Keeping Your Own Counsel

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

     [*In (early) honor of National Library Week (April 7-13), and with special appreciation to the extraordinary librarians of the Pence Law Library of the American University Washington College of Law.*]

     Around 20 years ago, Ray Bradbury (1920-2012) told interviewer Sam Weller:

     “I am a librarian.  I discovered me in the library.  I went to find me in the library.  When I graduated from high school in 1938, I began going to the library three nights a week to educate myself.  I did this every week for ten years, and finally, in 1947, around the time I got married, I figured I was done.  So I graduated from the library when I was twenty-seven.  I discovered that the library is the real school.”

     In the introduction to the fortieth edition of his classic Fahrenheit 451 (1953), Bradbury recalled that he wrote its precursor (the 1950 novella, The Fireman) on the UCLA Library’s coin-operated typewriters:

     “I cannot possibly tell you what an exciting adventure it was. . . . Day after day, attacking that rentable machine, shoving dimes, pounding away like a crazed chimp, rushing upstairs to fetch more dimes, running in and out of the stacks, pulling books, scanning pages, breathing the finest pollen in the world, book dust, with which to develop literary allergies.  Then racing back down blushing with love, having found some quote here, another there to shove or tuck into my burgeoning myth.”

     That novel (which, according to Weller, was “the only book of his own that Ray considered science fiction”; and which for many reasons could also be called prescient fiction) featured a near-future wartime (against an unnamed adversary) United States whose residents are continually distracted and narcotized by “TV walls” in their homes, and by “seashell” devices babbling in their ears. 

     Now that all houses have been constructed to be fireproof, the mission of firemen is to destroy privately- (and secretly-)held books. As a captain explains to fireman Montag, their job completes the widespread movement that rendered popular content inoffensive to any demographic group: “[W]e’re the Happiness Boys. . . . We stand against the small tide of those who want to make everyone unhappy with conflicting theory and thought.” 

     (Not that even a higher tide would necessarily reach the shallows: an academic later reminds Montag that “the firemen are rarely necessary.  The public itself stopped reading of its own accord. . . So few want to be rebels any more.”)

     However, Montag ultimately concludes that “Somewhere the saving and putting away had to begin again and someone had to do the saving and keeping, one way or another, in books, in records, in people’s heads, any way at all so long as [the content] was safe. . . . The world was full of burning of all types and sizes.  Now the guild of the asbestos-weaver must open shop very soon.”

     Of his inspiration for this book, Bradbury told Weller that “I remember seeing newsreel footage of the Nazis burning books in the streets.” 

     According to a collection of his other interviews, Bradbury said (in 1991) that his work had been a reaction to “book burnings in Russian and China over a period of time; and Hitler’s book-burning in Germany; and the history of the burning of libraries at Alexandria—two by accident, I believe, and one on purpose.  Thousands of volumes lost.  And since I’m a library person and I’ve grown up in libraries and been educated by them and never made it to college, the library, to me, is central to my life.” 

     Two years later, he added that when he wrote the novel, “I was angry at (Senator Joseph) McCarthy and the people before him. . . I was angry about the blacklisting and the Hollywood 10.  I was a $100-a-week screenwriter, but I wasn’t scared—I was angry.”  (In a 1953 essay for The Nation magazine, “Day After Tomorrow: Why Science Fiction?”, Bradbury wrote, “When the wind is right, a faint odor of kerosene is exhaled from Senator McCarthy.”)

    Bradbury’s support for public libraries extended beyond fundraising (in a 2002 interview, he said, “I’ve lectured at more than ninety-five libraries in Southern California in the last five years to raise funds for them. They’re the center of our lives”), to drawing up designs for them. 

    Weller’s The Bradbury Chronicles: The Life of Ray Bradbury (2005) notes that his vision included:

     “a children’s library in a subbasement accessible by a slide (as well as a more practical elevator for those unwilling or unable to slide in).  Masks would hang on the sides of the tall stacks of books.  When touched, they would light up and speak the subjects in that aisle: ‘Aisle 7: Dinosaurs to Egypt,’ for example.  Ray believed that the modern library had lost its mystery, forgotten its imagination.  New libraries were too cold, too bright, too impersonal.  He maintained that a library should have pools of good light for reading, but they should also have shadowy areas in which the mind and body could wander and get lost.”

     Indeed, his “dark fantasy” novel, Something Wicked This Way Comes (1962) includes a scene both shadowy and sinister in a small Illinois town’s “library, . . . at seven-fifteen, seven-thirty, seven forty-five of a Sunday night, cloistered with great drifts of silence and transfixed avalanche of books poised like the cuneiform stones of eternity on shelves, so high the unseen snows of time fell all year there. . .

     “All the books, he thought, perched there, hundreds of years old, peeling skin, leaning on each other like ten million vultures.  Walk along the dark stacks and all the gold titles shine their eyes at you. . . .”

     Bradbury’s own papers and books are now entrusted to The Center for Ray Bradbury Studies at IUPUI (Indiana University-Purdue University Indianapolis), whose webpage indicates that the collection includes “printed comic strips from his youth.”

     In a valuable example to anyone planning, starting, or building her own library, Bradbury told Weller that:

     “When I was nine, Buck Rogers came into the world. October 1929, at the start of the Depression.  And I took a look at one single panel of Buck Rogers and I was hooked on the future.  I began to collect the Buck Rogers panels.  And all the kids in the fifth grade made fun of me.  There was no future.  We weren’t going to build rocketships.  We weren’t going to the moon.  We weren’t going to Mars.  How stupid for me to do what I did.

     “Well, I listened to them and I tore up my Buck Rogers comic strips.  It’s the worst thing I ever did.  Three days later, I started to cry. . . . I went back to collecting Buck Rogers, and I’ve never listened to one damn fool after that.  Best lesson I ever had. . . .

     “Since that experience, I’ve collected comic strips all my life.”

     Of course, the ultimate personal library is, as detailed in Fahrenheit 451, one’s internalization of information, not necessarily by literal memorization (resulting in “bums on the outside, libraries inside”) but by integrating it into one’s own perspectives and philosophies.

      And the ultimate public library is an inclusive and welcoming community of those who have done the same (“We are all bits and pieces of history and literature and international law”).   

     In a similar manner, Robert S. Pirsig’s incomparable intellectual autobiography, Zen and the Art of Motorcyle Maintenance: An Inquiry Into Values (1974) asserts that:

     “The real University is a state of mind.  It is that great heritage of rational thought that has been brought down to us through the centuries and which does not exist at any specific location.  It’s a state of mind which is regenerated throughout the centuries by a body of people who traditionally carry the title of professor, but even that title is not part of the real University.  The real University is nothing less than the continuing body of reason itself.”

     By that standard, Ray Bradbury, though he “never made it to college,” would certainly qualify as an esteemed member of the real University’s faculty.

     ● I have recommended that entering law students “visit the law library and introduce yourself to the reference librarians, who are among any law school’s unsung heroes”; and that, early in their time on campus, students inquire about (among other topics) the availability of interlibrary loans; online access through the library to national and local newspapers; and “at least the basics of how to use the library’s online catalog to find books and articles.”

     Another suggestion: “browse in the library’s ‘stacks,’ particularly those corresponding to the areas of law you’re interested in.  Just as in a good used bookstore, you might be surprised at what you discover, and one book or topic could even change your life [as Pirsig’s book did for me].”  (See also here.)

   In the pathways both of libraries and of life, I agree (as I believe Ray Bradbury himself would have) with the observation of another master fantasist:

     “Not all those who wander are lost.”

     [To quote the main character of his Dandelion Wine (1957), my own All-Time Favorite Book: Mr. Bradbury, “wherever you are, you’re thanked, you’re paid back, I passed it on, I sure did, I think I passed it on. . . .”]

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

     Students of business law are probably most familiar with Michael Ovitz as a fourteen-month president of The Walt Disney Company whose departure in late 1996—with a severance package of approximately $130 million—sparked nine years of closely-watched and precedent-setting litigation (1997-2006).

     Shareholders ultimately failed to convince Delaware’s Court of Chancery, or the Delaware Supreme Court, that Disney’s directors had breached their fiduciary duties of care and loyalty either by approving the complicated configuration of Ovitz’s employment agreement, or by deciding not to terminate him for cause (which contractually would have denied him the severance payment).

     Those decisions, included in many corporate law casebooks, feature discussions of a wide array of issues, such as a board’s “executive sessions”; its preparation of meeting minutes; and its decision to move for the dismissal of a shareholder derivative lawsuit. 

