March 9, 2011


Daniel Akst, We Have Met the Enemy: Self-Control in an Age of Excess (New York: The Penguin Press, 2011) ("When it comes to self-control, speed kills, and technology undermines restraint by making everything happen faster. . . ." "But technology has accelerated our lives irrevocably, and while it's nice to be able to fly across the Atlantic in a few hours or get news of the latest findings in microbiology in a few seconds, this acceleration is bad news on the self-mastery front. The collapse of delay between impulse and action, between offer and decision, inevitably privileges impulse over reflection and now over later. By undermining deliberation, speed, weakens the habit of deferring gratification and leaves no chance for second thoughts. . . ." "The all-around acceleration of life has also made us less willing to invest in such time-consuming (but subsequently rewarding) tasks as learning a foreign language or studying engineering or walking when we might drive. Technology and ever more efficient markets discourage this kind of thing by providing easy alternative and rewarding extreme specialization. When cheap, immediate pleasures (like TV) are readily at hand, longer-term satisfactions requiring patience and diligence become comparatively more expensive--and more likely to be shunned." Id. at 47-48. Law students and lawyers might consider how often they rely on the headnotes to a case rather than the more time-consuming undertaking of actually reading the case. Or, for that matter, how easy it is to fool oneself into thinking that one knows something--or don't need to know something--because one knows how to "google" the right term(s) or question(s), rather having a working mastery of the materials in one's head. Being fluent in a foreign language is quite different from being able to put an English-phrase into google-translator. Yet, today, more and more individuals thing they know stuff when, in fact, they know very little and perhaps know nothing at all. It takes time and patience to come to know most things worth knowing. And fewer and fewer people are inclined, or have the self-discipline, to take the time to come to truly know stuff.).

Lisa Birnbach & Chip Kidd, True Prep: It's a Whole New Old World (New York: Knopf, 2010) ("GETTING YOUR DEGREE IN GETTING YOUR DEGREE. A grand prep tradition is sadly coming to an end. You may remember that son of your parents' friends who was a perpetual student. Each time you heard about him, he was still doing 'fieldwork.' Well, now due to the exigencies of living in a recession, no longer is it possible for a young(ish) man or woman to stay in graduate school forever. Universities don't have those little stipends to hand out. Fellowships subsidized through endowment funds have dried up, and now this: Without demonstrating 'satisfactory progress in the degree program as determined by both the program' and the graduate school, Columbia and other great American universities are terminating students after their eighth or ninth year. This means instead of languishing in the stacks and teaching a couple of classes, you must actually complete you dissertation and distribute it. You can petition, you can whine, and perhaps you can swing a tenth year. Cheers." Id. at 26.).

Dietrich Dorner, The Logic of Failure: Why Things Go Wrong and What We Can Do To Make Them Right, translated from the German by Rita and Robert Kimber (New York: Metropolitan Books, 1989, 1996) ("It appears that, very early on, human beings developed a tendency to deal with problems on an ad hoc basis. The task at hand was to gather firewood, to drive a herd of horses into a canyon, or to build a trap for a mammoth. All these were problems of the moment and usually had no significance beyond themselves. The amount of firewood the members of a Stone Age tribe needed was no more a threat to the forest than their hunting activity was a threat to wildlife populations. Although certain animals species seem t have been overhunted and eradicated in prehistoric times, on the whole our prehistoric ancestors did not have to think beyond the situation itself. The need to see a problem embedded in the context of other problems rarely arose. For us, however, this is the rule, not the exception. Do our habits of thought measure up to the demands of thinking in systems? What errors are we prone to when we have to take side effect and long-term repercussions into account?" Id. at 5-6. "Failure does not strike like a bolt from the blue; it develops gradually according to its own logic. As we watch individuals attempt to solve problems, we will see that complicated situations seem to elicit habits of thought that set failure in motion from the beginning. From that point, the continuing complexity of the task and the growing apprehension of failure encourage methods of decision making that make failure even more likely and then inevitable." "We can learn, however, People court failure in predictable ways. Readers of this book will find many examples of confusion, misperception, shortsightedness, and the like; they will also find that the sources of these failings are often quite simple and can be eliminated without adopting a revolutionary new mode of thought. Having identified and understood these tendencies in ourselves, we will be much better problem solvers. We will be more able to start wisely, to make corrections in midcourse, and, most important, to learn from failures we did not avert. We need only apply the ample power of our minds to understanding and then breaking the logic of failure." Id. at 10. "If neither intelligence nor specialized experience nor motivation differed in the two groups, what did? What accounts for the greater success of the practitioners?" "I think the explanation is 'operative intelligence,' the knowledge that individuals have about the use of their intellectual capabilities and skills. In dealing with complex problems we cannot handle in the same way all the different situations we encounter. Sometimes we must perform detailed analyses; at other times it is better simply to size up a situation. Sometimes we need a comprehensive but rough outline of a situation; at other times we may have to give close attention to details Sometimes we need to define our goals very clearly and analyze carefully, before we act, exactly what it is we want to achieve; at other times it is better simply to go to work and muddle through. Sometimes we need to think more 'holistically,' more in pictures, at other times more analytically. Sometimes we need to sit back and see what develops; at other times we have to move very quickly." "There is no universally applicable rule, no magic wand, that we can apply to every situation and to all the structures we find in the real world. Our job is to think of, and then do, the right things at the right times and in the right way. There may be rules for accomplishing this, but the rules are local--they are to a large extent dictated by specific circumstances. And that means in turn that there are a great many rules." "I think that the differences between the expert and the layman can be found here. We all know the basic rules of thumb. 'Look before you leap.' 'Be clear about your goals.' 'Gather as much information as you can before you act.' 'Learn from your mistakes.' 'Don't act in anger.' 'Ask for advice.' Who would not agree to their usefulness The troublesome thing about them is that they don't always apply. These are situations in which it is better to act than to think. Sometimes we should cut short our information gathering, And so on." "Our practitioners not only knew these rules but applied the right rule at the right times." Id. at 192-193. I suspect that one of the failings of education, including legal education, is that a given discipline teaches its students to think in certain ways (e.g., to think like a lawyer), to approach problems in certain limited ways, etc., such that many students and practitioners lack the ability to pick the right rule for the particular circumstances. That is, notwithstanding how intelligent they are, and notwithstanding that they are aware of all the rules of thumb, they are simply unable to pick and apply 'the right rules at the right times.' The result? Failure or, at least, not the best solution.).

