Author: waltereffross (page 4 of 6)

     [The previous essays in this series are here, here, and here.]

     Generations of undergraduates, and of alumni, have consulted the concise classic on composition, The Elements of Style, by William Strunk and E.B. White.

     Law students and lawyers may well have encountered handbooks for drafting comments, commentaries, complaints, and contracts; and they will certainly have learned at least some of the Bluebook’s rules for legal citations.  

     However, few outside of chambers might be aware of the illuminating Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013), which can be downloaded at no charge from the Federal Judicial Center.

     The first edition, published in 1991, was developed by a board of editors that included nine federal judges, a law professor, and the Wall Street Journal’s Supreme Court reporter (Stephen Wermiel, now one of my faculty colleagues at American University Washington College of Law).

     Among the eighteen prominent judges “who participated in telephone interviews to discuss their experience with and views on judicial writing” were: Ruggero J. Aldisert and John J. Gibbons (each of whom had served as Chief Judge of the U.S. Court of Appeals for the Third Circuit; Aldisert was also the author of Opinion Writing, whose first edition, published in 1990, was distributed almost exclusively to newly-appointed federal judges); Stephen Breyer (then sitting on the Court of Appeals for the First Circuit); Ruth Bader Ginsburg (Court of Appeals for the District of Columbia Circuit); Richard A. Posner (Court of Appeals for the Seventh Circuit), and Jack B. Weinstein (of the U.S. District Court for the Eastern District of New York, which he had formerly served as Chief Judge).

     Although the introduction suggests that “newly appointed judges and their law clerks will be the principal users of this manual,” its principles and discussions (in 32 pages, plus appendices) should be useful to legal writers generally, and to anyone interested in the process of constructing, or deconstructing, a court’s opinion.

     Moreover, the Manual’s terseness and tone, like those of The Elements of Style (to which it refers), can be appreciated as demonstrations of the authors’ own recommendations.

     Ten takeways:

     ● First, the judge must keep her audience in mind.

     “[I]f a case involves an arcane area of law familiar primarily to specialists—tax, labor, or antitrust law, for example—a thorough discussion of the facts and legal background will needed, and the judge should avoid the use of technical language and should define any technical terms that must be used.”

     Yet, “When an opinion addresses an issue of general public interest or is likely to attract media attention, it should be written in a manner that will ensure it cannot be misunderstood” by the media and the general public.

     Deliberately didactic decisions might include A & M Records, Inc. v. Napster, Inc., 114 F.Supp.2d 896 (N.D. Cal. 2000), which addressed, as its first sentence noted, “the boundary between sharing and theft, personal use and the unauthorized worldwide distribution of copyrighted music and sound recordings”; and which enjoined Napster from disseminating, “without express permission of the rights owner,” such recordings owned by the plaintiffs, eighteen record companies.

     Another example—which, like Napster, was part of extended litigation—is In re Walt Disney Co. Derivative Litigation, 907 A.2d 693 (Del. Ch. 2005), aff’d, 906 A.2d 27 (Del. 2006), in which the court held that Disney’s directors had not breached their fiduciary duties to the company.  The directors had been targeted by shareholders for approving an employment contract that enabled the departing president to receive an allegedly excessive severance package after a relatively brief term in office; and for not terminating that executive for cause, which would have contractually deprived him of his right to severance.  

     The introduction to Disney acknowleged: “I have tried to outline carefully the relevant facts and law, in a detailed manner and with abundant citations to the voluminous record. I do this, in part, because of the possibility that the Opinion may serve as guidance for future officers and directors—not only of The Walt Disney Company, but of other Delaware corporations. And, in part, it is an effort to ensure meaningful appellate review.”

     A related point on judicial clarity, from an article by Judge Aldisert and two of his clerks:

     “When judges weigh the case for and against given rulings, they characteristically refer to certain criteria as ‘justice,’ ‘common sense,’ ‘public policy,’ ‘convenience,’ or ‘expediency.’  Decisions should never be justified by such buzzwords without the support of reasoned elaboration. . . . Set forth your rationale and explain your value-based choice, dwelling not in the murky waters of subjectively defined buzzwords.” 

Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 1, 37 (2009).

     ● Second, indicating the court’s holding at the beginning of the decision not only will “save time for readers, particularly researchers” but will encourage the drafter to “state it precisely and succinctly.”

     Law students mastering the IRAC (Issue-Rule-Analysis/Application-Conclusion) format of answering exam questions might be interested in the five-factor “framework” enunciated, and then elaborated, by the Manual for a “full-dress opinion”: “an introductory statement of the nature, procedural posture, and result of the case; a statement of the issues to be decided; a statement of the material facts; a discussion of the governing legal principles and resolution of the issues; and the disposition and necessary instructions.”

     ● Third, non-material facts, stylish writing, and humor should be included—if at all—with judicial (and judicious) restraint.  “There is the obvious danger. . . that the reader may think the decision is based on these facts”; “colorful writing. . . may be seen by the parties as trivializing the case”; and, joking “may strike the litigants. . . as a sign of judicial arrogance and lack of sensitivity.”

     ● Fourth, judges should also abjure “pompous writing. . . such as arcane or florid language, use of the imperial ‘we’ (by a single district judge), or expressions of irrelevant erudition.” 

     The Manual recommends “plain English”: “There is a place for the elegant word, but it should not be necessary for the reader to have a dictionary at hand while reading an opinion.”

     ● Fifth, a dissenting opinion should adopt (as in the samples in an appendix) “a temperate, reasoned tone in expressing sincere disagreement with the majority,” “although some judges believe that expressing moral outrage and restrained indignation may sometimes be appropriate.”

     Similarly, an appellate opinion, even if reversing a lower court’s decision, “need not attack a trial court’s wisdom or judgment, or even its attitude,” and “should avoid unnecessary criticism of the trial court, such as for failing to consider authority or resting on improper motives.”

     ● Sixth, judges are advised to cite “law review articles, treatises and texts, and non-legal sources. . . sparingly and only to serve a purpose,” such as to “shed light on relevant historical or policy considerations.” 

     ● Seventh, “Judges should quote [only] briefly, and only when the language makes an important point.”

     ● Eighth, “If [material] is not important enough to go into the text, the judge must have some justification for including it in the opinion at all.” 

     Footnotes might be used to “acknowledge and briefly dispose of tangential issues,” or “to convey information that supports the language of the opinion but is not necessary to understand it, such as the text of a statute or material from the record.”  However, they “should not be used simply as a repository for information that the judge wants to keep but does not know what to do with.”

     ● Ninth, (as in another appendix’s examples) a decision remanding a case to a lower court “’for further proceedings consistent with the opinion’” should “spell out clearly what the lower courts or agencies are expected to do, without trespassing on what remains entrusted to their discretion.”

    ● Tenth, it might be helpful, if time permits, to set aside a near-final draft “for even a few days[, which] may help the judge review things more objectively, gain new insights, and think of new ideas.” 

     (For a 16-point “Checklist for Critiquing [or, Editing/Proofreading] an Opinion,” see Nancy A. Wanderer, Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L. Rev. 47, 70 (2002).)

     A number of these recommendations are reflected in the brief profiles written by Justice Daniel J. O’Hern of the members of the Supreme Court of New Jersey under Chief Justice Robert N. Wilentz, and (posthumously) published as What Makes a Court Supreme: The Wilentz Court from Within (2020).  (My review of the book appears on its Amazon page.)       

     Justice O’Hern modestly summed up his own (1981-2000) tenure on the Court: “I loved to unravel complex cases and to try to state their resolution in simple terms that would cover the essential elements of the disposition.”

     The Justice noted that among his colleagues he had acquired the nickname, “the Monsignor,” as “a reference to my reputation for excising from Supreme Court opinions unnecessary graphic details in sex cases. I did not do so out of religious conviction but out of good taste.”

    That chapter includes an excerpt from a law review article written on the occasion of the Justice’s retirement: referring to a longtime establishment in Red Bank, Justice Robert Clifford observed that “It was Dan O’Hern who invented the ‘Sal’s Tavern’ test, now part of the permanent lore of the Court: a judicial opinion that does not make sense to the gang down at Sal’s Tavern is unacceptable. Do it over.”

     In that tribute, Justice Clifford added, “Those who have been privileged to know and work with him will always recall Dan O’Hern’s warmth, dedication to the highest principles, and towering rectitude.”

     As a 1987-1988 clerk for Justice O’Hern, who was a true gentleman, mentor, and wordsmith, I wholeheartedly agree. 

     In his portrait of Justice Clifford, who was perhaps both the most committed and the most passionate grammarian on the Wilentz Court, Justice O’Hern recalled that:

     “I had written an opinion containing only two footnotes. One particularly offended him. This gave him the opportunity for the retort, in In re Opinion 662 [133 N.J. 22, 32 (1993)], which left us all fearful of even a single footnote:
     “’In fact, I deplore resort to footnotes not only in this case in particular but in judicial opinions generally. They distract. They cause the reader to drop the eyes; to absorb what is usually a monumental piece of irrelevancy or pseudo-scholarship but is sometimes – as here – a significant pronouncement that rightly belongs in the text; and then to return, without skipping a beat, to the point of departure on the upper part of the page. The whole irritating process points up the soundness of John Barrymore’s observation that “[reading footnotes is] like having to run downstairs to answer the doorbell during the first night of the honeymoon,” quoted in Norrie Epstein, The Friendly Shakespeare 75 (1992).’”  

