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Holmes: The Path of the Law

Lawyers exist to predict when the state will act on people through the courts

A “duty”, for example, is a prediction that someone will suffer consequences if he breaches it

Although the law is seeped in moral language, it is not moral because:

Law is designed to force people to follow it whether they believe in the morals or not

Not all laws are morally good

Morals don’t even always limit law

The law taxes and penalizes, but from the bad man’s point of view, they are the same thing

In contract law, people are misled to finding it moral to not breach

And similarly in tort, where “malicious” doesn’t mean malicious in a moral sense

What causes the law to change and grow

Logic is not the only thing, as some things are qualitatively valued by individuals

Judges act based on what they value socially, and they should express that more clearly

Tradition also shapes law--history explains law: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”

Lawyers need to learn economics to be able to make good policy decisions. They ought also study jurisprudence: the ability to generalize and analogize facts to other sets of facts. These are key to prediction

Transcendental Nonsense and the Functional Approach

Question: do we find our laws in nature or create them

Example case: Tauza

In this case, the court asked where a corporation was without considering policy questions (e.g., difficulty for P and D to sue in X state, etc.). Instead, it was literally trying to figure out where it was, even though it’s obviously a legal fiction

And it did, determining an office in NY meant it could be sued there

Transcendental Nonsense means, a legal fiction.

Judges pretending legal things like corporations actually exist in the world and can be placed

The problem: this makes it easy for judges to forget the fictions they’re dealing with are fictional. And they don’t think about policy: how the decisions affect real people

Another example is a lawyer for a union defending it against tort liability for its union members not because liability would ruin all union activities, but because a union is not a person because it is unincorporated

We must not justify legal rules in legal terms because that’s circular. There must be an empirical or ethical basis

An example is protecting a trademark because it is economically valuable. And it is valuable because it can be legally protected

And this is based in courts “thingifying” property, which has no basis, but is assumed to be found in nature

This just makes lay people have no idea what courts do

This whole process ignores whether having trademarks is even a good thing for society. And it’s just legal reasoning masquerading as legal prejudice/inequality

Same thing with valuing public utilities; courts value them, but their value depends on what the court values them at

Same thing with what does “due process of law” mean? SCOTUS says it means whatever we said it meant in the past

Since legal concepts are not bounded in ethical or empirical foundations, they are a separate form of transcendental nonsense that cannot be challenged by ethics or empiricism

The solution: the functional approach

Functionalism, in simple terms, asks why is something significant. It attacks dogmas which are not based in practical experience

The only meaningful questions is how do courts decide cases and how ought they

The essence is that all concepts must be based in real experience

Question: What is “real experience” this article assumes such a thing exists and apparently is universal

Law = the prophecies of what judges will do

Holmes says laws should be signposts telling us certain facts reside here

The article thinks that we are moving in a functional direction away from just restating the dogma of the past in legal principle

Question: It seems to me the issue isn’t that legal concepts don’t reflect facts, but the utility of those facts is not significant

The functional approach should be applied to:

(1) The definition of law

Prophecies of what the court will do, in fact -Holmes

We don’t care if this definition is correct, we care that it’s useful

And it will demonstrate what the ethics of the court are

(2) The nature of legal rules and concepts

Hobbes thinks law is the state using its power

Coke thinks it the perfection of reason and is moral

Blackstone stuck both together, leading to confusion

With this understanding of law, asking, for example, is there a contract, confuses what exists with what should exist

(3) The theory of legal decision

Beyond the yes/no decision, what makes up decision?

Decisions have social determinants, and are not just what the judge ate that day

It is very predictable, and if everything surrounding those decisions was not predictable (the sheriff will enforce it, there are appellate procedures), nobody would care who won the case

The main (but incomplete) predictive factors:

Judges act based on their wealth class

Judges act based on if they worked for a special interest before

Judges are impacted by eloquence of counsel

This is why law students need to be detectives, know the political bent of judges, etc.

