Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies. He starts with John Philip Sousa, the conductor.

In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

It’s a long and hilarious history. Did you know that in the 1980s home taping was “killing” the music industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill the film industry?

The whole thing is worth reading and worth remembering next time you read a screed by Bono or Scott Turow.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

I’ve mentioned it before — I have watched through the course of my professional career as free market ideology has come to dominate legal thought. But it isn’t merely that many legal thinkers and politicians believe that so-called “economic efficiency” is the overriding purpose of law. Capitalist absolutism infects my teaching too because I am now teaching students who have grown up during a time in which they have learned never even to question the belief that markets are better than government at providing anything and everything.

As a result, fewer and fewer students arrive at law school with the kind of education I think is the best preparation. They come as business majors, poli sci majors, accounting majors, finance majors . . . Some come as engineers, and they tend to be the best educated, albeit a bit narrowly, but invariably they believe backgrounds in engineering put them behind the others.

Why this change, this narrowing in outlook? It’s the attitude Stanley Fish writes about today — the unquestioned acceptance that maximizing “student choice” provides the best means of improving education. It’s the same market thinking in another place — students are consumers, and if we leave to them the choice of what to pursue, those educational institutions that are chosen by the most students will be the most rewarded. And, of course, what students choose must be the most valued and therefore the best. Fish explains this thinking while cogently explaining its most fundamental defect — students don’t have the judgment to make good choices. Education is precisely about teaching them such judgment:

Judgment is what education is supposed to produce; if students possessed it at the get-go, there would be nothing for courses and programs to do.” But that objection would be entirely beside the point in the context of the assumption . . . that what students want to get from participating in higher education is money.

But now, under Britain’s new approach to higher education, “government support of higher education in the form of block grants to universities (which are free to allocate funds as they see fit) would be replaced by monies given directly to matriculating students, who would then vote with their pocketbooks by choosing which courses to ‘invest’ in.”

The problem, of course, is that the only measure of value such a mindset accepts is money:

A course’s “key selling point” will be “that it provides improved employability” and students will be asked to pay “higher charges” for a course only “if there is a proven path to higher earnings.”

Not only is this attitude remarkably narrow about what constitutes value. It also assumes that the only people interested in the results of our educational system are people who go through it. There’s no social interest in education apart from the sum total of the financial interests of those student-consumers:

The logic is the logic of privatization. Higher education is no longer conceived of as a public good — as a good the effects of which permeate society — but is rather a private benefit, and as such it should be supported by those who enjoy the benefit. “It is reasonable to ask those who gain private benefits from higher education to help fund it rather than rely . . . on public funds collected through taxation from people who have not participated in higher education themselves.” No one who has not been to a university has any stake in the health or survival of the system.

I couldn’t agree with Fish more on the pathetic narrow-mindedness of this “logic of privatization”:

There is no recognition . . . at all of the value of learning; quality is a measure nowhere referenced; civilization, as far as one can see, will have to take care of itself.

But at second thought this paean of self-praise is merited once we remember that that the report’s relentless monetization of everything in sight has redefined its every word: value now means return on the dollar; quality of life now means the number of cars or houses you can buy; a civilized society is a society where the material goods a society offers can be enjoyed by more people.

I was a double major in Latin and Ancient Greek. Classics departments are disappearing, and the “privatization” of education will only accelerate their disappearance. I did not pursue a Ph.D. merely because my job prospects after the 6 or so years I would have loved getting that degree were virtually non-existent. But I wouldn’t trade my education for anything. It made me the successful lawyer I am. I find myself returning again and again to what I learned and to further study in my current professional life about matters that I first discovered in my undergraduate years. And I genuinely think that my education taught me that value is something money can barely begin to measure in any meaningful way.

John Lanchester’s I.O.U. is a book I would encourage all my students to read. One more piece of conventional wisdom too many of them accept without question is that what happened and continues to happen in the financial markets (matters I learned of first-hand in the course of my near 12 years in practice) are too difficult for even the brightest people to understand. That is a piece of mystification that people who profited from the financial markets (at the profound expense of the rest of us) would prefer my students not look behind. Lanchester does a terrific job of explicating the causes of the 2008 financial crisis and the persistence of those causes today.