     [The previous essays in this series are here and here.]

     In the 1987 movie Wall Street, the corporate raider Gordon Gekko (a performance for which Michael Douglas won an Academy Award) excoriates the management of the fictional Teldar Paper as bloated, self-serving, and incompetent.

    Gekko’s most memorable maxim, delivered from the aisle of a hotel ballroom during the company’s annual meeting of shareholders, was apparently inspired by a 1986 commencement speech at the University of California, Berkeley’s business school: Ivan Boesky (who, late the following year, would be sentenced to prison for insider trading) proclaimed, “I think greed is healthy.  You can be greedy and still feel good about yourself.”

     However, most people misquote Gekko’s iconic remark (from a speech that could be called Icahnic, since it elsewhere echoes several statements, reported in Connie Bruck’s The Predators’ Ball (1988), of raider Carl Icahn—who, like Gekko, had attempted to take over a paper company).

     Gordon Gekko did not say, “Greed is good.”

     He said, “Greed, for lack of a better word, is good.”

     As has been suggested, it might not have been noteworthy, in 1987, had Gekko instead said, “Profit-maximizing is good,” before elaborating that it “clarifies, cuts though, and captures the essence of the evolutionary spirit, and . . . will not only save Teldar Paper but that other malfunctioning corporation called the USA.”

     But in 2023, pure profit-maximizing, and its role in the culture and future of the nation, are themselves controversial.

     The various “Corporate Social Responsibility” (CSR) initiatives of Gekko’s day prefigured the current ESG movement, which seeks to enhance a company’s Environmental, Social, and Governance practices, including: sustainability; fair treatment of the company’s employees, and those of its suppliers; diversity, equity, and inclusion (DEI), on the worker, management, and boardroom levels; product safety; consumer protection and privacy; internal and public statements on issues of social concern; increased transparency and disclosure; evaluation of the potential applications, and customers, of the (especially, high-tech) company’s products and services; and, executive compensation (compared to the average employee’s compensation, and/or correlated with the company’s progress towards its ESG goals).

     Like its predecessor, ESG propels boards to consider the interests of such non-stockholder “stakeholders” as customers, employees, governments, and suppliers, as well as the communities in which the company’s facilities are located.

    Debates over whether, and how much, to accommodate such concerns date back at least ninety years (when Columbia’s Adolf Berle and Harvard’s E. Merrick Dodd published opposing law review articles on the topic).

    Yet Gekko, and even some of today’s real-life lawyers, might be surprised to learn that, as the late Cornell law professor Lynn Stout asserts in her brief, non-technical, and engaging overview, The Shareholder Value Myth (2012), “United States corporate law does not, and never has, required directors of public corporations to maximize either share price or shareholder wealth.”

    In “debunking” the “shareholder primacy” perspective for “executives, investors, and informed laypersons,” Stout reexamines the “core assumptions” that shareholders own corporations; that they are residual claimants (that is, entitled to receive any funds remaining after the company’s debts have been paid); and that they are the principals whom corporate directors and officers serve as agents.

     She also minimizes the import of the Michigan Supreme Court’s 1919 declaration, in Dodge v. Ford Motor Co. (a decision featured in a number of today’s corporate law casebooks), that “a business corporation is organized and carried on primarily for the profit of the stockholders.  The powers of the directors are to be employed for that end.”

     Stout argues that this statement: was extraneous, and non-binding, dictum; was qualified by the word, “primarily”; was contained in a decision that “was not really a case about a public[ly-traded] corporation at all”; and was from a court in Michigan, which “has become something of a backwoods of corporate jurisprudence.”  She adds that, as of 2012, the Dodge decision had not been followed, and had rarely even been cited, by Delaware’s state courts, which are by far the most influential in the corporate context.

     (Delaware is not among the more than thirty states that, beginning in 1983 with Philadelphia, adopted “other constituency” statutes permitting, but generally not requiring, directors to consider the interests of non-shareholders.  Moreover, in 2010, Delaware’s Court of Chancery rejected what it characterized as “a corporate policy that specifically, clearly, and admittedly seeks not to maximize the economic value of a for-profit Delaware corporation for the benefit of its stockholders.”) 

     Stout also shatters the shibboleth of “maximizing shareholder value,” exposing its inaccurate implication that shareholders are a homogeneous group.

     She argues that, unlike those investors inclined to hold shares for long periods, short-term traders like “activist hedge funds” are most likely to attempt aggressively to influence a company’s management, because these funds scrutinize (even if only for relatively brief periods) the operations of a limited number of companies. 

     By contrast, “Most [mutual and other] fund managers rationally conclude it is not in their clients’ interests for them to exercise an active governance role in the dozens or even hundreds of firms whose stocks the fund manager keeps in his portfolio.  If there’s a problem, the fund manager will do the ‘Wall Street Walk’ and sell the shares quickly and quietly, before anyone else catches on.”

    Yet, directors and officers forced to focus on short-term stock prices might (for instance, by short-changing research and development initiatives) short-sightedly deprive their companies of long-lasting benefits.

     Stout summarizes her own holistic “team production” approach to corporate governance, (enunciated and expanded on in a series of law review articles co-written with Vanderbilt law professor Margaret Blair), which portrays directors as “’mediating hierarchs’ who can balance the. . . demands of shareholders against the interests of other stakeholders. . .  that make essential contributions to firms.”

     She observes that although a (for-profit) company could explicitly embrace the shareholder primacy approach by installing a provision to that effect in its own corporate charter (also known as its articles of incorporation, or its certificate of incorporation), “virtually no public[ly-traded] corporation does so.”

    A hybrid approach (which might be abbreviated as, E$G) is carefully chronicled in Better Business: How the B Corp Movement is Remaking Capitalism (2020), by Christopher Marquis (then a professor at Cornell’s business school, and now a member of the faculty of the University of Cambridge’s business school). 

     Marquis examines the emergence of (mostly, privately-held) “social enterprises,” companies specifically dedicated to—and designated as—seeking to achieve not only (some) profits but also social goals.

     He notes that, as of early 2020, the corporate statutes of thirty-five states (including Delaware) recognized for this purpose a special category of “benefit corporations,” and that “more than ten thousand” domestic corporations, including outdoor clothing and gear marketer Patagonia, had formally chosen that form of operation. 

     (In 2008-2009, the leading promoters of such legislation included Arnold Schwarzenegger, then governor of California; U.S. Rep. Jamie Raskin, then a state senator in Maryland, the first state to enact such legislation (in 2013); and principal drafter Bill Clark, a lawyer at Drinker Biddle & Reath.)

     Often quoting from his personal interviews of key participants, Marquis reviews the creation (in 2006) and operations of the private organization B Lab, which invites companies to apply for its own third-party “B Corp” certification of their dual commitment to social goals and profits.  He also profiles a variety of B Corps.

     The home page of B Lab recently stated that there are 6,927 such companies, in a total of 91 countries.  Prominent B Corps include Allbirds, King Arthur Baking Company, Klean Kanteen, Stonyfield, and Tom’s of Maine.

     “The . . . founders [of B Lab] wanted to ensure that the certification process they created [featuring its initial, and then triennial, B Impact Assessment] was standardized across companies of different sizes and comparable across industries, allowing companies to assess the true social and environmental impacts of their operations and work to improve them, and giving consumers and investors the means to hold them accountable.”

     Notably, a company that has met the requirements (if available) of its state of incorporation to be recognized as a benefit corporation might also choose to pursue private certification as a B Corp; but, B Lab requires “B Corps that are incorporated in [such] states. . . to become benefit corporations after certification.”

     Marquis addresses the inception and growth of B Corp certification in other countries; efforts by B Lab to foster a “B Corp community” among its certified companies; the treatment of B Corps by “impact investors” interested in supporting social change, but also in some financial return; traditional corporations’ B Corp subsidiaries (such as Unilever’s Seventh Generation and Ben & Jerry’s, and Danone’s Happy Family); and the non-renewal of certification by some high-profile companies like Etsy (which became publicly-traded), actor Jessica Alba’s The Honest Company (which cited “a number of legal and compliance issues for our company that could lead to risk and uncertainty”), and Warby Parker.  He also considers whether consumers are aware of, and influenced by, the certification of a given company as a B Corp. 

     Thirty-six years ago, profit-maximizer Gordon Gekko publicly warned Teldar’s management, “In my book, you either do it right, or you get eliminated.”

      With the rise of social enterprises and the ESG movement, it remains to be seen whether, and to what degree, a new rule for corporate directors and officers will be, “You either do right, or you get eliminated.”

     [The second of a series, the first of which is here.]

     Steven Levy’s ground-breaking chronicle, Hackers: Heroes of the Computer Revolution (1984), published four decades ago (before his books on Google, Facebook, the Macintosh, the iPod, artificial life, and the popularization of encryption), offers enduring lessons to pre-law and law students, and to lawyers. 

