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> | Activists and Attorneys | | | | |
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< | Listen Below. | | | | |
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< | -- By GechiNzewi - 16 Feb 2012 | >
> | NOTE: This is the first installation of an idea that I will finish in my second essay. | | | | |
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< | “Logicians sometimes talk as if the only function of language were to convey ideas. But anthropologists know better and assure us that “language is primarily a pre-rational function.” Certain words and phrases are useful for the purpose of releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions and attitudes in a political or a judicial audience. The law is not a science but a practical activity, and myths may impress the imagination and memory where more exact discourse would leave minds cold.” –Felix S. Cohen | >
> | At first blush, the Activist and the Corporate Attorney look like opposites. They are men defined by motivations that could not be more dissimilar. While the Activist is notoriously selfless, the Corporate Attorney is fixated on his own preservation. However, on closer examination, the Attorney and the Activist are closely related, like two sides of the same coin. Despite their differences, Activists and Corporate Attorneys confront similar personal and professional challenges. The Corporate Attorney accepts a life unlived on the wrong side; the Activist risks dying in vain at the hands of his very cause. Their similarities arise from the fact that they are each products of the same system, and their survival is dependent on their ability recover from splitting. | | | | |
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> | As he expected, Malcolm X was murdered young and violently. The fiery redhead had long anticipated such a fate, dispassionately regarding it as somewhat of a family tradition. Malcolm’s father, a Black Nationalist, watched three of his brothers die at the hands of white men before he was beaten and laid across railroad tracks. Before his fortieth birthday, Malcolm X, the feared ex-spokesman of the Nation of Islam, finally followed in his father’s footsteps. At thirty-nine, Malcolm had lived a full life, reaching national notoriety for his fierce dedication to the political and social unification of brown and black people “by any means necessary.” However he—in a significant break with tradition—was not murdered by white men, but by brothers. | | | | |
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> | Carl Wiley, an Epicurean, has perfected a cost-effective, work-appropriate upper-downer. The longtime Big Law partner has found that—if taken at the right moment—a double shot of espresso followed by a glass of Chilean wine alleviates the pain of splitting. For a million dollars a year or-so, Carl spends his life in a state of moral compromise. Deftly following pools of money, Carl does whatever his clients want, whenever they want it. One hundred and eight excruciating meetings later, Carl admits that his mind has changed. The University of Virginia Law School graduate no longer has a long-term memory. Unlike Malcolm, Carl won’t die at work. The attorney will retire first, at sixty-five, hopefully sixty. In fact, in terms of time, Carl has already outlived Malcolm. Nonetheless, both men have suffered lives cut short by the institutions that created them.
In the 20th and 21st centuries, Activists and Big Law Corporate Attorneys are the products of capitalism. The brothers have common origins, but they are not similarly situated. If capitalism fathered them, Carl was entitled to an inheritance while Malcolm was born a bastard. The two men, two sides of the same coin, were minted by social machinery, though at different levels and for different purposes. Malcolm received the final stage of his formal education in a public prison, Carl attended a top law school. | | | | |
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< | Advice about the courts from three great men | >
> | Elite law schools and prisons are instruments of education for the preservation of capitalism. Elite law schools train privileged people—who want to be lawyers—to work on the behalf of the largest and wealthiest corporations in the world. Large debt loads and the nearly unrestricted infiltration of large corporations into the educational environment create the illusion that one is pressed between a rock and a hard place. Under this pressure, students split continually into workaholics, alcoholics, junior associates, and hopefully partners. Of capitalism’s education, Carl was the model student. | | | | |
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> | Prisons, too, are institutions of higher education. They are the last stage of an elaborate curriculum of sub-par public education systems, segregated public housing units, inadequate health services, and unfair judicial practices geared towards the perpetuation of an unskilled, disenfranchised, lower class. Malcolm was nearly another success story of social engineering. A life of systematic oppression had traumatized him. In response, Malcolm split, again and again, from a bright student who was told he couldn’t be a lawyer, to a railroad worker, to a petty thief, to a professional burglar. Before being imprisoned, Malcolm was well on his way to a life bereft of meaning. However, there was a glitch in the system. Malcolm was transferred to an experimental prison for white-collar criminals. There, he became exposed to the Nation of Islam, and split again, in an unintended direction. | | | | |
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< | Courts talk about one thing while doing another | >
> | Although Malcolm challenged socioeconomic oppression while Carl is complicit in it, both can be reduced to products of downwards pressure. Carl is the prototype while Malcolm is defective, but they shared the same womb. As a result of the pressure, each split, and in turn became fatally beholden. | | | | |
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> | One of the dangers of splitting is that what is left over is increasingly homogenous. Individuals full of divergent ideas and multiple passions are reduced to fractions of themselves. As a survival mechanism, humans under pressure separate from the creative, the skeptical, the optimistic parts of themselves and accept life. The result is a much smaller, less varied individual. This lack of internal diversity often manifests in specialization and extremism. The consequence is dependency.