     Then-CEO Michael Eisner, successor CEO Robert Iger, and journalist James B. Stewart have suggested that Ovitz was more interested in continuing to construct deals than in overseeing Disney’s ongoing operations.  

    Late in his own book, Ovitz insists that “Michael knew exactly what he was getting when he got me: a deal maker.”

    Beyond its chapter devoted to the Disney debacle, and even allowing for an inevitable element of authorial bias, Who Is Michael Ovitz?: A Memoir (2018) should be of value to law and pre-law students, and to lawyers.

     First, although the American Law Institute has produced the influential codification, the Restatement (3d) of the Law of Agency (2006) (which some statutory supplements reproduce in part), Ovitz explores, in an often eye-opening way, the specifics of the relationships, and responsibilities, of (talent) agents to their principals, which in his case included many world-famous stars and directors. 

     Second, though Ovitz had for many years a penchant for privacy, the book provides numerous accounts of his confrontations, negotiations, and placations, occasionally with “troubled but lovable” colleagues or clients.  (Robin Williams would “often take refuge in the voice of some character or other.  I said, ‘Talk to me as you, Robin.’”)

     Third, the memoir illustrates the issues involved in creating, managing, growing, and repositioning a business.  Twenty years before joining Disney, the hard-driving Ovitz (“I tried to avoid coming across [to potential clients] as a nudge, while making myself ubiquitous and inexorable”) co-founded the talent management group, Creative Artists Agency (CAA), whose extraordinary rise is also recounted (partially by Ovitz himself) in James Andrew Miller’s richly detailed oral history, Powerhouse (2016). 

     In his own book, Ovitz characterizes CAA’s culture as “American team sports boosterism mixed with Spartan military tactics mixed with Asian philosophy, all overlaid by the communitarian spirit of the Three Musketeers.”  (But, on the same page: “The lack of hierarchy was a myth, of course, a management tool.  Nothing happened that [two other partners] and I didn’t want to have happen.”)

     Fourth, Ovitz chronicles his and his clients’ ceaseless quest not just for professional power but (more dauntingly) for personal (and, often, popular) approval and permanent loyalty.

     Among the many observations, clarifications, and (re)definitions to be found in Who Is Michael Ovitz?:

     ● On the necessity of delegation.  

     “Agencies are built on the lie that your agent will give you his total attention—but there simply isn’t anywhere near enough time in the day for that.” 

     In practice, CAA’s “senior people passed down their top artists as soon as younger agents could handle them, by slow-rolling the return calls.”

    ● On the power of networking.

     (“I was a connector; it’s what I did all day. . . ”)

     A UCLA alumnus, Ovitz “worked hard” to support the university’s medical center, “in part because it proved extremely useful for CAA to be able to get our clients or potential clients the best medical care with one call—but even more because I believed in its mission and I liked the idea of helping people, saving people. . . .”

     “Our rote functions, called on every half hour, were getting clients a copy of a film, theater tickets, or reservations at a hot restaurant.  The next level of ask, which often rose to my desk, was someone who needed to get their children into a school, or needed an appointment with the best knee guy or a high-powered divorce lawyer.” 

     ● On being well-read. 

     “Be able to talk knowledgeably about what your clients love.  This will encompass pretty much everything.  I insisted that our agents have a reading list: one national newspaper, one international newsmagazine, and one special-interest magazine, such as Golf Digest.  I had two hundred magazine subscriptions, and I’d skim the magazines as I was on the phone, everything from Redbook to Road & Track.”

     ● On serving the client. 

     “Sometimes, representing a client’s best interests means not getting him what he thinks he wants.  The judgment part of the job requires knowing when to redirect a client’s desires.”

     ● On being served, with the client. 

     As an agent, “I was a chameleon, becoming whomever I needed to be to make everyone comfortable and close the deal.”  (However, “I always told our agents, ‘Make our clients think they’re your friends—but remember that they’re not.’”)

     Thus, around 1980, at New York’s Grand Central Oyster Bar, “if Paul Newman loved clams, then I loved clams.  In full chameleon mode, I mimed tossing some back. . . when in fact I was dumping the whole mess underneath the table.  An hour later, after a good chat, . . . I raced to the nearest deli and got myself a nice, safe tuna salad sandwich.”

     ● On sincerity, and on reality. 

“There’s nothing sincere in entertainment: every call has at least one agenda, and usually two or three. . .”

     “A pillar of CAA’s philosophy was that we told our clients the truth.  That didn’t mean we told everyone else the truth.  I often had to offer more than I could deliver in order to be able to eventually deliver what I had offered.  If the truth was bad for us, we had to change the reality, and then deliver it as what we’d said it was all along.  In the meantime, well, you’d get creative. . . .

     “I never viewed this kind of misdirection as lying.  Lying, to me, is a point-blank misstatement with no purpose in mind.  I viewed what we did as positioning, molding, manipulating: taking fact sets and making them work for the result we wanted.”

     ● On (Jedi Mind) Tricks (to Ovitz, “tactics for achieving a preconceived strategy”).

“If someone on the other side of the table very confidently asserted a number that was confidential or that was plausibly in dispute. . . I would instantly say ‘It’s higher’ or “It’s lower,’ depending on which served our interests.  That assertion would throw the other guy off balance, and suggest that I knew everything, when in truth I only knew some things.”

     In Powerhouse, superagent Ari Emanuel remembers that Ovitz would “come into a meeting and say, ‘In the next ninety days there’s going to be a huge event,’ and everyone sat there in amazement that he knew about it before anyone else.  But it’s Hollywood.  S—t happens.  Of course there’s going to be a huge event.  And then sure enough, something would happen and he would say, ‘See, this is what I was talking about but couldn’t tell you.’  It was unbelievable.  Pure genius.”       

     Yet Ovitz points out that, by negotiating the employment contracts not just for television executives but also for the heads of movie studios, “we represented so many executives that we could see the entire chessboard [of projects and hierarchies]. . . I would often tell our agents to watch a space: ‘In thirty to sixty days, something big will happen at Paramount.’”

     ● On involving counsel. 

     Attorney Barry Hirsch told the author of Powerhouse:

     “To Michael’s credit, he was the first agent, at least that I was aware of, that embraced lawyers insofar as being part of the original dealmaking process. . . . Michael realized that by getting the lawyer involved in the beginning, he could accomplish several things: One, he would nourish the relationship with the lawyer.  Two, he realized that a lawyer might make the deal even better, which would then increase his commission.  Three, having the lawyer involved protected him against the lawyer telling the client, ‘Why did Michael do this when I could have done better than that?’  And finally, if the lawyer was involved early on, he wouldn’t have to waste his time being involved in secondary negotiable points as well as boilerplate points, which meant he could jump off and move on to do another deal.”

     Ovitz: “If a lawyer did a favor for us, we’d try to do a bigger one for them.  In a business of favors, the chits added up.”  He catalyzed the formation in 1980 of “Armstrong, Hendler & Hirsch, a hub of motion picture talent.  CAA would represent fifty of their clients within a year.”

     ● On being appreciated. 

At the end of his first chapter—which reviews CAA’s representation of David Letterman in the early 1990s, when host Johnny Carson announced plans to leave NBC’s The Tonight Show—Ovitz recalls receiving a telephone call during the process that would result in CBS’s launching the long-running Late Night with David Letterman.  Letterman “went on in [a] sweet, generous vein for three or four minutes, a long time for such a reserved guy. . .

     “I was stunned. . . .  In my twenty-five years as an agent, through thousands of transactions, I had never heard so much heartfelt sincerity and gratitude.  This—this—was what I had always secretly hoped the business would be like.

     “It was the last time it ever was.”

     ● On the company one keeps. 

     Of the iconic polar bear commercials that CAA developed for Coca-Cola (which “I should have insisted on a royalty for”), Ovitz notes, “In real life, these animals are stone-cold killers.  But curled up on a snow field, taking in the northern lights, they seemed positively lovable.”

     Although his book details many instances of manipulation, hardball negotiation, and breached loyalties, Ovitz describes it, in a 2019 interview with the Harvard Business Review, as “a story about lessons learned: things done right and things done terribly wrong.  Each of [several professional] relationships went wrong for a different reason.  One stayed wrong. One ended because the individual passed away.  And one came back to life, which is pleasing.”

     He also observes, in what might serve as a one-line summary of much of his business philosophy, his longtime practice of aikido, and his book:

     “When we had leverage, we used it.”

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

     Five centuries after its publication, a key concept of Baldasar Castiglione’s The Book of the Courtier (1528) remains relevant to law students and lawyers.

