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Law in Contemporary Society
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April 4, 7pm: Done. Comment ruthlessly. Attack, defend, ruin my grade, ramble on a random inspiration. As always, I am trying to provoke, if not dispute, dissonance.
BACKGROUND: In my Columbia admissions essay, I said I was dissatisfied with my undergraduate debate team because it never attempted to explain WHY it was possible to defend any position. This semester I came up with an attractive-sounding reason why. I express that account in comments on two classmates' early paper ideas.
(1),
(2), (3).
Here, I will
To be ranked by uniform Not in spite of it.
POSITION: Truth is a symptom of minority status -- AndrewGradman - 04 Apr 2008 3. Surgeon : body :: "first do no harm" : organs :::: lawyer : society :: "first do no harm" : bodies POSITION: Alan Dershowitz (who defends unpopular plaintiffs and makes their narratives symbolic of social malaise) is the most compliant man among us. -- AndrewGradman - 04 Apr 2008 Perhaps a definition of what you mean by "harm" when referring to the law would be helpful? -- SandorMarton - 05 Apr 2008 I think medicine ought to lead the way. Last night my dad told me that he once accepted a stroke patient from the mafia who told him, "I knew I had a problem when I wasn't able to pull the trigger." And the boom in cheap MRIs is making people nervous (i.e. "likely sick") faster than it's making them healthy. Surgery, like litigation, wastes resources, and society can't cap the costs because it doesn't know, "What's too much to spend, on health or on justice?" -- AndrewGradman - 05 Apr 2008 I think this is an interesting point, but I think you need to make it more clear. (I feel like you tend to talk your way around your thesis but never directly express it.) I feel like there are sub-points you are making, but I understand your main point to be that the emphasis on no harm in the direct and personal sense (for the doctor), is roughly equivalent to the emphasis on the ethical requirements of practicing law, and that in both cases, the forest can be lost for the trees, in the sense that a system that focuses on the requirements of a specific case can lose the ability to see the requirements of the system. Is that at all where you are trying to go? -- TheodoreSmith - 05 Apr 2008 My personal opinion (since you ask) is that we're not losing forests for trees -- we're finding more forests than we ought to! (cf. Heller, we're finding more "Commons" than we ought to ) But my thesis is that no system can define how many trees becomes a forest. Since I can't define it, I don't try to define it. -- AndrewGradman - 05 Apr 2008 I think we are framing the metaphor differently... =) I think your forests (of which we are finding more than we ought to), are what I was referring to as trees (of which we are finding more than we ought to). -- TheodoreSmith - 05 Apr 2008 I agree with you: we haven't agreed on anything. -- AndrewGradman - 05 Apr 2008 And I agree that no system can define what is the forest in an objective sense, but on a "observable behavior" level, that is exactly what systems do. Are you going to argue that this feature of human intellect (defining categories and contextual levels) should be rejected? Is it even possible for a human to not instinctually make these distinctions? -- TheodoreSmith - 05 Apr 2008 4. Rousseau’s lawmaker = every perceived artifact POSITION: All observable behavior consists entirely in externalities; all externalities soon become either failed or successful revolutions; Law is the voice that teaches us: (good vs. bad) / (long term vs. short term) / (surveil or don't) / (education, marketing, campaigning, trust, map-writing vs. propaganda, exploitation, enslavement, lies, art). -- AndrewGradman - 04 Apr 2008 Are trying to get at the idea that all objects of perception are bound by conceptual forms that we have created and used to build the context in which they can be perceived? If so, I don't think "law is the voice," but simply one of the voices (and probably not a very powerful one at that). Also, kind of going along with what Sandor mentioned in 3, I think that putting things in dichotomies (good vs. bad) is maybe not that helpful, and a little distracting from your central point. -- TheodoreSmith - 05 Apr 2008 I responded to Sandor: You're right, law is one voice among many; but I defined acts as revolutions, and only law passes judgment on revolutions. And given that the law, like medicine, gets implemented in binary (i.e. plaintiffs ask questions, and courts say "Yes" or "No" / inpatients present symptoms, and doctors say "intervene/don't"), I think that "good"/"bad" is as useful as any other dichotomy. -- AndrewGradman - 05 Apr 2008 Why can revolutions only be judged by the law? It seems like if you are defining acts as revolutions, than the type of revolution you are talking about gets judged constantly in all kind of non-legal contexts... I think your claim may be too strong - a type of revolution can perhaps only be judged by the law, but certainly not "all observable behavior." There are lots of kinds of social and individual consensus that pass judgments on acts, and many of them are more definite and more far reaching than what we are calling law (the pronouncement of the king in the "ingenious patriot") And I think this is exactly why the dichotomy here