Corporate Attorneys and Activists are members of a service industry. They advocate on behalf of their clients using specialized skills of persuasion. However, the Corporate Attorney and the Activist face a common danger as a result of their origins: they are prone to becoming beholden. | | | | |
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< | From our windowless ivory tower, Felix Cohen seems controversial. He informs us that courts use supernatural language while making practical decisions. Speaking in terms that he knew we would respect, Cohen reduced the language of the courts to “transcendental nonsense.” He cautions that, when we buy into this nonsense, we are likely to forget about “the social forces that mold the law and the social ideals by which the law is to be judged.”
According to Cohen, transcendental nonsense exists because of our belief in it. When we make decisions based on the ability of abstract concepts to encompass values that are produced, not merely protected, by the law, we stop asking the real questions, like: how are cases decided? And perhaps more importantly, how should they be decided?
Courts write about one thing while deciding another
Oliver Wendell Holmes answers Cohen’s first question succinctly: experience.
It's hard to say that
the guy who writes first answers the question of the guy who writes
second. How about, "Cohen asks a question Holmes already answered
succinctly: law's vital basis is not logic, but experience"?
It is experience that governs the legal decision process. Judges draw from their own ideas of right and wrong, from social context and social activity, to make decisions. Court opinions, written in the key of transcendental nonsense, are merely the justifications for decisions that were made long before a protracted analysis of “Where is a corporation?”
"Justification" and
"rationalization" aren't synonyms. It's important which you mean
here for everything that follows.
Courts are corrupt, don’t be a dumb fuck
Finally, Robinson from Lawyerland demonstrated in painful, poignant color.
Demonstrated what?
Between mouthfuls of cheap Chinese food, in sentences littered with profanity, he told us the truth.
Saying that Noodle Town
sells "cheap Chinese food" is like saying that India manufactures
cheap textiles, or that the Metropolitan Museum is a cheap way to
look at art. Not everything that is perfect is expensive, but
perfect things that are not expensive are not therefore "cheap."
His advice was bereft of the type of language that we respect, and he offended us.
Which us? He delights
me.
“Don’t be a dumb fuck…Don’t pig out on cash.” And perhaps, most importantly, don’t be beholden to anyone.
Everybody knows this except us
It is only in such a place as Columbia that the perspectives of any of these men are revolutionary, or even mildly novel. Perhaps, if any of us, at some time, had taken the time to listen, their words would only have brought the conscious knowing of an established intuition.
Transcendental nonsense supports a myth that only we believe. It is an idea that can only be sustained in a windowless tower, one that doesn’t overlook a low-income street, where it’s common knowledge, and someone would tell us in fewer words than Cohen and Holmes, that judicial opinions are bullshit.
Common Knowledge
Past 125th street, most people know, or at least feel, that if law were really the result of abstract concepts interacting according to the indiscriminate rules of logic, black people would not, on average, receive 60% longer jail sentences than white people for the same crimes. They would say, in language that most of us would never respect, that transcendental nonsense is simply a smokescreen for something that we, as lawyers, do not want to confront.
Realistic perspectives allow valuable predictions
If we had talked to more people below, or took
had taken the time to read about their stories, we would have begun to think about the law more realistically.
