Law in Contemporary Society

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TimCuffmanFirstEssay 5 - 27 Oct 2017 - Main.TimCuffman
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TimCuffmanFirstEssay 3 - 02 Jun 2017 - Main.TimCuffman
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Oh, Lawyers Can You Stand It? Tell Me How You Can!

-- By TimCuffman - 11 Mar 2017

For many of us whose powers of dissociation have been malfunctioning since this past August, the irrepressible agonies of lawyering have interrupted our sleep.

We’re partially aware of the stakes, some of which are already pressing upon us: “problem drinking,” suicide; despairingly long hours, obscene levels of student loan debt, a volatile job market; institutionalized and casual sexism; furtherance of the entrenchment of economic injustice and mass incarceration, and on and on. After all, lawyers much like our classmates (and not so different than ourselves, if we’re honest) tailored Trump’s latest Executive Order in order to evade the scrutiny of the courts and will argue in these court for its “legitimacy” and “constitutionality.”

The off-the-shelf remedy for aspiring lawyers is to strike a balance, find the right fit, push through for a few years, and work through the rest in therapy. This will not be sufficient, we know. Call it creativity, call it desperation—the label for what we need is far less important than the urgency with which it confronts us. For now, we’ll call the general task a strike and figure out the particulars later.

The Lawyer-Strike

The stakes of a labor-strike lie not in a refusal to work per se but rather in a refusal to work in such a way or in such a condition. Likewise, the stakes of a lawyer-strike lie not a refusal to lawyer (in fact, quite the contrary) but rather in a refusal to lawyer in such a manner or toward such a purpose.

There are two distinct issues here—the manner of a lawyer’s work and the object (or product) of that work. The means and the end, perhaps.

A lawyer must do more than predict what a court will do in any particular case—the lawyer must also undertake the strategies necessary in light of that prediction to accomplish some objective for a client or make the achievement of a similar objective more attainable in general. These means and ends are mutually dependent and reinforcing; the available means generally dictate the ends that can and should be pursued, just as particular objectives call for particular strategies. As a consequence, a refusal of the conditions and manners of our lawyering is simultaneously a refusal with regard to the goals of our work, and vice versa.

How is it to be done?

There are no fewer than three mutually compatible schemas for approaching the lawyer-strike:

Traditional Strike Action: “Which side are you on?”

There are no neutrals in lawyering—a trite point, but one that cuts to the heart of what’s required of us. That is, to stake out a space for ourselves in an inherited mesh of relations, whether social or institutional. This is the realm of identity lawyering, which entails the strategic flattening of concepts and identities, much like identity politics—the miners/union against the company/sheriff, John Brown against the institution of chattel slavery, the ACLU against Trump’s immigration orders. This flattening affords the aggregation of otherwise isolated forces into a blunt instrument to mount direct opposition.

Wildcat Strike: Choose a side that you’ve not inherited

When flattened identities become insufficient to the task—perhaps because the opposing force is simply too strong or the parties too disparate—it becomes necessary to make our position a moving target. In a labor context, a wildcat strike is a deliberate work stoppage without union authorization—essentially, to break the formally recognized rules and disrupt the normal flow of negotiations and leverage-shifts. Alternative forms of taking up positions outside of formally recognized relations include attorney Jacques Vergès’s _défense de rupture_ with regard to presumptions of colonial “legitimacy” and John Brown’s “interference” at Harpers Ferry with regard to prevailing modes of antebellum abolitionism.

Human Strike: “How do we become something other than what we are?”

The concept of the grève humaine received its most systematic treatment in the work of the French art collective Claire Fontaine. What is at stake here is not to become more “human”—more empathetic, more humanitarian, more cosmopolitan—but rather to contest and transform our very humanity. For example, to treat “dignity” and “rights” as concepts that serve to entrench oppressive human relations as much as liberate them, or to contest certain moral imperatives against nonviolence in the face of systemic oppression.

In sum: stake a position, shift, and efface.

This seems, in a significant sense, to be a negative project. Step 1: Define myself by what I am not. This would be accurate but for the fact that we ourselves define the stakes rather than merely inheriting them—which is an eminently affirmative task—and then continually transform those stakes. For those who have already isolated their struggle, the question is obvious: What are the capacities required to make X happen using words, and how do I obtain those capacities? That is, they can start with the ends and thereby determine the means. For those who are still hammering out the precise contours of our future lawyerly work, we are instead impelled to affirm the means—a means to another means, surely, because no end is sufficient and there is always work to be done.

