Lawrence Lessig and the economics of real law graduates.

You may have heard that the situation for law school graduates is not so great.  I haven’t blogged about it, since the subject probably isn’t that interesting to those who haven’t gone to law school.  And in any event there are already plenty of folks out there raising a ruckus, Paul Campos being the most entertaining.  But recently Harvard Law Professor Lawrence Lessig gave a commencement address to graduates of the John Marshall Law School that was so fantastically out of touch with reality that I feel compelled to at least dash off a short post in response.

Before I unload on Professor Lessig, let me preface this by saying that he seems like a pretty good guy.  He means wellHis heart’s in the right place.  But his recent commencement address is further evidence that smart people can have profoundly stupid ideas.

Where to begin?  His message to the graduates of John Marshall Law School was that lawyers should not forget real people – the “more pedestrian crowd” as he puts it:

[M]y point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the part that touches real people with real problems. It’s the part that keeps a family in their home against an unjust demand for eviction. Or enforces a simple contract with a bank, to supply the credit for a coffee shop. Or protects a woman against her abusive husband. Or forces an insurance company to pay on a claim it rightly owes. Or defends a child in a foster home against the neglect of a distracted state.

Well, yes.  So far so good.  That other part of the law is important.  The lack of affordable legal representation for ordinary people – “access to justice” as it’s called – is a national disgrace.

The system has convinced most of us that the law is for the rich, except that part of the law that involves the prisons.
We, all of us, have a duty to fix this, to make it better. We lawyers in particular have that duty. We fulfill it by practicing the law of real people, and through that practice, making that law better.

How exactly are unemployed lawyers supposed to “fix this” and “make it better”?  Half of Americans are low income.  If you practice “the law of real people” you’re working for people who can’t pay you.  There’s a reason most people are convinced that the law is for the rich.  It is.

When my nephew told me he wanted to give up his career in journalism, and his career as a racecar driver, to become a lawyer, I was skeptical.

Yes, considering that half of law school graduates will never find jobs as lawyers, some skepticism is probably in order.

But as I watched him grow through his years at this law school, I recognized that my skepticism was wrong. Never more than the day when he told me that he was thinking of simply hanging up a shingle after he left Atlanta’s John Marshall Law School and practicing the law of real people.

Face, meet palm.

Okay, so if this were the Daily Show and I were John Stewart, here’s where I’d clear my throat and ask Professor Lessig to “have a word with me at camera three”.  Because the family facing eviction, the victim of domestic violence, the neglected child in the foster home – odds are pretty good that they don’t have a lot of money.  And if your clients don’t have any money, and you don’t happen to be employed by a legal services organization that is paying your salary, then you can’t eat.  See the problem?

But what about fee shifting?  Can’t a lawyer practice “the law of real people” by making the bad guys pay?  Practically speaking, probably not.  Especially not as a new attorney with no experience, and even for an experienced attorney that’s going to be a tough roe to hoe.  Here’s attorney Bernard Brown talking about the economics of fee shifting while practicing consumer protection law:

There you have it.  A seasoned attorney speaking from experience describing a fee-shifting economic model as “laughable”.  And this from someone who actually knows how to practice law.  If you’re a lawyer with six figures of debt and no experience reduced to the desperate expedient of “going solo” straight out of law school, you probably don’t want to compound the damage by adopting a “laughable” business model.  (And keep in mind that Attorney Brown is talking about representing people who have been ripped off, not people facing homelessness or trying to flee an abusive spouse.)

So Professor Lessig, please go and talk to some attorneys who work for legal aid and actually practice “the law of real people”.  Ask them if it would be economically viable to do the work they do if they had no reliable income and had to eat what they kill.  Or ask how many new attorneys their office has hired recently, and in the unlikely event they have hired someone, ask how many applications they received for the position.  Or talk with Deborah Jones Merritt at Ohio State, who knows a few things about the economics of practicing law.  But for god sake, don’t lecture heavily indebted students at a fourth-tier law school about the duty “we lawyers” have to fix a broken system.  You don’t have to worry about rent and food and crushing student debt.  Most of the graduates of John Marshall Law School will.

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The advantage of not throwing your blog in the trash.

