Systems Holding, Systems Folding

talk about grifting. But on this episode, I actually wanted to talk about the humanity in the law and not being able, or I should say this, being able to view the law not as this neutral power structure, because we know that people are not neutral. We know that the judges and the lawyers that preside over our legal system are coming from a varied perspectives, upbringings, understanding and reasons why they are there in the first place. So in this conversation with Jen today, we talk about her

law students. We talk about the things that are providing us hope in these really dark times. We talk about systems holding and systems folding, and what the future looks like for us as we move into the twenty twenty four election cycle year. Given all that has transpired and continues to transpire while I'm doing this recording, there is so much happening everywhere, and everywhere looks bad. But if you are not actively intentionally looking for the light, you

will find yourself consumed in darkness. And so I hope that this episode with our friend Gentaalb provides a little bit of a spark. Folks. I am always grateful whenever I get to bring on friends, people who I genuinely care about to this show, to ook at daily, and I'm always happy to welcome back gent Tobb, our friend, law professor and author of Big Dirty Money and Other People's Houses and host of the podcast Booked Up with gen Tobb. Jen there is I mean, it isn't even

an elephant in the room. It's like we're just inside of the elephant at this point. And you know, before we even started recording, it was what should we talk about? Because it is like we're just in a place of

overwhelm where everything everywhere that you look is devastating. It is invoking grief, It is invoking despair, hopelessness, all of these things that I know that my listeners are feeling because they are sharing, and what I've been trying to do over the past week on this show, Jen, is to really talk about how we take care of each other, how we take care of ourselves and each other during this time, how we collectively stand up for and discuss humanity,

something that is just you know, as old as you know, as all as time, but that we seem to have lost sight of. And so I just want to start off with, you know, for you who teaches, you know, stands up in front of young people who are aspiring right to do something good to you know, to be of service. How are you finding this moment and how are you taking care of yourself as you you know, I think that part of being a professor in a lot of ways is performing. It's what teachers have to do,

you know, to to bring people in. How are you able to manage at this time?

Then we had the follow up on Thursday, and and I sort of set aside the regular lesson, which was some sort of technical lesson on federal court procedure, to hear what they thought of the oral argument. And that was a way and they were so talkative, and I think it was a sideways into talking about feelings and talking about fears and talking about humanity and I'll explain

in a second why, and talking about imposture syndrome. Because there were several people arguing before these judges these appeals, and I only was there for half of it, for the civil cases. In the morning, there were some criminal cases, and so I wanted this to get We were talking about one case in particular, what did I think the outcome would be? And that was kind of technical, right, But then I want to know what they thought about

the lawyer's performances. And they all these hands shop shot off. People were popping out of their seats to talk, and I'm like, okay, let this go. And so it was really interesting because first they were like, that was so embarrassing that one lawyer representing a criminal defendant. This person is charged with these heinous crimes and might be deported, and this lawyer did a terrible job, right, and so

that's like that our system shouldn't work that way. And then there was some people who said, yeah, but the judges were laughing at that lawyer because they were doing such a bad job, and that made us laugh and

we feel bad about that the judges. So there was all this stuff that happened, and I realized it wasn't just I know that maybe this seems an odd thing for me to say, but I think allowing for those kinds of impressions, and not just the analytical side of an argument, but letting students share their feelings about something that wasn't one of these painful current events, that they could all they could debate over what they thought about

the behavior. And you know, that was the moment where I was able to do my thing that I often say, which is, you know, law is the language of power. And by the way, most of my students are first gen students. I am at a sort of regional law school. Amazing students who are trying to do all kinds of different things with their degrees, lift themselves up economically, someone to help the community. People have all kinds of different ideas with what they'll do with the degree. And you know,

they watch role models. They saw lawyers they wanted to emulate and ones they didn't. They saw judges they liked and ones that they didn't. And I think this speech that I was able to talk about about law being the language of power and how you know, I always say, you know, generations ago, during feudalism, you know, you had a big mode and you had an army, and now law and law can be boring and challenging, and you need to have access in many to go to law school.

