Law in Contemporary Society
I was struck today by Eben's call for courage.

I signed up for this class because I was impressed by Eben's speech at the assembly where we were introduced to the electives. Here was someone who could somehow get away with saying what he thought - without any hedging or toning down. I thought, "I want to be able to do that".

For the last few weeks, I have been trying to figure out how it is done. How do you communicate original ideas - ideas that your audience might not like - without getting killed or simply ignored? I've always thought the solution must involve stealth. Put on a mask that reassures your audience while you get your message across under the radar. Take Holmes - a guy with some pretty radical ideas. But he had such a sharp way of expressing them that you can't help but listen. "Let's cut the bullshit. Here's what's really going on..." It plays into how Americans like to think of themselves - taking some European relic like the common law and cutting out all the fat, making it better and more efficient. Or take Scalia. Believing that the world is how Thomas Aquinas says it is, is not exactly normal or generally accepted these days. But he gets his message across (whether or not you like it and whether or not it's internally consistent) through his writing. Similarly, Eben mentioned Thurgood Marshall's strategic watching of TV. In short, you need a mask to protect yourself if you're going to think differently in a public space.

But, I'm beginning to think that you need more than deceptive tactics in order to get through to people with whom you disagree. I think we've been posing the question of how we can have meaningful careers in terms of survival - I certainly did in my paper PatrickCroninFirstPaper. "How am I going to make enough money to pay off loans?" It's going to take more than just techniques and knowledge gleaned from Leff and Holmes and Black to answer this question in a creative way. "How do I use my license to work for justice?" I think it's going to take courage to answer these questions, which is scary because it's hard to tell whether you have that courage or not.

Perhaps the way we learn to communicate original ideas persuasively, and by extension making things happen using words (for money), is simply by doing it - by practicing.

-- PatrickCronin - 05 Mar 2009

Patrick, I think you are right that certain individuals are extremely skilled at placing radical ideas in very stealth ways. I recently read an essay by Frederick Douglass, "The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?" in which Douglass makes a fairly compelling argument for why the Constitution opposed slavery. His arguments are almost deceptive, but it was amazing that he claimed in 1860 that it was "obvious" that the Constitution opposed slavery. As you also mention, other individuals are extremely skilled at putting their radical ideas at the forefront. Personally, I think the key to a great writer is knowing which tactic to use at a particular time.

-- LaurenRosenberg - 06 Mar 2009

While stealth tactics are often needed, I agree with Lauren that the real skill involves knowing when to use a particular strategy. This coincides with the skill of creating certain social scripts to produce the desired results. Might we establish some rough guidelines to help determine which approach is appropriate? Experience will certainly fine-tune our decisions, but maybe we can accelerate this process?

For instance, is an aggressive approach appropriate when dealing with an adversary who is already quite opposed to your position? By contrast, should subtle tactics be used to slightly alter an ally's position?

-- KeithEdelman - 08 Mar 2009

Maybe I'm missing something, but aren't we just talking about 'people skills'? If that is essentially the point, I'm not sure there is anything to practice with; a lot of it is somewhat innate at this point in our lives. This is especially true in that most of the situations where it comes into play, you cannot actually sit back and think tactically, but must react based on your best instincts.

Perhaps there is a way to improve though, and it relates to something I think Professor Moglen has been speaking about all semester. Although I am on the fence with some of the things he says, I am 100% behind him in what I believe to be his general message that many law students simply regurgitate what the professor says (or what they think the professor wants to hear) in an altered, verbose manner. Personally, this 'gunning' doesn't impress me all that much, and it's really nice to hear a professor stand up against that. I have also been impressed with his knowledge about the mindset of a successful poker player. Much like the model for a truly successful student, the poker player sits back, and analyzes his environment. He then acts when he has sufficient information to guarantee some probability of success. Likewise, students perhaps should adopt a similar manner, and take the time to actually listen to each other.

I don't mean these comments as a reflection on this thread at all, so sorry if that seemed to be the case. I have to say, I have frequently caught myself forming opinions and planning my own responses to what someone is saying, without actually taking the time to absorb their complete message. This characteristic I suspect is especially prevalent at a place like Columbia, with many intelligent, successful, and opinionated students eager to make their voices heard. This is both a gift and a curse, and just like the Jay-Z album, has its ups and downs.

-- AaronShepard - 09 Mar 2009

I think it may involve people skills, but more specifically an ability to facilitate a discussion or a debate, which is very tactical, as Keith and Lauren were mentioning. The ideas Aaron brings up with the gunners are interesting to me. I find that professors vary in their respective abilities to carry on a focused class session, while still including student perspectives which often add to the quality of the class. Indeed, learning from each other is a big part of our education here. However, we’ve all known that often much is said that is superfluous and distracting, sometimes derailing the discussion. The quality of the class suffers when the professor cannot maintain control over the class.

