Keith -- I think framing it as the justice in the individual case, as opposed to who is the underdog, is more helpful. I was very confused, for example, in the Alito confirmation when Ted Kennedy talked about how often Alito sided with the "big guy" against the "little guy" (in one case, a nurse had sued a hospital that had fired her after she endangered patients lives because she had refused on religious grounds to scrub in on abortions, then refused another job where she wouldn't have to -- she was undeniably the 'little guy,' but the hospital seemed nevertheless 'just' to me). I still think that sometimes identifying the 'just' solution can be hard (which does not mean I don't think we ought to try). I do think we ought to consider the consequences of our interventions, though inactions and paralysis are of course choices with consequences too. Michael I am intrigued by the movement to include language to keep judges from misconstruing -- not optimistic that the judges would always listen, but intrigued.

-- AndrewCase - 17 Feb 2009

That's a very interesting situation/proposed solution to this (possible?) problem. I would hope that an explicit legislative intent would deter some judges, however I'm sure there are some who would freely disregard such text in authoring a contrary opinion.

-- KeithEdelman - 16 Feb 2009

Lauren and Keith, I agree with most of what you're saying. I didn't mean to imply that we can identify "underdogs" without respect to the facts of particular cases. (On the other hand, I have a hard time accepting the idea that it's all that difficult to tell who the underdog is most of the time, at least in the cases we ought to be paying attention to.) How best to go about advancing the client's interests is, for me, the tougher question.

Definitely. I actually saw this point raised just recently in a slightly different context. It came up in an ACS issue brief on the recent subversion by the U.S. Supreme Court of statutes originally intended to protect consumers by protecting their right to challenge insurance companies and pension plan administrators in court. The authors suggest, as one response, drafting legislative text with an explicit view toward challenging future misconstrual and subversion by judges.

I've attached the brief to this page for anyone interested in these issues. It's a pretty quick read.

-- MichaelHolloway - 16 Feb 2009

• Lazarus20Tobin20Issue20Brief_0.pdf: Lazarus & Tobin, "The Supreme Court's Two-Front War on the Safety Net"

For me, this label not only obvious, but tends to begs the question. I agree that we should side with the underdog; but isn't the "underdog" defined as the party that is suffering the greater injustice? Some examples facilitate relatively easy characterization (the indigent defendant vs. the "people"), but I'm not sure that this is always the case. I do believe that some situations require greater analysis into precisely who is the underdog.

If we do decide to represent the underdog, I agree that some worry exists as to how future litigants might construe the initial case for unjust gains. But as Professor Moglen referenced above, the solution is not to remain motionless, nor to imperatively act. What type of analysis should occur before we act? Should we try to perform a type of balancing-test (the present injustice vs. the possible unintended, adverse effects of our representation in the future)? For some reason this doesn't seem satisfactory - perhaps it is too close to "transcendental nonsense". Maybe we should just be very careful to craft our arguments and representation to minimize any chance of misuse?

-- KeithEdelman - 16 Feb 2009

Michael, do you think that "the underdog" is a fixed concept? In terms of your proposed criminal defense work, you might think it is the indigent accused criminal. But if everyone follows your proposition and begins to "side with the underdog," then many individuals will represent the criminally accused and the label of "the underdog" might shift to the victims. Maybe we ought not be so concerned about who "the underdog" is and we should instead be concerned about whether we have a legal system that provides fair and zealous representation to all parties.

-- LaurenRosenberg - 16 Feb 2009

I'm not really trying to argue in favor of seminar room nihilism. I think I boxed myself into an absurd position above just trying to set up the idea I took from Andrew's original post. (1-4 above were just restatements of what I took from that post, and aren't really meant to be doing any work here.)

Maybe what I'm getting at will make more sense if I bring the discussion down to Earth and give some examples. One constructive response to the anxiety I'm describing would be to represent clients whom our society places at a systematic disadvantage -- for instance, through indigent criminal defense work. Similarly, I'm not particularly worried about harms arising from civil rights work, or plaintiff-side class action work, or from any of the examples Prof. Moglen mentioned above. I think I'm really just saying that if we want to make sure we're really doing justice, we should always side with the underdog. (I suppose that might be obvious.)

