So, we have a proposition. The law is full of meaningless questions. You can only learn by abating meaningless questions Also – if you want to do – even if meaningless questions are part of rhetoric – not really part of how things are decided – just explained. So what’s this functional approach? S: you learn by experience. Well, there was more. Why all the mathematics and Whitehead? Why not just Dewey and experimentation? If he’s not a believer in the decidability of big formal systems – writing at a time with doubt about formal mathematics – why relying on Whitehead and Russel and formalist accounts of mathematics? There are outputs which can be seen as functions of inputs. Arithmetic – applying arithmetic functions to numbers. That is how W and R were inquiring into philosophy of arithmetic. Thought they finished it in the Principia. Godel was soon to have turned that upside down. Functional approach – important for programming. Cohen: You can think of numbers as products of arithmetic – human culture product of function. Religion is what it does. These people who settled MA are Calvinists with a very strong belief in predestination. Believe that before time, all human souls are irrevocably elect or damned. How can it be that people who believe such a thing are diligent, industrious, honorable? Why are they not sinning it up? Why did believers in predestination – as Weber noted – associated with mercantile success and cultural sobriety? What is the function of Protestantism that produces capitalism? What does culture do? That’s a big question in US at the time. Franz Boas and Margaret Mead. He’s thinking about – you can think of the social sciences as functional approaches to human behavior.

