1-17-08 - Thursday

The biological layer of a theory of social action for lawyers Lawyer’s MIND should have rich associative memory regarding the matters for which they’re being paid. The right brag for a litigator is “able to learn a new subject quickly.” →you want to become able to hear enough to make an association that makes a bell ring. →Because an argument/essay is a constructed entity, you should be able to find a quotation with reference to the structure in your mind. →Litigation support technology—full-text search—is still way inferior to a well-stocked lawyer’s mind.

What impedes good memory? 1. sleep deprivation and 2. stress. But you must learn to form good memories under sleep deprivation, because you’re going to law firms. What you do affects your body, and your brain is no exception. 3. “Vegging out” = “time spent forgetting what you read 45 minutes ago—–the neurological process antecedent to losing memories.” Could the professor please define the boundary line between vegging out, and not vegging out that's also not working? Prof: The overstimulated mind needs rest and relaxation. But COMMERCIAL TV is a social [something]: it induces a state of mind that facilitates selling to you, which is "vegging out." That a by-product of vegging out is poorer memory is not their problem. Moglen suggests transcendental meditation.

Holmes - The Path of the Law

• Intro to 19th C. legal realism
• knowledge of the law requires looking at it as a bad man would
• focus on the practical consequences (what the law does, not what it says)
• the limiting principle of legal realism (how much extra-textual knowledge one should have) is where the public force will be applied

2 fallacies:

1) confounding of morality & law

• contract law - formalism (offer & acceptance) v. realism (damages)
• separate moral stock from legal talk
• isolate the language of the law

2) the notion that the only force at work in the development of law is logic

• Logic results from the human need to comprehend our environment
• we impose logic on the structure of the universe
• logic is a human frailty
• The language of judicial decisions is that of logic
• Holmes uses it as term of derogation in his opinions
• Any proposition can have a logical form
• To say that legal consequences occur as deduction from axioms is wrong

• The sound of the new century: "But certainty is generally illusion, and repose is not the destiny of man."
• Creativity emerges from focus

---

How do I edit without overwriting FeliciaGilbert? 's credit at the bottom? And how do I make a single line break? -andrew

• found one answer – when editing, mark "new revision." I think it ought to be marked by default. -- AndrewGradman - 18 Jan 2008

This is a test of using
to create a SINGLE line break. (the default is a double space and I do not like.)

-- AndrewGradman - 17 Jan 2008

I'm not sure if this is a good place for it, but I think it would be good if we had a space to talk about the different topics brought up in class and post links to other info, etc. Perhaps we need just one running page of comments instead of attaching them to class notes?

In any case, here's a question: Does watching TLC and the Discovery channel count as vegging out?

-- KateVershov - 18 Jan 2008

As a side bar - it would be awesome if we could have a discussion board that was anonymous. I think people are afraid of saying something that the professor will not like. Otherwise, the responses elicited are likely to be urbane expositions for the professor's eye, rather than genuine engagement.

-- KateVershov - 18 Jan 2008

• You can make one many places, Kate, and I'll help if people don't know how. But this is actually a class we're making together. Many kinds of trust are necessary for collaboration, one basic kind being the trust that students need to have that teachers are working on their students' behalf, as lawyers work on their clients' behalf. That's why grades and exams are stupid, because they interfere with the trust that makes teaching possible. My effort is to help people think more creatively in order to give them more of what they are seeking, which is why I begin by asking what people want. Obviously there are things you want to write that you don't want me to read, and there is literally no end of places to write and share them. Not, however, here. On my side, you have my word that whether I agree or disagree with an idea is not how I go about judging the execution of the thinker's expression.
  -- EbenMoglen 20 Jan 2008.

With regards to vegging out, I was wondering what Eben thought about film studies/active viewing. As a film studies major in college, I spent most of my time trying to "actively" watch films in order to unpack how they were constructed and how they were designed to affect the viewer. Is the memory-harming "vegging out" we discussed a necessary effect of the medium, or is it possible to engage with television and film in such a way as to make it an intellectually stimulating experience?

