Stanley Fish on “How to Write a Sentence.”

Free markets and the end of education as we know it

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.

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.