“I don’t agree with everything that comes out of my mouth.”
–  Dan Savage, interview with the Daily Pennsylvanian, October 10th, 2006

I don’t like everything I’ve written.  Some of it’s fine, but not all of it.  Some of it’s “bleh”.  So I was thinking of starting a new blog.  One where my identity didn’t revolve around being “involuntarily celibate for eight years”.  Because why would I want that as my fucking identity?  And yet, if I started a new blog, there’s a good chance that somewhere down the line – probably sooner rather than later – I’d write another this-will-embarrass-me-later post.  Then I’d have to throw that blog away, and so on and so forth.

So I’m keeping the blog.  There are advantages to having a blog that’s already somewhat “fucked up”, so to speak.  Just like there are advantages to having a life that’s already somewhat fucked up.  Things aren’t so precious, and you don’t have to spend your time making all your nowhere plans for nobody.

And I thought I’d broaden the scope.  Talk about more things, try to make it a little more honest.  Me, I’m a middle aged man.  Early middle age.  I graduated from law school a few years ago, but I’ve never found work as a lawyer.  I have a shitload of non-dischargeable student loan debt.  That’s my situation.  (I’ll add here that I’m not going to talk about every damn thing, because some things I don’t want to unpack and I’d just as soon not turn this into a garish confessional – that genre is both cringe inducing and tedious.)

And one more thing.  I don’t stand by everything I’ve ever said.  I don’t agree with everything that comes out of my mouth, and I’m glad I don’t.  Life is so much more interesting when you can change your mind from time to time.

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We could be that mistake.

I haven’t seen the movie “Superbad”, but Roger Ebert gave it a thumbs up.  Apparently the plot revolves around high school boys who are trying to get laid, and here’s a seven second clip from the film:

Okay, that’s sort of funny, but also troublesome.  Most obviously, of course, there’s a fine line between being “the wrong guy” and being a criminal, as Roger Ebert points out.  But it’s also troubling for what it communicates about the sexual desirability of young men – that they’re so undesirable as to only hope for sex from young women smashed out of their minds.

Feminists often decry “pick up artist” culture – men “on the prowl” and so on – and suggest a more honest, egalitarian sexuality.  The problem is, an egalitarian sexual culture is impossible so long as young men are taught, as Christopher Hitchens once said, that they are “spectacularly unattractive” and have to throw a Hail Mary and prove “high value” in a desperate bid to engage the attention of women.  This message does not, generally speaking, help adolescent boys grow into emotionally aware, compassionate, and confident young men – quite the opposite.  It’s emotionally stultifying and breeds infantile resentment of women’s sexual power.  Consider, for example, this comment left on a “men’s rights” blog, the Spearhead, by “Keyster” on the subject of this past year’s Slutwalks:

They’re high functioning children with sexual power and they don’t want you to forget it…
…Remember this: She didn’t bother to get dressed up for the likes of YOU. Her hope was a worthy athelete
(sic) or Hollywood star might notice her and talk to her; not some weak, pathetic loser …
“We’ve got the sexual power, the power of consent…
… See our bouncing propped up cleavage, our long legs and glorious ass protruding from those heels? You want it don’t you?
….ha, ha, ha…you can’t have it because I SAY SO! Because I have THIS power over you, lowly little man. Bow down to me and beg me a little, I might even let the others see me talking to you, without calling the cops.” 

Immature?  Yeah, it is.  But it’s worth a minute to think about why a young man like “Keyster” – I’m guessing he’s about 19  – would get so triggered at the sight of young women dressing up like “sluts”.  The answer, I think, is that Keyster can’t dress up like a slut.  Or at least he doesn’t think that he can – dress up in all sexy, that is – and thereby make himself desirable to women.  What he thinks, what he’s been told all his life, is that any attraction he can generate is contingent on whatever status and power he can acquire.  In lieu of that, the best he thinks he can hope for is to “be that mistake”.  And that belief is hardly going to generate a healthy attitude toward women.

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Either a penitent or a buffoon.

Last week, gender thinker Tom Matlack wrote a piece about men’s dismay at feeling “blamed for everything” that was scoffed at as risible garbage by Amanda Marcotte.  I thought Mr. Matlack’s piece was extremely vague and a bit of a nothing-burger which didn’t leave much to chew on.  Yet I do think there is one important way in which men are “blamed” and constrained in self-expression, and that’s in the sexual realm.