And I said, on top of that, even when you're a lawyer, then you're up against judges who've been raised in this system, even if they think they're doing the right thing, to have a kind of imperious attitude. And I said, you know, you don't have to do that as a judge. I said, if you're a judge and you see someone struggling, if you let them know they're fucking up, like it's not going to make them do a better job for their client, how do you show

your humanity? And then another student said, yeah, but that person it's you know, I don't have a problem with the judge behaving that way because that lawyer shouldn't have been there. And I'm thinking, okay, like I just let them all express what they wanted to express, and I

think it was a really cool class. Now I'm a day behind and my lesson, but it was I think a gift to me to be able to hear them talk in that way about how to be a person in the world and these challenging circumstances as a lawyer. But it has also allowed me not to have to perform and act like everything was normal. So that's the ant long winded answer to your question.

And so when you are saying that your students are first generation, largely first generation. They're entering into the law

right for a different reason. And so I just want to give you the space to talk about, you know, what have you heard from some of your students as to why they enter into a profession that largely at times, you know, is a punch is a punchline, right for comedians, is a is a battering ram for for other places, that a first generation individual entering into a law school has a different perspective and mindset than than what we believe to be the traditional quote unquote law student.

experience of the criminal justice system wasn't great. And I think you know he but he also sees lawyers as being really interesting people who work within the law, and when he watched it was interesting I asked the students, because I didn't get to see all the lawyers arguing. I said, you know, I could see the race and gender composition of the ones I saw, but what was the rest of the day. And except for one person,

everybody was white? And this student said to me, you know, one of them, the student I'm thinking of, you know, he raises his hand, he said, well, one person looked like he was brown, and that was the guy arguing for the Commonwealth, and one of the you know, for the government, and one of the Krim and one of the Krim arguments or the appeals. I guess that was a case, or maybe it was I think that might have been a suppression of due to an unlawful search.

I can't remember what it was. Whatever the situation was, he really liked that person, and so it's interesting. This is some one one example of someone who was a defendant in the criminalistic system but also wants to be a prosecutor. And I think that could be a good thing. You know, this is a compassionate person. And when I heard about the students said that one of the prosecutors something had been misstated on the record and he wanted to make sure the judges knew the right information, it

didn't actually hurt help his case. He clarified something that would have helped the defendant and they all respected that. So like this is something other students, you know, they want to go into family law, maybe because of their own background. Others, you know, they need some A lot of the ones who end up around me want to go into business law because they've really been interested in numbers or they you know, they had a family that had maybe a business and they want to try to

be independent in that way. But it's interesting, there's often my students often you know, that imposter complex can be a thing. And so in addition to what I was saying to them, I said, you know, now you know, I said, these judges were actually pretty nice. I said, wait, do you see a Supreme Court argument? And I said one thing you can do if you're feeling, you know, what lawyers do, the ones that you saw up there, I said that we're doing a great job. They've practiced

a lot. And I said, there are these things that people say. It's called like murder board is the expression where before you're going to go in to an argument in a pellet argument, before judges as opposed to dealing with a jury. When you're going to do one of these tough arguments with the judges are going to cut you off and zero you in and ask all kinds

of questions you may not know the answer to. People prepare in advance and they have their friends act like mean people, and then you can build up your confidence. But you know, it was it's but yeah, they go into law for all kinds of reasons, and a lot of them, a lot of them, don't. You know. A lot of people can pass as somebody who had a normal childhood or had a middle class upbringing, and and I say pass you know, I think you know, in particular the complexity of a lot of my first gen

white students who didn't. And they're trying to act they don't necessarily have a community around feeling like it was okay to have come from, you know, a poor white family. Right, So they're trying to dress in a certain way or look of certain way and look like the profession, all the while knowing, you know, what their family life was like, maybe a family member also in prison, right, And so

it's it's you know, people don't always share that. But if you get to know the students, you understand what that background is, and then others are just ordinary middle class kids, you know, just a mix.

of rattle off. These are attorneys, right, These are people people, right, and went into this profession for varied reasons and their backgrounds. While we love to use the concept of the law being quote unquote blind, which is a totally also ablest thing to say, it probably needs to be changed. But when we use those kind of refrains, it's like this false idea that we can be neutral. And I want to be able to dig into that with you, because the law as it has been set up has never

been neutral. Right. The law, whether you're looking at family law, if you're looking at employment law, you're looking at you know, has always had the traditional quote unquote norm which falls on white, middle class male, you know, dominant perspective, and it's just like who were I feel like, more so now than ever, I feel like folks are asking themselves

and also outwardly, who was this created for? And So when you think about the law in terms of how you even knew it when you entered into law school till now as a professor, how has your understanding of the law and its power right and the power dynamics that plane play shifted.

what happened in real life. But I think what I have learned over the years is that people in power, whether it's judges or prosecutors or members of Congress, actually have a lot more space and discretion that's perfectly legal to use in ways that take into consideration the very real human beings in front of them, and that there are ways that judges can get, you know, I can say, get away with doing good or get away with doing bad.