(4) The role of legal criticism

We need more consequentialist criticism of current legal rules

This criticism is a critical cohort of the objective functionalist method

Robinson’s Metamorphosis

Conversation between Robinson and a lawyer/former classmate (the poet):

Robinson (Vietnam vet/man who has his own private criminal defense practice): Lawyers are increasingly known for greed, are increasing common, and are effective in our society

Robinson was an eccentric, intelligent law student at Michigan in the 70s, then a clerk, prosecutor

Story: 20 y/o B&E into DAs house, got indicted for everything

Dad wouldn’t put him up for bail and an inmate cut his fingers off while waiting for trial

Jurors love the law, but hate lawyers

The legal system is hell

He subtly let it be known he knew the judge and the prosecuting DA (an attractive woman) “knew” one another. The kid got a year

They go to a chinese spot for lunch, the conversation continued:

A jail nearby (the tombs) was shut down by federal order, but reopened--now it’s state of the art, but cannot get rid of the smell

Jefferson quote about equality etched on the wall; Robinson mentions how women and slaves were not included

There’s a new jail “new tombs” with a buddha outside

Robinson points out a boy who he thinks is an illegal immigrant because he looks like he’s scared

They sat down outside on public benches, and Robinson covered the seat with napkins

The corporate lawyers asks what murders are like

He says TV has turned the criminally disposed eyes’ into a camera, and people like witnessing themselves do crazy stuff like shoot people with Uzis

They talk about a book Robinson was reading about Kafka

He was in workers comp and a lawyer

Robinson says metamorphosis has always intrigued him

What if every lawyer metamorphosed into a prisoner and the reverse

Corporate lawyer says there will be more lawyers then

Robinson thinks this would be “Exacting justice”

The Folklore of Capitalism

1 - The Systems of Government and the Thinking Man

1930s: those wanting to be elected could not talk about important environmental policy changes due to fear of being labelled a communist or fascist

This called for a new class of social organization, and as has always been the case, such new classes are initially looked down upon

E.g., heresy, communism--people with free will listened to the devil and ended up in hell, it’s always the same story

Laws and morals array against newcomer social groups, who violate the prevailing mythology

The “thinking man” is an abstract idea of someone who has free will and can understand sound principles without being clouded by emotion; he is the guy public debate is addressed to

In America, we look to the more disastrous examples of people with other creeds to demonstrate why ours is the best

We do not choose creeds (e.g., capitalism) through some rational process

The war among capitalism, communism, and fascism is one of the greatest obstacles to practical treatment of day-to-day needs of Americans

One or the other of the bad ones get applied to things like soil conservation

We get so attached to policies marked capitalism we won’t feed our people if it requires associating with a police marked communism

Our political beliefs are religious in nature--we still have crusades

They search for universal truth

We see a court as being a key instrument to dictate the social philosophy of posterity, and it always fails

2 - The Psychology of Social Institutions

Whenever people seek universal truth, the creeds of government become more significant and the practical activities of government suffer as a result

There are always heros behind our mythologies/creeds

We cannot tell how creeds operate because any issue can be attributed to the creed not being properly followed, which means creeds have no meaning whatsoever apart from the organizations they’re attached to

The individuals and smaller organizations reflect the larger organizations

All organizations have:

(1) a creed, (2) set of attitudes making the creed effective, (3) institutional habits, causing people to work together without conscious choice, and (4) a mythology/historical tradition

Constitutions furnish limits beyond which controversy must not extend; attacking the constitution itself is heresy

And the supreme courts oscillates between refusing the change the thing and incorporating modern notions

Creeds are extremely alike

Constitutions’ words do not explain a creed

E.g., 5th amendment discussing persons; justifies corporate protection

It’s the imaginary personalities that make up the content of a creed

Right now, the American businessman creed dominates this country--they are the national heroes, and the devil is governmental interference

Creeds are also self-fulfilling; our government is bureaucratized because of this

The only way to overcome this is a new social class with new heroes

Traders and salesmen may end up becoming this new class--with new economic thinking

Regardless of creed, democracy became accepted as a political fact

It is not longer a creed, as it isn’t put on a pedestal, but it is still widespread, used with the knowledge that it is more important majority will is followed than rationality (political realism)

Democracy created a small elite political class: aristocratic background plus emotion-inducing political techniques

But as it’s become more embedded, people have become more skillful and there’s less emotion-inducing political techniques being used

Now we think of improving government by changing what the people want, not what should be done

We don’t get caught between democracy, monarchy, and aristocracy any more

Capitalism is used today not for its content but to battle against other creeds

3 - The Folklore of 1937

Law and economics was the principal means by which the folklore of 1937 was expressed--the time’s universal truths

