Mark, I am glad I interpreted your paper incorrectly. I think what you have to say is more interesting than the words I put in your mouth. That said, I am still pretty confused. Can you summarize your argument in two or three sentence?

It would help me a lot if you could precisely define some of your terms:

“power dynamics”

“discursive powers in general”

“the discourses we learn in law school”

“gauntlet”

In your pink comments you said “I want to express that this situation is about planes of ranking and how one moves between those planes of ranking” This sentence should be expanded on and definitely added to your essay.

I look forward to offering more specific comments, but first I want to understand the big picture.-Alex Asen

As a dog trainer – if you pay attention – you learn some things about power dynamics. When dog A drops a ball in front of dog B, takes a step back and wags his tail, he is issuing a challenge. Come get the ball; let's do a little ritualized fighting. Dog B has two moves: he can either pounce on the ball or ignore the challenge. If he pounces on the ball, regardless of whether or not he wins this battle, he has started a war. By accepting the challenge, dog B has communicated to dog A that dog A is of sufficient rank to compete with him. If dog B does not react to the challenge, he is communicating either “I am too low of rank to compete with you” or “you are too low of rank to compete with me.”

The implications of this power dynamic can be related to the discursive powers in general. My essay in specific is about the power dynamics expressed through the discourses we learn in law school and how to move these power dynamics.

The relevant feature of the above mentioned dog story is reactivity. Being reactive is giving up power to the one who initiated the action. No matter if you win the fight, you have reacted to the other one's action and started a pattern of reactivity, implicitly acknowledging his relevance. On the other hand, not reacting is a way to establish rank and dominance.

This mechanism of reactivity can be seen in law school during class conversation. As we learn to think like lawyers, we learn which modes of thought are reasonable and which are unacceptable. Presumably, this activity is done under the guise of teaching us to be effective advocates, learning how to craft our arguments and our thoughts to persuade judges in the future. But this activity also reinforces and internalizes a power-structure. It keeps us thinking about the law in certain ways and those ways lead to certain outcomes that are more-or-less safe to the power-structures in our world. The discourse of the law school is above us, and whatever we have to say better be within the discourse or our gauntlet is not going to be picked up.

So, how do we handle this situation? We could internalize the power-structure: believe that there is good reason our gauntlets are not picked up, try to find out what that is, and then accept it and modify our behavior in accordance to what we have learned. Or we can be non-reactive in kind. In the discourse's non-reactivity there is an implication that we ought to be thinking a certain way. In response to this implication, you simply don't react to those arguments framed within the discourse. Sure, they may be beautiful pieces of syllogism or other logical structures (often they are not), but they are based on a particular set of suppositions that are uncritically accepted. If you do not agree with those suppositions, you can reject those suppositions, or at the very least, critically reflect on these in a way most people are unwilling to do.

Be wary though, non-reactivity, as you will recall, can be interpreted in two ways: While your non-reactivity may be interpreted as a sign of strength, it may also be interpreted as a sign of weakness, an acknowledgment that you are too low ranking to even enter the arena. . Within law school, internally, it is going to matter how you view your non-reactivity, but externally, your non-reactivity is usually taken as a sign of acquiescence.

Externally then, you need to learn to play the game so you can get the discourse reacting to you. That is, if you care enough. The goal in the short-term is not to “win” an argument, but to change the frame of the argument. This can be accomplished subtly or blatantly; you are simply trying to get a reaction that isn't a dismissal. If the terms of your thought-process are accepted, even if its conclusion is denied, you have successfully elicited a reaction. It's a multiple step game. First, you pick up the gauntlet, but then you drop your own, and you entice them – professors and students alike – to pick up your gauntlet and play the game on your terms.

Students should be aware of confusing non-reactivity with ignorance. Denying or critically questioning the suppositions of other positions is a way not to fall under the power of a discourse, but ignoring them completely is a path to ignorance. The idea is to be aware of what you are doing when you argue within the terms of a discourse; to understand the game you're playing and how you're playing it. You can play games without them becoming your identity and your creed.

A few thoughts:

I was not clear what the ultimate goal of understanding non-reactivity is. I interpreted the goal to be a way to reach creative legal thought – a jump that I think is well within grasp, but that takes more explanation. If you had some other goal in mind, throw it out there more clearly.

The dog metaphor uses the word “dominance.” Expand on this. What, if anything, does it mean to be “dominant” in law school? Maybe this concept can be tied back to the ultimate goal of the paper. Maybe, on the other hand, the metaphor does not work perfectly, but its failure offers an opportunity to explain why the law dynamic is more complex the dog park dynamic.

Underlying everything appears to be the idea of understanding one’s self and the narrative one presents to himself and to the world. This may be an alternate route for you to develop.