-- DanielButrymowicz - 18 Jan 2008

• I defer more explication of my view to class on Wednesday. For the moment, let me just say again that I was talking about a list of steps for the strengthening of memory, not primarily conducting a campaign against television, let alone against video more generally.
  -- EbenMoglen - 20 Jan 2008

Andrew, I am not sure about the credit issue. To add a line break you can try using

 <BR> 

if you find you cannot just hit enter.

Kate, unless you create a new account and use another IP for it (or use another site to host the board), what you post could likely still be tied back to you. In a class of opinionated law students, I'm willing to bet that we can manage plenty of engagement and even some controversy with our names showing. That said, it is hardly my decision to make.

-- DanBryan - 18 Jan 2008

I can't speak for Eben but to me engaging with film (or with TV, though I've not watched much in a while) wouldn't seem to be a problem as much as sitting back completely mindlessly and letting TV flow over one. I think it would be hard for most of us to get to that point, but maybe it's a little harmful even when engaging with some programming. Does it harm memory to "take up space" with remembering the characters and storylines from a TV drama, and does it harm it any more than remembering the equivalents from [example of the day] Shakespeare's works? Is either or both a "waste?"

-- DanielHarris - 18 Jan 2008

The TV discussion reminded me of this great Simpsons line:

Lisa: It's not out fault our generation has short attention spans, Dad. We watch an appalling amount of TV.

Homer: Don't you ever, EVER talk that way about television.

Here's a video of another funny Simpsons moment that is somewhat on-point: http://video.aol.com/video-detail/simpsons-halloween-shining-episode/1093522388

-- TedKreit - 18 Jan 2008

Actually what I found most interesting about the vegging out discussion was the preface. I feel somewhat totally ignorrant but I have always thought of memory as something more innate or biological. As a kid, I often remarked on how unfair k-12 education was because it was all about memory. I was wondering if anyone who did psych undergrad took any classes on it. I have heard of speed reading classes, but is it just common knowledge that memory is something we all can master? Does everyone agree with the proposition? In tutoring many kids over time and just growing up it would seem that this has not been my experience. In addition, I have never tried to work at my memory. So after a brief wikipedia check I figured I would just ask the class for your thoughts.

-- MichaelBrown - 18 Jan 2008

Kate suggests an anonymous discussion board because "people are afraid of saying something that the professor will not like ... the responses elicited are likely to be urbane expositions for the professor's eye, rather than genuine engagement."

The professor believes in open information, and he's reading my response, so I can't take Kate's side. Rather, "in my opinion," (i.e. in his likely opinion), we should write what we think, not what he'd like us to think!

This class is, after all, about challenging authority. I grant that Eben presents a difficult classroom environment for that. But I theorize that he asserts his opinions so strongly in class to force us to absorb them ("listen"), so that we can only critique them later -- i.e., after thinking -- i.e., intelligently. He reserved the TWiki as our forum for that critique.

My model predicts that the prof will be more tolerant of dissent on the TWiki. I'm gambling that this sort of disrespectful post, while inappropriate to say to Eben's face, won't even get me a slap on the wrist.

-- AndrewGradman - 18 Jan 2008

On the Topic of “Vegging Out”: Does the Medium Matter?

Many people of a certain social class or educational background loudly proclaim that one must read Shakespeare and see it preformed on stage. I sincerely doubt that that anyone would try to argue that Shakespeare necessarily loses its artistic or intellectual value when produced for the small screen. If a television production of a Shakespeare play can have value, why can’t other productions designed for the small screen?

Television is a medium for the masses and bashing television is an easy way for an individual to declare that he or she is better than the masses. Staring at a painting on a wall or listening to Beethoven can be a way of “vegging out” or a way of stimulating one’s mind.

