Lecture Notes from 11/14

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The Philosophy of Discourse

In a sense this class is about two things: (1) argument – empathic as opposed to oppositional; and (2) Cybermedia – projection of message into space

  • Empathic argument can be seen as not different as the idea of communicative discourse that Habermas describes, or what people in sales teach their workers about having to convince customers to move in a way you want them to move before they know they want to

Example: A law student coming to a case for the first time; it tells a story, relates to your emotions. You have a sense of justice or injustice, but without having read any other cases you have nothing else to relate it to. Then you read your second case, and you are able to start making distinctions

  • Distinctions allow you to craft categories and discriminations
  • But the typical path is that, as you become increasingly competent in categorization and discrimination, you at some point lose feeling and become a hired gun – “tell me which side to argue, and I can do it”
  • Like coming back to a glass of wine after you’ve become a connoisseur, you can appreciate it for what it is, but its different now in the context of what you know

Example: Teaching life lessons to kids through the lens of HIV/AIDS Issues; kids creating skits about HIV/AIDS issues, shining the light on how kids believe adults act (badly) and what adults have taught their kids

  • Steps in implementing the program
    • (1) Get the kids together – purpose of first meetings is to establish trust
    • (2) Play games – like doing the three hats, they are led to see things from other points of view (first conceptual, then eventually realistic)
    • (3) Get the kids to engage, in ways that get them to talk to each other; literally interviewing each other in order to gain mutual understandings
    • (4) Aggregate – bringing together the group of trusting people who have expressed themselves and have been responded to by other people in the group, they work together in the group to see what they want to do, and that’s when they write their skit, learn to act it out
  • Where are we in this series of steps?
    • We are a class in discourse – we are doing it and studying the structure of it


Charles Fried, “Modern Liberty and the Limits of Government”

  • The first chapter was the first reading assignment for this class – Fried argues for an individual orientation to liberty, a libertarian argument; his project tis to regenerate respectable liberalism; he distinguishes liberty into two kinds – (1) the liberty of the ancients & (2) the liberty of the moderns
    • Ancients: based on the idea that a tribe, a people, a state, should be able to rule itself; that you shouldn’t be ruled by an outsider – this a powerful idea, an idea that sets up the state as a powerful origin for rights and welfare; this is the idea that has built the pyramids, the canals, but it’s also the idea that is in back of Hitler, Pol Pot, and the idea of the state supreme and the individual as a unit to serve the state and, within that environment, if there’s something left for the individual then that’s fine, but that’s it
    • Moderns: Fried’s family fled Hitler and left Hungary; he had the choice to leave and choose escape; the idea is that each individual, each one of us, is in some pre-right, pre-state entitlement, justified in seeking to live the best life according to what we ourselves think – it’s our life, we should live it to the best and what’s best is up to each individual; Fried extends that thesis that we choose our beliefs, we choose our understandings, we choose our biases, we choose boundaries of our identity to a very great extent, and that we should be responsible for our choices
    • Fried has long studied the relationship (his relationship) with the individual and the state; the individual must come first --> he imagines the framers getting together being the libertarian individuals that own their identities, and then together forming a state
    • Nesson sees this philosophy as one that works for the Net; with the Net we aren’t yet in a defined state, we are in a pre-state environment, a network in which individuals can connect in a multiplicity of ways, and each of us steps up to the Net as a person with the liberty of the modern
  • Most of the speakers got the book all wrong
    • E.g. Former Dean Summers; Professors Minow, Michelman, and Fallon; Judges Boudin (1st Cir.) and Cordy (SJC)
    • Pyramids seen not through the point of the view of the Pharaoh, but through the eyes of the builders – and they all missed Fried’s point and personality and his expression in the way he meant it)
  • Richard Parker on Fried:
    • The book is about the spirit of liberty, written by a free spirit
    • That’s what’s exemplary about it, and that what’s drastically missing from the world
    • (1) Temperament – Charles in this book is the "Bad" Charles, as opposed to the "Good" Charles
      • The “good” Charles is well-behaved, is sound, keeps his contributions within balance, is cooperative, is trying to be coherent, and most academic writings are like this, and are thus not very useful
      • Bad Charles is the obnoxious, irritating, rubs you the wrong way
      • Bad Charles is interesting writing, unlike most writing about law
    • (2) Genre – he’s not trying to demonstrate or prove anything, to force anything on us; not preventing data and stats ; not presenting that there is a philosophically “correct” answer; there still remains evidence of the blight that is destroying modern legal writing, but 99% of it is good
      • Open texture; constantly moving, no closure meant, no closure taken
      • Far more open than most people are giving it credit for
    • (3) Style – legal academic writing is a wasteland now, and that’s why it’s read by almost no one; the boredom is just overwhelming, partly because of its pomposity and partly due to its pretense to impersonality
    • It’s personal at every level; referring to his family (parents, wife, children), but also the style is pungent, humorous, and light – at every moment it’s light on its feet; you never feel like you’re dying, like most academic writing
    • This book is very free, and it's Fried's best writing