     Levy, currently Wired magazine’s Editor at Large, focuses not on the details of programming but instead on the people and the perspectives propelling (in the words of his 2010 afterword) “an often heated battle between geeky idealism and cold-hearted commerce.”

     He traces the evolution of hacking’s community and culture from its inception, at MIT in the late 1950s (where, in some respects, as concert promoter Bill Graham famously said of the Grateful Dead, “They’re not the best at what they do.  They’re the only ones that do what they do.”); through Palo Alto in the 1970s; and into the mass marketing of video games—especially by the Yosemite-adjacent On-Line Systems (later renamed Sierra On-Line)—in the early 1980s. 

    From the relatively restricted realms of Cambridge’s computer facilities, Berkeley’s Community Memory project, and Menlo Park (California)’s Homebrew Computer Club emerged issues, tensions, and dynamics of even more critical consequence in today’s pervasively-networked, always-online society and economy, where “personal computers” can be pocket-sized.

    At MIT, “hacker” appreciatively referred to a participant in “a project undertaken or a product built not solely to fulfill some constructive goal, but with some wild pleasure taken in mere involvement. . . .  [T]o qualify as a hack, the feat must be imbued with innovation, style, and technical virtuosity.”  (By 2010, a veteran hacker had to acknowledge to Levy that popular culture “stole our word, . . . and it’s irretrievably gone.”)

     With warmth, well-crafted portrayals, and a wealth of wonderful quotations, the book summarizes, analyzes, and illustrates what Levy identifies as the elements of “The Hacker Ethic.”  

     In his analysis, hackers champion, beyond simple elegance in the design and implementation of software and hardware:

     ● “the Hands-On Imperative” (complete access to any facilities, tools, hardware, and software that could be educational; but not for purposes of illegal profits);

     ● the free sharing of information, including program code, for review and editing by any interested members of the community;

     ● the decentralization of authority, and an antipathy towards bureaucracy;

     ● the assessment of others by their technical skills, rather than by “bogus criteria such as degrees, age, race, or position” (although virtually all of the featured hackers are young—sometimes, very young—white males).

     Indeed, “some hackers. . . would never graduate, and be too busy hacking to really regret the loss”; on the other hand, the loss would be Hewlett-Packard’s, when it denied employee Steve Wozniak a position as the head of a new division for small computers, because he had not officially graduated from Berkeley.

     ● the belief that computers “can change your life for the better,” in part by enabling users to create “art and beauty,” in the design and/or by the application of their programs;

     ● the attitude that “no system or program is ever completed,” often coupled with “the illusion that total control [is] just a few features away” (the “Creeping Feature Creature”); and

     ● the understanding that many hardware and software problems can be resolved by a unique, optimal, graceful, and universally-appealing solution, known as “The Right Thing.” 

     At its extreme, the Hacker Ethic led one of MIT’s most talented and dedicated hackers to threaten to destroy an MIT computer if it were to be operated, as had been announced, on a “time-sharing” basis. (Ultimately, time-sharing was restricted to daytime hours, enabling the hackers to retain, at night, their exclusive control of the system.)

     The book describes various specialties of hackers, including: practical coding of software “Tools to Make Tools,” or, “pragmatic systems building” (“[T]here was no higher calling in hackerism than quality systems hacking”); “math hacking,” or the surprising and sometimes-surreal enhancement of programs by a master of “the magical connections between things in the vast mandala of numerical relationships on which hacking was ultimately based”; telephone hacking (unauthorized and sometimes-illegal exploration of the phone system); and, hardware (and, particularly, lock) hacking.

     Though not referred to as such, it also describes a form of managerial or administrative hacking, or what might be called hacker-harnessing.  When inspired and (self-)motivated, a group could create, over a weekend, “a program that would have taken the computer industry weeks, maybe even months to pull off”; however, both individually and collectively, the hackers were notoriously resistant to any form of external direction.  (Lawyers might especially appreciate Levy’s discussion, later in the book, of the challenges of governing meetings of the Homebrew Computer Club.)

    Even an administrator who might himself be considered a hacker “failed ignominiously” at “assigning the hackers specific parts of [a] problem” to solve.  “He ultimately accepted the fact that the best way to get hackers to do things was to suggest them, and hope that the hackers would be interested enough.”  (Levy notes that “someone like [artificial intelligence pioneer] Marvin Minsky might happen along and say, ‘Here is a robot arm.  I am leaving this robot arm by the machine.’  Immediately, nothing in the world is as essential [to a hacker] as making the proper interface between the machine and the robot arm. . . .”)

     This accommodation involved two opposed meanings of “oversight” when it came to the hackers’ habitual violations of others’ privacy and property.  Another administrator explained to Levy that instead of creating physical or digital barriers, which would only trigger the hackers’ compulsion to defeat technological challenges, “the trick was to sort of have an unspoken agreement. . . . And if someone violated those limits, the violation would be tolerated as long as no one knew about it.  Therefore, if you gained something by crawling over the wall to get into my office, you had to never say anything about it.”

     Such approaches might succeed within the close confines of MIT’s computer centers, but they were increasingly threatened as innovations in software, and in “personal computers” (a longtime dream of hackers) spawned worldwide commercialization of their production. 

     The evolution and environments of the real world, unlike those of the hackers’ beloved computer simulation of LIFE (introduced in 1970 by Martin Gardner’s “Mathematical Games” column in Scientific American), could not be carefully contained and controlled.  Nor could the hackers remain, despite their intellects and intensity, insulated and isolated. 

     In fact, the chapter devoted to their near-obsession with LIFE details as well the increasing social concerns that in the late 1960s led MIT to install special security measures in its computer facilities, which had become targets of antiwar demonstrators.  Not all of the hackers were opposed to these protections. 

     The activists were not misinformed: “[A]ll of the lab’s activities. . . had been funded by the Department of Defense,” whose Advanced Research Project Agency’s (ARPA) “money was the lifeblood of the hacking way of life.”  (Prefiguring elements of today’s employee and shareholder activism at high-tech companies, in 1975, “a debate was raging within [the Osborne Computer Corporation] as to the propriety of selling [its database and communications] software to anyone who cared to use it, or restricting it so that it would not benefit any military efforts.”)

     Levy’s “second wave of hackers” took the Hacker Ethic public, by making software and personal computers much more widely available.  The Homebrew Computer Club facilitated networking of all types—notably enabling the unauthorized distribution of corporations’ proprietary computer chips, schematics, and software code.  In a watershed moment for the community (discussed approximately halfway through Hackers), a nineteen-year-old Bill Gates, incensed by the widespread piracy of his and Paul Allen’s BASIC interpreter code for the long-awaited Altair personal computer, published an Open Letter to Hobbyists in the Homebrew Computer Club’s newsletter, in January 1976.

    Signing his letter as “General Partner, Micro-Soft,” Gates argued that, “As the majority of hobbyists must be aware, most of you steal your software. . .  Who can afford to do professional work for nothing?  What hobbyist can put three man-years into programming, finding all the bugs, and distributing for free?”

    Although his appeal might not have changed the attitudes, or behavior, of many readers, Gates’ assertion of intellectual property rights in software marked a significant departure from the practices of MIT’s proto-hackers, who had freely shared their code.  (Levy’s summary of their position: “As for royalties, wasn’t software more like a gift to the world, something that was reward in itself? . . . When you wrote a fine program you were building a community, not churning out a product.”) 

     Among the programs they shared was Spacewar, perhaps the first video game.  The Digital Equipment Corporation (DEC), which had supplied, at the hackers’ request, “the elaborate sine-cosine routines necessariy to plot the [space]ships’ motion,” used the game as “as a final diagnostic program” on the computers it manufactured.  Casual collaboration on another program, MacLISP, “was all part of the easy arrangement between MIT and DEC, and no one questioned it,” in the interests of promoting the creation and dissemination of the best software possible.

     Gates’s contrast of “professional[s]” with “hobbyists,” though, would blur over time.  If, as Levy observed, in 1975 “being a hobbyist in digital electronics meant you were probably a hardware hacker,” the programming and hardware wizardry of Steve Wozniak would bring user-friendly Apple computers to the public, enabling them to more easily create their own software.  Indeed, for purchasers of Apple computers, or of their early competitors, “hardware creation was esentially done for you.  People bought these machines to hack software.”  

      Wozniak himself straddled the two categories.  Originally “building a computer to have fun with, to show his friends,” he was prevailed upon by his family and friends (who in turn had been persuaded by Steve Jobs) to leave Hewlett-Packard for the nascent Apple, to bring computers to the public. 

      Wozniak told Levy, “[T]here’s no way I would associate Apple with doing good computer design in my head. . . . The reason for starting Apple after the computer design is there’s something else—to make money.”  But, as opposed to Gates’ proprietary approach, “Every twist and turn of [Wozniak’s] design, every coding trick in his BASIC interpreter. . . would be documented and distributed to anyone who wanted to see.”

     The third generation of hackers, who designed applications—most notably, games—for personal computers, operated in an unabashedly corporate (including venture capital), commercial, and commodified world, where collaboration across companies—and even participation in Homebrew Computer Club meetings—declined rapidly. 

     The head of game-maker Sirius Software concluded, “It’s one thing to see your Apple product on the wall of a computer store, . . . but when you see a rack of your stuff in K-Mart, you know you’ve arrived.”