What is the function of the architecture of this room? How does it affect community, education? How does it recapitulate the law in its majesty? Or to reduce it some? CLS faculty decided to remove podiums. Functions: majesty of law, reassure professor Architecture fights us. I have to project my voice to reach the back, people think I’m yelling. Issue: many functions simultaneously operating on the world is very large. Same difficulty in sorting them out as in identifying results. Cohen: judges do what legislatures hate to do – legislate. Making law, rules, to guide prospectively the determination of disputes – legislatures hate to perform this. Allen – Roman legal historian – legislatures, over history – prefer to do the work that is legislating – collect taxes and spend them. When it comes to building systems of law to govern future disputes – they punt. 2 predominant ways in the US: 1. New Deal – create an agency to do it, within broad guidelines. 2. Punt to elite institutions, like ALI, run by guys like Lance Liebman for guys like Harry Monaghan The difference between courts and legislatures is that it is hard to bribe a judge. People are entitled to equal justice under law, legislatures are always more corrupt, so judges can always make decision to fulfill their judge. The law: 1. actual conduct of litigation 2. actual conduct of private ordering in shadow of litigation Function of legislature is to take bribes to get in the way. What actually happens – too obvious to hide unless you pretend law and politics are different. We will chase down the implications. Criteria for supreme court justice – obama – real world effects – functionalist criteria? No. They always say the same thing. Bill Clinton – want a “big heart” – he nominated the two most heartless leftists he could find. He nominated them because they could survive confirmation. Obama not different from Clinton in any relevant respect. Both were constitutional law professors in law schools. They know the difference between bullshit and reality. They know bullshit wins in politics. If Cohen thinks we should publish the truth about judges – surely you should publish the truth about legislatures – what would people think about them then? Why shouldn’t judges explicitly use policy argument? One of the ways power conceals itself is to invoke the neutrality of law to explain why losers lose, not politics. Why are judges less easy to bribe? They – at federal level – don’t run for office. At state level, the roar of money into state judge elections has produced an eminently bribeable system. Teach you how to change the world not with formal power but power you can hold in your hands. Less corruptible. Learn to be ambitious for what you want to do – not what you want to be Learn that money just chips in a game where the real win is somewhere else Courage is more important power. We could skip the whole question – don’t need to be judges or legislature – go and get justice done. That’s the name of the business for me. You will go see the elephant for yourselves, as you should. You will be under a lot of pressure to tell yourself a lot pretty lies. Judges do that all the time. They learned it in law school. Al C. Hastings: corrupt judge – became Congressman. Con law – is all transcendental nonsense. Reading pretty lies in to it. Con law has the function of producing and distributing transcendental nonsense. Citizens United: 2 layers of TN on both sides 1. are corporations persons under the 14 amendment >>> No. 2. is money speech? >> No. Underneath: There is a way to keep money out of politics. Republican side: 1. corporations are persons with natural rights. 2. money is speech. Underneath: Gingrich: you can clean politics with money. Need more money in politics. Both sides are talking absolute rubbish. What we are really talking about is the balance of power in money in politics. Between the Dean campaign and Obama campaign – balance of money-making power shifted. First time in a generation. When Democratic Party had single party control of South, had control of oil business in Texas. Controlled the primary heartbeat of industrial economy. For that reason, LBJ’s dem party had enough money. But, Reagan/Goldwater – drew money from from very rich, and many contributions from small business owners. Got an advantage. Campaign finance reform after Nixon – bipartisan. Dems: gleeful. Republican: Success of current FCC commissioner and internet in shifting venture capital in Cal to Dem – Obama money. Got both houses – industrial bribery of K street – had to give to Dems. Republicans – could not allow this. Republican judges – made the Bush presidency – rectified. The rest is transcendental nonsense. This was not a case about the first amendment Much more important for you to understand how politics works than the bullshit about how law and politics are different. The experiment. Con law class: Moglen’s Con law realist student went into con law class and got hammered. Moglen went to visit prof – he said – you should stop beating on him – she: he has to learn it the wrong way before you learn it the right way. S: What is the function of the functional approach? To prevent a certain hardening of the play-doh in your ears. Consciousness. Being alive is good. What’s the best way to be alive and consciousness? That’s the fun part – any way you want. Consciousness itself: harm limitation function. Guys come talk to me. Didn’t listen to your warnings. Became an IP lawyer in securities firm. Did you buy the big apartment? Riverside and 106. Did you have the second kid? Does your wife understand downshifting? In theory. Thoreau Steps: mass of men lead lives of quiet desperation > drinking > adolescent son in trouble because his role model has cracked up. This is self destruction of unconsciousness. Pain you don’t understand and can’t acknowledge the root of. Conscioussness is harm reduction Instead of addressing desperation – incremental Get to people’s real ambitions. The people in this room. I read people’s Intros. A lot of anxiety in there. This is how I live my life as a teacher. Young people took their best shot – lifted all this weight – behaved like performing pigeons ofr 20 years. Borrowed a heap of money which scares the crap out of them. They are now bit by bit wondering if what they want in life is out of the question. If the functional approach reduced that by a percentage point – damn good outcome. I get notes – I reread your perspectives materials (old name of course)– they’re so interesting – subtext – my job bores me to tears. Htat’s the functional importance of the functional approach. Cohen’s – FA for ideas We’rea talking about what I smuggled in FA applied to teaching second semester law school – justice is a function of the reduction of anxiety and an icrease in personal freedom. Re Cohen: No matter how sharp you are as a thinker on social progress, not always right. A necessary condition, not sufficient .. Sunday school ethics is too weak for ethics .. also – what implications for how it should com eout? First you become free, then you become responsible for your actions. Existentialist difficulty in a nutshell. So I am free – how do I behave? Cohen: also very clear about who he is addressing . Mosques article Guy is trying to reach people who are resentful. He assumed – if you are educated and not rich, you are a leftist. The closest approximation to Mr. Riger in our world is Roger Ailes. Ailes is a very good workman, very highly paid. To produce TV NYT: he took the talk radio formula and gave it television with authority and went into the news business. Brilliant effort. Changed television. Riger: not a believer, like Ailes. He’s engaged in functionalism. You want to say – that can be morally dangerous. S: I used to work in television – smart people make stupid television. If you want to make torture acceptable in a country, you make pulse-pounding entertainment where good guy tortures and wins. 24 was just another part of how Murdoch made torture acceptable in America. We have to do 2 things: 1. Teach children about media. 2. Teach people like you how persuasion really works. Years ago, I said we should have a first year course on persuasion. The two people who taught that were Robert and me – now Robert teachs it. This is the pivot on which FA happens. Why talk about rhetoric without learning about how rhetoric affects social forces. Why do it in a self-referential way? When it’s in the world of social persuasion. The primary problem with the US reports in my day – they were being written by people like me. Bosses I worked for – not capable of thinking of another way of addressing our problems in our society. What do the judges mean to do? We need to think about that. The abatement of meanginless q FA Moral theory drawing from outside law Refusal to separate law and politics Those are the centerpieces of the puzzle of legal realism in the 1930s. Very fresh and very hard to handle type of thinking. Vibrates in your hand and bursna little. Not totally easy to cohabit with. If you believe in rights – problematic - hwat are rights? This language will not embody this kind of stuff. Intl human rights – woozy nonsense. US HR engagement in Mexico: selling more helicopters to mexico to destroy people. /s Why take legal realism to something other than cynicism? Cohen: you go to Sunday school. Hang tough with that. Not good enough. Hta’ts why Cohen is dead. It bothers me. Legal realism burns through the gloves. You have to put it down a little ebit. These are ideas that are meant to be complicated to hold. Simple to understand, difficult to fully take. It made where we live – but where we live is the softened down – Elvis Presley sounded electrifying to white guys. They had never heard it before. It had been there for a long time. We live in a world where realism happened. It gave shape and pulse to the things we learn and talk about it. But some of the sharp edges got knocked off along the way. – Horowitz: Crisis of Legal Orhtody. About how legal realism posed corrosive threat to law thought. The response: comes back from the brink: Wechsler created the idea of neutral principles. W: said that he couldn’t think of neutral principle to support Brown v. Board. Couldn’t think of racial equality as a principle. But equality can’t be neutral in our society. When judges do what they are supposed to do so – they are thinking about what it means to do what they do. Warren Burger – mass of putridity. He noticed that reading habeas petitions before dinner disturbed him. He left papers saying – when the writ is delivered, say it was denied for abuse of writ. At first, most justices thought that voting without reading the papers was wrong. Then some more did it. Those of us in the death watch chambers – spent evening looking for 5 votes. You got taught that whatever you thought about the rule of law was bullshit. One time: these justices put the name of a person who they killed last week. This piece of paper came around in triplicate. I called up his super clerk, “I said you are so stupid and corrupt.. Within 45 seconds, supreme court police came and collected all official copies of the memo. I hade made 6 photocopies. You are right. If you’re not right, it’s pretty to think so.

