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< | The Phenotype of a Liar | >
> | The End of 1L Year | | | -- By AmandaRichardson - 04 Apr 2008 | |
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< | Introduction- “The Circles of Deceit”
"Whether he be original or plagiarist, man is the novelist of himself. … To be free means to be lacking in constitutive identity, not to have subscribed to a determined being, to be able to be other than what one was." José Ortega y Gasset
In “All Great Problems Come From the Streets,” Judge Celia Day relates her friend’s description of lawyers as liars. She goes on to discuss two types of lying: misrepresentation of thoughts and misrepresentation of fact.
Though she doesn’t discuss it explicitly, she also implies that there is a third type of lying—the lie that is misrepresentation of self.
Why she believes misrepresentation of fact is so much worse than other types of lying speaks to the heart of the question she leaves the reader with: why the law is what it is. | >
> | “Whether he be original or plagiarist, man is the novelist of himself. … To be free means to be lacking in constitutive identity, not to have subscribed to a determined being, to be able to be other than what one was." José Ortega y Gasset | | | | |
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< | "Dress as an Expression of the Pecuniary Culture," or How Lawyers Lie with Clothing
“Phenotype” in the essay is defined as “how an organism appears…a result of the interaction between the organism’s genetic structure and its environment.” Judge Day and her doctor friend use this scientific term to describe the most easily discernible result of this interaction: appearance.
Leaving questions of sociobiology aside, humans have the ability to define, more or less, their own phenotypes, within the confines of societal expectation and their own abilities. | >
> | Judge Celia Day says “The question ought to be why. Why the law is what it is.” This question seems important not just as she means it but to law school in particular. | | | | |
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- I don't understand what the first phrase means in relation to the rest of the sentence, because I don't understand what sociobiology could have to do with it. But the idea that humans can define their own phenotype seems to me obviously wrong. An immense element of our culture is taken up with offering people examples of genetically unusual humans to emulate, and to feel sorry about being unable to emulate. Our definitions of beauty and sexual attractiveness are almost exclusively tied up with inimitable genetic results, and the industries that offer people opportunities to pretend that they are closer to the genetically improbable "ideal" are among the most important and profitable industries in the global economy.
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> | What worries me about law school is that it encourages us to give up our constituent identities; to become “law students.” The school rewards us for giving up the outside interests that made us amazing enough to be admitted in the first place. | | | | |
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> | In law school we learn how to become more efficient game players, but I worry that we aren’t learning anything about how to make the rules. We may be learning a language and a culture, but by the end of this experience it seems likely that we will all have a vested interest in maintaining the status quo, in making our education worthwhile. We are learning how to get by at a firm, how to project the appearance of power, and if we were truly invested in changing the way the legal culture, or society in general, functions, this training would be merely helpful at best. Instead, it is presented to us as vital. | | | | |
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> | This is not to say that this is the only work the law school is doing. But even with a fairly concrete idea of what I want from my legal education, I’ve still found myself losing sight of that. My hundred words at the beginning of the semester were:
“I’m interested in public policy in education and human rights, and law school, for me, was a way of exploring the underlying legal framework of those policies. Working with some of the pro bono projects here has made me think that I’m interested less in the big picture than I believed, and more in effecting micro-level change. I appreciate learning more about how our legal system works (and how it doesn’t) but after four years at a liberal arts school the theoretical approach to social change is beginning to seem esoteric and unappealing and I find myself wanting to act.” (I would inset this but I don’t know how.)
However, I still went to EIP orientation, even knowing that I didn’t want a firm job. I spent time in ConLaw? study group and almost forgot about how interested I am in educational policy. I found myself structuring my time wrongly-instead of working with the pro bono projects I know center me, or even reading something non-law-related, at the end of the day I wanted to do nothing more than turn off my brain and watch TV. While I wouldn’t presume to extrapolate too much or too widely from this, I hear this complaint a lot—people in law school reduce their interests to work, TV, and alcohol. | | | | |
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< | The idea of a profession manifesting itself in a set phenotype is of course a generalization—Day seems to subscribe to it while simultaneously rejecting it. She is consciously proud that she fits a different phenotype than one would expect; she also recognizes that, at least in Family Court, there are lawyers who wear jeans and chew gum.