     Castiglione (1478-1529), an Italian soldier and diplomat (and, ultimately, papal nuncio to Spain), offers readers a series of conversations among members of the “Court of Urbino”: more technically, of the Court of the Duke (Guidobaldo da Montefeltro) of central Italy’s city of Urbino.

     Participants discuss “the form of courtiership most appropriate for a gentleman living at the Courts of princes, by which he will have the knowledge and the ability to serve them in any reasonable thing, winning their favor and the praise of others.” 

     One of the speakers, Ottaviano Fregoso, observes that highest duty of a courtier is “to encourage and help his prince to be virtuous and to deter him from evil. . .  [A] man who strives to ensure that his prince is not deceived by anyone, does not listen to flatterers or slanderers or liars, and distinguishes between good and evil. . . aims at the best end of all.”

     Count Lodovico Canossa announces that he “would praise any man who. . . makes certain, whether he is writing or speaking, that he employs words in current usage in Tuscany or elsewhere in Italy which possess a certain grace when they are pronounced.”  He also recommends that a courtier “not hesitate to coin new words altogether.”

     Gracian himself notably introduces the term, sprezzatura, in the Count’s counsel that courtiers “practice in all things a certain nonchalance which conceals all artistry and makes whatever one says or does seem uncontrived and effortless. . . . [W]e can truthfully say that true art is what does not seem to be art; and the most important thing is to conceal it, because if it is revealed this discredits a man completely and ruins his reputation. . .  [T]o reveal intense application and skill robs everything of grace.”

     The Court credits his current companions with “that graceful and nonchalant spontaneity. . . because of which they seem to be paying little, if any, attention to the way they speak or laugh or hold themselves, so that those who are watching them imagine that they couldn’t and wouldn’t ever know how to make a mistake.”

     Federico Fregoso (Ottaviano’s brother) proposes an exception: because mastering the “refined and ingenious recreation” of chess would divert one’s attentions from the pursuit of “some noble science or. . . something or other of importance,” “we reach what is a very rare conclusion: that mediocrity [in chess] is more to be praised than excellence.”

     Gaspare Pallavicino objects that “many Spaniards” are known for expertise at chess and other games, but “yet do not study them too exhaustively or neglect other things.”

     Which Federico promptly dismisses: “You may take it for granted. . . that they put in a great deal of study, but they conceal it.”

     Four hundred years later, a young J. Robert Oppenheimer (1904-1967), as another prominent physicist would recall, “worked very hard that spring [of 1929, in Zurich] but had a gift of concealing his assiduous application with an air of easy nonchalance. . . He spoke little of [his complex calculations and conjectures] and seemed to be much more interested in literature, especially the Hindu classics and the more esoteric Western writers.”

     Such dissimulation and misdirection would have been appreciated as well by Baltasar Gracian (1601-1658), the Spanish Jesuit teacher and philosopher whose much more practical and specific (if sometimes cynical) The Pocket Oracle and Art of Prudence (1647) better repays the attention of modern professionals. 

     Of Gracian’s three hundred numbered paragraphs, Paragraph 127 advises:

     “Nonchalant grace in everything.  It gives life to your talents, spirit to your speech, soul to your deeds, lustre to splendour itself.  Other accomplishments embellish nature, but graceful nonchalance embellishes these accomplishments themselves.  It’s lauded even in our reasoning.  It mostly comes naturally, and owes little to study, for it’s superior to all rules.  It surpasses ease and outstrips elegance; it suggests naturalness and adds perfection.  Without it, all beauty is lifeless, and all grace, a disgrace.  It transcends courage, discretion, prudence and majesty itself.  It’s an expedient shortcut in all transactions, and an elegant way out of any tight spot.”

     Gracian might well have intended his “nonchalant grace” not to actually be (even “mostly”) natural, but (as with Castiglione’s) only to seem so. 

     In fact, this author repeatedly recommends reticence in revealing one’s capabilities, vulnerabilities, intentions, inclinations, and insights. 

     For example:

     ● “It’s neither useful nor pleasurable to show all your cards. . . Cautious silence is the refuge of good sense.” (Paragraph 3)

     ● “The circumspect man. . . should prevent the true depths of his knowledge or his courage from being plumbed.  He should allow himself to be known, but not fully understood.”  (Paragraph 94)

     ● “Don’t let your desires be known so that they won’t be anticipated, either by opposition or flattery.” (Paragraph 98)

     ● “Always have something in reserve. . . . Even where knowledge is concerned, something should be kept back, for this doubles your perfection.  There must always be something you can draw on in a tight spot.”  (Paragraph 170)

     ● “Never let something be seen half done. . . . Every great master should take care that their works are not seen in embryonic form; learn from nature not to show them until they are fit to appear.”  (Paragraph 231)

     ● “Don’t express an idea too plainly.  Most people don’t value what they understand, and what they can’t grasp, they venerate.  To be valued, things must cost us: something will be celebrated when it’s not understood.”  (Paragraph 253)

     To deflect, or redirect, potential criticism, one could introduce a deliberate error into an otherwise excellent work:

     ● “Allow yourself some minor slip. . . . Envy. . . accuses something truly perfect of sinning in not sinning and condemns it completely for being completely perfect. . . . So . . . affect some lapse or ingenuity or courage, but never of good sense, to quiet ill will so its poison isn’t spat out.  This is like distracting the bull of envy with a cape to safeguard your own immortality.” (Paragraph 83)

     Where Castligione’s Ottaviano Fregoso championed a courtier’s “being quick-witted and charming, prudent and scholarly” in effectively influencing a prince, Gracian agrees that, “It’s a great thing to earn people’s admiration, but more so their affection.  This is partly a matter of luck, but mostly of effort. . . . “ (Paragraph 40).

     However, Gracian’s book might serve not just as a guide to protecting oneself and one’s aspirations, but also as a manual both for manipulating, and for avoiding being manipulated by, others.  He warns, “A circumspect person should realize that nobody seeks you for your own sake; what they seek in and through you are their own interests.”  (Paragraph 252)

     The simplest, most direct, and most popular modern guide to increasing one’s general popularity is certainly Dale Carnegie’s (1888-1955) perennial best-seller, How to Win Friends and Influence People (1936; revised edition 1981).

    Carnegie identifies and illustrates “Fundamental Techniques in Handling People,” “Six Ways to Make People Like You,” and principles to “Win People to Your Way of Thinking” and to “Be a Leader.”

     Many of these practices involve expressing concern for and appreciation of another person’s feelings, perspectives, and goals.  Carnegie’s seemingly self-subordinating suggestions feature the adverbs, “genuinely,” “sincerely,” and “honestly” (e.g., “Make the other person feel important—and do it sincerely”; “Try honestly to see things from the other person’s point of view”); and the author insists that “The principles taught in this book will work only when they come from the heart.”  Yet they have been criticized as enabling, and encouraging, exploitation.

     As simple and effective as his maxims and motivational messages seem, Carnegie emphasizes that “to get a real, lasting benefit out of this book. . . you ought to spend a few hours reviewing it every month.  Keep it on your desk in front of you every day.  Glance through it often. . . . Remember that the use of these principles can be made habitual only by a constant and vigorous campaign of review and application.  There is no other way.”

     Thus, though a Renaissance man only (if at all) figuratively, Carnegie joins Castiglione and Gracian in invoking the discipline and effort behind apparently-effortless goodness, graciousness, and poise.

     Often—and perhaps erroneously—the aphorism, “Ars est celare artem” (“It is [true] art to conceal art”) is attributed to the Roman poet Ovid.

     However, it was certainly (fictional) forensic laboratory wizard Abby Sciuto (Pauley Perrette) who, in a 2013 episode of CBS’ NCIS, reminded a crime-busting colleague:

     “Just because I make it look easy, doesn’t mean it is!”

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

     In John Grisham’s best-selling novel, The Firm (1991), which became a Tom Cruise movie (1993), twenty-five-year-old associate Mitch McDeere discovers that the true purpose of his employer, an extremely well-paying Memphis law firm, is to help mobsters launder money.

     Behind the façade of a “family” atmosphere (a senior partner initially assures Mitch, “We’re a close-knit fraternity.  We’re small and we take care of each other”), fraudulent billing—and not just of the criminal clients—is endemic.

     McDeere’s mentor soon advises him that “[h]e could bill twelve hours each day, every day, regardless of how many hours he actually worked.” 

