DON'T SAY "NEXUS;" SAY "CONNECTION" : WHY I DON'T LIKE PRETENTIOUS LANGUAGE

AN ESSAY

During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."

In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.

I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.

But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.

Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.

All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.

Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.

It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.

Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.

Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.

What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.

But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.

Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.

Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.

Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.

In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.

And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.

MOMENTS I'M NOT PROUD OF

A REFLECTION

We remember moments in life. It is hard to remember particular days, or even particular eras in our lives. But certain moments inscribe themselves in us with uncanny detail. I think that's interesting, because moments are much shorter than days or eras.

On the other hand, it makes sense that we remember moments because they are sensory. Memory is little more than "stored sense" that fades over time. In a particular moment, we see, hear, feel or taste particular things. Sometimes our senses leave an impression. Most times, they do not. After all, we need to sense to survive; we can't possibly remember every little thing we sense. No, we only remember moments that are, well, worth remembering.

I have a lot of really good memories. My good memories generally fall into two categories: Moments when I felt inwardly good about a situation without external recognition; and moments when I overcame some external obstacle or achieved some popular reward.

I can give examples. First, I remember a night in November 1994 when my best friend and I frolicked shirtless through a school field in rural Connecticut. No one was there but us. The moon was shining. We laughed and screamed all night. We fell in the grass and just looked up at the stars. I talked about whatever came in my head and everything I said just seemed to be right. It was unusually warm for that time of year. Then we got into my car and just went home.

That was a "good memory" that did not involve any external recognition. I remember the things I saw, heard and felt. No one else witnessed what my friend and I did that night; yet it remains a cherished memory. I did not win any accolades for it. I just remember feeling so, so good. And I can relate that feeling to the things I saw, heard and felt that night in 1994.

Second, I remember several days in January 2004, during my first year in law school. I had just taken my first law exams and I was extremely nervous. I felt as if my entire future depended on how I did on those tests. For the previous four months, I had worked harder than at any other time in my life to that point.

New York Law School published exam results through a computer system. Every day, I nervously logged in to my account to see whether they had posted my results. I had to type in an ID code to access my information. There was always a brief delay between the time I entered my code and the time the webpage came up. I always held my breath during that moment. I remember that my heart even raced. I remember that I perspired a lot then, too. I remember feeling droplets of sweat fall from the top of my armpit onto my side.

After about a week of nervous checking, I finally saw results. I had gotten mostly A's on my exams and wound up with a Grade Point Average of 3.79, which placed me in the Top 10 of my class of 400. I felt a bizarre mix of relief, exultation and new confidence. Professors and friends congratulated me after the yearly rankings went public. I relished my success. It felt really good. I had overcome a huge barrier and received external praise for it.

Unlike the nocturnal moment in the field with my boyhood friend, this was a "good memory" that depended exclusively on official judgments. It was still "good," but for entirely different reasons. And I remember it differently, too.

But I am not ashamed to admit that I remember bad experiences as much as I remember good ones. In fact, I think I have learned more about myself by reliving my less-than-heroic moments and understanding why they were so bad. Our failures defines us as much--if not more--than our successes. After all, just as we can succeed in many ways, so too can we fail in many ways. We can fail externally, as through school grades or critical condemnation for "poor work." Others can tell us we have failed to reach an "acceptable" standard, and that feels bad. Or we can fail internally, as when we lose our composure or sacrifice our beliefs. We don't need other people to tell us we've failed when we fail internally.

I have suffered both kinds of failure. But I find external failure much easier to bear than internal failure. After all, you can always blame your judge or your critic if you fail externally. Maybe they just didn't like you. Maybe the test was unfair. It's easier to justify external failure.

But you can't run from yourself: When you fail internally, you've failed to meet your own standards. And you can't point your finger at some test-grader or theater critic for that.

I'm far, far, far from perfect. I have failed so much in life. In most cases, I can move beyond my failures. But I never forget them. I try to learn from them. Still, they sting me when I recall them, especially when I failed myself.

Here's a moment I'm not proud of. Last October, my partner, Steve, went to the hospital after suffering an acute manic episode. For several weeks before that, his condition had steadily worsened. He did not sleep for 60 hours straight at one point. He constantly busied himself with "tasks;" he woke me from bed every 15 minutes every night to help him re-clean the apartment or find some random webpage. He drew up long, detailed lists every day and tried to accomplish every little thing on the list, like buying a gurtel at some far-away store he found on the internet. He became angry when he did not complete everything on the list each day. Then he became hostile and profligate. He picked fights with random people on the street. He spent thousands on useless things, like Christmas ornaments and big rolls of fancy platinum ribbons for Thank You cards.

By the time Steve went to the hospital, I was ready to strangle him. Yet this was the man I had loved for ten years. I could not believe I was feeling the way I was. But I was so exhausted and so emotionally battered that I just wanted relief; and it seemed the only way to find relief was to cast him off. I felt better when I recognized that he had a serious disease. I tried not to take his abuse personally. The words still hurt, though. I was happy that he got the medical attention he needed. I was even happier to get a three-week break alone to rebuild my mental constitution.

I remember feeling somewhat disappointed when the doctor called to tell me that Steve was ready to come home. I felt a swirling mix of fear, resentment, childish selfishness and fatigue. I did not want to endure the same problems that arose when Steve fell ill. I didn't want to be woken up again every 15 minutes. Plus, I felt as if I had just caught my breath after a grueling bout, and now I would have to grit my teeth and start fighting all over again. Still, I tried to put on my most positive face when I went to pick Steve up at the hospital. I could not deny that I still loved him. I thought: "Maybe he'll be better now." I allowed myself to hope, even though my overall mood was dark and frustrated.

Steve was in surprisingly good shape when I brought him home. His doctors had found the medication he needed to achieve emotional stability, and he was on the path to a "new normalcy." I was glad to see that. We even went out to lunch late that afternoon. Steve moved very slowly. His eyes looked exhausted and glazed over. He was heavily medicated. One medication made him drool and he had to wear a bib. I had to help him walk from place to place. He used a cane because he was unsteady on his feet. Naturally, all these things aroused my pity. Steve cut a pathetic picture now. It hurt me deeply.

And I still felt past resentments. My temper was short. I was in no mood for any additional challenges. But sure enough, while we walked home from the restaurant, a challenge arose. As we crossed 4th Avenue at 12th Street, we tried to hail a cab. When the cabbie saw Steve's cane, he made a dismissive gesture and said: "No, no, no," then drove off. That made me angry. It also cost us time; the light was about to change. Steve was too slow to make it across 4th Avenue before the oncoming traffic got a green signal. It was around 5 o'clock. As we passed in front of a guy on a motorcycle, the horns started blowing. The guy on the motorcycle rolled his eyes at me and Steve as if to say: "Get going, will you?"

It touched a nerve. I completely lost my temper. I stopped right in the middle of the street and said: "What the fuck are you looking at? Can't you see I'm trying to help this man?" In the meantime, Steve made his way to the other side of the street. But I stayed. My voice rose and my heart pounded hard. I continued yelling. I remember saying: "So you think you're special because you're wearing that fucking hat, huh?" As I stood there cursing, the traffic started moving at full speed all around me. I was so enraged that I did not even recognize how much danger I faced. The guy on the motorcycle didn't say a word. He just smiled at me and shook his head as if to say: "What a fucking nut." He drove right past me. Another guy in a car almost rolled over my right foot. I remember feeling the tire graze the front of my sneaker. I was too livid to comprehend what was going on.

Ultimately we got a cab and headed home. Steve told me that my voice changed and that my eyes had bulged while I was out yelling in the street. After a few minutes, the adrenaline passed from my body and I started to feel extremely bad about what had just happened. I felt that I had made a fool of myself. Steve just shook his head. I tried to explain that I lost my temper because I was upset that people were so insensitive about his condition. That was partially true; I was also just really angry about having him back in the house again. Thankfully, the subsequent weeks proved that anger moot; Steve never went manic again.