Folklore blinded people from the practical running of government--all the wanted to do was protect society from becoming Russian or German

Details don’t change minds when a powerful abstract idea confronts them

This manifested in reactions to Roosevelt’s court packing and stimulus plans

An analogy: old medical cure of bleeding patients meant that any other cure, for example quinine, was sacrilegious, and connected to Jesuits, a despised creed at the time

The “thinking man” is no longer essential to the field of medicine, it’s skill in his place

Law was designed to preserve moral freedom and individualism

Economics supplied the principles which would make incoherent legislative bodies act with utility

Two limiting principles of capitalism: economic (regulated by the two political parties) and legal) regulated by the courts

SCOTUS was the unifying body in american government at the time, as it threw out Roosevelt’s policies

Political parties were supposed to care more for posterity than getting votes for its leaders, which was, in fact, political suicide

Psychiatrists were practical by 1937, not trying to perfect their patients but making them comfortable and protecting society

Socialists, opposed to the industry-politicians, had their own heresy issue, kicking out those who were not true believers

We ended up with constitution-worship

14 - Some Principles of Political Dynamics

The personification of our industrial enterprise are psychological barriers to the growth of organizations with definite public responsibility

Political dynamics is a science about society, recognizing the interdependent nature of its constituent parts--the individual, submerged in the organization

Organizations have habits and personalities, a result of accident (who randomly gets to be in control first) and environment

Once an organization’s personality is fixed, it’s difficult to change

This is why reform rarely works and revolution is impelled

With habits, come profit and property

And with these, contradictory roles

These organizations grow, regardless of their roles serving their members

In order to function, institutional creeds must contradict the organization’s operation--consistency of creed, but also realism

And a ceremony must be used to paper over this contradiction

And its effectiveness can only be judges from within; e.g., political arguments to your own side in a campaign--politics is who can get your side to love itself most

When ceremonies cannot overcome contradiction, institutions split between practical and idealistic parts

The confusion accompanying many reform movements is that if the institution does what it says it ought do, its function will fail

A social need will never be satisfied until it gets its own philosophy/abstraction

To succeed in change, you must have an organization as your principal, not logic

Organizations die because of phobias against practical common-sense action produced by their own ideas

Thesis: we need to be able to fit ideals to serve practical needs

Swindling and Selling

Chapter 1 - What and Why

Sonnenlieb, lawyer/salesman came up with the idea of referral sales, ended up broke

This is one example of pyramid selling, America’s top swindle

Many forms of selling and conning have been going on forever

Underneath all of them is a fundamental invariant, and it’s important to draw distinctions between swindles and sales

Chapter 2 - The General Principles of Swindling and Selling

We buy with implicit cost/ben analysis--you’ll be richer

Which implies the seller is fine losing or some third party is fine losing so the buyer can win

There’s also an implicit explanation for why the customer/mark is chosen

No conman offers something for nothing; at least they pretend there’s a trade

Conmen often see everyone as rational economic actors

So, knowing wealth cannot be created from thin air, they try to get the mark to feel as though they’re contributing heavily to the trade

Two types

One, where personal value creates value from a trade

When outsiders exist, they can be competitors as well as victims, so you must convince the buyer/mark as being needed more than others

Chapter 3 - Two-Party Playlets

The Spanish prisoner: a clear showing of something that is in every sale and swindle

A person privy of wealth but in jail

Without both together, nothing of value exists

The prisoner must show he could get the letter to someone else, but it would be quite difficult

This is a microeconomic bilateral monopoly problem

A play gets constructed

The “Psst buddy”

Someone pretends to have stolen goods and sells them cheaply relative to what they would have cost

Here, the mark is altercast as a member of a small demand group, as opposed to a monopsonist in the Spanish prisoner

Things get more interesting and effective with more people, when the boodle can be made onstage

Chapter 4 - Three-Party Plays

The big con

Rigged horse betting, getting him some money, then getting him to give more and stealing it

All starting by finding a guy’s wallet and him winning money for them as a “thank you”

One of the most powerful roles to give the customer/mark is to see through someone else’s role, thereby hiding the fact that that he’s still in the audience

There are also short cons, rigged games of chance, but quicker, and the person to be robbed is actually onstage

Chapter 6 - Bargains: Face-to-Facework

So far all cons can be understood as both parties thinking they get a bargain

The Squaresville pitch--it saying you’ll sell cheaply and also worth selling to the buyer; it’s interesting bc in a perfect market it shouldn’t exist