     Discussing the advent of copy-protection technologies, and reproducing an anti-piracy warning distributed by game-maker Atari, Levy examines the ways in which game companies, including Sierra On-Line, reconfigured rivals’ programs to create their own versions, sparking copyright litigation.  Despite its success in a pre-trial motion, Sierra settled litigation brought against it by Atari: its leader realized, “If this [win] opens the door to other programmers ripping off my software, . . what happened here was a bad thing.”

     Although programmers increasingly demanded that their names be featured on the boxes containing their works, they were themselves now often seen as interchangeable cogs in the production of games.

     In his 2010 afterword, Levy concluded that, “[H]acking’s values aren’t threatened by business—they have conquered business.  Seat-of-the-pants problem solving.  Decentralized decision making.  Emphasizing quality of work over quality of wardrobe.  These are all hacker ideals, and they have all infiltrated the working world.”

     Beyond the continuing questions of ways in which software can, and should, be subject to intellectual property protection, Hackers raises issues relevant to any current professional or pre-professional, in the law or otherwise:

     ● Where, today, can one find emerging areas like computers in the late 1950s, and a community within which, and mentors from which, to learn?

     ● To what degree, if at all, should top performers, individually or collectively, in corporate settings or otherwise, be indulged, or exempted from general requirements or restrictions, because of their perceived talents?

     ● What is the proper balance of expediency and elegance, even if, as one software executive acknowledged, “Software always takes longer [to develop] than you expect”?

     ● What is the proper work-life balance? 

     ● How should the determination of that balance be affected by the level of excitement, challenge, and fun that one finds (or might, or hopes to, find) in one’s work?

     ● How can an individual, group, or company maintain its original professional intensity, focus, and purpose?

     ● To what degree can, and should, “the Hacker Ethic” be adopted by different areas of today’s professional and popular culture?

     ● To what degree, and in what contexts, should “the Hacker Ethic” be overruled by considerations such as national security, and personal privacy?  To what degree are they consistent?  (Richard Stallman, portrayed at the end of the book as the staunchest holdout for the Hacker Ethic, insisted to Levy in 2010, “You have to believe that freedom is important and you deserve it.”)

     ● Finally, how much of an extraordinarily complex subject, particularly one that has evolved over generations, is it possible for a single person, however talented, to master?

     As it has been said, in a much different context:

     “Once a young man who wanted to become a Hasid arrived at the court of Isaac Meir, the rebbe of Gur.

     “The rabbi asked him if he had learned Torah.

     “The young man didn’t know what to answer.  He had studied Torah but didn’t want to appear too bold and answer ‘Yes,’ as if he knew all of Torah; nor could he say ‘No,’ for he would then be lying.

     “So he responded, ‘I know a little.’

     “The rabbi replied, ‘Can anyone know more than a little?’”

[The first of a series.]

     It is not an action or suspense novel; and it has, in keeping with its themes, a scholarly, cerebral, and dispassionate tone.

     Though set generations in the future, it is not “science fiction”: but if “science“ is construed most generally, as “knowledge or a system of knowledge,” the book definitely qualifies.

     It was first published in 1943 in Switzerland, as Das Glasperlenspiel, a year after Nazi authorities had banned its publication in Germany.

     Eighty years later, its resonances and relevance remain.

     Hermann Hesse’s thought-provoking The Glass Bead Game (sometimes titled, Magister Ludi) addresses the nature and role of academics and theoreticians, and their responsibilities not only to preserve and expand knowledge and insight, but also to engage with and contribute to their surrounding societies and cultures. 

     The novel, presented as a biographical and investigative profile of the fictional Joseph Knecht, takes place in Europe, long after an Age of Wars (or, Century of Wars), “which began approximately with the so-called First World War.”

      That era is also referred to as the Age of the Feuilleton, whose popular newspapers featured diverting, but intellectually empty, “anecdotes taken from the lives or correspondence of famous men and women,” “historical background piece[s] on what was currently being talked about among the well-to-do,” and “interviews with well-known personalities on current problems.” 

     Just as Yeats, in 1919, famously wrote, “The best lack all conviction, while the worst / Are full of passionate intensity,” during the “cynicism” of the Age of the Feuilleton, “Among the good there prevailed a quietly resigned gloom, among the wicked a malicious pessimism.” 

     After the Age of Wars, British and German scholars (notably those of music and mathematics, but also those influenced by Eastern philosophy) “gradually withdrew from the bustle of the world” and devoted themselves to rigorously refining and redeeming the “deeply debased intellectual professions [that] were bankrupt in the world’s eyes,” and to ensure the survival of civilization itself. 

     Their ultimate achievement, a unique method of “expressing and establishing interrelationships between the content and conclusions of nearly all scholarly disciplines,” is the Glass Bead Game, whose name refers by analogy to an abacus-like device on which the notes of musical patterns can be represented as different types of glass beads strung on wires.

     The Game’s complexities and strategies are not detailed for the reader.  Indeed, “The only way to learn the rules of this Game of games is to take the usual prescribed course, which requires many years; and none of the initiates could ever possibly have any interest in making these rules easier to learn.”

      However, the Game ultimately serves as an all-encompassing “universal language through which the players could express values and set these in relation to one another. . . . It represented an elite, symbolic form of seeking for perfection, a sublime alchemy, an approach to that Mind which beyond all images and multiplicities is one within itself—in other words, to G-d.”

     Sustained by mystical, meditative, and monastic (though not explicitly religious) practices, students and players of the Game seek to “assure stability for the spiritual foundations of moderation and law everywhere,” and, in a degraded but rebuilding world, “to preserve the purity of all sources of knowledge.”  (The players’ perspectives “had in earlier times been sought and listened to even, for example, on important cases of law.”)

    The report of Knecht’s life traces his early promise; his initiation into the Castalian Order, the ultra-selective society of students and practitioners of the Game, and his ascension to the position of Magister Ludi, or Master of the Game, where he “reached the summit and achieved the maximum. . . . [H]e became the leader and prototype of all those who strive toward and cultivate the things of the mind.”

     Although most graduates of the Castalian school system “end up as subject teachers in the public schools and universities,” the most accomplished remain, to “devote themselves to free study for as long as they please. . . [although] a good many of their works seemed to bring no immediate benefits to the people or the community and, inevitably, seemed to nonscholars merely luxurious frivolities.”

    As a student, Knecht staunchly defends the Order’s goals and operations, in debates before the entire school, against one of his most talented friends, who from the beginning has planned to return to the outside world. 

     Having attacked Castalia as a sterile, self-centered, and disengaged ivory tower, his friend will ultimately become disillusioned with the actual practice of law and politics, and confess to Knecht that “’[P]eople in the world. . .  . regarded themselves as no less precious, sanctified, and elect in their narrow-minded crudity than the most affected [Castalian] show-off could ever have done.’”      

     Decades after the debates, and from the perspective of his participation in Castalia’s political intrigues and in the highest levels of its administration, Knecht will reconsider the Order’s role in and relation to the society that supports it; will reach disturbing conclusions about Castalia’s future; and, after carefully examining the Order’s own rules, will pursue a surprising course of action.

     As Hesse worked on the book in neutral Switzerland, from 1932 to 1942, he found his own mental and spiritual refuge in a threatening, and then war-torn, Europe.  According to one biographer, he wrote to his son in late 1943 that “in all the many hundreds of hours that I spent writing The Glass Bead Game, I encountered nothing but a totally pristine world which I could inhabit, completely free of all immediate concerns.”  In 1946, Hesse was awarded the Nobel Prize in Literature.

     Among the many themes that the book explores are:

     ● The identification, selection, training, and responsibilities of the “elite,” including leaders of august institutions;

     ● The contrast between the deep study of a specialized field and the attempt to correlate and connect elements of many different areas of knowledge;

     ● The nature of creativity;

     ● Personal, versus universal, truths;

     ● The limits, and possible incompleteness, of systems of knowledge;

     ● The ability of individuals and institutions to draw lessons from (and to create philosophies of) history, even as they participate in and are affected by the events of the day and the era;

     ● The interdependence of the histories of thought and culture with those of power and war;

     ● The evolution and evanescence of individuals, organizations, countries, and cultures;

     ● Written versus unwritten (and perhaps unwriteable) information, rules, insights, and wisdom;

     ● The stabilizing, but possibly enervating, effects of meditative techniques;

     ● The preservation and accurate transmission of knowledge, and of values, between individuals and/or over generations;

     ● Methods of teaching, including by presence (or, by spiritual grace) alone;

     ● Methods of learning, including by inspiration or mystical awakening/ enlightenment;

     ● Balancing personal and professional independence/individuality with one’s duty to an organization and/or country; and,

     ● The relative roles of the student, the teacher, the scholar, the administrator, and the politician.

     Knecht’s first mentor, the Music Master, counsels him:

     “Each of us is merely one human being, merely an experiment, a way station.  But each of us should be on the way toward perfection, should be striving to reach the center, not the periphery.  Remember this: one can be a strict logician or grammarian, and at the same time full of imagination and music. . . . The kind of person we want to develop, the kind of person we aim to become, would at any time be able to exchange his discipline or art for any other. . . .