So what am I suggesting we ought to worry about, even if we side with underdogs? I'm not totally sure myself, but I think it has something to do with how legal doctrines can take on a life of their own, and get applied by courts in both just and unjust ways. For instance, in my Con Law class we've been talking about substantive due process, which is now understood as the basis for a constitutional right to privacy; if we're concerned with protecting civil liberties, we'll likely argue our cases on the basis of doctrines connected to substantive due process. But substantive due process arose in Lochner and subsequent cases as a justification for preventing states from passing hour and wage laws for workers' benefit. Of course, Lochner is supposedly discredited now, but it's not clear to me that the doctrine of substantive due process couldn't be used for similarly obscene ends in the future. The same could hold true for many legal doctrines.

-- MichaelHolloway - 15 Feb 2009

• No, that's the same error from the other direction. That would leave everyone with an impossible heap of competing "imperatives."

If one truly believes that injustice is being done, doesn't one have a moral imperative to act if possible?

-- AaronShepard - 14 Feb 2009

• I agree that this came out as a gross generalization at best. But it's not fair to assume that it reflects a major philosophical shift based on ideas I'd never come across before enrolling in this course. I don't see any grounds for that assumption.

• Point taken. But if unforeseen harms are a problem worth taking seriously, I'm not sure how to proceed.

• "Refactoring" is a word drawn from the practices of computer programmers. In wiki communities, to refactor a wiki page is to reorganize the ideas it contains to increase the usefulness of the page to readers. Using wiki the way we use it, to start topics of conversation that are intended to reach greater clarity or insight into the ideas we discuss when we are together, refactoring usually involves removing discussion and replacing it, as you did, with clear restatements. Because every version of every page is always available to all readers, removing the conversation doesn't mean that it's lost. The convention of refactoring is to take the page, remove discussion leaving a summary of what has been concluded and what remains in disagreement, followed by a list of the names of contributors to the discussion being summarized.

but since this has grown frustrating and confusing, I'm replacing the entire thread with a straightforward summary that does not resort to referencing Wikipedia, historical analogy, Poland in the 50s, Robspierre, or any other pretensions. I never meant to write anything complicated or argumentative.

• Apparently I did not make myself clear. Geithner and his predecessor, Paulson, made a legal argument: that they did not have statutory authority to prevent the collapse of Lehman. This is pretty generally agreed to be false on its face, and is inconsistent with their other behavior in the same period.

• This can't be the standard applied to private practice, because one could not possibly give zealous representation to any client if one had a supervening duty to prevent unforeseen harms to everyone else.

• Apparently I did not make myself clear. Geithner and his predecessor, Paulson, made a

Aaron, I'll need some time to think about how I would want to revise #3, if it's worth pursuing. I think what I said might hold true at least for institutions in which one's participation is less than absolutely voluntary. In the meantime, I changed "most" to "many," which I think I can stand by.

I think your assessment of my main idea is largely accurate; it's an approach for someone who's concerned above all else with avoiding committing injustices of his own. "First do no evil" is the idea I have in mind.

I wouldn't so readily equate being a critic with staying on the sidelines, though. In our society, the tendency is to frown on people who criticize the way things are without offering solutions of their own. But I don't think that's fair; simply complaining about injustice can serve some useful purposes. It lets others feeling the same way know that they're not alone, and can show the injustice to others who hadn't thought about it before.

-- MichaelHolloway - 14 Feb 2009

• Apparently I did not make myself clear. They made a legal argument: that they did not have statutory authority to prevent the collapse of Lehman. This is pretty generally agreed to be false on its face.

• Maybe. I don't feel particularly outraged. As I said, history will take a while to confirm the details of what happened at the end of 2008, and in the meantime it is more of a problem for Geithner in doing what now must be done. That he has low political credibility among those familiar with the situation was shown by the reception of his big policy announcement this week, after I made the comment you misunderstood that predicted his problem on the basis of its origin. That was Arnoldian political analysis, not outrage.

• It is not clear to me where the idea of living lives based solely on outrage came from. Not from me, so far as I know. Might it be a red herring?

• How do you know? The proposition is not obvious. From each according to his ability and to each according to his need is not a very very hard place to start. Nor is the principle of equal dignity and respect for all persons. The details may be complex, but the details of injustice are no easier to arrange, so it's not clear what head-shaking about the devilishness of details really amounts to.

• Suddenly everyone is an anarchist. This proposition is hardly self-evident.

• There's no evidence offered for this proposition, and if one took it seriously, one would wind up feeling unnecessarily unable to act. Surely the way to deal with racial segregation of public transit, or a particular wrongful conviction, or the inhumane detention of "illegal immigrants" is not to remain motionless, concerned with the unforeseen injustices that would result from dealing with the existing wrong.

Michael, could you draw out #3 a bit? I'm not quite sure what you are saying, and on the surface, I disagree with that assertion.