     Later, that partner (in Gene Hackman’s portrayal, genially louche but deeply troubled) orders, “Every time you look at that file, charge it for an hour. . . . In fact, if the name [of the matter] crosses your mind while you’re driving to work, stick it for an hour.  The sky’s the limit on this one.”

     One of their assignments, he notes, involves “incorporat[ing] three companies under Caymanian jurisdiction.  It’s fairly easy legal work and could be done in Memphis.  But the clients think we must come [to the islands] to do it.  Remember, we’re dealing with people who invest millions.  A few thousand in legal fees doesn’t bother them.”

     A more senior associate explains:

     “There’s always the pressure to bill more and more.  All we have to sell is our time. . . Before they’ll consider you for partner, you’ve got to hit sixty hours a week consistently over a period of years.  No active partner bills less than sixty a week. . . .

     “Most good lawyers can work eight or nine hours a day and bill twelve.  It’s called padding.  It’s not exactly fair to the client, but it’s something everybody does.  The great firms have been built by padding files.  It’s the name of the game. . . .

     “Believe me, Mitch, after you’ve been with us a year you’ll know how to work ten hours and bill twice that much.  It’s sort of a sixth sense lawyers acquire.” 

     By contrast, one analysis of large-firm billing pressures, and of a bankruptcy fraud that resulted in the 1998 imprisonment of a former partner at a major Wall Street law practice, highlights “the importance of an ‘ethical infrastructure’ within an organization: formal policies and procedures, as well as cultural norms, that promote compliance with ethical obligations in the face of competitive pressures.”

     Grisham’s recent sequel, The Exchange: After the Firm (2023), set fifteen years later (in 2005), finds McDeere at the century-old Scully & Pershing, which has “over two thousand” lawyers distributed across “thirty-one cities on five continents. . . .”

     (An “Author’s Note” discloses that “since I’ve always tried to avoid big [law] firms, I have no idea how they function,” and identifies big-firm practitioners whom Grisham consulted in that regard.)

     “In his four years as a partner, [Mitch] had established a reputation as a sort of legal SWAT team leader sent in by [the firm] to rescue clients in distress.”  (McDeere’s wife, Abby, is now “a senior editor at Epicurean, a small but busy press” that specializes in cookbooks.)

     Reflecting the shifting concerns of—and about–lawyers since 1991, in The Exchange the pitfall of (now legitimate) maximum billing is the lawyer’s focus on work to the exclusion of almost everything else. 

     One of the firm’s associates “had never been close” to her father, “primarily because of his ambition to build the greatest law firm in Italy.  His drive kept him at the office or the road far too often.”

     Scully & Pershing requires its lawyers to record 2,500 hours of work each year: “Every lawyer was required to donate at least 10 percent of his or her time to various causes” although about half believed that “[t]hose 250 hours a year could be better spent making money” and improving one’s chances of making partner.

     (Mitch, who had been “driven by greed” to work for the Memphis firm, is now “spending four hours a week working with a homeless shelter in the Bronx and representing clients who were fighting evictions.”)

     Late in the book, an ambitious junior associate observes, “All they care about is billing fifty hours a week.”  Although Mitch had instructed the same associate, “If you want to remain on this case you cannot work more than sixteen hours a day on it,” he now corrects him: “We prefer sixty. . . .”

     At the firm’s headquarters, “From sixty floors up the views of the harbor were even more impressive, though Mitch was far too focused to venture a glimpse.  Those who worked in Manhattan’s tallest buildings were adept at ignoring the views while visitors gawked.”

     That tunnel vision also excludes the interiors of the lavishly-appointed offices.  Visiting from Memphis, a former colleague tells Mitch: “I sat on a bench [in the lobby] and watched the people come and go, the frantic bustling of young, well-dressed professionals, half of them on their phones, frowning, talking importantly. . .

     “No one looks up.  No one takes a moment to appreciate the surroundings, the art, the architecture.  ‘Rat race’ is the perfect description of it.”

     Mitch himself “had reached the point of not slowing down long enough to appreciate the serious money on the walls and floors [of the firm’s various offices].  After a while, they were beginning to blur together.”

     Even when he travels to Libya on business, “His corner room was on the fifth floor with a splendid view of the Mediterranean.  To the northeast he looked down on the ancient walls of the Old City, but he didn’t gaze for long.”

     One agent of the firm describes Libya, where Mitch becomes involved in an attempt to ransom an associate held hostage, as “a murky world. . .  with uncertain loyalties and fragile relationships.” 

     Before the book ends, Mitch will consider whether that warning applies as well to the upper echelons of his firm, and whether to adjust his own priorities.

     And the reader will learn whether The Exchange actually provides both a literal (plot point) and figurative (enjoyment) payoff.

     Also of interest in The Exchange is the involvement of “[t]he Reedmore firm, from London, Libya’s favorite [law] firm, a notorious bunch of arrogant boys who seemed to relish their reputations as world-class a——s.”

     Some might recall from that reference a notable element of Lincoln Caplan’s revealing profile, Skadden: Power, Money, and the Rise of a Legal Empire (1993), which focused on the firm (including its process of selecting new partners) in an effort “to explore the transformation since the Second World War of large American law firms.”

     Thirty years ago, acknowledging a rising profession-wide concern about incivility, Caplan quoted “a partner at a well-known firm that believes it offers a good combination of intensity, detachment, and professionalism”: “’In the American legal system, . . . being a complete a—–e for your client has a high payoff.’”

     In fact, one Skadden partner, as a panelist at an American Bar Association event, stated that, “’We pride ourselves on being a——s.  It’s part of the firm culture.’  (Later, she allowed, the A-word she should have used to drive home the point was ‘animals.’)”

     Caplan reports that in 1991, a firm event featured Skadden Fellows, junior lawyers whom the firm had sponsored for two-year terms with pro bono organizations.

     When asked what he would do differently if he were to begin again, one fellow, who had worked for the Legal Aid Society of New York City, responded:

    “I would be less polite.  I’m basically a very timid person.  For better or for worse, and I think for worse, we’re in sort of a macho profession, and you have to make your adversaries respect you.  What I’ve learned is that manners in the face of stupidity and cowardice are not a virtue.”

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

      In the over-the-top climactic scene of The Devil’s Advocate (1993), law firm leader John Milton (Al Pacino), revealing himself to be the Devil, explains to junior lawyer Kevin Lomax (Keanu Reeves), “[T]he law, my boy, puts us into everything: it’s the ultimate backstage pass!”

     One attorney for whom that became literally true is Henry Bushkin, whose deeply disillusioning memoir, Johnny Carson (2013), recounts his service(s) from 1970 to 1988 to the legendary host (1962-1992) of NBC’s The Tonight Show.  

     Law (and pre-law) students, and lawyers, might well find professional wisdom and warnings amidst the book’s numerous anecdotes of Carson’s charm, charity, chintziness, cheating (at tennis, and in marriage) and churlishness.    

    ● The lawyer as factotum. 

      In the book’s second paragraph, Bushkin recalls that:

     “I was [Carson’s] attorney, although that term hardly expresses all I did; more properly, I was his lawyer, counselor, partner, employee, business advisor, earpiece, mouthpiece, enforcer, running buddy, tennis pal, drinking and dining companion, and foil.  A good portion of my job entailed cleaning up his messes—business messes, personal messes, family messes.” 

     (His first assignment “clearly bordered on ethical misconduct or possibly criminal behavior. . . . But I wanted to become his lawyer, not his conscience.  And maybe the whole thing wasn’t so illegal.”)

     Later, he characterizes himself as Carson’s “attorney, agent, personal manager, business manager, public relations agent, messenger, enforcer, tennis partner, and drinking and dining companion.  If Johnny needed something done, I was the one who did it.”  (However, he was told, “[T]he one thing I don’t need is any advice on how to run my show.  Stay away from that.”)

     In Bushkin’s job interview, Carson asked him “a question that surprised me completely.  ‘You play tennis, right? . . . If you work for me, I’ll expect you to join me occasionally.”  (“[I]n fact, I frequently threw games” to him.)

   ● Loyalty above all

     Bushkin recalls that “I met Johnny at just about the moment he had begun to suspect that the icons who were representing him hadn’t really done a very good job protecting his welfare.” 

     He came to concur that Carson “was badly underserved,” and promptly extricated his client from a number of compromising commitments. 

     After he explained the disadvantages of one such arrangement, a chagrined Carson instructed him, “This should be a lesson to you, Henry.  Don’t ever let me sign something like that again.”  (Bushkin’s account details the increasingly powerful negotiating posture that Carson developed against NBC.)