I recount that story because it's a moment I'm not proud of. I take pride in my reason. I like to feel that I can coolly handle any situation with dignity. But on that day in October 2009, I completely abandoned my reason and fell headlong into dangerous emotion. Make no mistake: I do not flee from emotion; in most situations, I even relish it. But extreme emotion is dangerous. It undermines everything. I felt uncontrollable rage that day. It was as if I stepped from my own skin and became a wild beast. In addition, I reproached myself for the petty selfishness I felt that whole day. I knew that selfishness fanned my underlying anger, and that anger exploded into fury. That was out of character for me. I failed myself.

Still, I learned a lot from that moment. I learned that human reason hangs by a thread. Despite all our claims to rational intelligence and equanimity, pressures can drive the human mind straight back to animal depths in an instant. It is just a question of circumstance, mood and stimulus. After all, we are but sensory creatures. Sense might lead to science and discovery. But it can also lead to wrath and destruction.

Having said all this, I can still find some justification for my outburst. I truly feel anger toward people who are callous about Steve. I won't deny that. I love Steve. He is handicapped; it is obvious. When people look at him funny or rush him on the street, it really bothers me. For the most part, he stays indoors now because he knows that he can't handle the barbarians outside.

Most people just don't understand. I can't expect them to, either. But that doesn't stop me from feeling anger about it. I wish I didn't. I'm not proud of it. Yet I can learn a lot about others--and myself--when I reflect on it.

LAWYERS ARE BAD MEN AND CLIENTS ARE ONE-DIMENSIONAL SIMPLETONS...AND THERE'S NOTHING WRONG WITH THAT

AN ESSAY

Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.

Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.

Applying these definitions, it is easy to see that a person can act legally without being ethical at all.

I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.

Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?

Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.

But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.

When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.

Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.

Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.

If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."

Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.

Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.

I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.

Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.

That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.

Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.

And law cares not a fig for either conscience or belief.

DEBT, EDUCATION AND INDENTURED SERVITUDE--AMERICAN STYLE

A REFLECTION

This morning, I read an article in Above the Law, a magazine that targets issues relevant to freelance lawyers. In it, editor Elie Mystal lamented the $150,000 debt he assumed to finance his legal education. He called law school debt "The Silent Killer." His experience with debt even caused him to characterize his legal education as an "expensive vacation that debt financed."

In many ways, I am in Elie Mystal's boat. I graduated from law school in 2006 with about $95,000 in debt. Like Elie, I detested private practice and gave it up on principle. You see, I have this little problem: I insist on ethics and honor. That makes private law practice, well, a bit incongruous.

Since 2007, I have done consulting jobs that pay the crushing loan installments. Even more recently, I haven't been able to work at all due my partner's health crisis. The creditors don't care, of course. They just want their monthly checks; they don't give a damn about your problems.

I agree that debt is a "silent killer." Thanks to bank-friendly Bush-era deregulation in place at the time I signed my promissory notes, my loan principal has actually increased since I began repaying in late 2006. In essence, the banks have a permanent lien on my financial lifeblood, which is meager at best. This permanent financial burden robs voluntariness from all my employment decisions: I can't work a public interest job that won't even cover my monthly debt bill. I call this predicament "modern indentured servitude" because debt essentially compels work particular jobs in order to pay off the boulder that has been tied around their necks. Their choices are illusory; they must take a job that pays a certain amount or go bankrupt.

Elie also should have mentioned another issue that contributes to the debt crisis plaguing American graduate students: Deception. To be blunt, I entered law school under almost laughably false economic assumptions. I believed that my legal education would entitle me to an automatic $125,000-a-year job. I had worked at a law firm before law school and everyone there said that a law degree is basically a meal ticket. Law schools perpetuated that belief with "employment statistics" that corroborated my assumptions. Thus, I happily took out $100,000 in loans to finance my meal ticket. After all, I thought, what's $100,000 in debt if I'm certain to have a $125,000-a-year job waiting for me when I'm done?

"Ha! I can pay that off with a single bonus check," I declared in 2003.

What foolishness. But it is widespread foolishness. And every new law student subscribes to it. I know I did. Plus I was a wet-faced 25-year-old who knew nothing about the brutal vagaries of the private employment market. No, I learned the hard way--and only after sinking myself into an intractable debt pit.

Despite all this, I disagree with Elie's assertion that law school was a "very expensive vacation that debt financed." I do not regret my education in the least. I took it seriously; I never felt that I was on vacation while studying. True, it is unfortunate that I had to become an indentured servant in order to obtain my education. But I relish what I learned in law school. As a writer, it helps me every day. It enriched the way I think about every intellectual issue I encounter. I am thankful for my legal education. It pays psychic rewards in the classical sense, even if it does not fill my bank account.

But most people do not get educations--at least in America--to enrich their perspectives. They get educations to get jobs and make tons of money until they die or retire. In my view, this is the fundamental problem with the American system: People do not care about learning for its own sake. They use it merely to become commercial instruments for the rest of their lives. In that light, it is no surprise that debt plays a role in the system. Just as entrepreneurs take out loans in order to make more money in the future, so too do students take out loans in order to transform themselves into "profitable ventures." American students, in other words, are no different than entrepreneurs; they both gamble with debt in order to cash in later. And the goal of education in America is exactly the same as the goal of everyday business: Simple commercial success.

This leads me to my core objection: Shouldn't academic pursuits and crass commercial concerns be distinct? Sadly, the educational debt quandary in America shows that they are not.
That's a shame. And it's ruining many people's lives every day.

If only we could follow Aristotle's prescription for education: "[F]or it is more necessary to equalize appetites than possessions, and that can only be done by adequate education under the laws." The Politics, Book II, ch. vii at 1266b24.

In other words, education should not be a means to obtain "possessions," but rather to refine "appetites." It is not about "having" tangible things. It is about character; and you can't buy that.

STANDARDIZED TESTS, SUCCESS AND LEARNING IN AMERICA

AN ESSAY

I always get ideas when I study advertising in the New York subway. A couple weeks ago, I looked up and saw a big print ad from Kaplan, the standardized test-taking course publisher. It showed a young black man with glasses holding a book. Next to his face ran a slogan: "Prepare for an Upturn." Under the slogan appeared a few words about the tests for which Kaplan offered courses. It did not mention prices, although it did list contact information and addresses.

My mind roared into action as soon as I saw these images. I have long criticized standardized tests for their counterintuitive absurdity. They rarely measure knowledge or intelligence; if anything, they measure an applicant's ability to learn the "test-writers'" techniques and predict which multiple-choice answer they designated "correct." This ability to "read the test-writer's mind" includes numerous little tricks, such as looking out for the words "not," "unless," "but if" and "except." If those words appear in certain combinations, they automatically rule out certain answers. By ruling out certain answers, test-takers increase their chances to pick the correct one from those that remain. In sum, standardized tests do not test substantive knowledge from a liberal perspective. Rather, they are merely ornate little games with learnable little rules. And worst of all, these "ornate games" represent the single most important factor in determining whether a person attends a university.

Kaplan--along with all the other test-taking course publishers like The Princeton Review--knows all these things. It understands that students want to get into the best schools they can. They know that students want to make money, and the only way to make money is to get a good job. Only people who go to "good schools" get "good jobs," and the only way to get into a "good school" is to do well on standardized tests. Kaplan, then, offers a truly valuable service. On a micro level, they teach students how to read the test-takers' minds and predict the correct answer based on subtle hints in the text. But on a macro level, they open the doors to lifelong commercial success: Once you "ace" the test, you get the degree, get the job and make the money. For a terrified student, that is a miraculous potential reward.