John Kenneth Galbraith, The Affluent Society and Other Writings 1952-1967: American Capitalism; The Great Crash, 1929; The Affluent Society; The New Industrial State, edited by James K. Galbraith (New York: Library of America, 2010) (From American Capitalism: "Measured by its continuing imprint on actions and attitudes, the depression clearly stands with the Civil War as one of the two most important events in American history since the revolution. For the great majority of Americans World War II, by contrast, was an almost casual and pleasant experience. Several million found jobs who had doubted whether they might ever find jobs again. Hundreds of thousands of others escaped the routines of middle-class employments, their boredom with which they had concealed even from themselves. Men and women who had never supposed themselves discharging important tasks with a competence of which they alone had been previously aware. Only a minority experienced the nagging homesickness, the fear, the physical suffering and the mutilation and death which is the less pleasant destiny of the fighting soldier in wartime. Because they were a minority the war left no lasting imprint. The depression which afflicted a great majority of the people did. Id. at 60-61. It will not be September 11, 2001, or the American War in Iraq, or the American War in Afghanistan, which will have the more lasting impression on Americans. It will be, instead, the economic crisis and decline experienced in the first decades of the twenty-first century. "The most distinctive characteristic of the businessman--the thing that most sharply distinguishes him from the lawyer, college professor or, generally speaking, the civil servant--is his capacity for decision. The effective businessman is invariably able to make up his own mind, often on limited evidence, without uncertainty a to his own wisdom. It is a part of this talent not to reflect on past mistakes or even to concede that a mistake has been made." Id. at 146. Of course, in the fourth-quarter of the twentieth-century, law practice became a business and lawyers became essentially businesspeople. In that same period, but especially in the first decade of the next century, more and more universities and colleges increasingly abandoned a education model and adopted a 'business' model (e.g., gutting unprofitable programs, such as foreign languages). As a consequences, even college professors are becoming essentially businesspeople. And, in becoming taking on the characteristics and values of businesspeople, lawyers and college professors are increasing demonstrating a "talent not to reflect on past mistakes or even concede that a mistake has been made." From The Great Crash, 1929: ""But now, as throughout history, financial capacity and political perspicacity are inversely correlated. Long-run salvation by men of business has never been highly regarded if it means disturbance of orderly life and convenience in the present. So inaction will be advocated in the present even though it means deep trouble in the future. Here, at least equally with communism, lies the threat to capitalism. It is what causes men who know that things are going quite wrong to say that things are fundamentally sound." Id. at 343. From The Affluent Society: "In a society where virtuosity in persuasion must keep pace with virtuosity in production, one is tempted to wonder whether the first can ever keep ahead of the second. For while production does not clearly contain within itself the seeds of its own disintegration, persuasion may. On some not distant day, the voice of each individual seller may well be lost in the collective roar of all together. Like injunctions to virtue and warnings of socialism, advertising will beat helplessly on ears that have been conditioned by previous assault to utter immunity. Diminishing returns will have operated to the point where the marginal effect of outlays of every kind of commercial persuasion will have brought the average effect to zero It will be worth no one's while to speak, for since all speak, none can hear. Silence, interrupted perhaps by brief, demoniacal outbursts of salesmanship, will ensue." Id. at 492.).