Obnoxious displays of masculine sexuality are everywhere, of course, so at first blush it may not seem as though men are so constrained.  Yet while men are allowed to be crass, it seems universality understood that women have the moral authority in sexual matters.  Consider this passage from Tracy Clark-Flory’s essay about her sexual coming of age:

I lost my virginity at 16 with my first love and best friend; it was all champagne and roses. It was also as-porn-ational sex: I enthusiastically guided us into nearly every position I’d long marveled at online. At one point, midcoital, I actually pinched my chin and asked aloud, “What positions are left?” Afterward, he observed: “That wasn’t what I’d imagined, exactly.” He had imagined: 1) the missionary position and 2) ceremonial crying.

If this passage were written by a man, it would likely sound something like this:

I lost my virginity at 16 with a girl I was in love with.  At the time, I’d been looking at a lot of porn, and when we tried lovemaking I actually tried twisting her into all the positions I’d seen on the internet.  I was so caught up in porn back then, and so emotionally detached, that at one point I actually stopped, midcoital, and asked “What positions are left?”  Afterward, she observed, “That wasn’t what I’d imagined, exactly.”

Men write about sex either to confess (as above) or to play the fool.  It’s quite possible, of course, for a sixteen year old boy to have a first sexual experience similar to what Tracy Clark-Flory experienced – all champagne and roses.  But he’d be loathe to write about it in Clark-Flory’s sex-positive style, for fear of being seen as a selfish porn-addled sleaze.  For her part, Clark-Flory is going to be seen as lighthearted and innocent, and she knows this, so she can write about her coming of age with gusto.  (And there’s absolutely nothing wrong with Tracy’s ride on the sex carousel, by the way.  Her essay is worth a read.)

Another example of a woman talking about sex is Amanda Marcotte, this time in a post about a common sexually transmitted infection, the human papillomavirus:

Personally, I’ve had HPV at least twice, which is incredibly common for a woman my age. … [B]oth times I had bad Pap smears that showed positive for it, I was in monogamous relationships.  I could have gotten it from them, or they from me.  Or from a former monogamous partner or a hook-up.  Who knows?  More importantly, who cares?  It’s the sinus infection of STDs.

What Amanda is saying here is that women ought to be able to explore their sexuality, have a few hook-ups along the way, and not get too bent out of shape about the occasional STD.  She knows that nobody is going to think any less of her because of it.  At least, nobody about whose opinion she gives a flying fuck.  Yet it’s different for men.  A man would be reluctant to talk about getting an STD unless he was either confessing to being irresponsible or making a joke.  Unlike Amanda, a progressive feminist man might avoid mentioning an STD he “could have gotten from a hook-up” for fear of losing respect from people about whose opinion he does give a flying fuck.  Because for men, there’s a presumption of irresponsibility.

Of course, it’s difficult to prove a broad proposition such as “women are granted more moral authority than men in sexual matters”, but men’s silence speaks volumes.  Feminist thinker Thomas Millar says that men have “ceded the field” in talking about male sexuality, and says this is because men are a prisoner of privilege.  But how privileged is a man who continually and strategically keeps his mouth shut?

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Trying to be funny.

I’ve been dismayed to see a lot of uninformed trashing of Christopher Hitchens in the days since he died.  One piece of his writing, Why Women Aren’t Funny, seems to have been latched onto by those under the impression that that piece and a handful of similar essays made up the bulk of his output, which of course is not the case.  Last year, I wrote a short post about Hitchens, and I’d encourage anyone to check out some of the articles to which I linked before passing judgment.  And, of course, anyone who wants to tar him as a “misogynist” might first want to check out what he had to say about the empowerment of women.

Okay, with that out of the way, on re-reading I found a very troubling idea in Why Women Aren’t Funny, expressed in this passage:

Why are men, taken on average and as a whole, funnier than women? Well, for one thing, they had damn well better be. The chief task in life that a man has to perform is that of impressing the opposite sex, and Mother Nature (as we laughingly call her) is not so kind to men. In fact, she equips many fellows with very little armament for the struggle. An average man has just one, outside chance: he had better be able to make the lady laugh. …
Women have no corresponding need to appeal to men in this way. They already appeal to men, if you catch my drift.

