1. Background on this paper

In my CLS admissions essay (relevant excerpts in bold) , I complained that my debate-team partners were not interested in inquiring WHY we could defend both sides of any argument. Instead, they worshiped winners "as though they had been visited by a muse," and mimicked their outward behaviors as though reproducing steps in a magic spell. I felt that our near-term disinterest in higher awareness was losing us tournaments in the long run.

This semester I finally found premises (Best, Briefest, First) that permit me to write an account for why anything can be argued. I'll save that for my third paper.

In this paper, I apply my four-step process. In each section, I first paraphrase the model/narrative/world-view of a respectable authority; then I announce a position that's defensible in its terms.

Comment ruthlessly -- attack, defend, ruin my grade -- then email me, and I'll defend my position in response.

As always, I am trying to provoke, if not dispute, dissonance.

People have commented, inter alia, that they don't know what they're supposed to say.

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POSITION: That's a valid response. Keep them coming. I'll give you a less frustrating paper in the third exercise -- the exercise that the school encourages to pretend to not be written by a person -- the exercise in which, as in sibling rivalries and pissing contests,
Long peers learned to long
To be ranked by uniform
Not in spite of it.
-- the exercise that you probably won't read anyhow.

-- AndrewGradman - 31 Mar 2008

2. Freud on Socrates

The "Big Bang" Theory of Western Civilization

• • Young Sigmund: Socrates, why are you attracted to young boys?
  • Socrates: The truth is just the opposite -- I'm satisfying my desires with precisely those people that I find UNATTRACTIVE!
  • Sigmund: Why?
  • Socrates: ... so that I can be SURE that what attracted me to them, was not their great beauty, but their great sense of justice. I'm controlling a variable.
  • Sigmund: Which variable?
  • Socrates: Here's the truth: I'm controlling beauty, in order to figure out justice. Girls are Beautiful and Boys are Just; therefore, justice is a function of the boy I happen to be having a ... dialogue with.
  • Sigmund: Is that a dialogue in your pocket, Socrates?
  • Socrates: Yes, I got it last night while thinking about the Muse. We could read it together, if you'd like ...
  • Sigmund: Help, help! Socrates is corrupting the youth of Athens!

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POSITION: Truth is a symptom of minority status

-- AndrewGradman - 04 Apr 2008

3. Hippocrates on harming

Surgeon : body :: "first do no harm" : organs :::: lawyer : society :: "first do no harm" : bodies

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POSITION: Alan Dershowitz (who defends unpopular plaintiffs and makes their narratives symbolic of social malaise) is the best doctor 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

1. Let medicine lead the way. e.g. Surgery, like litigation, wastes resources. Society can't cap the costs because it doesn't know, "What's too much to spend, on health, or on justice?"

• My dad once accepted a mafioso stroke patient who explained, "I knew I had a problem when I wasn't able to pull the trigger."
• Cheap MRIs are creating incidentalomas -- i.e. it's making people "likely sick" faster than it's allowing us to heal them.

2. If the surgeon-body-organ relationship is analogous to the lawyer-society-body relationship, then I don't need to define harm.

-- AndrewGradman - 05 Apr 2008

This is an interesting point, but you need to make it more clear. You tend to talk around your thesis but never directly express it. I see you are making several sub-points, but your main point seems to be that the doctor's emphasis on no harm in the direct and personal sense is roughly equivalent to the ethical requirements of bar admission, and that in both cases, the forest can be lost for the trees (i.e. a system that focuses on the requirements of a specific case can lose the ability to see the requirements of the system). Is that right?

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

Some say we're losing forests for trees -- some say we're finding more forests than we ought to! (cf. Heller, we're finding more "Commons" than we ought to ) To use your terms: 1. No system can define how many trees becomes a forest; 2. A system whose mandate is to operate on forests, but not harm trees, will bias his work towards the trees, which are easier to define. ... SO: YES, you're right, that's what I'm saying.

-- AndrewGradman - 05 Apr 2008

I agree that no system can perfectly define "forest". But on a "observable behavior" level, that is exactly what systems do. Do you want to reject this feature of human intellect (defining categories and contextual levels)? Is it even possible for a human to not instinctively make these distinctions?

