Dear Professor Moglen,

Thank you for addressing our criticisms. Our reactions are of course engendered by the fact that, as Art noted, you devote an extraordinary amount of time and effort to us.

Insofar as you claim this class is not about your fight for freedom, I disagree. The themes and stories that underlie your work frequently appear in class. That you even took the time to write such a comprehensive response while you are away for your "real work" is commentary in and of itself.

I would like to clarify that I do not have a problem with your "trash-talking about the owners of everything." I just don't like when you use trashy words to do it.

-- NonaFarahnik - 08 Apr 2010

I think we can best discuss all this material, which is very interesting even to me, if we separate some of the pieces.

First, although Art's initial posting may give a different impression, he isn't actually saying that I called some student, himself or anyone else, "stupid" or "a moron" in class. I don't run a recording device in this class all the time, as I do in my other classrooms for other reasons, so we don't have tape to prove the negative, but although class is a theatrical performance and I use all the registers available to performers, that would be censurable conduct falling outside the rules I play by. Art is angry at me, and certainly feels, perhaps justifiedly, that I've been unnecessarily hard on him in a private conversation—which being private I wouldn't talk about here except that he's brought it up—but Tuesday's class conversation, as Joshua Hochman noted, was until its last quick exchange, not personally about Art at all. He has criticisms to level that I want to respond to, but I think we should be able to take off the agenda the most inflammatory charge he seemed to make, but wasn't as far as I can tell actually making, and which would not be justified. The particular phrase "lazy and stupid" was applied, as people will remember, to law professors at Columbia Law School, not to students, and whatever else may be true about my colleagues, they can take care of themselves.

Nona, on the other hand, is specifically criticizing my class "name calling" with respect to non-students, particularly corporate entities that own cultural or intellectual property, and the oppressors of law students both in academia and in firms. Her criticism is that those portions of my performances make her cringe, and are, as she puts it "blunt[ing] the impact of his teachings and thus, his fight for freedom."

Dan Karmel speaks for many in raising two other criticisms, that I am sometimes dismissive of student arguments in class, and that I am "insulting" in comments on written work.

All of these criticisms are seriously-intended, useful to me as well as to the people making them, and deserve considered response.

I want to begin with Dan's two points, and I want to begin there because I addressed them, prospectively, at our first class meeting. I said then, as you remember, that people were going to get cross with me for cutting off student arguments, or for being dismissive, and for being hot rather than sweet in commentary on written work. I explained then that from my point of view, these feelings, which I recognized would be strongly felt, come from conflict with a basic necessity on my side. Editing, I said then, is a job that cannot be done with primary or even secondary concern for the personal sensitivities of the author. The only way it can be done, I said, is with a degree of candor that will always be, and will much of the time feel like, brutal honesty. I told a story on that first day about an old friend of mine, a former criminal defense attorney in private practice, who has been a professional journalist for more than a decade now. I said that he recently described himself to me as a sexual assault survivor after completing an edit with the very professional and accomplished editor at the famous magazine where they are both on staff. I said that the very nature of his immensely exaggerated metaphor showed just how complex and fraught the nature of the editorial relationship is. I warned that I was acting as an editor of our class conversation as well as all the writing here, that there would be moments of hurt feelings, which as a human being I genuinely regret causing, but that I would nonetheless do the job in the only way I believe it can really be done.

So here we are. Nona has referred before to my "scary red type," and although she tries to be as appreciative as possible of my efforts, she, like Dan, shows here serious signs of wishing I were different in precisely the way I warned in advance I would sometimes annoyingly refuse to be.

One of the reasons I work the way I do, in this and all my other classes, is that I am fully, publicly accountable to the whole class for every comment I make on all the work done by all the students who work with me. Whether my editorial interventions are "scary" or "insulting," whether they are fair comment too bluntly or just bluntly enough phrased, whether they are productive or useless in helping people to write better—each reader here has access to all the information and can judge. I wish all teachers worked this way. That they don't is—allow me to amplify my earlier comment—lazy, cowardly, and stupid.