     In 1972, when The Tonight Show moved its studio taping from New York to Los Angeles, Carson proposed that Bushkin move to California, and even offered to assist him in getting other clients.  “’I don’t expect to be somebody’s only client,’ he said, ‘but I need to know that I’m number one.’”

     ● Unheeded

     In 1972, against the strong recommendation of his lawyer—and, soon afterwards, also of his accountant—Carson flatly refused to execute a prenuptial agreement with the woman who would become his third wife.  (“’This is no way to start a marriage,’ he said.  ‘Tear the g—–n thing up.’”)

    To protect himself, Bushkin “wrote [Carson] a letter that required his acknowledgment, which stated that against all advice to the contrary, he was going forward with the marriage without the prenuptial.  He countersigned the letter.”

     ● Expertise, a hard nose, and a lesson learned

     A decade later, when Carson’s third marriage broke up, Bushkin (who had handled Carson’s second divorce) believed that “now the stakes were far too high and the situation far too complicated for a man of Johnny’s wealth and stature to hire anyone other than an expert.”

     However, Carson and Bushkin soon replaced their “very gentlemanly” and “low-key” initial choice, who was “simply too nice to be in this fight,” with a lawyer “who could be counted on to be as hard-nosed as he had to be” in dealing with the “bully” representing Carson’s wife.

     Ultimately, Carson, concluding that “I’ve got to clear my head,” settled for “tens of millions more” dollars than he would have paid under a prenuptial agreement—and, when his next serious relationship began, told Bushkin: “Look, I’m not going through this b——t again.  If I ever get married again, put a .38 to my head, and if we don’t have a prenup, pull the damn trigger.”

     ● Professional distance from the client and (maybe) his lifestyle

     In 1978, Bushkin was astonished when Carson identified him as “probably my best friend” in a The New Yorker profile.

     “We were certainly friends, but. . . never did I think of him as my best friend.  I was always working when I was around Johnny, thinking of what he needed.”

     When Carson performed two shows a night in Las Vegas, Bushkin was expected to “stay in the dressing room with Johnny during [the interval between shows] and keep him occupied. . . . I was like all those guys on Entourage, except there was only me.”

     Also in Las Vegas, “Johnny encouraged me to pick a play companion out of the chorus line.  And it was clear he wasn’t going to be happy until I did.  He wanted a partner in sin, and soon enough, I acquiesced.”

     Thus, in a classic example of litotes (and with a disarmingly semi-passive voice), Bushkin states that “Many of the heady, heedless pleasures that come to kings as a matter of course also fell in my lap.  I had enjoyed many adventures in Vegas and on the road that did nothing to reinforce marital bonds.”

     Such diversions only aggravated the strain that his constant attention to, and attendance on, Carson caused in Bushkin’s marriage.  While the attorney-client relationship had “enriched and enlivened my life beyond all imagination, . . . it had also been one of the factors that led to my separation and divorce.”

     In 1980, as he and Carson were preparing to form Carson Productions, Bushkin’s “last hopes for [my] marriage disappeared,” preventing his wife from claiming (under California’s community property law) half of his interest in the new company. (Carson, then advised to similarly assess the status of his (third) marriage, simply responded, “I can’t stand the thought of a divorce.”)

     ● Guilt (or gilt) by association

     In the late 1970s, Carson withdrew from a group bid to acquire Las Vegas’ Aladdin Hotel, after being warned by a law enforcement source that one of the other people involved was connected to organized crime.

    But if Carson (who “was scrupulous to never share a political view with his viewers—‘Why lose fifty percent of my audience?’”) was properly worried about staining his own reputation, others would seek to associate themselves with him. 

     A few years later, The Coca-Cola Company, which had proposed that it acquire Carson Productions, invited Carson to consider joining their board of directors.  He declined, telling Bushkin: “[Y]ou know me better than that. . . . There’s nothing I would hate more.  Make sure they know I’m flattered, but make some excuse.”

     (During his third divorce, as he was asked detailed questions about the finances of his companies, Carson reconsidered: “Maybe you were right.  We should have sold the g—–n thing to Coke when we had the chance.”)

     In Carson’s other business activities, “The possibility of seeing or meeting Carson was often key to enlisting other investors or making the venture work.”

     And, according to Bushkin, “the always candid” comedian Joan Rivers (whom Carson would shut out completely after she surprised him in 1986 by launching a competing talk show on the Fox network) told Carson’s third wife, as that marriage dissolved, “My relationship with Johnny is far too important to risk it on a [continued] friendship with his ex.”

     ● Misplaced confidence(s)

     According to Bushkin, his relationship with Carson ended abruptly (and with an “awkward handshake” agreement on a severance plan, since “Johnny and I never had a written contract”) shortly after Carson discovered that Bushkin and master comedy-writer Ed. Weinberger (featured in the chapter, “Days of Weinberger and Neuroses”) were quietly considering an offer by the Tribune Company to buy Carson Productions and to retain them as participants.

     Noting that he’d been betrayed to Carson by a business associate in whom he’d confided, Bushkin declares, “[I]f twenty years in law practice had taught me anything, it’s that nobody keeps a secret.”

     Which is not necessarily correct: if someone in his professional circle had successfully held some information closely, Bushkin might never have learned of either the secrecy or the secret itself.

     ● Considerations of confidentiality and privilege

     Almost immediately after entering professional orbit around a client both saturnine and mercurial, Bushkin was privy to an inebriated, maudlin Carson’s self- and family criticism, some of which Johnny Carson quotes.

     Several hours later, after a sobered-up client asked him, “What the hell did I say?” and warned, “You must never, ever repeat a word from last night,” Bushkin reassured Carson (who died at age seventy-nine, in 2005) that “everything that is said between us is confidential and covered by attorney-client privilege.  I would lose my license if during your lifetime I repeated it to a soul.”

    Bushkin’s book might have been of even more relevance to lawyers had it expanded and expounded that summary of secrecy’s scope and span.

     Relevant sections of the Model Rules of Professional Conduct (adopted by the American Bar Association in 1983, around thirteen years after the representation here began) include Model Rule 1.6, its Comment 20, and Model Rule 1.9(c)(1) and (c)(2).

    California Supreme Court precedent involving the estate of Bing Crosby has construed the state’s Evidence Code to the effect that “the attorney-client privilege of a natural person transfers to the personal representative [of the estate] after the client’s death, and the privilege thereafter terminates when there is no personal representative to claim it” (that is, once the estate is “finally distributed” and [the] personal representative [is] discharged”). HLC Properties, Ltd. v Superior Court, 35 Cal.4^th 54, 65-66, 24 Cal. Rptr. 3d 199, 207, 105 P.3d 560, 567(Cal. 2005).

      It is worth noting, though, that the United States Supreme Court, in holding (in the context of a criminal investigation) that the attorney-client privilege survives the client’s death, recognized that:

     “Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. . . . Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime. . .

     “Many attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.”

     Swidler & Berlin v. U.S., 524 U.S. 399, 407-408, 118 S.Ct. 2081, 2086 (1998).

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

     Even those who aren’t his major fans might appreciate the artistry—and the many lessons on integrity, creativity, dedication, and craftsmanship—in Bruce Springsteen’s soulful, lyrical, and soul lyric-full memoir, Born to Run (2016).

     Springsteen’s maternal grandfather, who emigrated as a child from Italy to San Francisco, ultimately became a lawyer in Manhattan. 

     His recently-deceased mother worked as a legal secretary at Lawyers Title Inc. in Freehold:  “Truthfulness, consistency, professionalism, kindness, compassion, manners, thoughtfulness, pride in yourself, honor, love, faith in and fidelity to your family, commitment, joy in your work and a never-say-die thirst for life.  These are some of the things my mother taught me and that I struggle to live up to.”

     Among the themes of particular interest to law (and pre-law) students, and lawyers, are:

     ● The role of contracts

     In 1972, as Springsteen created the album Greetings from Asbury Park, (which “came from an unself-conscious place.  Your early songs emerge from a moment when you’re writing with no sure prospect of ever being heard”), he signed contracts that he would later characterize as “overreaching and counterproductive on [my producers’] part, leading to a lot of damage in the end. . . .

     “In the end, I would have signed [a producer’s] jockey shorts, if he’d presented them to me, to get my foot in the door. . . . I spent a few nights on my own trying to get through the biz speak, the legalese, of the contracts myself.  It was a joke.  I sat with [a producer’s] lawyer. . . who mildly explained the basic provisions of the contracts, but in the end, I just said “f— it’; I had to get in, and if these meaningless papers were the price, so be it. . . . I didn’t look back until much later, and by then, of course, it was too late.”