At least, that is the theory. In truth, good schools and good grades do not necessarily translate into employability and money. That is why I found it perplexing--and even misleading--for Kaplan to say: "Prepare for an Upturn." Is that not an ambiguous thing to say? An upturn? In what? In score? In salary? In happiness? On the other hand, perhaps Kaplan meant all these things. After all, according to the "test-school-job-money-happiness" continuum that dominates conventional American notions about "success," doing well on standardized tests is the first step toward ultimate victory. These conventional notions assume that people want nothing more than a high-paying job to be happy. And if a person aces a standardized test, that increases his or her chances to get into a school, which in turn will lead him or her to a high-paying job. Kaplan knows that students think in these terms, so they play to it: If you get an upturn in standardized test scores, you get an upturn in life.

But there are not too many jobs left in 21st Century America. Even people who follow the "conventional path" from high standardized test scores to college and graduate school will not always find the "upturn" they expected in the end. Thousands of law school graduates, for instance, now struggle to find low-paying posts. College graduates face an even grimmer employment picture, even the ones who got 1600 on their SATs and waltzed into top schools. For those who did not fare as well, opportunities are even bleaker. Put simply, success on standardized tests does not translate into a "guaranteed upturn" in salary, employability or happiness. In fact, those who peg their hopes for happiness on the private job market are bound for disappointment. In times like these, the best pathway to employment lies in family connections, not school names or even test scores. A dumb nephew will always get a family job over a smarty-pants stranger who got high test scores. And Kaplan can't teach you to be the CEO's nephew.

That is why it is both sad and disingenuous for Kaplan to promise hopeful students to "expect an upturn" from acing standardized tests. It is sad because no test score or intellectual achievement ever guarantees private sector employment. Quite the contrary, private enterprise follows the money; people get jobs in private business when the company has available money, not because it respects a student's performance on a standardized test. It is disingenuous because it leads students to believe that test scores somehow entitle them to private sector employment. The mystique surrounding standardized tests is so pervasive that students think they are invincible as long as they breach a certain score threshold. This is a fool's belief.

Standardized test preparation companies like Kaplan perpetuate this fool's belief. They want students to lust after high scores. They want students to believe that they are "set for life" as long as they achieve a certain score on the test. By nursing that belief, Kaplan's "services" become ever more attractive: If high scores mean a better life, then who wouldn't lay down $1500 for a course that guarantees a high score? Like any savvy advertiser, Kaplan did not list course prices. Advertisers do not like to scare people away with prices. Instead, they want to trigger a burning desire to buy their products; they only disclose prices after the consumer has developed a conscious need to get the product. Kaplan faces an easy task in this regard. All students burningly seek an advantage in standardized test-taking because they believe higher scores mean a better life. Thus, they all too readily buy into Kaplan's rhetoric about "upturns" as long as they buy a Kaplan course. When they ultimately learn that Kaplan charges $2000 for a course on the LSAT, they are too intoxicated to resist paying it.

I did the same thing. I paid $1500 for an LSAT course in 2002 because I wanted to get a better score and increase my chances to get into a "good law school." I didn't take Kaplan, but test preparation companies all follow the same principles. I fell for the rhetoric. I thought the course would magically boost my score, and my score would propel me to Harvard or Columbia, then a $150,000-a-year job at a private law firm. It didn't happen; not even close. I did not even do that well on the test. I am just not very good at standardized tests. But I am proud of that. I resist mimicking idiotic test-writers and learning their picayune little mind tricks. That doomed me on the LSAT, but so what? What good would a higher score have done in the end? We're still in a depression, and even the greatest test-takers face the same economic adversity as the most blundering multiple-choice neophytes.

I have deep objections about America's fixation on standardized tests. It is impossible to objectively measure an individual's intellectual depth, creativity, intelligence and "value" with a purposely deceptive, trick-laden, multiple-choice amalgamation. Yet millions believe that standardized tests authoritatively measure all these things. I think this reveals a fundamental flaw in most Americans' approach to knowledge in general. Standardized tests are supposed to measure intelligence and intellectual depth. Yet neither intelligence nor intellectual depth can prepare a test taker to face the myriad tricks and traps in any standardized test. Doing well on a standardized test about biology, for instance, requires learning about the particular standardized test about biology, not about biology itself. And because standardized tests act as "gateways" to universities and careers, they are essentially instrumental. In essence, then, the American obsession with standardized tests renders American approaches to knowledge "instrumental," too: By spending all your time learning how to take tests, knowledge becomes just another forgettable tool to get a job. Knowledge in itself is nothing. Only knowledge that "gets you in somewhere" is worth having.

I believe the opposite. I think that knowledge offers its own rewards, no matter whether it helps you do well on a standardized test. People tell me that this is a "humanist" or "Renaissance" approach to knowledge. In other words, it is "old-fashioned" and "impracticable." People tell me that I need to "put my knowledge to use" so I can "make money" and "get a better job." But that's not the reason I learn things. I learn things to enrich my own mind, not to boost my resume or impress some interviewer. This might be old-fashioned and even "unreasonable," but it's what I do.

I do not like instrumental learning. Kaplan thrives on it. I live in a country in which students ask: "What do I need to know for the test?" rather than: "I want to learn more about this subject because it interests me." That illustrates the difference between instrumental learning and learning for its own sake. True, instrumental learners might score highly on standardized tests. But so what? They can pick all the correct answers in the world, but that will not magically create a private sector job for them. How ironic is that?

WHAT I REALLY THINK ABOUT THE LAW (AND LAWYERS)

AN ESSAY

For almost a year now, I have written essays and satires criticizing “the law.” Some mock the legal profession. Others mock the inane factual intricacies of the common law. Still others criticize the unfair power relationships underlying so much contemporary legal doctrine. Still, when I criticize “the law,” I am not advocating anarchy. I am actually criticizing something much more subtle, including people who use law for bad purposes. When it comes to human law, there are men who win and men who lose. It is “game-like.” Some men sit as judges between other men who desperately want to win. It is not neutral because men are not neutral by nature. Men use the law to advance their own causes, whether to protect or acquire property or to condemn men’s bodies to pain. It is instrumental, not academic. Yet human law is supposed to be detached, at least in theory. It is supposed to represent larger principles, not petty interests. But in using law, men pervert principles for their own gain. They could care less whether they do “abstract justice.” This tension represents the focal point of my criticism.

Interestingly, I had to study law for years before I could safely formulate these views. I came from a family that ridiculed lawyers. I was told from an early age that lawyers were “sleazebuckets,” “liars,” “thieves” and “gladhanders” who said anything necessary to make a few dollars. My parents labeled them “rude,” “impolite,” “unscrupulous” and “mean-spirited.” My father had one encounter with the civil justice system in his life. He often recounted it to me. During a deposition about some air conditioning sale gone wrong, the opposing lawyer cast spiteful doubt on every single thing he said. He said it made him feel horrible. He said the lawyer gave him the impression that he thought my father was lying about everything, when in fact he was telling the truth. He also said the lawyer asked convoluted questions in such perplexing language that he could not even really figure out what he wanted to know. Then, after the deposition ended, the opposing lawyer and my father’s lawyer joked around and talked about playing golf on the weekend, as if the foregoing inquisition had been “just another day at the office.”

These pejoratives burrowed deeply into my consciousness. I did not harbor good impressions about lawyers. In my early experience, I did not know many lawyers firsthand. They seemed rather boring and aloof. More often, I saw them mocked in television shows, movies, jokes and literature. These lampoons commonly tracked my parents’ criticisms: lawyers were unethical, mean, ridiculous, fast-talking, text-parsing word-benders determined to make money no matter what. Even Shakespeare’s generation pronounced the dominant judgment on lawyers: “The first thing we do, let’s kill all the lawyers.” King Henry VI, Part 2, Act IV, sc. ii. Apparently, for centuries people have just not liked the way lawyers make them feel. In a word, my upbringing taught me that lawyers were “bad” because they condescended to any artifice to win arguments, all the while manipulating inscrutable language. In essence, lawyers were “bad” and “mean” because they did not speak plainly. And because they “did it all for money.”