Have to avoid it seeming that the price difference is due to the product being different; instead, you have to demonstrate being the beneficiary of market failure

Often also, lower prices mean more units sold, mean economies of scale

Stable cost advantage and fleeting deflection have the same logical form--I have a reason why I can and must give you a bargain

Creating buyer inertia with clear discounts, physical proximity, etc. can make buyers more likely to purchase

Salesmen have an edge on sellers, for example, in driving customer inertia forward

Salesmen also can get edges by giving information that affects the seller but not the salesman in this case

They also cut along class and racial lines to cut across seller-buyer distinction

Something Split

Wylie, having a conversation at a bar:

He’s lead partner on a bankruptcy securities case at a biglaw firm, talking to a former associate

He was drinking wine and espresso at 6 o’clock, and a pitcher of water

The interesting question is not what the law is, or money, but chaos--complexity so intricate no one can fathom it

He describes lawyers as control freaks

His work is stressful and he’s obsessed with his health, which he thinks suffers because of his work

He doesn’t self-identify as cynical, but seems quite cynical

He was at a party with extremely rich people, friend of his wife Jeanne

Another lawyer was there, and asked him where he went to law school, which he took to mean the lawyer wants to tell him he went to Yale

At every dinner party, people want crime stories, so he told his

The other lawyer (“boola boola”) tells his crime story, which involves him wanting federal troops in his neighborhood

The only concern noted was that federal troops might drop property values

He says one of his co-partners in in psycho-analysis but won’t let on who (“Jack”)

He tells him he’s constantly splitting, and he has to be part of things that make him compromise himself morally

But the split is subconscious

And it creates violent tendencies against oneself--manifested in depressive behavior like drinking

Jack then calls the doctor on his attempt at a prognosis--that his being a lawyer is the problem, and the doctor kicks him out

The narrator then left and met some other former associates at a bar

They immediately begin cynically describing other lawyers in vulgar, sexist, racist ways

They discuss the law becoming a service business

And how hiring in-house counsel is a way to stop firms from sucking clients dry

They’re extremely negative, and appear mostly only able to discuss other lawyers

They discuss how Melville’s father in law is shaw, a famous judge who, despite being an abolitionist, returned a fugitive slave -- the relevance to their lives is lost on them

The Way We Are

1 - On States of Being

Thesis: we have multiple states of being, which together amount to consciousness. We switch between them, and failure to switch smoothly creates difficulties.

History of views on personality states:

(1) A patient’s hypnoid states

People with dissociative disorder shift between states sometimes without remembering the personalities they leave behind--manic and depressed states

Appears to be caused by trauma

(2) James, a Harvard prof of psychologist and psychologist, toyed with NO2

He felt the human mind experienced multiple realities, influenced by his experiments with NO2

He detailed the properties of states of consciousness

(3) Scientists experienced with drug-altered states to get into certain states

This is a biology backed movement in psych

Certain brain states may relate to unique behaviors, emotions, etc., linking the brain and mind together, and providing an explanation of mental illness

Infants have basic states and switch (switches are probabilistic transitional pathways) between them, and external environments shape new states and their abilities to transition into them

We can test and observe with physio and math

Even without dissociative memory disorder (DID), we struggle to remember things learned in other states/fight internally--and help can be required

These states explain hypocrisy

Switches can be induced by drugs, and in many people, they create a sexual identify around that transcendental experience

Meditation is knowing to increase control over physio brain activities, allowing control over switches

2 - Our First States

Chapter thesis: states can be identified and modelled, and these states are widely applicable. States are influenced, in infants, from interaction with mothers Also,

Infants only cry in response to hearing crying in alert personality states post-6 weeks

There is a biological attunement between mother and child, both being increasingly aware of the other’s personality states

There are about 5-10 infant states, measured by physio states, and they switch between them

Switching from A to B is different from B to A

Understanding switches is key to understanding mental disorders, as we have leverage in switching when in control

You can map state space in 3D for babies, and see which states predictably switch into the others through environmental disruption or time passing

Attunement: mother-child interaction

The most critical process in child development is attachment in the first year of life with the mother

Allows child to regulate emotional states better

Depressed mothers do not have high attunement with their child

3 - Brain States

Kid had recurring dream of being a tiger and would attack things at night, couldn’t be woken up

He was a premature baby and had learning disabilities

We have sleep stages we cycle through at night, and in REM, stage 5, people sometimes sleep talk, walk, etc.