I am no different from those who criticize me in this respect: I have always found being aggressively edited an uncomfortable and ego-bruising experience. But except when it was conducted by inept editors, as it sometimes was, I always found it in retrospect, when my temper had cooled, a valuable experience that improved my use of language. Whether I am skillful or inept is in the end for each of you to judge. Experience suggests to me that you should expect your eventual judgment to differ from the view you take in the heat of the moment, when the web page on which I have been bleeding red ink is yours.

Nona's criticism points in two other important directions. First, let me state simply that the reason I talk with disdain and contempt for the forces of wealth and power in this exceedingly unjust society is to remind you as often as I can that this is precisely the lawyer's job. Our task, in Mark Twain's phrase, is to comfort the afflicted and afflict the comfortable. You are subjected every day to various forms of propaganda—from teachers, placement workers, and colleagues, among others—telling you that your real interest lies in propritiating power—in order to get a grade, an interview, a job, a client, a fortune, or a sinecure. If you come to believe this corrupting nonsense, society will in the end be worse rather than better for your presence in it.

Second, I don't want this class to be part of my fight for freedom: I don't think I have any business making this class about my work. We don't read here what I write, we don't talk in any depth about the substantive issues on which I work. And although I consider myself to have had some creative legal ideas, I don't use them as fodder here. Art says "If you have a real problem with these companies and practices, a real interest in your students, their pursuit of 'justice,' and possess knowledge that we don't, then do your job. Teach us." I am teaching two other courses this year that have precisely that purpose, and in your third year, when I get back, I will be teaching them again. Those courses too have wikis, and in those almost every word of what I say is recorded and transcribed; you are free to listen, read, and learn as much as you like. Here however, at this stage in your passage through law school, I am teaching something else, with which I believe that would more or less completely interfere. Accordingly, Art says, "I have come to the conclusion, that in fact you do not oppose these things you decry based on principle." But his conclusion is based on what I haven't talked about; even the "neutral point of view" taken by the Wikipedia advances the opposite interpretation. I think, in short, that Art is jumping to a conclusion, which is a habit I have called to his attention, as you know.

Which brings us at last back to Art's original "Open Letter," which kicked off the present conversation. Those who have no experience with the Cult of Mac will perhaps be surprised that in a document so full of hurt and personal anger there would be so much discussion based upon, and so much quotation from, Apple Corporation press releases. On Tuesday, as you recall, we were discussing Thorstein Veblen, who has been dead for seventy years, but who—unlike many famous dead people—has never been appropropriated for an appearance in an Apple advertisement. This is not because Thorstein Veblen didn't "think different." As I pointed out on Tuesday, Apple products are perfect examples of Veblen's theme of the superseding economic value of waste. They are glitzy, overpriced, underfunctional, coercive artifacts designed to appeal to the personal image snobbery of non-technical, creative people, breathing not just indifference but elevated levels of contempt for the very folks who pay way too much to buy them. Apple is a cargo cult; it makes hyperexpensive shiny things designed to ensnare consumers in a system that is technically and psychologically difficult to escape, but which integrates so completely with the self-image of the consumer that it creates organizational loyalty making it possible to sell cult members a lifetime supply of wallet-busting schlock with total predictability.

As those who were there will recall, Art asked me, rather pointedly, to give an example of what Apple could do differently. In response, I described the design and function of the display of the OLPC—technology invented by Mary Lou Jepsen—whose properties emerge from a culture of respect for the users of the device (specifically children), and which achieves fundamental innovation in performance, safety, power-consumption and maintainability as a consequence. When I finished this somewhat tedious technical example, Art asked me, again aggressively, what I took from it. I said, "that you don't know everything." He considers that belittlement, and is plainly very mad about it. I thought it was fair comment then, and I do now. I think it is patent that I wasn't calling him stupid, or even ignorant. I was telling him that there's more in the world than he knows about, and that he jumps often to conclusions on the basis of one-sided or incomplete evidence.