     “[T]he doctrine you desire, absolute, perfect dogma that alone provides wisdom, does not exist.  Nor should you long for a perfect doctrine, my friend.  Rather, you should long for the perfection of yourself.  The deity is within you, not in ideas and books.  Truth is lived, not taught.”

     Lawyers, and their own teachers, might take as a role model another of Knecht’s mentors, “perhaps the most eminent historian of the Benedictine Order.” 

     Father Jacobus was “not only far more than a scholar, a seer, and a sage, [but] also a mover and shaper.  He had used the position in which fate had placed him not just to warm himself at the cozy fires of a contemplative existence, he had allowed the winds of the world to blow through his scholar’s den and admitted the perils and forebodings of the age into his heart.  He had taken action, had shared the blame and the responsibility for the events of his time; he had not contented himself with surveying, arranging and interpreting the happenings of the distant past.  And he had not dealt only with ideas, but with the refractoriness of matter and the obstinacy of men.”

      Knecht himself, as Magister Ludi, advises the teachers of beginning students: “We do not intend to flee from the vita activa to the vita contemplativa, nor vice versa, but to keep moving forward while alternating between the two, being at home in both, partaking of both.”

     Similarly, in 1925—seven years after the end of World War I, eighteen years before the publication of The Glass Bead Game, and seven years before he would become an Associate Justice of the Supreme Court of the United States— Benjamin Cardozo, then Chief Judge of the Court of Appeals of New York, himself characterized the law “as a ‘game’. . . , though it will depend upon your notion of a game whether the metaphor shall elevate or cheapen.  It is a game, but it is a game of skill. . . It is in truth a fascinating process, baffling, elusive, infinite in the variety of its aspects, and yet infinite also in its appeal to the heart and mind and spirit of generous and ambitious youth.”

     In “The Game of Law and Its Prizes,” his commencement speech at Albany Law School, Cardozo warned that, to formulate effective legal rules, “One must be historian and prophet all in one—the qualities of each united in a perfect blend. . . . [L]ike every game worth playing, [the law] exacts something more important, and that something is the sportsman’s spirit, which is only another word for character.”

     Cardozo concluded:

“This is no life of cloistered ease to which you dedicate your powers.  This is a life that touches your fellow men at every angle of their being, a life that you must live in the crowd, and yet apart from it, man of the world and philosopher by turns.

     “You will study the wisdom of the past, for in a wilderness of conflicting counsels, a trail has there been blazed.

     “You will study the life of mankind, for this is the life you must order, and, to order with wisdom, must know.

     “You will study the precepts of justice, for these are the truths that through you shall come to their hour of triumph.

     “Here is the high emprise, the fine endeavor, the splendid possibility of achievement, to which I summon you and bid you welcome.”    

As previously noted, my book, Keeping Your Own Counsel contains practical advice (including a list of suggestions for pre-law summer reading) that I searched for, mostly in vain, before I began law school. 

     Starting next week, some of the material added to this blog will highlight, provide context for and short excerpts from, and briefly discuss books that could offer particularly thought-provoking and rewarding overviews, insights, or other perspectives to students in or preparing for law school, and also to practitioners. 

     Not all of the books will be specifically (or even tangentially) about law, and I (and the American University Washington College of Law) don’t necessarily endorse all of their authors’ positions, approaches, or analyses.

     A few will be traditional selections of, and for, the law-bound.  Others will be vintage works not usually suggested specially to law or pre-law students.  Recent books will also be featured.  

     In general, the selections will be easily available, relatively inexpensive, and of manageable length.

     One or more of these books might even become a regularly-reread resource throughout your career.

     As Daitsu Tom Wright, a translator of Roshi Kosho Uchiyama’s commentaries on a classic Zen text, recalled:

     “One day I went in to see Roshi to ask him a question about something I had read in [the text].  Coincidentally, Roshi had a copy of the book open on his desk.  He showed it to me, and I couldn’t help but sense how old the copy was, because it was all beaten up and every page was filled with notes in the margins.  I kidded him that it must be about time to buy a new copy.  Silently, he lifted his hand and pointed his finger at the bookshelf behind me.  When I found the shelf he was pointing to, he said to take a look at the books there.  In all, I counted fourteen copies of [the book] and every one of them was as raggedy as the next.  And all of them had many lines underlined with notes in all the margins.  I asked Roshi what changes when you read the same book so many times.  His reply was quite interesting.  He said, that ‘the lines you underline change.'”

     And, as another Zen-inspired author wrote,

     “Reading books:

     “The authors are no more

     “People of long ago

     “But your friends

     “Now, here, before you.”

      [Dedicated, with congratulations and best wishes, to all those graduating this Spring, particularly the Class of 2023 of the American University Washington College of Law.]

     Fifty years ago, the imperious Professor Kingsfield, introducing his Contracts class to the Socratic method, warned them that “in my classroom, there is always another question, another question to follow your answer.”

     But even beyond their final classroom responses, some graduates might retain on their personal and professional journeys a few of the following questions:

     ● A concern of such central importance to Montaigne (1533-1592) that he inscribed it on his emblem, which also bore the symbol of a balance: “What do I know?”

     ● Harvard Business School Professor Clayton Christensen (1952-2020), a consultant and prolific author on “disruptive innovation,” devoted his book, How Will You Measure Your Life? (2012) to helping readers address:

     “How can I be sure that:

     “I will be successful and happy in my career?

     “My relationships with my spouse, my children, and my extended family and close friends become an enduring source of happiness?; [and,]

     “I live a life of integrity—and stay out of jail?” 

     (Christensen recommended, at least in professional situations, identifying and assessing one’s assumptions by asking “What has to prove true?” for a particular situation to be successful.)

     ● Zen master Jiyu Kennett (1924-1996) suggested “looking at everything one does from the point of view of asking yourself three questions:

      “One, am I doing this out of ignorance? . . . .

      “[Two], Am I going to be doing good?  . . . .

      “[Three,] Is is going to be good for me, or is it going to be good for others? In other words, am I going to be doing something that will cause others to do wrong?”

     ● For years, I have advised students that much of the law of business associations might be practically summarized, for those acting on behalf of others, as:

     (1) “Does the proposed course of action put ahead of my personal interests those of the person or people I act for?”:

      (2) “Given the circumstances, have I informed myself sufficiently and considered the information thoughtfully enough?”; and,

      (3) “Is the proposed course of action fair?”

      ● Management mastermind, consultant, and professor Peter Drucker (1909-2005), in Managing Oneself (2008), focused his readers’ attention on:

      What Are My Strengths?; 

      How Do I Perform [i.e., learn most efficiently]?;  

      What Are My Values?; 

      Where Do I Belong?; and,

      What Should I Contribute?  

     ● In Million Dollar Habits (1990), entrepreneur Robert Ringer (1938- ) recommended asking oneself:

       “(1) What Do I Enjoy?;

       “(2) What Am I Good At?;

       “(3) What Do I Want Out of Life?;

       “(4) What’s the Price?; and,

       “(5) Am I Willing to Pay the Price?”

     ● Hillel the Elder (c. 110 B.C.E.–c. 8 C.E.) famously asked,

      “If I am not for myself, who will be for me? 

      “But if I am only for myself, what am I? 

      “And if not now, when?”

     ● Rabbi Abraham Joshua Heschel (1907-1972) observed, “When I was young, I admired clever people.  As I grew old, I came to admire kind people.”

     New, and older, alumni might periodically consider, about themselves and others, the Grateful Dead’s query:

     “Are you kind?”

In The Cult of Creativity: A Surprisingly Recent History (2023), Samuel W. Franklin concludes that the protean idea of creativity

 “served as a psychological fix for the structural contradictions of postwar America.  It reconciled a newfound individualism. . . with the seemingly incontrovertible facts of mass society. . . . [I]t represented excellence against mass mediocrity but also the democratic potential of an open society; it represented dynamism and innovation without being anarchic; and it stood for a much-needed shot of humanism into a world of engineers, while fundamentally endorsing innovation, consumerism, and economic growth. . . . [I]t fused productivity with self-actualization, enabling the return of an older bourgeois producer ethic, albeit in a softer, more psychological, and somewhat feminized form, in a consumerist era.”

     On a more operational level, to lawyers and law students, who are trained (or training) as professional problem-solvers, creativity can take many forms, including:

          ● Identifying and/or introducing new issues, arguments, contract provisions, processes, technologies, and fields (or subfields) of practice.

          ● Adapting, individually or as part of a team, traditional legal practices in an innovative way to resolve a client’s transactional or litigation concerns, especially under conditions of crisis and/or constraint (of time and/or resources).

          ● Actively participating in, while helping to advise on (and, often, revise) a client’s business operations, perhaps as a Chief Legal Officer (a title/position that some corporations have adopted in place of their previous, General Counsel). 

           (Boards of directors might, in considering candidates for any “C-Suite” officer, see an analogy to longtime Saturday Night Live producer Lorne Michaels’ comment, to New York magazine in 2014, that when casting new members of that ensemble, “[Y]ou’re always looking for the sense of humor.  There are a lot of very good comedy performers with very little sense of humor.  It’s skill, and they’ve learned it the same way that a magician learns tricks.  They’re fine, too, but we need a different thing.  It’s better if they can create comedy as opposed to execute comedy.”)