And I know that seems very simplistic, but the examine example would be someone like Judge Cannon in Florida slowing things down in the document's trial, doing these little things that will delay, being hostile toward the prosecutors acting in

a way with our discretion. That doesn't like really line up like these other defendants who deserve actually to have independent counsel not or at least have a discussion with independent counsel so they can make a choice whether they want to still be with the lawyer that's going to that works for Trump and therefore or you know, I would say works for Trump is on the side of the you know, the sort of the other defendants who are allied with Trump, in other words, can they have an

independent council representing them or at least the option. And you know, the fact that she's kind of delaying and standing in the way of that is really a problem.

And yet there's no actual way, there's no mechanism to stop her, similar to the fact that if a different judge were in that position, they could actively say in my courtroom, I want the truth to come out, and I want every defendant if there's a conflict of interest to have real representation, which seems to be fully in line with the Constitution, and they could do the opposite.

So I guess what I would say is people who hide behind this idea that the judge is just sort of like you know, turning on the lights, turning on the justice, you know, the you know, the balls and strikes, turning on the you know, the electric picture, and they're just going to like stand there as an umpire and watch things go by. It's not actually how law works. Because I think of a you know, a good judge I really admire and Nancy Gertner, who was a judge

in Massachusetts. I had lunch with her last year and she spoke to our students, and it was incredible about how she talked about how much discretion she could have when she was dealing with young defendants, defendants, you know who, especially in criminal defendants. The things that she would do within her discretion to create time, to create space, to create opportunities for fairness and justice. It almost like brought

tears to my eyes. So, you know, I think I think it's really I think, you know, the overwhelm that you talk about the overwhelm around us can obscure for us that sometimes it's just one person in front of us that we're dealing with, and that you know, even if it's your job where you see tens of thousands of people, that's the person across from you where it's their only time, their first time in something terrified out of their minds, or maybe it's happened again and again

and they've got some trauma. It doesn't even matter if it's a criminal defendant or even a civil defendant. This summer's business, someone's whatever it is everyone in front of you. You can choose your humanity or you can choose to hide behind systems and not look at your own role. And you know, there's a lot of space for that. The law is the law. Sometimes you know there's interpreting the law, but very often there's legal precedent that guides what you need to do. But there's also a lot

of space in how you conduct yourself. And I you know, anyway, I hope that answered your question.

And I'm just curious as to you know, this next year, twenty twenty four is like the year of law, it's the year of democracy, it's the year of humanity. What do you I guess, what is allowing you if you can hold on to hopefulness and faith that the systems will hold.

Need I go on and oh oh, and even perhaps more importantly, over refused to refuse to acknowledge the legitimate, lawful results of an election and orchestrated a failed coup. So so where is the part about how the how things held? Where are you seeing that? I rather think that it's broken and we're trying to put it back together right now because this idea of like feeling, oh my god, is this thing going to fall apart? Feels like a lot of pressure. I'm kind of like, well,

this is a shit show. Am I allowed to say that? You know? This is a disaster. This is a disaster, and now we're in rebuilding because I just I don't I don't want to do this. Will it hold? It hasn't helped, It has not held.

it did hold? Right Like, if if he had been successful, if all of these people now that have now been indicted were successful, we would be three years into the whenever Trump, you know, decided that he was going to be done and pass on his kingdom to his kids. Do you know what I'm saying so like that in that respect, you're actually cheering me up.

He has ninety one charges against him. Now we will see if the criminal justice system works in the way that it should, which currently you know, the fact that he has charges against him, Okay, But in my humble opinion, should he also be in jail right now with having broken multiple gag orders and threatened multiple people from judges to law clerks in what have you. Absolutely, but I think that we also have to hold on to the fact that it didn't crack all the way open.

in the face of injustice. So like that gives me hope. So thank you, thank you. That is it for me today. Dear friends on wokf as always, Power to the people and to all the people. Power, get woke and stay woke as fuck. M