This wasn't the best
sequence of tenses to use, which is why you botched it. You could
have used the perfect subjunctive less awkwardly: "Had we talked to
more people below, had we taken the time to read their stories, ..."
but that would have led to "we might have thought [or "begun
thinking"] more realistically about the law."
As a result, the holding of Johnson v. M’Intosh, which could not have been decided otherwise in the early 1800’s, would have surprised few. Most of us would have anticipated that America, a new nation, would quickly tire of negotiating with a subjugated people group, if transcendental nonsense--language that we respect--hadn’t lulled us to sleep. If we had known, we would not have been surprised when a dispute between two white men over a piece of land lead to the divestment of the property rights of thousands of brown people, none of whom were in court. The only uncertainty would have centered around how. Which words would be used? Which concepts would be summoned to interact?
I've always wondered why
people started their property courses with this case, which I myself
chose never to teach at all. Understanding both its formalisms and
its realisms requires history that few if any property teachers are
actually prepared to offer. The impression left with you, that this
is an important de novo result, a moment at which "brown people,
none of whom were in court" lost something, is utterly comprehensible
given the context in which it was presented to you, but is almost entirely
false.
--+++Unrealistic attitudes divert valuable conversation and dull minds
Up here, at Columbia, rather than examining the practical reasons for America’s choice, and examining their merit, we dove into a discussion of “sovereignty” that ended with our unconscious acceptance of the idea that our government has the exclusive power to decide property ownership.
Suppose you did not
"unconsciously" accept that outcome. What would be the alternative
that you would find consciously considerable? Natural
right?
And it was a good thing that we did, because this tacit acceptance made International News Service v. Associated Press seem perfectly logical the next day in class.
I don't know whether
that's a Holmesian dismissal of logic, or a statement that INS v. AP
seems wrong to you. If you consider it to be wrong because it only
seems logical, instead of being logical, what holding would be
logical instead? If you consider it to be wrong because it is wrong
whether or not it is logical, what is wrong about it?
The Trouble with Becoming Beholden
Transcendental nonsense is only valuable to lawyers and those like us—most of the people on the street know better. Transcendental nonsense makes our job easier, it allows us to pretend that we aren’t doing what we are doing and it makes us feel better about what we’ve done because “…myths may impress the imagination and memory where more exact discourse would leave minds cold.” The trouble with transcendental nonsense, however, is that eventually, we become beholden to our own bullshit. Our belief in it makes us act like dumb fucks and diverts our energies to meaningless inquiries while the real decisions are being made.
This isn't the form of
being beholden that Robinson was talking about, so this is a metaphor
you've constructed, and it's not clear to me why you think it is
doing useful work here. "Trapped" or "misled" seems more to describe
how our habits of thought coerce us than the material or moral
indebtedness denoted by "being beholden." Ideas or reasoning habits
can possess us, but you're not talking about obsessional ideation.
Nor can I say that this conclusion leaves me any further along than I
was halfway through Cohen's article. The idea I believe was your
animating contribution was the assertion that working-class thinkers
are automatically legal and social realists, that only privileged
people can afford the self-deception of formalism. I don't know
whether the sociology is right (it strikes me that many working-class
thinkers are religious formalists, for example), but you don't
actually argue for it: it's a rhetorical posture more than a
conclusion based in argument or factual demonstration. It strikes
me, however, whether right or wrong, as useful or not useful
depending on where it can lead us. By leaving us pretty much where
Cohen left us, you haven't shown the idea's utility, which is what I
think improvement in the next draft should be primarily devoted to
showing.
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> | The relationship between splitting and becoming beholden is unremarkable; smaller minds are capable of latching onto ideas wholeheartedly. Splitting creates lesions along the line of demarcation. Thus, the right idea, at the right place at the right time, can infect an entire mind.
Malcolm X died at thirty-nine because he had unwittingly become beholden to the wrong client. Despite his intelligence and curiosity, he was able to unquestioningly accept the ideas of Elijah Muhammad because his mind had split under pressure. He recovered too late to save his life. Likewise, Carl Wylie, a millionaire, is inexplicably beholden to Big Law. Despite his unhappiness, he has not considered early retirement as an option. Instead of trying to repair his mind, he dulls it. |
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