          ● Developing new ways to effectively present and explain issues, to clients, counsel, courts, and other constituencies (as well as to the media).

          ● Engineering new alignments of clients, or potential clients, with common interests in traditional or emerging issues.

          ● Constructing new methods of marketing to existing clients. (Franklin observes that “since at least the 1920s” the advertising industry distinguished between its “creative” and “accounts”/sales representatives.  Although the distinction might seem loosely analogous to that between some law firms’ “service partners” and some of their client-generating colleagues, many if not most “rainmakers” are also prized for their legal prowess.)

          ● On a personal level, inventing techniques and practices to establish and enhance professional productivity (for instance, in assimilating large amounts of information) and/or work-life balance, possibly by incorporating “creative outlets” like painting, or writing poetry.

      Of more practical value to lawyers and law students than music producer Rick Rubin’s much-ballyhooed The Creative Act: A Way of Being (2023) might be one or more of the following resources:

     ● Edward de Bono’ Six Thinking Hats (1999) provides techniques for examining problems and proposals from six different perspectives, while wearing metaphorical hats colored: white (“concerned with objective facts and figures”), red (“the emotional view”), black (“point[ing] out the weaknesses in an idea”), yellow (“hope and positive thinking”), green (“creativity and new ideas”), and blue (“control, the organization of the thinking process, and the use of the other hats”). 

      This technique is one of several discussed in de Bono’s Serious Creativity: Using the Power of Lateral Thinking to Create New Ideas (1992), whose appendices provide thought-provoking summaries of “The Lateral Thinking Techniques”; notes on their use; a checklist to help “harvest. . . all the creative value that has emerged during a creative thinking effort by an individual or by a group”; and a checklist for the “treatment,” or further improvement, of the ideas generated in such a session.

     ● The cards in the Creative Whack Pack™ Deck (2002) display Roger von Oech’s “64 Creativity Strategies to Provoke and Inspire Your Thinking.”

     Based on von Oech’s book, A Whack on the Side of the Head (1993), the cards are evenly divided among the strategies of: The Explorer (to “highlight places and ways to find new information”: for example, “What patterns in nature can you borrow?”); The Artist (for “idea-generating techniques”; e.g., “What can you rearrange?”);  The Judge (for “decision-making advice”; “What can you take less seriously?”); and The Warrior (to “give you the ‘kick’ you need to get your ideas into action”; “What surprising tactics can you use to reach your objective?”).

      ● The gnomic aphorisms of sixth-century B.C.E. philosopher Heraclitus, of whose work von Oech notes in his book (in which he reproduces thirty of those statements), “It’s as though each of his ideas is a creativity exercise that we have to solve in order to get its meaning.  To understand him, we have to adopt a frame of mind in which we tolerate ambiguity, view things metaphorically, challenge our assumptions, reverse our expectation, and probe below the surface for hidden meanings.”

     ● Each of the thirty-nine chapters of Michael Michalko’s Thinkertoys: A Handbook of Creative-Thinking Techniques (2nd ed. 2006) “contains a blueprint that gives precise instructions for using [its] technique and an explanation of why it works.” 

     For instance, Chapter Nine discusses the SCAMPER (Substitute; Combine; Adapt; Modify/Magnify; Put to another use; Eliminate; Reverse/Rearrange) method, to which Michalko’s fifty-six-card Thinkpak: A Brainstorming Card Deck (2006) is devoted.

     ● Herbert Lui’s Creative Doing (2022) provides seventy-five techniques “focus[ed] on quantity (doing as much as you can), quality (improving your abilities and honing your taste and style, and purpose (knowing who you are creating for).”

     ● The Innovator’s DNA: Mastering the Five Skills of Disruptive Innovators (2011), by Jeff Dyer, Hal Gregersen, and Clayton M. Christensen, includes a useful section on “short- and long-term exercises,” including SCAMPER, to “strengthen your capacity to think different and weave together unexpected connections across ideas.” 

      One recommendation: “Start a collection of odd, interesting things (e.g., a slinky, model airplane, robot, and so on) and put them in a curiosity box or bag. . . . Then, you can pull out unique items randomly when confronted with a problem or opportunity (and if you’re really daring, display them on your office shelves).”

      Other tips involve methods of generating questions (including a group technique that the authors dubbed QuestionStorming), and of exposing oneself to new sources of information to broaden one’s observational or “experimenting” skills.

     ● In Creativity, Inc. (2014), Ed Catmull (with Amy Wallace), the co-founder of Pixar Animation Studios and president of Pixar Animation and Disney Animation, provides, in addition to illuminating accounts of Pixar’s development and production processes, a bullet-pointed list of thirty-three plain-spoken “Thoughts for Managing a Creative Culture.” (For instance, “[I]t is not the manager’s job to prevent risks.  It is the manager’s job to make it safe to take them.”)  Catmull cautions readers to “think of each statement as a starting point, as a prompt toward deeper inquiry, and not as a conclusion.”

     ● Julia Cameron’s The Artist’s Way: A Spiritual Path to Higher Creativity (1992), famously introduced the practice of “Morning Pages” (writing daily “[t]hree pages of whatever crosses your mind—that’s all there is to it”); and also emphasized the “Artist Date” (“a block of time, perhaps two hours weekly, especially set aside and committed to nurturing your creative consciousness, your inner artist”).

     ● Mathematician George Polya’s classic How to Solve It: A New Aspect of Mathematical Method (1945) can be valuable even to non-mathematically-inclined readers, particularly for the two pages in its introduction that identify the subsidiary elements of the four stages of Polya’s approach: Understanding the Problem; Devising a Plan; Carrying Out the Plan; and Looking Back.

     ● A stack of blank index cards.

     In my own book, I recommend that law students make their own flashcards “to capture and organize the sometimes-disconnected pieces of information you’ll be receiving. . .  [E]ven if you also buy commercial flashcards (which are available for the standard first-year courses), making at least some cards of your own will help you further personalize and internalize the material.” 

     Similarly, combining items from the above collections, with others that you might come across or invent yourself (or perhaps as part of a law school’s “Legal Creativity Reading Group”), could enable you to more quickly “break out of the pack(s).”

     ● The recent clarification of “failure,” by Milwaukee Bucks power forward Giannis Antetokounmpo.

     ● The recent (re)definition of “success,” by comedian Alexis Gay.

     As television’s (original, Richard Dean Anderson) MacGyver, whose name has become a synonym for the exercise of impromptu creativity, said, “I think if you try hard enough and make the best of a situation, the situation won’t get the best of you.”

     Under some circumstances, the ABA’s Model Rule of Professional Conduct 1.13(b) requires counsel for an organization to “refer” the unlawful and damaging behavior of that organization’s agents to “higher authority in the organization,” possibly all the way up to the board of directors (or its equivalent). 

    That is sometimes referred to as “reporting up” (as opposed to the lawyer’s “reporting out” information, under Model Rule 1.13(c), to law enforcement, regulators, or other authorities). 

     It is also known as “escalation.”

     Even more important, both personally and professionally, to law students (and teachers) and to lawyers are “de-escalation” techniques, to defuse an encounter with a confused, disturbed, aggressive, hostile, and/or potentially violent person (possibly a complete stranger, in a random interaction), particularly when merely ignoring him is not a practical option. 

     The New York Police Department, in a 2016 Patrol Guide, defined de-escalation as “[t]aking action in order to stabilize a situation and reduce the immediacy of a threat so that more time, options, and/or resources become available. . . . The goal is to gain the voluntary compliance of the subject, when appropriate and consistent with personal safety, to reduce or eliminate the necessity to use force.”

     For a member of the general public—who is probably not trained, specially equipped, or otherwise prepared to use force—the immediate goal of de-escalation might be simply to extricate herself (and possibly others) safely from a potential or actual physical threat (and then, perhaps, to alert authorities). 

    In some professional contexts, lawyers might have an initial goal of calming a client, colleague, or opposing party or counsel, and an ultimate goal of successfully resolving the client’s legal matter.

    Yet, especially in the absence of bystanders who might intervene, or call for help, how can a person use just her words and body language to effectively “stabilize a situation”?

    There appear to be few mainstream books that directly address this topic. 

    The following is not a personal endorsement, but simply a summary, of some of their recommendations.

     In Words of Power: A Guide for Ordinary People to Calm and De-Escalate Aggressive Individuals (2018), the crisis intervention trainer and martial artist Ellis Amdur identifies as “the most important technique for calming angry inviduals” paraphrasing their remarks, to indicate that you understand (without necessarily agreeing with) what they are saying.  “It is important that your voice is strong and calm.  You speak to the individual as someone who has the power within to take care of his/her problem. . . .”  Paraphrasing is also the focus of lawyer and mediator Douglas E. Noll’s De-Escalate: How to Calm an Angry Person in 90 Seconds or Less (2017).

     Amdur advises against asking questions of a very angry person (which might frustrate him by suggesting that you don’t understand his concerns), and also against allowing people to “vent” (“When a person shouts, yells, complains, or kicks things, they are stimulating themselves to greater and greater aggression.”).