Last, I’d love to see a concrete example of your theory in practice in law school. Something personal might be powerful. Otherwise, a fictional example could probably work too. Alex Asen

Mark, I think you have a lot to say and an interesting way of framing it all. I had difficulty parsing your individual sentences and ended up rewriting a lot more than I wanted to. In an effort to make the paper clear enough for me to easily understand, I am sure I inadvertently cut much of what you have to say. Hopefully you will be able to use some of my suggestions to find a satisfactory balance between clarity and sophistication.

At some points I am heavily relying on Eben’s vocabulary. The irony of repeating the professor verbatim in a paper about setting one’s own terms is not lost on me. I used Eben’s words because after a semester with him it is a shorthand vocabulary that we all share. Because I’d hate for Eben to think I was sucking up, I will add that I wrote this revision on my Windows partition in MS Word. -Alex Asen

As a dog trainer – if you pay attention – you learn some things about power dynamics. When dog A drops a ball in front of dog B, takes a step back and wags his tail, he is issuing a challenge. Come get the ball; let's do a little ritualized fighting. Now it's dog B's move, and there are two moves for him in this game: he can either pounce on the ball or ignore the challenge. If he pounces on the ball, regardless of whether or not he wins this battle, he has started a war. By accepting the challenge, dog B has communicated to dog A that dog A is of sufficient rank to compete with him. If dog B ignores the challenge, he is communicating one of two things depending on the context and other body-language signals. He is either saying I am not accepting your challenge because I am too low of rank to compete with you; in which case, dog A made a foolish move by challenging him in the first place, because there would be no point in trying to establish rank over a dog that freely gives it up without a ritualized fight. Or, dog B is communicating that dog A is too low a rank to even compete with him. He is non-reactive to his challenge.

The implications of this power dynamic can be related to the discursive powers in law school. While much of what is said can pertain to any realm with dominant discourses, my purpose here is to examine the game theory elements within law school classes so that students can empower themselves with the knowledge of how to more effectively play this game.

The key feature of the above mentioned dog story is reactivity. Being reactive is giving up power to the one who initiated the action. No matter if you win the fight, you have reacted to the other one's action and started a pattern of reactivity. On the other hand, not reacting is a way to establish rank and dominance.

This mechanism can be seen in law school during class conversation. Overtime, as we learn to think like lawyers, we learn what lines and modes of thought are unreasonable, unacceptable or flat-out dismissed. Presumably, this activity is done under the guise of teaching us to be effective advocates, learning how to craft our arguments and our thoughts to persuade judges in the future. But this activity also reinforces and internalizes a power-structure. It keeps us thinking about the law in certain ways and those ways lead to certain outcomes. The discourse of the law school is above us, and whatever we have to say better be within the discourse or our gauntlet is not going to be picked up.

So, how do we handle this situation? We could internalize the power-structure: believe that there is good reason our gauntlets are not picked up, try to find out what that is, and then accept it and modify our behavior in accordance to what we have learned. Or we can be non-reactive in kind. In the discourse's non-reactivity there is an implication that we ought to be thinking a certain way. You simply don't react to those arguments framed within the discourse. Sure, they may be beautiful pieces of syllogism or other logical structures (often they are not), but they are based on a particular set of suppositions that are uncritically accepted. If you do not agree with those suppositions, you don't have to argue in terms of those suppositions.

Be wary though, there is the another side to non-reactivity. A non-reactive “you” could simply be someone who is too low ranking to even enter the arena. Your thoughts aren't worthy; no one should have bothered approaching you. Within law school, internally, it is going to matter how you view your non-reactivity, but externally, your non-reactivity is usually taken as a sign of acquiescence.

Externally then, you need to learn to play the game so you can get the discourse reacting to you. That is, if you care enough. The goal in the short-term is not to “win” an argument, but to change the frame of the argument. This can be accomplished subtly or blatantly; you are simply trying to get a reaction that isn't a dismissal. If the terms of your thought-process are accepted, even if its conclusion is denied, you have successfully elicited a reaction. It's a multiple step game. First, you pick up the gauntlet, but then you drop your own, and you entice them – by whatever means you find effective in the situation – to get them to pick up your gauntlet. The “them” in this situation is not just the professor, but the students as well. While students are not often as influential as professors, the ways they think create an atmosphere that shapes the discourse as well.

Readers should be aware of the risk of ignorance resulting from non-reactivity. Denying the suppositions of other positions is a way not to fall under the terms of a discourse, but ignoring them completely is a path to ignorance. The idea is to be aware of what you are doing when you argue within the terms of a discourse; to understand the game you're playing and how you're playing it. You can play games without them becoming your identity and your creed.