But this does not fit into her conception of the world, and she quickly retreats into stereotype.
The stereotype of a lawyer is one Veblen would recognize: the conspicuous (but not flashy) consumption, the briefcase which “you really can’t put very much into” (good for projecting the appearance of leisure).
The conscious adoption of a phenotype recognized by the world-at-large is, then, a self-perpetuating lie.
If a judge’s task is, as Day asserts, to discern, then it is a lawyer’s task to project the image he wishes the judge to perceive. | >
> | While I adore the people I know here, who are uniformly highly intelligent, well-informed, and interested in the world, I have realized that those people I am most drawn to are the people who are least insane about school—the people who skip class, who don’t read until finals period, and who, most importantly, retain outside interests. | | | | |
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- Not just the judge, but also the client, the opponent, the juror, the reporter, etc. This is done less with the manipulation of phenotype than through psychological insight and the forms of social resonance we call "tact." By persuading yourself that this is all a matter of "phenotype" (passive recapitulation of genetic instructions in contact with the environment) you are both overshooting Judge Day's target and making our own more difficult to understand, thus to reach.
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> | Which brings us to Ortega y Gasset. Understanding the law should give us more power. But law school seems designed to keep us from defining ourselves, or at least to make that more difficult. The identity of “lawyer” is narrow here; the power understanding the law gives us is tempered by the box in which we’re put. By teaching ourselves how to market ourselves, our professors are teaching us how to limit and temper our ambitions.
This may be specific to Columbia, but since getting here I have had trouble conceptualizing of what a lawyer actually is. I premised the first iteration of this paper on the idea that a lawyer is the person who deals with legal cases because my first year here seemed about that particular end- teaching us to become the people who interpret contracts, case law, and statutes and who mold them to our ends. | | | | |
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< | “What goes on in people’s minds,” or double-talk, triple-talk, what can you do? | >
> | Of course there are many things one should be able to do as a lawyer, or with a legal education. But it is hard to hold on to those conceptions of lawyering when confronted with the realities of 1L year; when confronted with the time constraints that prevent us from remembering the interests we had before law school. | | | | |
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< | Phenotype in the essay is not just, or even primarily, about clothing. It is also about thoughts and projection. Day says of the young lawyer on the subway that “phenotype was written all over him! Relaxed and assured, yet at the same time that look of lust and abandon.” Lawyers must project an appearance of confidence with their attitudes and speech, not just their clothing, regardless of how they feel.
This is why Day is so resigned when she describes “spin;” she sees this as the way lawyers operate generally. In the legal world, often, the avowal of intent or belief trumps what may be inferable (but never provable) from conduct. She relates a story told to her by a friend, and concludes with the caveat that “he sounds so sincere—the way he looks and talks—and he is, but sometimes you don’t know when he’s kidding you” (italics mine). In Day’s conception of the world, a lawyer can be both sincere and a liar simultaneously, no conciliation necessary. | >
> | For me, then, law school has been a struggle to hold on to the ideals that brought me here in the first place. | | | | |
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- I think that Judge Day's use of her doctor colleague's somewhat more literal use of "phenotype" to mean "archetype" or just "type" is confusing you. Why not jettison the scaffolding and come to what she means by what she says. A lawyer can sound sincere while actually telling an untruth, you mean she means, I think.
Relying on representations, or why Day will get you if you say you did something when you didn’t
So lawyers can lie with their clothing, and can lie with their thoughts, but Day asserts that lying with actions is taboo, that is: “You make a material misrepresentation of fact to another lawyer, you’d better be prepared to be hit, and hit hard.”