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

Ted, I agree, this dilemma is real. I mention it in my response to Jesse in the next section.-- AndrewGradman - 06 Apr 2008

4. Rousseau on legal realism

Rousseau’s lawmaker = every perceived artifact

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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

Is your premise, that all objects of perception are bound by conceptual forms, that we created and use as 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, along with what Sandor mentioned in 3, I think that your dichotomies (good vs. bad) may not be helpful, and may distract from your central point.

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

I responded to Sandor: You're right, law is one voice among many; but only the lawmaker passes judgment on revolutions.

And given that the law, like medicine and science, 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? Even if you "define" all acts as revolutions, they'll get judged constantly in all kind of non-legal, e.g. social and individual, contexts, and are more definite and far-reaching than what we call "law" (the pronouncement of the king in the "ingenious patriot"). Good/bad is as useful as any other dichotomy, but the dichotomy is unnecessary in the first place. Courts, for example, are not limited to Yes and No. Dichotomies make your argument more punchy, but also harder to understand; they distract from your real point.

-- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008]

The important dichotomy is the successful attempted revolution, the illegal behavior that accumulates 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.

Here you say "my real point," and elsewhere you said my "thesis." I'm not going to offer you any clear ethical advice, if that's what you mean by that. We're all first year law students. Why should I tell you what to do, when none of us will be able to do it for at least a decade?

-- AndrewGradman - 05 Apr 2008

True, I was not focusing on the purpose of the paper as a whole. Here I'm saying that you're not defending your particular position 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 [paraphrased by AndrewGradman - 06 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 we speak of 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

I love your suggesting "Law is Love."

If therefore thinking it absurd / To identify Law with some other word, / Unlike so many men / I cannot say Law is again, // No more than they can we suppress / The universal wish to guess / Or slip out of our own position / Into an unconcerned condition. / Although I can at least confine / Your vanity and mine / To stating timidly / A timid similarity, / We shall boast anyway: // Like love I say.

I agree that it's really-really-hard to come up with a binary system that is both falsifiable and really-really-hard to falsify; so how should I presume?

But we're faced with a real problem: [as Ted commented to 3. above,] society actually does sort continuous phenomena into binary categories (e.g. by means of scientists, judges, doctors). So (as you know), we as advocates need to ask, "How does one upset the structure of the assignments between terms and things?" My long-term strategy is to upset assignments by upsetting people. My near-term tactic is to upset their understandings of texts they associate with stability.

That's why I prefer tracing functionalism to Rousseau, when, you're right, anyone would do. It's old news that "The rules change as the rules are applied." By contrast, the notion that Rousseau, the very Framer of the West's vision of "society," defines "lawmaker" flexibly enough to include any artifact -- e.g. the identity of the butterfly that started Hurricane Katrina -- that's a threat from left field. -- AndrewGradman - 05 Apr 2008

5. Plato on anomie

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:

• the bearded old man in white, dreaming/reconstructing a narrative transmitted through hearsay (for, as Plato informs us, Phaedo said to Echecrates, "Plato, if I am not mistaken, was ill"); or
• the young bearded man touching Plato's knee -- who perceived Socrates not as disembodied words, but as a coherent body -- as if that matters.

Similarly:

• without the bird's eye view, how can you determine when you've left the maze? How can you determine whether your maze can even be exited?
• even a "normal" maze, in which we can see from above a line between two apertures, might be unexitable: We can't see the vertical shafts. Man cannot reverse certain ancient falls; the problem is we don't know which.

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POSITION: As progress further divides labor, disparities in education and training will cause neighbors to look more like magicians, act more like magicians, and be less and less capable of empathizing with each other's actual needs.

-- AndrewGradman - 04 Apr 2008

6. Peter Drucker on the profit motive

The corporation is the best cost structure for marketing and innovating visions of justice. Market research suggests that there is a customer for an antidepressant that relieves anxiety produced when impersonal, publicly traded corporations move into one’s neighborhood: the voter and churchgoer; the unionized employee and her manager; and the senior on Medicare, University professor, and nostalgic former Marxist (reference available on request). That antidepressant will be consumed symbolically, i.e. as books, essays and editorials.

