-- NonaFarahnik - 25 Feb 2010 Post publishing note: You might find this capable of being expressed in less words AKA blather. Sometimes, blathering feels nice.

Post publishing note 2: This class is extremely important to me and my criticisms are made in light of my obligation to be an active force in my legal education.

I was pretty riled up after class today. Of course, part of the problem is that Eben is one of the most knowledgeable people I have met. Arguing with him feels like taking a paintball gun to a tank (it is difficult to use a metaphor because I know Eben can immediately break it down to its precise historical meaning and quickly strip away the basis of an ill-informed comparison). In general, this is good because it requires us to do our homework, and to choose our words carefully and precisely. Still, it leaves me knowing that my argument will always be vulnerable to some historical reality I have never contended with or the misuse of a word that wasn't even central to my point in the first place.

Sometimes I wish Eben would give us more time to talk out our ideas, even if they are formulated in imprecise ways. It often feels that he responds to the inaccurate parts of what we say, even when he knows it is not what we mean. In this way, his conversation with Mike was deeply dissatisfying for me. Our complacence in the face of our military robot apparatus' killing of innocent Afghans is more than an exercise in suppressing empathy (though it is part of it). I think it is honorable and worthy that Eben would be the most zealot advocate for Mr. Stack if he had lived to see a murder trial. I also, however, think it is honorable and worthy for someone to represent our government, its people (what people? Eben might say) and Vernon Hunter's family, and to prosecute him. In class we make abstractions of the People In Charge and the People In Shackles. Those abstractions remove us from the reality that WE ARE GOING TO BE THOSE PEOPLE (mostly, the ones in charge).

As students at CLS each of us is already part of an elite class of citizens. Moreover, law is politics, and we are going to be lawyers. In Eben's "America is an aristocracy, not a democracy" formulation, we are the supposed aristocrats. And this is where I get stuck. How can I simultaneously be acquiring a license to fight for justice and be seeking to do so through the much-maligned societal positions we discuss in class? I don't think we give a fair shake to the people who actually make up the public order. (I know that we can find 1000000 people who have done fu**ed up sh*t over the course of their roles in public life but there are another 1000000 who give it their best and who have made positive, lasting, and unnoticed change in this world). Is our distribution of resources troubling and unjust? I think so. Does that mean there is no value to the advancements we have made and where we stand with respect to the rest of the world? I think not.

After having an up-close view of a corrupt district attorney, I always wanted to be a just prosecutor. Yes--an agent of the state apparatus that kills people and locks them up. But also an agent in a system of law where I can stop a prosecution for a constitutional violation way before a defense attorney ever must, or drop a case when I know I should. I am motivated to be a person in government who takes my democratic responsibilities seriously. For whatever bullsh*t Constitutional Law might feel at times, somewhere in there our pretenses (false or not) have given it the flexibility to go somewhere better than before. Anyhow, WE are the ones who will take up the mantle of expounding the Constitution.

A professor related the relationship between legal actors and the law to the sport of curling http://www.youtube.com/watch?v=dXeXNHRPMMI. I want the legal arc of our country to bend (hard) towards justice. I think that takes people on both sides of the puck.

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Nona, I think you make some important points. I am going to paraphrase what I heard of the conversation with Mike. (I am omitting the less important part of the exchange that involved the use of the word "only" and a comical image of Eben in a baseball uniform stealing second base.)

Eben: The nature of my practice is such that I would defend Joe Stack rather than be the prosecutor. He would need a good lawyer.

Mike: How could you defend him? He killed a man.

Eben: Is there any difference between the man he killed and the children that we kill every night in Afghanistan with Predator drones?

Mike: Yes, Mr. Stack killed an American citizen.

Eben: That is an awfully thin distinction.

I don't think that Eben is condemning the hypothetical prosecution of Joe Stack or denying that the victim needs justice. I think he was frustrated that we could not get past the fact the Mr. Stack killed someone when our government kills Afghan children using remote control airplanes. If you are upset with Mr. Stack, then you should be upset with the government as well.

Yes, we are going to be the people in charge. Eben just wants to remind us that there are people in shackles, and that we should fight to change that. Patting ourselves and our government on the back leads to complacency. Everyone of us is exceedingly lucky and privileged to be here. What we do with that privilege is what matters. There can be just prosecutors; they just need to keep these ideas in mind.

I wrote a little more about this here.

-- JohnAlbanese - 26 Feb 2010

Eben's "we are all kin" theory is just utter nonsense. So we all share mitochondria. Don't cows have mitochondria? We all have an assortment of oxygen, carbon, hydrogen, and nitrogen atoms. Does that mean I am kin with an apple? Of course not.

I don't believe for a second that Eben truly believes that there are not degrees of kinship in society. It runs completely contrary to the position he usually stakes out on the is / ought continuum. I feel it is a position of calculated necessity--he is choosing an extreme position for intended effect.

I similarly feel your frustration about arguing with Eben. But one thing you must remember is that a lot of the time it is just theater.