Sleep stages are impacted by stress, drugs, trauma, etc.

People who skips cycles (e.g., 2 to 5) have sleep disorders that trigger walking, etc.

We have excellent tech now that can look at the electric impulses deep in the brain

We match brain activity to states of consciousness


Treated with either meds or therapy, which, respectively, target old and new parts of the brain


Felt differently by people in different brain states

Vegetative states

Neural imaging can be used to tell if someone is aware

Microstates are defined as whole brain activity represented as a topographic map of the brain that is “segmented” into zones based on a measure of the strength of electrical activity districted across the individual’s brain

The idling brain has a characteristic pattern of activity

Characterized by four microstates

It makes people unhappy

We have mind-reading abilities from this brain imaging software

Nonlinear dynamical systems are the mathematical representation of state switching--chaotic behavior

There tend to be groupings indicating states Isomorph: the idea that there was something that remains essentially the same across the many levels of understanding of our brain-mind

Microstates to brain states to moods to personality

Descartes argued dualism: mind the seat of consciousness and brain, intelligence

The concept of “State” is an isomorph linking mind and body, as it spans empirical microstates to consciousness personality

4 - Changing States

Usually, we don’t even notice we changed states (e.g., drowsiness to sleep) until after, though with people going from manic to depressed (bipolar), it’s obvious

Most depression medications trigger a switch to mania in bipolar patients

Panic attacks can also be triggered

Some people switch into catatonic states

DID people have multiple personality states, usually with different races, genders, ages, speech patterns, etc.

Some people can switch on demand between them

Rapid switches between DID personality states are characterized by an abrupt disruption in heart rate, respiration, etc., with chaotic brain activity, until it settled into the new state

The subjects say they are totally separate people, but evidence doesn’t look like this is the case

5 - Memory & Identity

Sometimes people show up with DID, not knowing who they are

DID occurs across multiple cultures with similar symptoms, it’s not a hoax

We use memory to have a continuation of self

Memory and identity are inextricably linked

Loss of memory (hypothesis) triggers shifting identities

We have memory systems relatively independent of one another

We have different kinds of memory: short, long term, (explicit and implicit) etc.

Berne characterized behavior in the form of three basic ego states: child, parent, and adult

Most people have many mental and identity states, and a therapist must work with the most relevant ones

When a simmering state signal appears, the therapist should slow the patient down and find the cause

We all share a propensity to selectively remember learned information and life experience depending on the context/identity we are in at a given moment

The basic principle: information learned in one state is best remembered in the same state

6 - Secret Lives: Personality and Its Paradoxes

The entitle we call personality can simultaneously host discrepant versions of self

Although all of the conventional models account for important aspects of personality, none explain people with secret lives

The state model, which views personality as the aggregation of an individual’s state of beings, is helpful

Anthrax investigation focused on an esteemed researcher who had a deviant second personality he couldn’t control or remember, but it’s unclear if he sent the anthrax

Freud thought personality is the end result of developmental psychosexual life stages

If there’s a disruption in development, a fixation can be created at that stage, strongly expressed in the child’s adult personality

Oral: sucking/swallowing (alcohol, smoking)

Anal: obsession with cleanliness/messy

Phallic: obsession with other sex parent

Latency: repressed sexual desires playing with same-sex peers

Genital: repressed sexual desires

It’s key for children to create attachment to be secure from environmental stressors

Personality disorders are an enduring pattern of behavior contrary to general social expectations

People often force transitions out of their normal personality states (e.g., hard workout, masturbating, drinking)

Classical and operant conditioning produce long-lasting changes in behavior

We have a substantial amount of subconscious behavior

Teenagers compartmentalize identities they develop from groups they’re surrounded by

Especially girls, and especially girls subject to traditional gender roles at home

The prototypical metacognitive disorder (failure to be self-aware) is a disorder of memory

Borderline personality disorder (BPD)--many have a history of childhood sexual abuse

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Trash.FirstName: Asher
LastName: Kalman
ColumbiaCourses: Law and Contemporary Society



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r12 - 11 Mar 2020 - 14:46:31 - AsherKalman
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