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1. Background on this paper |
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< | In my Columbia admissions essay (relevant excerpts in bold) , I critiqued my undergraduate debate team for never inquiring WHY we could defend any position. This kind of higher awareness, I argued, would have made it easier to constructively criticize our experienced and novice debaters alike. |
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> | In my Columbia admissions essay (relevant excerpts in bold) , I critiqued my undergraduate debate team for never encouraging us to inquire WHY we could defend both sides of any argument. I felt that this near-term investment in higher awareness would have won us more tournaments in the long run. |
| | This semester I finally found premises
(Best,
Briefest,
First) |
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< | that would permit me, I believe, to write that account. But I would like to play with magic just a little bit longer. In each section of this paper, I first paraphrase the model/narrative/world-view of a popular authority; then I defend strange positions in light of these models. |
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> | that would permit me, I believe, to write that account. But I want to play with magic just a little bit longer. In each section of this paper, I first paraphrase the model/narrative/world-view of a popular authority; then I defend strange positions in light of these models. |
| | Comment ruthlessly. Attack, defend, ruin my grade, ramble on a random inspiration. [Then email me, so that I can get the last word.] As always, I am trying to provoke, if not dispute, dissonance. |
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-- AndrewGradman - 31 Mar 2008 |
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| | 2. Freud on Socrates |
| | POSITION: Truth is a symptom of minority status
-- AndrewGradman - 04 Apr 2008 |
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| | 3. Hippocrates on harming |
| | 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 |
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< | Perhaps a definition of what you mean by "harm" when referring to the law would be helpful?
-- SandorMarton - 05 Apr 2008 |
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> | Perhaps a definition of what you mean by "harm" when referring to the law would be helpful? -- SandorMarton - 05 Apr 2008 |
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< | 1. Let medicine 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 creating incidentalomas -- i.e. it's 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?" |
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> | 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.
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| | 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 |
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< | 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? |
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> | 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] |
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< | 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. |
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> | 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 |
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> | 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? |
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< | 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 |
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> | -- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008] |
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< | 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. Will you 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? |
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> | Ted, I agree, this dilemma is real. I mention it in my response to Jesse in the next section.-- AndrewGradman - 06 Apr 2008 |
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< | -- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008] |
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4. Rousseau on legal realism |
| | 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 |
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< | 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. |
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> | 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). |
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< | -- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008] |
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> | 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. |
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> | -- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 05 Apr 2008] |
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< | I responded to Sandor: You're right, law is one voice among many; but only law passes judgment on revolutions. |
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> | I responded to Sandor: You're right, law is one voice among many; but only the lawmaker passes judgment on revolutions. |
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< | 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. |
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> | 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 |
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< | Why can revolutions only be judged by the law? If you are defining acts as revolutions, than the "revolutions" you are talking about get judged constantly in all kind of non-legal contexts... Your claim may be too strong - some "revolutions" can be judged only by the law, but certainly not "all observable behavior." There are plenty social and individual judgments passed on acts, that are more definite and far-reaching than what we call "law" (the pronouncement of the king in the "ingenious patriot")
That's why the dichotomy is unnecessary here. Good/bad is as useful as any other dichotomy, but the dichotomy is unnecessary in the first place. Legal actions can be dichotomized, but not always (e.g. courts are not limited to Yes and No). Dichotomies make your argument more punchy, but also harder to understand; the emphasis on dichotomy distracts from your real point. |
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> | 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] |
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< | I define "attempted revolutions" loosely, as out-of-court acts, legal or illegal; 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. |
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> | 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. |
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< | 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? |
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> | 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 |
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< | 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!) |
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> | 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! |
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> | -- TheodoreSmith - 05 Apr 2008 [paraphrased by AndrewGradman - 06 Apr 2008] |
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> | 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. |
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< | 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. |
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> | 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 |
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< | I love your suggestion of "Law is Love." I read it once but didn't make this connection. |
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> | 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.
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| | 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? |
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< | But we're faced with a real problem: 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 attack texts they associate with stability. 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 -- including e.g. the identity of the butterfly that started Hurricane Katrina -- that's a threat from left field.
So, that's why I prefer tracing absurd ideas to Rousseau, when, you're right, anyone would do. |
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> | 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. |
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> | 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
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| | 5. Plato on anomie |
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- 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.
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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: |
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> | Similarly: |
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- 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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< | -- AndrewGradman - 04 Apr 2008 |
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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. |
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> | -- AndrewGradman - 04 Apr 2008
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| | 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. |
| | -- AndrewGradman - 04 Apr 2008 |
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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? |
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> | -- SandorMarton - 05 Apr 2008 [paraphrased by AndrewGradman - 06 Apr 2008] |
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> | Actually, I don't think that " the absence of profit motive helps us predict much. |
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< | 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. |
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> | 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
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| | 7. Martin Luther King on capitalism |
| | -- AndrewGradman - 04 Apr 2008 |
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< | I am going to take the liberty of commenting on the whole rather than the individual parts. I should first say that I am really hopelessly thick with anything metaphorical - it's a serious character flaw - and that may color my perceptions of your paper. I like it - it's original and ambitious. I guess I wonder about two things: unity and obscurity. Perhaps 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? Or am I interpreting it wrongly and the paper is not meant to have that sort of unity? If so, shouldn't you say so (and say why)? |
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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] |
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< | I think the other point is related. The paper (both as a whole and in its parts) is not easy to understand. This alone is certainly not an indictment but obscurity needs a purpose. Does the paper require the level of obscurity you give it? I wonder if you could make your points in a clearer way - in particular, the relation between the models and your "strange positions." Perhaps you meant the paper to be obscure (I'm almost sure you did) but, if so, I think you need to show why such obscurity is necessary. I also think that a more accessible text would encourage more participation. |
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> | Kaleb,
"What holds the parts together?" "Why the obscurity?" |
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< | Overall though, a very impressive piece of work. Let's hope Eben agrees! |
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> | 1. The act/actor/observer dilemma holds it together --
- The Haiku in "Background on this paper" invokes Veblen on uniforms: what's the sign and what's the substance? Regarding our papers: Eben is the observer, but what's the act -- us, or our papers?
- In "Freud on Socrates," truth/justice/beauty become moving targets when you try to distinguish them. It's impossible to control variables.
- Hippocrates on health: When an intervener 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 hit this one on the head.]
- 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?
- 6. and 7. (Plato, Drucker, and King): Our economy says it maximizes value (shareholder, consumer, CEO-agent), but value gets defined by their relationship.
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< | -- KalebMcNeely - 06 Apr 2008 |
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> | 2. but 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.
Arguably, I've here created thought experiments, verbal Rorschach prints, which anyone 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.
(Alternatively, I just never got over the idea 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
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