Comments about Yesterday’s Class


  • Good
    • Small personal conversation, emotions
    • Added a new lawyer of empathy, no longer just at the macro level
    • More like a policy argument, as opposed to a communicative argument
  • Popularity comes from getting your material out there
    • It’s worth putting music up with creative commons license
    • It doesn’t subtract value to let users know how they can use your material and how much you’ll charge for it
  • Independent Artists
    • New communication and media allows artists to get information out there without requiring lots of money
    • Examples: Clap Your Hands Say Yeah, and They Might Be Giants, South Park (internet video)
  • Revenue generation
    • Most artists make money from tours, selling swag, etc.
    • Internet publicity helps sell tickets, ultimately leading to the most revenue generation for the band itself
    • Some artists have begun to sell music directly off of their MySpace site.
  • Music & Graphic
    • Seeing graphic and relationship to the music he was mixing  amazing tool
    • Easy to generate, makes the music more accessible
  • Burden on the Individual
    • Fair Use – someone has to do the work, get the permission
    • Companies tell the authors to get the work done 
      • This obstructs certain creative work from being done
      • Even though lawyers could handle these issues fairly easily
      • Sending cease and desist letters is easy, but responding is a bit more complicated
    • The rule is: When in doubt, take it out
    • Looking for some element of the structure to drastically change the field  shifting the burden such that it would cost the copyright owner something to assert the copyright
    • Smaller artist example
      • Going along for a while, and when he makes enough money, return to the legal stuff  current law tags him as a violater
      • Nesson proposes a net space that calculates how much “going legal” would require  Frivolous idea that you could talk to people and encourage people to move into this repository
      • The license/legality would be the item being sold – it would compete in the market

Class Podcasts

  • Ankur’s Laptop Podcast
    • Teacher’s perspective
      • Didn’t feel the empathy expressed for that side
      • Understood the legal arguments
      • Felt that teacher’s efforts were dismissed with comments re teachers should just make better lesson plans
    • Student’s perspective
      • An argument was missed – you can’t choose whether others are using laptops – it can still be distracting, it may not actually change your experience
    • Laptops and the Internet are two different issues  could solve the problem by removing wireless internet
      • Response: There are very useful things you can do with the internet
      • Potential teaching tool – relating to the world outside, playing with the rhetorical space 
      • Teacher can include, as part of his task, structuring the spaces available to you
    • An “even if” in the argument is very useful
      • Need to provide option for those who don’t initially accept your argument
      • Nesson introduces himself as “Joe Average Teacher”
  • His position
    • Hates technology, writers important things long-hand and finds that helpful, doesn’t like what technology is doing to his world
    • Engaging is better than just lecturing, doesn’t think he can do that with their laptops
  • Response
    • Laptops are helpful for students  but this is just empathy for students, not for the teacher
    • Understand his position, but if he keeps his students technology-free, it will keep them behind others  good empathic position
    • Computer is there to do the memorization for the students, and the thinking can happen from there; can split up classes (lecture, then interactive sessions)  appeals to professor’s control over the class format, seems like “best of both worlds”
    • Asking students to shut laptops will piss them off  you should give them a choice to either not bring it, but be very aware of whether or not you’re engaging. If they’re not engaging, you can ask them to shut laptops.
    • Maybe do things to help students with the dictation aspect – put slides online, etc.
    • Empower the other sides, people are interested in personal growth as well as helping others