     He suggests making eye contact with the person (and, if unnerved by that, looking instead at “the center of their forehead”); standing at an angle to the person rather than head-on; and, keeping hand gestures to a minimum (because they might be construed as an attack).  Amdur provides instructions for two different methods of “circular breathing,” to manage one’s own emotions during, or when anticipating, a crisis.

     (A more specialized and detailed version of this material appears in Amdur’s The Thin Blue Lifeline: Verbal De-escalation of Mentally Ill and Emotionally Disturbed People- A Comprehensive Guidebook for Law Enforcement Officers (2011), co-authored with John Hutchings, Chief of Police of the Tenino Police Department in Washington State.)

     Also relevant to de-escalation, particularly in an atmosphere where reasoned discussion of the other person’s options can be conducted (or at least attempted), might be some of the methods employed by law enforcement’s crisis negotation teams.

     In Negotiating Like Lives Are on the Line: The Essentials of Crisis Negotiation for Use in Everyday Situations (2022), crisis negotiator Jonathan Pultz emphasizes, beyond remaining calm, establishing and assessing rapport by mimicking the gestures, other movements, and body language of the person you’re talking with. 

     This “mirroring” technique is also referred to briefly in former Special Agent Christopher Whitcomb’s Cold Zero: Inside the FBI Hostage Rescue Team (2001), in the context of conducting inteviews: after asking “an open-ended question, the kind that can’t be answered with a yes or no, [l]et the person talk.  Mirror his behavior without being obvious, affirm what he says with a nod of the head or a subtle smile.”

     Pultz advises, “If you are a man and are negotiating with another man, try standing or sitting offset during the conversation” to lower tensions, but “[i]f you are a man and your counterpart is a woman, . . . facing one another seems to have a more desirable effect.  Women seem to be more comfortable negotiating in this situation.” 

     Pulz “highly recommend[s]” Never Split the Difference: Negotiating As If Your Life Depended On It (2016), by Chris Voss, a former lead international kidnapping negotiator for the FBI, and the former lead crisis negotiator for the FBI’s New York City division. 

     In Voss’s own technique of mirroring, presented as “a conversational Swiss Army knife valuable in just about every professional and social setting,” one adopts a “late-night FM DJ voice” to say “I’m sorry,” and then to repeat in an “inquisitive tone” the key phrase of the other person’s statement.

     Voss’s “labeling” approach involves “detecting the other person’s emotional state” and then summarizing, “It seems like. . . “, “It sounds like. . .” or “It looks like. . . .”  (Noll, by contrast, recommends “the short, declarative ‘You’ statement,” such as “You are angry.”)

     His “calibrated questions” (such as, “How am I supposed to do that?”) suggest “that you want what the other guy wants but you need his intelligence to overcome the problem.”  (Similarly, Amdur suggests such “open ended questions” as, “What do you think can be done to fix this?”)

     Lawyers should remember that Model Rule of Professional Conduct 1.6(b)(1) permits (but does not require) counsel to reveal otherwise-privileged information “to the extent the lawyer reasonably believes necessary. . . to prevent reasonably certain death or substantial bodily harm,” presumably including to the lawyer herself. 

     Official Comment 6 to that section elaborates, “Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.”     

     In February 2018, the outdoor-clothing retailer L.L. Bean abruptly terminated its famous “lifetime guarantee” for its products, and imposed a one-year deadline for returns, which must now be accompanied by proof of purchase.

     A company statement explained that “A small, but growing, number of customers has been interpreting our guarantee well beyond its original intent,” such as by submitting for refund “heavily worn products used over many years,” or “products that have been purchased through third parties, such as at yard sales.”

     This conduct—like boarding a commercial airline flight with a creature that does not actually qualify as one’s emotional support animal— “takes advantage” not legitimately (as in, buying items temporarily offered at discounted prices) but abusively, and could lead to a company’s clarification, qualification, or even, as in L.L. Bean’s case, revocation of its well-meaning rule or policy.

     But it might not quite qualify as a “hack,” under the definitions offered by cybersecurity expert Bruce Schneier’s recent and surprisingly squishy book, A Hacker’s Mind. 

     To Schneier, the term indicates a “clever, unintended exploitation of a system that (a) subverts the rules or norms of the system, (b) at the expense of someone else affected by the system”; or, “[s]omething that the system allows but which is unintended and unanticipated by its designers.”  (A “system” is “[a] complex process, constrained by a set of rules or norms, intended to produce one or more desired outcomes.”)

    Neither the yard-sale-goods-returner nor the mere-pet-carrier is being especially “clever” (though Schneier doesn’t clarify this term), and their activities were probably not unanticipated by L.L. Bean or by the airlines (although the amount of such conduct might well have been). 

    Schneier’s book opens with his own example of a hack: he realized (at an unspecified age) that the address card enclosed with Milton Bradley’s ant farm, for the buyer to request by mail a tube of live ants, would enable him to “have this company send a tube of ants to anyone I want.”

    Thus, hacking “occupies a middle ground between cheating and innovation.” Schneier emphasizes that, as with “an accountant [who] finds a loophole in the tax rules,” “Hacks are often legal.  Because they follow the letter of the rules but evade the spirit, they are only illegal if there is some overarching rule that forbids them.”  (Lawyers, though, might argue that such actions could be challenged as being “not in good faith.”) 

     Though his own central term is not clearly defined, Schneier offers examples of hacking that include creative (re)interpretation of a rule’s words.

     The general reader might find few revelations, or even particularly deep insights, in the book’s thirty-five-page section on “Hacking Legal Systems,” which asserts that although “[t]he disempowered hack to subvert existing power structures,” the most effective “hackers” of laws and regulations can be “governments and large corporations” (with their lawyers’ help, of course). 

     It is not especially illuminating for Schneier to characterize common law—the accumulation of judicial decisions rather than statutory or regulatory rules—as evolving through “a series of adjudicated hacks that are either declared illegal or that become future precedent.” 

     Or, at the end of his discussion of “Hacking Legal Systems,” to proclaim that in some cases “Hacking is a process by which those who use a system change it for the better, in response to new technology, new ideas, and new ways of looking at the world.” 

     As Schneier recognizes—and as Steven Levy’s seminal, and much more memorable and thought-provoking, Hackers: Heroes of the Computer Revolution (1984) chronicled—to the pioneering programmers at MIT in the 1950s and 1960s, one meaning of “hacking” was the benevolent and skillful optimization of hardware or software systems to run with fewer but more elegantly interacting components, or lines of code.

     Compounding this semantic confusion, a word beloved by contemporary hackers (and part of both of Schneier’s senses of “hack”) has its own divergent definitions: like “taking advantage,” “exploit” can signify making “productive use of” something, but also “meanly or unfairly [using it] for one’s own advantage.”

    So, the powerful, but also the less powerful, can be hackers.  Hacking itself can be good, or maybe sometimes not.

     Amidst these muddled meanings and morals, law students and lawyers might find their most valuable lesson in a general application of one particular defense against hacking.

      Although Schneier asserts that “declar[ing] manipulative practices illegal” will fail because “any new rules will be hacked,” he recommends educating “potential victims” about methods by which they might be vulnerable to “’cognitive hacks’ that play on universal human biases like fear and deference to authority.” 

     Similarly, Appendix B of my own book recommends that “[i]n the same way that many lawyers prepare their clients to avoid psychological tricks and traps when being deposed or cross-examined, they should encourage executives to read (and might even summarize for them) some of the reporting on cognitive countermeasures,” a variety of which are discussed in that section.  I also suggest that “counsel themselves could. . . apply this information to enhance their own adversarial and cooperative efforts, as well as the ways in which they offer recommendations to clients.”

    Thus, a more practical and rewarding use of counsel’s, clients’, and compliance officers’ time than reading A Hacker’s Mind might be to review (or perhaps re-read) The Art of Deception: Controlling the Human Element of Security (2002), which was (with a co-author) written by convicted hacker Kevin Mitnick. 

     Despite two decades of technological change, Mitnick’s detailed discussions and sample dialogues of  “social engineering” techniques for tricking people into revealing sensitive information (such as “pretexting,” and “Using Sympathy, Guilt, and Intimidation”) remain relevant. 

     Of particular interest are Mitnick’s Chapter 15, which discusses how to create programs on “Information Security Awareness and Training”; Chapter 16, on the development of (and including an extensive list of suggestions for components of) “Recommended Corporate Information Security Policies”;  and his final summary, “Security at a Glance.”     

As Schneier himself (citing Mitnick’s testimony before Congress in 2000) concluded a generation ago, in Secrets and Lies (2000), social engineering “will probably always work. . .  People are basically helpful.  And they are easily duped.”  

      Towards the end of his (to some, insufferably precious) 1863 essay, Life Without Principle, Thoreau mused, “I do not know but it is too much to read one newspaper a week,” and advised, “Read not the Times. Read the Eternities.”

      Lawyers, who have their own professional principles, as well as fiduciary responsibilities to their clients/principals, simply cannot take this suggestion to heart. 

      In fact, the news and analyses of the day, both from mainstream media and from more specialized sources, help careful counsel identify what the former CEO of Intel, Andrew Grove, defined as “strategic inflection points.” 

