• "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.

1) I am not writing about what Arnold thought. I am writing about what he made me think of.

2) From Tuesday's class I took away the following: according to EM, the libertarian argument that TG and LS gave for not saving Lehman (government cannot or should not interfere) was a myth covering their corrupt efforts to save AIG and benefit their own interests.

• 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.

3) We should be and will be encouraged to a state of outrage when confronted with situations like #2 (and any number of similar miserable human events).

• 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.

4) But, if we make choices about how to live our lives solely based on our outrage, we risk replacing one intolerable human failure with another. If we are to be happy, we will need positive energy and positive goals, instead of simply being against things. (We want to know what is just and create what is just, rather than tearing down what is unjust, because we can replace it with something equally unjust).

• 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?

5) Knowing injustice when we see it is easy. Identifying and implementing positive justice is hard.

• 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 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.

* Maybe it's not obviously true, but it isn't obviously false, either. I think that broad, just-sounding propositions like those you cited, the ideological launching pads for the Russian and French revolutions, respectively, resulted in less-than-ideal consequences. I don't think it was a problem with details, though I can understand if someone thinks it is. But that's merely a disagreement.

6) But after all, that's what we have two more years to think about.

-- 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 many non-state organizations as well.

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

• 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.

* All I was really doing at the outset was draw attention to the state side of the social contract. We grant states power over us in exchange for what many of us see as benefits. Perhaps the word "oppress" is too strong or made it sound like I was complaining about the dynamic.

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, might only lead to new and unforeseen injustices.

• 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.

* These are more specific issues, and I think are therefore less likely to result in unforseen consequences than trying to implement an aphorism like "from each according to his abilities. . ." But, for example, I have spent enough time inside enough New York City public high school classrooms to know that this city runs a segregated school system 50+ years after Brown -- were the efforts to integrate the schools unsuccessful because people were not trying hard enough? Because they met with resistance? Because they were operating under a system of beliefs where they just assumed if they won a few court battles everything else would take care of itself?

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

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

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.

• 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.

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

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

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

-- AaronShepard - 14 Feb 2009

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

Hence, one would have to be pragmatic with imperatives, including considering how to best allocate one's own assets and priorities.

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 lives 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 protecting workers through the enactment of wage and hour laws. 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

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 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.)"

For me, this label not only obvious, but tends to beg 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

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

Michael, I agree that by examining the facts of a particular case it is usually pretty easy to identify which party has suffered the injustice. What I should have clarified was that this examination may not always be possible when choosing a legal job. For instance, indigent criminal defense work might place you on the "underdog" side most of the time, however there might be people (as Robinson mentions) who "belong" in prison. Perhaps in that situation the characterization isn't so obvious? This might go back to the need to be able to choose your clients (something both Professor Moglen and Robinson have promoted) in order to achieve justice as a lawyer.

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

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

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