     Years afterwards, an independent lawyer “cheerfully informed me that these were the worst contracts he’d seen since Frankie Lymon’s.” 

     Springsteen’s reflections on the resulting litigation—and on the distinctions among his contractual, professional, and personal relationships with his producer—are well worth reading in full.

     Yet around 1988, after a “lawsuit with some trusted employees that had turned into a rather long and nasty divorce case,” Springsteen for the first time “insisted on written contracts with the band.  After all this time, to some, I suppose, it suggested mistrust, but those contracts and their future counterparts protected our future together.  They clarified beyond debate our past and present relationships with one another, and in clarity lie stability, longevity, respect, understanding, and confidence.  Everyone knew where everyone else stood, what was given and what was asked.  Once signed, those contracts left us free to just play.”    

   ● Protecting your independence

     Springsteen came to appreciate, even with regard to well-intended record companies, that “[I]f you don’t negotiate the terms of an agreed-upon partnership, your talents will be harnessed and guided in the direction others feel is best. . . . [I]f you want to fly by your own lights, reach the audience you feel your talents deserve and build a work life on what you’ve learned, value, and can do, be wary.”

     He refused to back down when record company executives insisted that he re-record the music for his second album with musicians of their choosing: “[T]hese guys thought we were just going to go away, return to our day jobs, go back to school, . . .  We had nowhere to go. . . and we loved music!”

     Over executives’ objections that they “wanted more vocal” on it, Springsteen retained the band’s final mix of his next album’s title—and career-making—track, Born to Run (1975):

     “Some [takes] had more voice but they didn’t have. . . the magic.  The singer was supposed to sound like he was fighting to be heard over a world that didn’t give a damn.”

     ● Playing to (and from) your strengths

     In 1970, after an unsuccessful audition in San Francisco, Springsteen realized that “I was good, very good, but maybe not quite as good or as exceptional as I’d gotten used to people telling me, or as I thought.”

     He soon “made the conscious decision to double down on my song-writing skills.  I felt this was the most distinctive thing I had going.” 

     Near the end of the book, he adds, “I figured if I didn’t have a voice, I was going to really need to learn to write, perform and use what voice I had to its fullest ability. . . . I studied everyone I loved who sounded real to me, whose voices excited me and touched my heart. . . . I learned to excel at those elements of my craft in a way I might otherwise never had if I had a more perfect instrument.”

     ● Establishing your role in decision-making 

     On the band’s return to New Jersey from San Francisco, Springsteen made “one of the smartest decisions of my young life,” and one which not all of his contemporary counterparts arrived at as quickly: “I was leading the band, playing, singing and writing everything we did.  If I was going to carry the workload and responsibility, I might as well assume the power. . . . Clarity ruled and allowed us to forge a bond based on the principle that we worked together, but it was my band.” 

     He later concludes, “Democracy in rock bands, with very few exceptions, is often a ticking time bomb.  The examples are many, beginning and ending with the Beatles.”

     On the other hand, Springsteen (who considered James Brown “my father, god and hero as a bandleader”) “didn’t get in your business unless I saw it was damaging what we were trying to accomplish or hurting you.”

     (“The Boss” names as one of his “primary heroes” another New Jersey-born superstar, who–although Springsteen does not note this–was frequently referred to as “Chairman of the Board.”)

     ● Mixing the downbeat with the upbeat

     Born in the U.S.A. (1984), the title track of Springsteen’s seventh album, was “inspired by” his encounters with “Ron Kovic, author of Born on the Fourth of July, [and] Bobby Muller, one of the founders of the Vietnam Veterans of America, both men who fought and sacrificed, returning from the war in wheelchairs, men who became strong activists against the war.”

     It “remains one my greatest and most misunderstood pieces of music.  The combination of its ‘down’ blues verses and its ‘up’ declarative choruses, its demand for the right of a ‘critical’ patriotic voice along with pride of birth, was too seemingly conflicting (or just a bother!) for some of its more carefree, less discerning listeners. . . . Records are often auditory Rorschach tests; we hear what we want to hear. . . .

     “Over the years, I’ve had an opportunity to reinterpret [it], particularly in acoustic versions that could not be misconstrued. . . .”

     Upon learning that president Ronald Reagan, while campaigning in New Jersey for re-election, had praised “the message of hope” in his songs, Springsteen had “two responses: The first was. . . ‘F—r!”  The second was, ‘The president said my name!’  Or maybe it was the other way around.”

     As has been noted, “some have suggested that the title of Springsteen’s propulsive We Take Care of Our Own (2012), which was used by Barack Obama’s reelection campaign (and played at the presidential victory speeches of Obama and of Joe Biden) was, in light of that song’s lyrics, intended as ironic.  [Despite the chorus, “Wherever this flag’s flown/We take care of our own,” no United States flag is visible in the video.] [In addition,] the upbeat rhythm of Glory Days (1984) masks its protagonists’ wistful reflections that their high school years were the high points of their lives.”

     Yet another track from Born in the U.S.A. whose lamenting lyrics belie its rollicking rhythm was Dancing in the Dark, (not this but) “my song about my own alienation, fatigue and desire to get out from inside the studio, my room, my record, my head, and. . . live.  This was the record and song that’d take me my farthest into the pop mainstream.”

    Before its performance in “our first formal music video,” director Brian De Palma introduced to the singer “a pixie-ish, dazzlingly blue-eyed young girl” and instructed, “’At the end of the song, pull her up onstage and dance with her.’”

    Springsteen recalls, “Until Brian told me later he’d chosen her from a casting call in New York City, I thought she was a fan!”

     ● Working from both the heart and the mind

     “I’d seen other great musicians lose their way and watch their music and art become anemic, rootless, displaced when they seemed to lose touch with who they were.  My music would be a music of identity, a search for meaning and the future.”

     (Springsteen writes of Greetings from Asbury Park, “I never wrote completely in that style again.  Once the record was released, I heard all the Dylan comparisons, so I steered away from it.”)

     “Most of my writing is emotionally biographical.  I’ve learned you’ve got to pull up the things that mean something to you in order for them to mean anything to your audience.  That’s where the proof is.  That’s how they know you’re not kidding.”

      Discussing his creation of the post 9/11 album, The Rising (2002), Springsteen writes, “my own desire to use the language I learned as a musician to sort through what was in my own head turned me to writing those songs.  First, you write for yourself. . . always, to make sense of experience and the world around you.  It’s one of the ways I stay sane.”

     For the album, Magic (2007), “I wrote [songs] in my dressing room often before the show or after in my hotel room.  It became a way I meditated before or after a raucous night.”

     ● Honoring both preparation and unselfconsciousness 

     Although he refers to his “overweening need for control” in professional settings (before performing in a London theater in 1975, he tore down, as presumptous, all of the posters and flyers promoting him: “I need a clean environment to work in”), Springsteen observes, “My good friend Peter Wolf, the great front man from the J. Geils band, once said, ‘The strangest thing you can do onstage is think about what you’re doing.’  He was right. . . .”  

     Of his 2009 Super Bowl halftime performance, Springsteen notes, “Onstage your exhilaration is in direct proportion to the void you’re dancing over.”

     ● In “New Age” terms, “creating a space”

     Springsteen recalls that, although he’d been unimpressed by a Grateful Dead concert in the 1970s, he ultimately realized that “[t]hey had a unique ability to build community and sometimes, it ain’t what you’re doing but what happens while you’re doing it that counts. . . .

     “A lot of what the E Street Band does is hand-me-down shtick transformed by will, power, and an intense communication with our audience into something transcendent.  Sometimes that’s all you need.”

     ● Getting personal and professional help when necessary

     Before auditioning in San Francisco, Springsteen performed for spiritual seekers at Big Sur’s Esalen Institute, where a “very straight middle-aged entrepreneur from Texas” told him, “I’ve made a lot of money and I’m not happy.” 

     He writes, “It’d be years before I’d have to wrestle with that one, but there was something about him that touched me.”

     Near his book’s conclusion, Springsteen discusses his battles, in his sixties, with depression: besides seeing therapists, “I’ve been on antidepressants for the last twelve to fifteen years of my life, and. . . they have given me a life I would not have been able to maintain without them.  They work.”  (Another cultural icon of the 1970s and 1980s recently noted, in his own warm and down-to-earth memoir, the benefits he found in therapy.)

     Beyond professional assistance, “The only thing that kept me right side up during this was Patti [Scialfa].  Her love, compassion, and assurance that I’d be all right were, during many dark hours, all I had to go on. . . . The only real bulwark against [depression] was love.”

