otherwise. You seem to be suggesting that my expression of an historical conjecture is itself an injurious thing to do, and I'm not sure why.

Let's put what I said and you accurately quoted into context. We had been talking about the absence of civil society in Nigeria, which you defined as the greatest obstacle to doing what you would most want to do in your life, namely working to improve the situation in one locality. We were talking about the problem of post-colonial social definition, when an empire withdraws and leaves behind a space that cannot be created into a nation state, because it is comprised by nations that acknowledge the force of imperial control, but have no political will to union. Under such conditions, corruption and other forces begin eating away at the post-imperial civil society, and eventually destroy it. In commenting on your essay I touched on the same issue, through the same comparison: with the dissolution of the Yugoslav post-imperial socialist republic that came out of the Second World War. I then said, as you quote, that it seemed to me quite possible that in fifty years the political entity Nigeria would not exist, and it wasn't obvious that the lives of people would be worse for the dissolution.

This is an opinion about the historical forces at work that you may not agree with. My political sociology may be wrong, or the post-imperial dynamic may be different in a thousand ways that would lead to different outcomes. I certainly wasn't making a firm prediction, but rather pointing to a possibility disclosed by historical comparison.

But why is the expression of such an idea "unproductive"? Let us suppose that the idea is "wrong." Is it therefore unproductive? I have been trying to teach the notion that ideas are valuable for where they lead. Asking the questions no one else will ask—I pointed out with respect to the profile of Richard Ravitch that I assigned—is not what politicians or diplomats do. But it is what the people who generate new ideas and create policy do.

Perhaps, to a patriot, indulging the possibility that one's country might dissolve into component societies seems shocking, unimaginable, and therefore an undiscussable "pontification." Contemplating the dissolution of the United States doesn't have that effect on me, but the US is a curious empire and I'm an untypical patriot. If the point you are making is that even the conjectural possibility of a post-Nigerian West Africa is somehow disrespectful to contemplate, I understand the strength of sentiment, but I think one might have to be willing to confront the possibility of disagreement.

The sign of creative thinking is the asking of questions that no one else has thought to ask. Learning to frame such questions means recognizing the limitations that the received wisdom puts on our thought processes. "Thinking outside the box" means breaking the corners that convention establishes around "common sense."

Perhaps this process is painful, because it means that we are pushed, or push ourselves, outside the zone of "comfortable" thought. I'm sorry for the discomfort I have caused you, and I hope that the larger value of what I am trying to communicate has not been entirely lost in consequence.



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r33 - 17 Apr 2010 - 14:38:57 - NonaFarahnik
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