     Grove’s 1996 book, Only the Paranoid Survive, addresses how to recognize and survive those times “when the balance of forces shifts from the old structure, from the old ways of doing business and the old ways of competing, to the new[,] where the curve has subtly but profoundly changed, never to change back again.” (Some of those situations might well result from what Harvard Business School Professor Clayton Christensen famously characterized as “disruptive innovation” by a company’s competitors).

     Perhaps drawing on his own emigration, during the Hungarian Revolution of 1956, to Austria (and ultimately to the United States)—and quite possibly also on the numerous personal tragedies of the Holocaust—Grove recommends “training your instincts to pick up a different set of signals,” to enable you to respond “while your company is still healthy, while your ongoing business forms a protective bubble in which you can experiment with new ways of doing business. . . But that means acting when not everything is known, when the data aren’t yet in. . .  [T]he sad fact is that instinct and judgment are all you’ve got to guide you through.”

     Grove states, echoing a 1978 hit single of Kenny Rogers, “At the risk of sounding frivolous, you have to know when to hold your data and when to fold ‘em.  You have to know when to argue with data. . .  [W]hen dealing with emerging trends, you may very well have to go against rational extrapolation of data and rely instead on anecdotal observations and your instincts.”

     In particular, Grove urges readers to respond swiftly, while they still have viable options.  “Loking back over my own career, I have never made a tough change, whether it involved resource shifts or personnel moves, that I haven’t wished I had made a year or so earlier.”

He concludes that “in times of change, managers almost always know which direction they should go in, but usually act too late and do too little.  Correct for this tendency.  Advance the pace of your actions and increase their magnitude.  You’ll find that you’re more likely to be close to right.”

     Lawyers and law students might find the most value in the book’s final chapter, which adapts this corporate approach to personal “Career Inflection Points.”  Grove recommends that individual professionals continually gather information from newspapers, industry conferences, and contacts at other firms (even in different fields), and “cultivate the habit of constantly questioning your work situation.”

     How can one prepare to—and determine when and how to—professionally pivot (or, at least, iterate), possibly multiple times, over the course of one’s career? 

     First, beyond following mainstream and specialized sources of (good and bad) news about the legal profession in general, and especially about one’s own field(s) of practice and type(s) of clients, lawyers and law students should make a practice of monitoring the client alerts and blogs on law firms’ Web sites.

     Those updates identify new legal problems—and/or the elimination, by regulators, legislatures, or courts, of existing challenges (and maybe of jobs dedicated to resolving them). 

     They might also reveal new types or alignments of potential clients and of practice areas; and indicate desirable new “skill sets” (for example, a familarity with, or experience in, coding, predictive analytics, and/or certain types of legal technology).

     Second, regularly reviewing the home pages, and possibly also the practice area pages, of major law firms’ sites will alert you to patterns in the creation of new practice groups, the arrival of partners in particular practices and locations, and the opening of new offices.  (However, they will almost certainly not report layoffs, departures, or the dissolution of groups.)

     Third, collecting (and dating) some of this information in a notebook—or in a text document or even a spreadsheet—might be helpful for reviewing and correlating changes. 

     Or, one might use differently colored index cards to record and sort developments by such categories as:

● the relevant geographic area affected (local, regional, country-wide, global);

● the projected term of the effect (short-term; long-term; indefinite);

● the possibility that the effect is, or could be seen as (or as analogous to), a predictable or at least common stage, as in an individual person’s life, or a business’s life cycle, or of a suggested generational cycle.

● the nature of the effect, such as (possibly in more than one category):

• demographic, including birth rate, migration, and immigration;

• technological, including medical/biotech, computer, and media;

• cultural, including entertainment;

• financial, business, and economic;

• environmental, including climate change;

• mental and/or physical health, of particular populations or globally;

• legal; and

• political.

          ● whether the effect is the result of reality, perception, or both; and how it stems from, and in turn affects, the mood, or “animal spirits,” of the relevant community. (For instance, although a financial institution might not actually be unstable, rumors that it is could well lead to a “run on the bank” that would ultimately destabilize it, and maybe other banks also.)

          ● the “order” of the effect: is it an element or consequence of a larger trend or trends, such as increasing globalization and/or interconnection?  Do particular “megatrends” reinforce, or undercut, others?

     Fourth, some of this information could be arranged and evaluated in a SWOT (Strengths-Weaknesses-Opportunties-Threats) matrix, in connection with both one’s employer’s competitive posture and one’s own position within it, and within the profession.

     Fifth, you might try to identify, and focus on, not only the sources, cultures, and/or communities from which certain forms of innovation emerge, but also the “first movers” and the “early adopters” in “the space.” 

     For instance, years after reading an assertion (which might not be accurate) that leading-edge medical technology was generally applied first by the military, next by professional sports teams, and only then made available to the general public, I saw attributed to the science fiction author William Gibson (credited with coining the term, “cyberspace”) the statement that, “The future is already here.  It’s just not evenly distributed yet.”

    Also worth identifying and monitoring: Who is the “smart money,” and how is it betting?

    And, in your (and your clients’) current or anticipated fields, what or who are the proverbial—and possibly, as Groves notes, anecdotal—“canaries in the coal mine,” or harbingers of trouble?

    Sixth, remember that, as Gibson (actually) wrote in a 1986 novel, “The street tries to find its own uses for things.”

     To what unanticipated, “off-label,” or even proscribed purposes might new technologies and other scientific advances be put, once they become more widely distributed?  (For example, commentators have discussed how the dissemination of adult content drove the development, as well as the popularity, of technologies as early as the printing press).  How will those applications affect other aspects of the culture and of society?

     Seventh, read some science fiction (novels; or short stories in such magazines as Analog, Asimov’s, and Fantasy & Science Fiction), if only to see how it predicts not just technological developments but also the ways in which they will shape, and be shaped by, the culture. 

     In fact, in the first (1951) novel of his “Foundation” series, Isaac Asimov posited the creation of “psychohistory,” as “that branch of mathematics which deals with the reactions of human conglomerates to fixed social and economic stimuli.”  Nine years previously, Asimov had enunciated and begun to explore the ambiguities, priorities, and inconsistencies of his still-cited Three Laws of Robotics.

    Law students might well, with other members of their academic communities, create a reading group for this purpose.  It could be named The Ten Percent Club, in honor of a leading science fiction author’s admission, and elaboration, that ninety percent of the genre is garbage—but then, so is ninety percent of everything else.  (Or, perhaps, called The (W)right Vision Society, after comedian Steven Wright’s quip that, “I’m a peripheral visionary.  I can see into the future, but just way off to the side.”)

     Eighth, law students might form a student group, reading group, or speaker series on The Future of Legal Practice, with a special focus on predicting trends in employment opportunities (not just with the largest law firms) over the next several years.

    Guests could include not only hiring partners and legal recruiters, but also corporate consultants or employees who create models and/or predictions of developments in certain areas, and/or help companies to develop and explore responses to potential scenarios.  Of special interest might be a presentation by a current or former member of the intelligence community, which is known to be particularly concerned with the national security implications of climate change.

     Ninth, to enhance professional networks, although everyone could maintain connections with the alumni communities of his or her undergraduate institution and law school, those currently involved in law student groups, organizations, and journals might try to communicate regularly with, and perhaps coordinate on some projects with, their counterparts at other law schools.

     Tenth, both law students and lawyers could consider how to “diversify their portfolios” of legal education, skills and experience.  For instance, some lawyers develop expertise in both real estate and bankruptcy law, on the theory that they will be better equipped to practice in any economic situation.

     Eleventh, one might try to identify and launch a subpractice in (and/or attempt to publish an article or lauch a blog on) an emerging legal area at the intersection of several trends, such as the growing concern over the “sustainability” of clothing, and particularly of so-called “fast fashion.” 

     Twelfth, as Groves emphasized, don’t automatically discount your “right-brain,” intuitive or instinctual misgivings about a person, company, situation, or opportunity, even if they contradict “rational extrapolation of data.”

     Finally, one might continually consider the ways in which one’s background and experience could be recast or repositioned, should the need arise. 

     For instance, according to one history of Hasbro’s classic G.I. Joe “action figure,” the product’s sales had dropped dramatically by the late 1960s, and “Sears Roebuck [had] decreed that it would no longer feature war-related toys in its catalog.”

    In response, Hasbro literally—and very successfully—repackaged the figures, and even some of their original accessories, into the early 1970s’ “The Adventures of G.I. Joe” line, which “introduced nature as [the] main adversary.  Sharks, octopi, crocodiles, and avalanches menaced our hero at every turn. . . .”

     When an executive observed that the logo of the new “Adventure Team” resembled a peace symbol, one of Hasbro’s leaders reportedly responded, “I hope so.”

     By his own account in Walden (1854), no particular personal or professional crisis led Thoreau to abandon his semi-solitary spiritual sojourn: “I left the woods for as good a reason as I went there.  Perhaps it seemed to me that I had several more lives to live, and I could not spare any more time for that one.”

    As Andrew Grove recognizes, though, not everyone has the luxury of deciding when to turn over (or to turn one’s back on) a new leaf. 

   Instead, many professionals, including lawyers, must continually keep one ear to the ground, and a weather eye on the horizon.