But what’s disturbing about what Lanchester writes in the context of this post is his realization that the financial crisis resulted from precisely what I am writing of — a generation during which we have come to really believe that communism fell and capitalism triumphed because of the unalloyed power of free markets. It’s not at all that Lanchester (or I) are advocates of communism. He is explicit in arguing that the liberal democracies of the 20th Century’s 2d half were the best societies that ever existed. But the pressure communism put on those societies to balance market forces with programs that promoted social justice were an indispensable part of those societies’ enormous success. With the fall of communism and the removal of that pressure, free markets have found an ideological open field in which those programs promoting social justice are being dismantled. As Dwight Garner explains in his review of I.O.U.:

It’s a story that begins, as these stories are wont to do, with the fall of the Berlin Wall. The capitalist West won its “ideological beauty contest” with the communist East, Mr. Lanchester writes, which was good news except for this: Suddenly “there was no global antagonist to point at and jeer at the rise in the number and size of the fat cats; there was no embarrassment about allowing the rich to get so much richer so very quickly.”

Once upon a time in America and Britain, he observes, “the jet engine of capitalism was harnessed to the ox cart of social justice, to much bleating from the advocates of pure capitalism, but with the effect that the Western liberal democracies became the most admired societies that the world had ever seen.”

Then the Wall crumbled, and “the jet engine was unhooked from the ox cart and allowed to roar off at its own speed. The result was an unprecedented boom, which had two big things wrong with it: It wasn’t fair, and it wasn’t sustainable.”

And it leads to poorly educated students and unhappy people.

CAGW, however, believes this parody is a copyright violation and has sent YouTube a takedown notice. Campus Progress, which produced the video, disagrees:

Citizens Against Government Waste must have spent all their money on the video, and didn’t have any left over for legal advice. Our video is a parody, not a copyright violation. And we aren’t raising money off it. We’re only raising awareness and highlighting the concern of young people that corporate interests are drowning out their voices this fall.

Last week, on the 40th anniversary of the Kent State shootings, I wrote about both their impact on me then, and the frightening disconnect I see between current political rhetoric that compares President Obama’s policies to “fascism” and the very different reality of 40 years ago, when National Guard troops really did engage in activity that might genuinely be equated to fascism. I guess I shouldn’t have been surprised that I was attacked for thinking that calling President Obama a “fascist” seems silly to someone who remembers students being shot dead for protesting the invasion of Cambodia in 1970.

But I genuinely was surprised when in the comments to the post criticizing me another blogger stated that in discussing the Kent State shootings I “neglected” to mention that “the National Guard were shot at first” and that the host of the site in response to that comment wrote: ” Thank you very much for the historical accuracy you add to this issue. You are correct. Mr. Friedman has selective memory.”

The problem, of course, is that this purported “historical accuracy” is pure fantasy. There never has been any evidence that the students at Kent State were armed, much less that they shot at the National Guard. As the Cleveland Plain Dealer reports today, [t]wo trials and a presidential commission’s investigation could not determine what initiated the gunfire, although the presidential commission concluded that ‘the indiscriminate firing of rifles into a crowd of students and the deaths that followed were unnecessary, unwarranted and inexcusable.’” Why is this news now? Because the Plain Dealer reported the following 2 days ago:

The Ohio National Guardsmen who fired on students and antiwar protesters at Kent State University on May 4, 1970 were given an order to prepare to shoot, according to a new analysis of a 40-year-old audio tape of the event.

“Guard!” says a male voice on the recording, which two forensic audio experts enhanced and evaluated at the request of The Plain Dealer. Several seconds pass. Then, “All right, prepare to fire!”

“Get down!” someone shouts urgently, presumably in the crowd. Finally, “Guard! . . . ” followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence lasts 17 seconds.

The previously undetected command could begin to explain the central mystery of the Kent State tragedy – why 28 Guardsmen pivoted in unison atop Blanket Hill, raised their rifles and pistols and fired 67 times, killing four students and wounding nine others in an act that galvanized sentiment against the Vietnam War.

People should know that before they begin spouting off about the policies of an American President they perhaps ought to know a little about history. And they certainly should know better than simply to make up facts that fit their world view.

ADDENDUM:

KENT STATE (trailer) from Mark Mori on Vimeo.