But somehow I wound up in law school. Perhaps I was fighting against my own nature when I decided I would study law. At the time, I just wanted an income in life. I studied literature in college. To my chagrin, I found no “literature firms” that paid living wages. In my early twenties, I had knowledge—some would say “useless knowledge” because it did not readily translate into “corporate employability”—but no trade. Yet I needed a trade to pay rent and buy food. I struggled with this for a while. I bounced around doing translations and freelance German-language jobs. I jostled my brain to figure out how to bandy my existing knowledge into a paycheck. Ultimately, I settled on the law because it involved language, rhetoric, writing and—in some sense—government and principle. Despite all my childhood distaste for lawyers, I nonetheless came to understand that there was something redeeming about the law, something intangible and good. I always loved studying history, philosophy and government. I knew that law played a role in these disciplines. It may not have been obvious, but I knew it was there. There was a “hidden allure” in the law beyond mere squabbles for property. It could bring about positive social change and cut through injustice. I did not know how it did these things, so I decided I would learn how it did. At the same time, I said to myself: “I’ll find out what the law is really all about and I’ll get a paycheck in the end, too.” This is how I landed in law school.

Six years later, I can confidently say that you will never meet a lawyer who detests the law as much as I do. Yet there is more to that statement than meets the eye. I learned that the law does indeed prompt the criticisms my parents taught me as a child. But I also confirmed that there is a “hidden allure” in the law that undermines those criticisms. I came to despise the law because—on the whole—the law’s negative characteristics outweigh its positive characteristics. Practice wins over theory in the law, even though much legal theory is thematically pleasing. In short, there is profound tension in all legal discourse. There is tension between practice and principle. Principles transcend; practice does not. Principles exist no matter what result follows in a particular case; practice aims solely to achieve particular results. Principles work only when their adherents follow them; practice demands “flexibility,” even if that means abandoning principle to win. In my “legal career,” I fell in love with principle because principle represents something larger than winning. That made me a terrible practitioner. Law firms do not want discerning legal scholars who insist on adherence to principle. They want discerning legal scholars who are willing to ignore, manipulate and distinguish principle in order to win a case and make money for the firm. This is what repulses me about the law: Principles are all well and good; but principles don’t pay.

Still, not all legal principles are good. I do not restrict my criticism to shameless legal practice. The law indulges in pure intellectual foolishness, too. For example, many lawyers proudly say that we live under the “rule of law.” The “rule of law” requires that government reference written laws and follow authorized procedures before taking adverse action against men’s bodies or property. Government must act according to verifiable law or not at all. There are great advantages to this theory. It prevents “tyranny” because it stops government from arbitrarily imprisoning people or seizing property. It bars government from harming people based solely on individual caprice or ill-will. In that sense, the rule of law cuts down on arbitrariness and “unreasonable conduct” in government. Additionally, by imposing rigorous procedures on government power, everyone theoretically has a chance to defend themselves prior to adverse action. In theory, everyone can know the laws under which government acts.

But the “rule of law” can lead to absurdity, too. After all, if government can act solely according to law, what happens if laws are evil? The government can be evil? In short, the rule of law can insulate the government from internal challenge as much as it can help to ensure order and transparency. Lawyers tend to think that as long as something is “written in law,” it is “right,” even when common decency, intuition, conscience or natural feelings of justice might dictate a contrary conclusion. For example, the “rule of law” in 1954 dictated that government could lawfully segregate African-Americans and whites in public accommodations. Lawyers in the Brown v. Board of Education case could point to no written law requiring that blacks and whites enjoy equal access to public accommodations. In fact, written law explicitly authorized segregation. Yet the Supreme Court ignored the rule of law in that case. It said that the Fourteenth Amendment’s Equal Protection Clause did not tolerate “State-sponsored racial segregation” because such segregation stamps blacks with a “badge of inferiority.” I agree with the Court, even though no written law directly supported its conclusion. But under the “rule of law,” this was an abysmal decision. If the Court had been truly faithful to the rule of law, it would have followed precedent and applied the law as written. At the time the Court decided Brown, there was nothing in the law about “badges of inferiority” or “psychological trauma.” It made these things up. In short, the Court did not just look to the law to render its decision. It looked to principles beyond the law, or at least implied in the law.

To our ears, this sounds courageous. It even sounds noble. But as a technical matter, the Court disparaged the “rule of law” in Brown. In this sense, Brown provides a fine example for the proposition that the “rule of law” can enslave as much as it can protect. When it comes to the rule of law, the result depends on what the law says, not what conscience or justice says. When the law is bad, the result is bad. Viewed strictly, judges have nothing to say about it.

Yet Brown also shows that inspiring principles do sometimes penetrate the law. I love Brown because it testifies to the “intangible allure” hidden in the law. It shows that justice and “natural right” do sometimes prevail over unjust written laws. And more importantly, it shows that justice and “natural right” constantly pull against the law, even if they disrupt its “orderly administration.” Justice always looms in legal questions. Often legal rules are consistent with justice. Sometimes they are not. In theory, judges and lawyers are not allowed to consider anything beyond the law. That is another reason why I criticize the law: It makes it difficult for judges and lawyers to follow their conscience. Rather, it induces them into a “culture of compliance” in which wooden adherence to written requirements supplants principle. In Brown, the Court refused to “comply” with unjust written requirements. Unfortunately, that does not happen very often. More often, judges and lawyers simply follow the path written in the law; and most troublingly, it rarely bothers them.

My struggles with the law mirror the tension between written law and intuitive justice. I think the tension between law and justice fascinates many people, not just those who have studied law. Movies like The Dark Knight become popular because they tap into this fascination, challenging the idea that the law is supposed to deliver justice, or even cares about it at all. At the same time, people confuse the law with justice. They expect the law to deliver results that are consistent with their intuitive sense about what it is right. Often, they discover to their horror that written law dictates a far different result. Those unlucky to be caught up in civil litigation quickly lose all illusions about lofty principles as cases drag on for years, costing both sides millions while lawyers battle over schedules and copy costs. Moreover, when people “get to know” lawyers, they do not see men and women committed to finding justice. Rather, they see men and women committed to complying with technical requirements in precisely such a way as to avoid punishment and to maximize their chances of winning (and fees). Professional ethics rules provide the best example for the proposition that lawyers do not need a conscience to win: They just need to follow what the rulebook says, even if they have no respect at all for the spirit behind the rules. This is the spiritual and intellectual vacuum that flows from fanatical commitment to the “rule of law.” Justice has no place in such a technical maze. It is all about compliance. If compliance results in justice, fine. If it doesn’t, that’s fine, too. In both cases, it’s “legal.”

These are the reasons why I despise the law. But it is a selective repugnance. I do not like the law for its fanatical devotion to form, compliance, technicality and procedure. I do not like the law for its tendency to lure people to believe that its “administrative rules” lead to justice. I do not like the law because it teaches practitioners to ignore conscience and principle when pondering questions that involve both. I do not like the law for the “culture of compliance” it creates in order to replace intuitive justice. In short, I do not like the law because there is nothing noble about complying with rules, especially if they are bad.

Yet I love the law for the brightness it offers. There are principles in the law that offer avenues to justice. There are principles in our Constitution that exalt individual rights, conscience, belief and self-definition against government power. Daring judges and lawyers see the brightness in these principles and apply them to break stultifying legal traditions. While I believe in the rule of law to the extent necessary to protect individuals from tyranny, I do not blindly comply with unjust rules because they are rules. Nor do I feel just for complying with rules simply because they are rules. Rather, I put my trust in principles that may not find expression in written law. And I truly care about those principles, even if they are not profitable.