More broadly, though, I think that setting up more “radical” ideas to fly and not fall flat takes a certain amount of skill in facilitation. There are choices of media involved, initial audience, target audience, and styles of communication that all contribute to getting across the intended idea. Whether or not to be stealthy is a tactic too. Furthermore, I think there is an element of creating a persona – call it a mask if you will – such that those who hear the message will absorb it. Each of us has a persona now, and what we do with it over the next few years may have a big impact on what we can do with it in the future. I don't know what I want my persona to be, but I'm in this class to start to figure that out.

-- CarolineElkin - 10 Mar 2009

This is really more of a summary of what I see above than anything else. Maybe it'll generate some new leads though.

Aaron, I agree that there's an aspect of people skills that is probably innate, and that generally there isn't time to consciously plan how we're going to act in the heat of an interaction. However, I think that it is useful to have an understanding of what Keith calls social scripts, and to be able to plan strategically beforehand which ones to create. Also, I think that we probably do have the ability to cultivate our innate ability to perceive and react to situations.

I had a few thoughts about rough guidelines for dealing with different types of opposition during our class discussion of Cerriere's Answer today:

1) We seem to be circling around this concept of a persona, or mask, or simply being invisible. Maybe we could boil this down to being able to accurately pick up on how others are seeing you. Knowing what role you are supposed to be playing is like knowing the rules of the game - it establishes what you can do in a situation. Tharaud realizes that she's invisible during negotiations.

I suppose we could look at this on multiple levels. What role are we supposed to play as 1ls (overworked, cynical, losing our souls)? Columbia Law graduates (corporate lawyers)? People interested in Public Interest work (idealists, saints)? People in this class (crazy, makers of bongs - I actually heard this one the other day, disciples, delusional)?

2) Once we know the lay of the land, we need to decide what is the best practical means for achieving our goal. Tharaud remains invisible because she can be more dangerous that way. This sounds like Aaron and Eben's image of the poker player. Sometimes we shouldn't do anything, rather sit back and watch how the scene unfolds. Or we should try to subtly inflect the discussion without straying too far from our role.

3) However, I agree with Keith that the real skill is probably knowing when to come out of our role and become visible. Now that I think about it, this willingness to become visible was what flashed through my mind when Eben said that lawyers need courage. In order to do this successfully, we will need to understand our audience (as Lauren points out) and have a plan for getting them to do what we want them to do. Eben's speech at the elective assembly was effective for me because he seemed to know part of his audience cold. The speech wasn't directed to everyone in the room, but it was strongly targeted to a particular type of student, and it was disarmingly provocative in saying what was felt but not spoken. This is analogous to Robinson's ability to disarm the powers that be (Justice White or the Prosecutor and Judge) by saying what is understood but taboo. I also seems analogous to Arnold's political debates that are really just rallying cries for each party.

It also seems that in order to make what you want to happen happen in a collective situation, you need above all to be able to maintain your cool and your situational awareness. What else though? Maybe as Caroline suggests, everyone develops a persona or a repertoire of techniques that they use to make things happen in collective situations. Eben seems to work by alternating provocation and the evocation of our potential to have a meaningful career. "You're going to go pawn your license. You don't remember Vietnam. But if you wanted to you could improve 10 million lives. You have amazing brains." I wonder what we could learn from each other's classroom personas.

-- PatrickCronin - 10 Mar 2009

I wonder what we could learn from each other's classroom personas.

Is the classroom persona the key to better knowledge of each other? I doubt that the law student mask is the most effective or honest way to learn from each other or get across our ideas. Maybe I have an overly-skeptical view of the disarming nature of Professor Moglen's class. Still, we all have posted too many papers and topics about the flaws in law school culture and education for me to believe that the classroom persona is the key to deeper understanding.

What's left? Our family selves? Or true selves? Eben said in class that he was not trying to nuture our present selves, he was trying to nurture the people we could be. I suspect this is the persona we should all be trying to know and channel. The personal intros were a great start.

After several months in class, does anyone feel the need to modify their intros, as Michael did in MichaelHollowayIntro?

-- MolissaFarber - 12 Mar 2009

Oh, I don't know, Molissa. I see great potential for personal growth and self-knowledge in studying my classmates. Whether I believed it or not at the time, when we first arrived the Administration said it plainly: here are your peers, your future colleagues, your references, and (they may have omitted) your future adversaries. As Michael has pointed out in a new thread, the audience of lawyers is, for the most part, other lawyers. So, classroom observation could support two inquiries: 1) who are these masked men and women, and 2) how will I find the words, charisma, and courage to get them to listen to me?

-- LeslieHannay - 12 Mar 2009

That perspective seems to assume that we can better convince people to listen to us by relating to their masked self rather than their real self. I would agree that it's important to take our respective masks into account when relating to and persuading others - this is part of being observant - but my intuition is that you are more effective when you can speak to the real person.

After all, isn't that what many of us experienced listening to Eben's speech at the electives panel?

-- MolissaFarber - 12 Mar 2009



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r13 - 07 Jan 2010 - 22:15:05 - IanSullivan
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