Day goes on to define this kind of lying as a betrayal, saying “what you’re really doing is not providing information to a person who trusts you to do so.” The difference between lying about what you did and lying about what you think is that one is provable, while the other is spin. Morally they may well be equal, but in the realm of the law custom dictates that one is allowable, and even encouraged, while the other is punishable by consensus.
- I don't know whose morality is the "morally" at the front of your sentence, but her view about the limits of lawyers' talk seems not idiosyncratic but conventional to me. In my daily working life I may do all sorts of things in professional interaction with another lawyer--hide the ball, misdirect attention, shade the picture so as to benefit my client--but if I make a bald and straightforward misrepresentation of fact I have crossed the line.
Cerriere says “mop and pail are mop and pail,” and indeed, they are tangible items with which to enact change in the world. What is tangible for a lawyer?
According to Day, it is trust. A lawyer should not lie about that which can be proven (about deeds, that is, rather than thoughts) because in that way he or she compromises the currency of the law: the appearance of truth.
It is all right to lie about what you feel but not what you’ve done, simply because words, in the law, are more important than actions—ideas are what they do, not what they mean.
- I don't think that's her idea, though it's an interesting idea and you might want to develop it further in another way. But planting it on her doesn't work very well, in my opinion, because she isn't concerned with the appearance of truth, there or elsewhere--she's concerned with the relation between law and politics. What she means in describing the lawyer's responsibility to separate facts from what you call "spin" is an internal disciplinary norm more than an external representation: laymen expect lawyers to lie more than they do, and in particular don't grasp that a lawyer who lies to other lawyers about facts will not survive unless heavily fortified.
“The question ought to be why. Why the law is what it is.”
The law, Day implies, is what it is because it is made by people who lack real power.
- NO. She says that trial judges don't have real power, because they don't make law, they just adjudicate its application. Their discretion, she says, should be differentiated from power precisely because they don't make law.
Day believes that “real power exists outside the courts…you have discretion in this job…there’s a big difference between having a bit of discretion and having real power. it is a very important distinction.” The law is shaped by lawyers, whose only real objective power is their ability to sway the judge (in the courtroom, at least; one could argue that the greater power of many lawyers is their ability to shape settlements and other bargains outside of a courtroom setting) and judges, whose power is, according to Judge Day, interpreting and discerning.
- Lawyers who make law, in Judge Day's view, have real power. We may not that she has worked as administrative agency staff and as a prosecutor before being a trial judge: She has never been in the legislature, or she might not view the power to make law as she does.
The truth of the record
The point of the phenotype discussion is simply this: lawyers have much less power than they would like others to believe they do. They lie, then, with clothes, with words, and with actions, in order to preserve their own sense of self-worth.
- I don't see this second part emerging from the text.
And what is the truth? For Judge Day the suggestion of what truth might be comes in her last story. An abused woman sits beside the husband she tried to kill.
Her astonishment is not just that the husband sits beside the wife he has abused and who has tried to kill him but that he does not challenge the record, does not try to create his own truth, instead simply sits and waits—a cardinal sin for those whose business it is to spin webs of deception.
- I don't think this is the point of her story at all. She's telling the story about someone she has to sentence. You are interpreting the story as though she were telling it from outside. But she isn't outside: she is coping with the requirement that will make her sentence this woman to a decade of prison time, harming or destroying her children's lives and even the business the defendant tried to preserve while killing the husband who abused her.
- Let's work on this more after we have had a chance to read closely together the text on which the essay is based.
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> | But writing this paper so late has helped, because at my summer job (working for an NGO in South Africa) I have seen some of the ways in which a law degree can be used to further my own interests. And maybe in the end that is what is important- law school (or 1L year) may be about redefining oneself as a “law student” but that redefinition does not have to be permanent or self-altering. Because 1L year ends, and the flexibility (if we want it) of the rest of law school can allow us all the freedom of Ortega y Gassett. I end somewhat tritely because I want to end with hope; there is no reason law school has to take over our lives if we remember that it is a tool, not an end in itself. |
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