I also am not sure that #4 is so self evident. From of view that we live in a relativist society, then yes, clearly Newton's 3rd law will apply. But I think there are ways of implementing justice that present an overall decrease in societal injustice.

I am an extremely cynical person, but #5 is a bit too much for me; it's reminiscent of those people who don't vote because 'both candidates stink' or 'I don't want to choose the lesser of two evils'. Decisions are made by those who show up, and while there are negative effects of any action, simply staying on the sideline does not seem to be a reasonable solution.

-- AaronShepard - 13 Feb 2009

Thank you Michael. I think we're on the same page now.

-- AndrewCase - 13 Feb 2009

Likewise, my response was a simple one, addressed to Andrew's point #4 above: simply being against things might not be such a bad thing after all.

I followed Andrew's lead and itemized my points, too, for the sake of clarity (for both myself and others). Andrew, if I've mischaracterized any of your points, please feel free to comment or edit.

1) We all carry notions of what a just society looks like and how to bring it about. These notions vary widely from one person to another.

2) Andrew suggested that these notions form for each of us as reactions to the injustices prevailing in our particular time and place; their variety reflects the variety of our formative experiences. I think he's right.

3) Andrew also suggested, on a related note, that the all political states depend at bottom on oppression, i.e., injustice. I pointed out that this is true of most non-state organizations as well.

4) If my goal is to do justice, (2) and (3) together present a problem: my efforts to implement positive justice, if they meet with any success, will likely only lead to new and unforeseen injustices.

5) One potential response is to avoid this difficulty altogether by simply remaining a perpetual critic of particular injustices, and to leave building things to others.

I'm not at all convinced this is the best response, or even a particularly good one; I'm just curious about what others think.

-- MichaelHolloway - 13 Feb 2009

• I'm sorry, this doesn't make sense to me. That seems like a completely arbitrary definition of a word that does usually have a fairly precise meaning.

• This doesn't explain why you were talking about growing up in Poland in the 50s (Andrzej actually left Poland in 1969, if memory serves).

My language may have been broad but my thoughts were quite specific -- my concerns are not with "lawyering" (at this point I'm far from sure what lawyering means in our class -- Homer changed the world with words more than any 'lawyer,' and the words that Paul Robeson changed the world with did not come from CLS),

• What does the first part have to do with the parenthetical? Is the existence or nonexistence of Homer relevant?

I'm concerned with the group of us in this room and what we will be doing in three years. Do we need to ask what we will be replacing the old guard with before we soldier forth with an abstract mandate ('get people out of prison,' 'feed the hungry')? Do we need to have a set of our own positive myths in place before we take action?

• The first question sounds practical, though I don't know what it means. The second question sounds silly: "Having a set of positive myths in place" requires both a positivity scale for myths and a placing process that I can't contemplate with a straight face.

Is there any way to move forward without myths at all? I sense Arnold would say no --

• If this means, can we have organizations without creeds that define the organization and attitudes and habits that give people a sense of purpose within it, Arnold would indeed say no. But that doesn't license the woozy haziness of the rest of this comment--he's making a specific point and you're wrenching it violently out of context.

so if myths and folklore are necessary, shouldn't the content and context of our myths come before our examination of others?

• This is about some general concept of "myth" again, which is being confused with something Arnold was writing about.

That would mean remaining the perpetual underdog, which probably gets depressing, but it might also be a way to keep ourselves honest. Maybe myths become dangerous when they move from pointing out sources of injustice to justifying injustices of their own (as with Robespierre, or libertarianism)?

• What? This didn't make any sense the first time, and I tried to explain why above and here we are still talking in this nonspecific way about both Robespierre and libertarianism. Could somebody please explain the idea without using historical data adjectivally, as though we all know the same history and understand the figurative connotation? Some of us know too little history for that to work, and some of us know too much.

• Now I am lost. I haven't the faintest idea what you two gentlemen have just been agreeing about. Why don't you go back and refactor this topic so that instead of the dialog we have a clear succinct statement of whatever you think you have achieved consensus about? I don't, on yet another rereading, see where this discussion has gone.

Michael -- I agree on the last point. I'm not sure whether remaining the perpetual underdog would be depressing unless we choose to let it be. The 'official' myths started somewhere, they were invented by someone, and they then developed into official myths somehow -- that may not be an idea of Arnold's, but it seems to be something that can be done with his analysis.

