For about a decade, Scottish solicitor Brian Inkster and I have had a running joke about being invited to the Clio convention to do “The Future of Law” in interpretative dance. It was funny because it was so absurd, as were the fantastical claims of how the law would change, how the forward thinkers would reinvent the new normal of law with technology, with empathy, with an entirely new understanding of how the law could serve as a vehicle for progress.
Here we are, a decade later, and while some tech changes have taken hold, not much of substance has changed. The naysayers might chalk it up to lawyers being so conservative and resistant to change, but as Keith Lee pointed out, “It’s not that lawyers are anti-technology, it’s that they are anti-bullshit.”
Michelle Goldberg made this abundantly clear in her New York Times column today, that lawyers’ rejection of bullshit has given rise to a generation which views the world through a paradigm of their feelings, capable of using pseudo-intellectual arguments to push their anti-intellectual agenda of feelings.
A few weeks ago Anne Applebaum published a piece in The Atlantic titled “The New Puritans,” about people who have “lost everything” after breaking, or being accused of breaking “social codes having to do with race, sex, personal behavior or even acceptable humor, which may not have existed five years ago or maybe five months ago.” Around the same time, The Economist published a cover package about the illiberal left, warning that as graduates of elite American universities have moved into the workplace, they have “brought along tactics to enforce ideological purity, by no-platforming their enemies and canceling allies who have transgressed.”
The enemies of the woke weren’t prosecuted for the commission of crimes. Their conduct wasn’t proven in a court of law, whether beyond a reasonable doubt or by a preponderance of evidence. Rather, a mob of passionate people coalesce and swarm upon whomever is the evil person of the moment to destroy them. They are certain of the righteousness of their cause, or at least indifferent to the potential that they’ve destroyed someone who doesn’t deserve to be destroyed, for the far greater good of ridding their universe of the bad. They, of course, are the good.
Some have analogized this to terrible historic events, and that’s what evoked a visceral response in Goldberg.
But it is a near-perfect reflection of the generational anxiety driving much discussion about cancel culture, one that causes otherwise sensible people to make wild historical analogies between today’s intellectual climate and the Chinese Cultural Revolution, the U.S.S.R. or 17th-century theocracies.
Are the analogies fair or overwrought?
This is so histrionic that it suggests the usually sober Economist is in the grips of extremely strong emotions. One of these emotions, I believe, is loss. Many people I know over 40 — maybe 35 — resent new social mores that demand outsized sensitivity to causing harm.
I’ve highlighted a key sentence here which gave rise to a deeper understanding of Goldberg, whose job is to be the voice of Millennials. She doesn’t think. She feels. She believes. And she cannot comprehend how anyone does not succumb to her most base and shallow mechanisms for reaching conclusions. In her world, no one needs to think when they can feel instead.
It has been jarring to go from an intellectual culture that prizes transgression to one that polices it. The shame of turning into the sort of old person repelled by the sensibilities of the young is a cause of real psychic pain.
In the highlighted portion above, Goldberg likely admitted something she never meant to admit, that we have gone from an intellectual culture, one that valued diverse thought, to a culture that polices it, without the qualifier “intellectual.” She writes of “real psychic pain,” because in her world so much is about personal pain and so she projects her emotionalism into other people’s analysis of issues. No matter how hard you think, to someone like Goldberg, the only reason you could do so, you could disagree with her feelings, is that you have other feelings. If you challenge her emotions, it can’t be anything other than your emotions kicking in because there is no driver of outcomes other than feelings.
And this is how she brings the quite illuminating expositions of Applebaum and the Economist to task.
In “The New Puritans,” Applebaum reveals a blind spot about the true source of intellectual repression in America. “There are currently no laws that shape what academics or journalists can say; there is no government censor, no ruling-party censor,” she wrote. This statement is incorrect. A number of state laws do shape what academics can say, but these laws, aimed at critical race theory, censor the left. There is a crisis of intellectual liberty in this country, but the victims are overwhelmingly people in red states who teach about racism.
Goldberg’s not entirely wrong here, although the laws prohibiting Critical Race Theory are ham-handed, intellectually repressive and almost certainly unconstitutional. But there’s another point here that Goldberg fails to feel. These are laws, made of written words that can be seen, parsed and eviscerated. There is something to point at and say, “that’s bad law.”
That can’t be done with the new norms of the mob, which doesn’t operate on any set of cognizable, fixed rules. There’s nothing to read, to point at, as every woke person feels that they have their own personal belief system, and if you poke at the nutjobs, they can dismiss your criticism as nutpicking and not their entirely reasonable and righteous belief. Rather, their belief system is an ever-changing performance of interpretative dance, each person moving as they feel at any given moment and thus beyond intellectual reproach.
And if you don’t care for their dance, it’s not because you value the liberal ideals of free speech and thought, or even the legal ideals of due process the presumption of innocence, and especially not the oldster’s appreciation of facts and reason. It’s that your feelings are hurt. What other reason can there be?
While technology hasn’t made much of a change to the law, the subversion of the rigors of a legal system to the expediency of emotions has rendered us superfluous. A person can be indicted, convicted and punished in the blink of an eye today, not because an offense has been proven but because that’s how the mob feels. So Brian and I were right all along, that the future of law is interpretative dance, absurd as it may be.