In the office hours conversation Art mentions, he did indeed ask me to explain to him more about privacy law. I didn't say, "I teach some courses on the subject, and you could take them." I did, however, say nothing to him that can't be found on those course wikis. Among those things, I said, "If you care about privacy on the Net and technological freedom, and you use Steve Jobs' stuff, you're a moron." As students in my other courses will tell you, and as you can hear yourself if you care to listen to the endless tedious recordings on the wikis, this was not a personal comment aimed at him, though he takes it that way. His resistance then was as concerted as it is now, and although he exaggerates in saying that it consumed 45 minutes—because the whole conversation was shorter than half an hour—his determination does indicate how successfully Apple has caused him to increase perilously his ego investment in his consumption.

The sacrifices of freedom and privacy necessary in order to live in Jobsville may well be worth paying for some individuals; I have no problem with that. I would never tell Art or anyone else what computer to use or what to run on it. What I told him then, and what he apparently bitterly resents, is that if someone can't see those sacrifices, I have nothing to teach him about privacy and the Net.

(A digression: When we made SFLC, my Legal Director, Dan Ravicher, decreed as a rule of recruiting that we automatically discard any job application containing a resume in Microsoft Word's .doc format. Anyone doing that despite our published instructions, Dan reasoned, surely was of no professional interest as a trainee or colleague. I was skeptical at first, but it has turned out to be an excellent decision.)

With those who believe my teaching could be better, I am in vehement agreement. I have been teaching for a quarter-century now, and I can count on the fingers of one hand the individual classes in which I fully lived up to my own intentions. There has been none this term. I think it is much easier to be a great lawyer than a very good teacher. It may be worth remembering once again that teaching is a performing art, in which the actor ought not be either completely conflated with or utterly separated from the role. You will have noticed that we meet in an amphitheater, that there is an overture, and often an interlude. Mike's concurrence sums up a frustrating truth, that who we "are" as teachers is never exactly who we are.

One last thing should be said. I am impressed and pleased that all of those who have criticized my conduct, sometimes with as much brutal honesty as I could have wished, have shown no doubt that their courage in speaking would be fairly received. I hope that Nona was wrong in saying that people are reluctant to criticize my conduct of this course because I am grading it. I am glad, at any rate, that neither she nor Art shows the slightest concern. That's as it should be.

People here, even the ones who are mad at me at the moment, have probably realized that I don't do this work out of love of law school, or a desire to be liked by law professors, or in hopes of being appointed to something, or in order to buy stuff for my family. I do it out of commitment to and admiration for young people who are capable, through talent, hard work and sheer luck, of growing up to change the world. I'm trying to help you crack the shell of the egg that has your future self inside it. But sometimes you can't break eggs without making an omelette. To those on whom I've been too hard, including Art, I apologize. To those who wish I'd stop trash-talking about the owners of everything, okay I will. Someone else will have to pick up the task of voicing Thorstein Veblen then, of course. But yes, you can.

On a few occasions, I have been frustrated by how dismissive Eben is with students who disagree with him. I try to genuinely consider the issues that are raised in class, but when Eben refuses to concede even the most marginal argument in opposition, or to honestly rebut others, it's impossible to really delve into an issue. The example that comes to mind was in February when we had our "Grades don't matter" debate. If I remember correctly, Eben wouldn't even acknowledge that getting good grades will help you land a big law job out of school. The discussion then begins to lose credibility. I think a better approach would be for Eben to concede certain modest points and genuinely explain why he disagrees with others. Good grades will obviously help you get a job at Cravath. I believe the point Eben really wanted to focus on was that working at Cravath when you're 25 isn't what you need to be successful or happy. But if you want us to engage in the argument with you, you can't start by denying the premises that we know are true.