is unnecessary. Of course good/bad is as useful as any other dichotomy, however I think the dichotomy is unnecessary in the first place. The actual performative in law can often come in a dichotomizable form, however it often doesn't (courts are not limited to Yes and No). I see why you would use them to make your argument more punchy, but I think it makes it harder to understand; there is so much emphasis on the dichotomy that it distracts from your real point. -- TheodoreSmith - 05 Apr 2008 I am defining attempted revolutions as out-of-court acts that change the law or don't. Successful attempts are illegal behaviors that accumulate into a groundswell that eventually changes the law. For example, Rosa Parks on the bus, and Hitler at his 1923 trial for the beer hall putsch. My point is precisely that my loose terms let me defend ANY ethical position. I'm not going to defend one over another. We're all first year law students. Why should I bother convincing you of my opinion, when none of us will be able to act upon it for at least a decade? -- AndrewGradman - 05 Apr 2008 It's true, I was not focusing on the purpose of the paper as a whole, however, my argument here is that you are not defending your position ("tolerable narrative") effectively because your terms are too loose. =) (and no invoking the overall purpose of the paper... it makes it too difficult to suspend disbelief!) I like the idea of the participatory paper, by the way! -- TheodoreSmith - 05 Apr 2008 You seem to be making some kind of instability-of-semantics argument, which isn't that controversial to me or to Felix Cohen when you consider that the 'law' is anything that brings the coercive force of the community to bear on individuals. I suggest reading 'Law is Love' by WH Auden where he lists the forms of coercion, i.e. 'law', in our society. In this sense, I agree with Teddy - the binary model fails because the question of what kind of law of which we speak must precede the binary judgment. Since the answer to that question is indefinite and indeterminate, that falsifies the binary judgment model entirely. -- JesseCreed - 05 Apr 2008 6. Just as we cannot distinguish whether Plato was the ultimate Jayson Blair, or was "merely" a faithful stenographer/journalist/fly on the wall, we also don't know which is the real Plato:
POSITION: As scientific progress advances the necessary division of labor, disparities in education and training will cause neighbors to look more like magicians, and act more like magicians, and be less and less capable of empathizing with each other's actual needs. For:
Position: 1. [revised cover letter]: "That is why I want to work for Bristol-Myers Squibb: I trust their opinion, more than I trust the opinion of a private nonprofit with a private agenda, because it is the function of a publicly traded corporation to answer this question correctly. 2. Die Gedanken Sind Frei is the name for the competitor's antidepressant. -- AndrewGradman - 04 Apr 2008 Is the idea that the corporation is bounded by profit... so you are more likely to be able to predict their motives/goals correctly? "Consequently, Drucker defends the concept of corporate social responsibility, but only as a planned wealth endeavor that is profitable for shareholders, and not on the basis of the distorted view of social responsibilty that revolves around the stakeholder concept. Says he: That such objectives (social responsibility objectives) need to be built into the strategy of a business, rather than merely be statements of good intentions, needs to be stressed here. Those are objectives that are needed not because the manager has a responsibility to society. They are needed because the manager has a responsibility to the enterprise." -- SandorMarton - 05 Apr 2008 There is no profit motive. Investors tie CEO pay to some opaque algorithm balancing near-term and long-term stock price, then they increase the price of stocks for which the CEO's rhetoric about the underlying assets symbolizes growth in the present value of its long-term profitability. The corporation has a survival motive, like any legal person, because the opposite of profitability is death. Investors are just gambling on the order in which corporations will die. -- AndrewGradman - 05 Apr 2008 8. I have a nightmare, that in my lifetime technology will continue to improve. And as the menu of possible breads and circuses grows more complex, Americans will be unable to distinguish their options; and they will have only faith that their options are different; and, being Englishmen, they will lose faith in anyone’s ability to make the "choice" that is right for them. They will call their confusion Pluralism, and their agosticism Science: and they will replace legislatures with bureaucrats, and bureaucracies with corporations; elections with marketing, and monetize all Value; Senates with Boards of Directors, Presidents with CEOs ... The publicly-held corporation will assume the function of the democratic state ... but our language will continue to contrast the two. POSITION: I have a dream, that one day CEOs will use those moments when they're not being watched by Boards Directors to increase consumer rather than shareholder value. That's really my dream. My dream is to someday teach at a business school, and share my nightmares with those people. -- AndrewGradman - 04 Apr 2008 |
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