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

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. Through ritualized fights, dogs challenge each other for dominance. When dog A drops a ball in front of dog B, takes a step back and wags his tail, he is issuing a challenge. (Use of challenge twice in a row.) Dog B now has two options (I like "moves" better than "options." It serves to explain it as a game): he can either pounce on the ball or ignore the challenge. If he accepts the challenge, dog B communicates that dog A is worthy competition.(“worthy competition” is not that clear; I want to express that this situation is about planes of ranking and how one moves between those planes of ranking) The winner of the ensuing competition is less important than the statement that “it was a competition worth engaging in.”(I don't like the use of “less important” here. If these dogs have an on-going relationship, it may already be established that it was a competition worth engaging in and so the result of the ball-fight would be more important) 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 law school power dynamic plays out is a similar way. Students who understand the social forces behind this metaphor are better able to have creative legal thoughts. They don’t sit in class and get pissed on. They rise above the law school game, and direct their own education. (This whole paragraph I do not like. It's interjecting too much of Moglen's language – while valuable, does not really pertain to what I'm talking about. I really have nothing here to say about creative legal thought or getting pissed on. I think using this language in this paper is misleading and confusing.)

To direct one’s own education, one must not fall into the trap of reactivity. (I wouldn't describe it as a trap but more as a pattern. Trap has an implication of a conscious intent that I'm not trying to establish here. Patterns can be unconscious. This is directly important to power since power operates most effectively by being invisible.) Being reactive is giving up power to the one who initiated the action. You have engaged the challenger on his terms, implicitly acknowledging his relevance. On the other hand, not reacting to the challenge is a way to independence. (I didn't say anything about independence, and I'm not trying to make the argument that non-reactivity is a way to independence but is instead another way of acting within a social sphere that has implications on power dynamics.)

As we learn to think like lawyers, professors dictate which modes of thought are reasonable and which are unacceptable. Imposing their own legal reasoning on us is the first step in teaching us to be effective advocates. We learn how to craft our arguments and our thoughts in a manner that judges are accustomed to. This first step in our legal education may be necessary (I didn't say it was necessary and I don't believe it is), but it is also dangerous. Accepting a new way of thinking, handed down to us part and parcel, makes us less likely to have our own creative thoughts.(again, I'm not talking about creative thinking, I'm talking about power. There is something to say about power influencing others to not think creatively, and indeed this is true, but it's not the scope of my essay to discuss that. I think the issue is a bit more complicated. Certain kinds of creative thinking are actually encouraged by professors.) It reinforces the law school power-structure where professors are the omnipotent source of legal ideas and it is the student’s role to soak them up.(The power-structure I'm discussing is not simply a professor-student relationship, but how we engage power-structures in the world connected to and outside of law school. How we think as lawyers affects how we behave as lawyers, and how we behave as lawyers has an impact and relation to the power-structures in our world) It keeps us thinking about the law in formulaic ways and those ways lead to predictable outcomes.

If we get lost in imitating how to sound and think like a “lawyer,” we may not stop and question whether the challenges laid before us are challenges worth engaging. We should not react simply because a professor drops a ball and wags his tail.(I like this paragraph in the sense that is really short and concise, also it uses the dog metaphor, but it leaves something out. The arguments we are presented with may be very logically pretty, but they, like every logical system, have a foundation of suppositions – or if you'd be so generous, axioms. It is this – often unspoken – assumptions that are the mechanism of the power of minds on minds)

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. To be the director of your education, you need to learn to play the game and become the challenger. The goal in the short-term is not to “win” an argument, but to change the frame of the argument. (We are always challenging but we are not challenging the right things. We already know how to be the challenger. This isn't about being the director of your education; this actually about directing other people's education. Also this comment about the short-term goal should be included in the next paragraph which is about playing the game, not in the paragraph about how your actions are perceived by others and yourself.)

Law school should be a multiple step game. First, you pick up the predictable gauntlet, but then you drop your own. You entice them – professors and student alike -- to pick up your gauntlet and play the game on your terms. (I thought a little more explanation of this process was necessary. Also, I don't mean to say that law school “should” be a multiple step game. I'm only saying if you care enough about other's education, and you think you can effectively move the discourse with your own presumably valuable suppositions, then this is how you do it. A “should” implies too much about the individual.)

Students should be cautious about confusing non-reactivity with disengagement. (Ignorance, not disengagement is what I'm talking about here. Disengagement is just not paying attention at all. You can be disengaged and still swayed by the power of a discourse. I think too much disengagement is one of the problems of law school that allows so much to go unquestioned.) Denying the formulaic premise of the game is a path towards independent creative thought, ignoring the premise, on the other hand, 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

Hey Alex, thanks for your feed back. I wrote my comments about your editing in your version above so you could see what I thought about it. I think you kind of missed the point, but I blame myself for that. I think using Moglen's language, especially thinking this was about being a creative legal thinker or director of your own education, was unnecessary and confusing. I hope this rewrite makes a few things more clear. If not, let me know. I took some of your suggestions in my paper and threw some other ones out. I mostly appreciated your concise writing style as I have a habit to bloviate. I also appreciate your comments for pointing out how much this essay could be misunderstood. I thought it was clear but I'm coming into this with a different background. Let me know what you think of the rewrite, but I was thinking for a future version I may take out references to dogs all together (I was sort of using them to be cute; I do think the dynamics are translatable but dog psychology is a bit more complex and its use as a metaphor may serve to just complicate the essay unnecessarily). In place I may throw in a concrete example. Mark Bierdz.

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.