-- AndrewCase - 12 Feb 2009

Andrew: If, as you suggested, it's in the nature of states (or could we say, on a more general level, "official" power structures?) to oppress, then maybe we know we're on the right track if our own myths stand in opposition to "official" myths, or at least address some of the ways they fail on their own terms? That would mean remaining the perpetual underdog, which probably gets depressing, but it might also be a way to keep ourselves honest. Maybe myths become dangerous when they move from pointing out sources of injustice to justifying injustices of their own (as with Robespierre, or libertarianism)?

-- MichaelHolloway - 12 Feb 2009

• This reminds me of the suggestion that we first have to know how to fix law school before we can go to it. The whole "personal myths" strain isn't an idea of Arnold's: his point has to do with how organizations work, not how individual human psyches are constructed. One can of course ask about the creeds, habits and attitudes of law school as an organization; in my experience that gets overasked by my students, if anything.

• Does not capture the essence, point well taken. I was struck by the Fish piece in relation to this class (the professor in it seems to be undermining his own case by his course of action, and I thought it an apt comparison to how we are proceeding here). Probably not apt to the discussion at hand, and an opportunity to kill my darlings. ac

• See below

I of course know very little of your or Prof. R's personal history; and he was making a legal, not a moral point (he made quite clear that there are terrible consequences to accepting the legal as moral). My language may have been broad by my thoughts were quite specific -- my concerns are not with "lawyering" (at this point I'm far from sure what lawyering means in our class -- Homer changed the world with words more than any 'lawyer,' and the words that Paul Robeson changed the world with did not come from CLS), I'm concerned with the group of us in this room and what we will be doing in three years. Do we need to ask what we will be replacing the old guard with before we soldier forth with an abstract mandate ('get people out of prison,' 'feed the hungry')? Do we need to have a set of our own positive myths in place before we take action? Is there any way to move forward without myths at all? I sense Arnold would say no -- so if myths and folklore are necessary, shouldn't the content and context of our myths come before our examination of others?

-- AndrewCase - 11 Feb 2009

• Are you sure that's what I said yesterday? I don't think I was addressing libertarianism any more than I was addressing spiritual pride. (Perhaps one is a version of the other?)

• This is an odd juxtaposition, with no analytical benefit to the reader, so far as I can see. My beef with law school as presently conducted is that it does not serve the intended purpose of making people into more creative, happier and more socially effective lawyers. I say that law school does not do law schooling well, which is indeed not about saying that the university primarily produces oppression. But why I believe law school should be fundamentally changed in order to achieve adequately its professed purpose does not capture the essence either of what I said yesterday or of what differentiates me from Andrzej psychologically and politically.

• Andrzej's background and its effect on his thought is more complex than this account suggests. Neither the man who wrote about Jean Bodin, nor the one who enthusiastically taught von Treitschke and Joseph de Maistre, was anti-statist. What causes one not to save the drowning is not necessarily heartlessness.

• Robespierre seems to me again a peculiar place to begin. The difference between what Robespierre (or Talleyrand, just so we don't think ideology has anything to do with it) are up to in the fete de la Federation or other acts of public drama is what Thurman Arnold is also up to, and what, Arnold would say, all effort to deal with organized society is always up to. So the conclusion is only an assertion, and to say of lawyering that it worries you is probably not enough of a response.

What is going on here? Rapaczynski is not a heartless man, and while Moglen is at odds with the university, he is not at war with it.

I think as we examine our status as winners of a global lottery we should not ignore the contours of the various different lotteries we have won. If you grow up in Warsaw in the 50s (privileged though you may be) you will be more skeptical of communal solutions, because you will have seen communal failure. Growing up in the US, a rebellious mind will turn on capitalism. Both views are "right," (something can be done with each) because both are essentially negations – both states are oppressive, because it is in the nature of states to oppress.

Our own backgrounds compel us to create our own myths, many of them born of a critical view of where we were raised. Theodor’s family history in the DDR compels him to write that the Stasi are the progeny of the Gestapo, when in fact Nazi officers were prosecuted far more vigorously in the East than in the West (the Stasi were no saints but were in fact modeled on the MGB). I, meanwhile, can’t read about the 323 executions (more than half of which took place in one year, and 60 of which were executions of Nazi officers) and the writers who lost their jobs when they refused to conform to party ideals without thinking that the US has executed more than three times that many since 1976, and that as a nation we are no stranger to silencing writers for their political views.

We should, I think, try to be aware of our personal myths, born of personal backgrounds, as we proceed. We have an opportunity (maybe even a responsibility) to overthrow the old myths, but as we do so I worry that we will replace them with myths and folklore of our own.

-- AndrewCase - 11 Feb 2009

<--/commentPlugin-->