#### 02.02 Tuesday

Eben: got 6 messages from people in the last 36 hours saying, what do I do now that my career is ruined, referring to first semester grades.

[Ella Fitzgerald and Joe Pass – I Ain’t Got Nothing But the Blues]

First semester grades do not measure anything useful about anyone. They measure an irrelevant quantity - speed of acquisition of law talk. This is an outcome by the fallacy of mensuration – that what can be counted is what counts. Often false – and particularly false in this situation.

In addition to actually not measuring anything, they do not predict anything either. Speed of acquisition is not correlated with the qualities that we are trying to develop as good lawyer and not correlated with where layers wind up, at all.

The really important part of this story – nothing has happened.

Student: how do you overcome the fact that opportunities might be less?

This is bullshit. Take aboard that the anxieties being induced in you are a product. Not an inherent fact about the world. Insecurity was what held the employment system together. Your insecurity. Producing that insecurity both deliberately and passively.

I have watched for 26 of the last 28 years. I teach second semester first year students. I like doing so. But every year I see immense amounts of real hurt caused by imaginary collateral damage. Given the kind of guidance you generally get around here, you wil likely end up caught up in the bullsit machine.

I urge you to disentangle yourself.

But the biggest producer of fear is yourself.

Student: What would htat look like?

Freedom. You don’t have to give a shit. You can grow your own life, in your own way. What everyone else does matters not a whit. The system that produces anxiety is rolling on around you, and you don’t have to care.

You would be so much less concerned with what others think, what it looks like wouldn’t matter. Think about the inside, not outside.

In rooms like, law students play games. They compare themselves to the idealized well put together person down the row. Tremendously self-destructive form of ideation which is so private people don’t realize it. Let alone able to talk about it. Or focus on putting themselves together.

it’s like watching people strap a bomb to themselves.

You are being asked to strap yourself to a bomb. Just say no.

Student: later grades?

Different measurements of a different thing.

Not helpful to learner, though. Basically just how many right answers you got in a place and time.

Can say: grades are stupid all the time. But stupid in different ways.

First semester grades – easier to reject. Start with those.

2 years ago – Stanford 1Ls – circulated a document – agreeing to take all first semester courses pass fail.

You did! You took them pass fail. This is the problem – we are waiting for someone.

Blake: sound of mind forgd manacles clanking.

To bring other people freedom, you have to free yourself.

Frederick Douglass.

Freedom is a thing we make. If its made for us, it isn’t freedom. What we don’t make isn’t durable, and it has a tendency to go away.