Even if we don’t yet have the precise objective, we know the where and the when: here and now, at law school, as 1Ls. And we know the level of commitment required. Whereas labor strikes are often relatively brief interruptions in production, the lawyer-strike must be a permanent way of lawyering—“’til every battle’s done,” as they say. The risks are real, even for 1Ls who are yet without a license or a significant network. More to the point, strikers risk their livelihoods, and occasionally their lives. Accordingly, the pressure to break the strike is intense. Identifying oneself bears its own risks—alienation among them. In the face of such risks, let us strive to the point where we can say, with John Brown, “let it be done.”

The risk of an extended metaphor, whichever one, lies in the limitations it imposes on the thinking overall. Striking, whatever else it is, is collective action, based on the need for solidarity among workers as the root of their power. The determination to control one's own lawyering, on the other hand, is action immensely individual, freighted (in the militant fashion in which you express it here) with the imminent possibility of splitting off from wherever you are to wherever you need to be.

Which imposes a political economy, to be sure, but it is that of the small business, the petit bourgeois, rather than that of proletarian industrial democracy. This irony, if taken more fully aboard, might make the metaphor harder to extend. But the resulting social analysis, even if the vocabulary feels at first less comfortable, takes you closer to the role of the self-guiding artisan in the justice market, which may be indeed where you would prefer to wind up.

I think, at any rate, that the route to improvement is to cast off from the extended metaphor of the strike, and to try a draft that keeps the picture but loses the frame. Whether it goes in the direction I imagine, or in some other, as a result, the effect on the author is likely to be positive.


You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

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TimCuffmanFirstEssay 2 - 07 May 2017 - Main.EbenMoglen
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 Even if we don’t yet have the precise objective, we know the where and the when: here and now, at law school, as 1Ls. And we know the level of commitment required. Whereas labor strikes are often relatively brief interruptions in production, the lawyer-strike must be a permanent way of lawyering—“’til every battle’s done,” as they say. The risks are real, even for 1Ls who are yet without a license or a significant network. More to the point, strikers risk their livelihoods, and occasionally their lives. Accordingly, the pressure to break the strike is intense. Identifying oneself bears its own risks—alienation among them. In the face of such risks, let us strive to the point where we can say, with John Brown, “let it be done.”
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The risk of an extended metaphor, whichever one, lies in the limitations it imposes on the thinking overall. Striking, whatever else it is, is collective action, based on the need for solidarity among workers as the root of their power. The determination to control one's own lawyering, on the other hand, is action immensely individual, freighted (in the militant fashion in which you express it here) with the imminent possibility of splitting off from wherever you are to wherever you need to be.

Which imposes a political economy, to be sure, but it is that of the small business, the petit bourgeois, rather than that of proletarian industrial democracy. This irony, if taken more fully aboard, might make the metaphor harder to extend. But the resulting social analysis, even if the vocabulary feels at first less comfortable, takes you closer to the role of the self-guiding artisan in the justice market, which may be indeed where you would prefer to wind up.

I think, at any rate, that the route to improvement is to cast off from the extended metaphor of the strike, and to try a draft that keeps the picture but loses the frame. Whether it goes in the direction I imagine, or in some other, as a result, the effect on the author is likely to be positive.

 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

TimCuffmanFirstEssay 1 - 11 Mar 2017 - Main.TimCuffman
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META TOPICPARENT name="FirstEssay"

Oh, Lawyers Can You Stand It? Tell Me How You Can!

-- By TimCuffman - 11 Mar 2017

For many of us whose powers of dissociation have been malfunctioning since this past August, the irrepressible agonies of lawyering have interrupted our sleep.

We’re partially aware of the stakes, some of which are already pressing upon us: “problem drinking,” suicide; despairingly long hours, obscene levels of student loan debt, a volatile job market; institutionalized and casual sexism; furtherance of the entrenchment of economic injustice and mass incarceration, and on and on. After all, lawyers much like our classmates (and not so different than ourselves, if we’re honest) tailored Trump’s latest Executive Order in order to evade the scrutiny of the courts and will argue in these court for its “legitimacy” and “constitutionality.”

The off-the-shelf remedy for aspiring lawyers is to strike a balance, find the right fit, push through for a few years, and work through the rest in therapy. This will not be sufficient, we know. Call it creativity, call it desperation—the label for what we need is far less important than the urgency with which it confronts us. For now, we’ll call the general task a strike and figure out the particulars later.