MOMA is designed to make you buy postcards and memberships. Operas are preformed to induce you to buy tickets. Saying that television is a commercialized medium of expression designed to make you buy things does nothing more than force us to ask what medium of expression has not been commercialized.

Every medium for expression is what the artist and the consumer make of it.

-- StephenClarke - 19 Jan 2008

My guess, Steve, and I really think you are on to something, is that is why Eban talked about meditation. While he mentioned "reading" Shakespeare, I have a feeling that a line would be drawn somewhere in his theory when the audience stops being an active, thinking participant and becomes a mindless consumer, or worse, a mindless nothing.

But, the slope is slippery. Reading Shakespeare, good for the memory. Reading Kant, also good. What about Tom Clancey?

I think this gets to Daniel's point about it isn't so much what medium (print, audio, visual, etc.), but what you do with that medium. The only way this is not the case is if there is something inherently different about watching something on a screen that is distinct from seeing it in person, hearing it, or reading the words. If I don't want to "veg out," but do want to laugh, can I read the script from The Simpsons?

-- AdamCarlis - 19 Jan 2008

I could not agree more with the other Adam. Personally, it does not get better then "survivor man" on the Discovery Channel or "explorer" on Nat Geo. I believe that what one intends to do with the medium is truly indicative of what result you will derive from engaging the medium. The fact of it is: if stranded in the desert I would know how to purify my urine for drinking (bear grylls cannot do this and Shakespear would probably die of thirst).

I want to raise a point that I believe has not been raised so far. What of beneficial vegging in its purest form, i.e. turning off the brain for a little. As anyone who has taken, or at this school anyone who has taught, a standardized test prep course knows, a fundamental instruction is "don't do anything" the day before the test. Professor Dorf instructed his Civ Pro class to go to the movies the night before his exam with, I suppose, the connotation of turning off the brain regarding any and all law thinking. Furthermore, what do we as a class make of the omnipresent possibility of active thinking burn-out?

I think there is something to pure vegging out. I agree that as lawyers we should be constantly honing our mental acuity, but I believe a little vegging here and there is a positive thing for my net work product here at law school.

-- AdamGold? - 19 Jan 2008

-- JosephMacias - 19 Jan 2008

I don't currently own a television, because I thought that it would be a distraction in my first year of law school. However, I think I will get a TV soon, because I still am "vegging out" after school by mindless web browsing about obscure topics, and this seems less useful than watching the History Channel, Discovery, or even CNN. In addition, watching video on the web is totally unrewarding, as most web episodes or entertain to be found online usually runs 1-3 minutes. At least TV tries to stretch a person's attention span for 30-60 minutes.

HBO I miss you!

-Joey

-- JosephMacias - 19 Jan 2008

Oh. One more thing. I think Holmes only thought that logic was a human fragility with regards to applying logic to the law. He simply was asserting that there is no empirical truth in the law the same way that there is an empirical truth in psychics and mathematics. He wasn't attacking logic per se.

-- JosephMacias - 19 Jan 2008

On the Topic of "Vegging Out" in front of the television:

There seems to be a running current through a lot of the comments on this subject which hints that most of us do not agree with the premise that medium determines worth. I am especially averse to that assumption. From the beginning known history, Art has followed technology. The Orators of the Homeric Age were Artists in their grand retelling of the Iliad from memory. After the spread of the written, Shakespeare and other poets and writers used the new medium to convey their creative and imaginative ideas. The mere use of a different medium, has never historically been a test of the validity or worth of art. Whether in music, fashion, theater, or newer forms of multimedia, artists have always found ways to use new mediums to create art. People like Spielberg and Scorcese can create works of art that rival the greatness of Shakespeare. They should not be penalized by their use of a different medium.

So, while i accept that much of what is on television is probably rotting our minds, it should not be assumed that everything on a TV or DVD is inherently worthless.