660,000 lives we spent trying to make freedom in the US. But we were extremely people we were trying to free to make their own freedom. And it wasn’tdurable. And it go tmostly taken waayw.

This one you can do for yourself. We’re now on the question of whether you will.

I have said that – bad grades – I call them just noise – will not hinder you. It will have no effect on you . None. You will of course measure success by a bad measure – law firm job. Pile nonsense on nonsense.

But somebody here will be the exception. Someone is going to get free. I wish it will be you.

Also – you’re at fault for looking. If you have a trash talking boyfriend – who says all the time how ugly you are – you should have moved out. Listening to hostile shit is not a good way of living.

I knew my second semester was important in law school. I did my work. I went to work for the summer. Then I went to graduate school in the fall. I checked my grades in December. I knew the grades were important, but not urgent.

People checking grades on lawnet – compulsive behavior. The correct thing to do is to say no.

Q: grades?

You’re treating yourself like canned meat. Either grade A, or grade B.

You are who you are. You are going to be a first class lawyer. There is nothing in my life that you can’t do. Except stop worrying. I can, because I have 30 years more experience.

I am earning 2 million per year in my law practice, and giving 85% of it away. You want to tell me the way to make lots of money is to be canned meat?

You’re wrong. You’re assuming the thing that somebody who wants you to be canned meat wants you to think.

Issues: What is your soul worth What is easy? What is the double line at the bottom?

English barristers: trained to say, I am just a taxi driver. I take people places.

I want to tell you – not nec that that’s not moral. It’s not healthy.

But – you are paying me a lot of money – I can tell you how to be really good at it. That way of thinking limits of good you can get.

The real problem is over here – it isn’t – can you dissociate – it’s what happens when you’re a professional dissociator and no clients – a taxi driver, chained to the wheel.

Even someone who only has orders to take – they’re in danger. If you want to be a good hitman – fine. But get your head above the game. Otherwise – wrap car around tree, divorce.

If you’re only a hired gun, and don’t have any limits – Robinson discusses.

I got a note from a former student last night. Student’s been out two years. Got a job in a prestigious firm. “I wasted law school. I could have learned, but I didn’t. It was the end, I thought, that was important…Now I am sitting here, with nothing to do anything.”

I had a former student. Worked for Edwards. She idolized him. I said – he’s kind of typecast. There’s an easy way to identify narcissitic self destructive jury lawyers. She was offended. Truth of the matter – it wasn’t really that hard.

In law school, you meet a lot of people. You don’t want to link your credibility to someone else.

I pick people I work for. Not based on transcript. Based on trust. Clarence Thomas – his transcript.

You don’t want the transcript. You want the person.

What do you look for in people you hire?

One word. Courage. Begin there. This is why I’m on your case. You really really need it.

You’re not selling grades. Selling judgment. Expert judgment. The way you get to have judgment is by having it. Not by having certified grade A.

You get judgment by taking risks and learning to see around corners – thinking about what is around, then turning around it, and correcting your vision.

The grades are wrapping paper. Who the fuck cares?

Your idea – you are selling yourself to a mass market that doesn’t care what it gets. That’s broken.

The right person for me in this graduate class. Has the technical skills. Took a job with X and Y. Furloughed. SFLC. They called – will furlough 2011 to.

This is what the child dean is hiding under his desk. The system of selling first year associate’s hours to enterprise buyers is over. Enterprises are not buying hours. The mass market is over. Not an issue anymore.

The issue is – how do you become a great lawyer? How do you make a living?

Start casting aside manacles. Once you have your arms and legs free, less likelihood of drowning. If we made you canny, swim the right way. Otherwise, scooped up in fish bowl.

End is not only thing that matters.

The bad news – you can’t fix this problem by saying – don’t be frightened. That’s like telling depressed person to cheer up.

You can’t just tell people with anxiety disorder induced in them to just not be anxious.

The anxiety holds you up against the drowning.

But the system is deteriorating your identity. This is why its hard to be the life partner of a first year law student.

The personality deteriorates.

Unless you’re lucky enough to have someone who knows what to do about induced identity crisis, have trouble.

You have to give priority on means. Can’t forget about ends – beyond our capacity. Problem is: what is an end?

I started working for my living when I was 13. By the time I got to law school, I had had many jobs. And I knew who I was.

I think it is a disadvantage to have not had little foot in the world.

Identity is not constituted by a piece of paper in a filing cabinet.