Alessandra Stanley wrote a rebuttal, Who Says Women Aren’t Funny, to which Hitchen’s replied in a video with 5 minutes of Marcotte-bait…

… in which he reiterated men’s desperate need to impress women:

There is no question that for women the need or ability to be funny is tremendously less than it is among men.  Nobody has been found to deny that.  Alessandra  doesn’t even try to deny that. … She even, at one point, echoes what I think is my strongest point.  Namely, that women don’t need to be funny.  That for most men, if they can’t make women laugh they are out of the evolutionary contest.  They are never going to get laid.  Most men are fantastically unattractive.  What women see in them is mysterious to most men as well as most women.

There is some truth to what Hitchens is saying, of course.  A man can’t attract women the way a woman displaying her body can attract men.  Or as Dan Savage once bluntly put it:

Men and women are attracted to different things. Most men — not all — are attracted to fertile, 18-year-old girls. Most women — not all — are attracted to power, i.e. bigger, stronger, richer men. (Anybody wanna marry a multi-millionaire?) An 18-year-old boy taking his clothes off in a strip club is not, by definition, a man with much power, so most women aren’t gonna waste their time in strip clubs…

I’d say Dan Savage is excessively discounting the possibility of women’s physical attraction to men – I still remember how floored I was when I first read that in my twenties – and  Hitchens goes overboard with hyperbole: “out of the evolutionary contest” etcetera.  Looking at sexual relations this way may have been stimulating to Hitch – he seemed amenable to gladiatorial bullshit – but it tends to create a self-defeating, self-fulfilling prophesy of failure for a lot of men.  Take a man longing for connection and desperately overestimating his wit, resolving when his jokes bomb to grease the comedic wheels with still more booze and this will not end well.  And while you might say he shouldn’t be so desperately needy, it’s the constant refrain men hear – that they’re “fantastically unattractive”, their sexuality unwelcome, they’ve got “one outside chance” to impress – that instills the desperation in the first place.

So it would be good for men – especially young men – to challenge the idea that a man is never inherently attractive unless he can perform and impress and demonstrate high value.  This idea is usually presented in jocular form in the popular press, but it poisons young men nonetheless, even if offered up with verve by wits like Hitchens.  In my twenties, it poisoned me.  Yet a lot of feminist thought prevents a challenge to these toxic ideas.  Not because feminists agree with Hitchens, of course.  It’s that they won’t concede that there’s any truth to what he’s saying, and that makes an effective refutation impossible.


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“I was young and I was wild.”

Via Andrew Sullivan, I came across this post by conservative writer Rod Dreher on fatherhood and the way it effected his ability to tolerate violence in movies:

I was a professional film critic once upon a time, but had a sharp and unexpected change in my film-watching habits when my first child was born. … I was at home watching TV when I saw that “Goodfellas” was coming on. It had been my favorite film of the year when it was in theaters years earlier, and I was looking forward to the opportunity to watch it again.
I lasted 40 minutes before the violence sickened me so much I could no longer take it.
This was something very new. … Suddenly, I felt it in my bones in a way I had never done. Why? I think it was the simple fatherly act of holding my newborn son close every day, and experiencing how unbelievably fragile human life is. Watching its wanton violation, seeing the terrible abuse of the human body and the graphic murder of human beings, was literally intolerable to me. It wasn’t that I became indignant about it; it was that I literally could not watch it.

What Mr. Dreher is expressing is a variation on a common theme.  Men often say they were insensitive when young – easily holding violence at an ironic distance.  It’s only with marriage or children – so the narrative goes – that they became sensitive and tender and experienced the fragility of human life.  And while I don’t doubt that experiences such as fatherhood can put a man in touch with sensitive feelings, the “insensitive youth” narrative is troublesome because it doesn’t accurately reflect how young men actually feel.  To illustrate why this narrative differs from men’s actual experiences, consider two different studies.

The first deals with memories of September 11, 2001:

Within about a week [of the attack], memory scientists from New York to Michigan to California (now known as the 9/11 Memory Consortium) were querying people on what they remembered.