My long-term business plan is to obtain tenure at a university, so that my symbol factory will never be overwhelmed by costs. In the short term, I need to learn more about brain chemistry.

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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 competitor's antidepressant.

-- AndrewGradman - 04 Apr 2008

Is the idea (in the Drucker hyperlink) that BECAUSE the corporation is bounded by profit, you are better able to be able to predict their motives/goals?

-- SandorMarton - 05 Apr 2008 [paraphrased by AndrewGradman - 06 Apr 2008]

Actually, I don't think that " the fact that there's no such think as a profit motive helps us predict much.

The corporation appears to have a survival motive, like any legal person, because the opposite of profitability is death. I think that gives the act of Investing some moral weight: Investors tie CEO pay to some opaque algorithm balancing near-term and long-term stock price; then they increase the price of those stocks for which the CEO's rhetoric about present assets symbolizes growth in discounted long-term profitability. Investors are just gambling on the order in which corporations will die.

-- AndrewGradman - 05 Apr 2008

7. Martin Luther King on capitalism

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.

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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

I'll comment on the whole rather than individual parts. I wonder about two things: unity and obscurity. Maybe you don't mean for it to have conventional unity, but the parts do seem somewhat isolated. You explain what you want to do at the beginning and you follow the same format, but what is the glue that holds the parts together?

The other point is related. The paper (both as a whole and in its parts) is not easy to understand. Obscurity needs a purpose. Does the paper require the level of obscurity you give it? You could make your points in a clearer way - in particular, the relation between the models and your "strange positions." A more accessible text would encourage more participation.

-- KalebMcNeely - 06 Apr 2008 [paraphrased by AndrewGradman - 06 Apr 2008]

Kaleb,
"What holds the parts together?" "Why the obscurity?"

1. The act/actor/observer dilemma ( trilemma? ) holds it together --

1. The Haiku in "Background on this paper," cf Veblen on uniforms, what's the sign and what's the substance? Regarding our papers: Given that Eben is the observer, what's the act -- our papers, or us?
2. In "Freud on Socrates," truth/justice/beauty become moving targets when you try to distinguish them. It's impossible to control variables.
3. Hippocrates on health: When an intervener ("observer") tries to improve society by improving a subset of it (whose boundaries he defines, good god, in terms of PROPER FUNCTION), he compromises his proper, larger goal. [Ted explained this one to me.]
4. Rousseau: See "Freud on Socrates:" Here, act/actor/observer = the problem of praxis -- when you make an idea real, how do you then verify that you haven't compromised your idea?
5. 6. and 7. (Plato, Drucker, and King): Our economy says it maximizes value (shareholder, consumer, CEO-agent), but value gets defined by their relationship.

2. All this was obscure to me, too, until after I responded to comments by you, Ted, Gideon, Jesse, and Sandor!

3. I was trying to write a paper that was relevant to as many readers as possible. Now, one way to be relevant is to upset as many people as possible.

At which I'm improving: e.g.
• telling Claire O'Sullivan that she wants to empower the state to rape men who steal bases
• calling Jen Burke The Man responsible for her gender's schizophrenia
• telling Gideon Hart that he treats Christianity like a syndrome, whose only verified symptom is contagion /
• calling Adam Carlis as "racist" as the people who consider inexperience = black)
• calling Dershowitz's defense of contemporary Israel analogous to your defense of WWII Japan (please don't tell my mother) .

But there are other ways to become relevant, and that's not the one I was trying for here. Here, I've created thought experiments, verbal Rorschach prints, which anyone (including myself) can take any side on. In retrospect, I think that once I got your responses to the Rorschach prints, and learned what you regarded as the "shortcomings," I've been able to become more relevant in my responses to your comments. (It's also enabled me to modify the "background" section to make what followed look like it fell directly into my purpose.)

4. In the alternative, I just never learned to accept that "the rules change as the rules are applied," or as Jesse said above: "the question of what kind of law we speak of must precede the binary judgment." In the case of this paper, I spent so much time considering my audience, that I never gathered the courage to tell them anything. Let me be a lesson to you?

-- AndrewGradman - 06 Apr 2008