     From its often-moving meditations (including details of the author’s figurative and literal dreams) to the fluidity of its writing (keyboardist Danny Federici “had the shortest highway between his fingers and his heart I’d ever heard”), from its technical details (such as the early realization that “I’d been soloing like a madman for months on a bass guitar!”) to its contextual explications (“It’s part of what made our band unique: the cross-tensions of the fifties blue-collar world and sixties social experience. . . We are pre-and post-hippie sixties soul survivors”), and to its portrayal of a dedicated artist continually in search of both his own and his country’s identities, Springsteen’s recollections and retrospections remain refreshing, revealing, and rewarding reading.

     Special note to law review editors: 

    In 2025, Born to Run will have its fiftieth anniversary, and (until September 23) Bruce Springsteen will be seventy-five years old.

    It has been nineteen years, eight or nine Springsteen albums, and seven Springsteen tours since the Widener Law Review’s symposium issue on “Bruce Springsteen and the Law.”

     Verbum sap.

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

     For bravura bravado and bombast, it’s still hard to beat A Declaration of the Independence of Cyberspace, the immediately-viral rant written on February 8, 1996 by John Perry Barlow (1947-2018), who co-founded the Electronic Frontier Foundation but who is probably best remembered as a lyricist for the Grateful Dead.

     Disenchanted with the tenor of the proceedings at the World Economic Forum in Davos (Switzerland), Barlow, who (according to his memoir) had years earlier been accepted to Harvard Law School but had instead pursued a variety of other interests, proclaimed:

     “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone.  You are not welcome among us.  You have no sovereignty where we gather. . . .

     “We are forming our own Social Contract.  This governance will arise according to the conditions of our world, not yours.  Our world is different. . . .

     “Your legal concepts of property, expression, identity, movement, and context do not apply to us.  They are all based on matter, and there is no matter here. . . .

     “The only law that all our constituent cultures recognize is the Golden Rule. . . .

     “We will create a civilization of the Mind in Cyberspace.  May it be more humane and fair than the world your governments have made before.”

     In 2006, in a lengthy reflection published in California (U.C. Berkeley alumni) magazine, Barlow recalled that at Davos:

     “The self-congratulatory arrogance of my hosts irritated me almost as much as Congress’ and Clinton’s [in creating ‘the ironically named Telecommunications Reform Act, which contained within it the Communications Decency Act’].  Of course, I failed at that time to have a proper appreciation of my own. . . .

     “Still, you’ll have a hard time proving to me that I was naïve in suggesting that the Internet created a kind of human immunity to human coercion that we had not seen before.  That not all of the results have been positive doesn’t alter my essential point in this regard. . . .

     “If I erred, it was in the implication that some miracle of enlightenment might arise as a result of this.  That was naïve.  We are as we are.”

     To sum up: “I’m not sorry I wrote it.  One day, I still believe, it will seem true.”

     In 2016, he insisted to an interviewer for Wired magazine that, “I do have a kind of Marxist sense of the inevitability of this shift taking place, that there will be a global commons that includes all of humanity.  And that it will not be particularly subservient to governments in any way.”

    If the issues invoked by Barlow’s attempted haymaker against legislators (and his effort to “make hay while the sun shines” for cyberlibertarianism) still resonate, so do those addressed by a contemporaneous and also-influential, but considerably more conservative, analysis.

     In Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207 (downloadable here), Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit  criticized the concept of a hypothetical course on “The Law of the Horse” (and by extension, on “The Law of Cyberspace,” the very topic of the conference at which he delivered the paper).

     First, that type of course would encourage “multidisciplinary dilettantism.”  Similarly, “Beliefs lawyers hold about computers, and predictions that they make about new technology, are highly likely to be false.  This should make us hesitate to prescribe legal adaptations for cyberspace.”

     Second, “the best way to learn the law applicable to specialized endeavors is to study general rules.”  A course collecting all legal decisions that happened to involve a horse “is doomed to be shallow and to miss unifying principles.” 

    Easterbrook, whose own decisions have been recommended as examples of clear and elegant writing, thus urged, “Develop a sound law of intellectual property, then apply it to computer networks.”

     He concluded:

     “Error in legislation is common, and never more so than when the technology is galloping forward.  Let us not struggle to match an imperfect legal system to an evolving world that we understand poorly.  Let us instead do what is essential to permit the participants in the evolving world to make their own decisions.  That means three things: make rules clear; create property rights where there are none; and facilitate the formation of bargaining institutions.  Then let the world of cyberspace evolve as it will, and enjoy the benefits.”

     In an ever-evolving era of generative AI, cryptocurrency, and autonomous vehicles, among other advances, law (and pre-law) students should find much of interest in comparing and contrasting Barlow’s and Easterbrook’s brief essays; in considering the ways in which the intervening years have validated, or voided, their assertions; and in assessing their current relevance to law school curricula, to career opportunities, and to efforts to create and enforce rules governing the use of emerging technologies.  (A law review might even start planning a thirtieth-anniversary retrospective on these topics.)

     At least one of the authors recognized (though in a different context) the inherent imprecision and ambiguity of his work.

     Nine years after his Declaration, John Perry Barlow wrote, in an afterword to The Complete Annotated Grateful Dead Lyrics (2005):
     “Every time someone would ask me, over the years, what I meant by this line or that, I would say, ‘What does it mean to you?’ . . .

     “The fact is, one doesn’t really know himself sometimes.”

     It’s not too early for law students, and even pre-law students, to consider someday becoming a director of a for-profit company, and to begin to maximize their opportunities.

     Those interested might:

     ● First, review the functions of a board, which include: selecting, setting the compensation of, monitoring the performance of, and sometimes firing, senior officers (notably, the Chief Executive Officer, or CEO); consulting with senior officers on corporate goals and strategy (though not about all details of implementation); ensuring compliance with statutes and regulations; and, setting and maintaining the “tone at the top” of the company’s culture.

     Reading resources range from primers, to perspectives from business consultants, to practical legal discussions (including my own). 

     (Boards, and individual directors, are generally featured peripherally rather than prominently in best-selling business books, which more frequently focus on founders and/or CEOs.)

     ●  Second, law students might take courses in Business Associations, Corporate Governance, Business Planning, and Corporate Compliance.

    Also very useful: Corporate Bankruptcy, whose intricacies will be relevant not only to the fortunes of one’s own company, but to protecting its interests before and during any insolvencies of its suppliers and customers.

      ● Third, examine the core governance documents posted on the websites of major corporations (usually behind a link to “Investor Relations” or “About Us”). 

     You can find a company’s articles of incorporation, its bylaws, its stated (but non-binding) governance guidelines/principles, and the charters of the standard committees of its board (audit, nominating/governance, compensation; the sometimes-mysterious executive committee; and, possibly, a corporate social responsibility or ESG committee).

      ● Fourth, note the personal characteristics that these documents (particularly the governance guidelines/priniciples, and the charter of the nomination/governance committee) identify as desirable in board candidates.  

     In my summary, many such lists include:

     -intelligence, judgment, and decisionmaking skills;

     -reputation and recognition in one’s business or profession;

     -civic and community relationships;

     -professionalism, collegiality, interpersonal skills, and management skills;

     -good character, high ethics, and personal integrity; [and]

    –conforming to the values of the corporation. . . .

      ● Fifth, consider what experience, expertise, and perspectives you could to add to a board—including your sensitivity to cultural issues that might otherwise (as, notably, in 2017) embarrassingly elude a company’s management. 

     In her essay collection, Be Board Ready: The Secrets to Landing a Board Seat and Being a Great Director (2019), Betsy Atkins, an entrepreneur who has served on more than twenty boards of publicly-traded companies, advises candidates for directorships to “be crisp in distilling your career into three major digestible, thoughtful points. . . . For example: What is your industry background?  What is your functional expertise?  What stage of a company are you a best fit for?”

      The authors of Startup Boards: A Field Guide to Building and Leading an Effective Board of Directors (2d ed. 2022, by Brad Feld, Matt Blumberg, and Mahendra Ramsinghani) echo, “To be considered for a board seat, even for an early-stage startup, you need to bring something to the board that isn’t already there.  You should have enough operational experience and be senior enough in your company to have functional or industry expertise that’s additive to the board.”

     (Not all of that experience is necessarily posititve.  In their chart of relevant characteristics of board members, those authors warn boards to “Beware” of a candidate who “Has never been sued.”)