The Lawyer-Strike

The stakes of a labor-strike lie not in a refusal to work per se but rather in a refusal to work in such a way or in such a condition. Likewise, the stakes of a lawyer-strike lie not a refusal to lawyer (in fact, quite the contrary) but rather in a refusal to lawyer in such a manner or toward such a purpose.

There are two distinct issues here—the manner of a lawyer’s work and the object (or product) of that work. The means and the end, perhaps.

A lawyer must do more than predict what a court will do in any particular case—the lawyer must also undertake the strategies necessary in light of that prediction to accomplish some objective for a client or make the achievement of a similar objective more attainable in general. These means and ends are mutually dependent and reinforcing; the available means generally dictate the ends that can and should be pursued, just as particular objectives call for particular strategies. As a consequence, a refusal of the conditions and manners of our lawyering is simultaneously a refusal with regard to the goals of our work, and vice versa.

How is it to be done?

There are no fewer than three mutually compatible schemas for approaching the lawyer-strike:

Traditional Strike Action: “Which side are you on?”

There are no neutrals in lawyering—a trite point, but one that cuts to the heart of what’s required of us. That is, to stake out a space for ourselves in an inherited mesh of relations, whether social or institutional. This is the realm of identity lawyering, which entails the strategic flattening of concepts and identities, much like identity politics—the miners/union against the company/sheriff, John Brown against the institution of chattel slavery, the ACLU against Trump’s immigration orders. This flattening affords the aggregation of otherwise isolated forces into a blunt instrument to mount direct opposition.

Wildcat Strike: Choose a side that you’ve not inherited

When flattened identities become insufficient to the task—perhaps because the opposing force is simply too strong or the parties too disparate—it becomes necessary to make our position a moving target. In a labor context, a wildcat strike is a deliberate work stoppage without union authorization—essentially, to break the formally recognized rules and disrupt the normal flow of negotiations and leverage-shifts. Alternative forms of taking up positions outside of formally recognized relations include attorney Jacques Vergès’s _défense de rupture_ with regard to presumptions of colonial “legitimacy” and John Brown’s “interference” at Harpers Ferry with regard to prevailing modes of antebellum abolitionism.

Human Strike: “How do we become something other than what we are?”

The concept of the grève humaine received its most systematic treatment in the work of the French art collective Claire Fontaine. What is at stake here is not to become more “human”—more empathetic, more humanitarian, more cosmopolitan—but rather to contest and transform our very humanity. For example, to treat “dignity” and “rights” as concepts that serve to entrench oppressive human relations as much as liberate them, or to contest certain moral imperatives against nonviolence in the face of systemic oppression.

In sum: stake a position, shift, and efface.

This seems, in a significant sense, to be a negative project. Step 1: Define myself by what I am not. This would be accurate but for the fact that we ourselves define the stakes rather than merely inheriting them—which is an eminently affirmative task—and then continually transform those stakes. For those who have already isolated their struggle, the question is obvious: What are the capacities required to make X happen using words, and how do I obtain those capacities? That is, they can start with the ends and thereby determine the means. For those who are still hammering out the precise contours of our future lawyerly work, we are instead impelled to affirm the means—a means to another means, surely, because no end is sufficient and there is always work to be done.

Even if we don’t yet have the precise objective, we know the where and the when: here and now, at law school, as 1Ls. And we know the level of commitment required. Whereas labor strikes are often relatively brief interruptions in production, the lawyer-strike must be a permanent way of lawyering—“’til every battle’s done,” as they say. The risks are real, even for 1Ls who are yet without a license or a significant network. More to the point, strikers risk their livelihoods, and occasionally their lives. Accordingly, the pressure to break the strike is intense. Identifying oneself bears its own risks—alienation among them. In the face of such risks, let us strive to the point where we can say, with John Brown, “let it be done.”


You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Revision 5r5 - 27 Oct 2017 - 04:24:23 - TimCuffman
Revision 4r4 - 21 Jun 2017 - 13:18:58 - TimCuffman
Revision 3r3 - 02 Jun 2017 - 03:58:44 - TimCuffman
Revision 2r2 - 07 May 2017 - 13:41:42 - EbenMoglen
Revision 1r1 - 11 Mar 2017 - 12:26:51 - TimCuffman
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