But maybe Eben isn't trying to walk us down a path. Take the same example as above. There was something genuinely frustrating about not getting the answers we were looking for. Satisfaction has a way of ebbing in a way that frustration doesn't, and maybe that's the point; not only are you not going to get the answer you're looking for, you're not even going to get the argument you're looking for. That means you're going to be annoyed. You're going to be mulling it over for the next two days. And you're going to figure out why you actually disagree with the extreme viewpoint being presented in class. Personally, I don't think this is more effective than a back and forth discussion, but I'm just trying to explore possible explanations for why this method may be desirable.

To build on Jessica's point, this class has engendered participation in ways that none of my other classes have. Shortly after we turned in our first papers, I was at a birthday party on the Lower East Side with several other students from our L&CS class. For a few of us, the major topic of discussion that night was what we had each chosen to write about for Eben's class and why. Even at the time, we took notice of the fact that we were actually excited to talk about a law school class on a Friday night. Perhaps there is an argument that the fear of insulting red text inspired us to think about these papers in ways we otherwise wouldn't have. I certainly was excited to talk about my paper, although that apparently didn't help me avoid a ton of red text. (On the upside, I learned what 'jejune' means.)

-- DanKarmel - 08 Apr 2010

I’m not someone who participates in class, or puts himself out there during office hours. Maybe this makes me a coward, which I can accept, but I also really like when he calls other people “morons.” It just seems to come so effortlessly, and with such conviction. If it’s all an act to ‘shake up the law school experience’ (which I do not believe is the case here) then he sells it well enough. I have the highest respect for everyone in the classroom, but come on… sometimes, we’re wrong about stuff, and in that instance, we’re moronic and idiotic and etc. It’s humbling for some, entertaining for others, but I really don’t see how this type of blunt honesty can genuinely offend anyone in our class, or cause 'long-term harm to entire communities.'

On another note, from my perspective, the original entry up there unfairly frames the exchange during Tuesday’s class. I wasn’t in office hours, so I probably don’t have the whole picture, but it seemed that the environmental concerns raised by Eben were tangential, and did not specifically target Macs. He said that LCD power source (or whatever it was) was in every computer in class (right?). I also don’t remember him arguing that laptop heat management issues are confined to Apples… Anyway, I thought his broader point was that its super toolish to pay a premium (let alone that much of a premium) for a computer that so effortlessly takes away the consumers’ ability to modify/customize it (pre- or post- sale). Also that the store’s extravagance annoys him.

-- JoshuaHochman - 08 Apr 2010

Usually, I laugh when Eben does these things, or I chalk it up to his method and move on. Yesterday I happened to write the above.

@ Jessica, I'm sorry if my use of Eben's metaphor offends you, but I think its obvious to everyone that is why he uses such parlances. They offend. This has a certain power and he wields it. For some, this apparently makes him a "lion." Whatever. And I didn't say he was doing it to me, I said he was doing it to all of us.

I'd like to reiterate that there are a lot of things I really like about this class, and its professor. We discuss topics we never could in any other class, and learn quite a bit in the process. I also agree that most of the time, most people should just roll their eyes if they don't like what Eben is saying and pay attention to what he says next b/c it might be something really good. But that's not a free pass. Not for me at least.

I want a license because I have seen the kind of disrespect that people direct at one another. Open your conlaw book and you can see plenty of examples of it if you want. Most of our greatest crimes against humanity boil down to a lack of respect: for people, for life, freedom, thought. Respect is something you demand, and apparently we're not. If you think you like being called a "moron" then good luck to you. As for me, I have seen loved ones disrespected by slurs and actions worse than that, and I understand the long-term harm to entire communities that such disrespect can foster. I may not yet have my license, but I can certainly call them as I see them. Fortunately, this is just a class, and I'll soon have more important things to worry about. But while I'm here, and until I have my license and bigger fish to fry, I'll demand the same respect for myself and others today that I expect to fight for with my license tomorrow.

-- ArtCavazosJr - 08 Apr 2010