This makes me a renegade among lawyers.

THE TRAGEDY OF PROFESSIONAL EDUCATION : PAYING FOR A LONG SHOT

AN ESSAY

We learn that education is a good thing. When we are young, we learn that the good students get into good schools, and that students at good schools get into good graduate schools. Then the good students at the good graduate schools get really good jobs, and they make lots of money. In sum, we absorb a distinctive mythology about education; education tantalizes us into believing that diligent study, good grades and academic achievement translate immediately into “worldly success.”

“Real life” teaches a very different lesson. I always put the phrase “Real Life” in quotation marks because so many people do not understand that it does not reflect an “absolute” or a “norm.” Rather, the words merely describe cruel commerce and all the ruthless human behavior that accompanies it. Still, people who use the term “real life” generally do so in order to scare some dreamer away from “unimportant” pursuits and to focus on what will “make money.” If he doesn’t, after all, he will “not succeed” and go homeless. In commerce, results matter. It doesn’t matter how you get results; you just need to get them without getting caught breaking the law. A guy with $4,000,000 in the bank got results, ethics or no ethics. But an ethical guy with $600 did not get results. What good did ethics do him in “real life?”

But dreamers aren’t the only ones who can’t cope with “real life.” Intelligence and academic success don’t matter, either. In some sense, dreamers court disaster because they should know that commerce doesn’t care about individual expression unless it makes money. But what about everyone who studies hard in school, tries to get good grades and values knowledge? They face the same risks as the dreamer. This is the tragedy of education: It does not prepare students for commerce. In fact, if people prize educational values too much, they will probably fail in commerce.

Still, education is a step along the “traditional life path” leading to “success.” Every “successful” person spent some time in school, somewhere. Some were good students. Others weren’t. No matter a student’s ability, every student hears rhetoric about academic success. They compete with one another to get better grades than their friends. They struggle to outdo one another for accolades and recognition. They proudly advertise their grade point averages next to their names in the belief that a higher number indicates greater intelligence and a better chance at employment. Education, then, becomes an instrument to win employment. While some students truly relish the opportunity to learn, most are satisfied simply to get degrees that enable them to compete for jobs. In other words, wide-ranging knowledge is simply a forgettable means to win some boring, compensated post at a private firm.

In this sense, a mythology develops around education. Students think that smart people get good grades, and good grades grant instant access to the “best jobs.” “Best jobs” mean jobs that pay the most, not the jobs that are most intellectually rewarding or noble. But this is all a myth. Jobs do not depend on intelligence. True, students with good grades have something to flaunt at interviews. Yet no one gets a “job” simply because they are smart. Rather, jobs are private contractual relationships between “employers” and “employees.” Unlike education, employment cares not for enrichment, intellectual broadening or self-expression. Instead, it is concerned with the small-minded advancement of the employer’s financial mission. Students learn to address many issues from many perspectives. By contrast, employees are expected to address one issue from one perspective—all the time. In this light, it is easy to see why truly passionate students could have a hard time coping with “a job.” Jobs, as commercial relationships, are narrowing. Employees are instruments to the employer’s gain. The employer gains nothing from rumination. He gains only from purposeful, targeted activity. Thus, “educational values” differ profoundly from “commercial values.” For years, students learn that their individual ideas and impressions matter. Employees quickly learn that they do not. In fact, they may even be censured for exploring their own ideas. In short, the sole question in employment is: “How does this activity economically benefit the employer?” This unabashed instrumentalism is hard for intelligent people to swallow.

But there are other, less abstract barriers to success in employment. Employment represents a private, contractual relationship. As such, market rules dictate whether there are enough employers to offer work to hopeful employees. After all, employees are a substantial expense. Employers must set aside money for wages, offices, health insurance, payroll taxes, food, and myriad other incidentals associated with keeping a human being working on their land. During profitable times, employers have extra money to hire more people to do their bidding. During leaner times, employers do not have enough money to hire. During losing times, employers must cut existing employees in order to maintain any profit at all. These natural “boom and bust” periods in commerce play a large role in whether employees find jobs. It does not matter how smart, zealous or motivated a student may be. If times are tough, no one gets a job. In fact, people are just happy not to lose their jobs. For those who don’t have a job yet, it’s tough luck time, valedictorians included.

Employment, then, is a matter of both grace and luck. Grace plays a role to the extent that the employer—as the economically dominant party—agrees to allow an employee to serve him for “compensation.” Grace is not objective; employers hire people they like. There is no magical checklist that automatically entitles a hopeful applicant to a job. Luck plays a role to the extent that economic times must be sufficiently robust to allow the employer to spend money on new servants. Contrary to university rhetoric, no academic wizardry can influence these factors. In commerce, bottom lines dictate who gets hired. If there is not enough money to hire, no one gets hired. It’s that simple. It doesn’t matter if Leonardo da Vinci applies; if the company can’t afford to hire anyone, it won’t. Intelligence and merit have nothing to do with it.

This is a jarring truth for students who spend their whole lives studying in the expectation that their academic toils will yield a reward some day. It is even more jarring for students who take their education further than others. Professional schools, for example, advertise their “graduate employment rates” all the time. In recent years, college degrees have increasingly proven insufficient for “really good jobs.” Recent graduates experience this trend when they try unsuccessfully to land even entry-level positions after college. In order to increase their chances to obtain “high-paying jobs” after college, they decide to go to school again, this time to be doctors, lawyers, accountants or even social workers. In so doing, they immerse themselves in an education more rigorous than anything they have ever encountered. They mercilessly compete with one another for grades, knowing that employers do not even interview candidates who fall below a certain threshold. They put themselves through anxiety, stress and personal turmoil to get the degree. After so much work, they expect some results. At this stage, they really could care less about what they study; they simply want a comfortable job after enduring so much academic hazing.

But a professional degree is no automatic ticket to employment, either. Just because a student gets a law degree does not change the commercial dynamic that drives employment markets. Private firms either have extra money to hire or they don’t. A student’s miraculous academic success at law school will not guarantee him a job at a super firm if the firm does not have a healthy profit margin. In this sense, a professional education is no entitlement. It may be grueling and unforgiving, but a student’s academic tribulations do not magically open employment doors. Only grace and luck can do that.

This is tragic. I know from experience that professional school is not pleasant. In fact, it is anxiety-ridden, exhausting and mentally debilitating. School demands so much energy that students must forgo virtually everything else in their lives to keep up. It can ruin relationships, destroy finances and impact health. It seems to go on forever and impose a new reality on students. They must either give themselves fully to the discipline or risk failure. It teaches exacting attention to subtle details and self-excoriation for failing to notice them. Finally—and ironically—many students go into unsalvageable debt to finance this harrowing “learning experience.”

After all this trauma and sacrifice, it is no wonder that professional school students expect a reward at the end. But they don’t get it. Rather, they get a chance to win a reward. Moreover, because employment moves in cycles, it is really a long shot. There are so many things that can prevent a professional student from getting a job. There are no guarantees. In fact, there are a million uncontrollable contingencies that can derail a student’s hopes. A student may get fantastic grades, but lose out on a job because he wore a bad belt to the interview, and the interviewer put special (and unexplainable) emphasis on belt choice. A male student may be a close runner-up for a job, but lose out because the firm wants to hire a woman, not a man. Another student may have conveyed a nervous impression or have been sick on interview day, dashing his chances. Still another may be number one in his class, but really anger the interviewer because the interviewer has a deep-seated resentment toward overachievers. And some other student may send out hundreds of resumes and receive no response from anyone, ever. Worse, there are pernicious, unfair factors at work, too. Some employers may only want to hire students from certain “prestigious” schools. Others may ignore everyone in order to make room for a friend or relative. Still others may only want to hire women they find sexually attractive. Lastly, there is always the “boom and bust” cycle in commerce. When times are tight, no one gets a job, no matter how brilliant they are. In short, only grace and luck lead to employment. Intelligence and sacrifice entitle students to nothing.