If what you do is a commodity, you’re screwed. So don’t allow yourself to be one. Don’t let yourself be alienated.

If you allow yourself to be a product, you’re the product. You don’t want t obe that.

The fear is the production process for commodities. How do I measure up. Am I grae A or not.

I grew up around classrooms. I spent a lot of time watching teaching happen in different colleges. When I got to undergrad, I was an experienced consumer. When I got to law school, I felt that the trick was working on me. I could feel myself fallinginto the idozliation trap.

You’re in a very totalizing environment. You can have fantasies that will make the anxiety worse. You could be idiosyncratically more susceptible.

Q:

How many slaves can I take out of slavery?

A sad question. But based on a wrong presumption.

If I did that, I would be cheating myself, putting a colar around my neck.

The real purpose of teachers is to tell you what experience shows. The real value of a teacher is being able to say – I can’t put this in your head for you 0 all I can do is make you want to learn it.

All I can tell you – the raod you’re on is not where you want to go. You want to switch roads.

I don’t expect peoppe to agree with me. That’ suseless. I want a question to be in your mind.

Grey hair says: ask this question

Why are you letting the end be more important than means? Lable more than contents. Let sloppy careless dubious uncertain judgments made on the run by people who have yet to justify them to you with reason oust your own needs concerns wishes in this way.

It’s a question. You do with it as you will.

My role is to keep helping you push.

Can you make a question live in someone’ smind long after you are gone? That’s teaching. Htat’ smy goal. I do it about 5% of the time.

What do you mean by taking chances?

I had a really terrible Evidence teacher. But one smart thing- he said - Heresy - HP, Hearsay - P, Heersay - LP.

When I was a student in that palace of lies, the law school refused to release grade distributions. At some point, we assembled distribution. There turned out to be two transcripts at Yale. All H or all P. It depends on who you know.

It is a pain in the ass ,bullshit job reading law school exams.

To take chances, do well – heresy. Tell them what you think, not what they think.

other graders: They think what I do is too much work. They don’t realize it’s not work.

Say you’re working way through it – and you pick up something out of the stack that sings, that says something for a goddamn change? Can either give an A or an F. F is more work.

I’ve been sitting in the law school for two weeks in Torts. I told a joke. I felt waves of hatred. Telling a joke meant I felt comfortable. Very threatening for them.

Conrad Johnson and I were discussing Bruce – great NY judge. Johnson composed a motion in verse, for Bruce. And Bruce was sick that day.

Issue: need to learn how to speak your mind, and still “get in the room.” I can teach you that.

Sign above SCOTUS. SCOTUS used to have a segregated cafeteria. Charles Evan Hughes – who said – the constitution is what 5 justices say its – took the clerk out to the plaza – read the sign – it says Equal Justice Under law. And they desegrated the cafeteria.

So you want to know what it says above law school? How to use freedom to produce justice.

But then of course – we’d have to have freedom. And we are pretty much fresh out of that, here. Which is sad.

[Music]

I would like to get to Jerome Frank and Robinson.

But this the most important thing. It sort of just hovering out of reach. I understand. It’s not going to be imple to take it. You have to. Otherwise you will hurt unnecessarily. And in the course of that pain you are going to make bad life choices, hastily. And another pain, called regret. And people think they can wash it away with whiskey, or cheap sex, or money, or power, or all of them. And that’s an illusion. But there are people who will be happy for you to live under that illusion. Because they will girnd your bones to make their bread. They are very successful.

People used to ask Marshall – what would you do if you could do it all over again?

He was a good liar. And liked to get people’s goats.

He would say – I’d go to Wall Street and make a heap of money.

A lot of people believed him.

When he died, we buried him. In Robert E. Lee’s front lawn. When the Union won they war, they put Arlingon National Cemetary, a cemetary for the soldiers who died fighting for freedom, on Robert E. Lee's mansion. So Marshall - In exactly the place he ought to be. And you can look down the slope across a thte Lincoln memorial. And it is very good.

And every time I go there, I find pennies heaped on the grave and headstone. Arlington is very clean. You know what that is – they’re giving him the people’s medal of honor. Abraham Lincoln on the front, Lincoln memorial on the back. And everyone has one. He changed the world. Justice doesn’t last forever. But he made a heap of justice. And he lived a decent life, and he was loved. And there’ always a heap of money on his grave.