The resulting set of data contained responses from more than 3,000 people in seven cities. Following up with those same people one year and three years later, the researchers found a decline in flashbulb memory accuracy that gradually leveled off after year one. In the first year, people’s memories were consistent with the initial responses only 63 percent of the time. After that, however, they only lost 4.5 percent of their accuracy per year.

“People began to tell what I would call a canonical story,” said Hirst, who was one of the study researchers. “The error they made at 11 months and the error they made at 35 months was the same.”

Surprisingly, Hirst said, people tend to be particularly bad at remembering their emotions from the time of the attack. It’s hard to look back at an emotional event without coloring it with hindsight, he said.  (Bold mine.)

The second study concerns gender and aggressive behavior.  I read about this study in the popular press several years ago, and found an abstract on a site called “Gender Matters” (scroll down):

Rethinking sex differences in aggression
Aggressive behavior in the absence of social roles
Jenifer Lightdale & Deborah Prentice (1994)

College students were asked to play a video game in which they dropped bombs on an opponent and were bombed in turn. Students were told that they had been matched with someone at another terminal in the room but would never know who that person was. Researchers knew the gender of only half of the study participants. Among those whose identities were known, males dropped significantly more bombs than females. When their identities were not known, females dropped more bombs than males. However, when debriefed after the game-playing session, girls [sic] whose gender was now known to the interviewer, claimed to have dropped far fewer bombs than they actually had dropped.

What’s interesting about this is it indicates men are more aggressive when they think they are being observed, and less aggressive otherwise.  In other words, men who behave aggressively are often performing in a way they think will bring acceptance and validation from society.

So what do these studies have to do with Rod Dreher’s claim that he was ironically detached from movie violence when younger, yet felt it in his bones and was sickened by it when he became a father?  Or, more generally – since I know nothing of Rod Dreher – what might these studies imply about the multitudes of men whose psychological autobiographies follow the same plotline?  Well, the video game study indicates men feel a need to perform aggressive behavior when watched; the corollary to this, I believe, is that men often feel a need to downplay their more sensitive and vulnerable feelings.  Add to this that memory, especially emotional memory, is highly inaccurate and prone to suggestion, and here’s what happens:  Men cultivate an autobiographical narrative that fits how they think they were supposed to have felt.  If a thirty-something father says he’s sickened by television violence while holding his infant son, he’s met with nods of approval.  He’s justified his sensitive feelings.  But if a nineteen year old man says film violence makes him queasy, he’s met with embarrassed silence.  That’s not the way a young single man is supposed to feel.  So the feeling is excluded from the autobiography he constructs for himself.

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Sex ed and driver’s ed.

One thing that really grinds my gears is the way adolescent sexuality is framed by “progressives”.  The old saw is, “Well, we can’t stop teenagers from having sex, so we’d better educate them about it.”  The assumption is that if we could shut down adolescent sexuality, then of course that’s what we’d do.  It’s just a pity we can’t.

What if we approached driver’s ed like this?  Instead of looking at driving as an exciting part of growing up, we’d say, “Well, teenagers are going to drive whether we like it or not.”  Imagine a bunch of adults with control-freak personalities pontificating about what an awesome responsibility driving was, and making a big to-do about whether this or that teenager was “ready” to start driving.  We’d tell teenagers that every time they drove, they risked being killed, disfigured, or paralyzed for life, “but here are some things you can do to make it safer, if you insist on doing it.”  Imagine if the bad-ass teenagers were the ones who drove, and the “good kids” were tacitly discouraged from driving.

As it happens, I learned how to drive in high school and became pretty good at it.  But I never had any kind of sexual relationship in high school.  I was one of the “good kids”.  The result?  In my twenties, I was a competent driver, perfectly comfortable behind the wheel.  But sexually, I was awkward, uncomfortable, and inept in the (relatively few) experiences I had with women.  So I’m irritated at the neurotic version of sexuality we keep pushing on teenagers.  For me, a sexual relationship as a teen would have been emotionally healing, a way to grow interpersonally, develop emotional maturity, and frankly, would have been a hell of a lot of fun.  Yet I kept getting the message that “good” kids didn’t do that.  What a waste. 

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