Getting a “good job” is a long shot. Despite popular academic rhetoric, diligent study, intellectual curiosity and school success do not magically lead to employment. In fact, educational values have little to do with employment. It is tragic when superb students with real academic promise cannot find suitable jobs.

But there is a way to escape this tragedy. I, for one, do not regret that I obtained a professional education. I saw that employment had little to do with the educational values I cultivated as a student. I did not sacrifice my passion for learning by playing the employment game. Rather, I went to work for myself. By refusing to participate in the “employment game,” I preserved myself from the psychic agony and perpetual disappointment that stem from the employment relationship. It is a more difficult road in the sense that I must find other ways to make money. But what I lose in stability I make up for in happiness. I know that winning employment is arbitrary, and that employers are capricious. Furthermore, I know that getting a job is hardly a “reward;” rather, I view it as a form of surrender. I do not like servility. No matter how “good” the job, employment is a species of servility. Employees are servants. They are conceptually weak and fawning. I do not like being a weak concept. If employers have the power to extend grace, I escape potential disappointment by refusing to even petition them.

Yet I pity all the hopeful students who think their academic effort will lead them to success in private employment. They will soon see that commerce plays by different rules; no one is entitled to anything, unless, of course, they are related to someone in power. Relationships and connections are always better than merit and intelligence. That’s “real life” for you.

A BETTER BAR EXAM MEANS BETTER LAWYERS

By : Mr. Cleophas G. Hoistwell, Esq., L.L.M., National Association of Bar Examiners

Our Nation depends on skilled lawyers. We live in a constitutional democracy in which reasonable laws maximize the public good. We eschew arbitrary rule by individual men for rational, collective, republican government. The law orders our society. It gives predictability to our commerce. It provides a voice to express the majority’s morals. And it protects all good citizens from the violence of dangerous deviants. In short, the law both drives and guides our American civilization.

Lawyers serve the law in America. Without good lawyers, Americans would not be able to secure justice through the law. In less orderly societies, aggrieved individuals resort to private vendettas, feuds and crude revenge to win justice. But in America, citizens trust the law to exact revenge on those who act wrongly. Rather than seeking private revenge on a merchant who breaks his promise, a private seller in America goes to a lawyer to seek legal revenge for his injury. At the same time, the accused merchant seeks his own lawyer to advocate his perspective. A neutral court weighs both sides and decrees a just result. That is the heart of American justice: Fairness, impartiality and reason under neutral laws. In this country, creditors do not bludgeon debtors to death when they fail to pay their bills. Instead, they invoke fair legal principles to compel adherence to just rules. In the process, we give everyone a chance to be heard. Lawyers allow us to hear everyone’s voice. That, in turn, allows our courts to render fair, just decisions to resolve disputes.

Our society depends on skilled lawyers for the same reason it depends on an orderly legal system. An orderly legal system provides effective redress for public and private injuries in society. People trust lawyers to secure that redress. Throughout our history, lawyers have done an admirable job. With dogged advocacy, imaginative argument and courage, lawyers have done their part for justice in America. By zealously advancing their clients’ causes under law, lawyers have forged a pathway to truth; and truth illuminates the pathway to justice. We salute our legal profession for its commitment to justice. In even the smallest cases, a lawyer’s work reinforces respect for a legal system in which the People put their trust.

We live in rapidly changing times. Thankfully, the law stands as a familiar bulwark against the forces of change: What was larceny in 1800 remains larceny today. Nonetheless, there is a widening gap between legal theory and professional practice. In decades past, lawyers attended law school to learn legal principles that served them well in their professional careers. State governments recognized that the public needs good lawyers. For that reason, they conditioned a license to practice law upon proven legal ability through a Bar Examination. Bar Examinations serve as a gateway mechanism that assures the public that only skilled lawyers will represent them. For generations, this gateway mechanism proved successful: Lawyers showed their skill by answering essays and reciting legal rules, just as their fathers and grandfathers did before them. Upon passage, successful examinees joined the profession; and the State felt satisfied that its lawyers “knew the law.”

We support the Bar Exam tradition. Our legal system depends upon the past. Legal rules derive their strength from past decisions. Lawyers must constantly look to the past for guidance in the present. Their analytical work is backward-looking: They see what happened yesterday, then attempt to match their arguments to analogous situations today. To do this effectively, lawyers must know how to read rules and memorize them. After all, without an ability to rapidly memorize old rules, a lawyer could not effectively match his case to an old one. The Bar Exam is an excellent way to measure a lawyer’s ability to memorize thousands of ornate legal rules. Although many of these rules have no application at all to modern legal practice, lawyers demonstrate their mental devotion by learning them anyway. Furthermore, lawyers must respect tradition and order. By learning immense amounts of inapplicable legal doctrine before test day, they show that they are willing to accede to any demand made by the State. Lawyers must obey the State that sustains the law. The Bar Exam enforces obedience at the same time it tests loyalty and mental discipline. In short, we will never abolish the Bar Exam, no matter how inapplicable it may be. We believe that the Bar Exam trains lawyers to follow instructions and submit to authority. To that extent, it is eminently applicable: It cultivates values that drive the legal profession.

New lawyers must pass the Bar Exam because old lawyers passed the Bar Exam. It would insult past generations if we allowed new generations to escape this highly significant rite of passage. It does not matter that the legal rules at issue in the Bar Exam do not apply in professional life. Lawyers are a brotherhood with distinct traditions, ceremonies and hierarchies. It would undermine our values to abolish a tradition that forges identity from adversity. No one asks the Army to abolish boot camp. So too should no one ask the legal profession to abolish the Bar Exam. The Bar Exam is the ultimate challenge. It is the ultimate ordeal. It demonstrates the applicant’s endurance, dedication and courage under stress. By dutifully learning inscrutable legal formulas that mean absolutely nothing in everyday life, lawyers show their mental toughness. They show their willingness to do anything for the profession. They build their characters by confronting seemingly insuperable difficulty. We insist that our traditions remain intact. Ceremony matters in both law and life. If we abolish the Bar Exam, which ceremony will be next to fall? The Presidential Inauguration? The fraternity hazing? The first communion?

By passing the Bar Exam, lawyers prove their worth. And because the Exam ultimately protects the public by creating obedient, disciplined lawyers, it would be foolish to eradicate it. It must persist.

We recognize that lawyers must accommodate changing times. Critics say that the Bar Exam should adapt to test more “pragmatic” aspects of legal practice. Currently, the Exam only asks timed essay and multiple choice questions on subjects from every legal field. Some States also require the applicant to compose a “practice-oriented” legal scribbling, such as an office memo or contract. Yet nothing in the Bar Exam directly targets the practice experience. We believe that the public deserves lawyers who more effectively understand how to serve clients. To that extent, we support including new sections in the Bar Exam that test an applicant’s ability to handle “real-life” practice situations.

In practice, lawyers must speak on the phone. They must ask questions. They must gather facts to flesh out their legal theories. They must listen to their bosses. They must review millions of documents to search for damaging admissions or inconsistencies. We support new Bar Exam sections that test an applicant’s ability to handle such practice pressures. The National Association of Bar Examiners has established a committee to determine which aspects of everyday practice best typify the lawyer’s everyday existence. After many months of hard work, we have drafted a new Bar Exam section entitled: “Preparation for Professional Life.” Beginning in 2010, applicants to the Bar of each State will be required to pass the new section. It will comprise 25% of the total test score; failure to pass it will result in overall test failure. Below, we discuss the substantive material at issue in the new section.