I have to Agree with Dan Butrymowicz in believing that shows and movies can create intellectually stimulating experiences. Although i was not a film major, i did study theater in high school and college. As a result, I believe that there are a number of extraordinary movies and shows out there that are artistically written and skillfully performed in a way as to make the audience think and actively interact with the material.

-- OluwafemiMorohunfola - 19 Jan 2008

Although I really have no idea whether TV inhibits the formation of useful memories (I'd be interested in seeing some statistical evidence on the topic), I can, from first-hand experience, support Eben's suggestion to meditate as a means of relaxing. I always thought meditation was either hippie BS or something for exotic eastern religions; however, last semester when I was having trouble dealing with stress, a close friend suggested I try breathing exercises as a form of meditation. It only took me a few days to get the hang of it, and despite my skepticism, I had to admit that it was a great way to clear my mind and relax after a long day of class and studying. I don't really know whether it helps or hurts my memory, but I can understand how it has persisted as a form of relaxation for thousands of years, despite the invention TV, a far flashier and more scintillating form of leisure. I think, in the end, my positive experience meditating stems from Daniel and Adam's earlier comments that it is much more a question of what you do with the medium, than what exactly the medium is.

-- GideonHart - 19 Jan 2008

In response to Michael Brown’s question about memory:

Of course, some capabilities in forming memories are genetic and biological, but that is not to take away from the importance of what you can do. You may not be able to ever "master" knowledge retention. You can improve your memory. Through an actively learning mind you create new neural synaptic connections allowing for easier access to where your memories are “stored” in the distributed network that is your brain. The more paths that are related to the relevant information, the greater the probability you will be able to access that information in the future.

Stressing active participation in what you do will improve your memory (the effect of active participation is at least partially due to the heightened attention focused on the activity), but the best “scientific” advice I can give to improve your memory is to get proper sleep because that is when your brain consolidates much of the day’s happenings.

I am more than happy to discuss the neural aspects of memory, as this is what I studied before I came here, so feel free to let me know if you would like to discuss this in more depth.

-- MattDavisRatner - 21 Jan 2008

Regarding “vegging out”, I think that it would be useful to define the term precisely: what are the elements of “vegging”? I had a difficult time thinking of one, but one element would probably be mindlessness or passivity. It’s my impression that some of the posters above take issue with the statement: If you watch TV, then you are vegging out. I tend to agree that the truth of that statement depends on what and how you are watching.

Even assuming that TV negatively impacts our memories, it still might not be “unreasonable” for us to engage in viewing if the benefits of doing so outweigh the associated costs. Entertainment, relaxation, humor, information, imagination, for instance, might all have value for television viewers. If these are significant relative to the costs (impaired memory, time loss, etc.), then TV viewing might increase personal utility.

-- EdwardNewton - 22 Jan 2008

I read this article in the NY Review of Books a few weeks back. It relates Big Pharma to Eben's following statement: "But COMMERCIAL TV is a social [something]: it induces a state of mind that facilitates selling to you, which is 'vegging out.'"

Perhaps most telling of the theses in this set of books is the review's title - "Talking Back to Prozac." Our relationship to these mind-numbing drugs should be not a monologue in which one is talked to or at as may be the case with advertisements and other unresponsive communicators generally, but rather a dialogue in which we retain our voice.

-- JesseCreed - 22 Jan 2008

Joey's point about missing HBO reminded me of a simple fact about television revenues. Broadcast television derives all its profits from product placing and advertising. Cable stations profit from advertising and per subscriber rates charged to cable providers. Finally, premium cable stations (HBO, Showtime etc.) get almost the entirety of its profits from per subscriber rates (there is some but I believe negligible product placement).

I think this relevant to understanding tv shows goals in their creation of content. It ranges from entertaining in order to get maximum viewers, premium cable stations, to getting the most advertisers possible, which broadcast stations do by getting maximum viewers and creating an attitude in viewers to be susceptible to marketing.

-- JulianBaez - 22 Jan 2008