In Bar Exam tradition, applicants must answer questions without really thinking about the answers. They must be reflexive. Analysis does not matter as much as rote response. If an applicant can answer a criminal law question about “voluntary intoxication” by immediately choosing an answer that involves “a defense to specific intent crimes,” he will have proved his worth. After all, the Bar Exam tests dedication and memorization. And when an applicant has memorized the material, he knows answers without even looking at the questions. It takes time to reach such automatic facility with material. That is dedication. And that is the mark of a good lawyer. The public does not want original thought; it wants reflexive, responsive service.

In the first new section (“The Drinking Ordeal”), the Association continues the tradition of reflexive knowledge under merciless time pressure. To pass the first part of the “Preparation for Professional Life” Exam, applicants must drink five (5) U.S. gallons of beer or wine within 90 minutes under close supervision by other licensed attorneys. By this ordeal, we will test the applicant’s ability to drink copious amounts of alcohol quickly: A true hallmark of professional practice. Lawyers not only know how to analyze statutes and draft wills; they also know how to imbibe more—and more efficiently—than any layman. By requiring applicants to drain five (5) U.S. gallons of beer or wine within strict time constraints, we also test effective time management. Lawyers must drink; but they also must find time to do so. As many practicing lawyers know, this is no easy task. The new section tests a future lawyer’s ability to drink quickly and efficiently while balancing other responsibilities. By requiring supervision by other attorneys, we guarantee that no applicant can get away with drinking less than the prescribed five (5) U.S. gallons. If an applicant fails to drink the prescribed five (5) U.S. gallons within the allotted time, loses consciousness, undresses, dances on a test table, wets himself, vomits or dies, he fails. The Association recommends that the Drinking Ordeal be administered before all other Bar Exam sections, so that applicants will be forced to write essays and answer multiple-choice questions while completely intoxicated. This mirrors professional practice. Lastly, applicants must pay the State Bar Examination Board for the alcohol used in this section. This not only generates extra revenue for the State Bar Examination Board, but it also teaches a valuable practice lesson: In professional life, you have to buy your own beer.

In the second new section, the Association tests applicants’ humility and obedience. In professional life, new lawyers start low—very low. They do not start out trying cases or meeting with high-grade clients. Rather, they join a hierarchy; more specifically, they join at the lowest possible rung. They may know legal rules. They may be enthusiastic and bright. But that does not increase their political status as the weakest of the weak. Additionally, new lawyers must know their place within the hierarchy. To do that, the second new Bar Exam Section (“The Emasculation Ceremony”) requires applicants to submit to verbal abuse at the hands of senior partners. Applicants will have 120 minutes to complete an impossible task, such as finding a case that does not exist or a statute that has been repealed. When they have exhausted every source to find the nonexistent law, they must go before the managing partner, who will loudly call them “idiots, morons, losers, disgraces” and “incompetent assholes” who “don’t deserve a cent of my money.” The partner will also yell at the applicants and explain that their failure is costing the firm money, and that they have committed legal malpractice. The partner will scream various personalized insults at the applicant, such as: “You fat ass punk, I wanted this shit done yesterday. And fuck you, too.” He will also falsely tell the applicant that every other associate in the firm does their job correctly, but the applicant does not. If the applicant becomes defiant, talks back, makes excuses such as “I’m new at this,” argues or cries during his Emasculation Ceremony, he will fail the section. If he agrees with the partner’s assessment, apologizes profusely and says: “It was all my fault; I will do better next time,” he will pass. This section tests the applicant’s ability to calmly absorb criticism and blame from superiors, an essential skill in professional life. In the Association’s view, defiant lawyers have no place in the profession. Rather, competent lawyers know their place and willingly accept treatment commensurate with their low station.

In the final new Bar Exam section, applicants must demonstrate their ability to accomplish tedious, time-intensive tasks. In modern-day professional practice, law firms achieve financial success by billing as many hours as they can on particular matters. The Association decided that it would test applicants’ ability to practice that skill. To do this, the third new Bar Exam section (“The Sanity Test”) requires applicants to sit alone in a small room in front of a computer screen for 12 hours straight without rising from a very uncomfortable, hard-backed office chair. All the while, rotating supervisors will enter the room to ensure that the applicant does not get up. If an applicant gets up, speaks, turns around, falls asleep, cries out or urinates, he will fail the test. This section tests an applicant’s mental determination to methodically attend to the most mind-numbing tasks for long hours. In the Association’s view, modern legal practice involves many such time-consuming, apparently pointless tasks. Yet these tasks are very important to the firm, because they form the basis for robust billing. In the end, lawyers must understand that they are economic entities, no matter how many legal principles they memorize. The Sanity Test drives that message home.

In sum, the Association believes that these new sections will adequately prepare new lawyers for their careers in the legal profession. As lawyers, we respect tradition and we draw our strength from the past. At the same time, we recognize that we live in a changing legal climate that demands more from practitioners than ever before. By requiring new applicants to pass the new Bar Exam sections on Drinking, Emasculation and Sanity, we are confident that future lawyers will be better prepared for professional life. They will not only master timeless legal esoterica such as third-party beneficiary law and the Rule Against Perpetuities; rather, they will also effortlessly learn to balance alcohol with work, absorb punishing workplace abuse and resolutely attend to the most inconsequential, counterintuitive and meaningless tasks for hours on end. By mastering such technical skills, lawyers will better represent clients. And when lawyers better represent clients, justice prevails.

We are fully confident that the new Bar Exam will secure justice for all by producing perpetually drunk, abusive legal technicians who can stare at computer screens longer than any layman—for reasonable fees. And they will know how to recite the Holder in Due Course Rule, too. If that does not secure greater access to competent legal counsel in America, nothing will.

CAN THE LAW PUNISH THE MIND?

During law school, I entered an intellectual cocoon. For more than eight hours every day for three years, I exhaustively learned legal doctrine. At the time, I thought this was an immense accomplishment. I still feel some pride for having persevered through the curriculum, if for no other reason than to provide me with the mental discipline I need to methodically sift through arguments. But unlike before, I no longer put my undivided faith in law to answer questions. While studying law, I had very little exposure to other disciplines. Because I spent so much time reading judges’ words, I slowly began to think that judges knew everything. How wrong I was.

It took many months for me to “temper” my legal knowledge with insights from other fields. I have not forgotten the law. Far from it: I feel that I have situated my legal knowledge within the overall context of Western thought. Law fits into the immense historical discourse of our civilization, whether economic, social, moral or religious. Its doctrines make sense within that discourse, yet in law school we simply learned the legal doctrines. We did not learn about the historical and social context in which they developed. We learned what elements constitute burglary or negligence. We learned how to admit evidence in court. We learned how to form a corporation. But we did not learn how any of these things fit into the overall structure of our Western world.

Legal knowledge has a dangerous capacity: It can narrow the mind. It is easy to understand why this happens. We inhabit a world in which property and money seem to answer all our questions. We seek to make our bodies comfortable by obtaining things. The law prescribes rules and procedures for obtaining property and money, and for adjudicating the inevitable disputes that will arise over them. Governmental force backs these legal rules and procedures. When someone loses a legal case, the government forces him to pay money or surrender his bodily liberty. That is tremendous power. To that extent, it is easy to believe that by studying law, you are learning the only knowledge that “really matters.” After all, if the doctrines you learn can force someone to pay money or go to prison, why learn anything else? This explains why many lawyers have a smug attitude: They know things that can take away your property or bodily liberty. You don’t. So that makes them “better than the average man.”

Yet lawyers do not know everything. In fact, they know remarkably little. True, learning legal doctrine is an immense task, and I certainly do not fault anyone for undertaking it. But I have learned that law is merely one facet in a significantly more complex social construct. As mentioned, law derives its influence from its power to tangibly affect the body and property. After law school, I recognized that these are not the only things that matter in life. They are undoubtedly important (no one wants to be tortured, imprisoned or homeless), but they do not prescribe the limits of human existence. Rather, human existence involves individuals with individual thoughts, impressions and beliefs. Taken together, individuals comprise a society under laws. They depend on law to protect their property and to ensure their bodily safety. Yet the law has virtually nothing to do with their individual beliefs. In other words, the law has no power over the mind, apart from its power to induce people to refrain from actions that will result in punishment or a price.

Martin Luther’s treatise On Governmental Authority (1523) vibrantly illustrates the law’s limits. Luther’s essay arguably lays the groundwork for American notions concerning the separation between church and State, but it goes even further. It also delineates the limits of legal authority. Luther writes: “[T]he soul is not under the authority of Caesar; he can neither teach it nor guide it, neither kill it nor give it life, neither bind it nor loose it, neither judge it nor condemn it, neither hold it fast nor release it.” He later says that we owe the law our “obedience in body and property; command me within the limits of your authority and I will obey. But if you command me to believe or get rid of certain books, I will not obey; for then you are a tyrant and overreach yourself.”

Luther wrote about spiritual freedom. When he says “the soul,” he refers most directly to Christian faith and belief. But he means more than that. “The soul” refers to individual thought, conscience and impression. Luther draws a distinction between “the soul,” which cannot answer to the law, and “body and property,” which must answer to the law. This distinction makes perfect sense in light of my legal studies. Virtually all civil law dwells upon relationships over property, while all criminal law dwells upon bodily actions giving rise to bodily punishments. The law touches body and property, just as Luther explained. What about the soul? Does the law touch the soul, as well?

I have been grappling with this question recently. The more I think about it, the more I feel that the law oversteps its authority when it judges human thought, motivation and belief. After all, why should a person suffer greater punishment in body or property because the law finds fault in his soul? Are not the two spheres entirely distinct from one another? I think they are, but here the law engages in some schizophrenic discourse. In a word, the law does punish people more when it judges their intentions “bad” or “blameworthy” than it does when it judges them “innocent.”

Generally speaking, the criminal law inflicts harsher penalties on people when they act with “bad intent.” The word “intent” litters criminal codes. At the same time, the criminal law does not punish “mere thought.” The criminal law will only punish the body when “mere thought” crosses into physical action. In other words, a physical action may yield precisely the same result, yet the criminal’s mental state determines whether he suffers mild imprisonment or a death sentence. A farmer may leave a tractor running by mistake, allowing it to speed down a hill and kill someone crossing the street. Or he may know someone with a life insurance policy naming him as beneficiary will be crossing the street at a certain time, so he arranges for the tractor to go out of control at exactly the right moment to kill him. In the first case, the defendant may only go to prison for a year. In the second, he could be executed. Why? Because in the second case, the law judges the defendant’s “intention” to be “worse” than in the first.

What does it actually mean to “intend” something? Lawyers throw the word around all the time. Most likely they have an idea what it means, without knowing for sure what the concept involves. In most relevant part, the dictionary tells us that “intent” derives from the Latin verb “intendere,” meaning to “stretch out for” or “aim at.” Webster’s New College Dictionary (4th Ed.). In English, it means “to have in mind as a purpose or plan.” Id. at Meaning 1. In essence, “intend” is purposive; it involves an individual’s mental goal or aim. It describes what the individual “aims at” in a particular action. And it begs an important inquiry: We must closely examine an individual’s mind to determine his precise “aim” at a unique moment in his life. We must ask: “What was this man’s purpose?”

Is this what the law should do? Can anyone other than the individual discover the contents of his own mind? Is not the mind analogous to the “soul” that Luther described in his treatise? If it is, the law has no authority to pass judgment upon it. Nonetheless, the law routinely evaluates individuals’ thoughts, motivations and even beliefs when determining whether they “intended” certain results. These inquiries have nothing to do with body or property, yet they can greatly affect the defendant’s body and property.

In my view, the law drifts into questionable territory when it does this. If anything, the law simply yields to intuitive moral outrage when it more severely punishes an “intentional killing” as opposed to a “careless” one. Human beings recoil when they know someone “deviously” commits a crime. They do not like it. It repels them on a basic, moral level. Morality effectively centers on the question whether an action arouses “disgust” in an “average member of society,” and when someone has a carefully constructed plan to kill another, it arouses more “disgust” in that “average person” than it would if the defendant was simply “careless” in allowing another to die. The law responds to society’s moral baseline. Legislatures incorporate their notions of disgust and outrage into their criminal codes. As a result, the law passes judgment on men’s minds. It punishes what society labels “bad thinking.” As a constitutional matter, people are essentially allowed to pass whatever laws they see fit to advance their interests. But as a philosophical matter, it is debatable whether the law has authority to pass judgment on men’s minds.

Criminal law is not the only legal field in which “intention” plays a substantial role. Even constitutional law makes distinctions based upon individuals’ mental aims. These distinctions have special resonance in cases involving racial discrimination. Over the last century, the United States has attempted—through law—to redress historical discrimination against African-Americans. Although these “legal methods” have proven unwieldy in practice, they at least represent a principled constitutional recognition that African-Americans suffered dreadfully unfair treatment as slaves. And that unfair treatment effectively eviscerated their opportunity to enjoy the benefits of American citizenship.

Congress granted African-Americans the right to sue the government for racial discrimination under the Civil Rights Act of 1871 (now 42 U.S.C. § 1983). To prove their cases, plaintiffs must prove that state actors violated the Equal Protection Clause housed in the Fourteenth Amendment (State) or implied in the Fifth Amendment (Federal). The United States Supreme Court, however, made this undertaking quite difficult by requiring plaintiffs to prove that state actors intended to discriminate against them on racial grounds. In Washington v. Davis, 426 U.S. 229 (1976), for example, the Supreme Court refused to find that the Washington police department discriminated against black police applicants even though they failed an entry test in much larger numbers than their white counterparts. The Court said that the test was “neutral in application,” and the plaintiffs failed to prove that the police force intended to discriminate against black applicants. The mere fact that the test had a “disproportionate impact” on black applicants did not reveal “invidious,” “intentional state action” to deny blacks the right to serve as police officers. Quoting an earlier case, the Court reasoned: “A purpose to discriminate must be present.” The Court allowed the possibility that the “totality of the facts” may permit an inference that state actors “intended” to discriminate, but it refused to make the inference.

What is so significant about this? Again, it shows the law deeply investigating men’s minds. It reflects a judicial tendency to label certain actions “good,” “bad” or “neutral” depending upon the mental state that accompanies them. In the discrimination cases, we see another moral judgment: That it is worse to intentionally discriminate than to incidentally discriminate. It is more morally wrong to have “invidious” mental attitudes toward a race than it is to merely exclude them through “neutral measures.” Interestingly, the Supreme Court revealed a major problem with all legal discourse involving individual intention: It is profoundly difficult to prove. After all, we cannot see the contents of a man’s mind. In law, proof depends on the senses, and there is no direct way to perceive another person’s mind. He can only convey what he intends through language, and even then he may not be telling the truth. Most often, the law must infer intent from external, perceptible facts. It is an imperfect enterprise at best. And there is always more than one way to interpret a physical action.

I venture that proving intent is difficult because intent does not really fit in the pantheon of legal subject matter. As Luther said, the law best applies to body and property. We can see the body and its physical actions. We can see property, or at least physically account for it. But intention is generally invisible. It lives within the mind. It is individual. While intention certainly motivates bodily activity relevant to the law, intention itself does not fit easily in legal discourse. And it baits the law to roam into territory where it traditionally has no place: Individual outlook, belief, thought and personality.

We punish men’s minds because it feels good. If we think we see a no-good backstabber who has bad intentions, we focus our outrage on him, even if we must assume what motivated him. We have precious little power to understand an individual’s unique mental processes. Yet morality compels us to try to understand them as much as we can. In a way, human beings relish feeling disgusted so they can train their anger on the deviant. This is the nature of moral judgment. And it is also the root of all legal preoccupation with intent.