     Under pressure from legislators, shareholder activists, institutional investors such as pension funds, and (for corporations whose shares are listed on it) the Nasdaq stock exchange, companies are increasingly attentive to (and usually define very broadly) board diversity.

     The country’s largest public pension fund, the California Public Employees’ Retirement System (CalPERS), in its Governance and Sustainability Principles (2019), advises corporations (in which it does, or might, invest its millions of members’ pension funds) that:

     “Board diversity should be thought of in terms of skill sets, gender, age, nationality, race, sexual orientation, gender identity, disability, and historically under-represented groups.  Consideration should go beyond the traditional notion of diversity to include a more broad range of experience, thoughts, perspectives, and competencies. . . .”

     According to CalPERS:

     “Collectively, director attributes should include expertise in at least the following areas: accounting or finance, international markets, business, human capital management, industry knowledge, governance, customer-base experience or perspective, crisis response, leadership, strategic, planning, and competence managing multifaceted risk—including expertise and experience in climate change and other environmental risk management strategies, where material to business model or operations.”

     Similarly, the Corporate Governance Principles (2021) of the California State Teachers’ Retirement System (CalSTRS) indicates that the “skills and experience needed [by a board] include, but are not limited to, financial and/or accounting, industry expertise, business management, governance, customer service, leadership, risk management, including climate risk management and cyber-risk management, and strategic planning.”

     ● Sixth, consider what industries or market sector(s) you might be interested in counseling, and serving as a director, in; and, as the CalPERS and CalSTRS statements suggest, try to identify—and especially, to predict—risks that they are likely to confront.    

     In 2023, the SEC required boards of publicly-traded companies to disclose annually “management’s role and expertise in assessing and managing material risks from cybersecurity threats.” 

     A rule proposed by the SEC in 2022, but not yet adopted, would require disclosure of “[w]hether any member of the board of directors has expertise in climate-related risks, . . . in such detail as necessary to fully describe the nature of the expertise.”

     Ram Charan’s Owning Up: The 14 Questions Every Board Member Needs to Ask (2009) observes, “The most important lens for tracking risk is financial. . . . But [boards should] look, too, at strategy and operations, politics and geopolitics, reputation, and corporate culture. . . Some boards may want to add other categories or risk [such as those related to] information technology and intellectual property.”

      Use books, mainstream media, blogs, law firms’ “client alerts,” the press releases of companies and trade associations, and other sources to help you identify emerging (technological, cultural, demographic, political, and/or legal) risks, threats, and opportunities (including “disruptive technologies”) that might create what one legendary high-tech entrepreneur called “inflection points.”

      ● Seventh, Olga V. Mack’s Get on Board: Earning Your Ticket to a Corporate Board Seat (2019) recommends that anyone interested in a directorship “[b]ecome known as a thought leader by writing and speaking on a few key topics that are important to the success of a company.”

     Similarly, Be Board Ready suggests “regularly posting blogs or articles that illustrate your knowledge and areas of expertise.  Start by identifying topics that are discussed in boardrooms today.” 

     Even better: Write on topics, such as those referred to above, that you believe boards should be addressing but are not yet aware of, or concerned enough about.

      ● Eighth, read accounts of group decision-making, particularly in crisis (but not necessarily in financial) situations; and, familiarize yourself with the seemingly standard (even if, for the boardroom, somewhat limited) guide to this process.

     ● Ninth, review discussions, in caselaw, commentary or otherwise, of boards’ responses to (and possible partial responsibility for) corporate crises. 

     As I have noted, easily available online are a number of revealing internal investigation reports prepared by or for boards themselves, including: Independent Directors of the Board of Wells Fargo & Company, Sales Practices Investigations Report (2017); and Report to the Board of Directors of General Motors Company Regarding Ignition Switch Recalls (2014) (also known as “the Valukas Report”). 

     Also of interest might be Covington Recommendations for Uber (2017) (also known as “the Holder Report”).

      ● Tenth, despite continuing questions about the formality and extent of a requirement in this regard, acquaint yourself (through taking a Law and Accounting course or through independent reading) with at least the basics of how to interpret balance sheets, income statements, and cash-flow statements.

     You might even review some of the quarterly (10-Q) and annual (10-K) reports posted on the websites of major corporations.

      ● Eleventh, several of these authors recommend that aspiring directors serve on a company’s advisory board; in a more informal advisory capacity; on nonprofit boards; and/or in community organizations. 

     (For a fascinating account of a shadowy but extremely high-powered and influential advisory group, see Ann Finkbeiner’s The Jasons: The Secret History of Science’s Postwar Elite (2006).)

     According to Betsy Berkhemer-Credaire’s The Board Game: How Smart Women Become Corporate Directors (2013), which includes profiles of the paths of more than fifty women to the boardroom, “Most women directors were recommended for their first corporate boards by directors who saw them in action on nonprofit boards.”

     ● Twelfth, as I have proposed, you might form an official student group—or even a more informal “reading group”—to discuss these issues, perhaps over Zoom and/or with the aid of guest speakers (such as, alumni who are and/or who counsel directors and boards; and, representatives of organizations dedicated to helping candidates increase diversity on boards).

     That exercise itself would fulfill two of the universal pieces of advice for potential board candidates: Gain Leadership Experience, and, Network.

     Reviewing, in his 2023 Year-End Report on the Federal Judiciary, the progress of lawyers and courts in adopting digital technology, Chief Justice John Roberts (twice omitting the apostrophe in a trademarked term) recalled that, as recently as three decades ago, “Legal writing instructors taught their students to check the continuing validity of precedents by sifting through bound volumes of a publication called Shepards.  (Lawyers facing a deadline might skip this stage, proclaiming that ‘the Lord is my Shepards.’)”*

     Today’s law students and lawyers can easily consult the Shepard’s Citations Service through the Lexis database—or use a counterpart offered by Westlaw—to prevent the nightmare of discovering that crucial caselaw has been overruled or superseded (or, even worse, that it had been “hallucinated” by an artificial intelligence application).

     Although the figurative connotation of a sheep is “a timid docile person,” particularly “one easily influenced or led,” much can be learned from reviewing the decisions of courts that “declined to follow” a precedent.

     To identify such opinions in Westlaw, click on the “Negative Treatment” link near the top left of the page displaying a decision of interest.

     In Lexis, click on “Citing Decisions” near the top left of the page that displays the decision, and then click on “Warning,” “Questioned,” and “Caution,” below the resulting graph.

     (Both services provide adjacent links to the appellate “History” of a decision, which is also very helpful to check.)

     For at least eight reasons, law students might be well repaid by even a cursory pre-reading of a few decisions disagreeing with those assigned for the day’s class. 

     ● First, casebook authors don’t necessarily include only decisions that were still (or that were originally) considered “good law.”  Nor will all teachers agree with casebook authors on the merits of particular majority opinions.

     A few weeks into law school, I felt completely and virtuously attuned to the material for Torts one morning, only to hear the professor begin that session by declaring that (in his opinion, at least) the major case for our discussion had been decided completely incorrectly.

    ● Second, casebooks and the authors’ post-decision notes might not reflect the latest developments in caselaw and statutes.

    ● Third, a court’s summary of, and quotations from, precedent that it disagrees with provide a fast review of that decision’s most important facts and analysis.

    ● Fourth, the disagreement may identify (and might even focus on) an opinion’s subsidiary conclusions, which might not be fully addressed in class.  (But, as Rabelais might have said, revenons a nos moutons.)

    ● Fifth, a very rough guide to the acceptance of a decision can easily be found on Westlaw by comparing its number of “Negative Treatment” citations to its total number of caselaw citations (displayed next to “Cases,” the first item in the drop-down menu under “Citing References”).

    ● Sixth, relatively recent reactions by courts, particularly state supreme courts and federal Circuit Courts of Appeal, might well summarize, contrast, and/or quote key passages from a variety of judicial analyses of an issue, enabling you to efficiently track its general evolution.

    ● Seventh, for a geographical sense of courts’ reaction to a decision, the Lexis result for “Citing Decisions” includes a color-coded chart contrasting its treatment in different federal and state jurisdictions.

    ● Eighth, decisions “distinguishing” an assigned one might provide previews of the classroom’s Socratic discussions (and, possibly, exam questions), by identifying circumstances to which even a court persuaded by the original decision would not extend that analysis.

     So to avoid seeming muttonheaded or woolly-thinking, or sounding sheepish (more formally, ovine), ewe shearly should consider wether to run several such searches pasture eyes before class.

    *For a brief, practical, line-by-line explication of Psalm 23, which is often (but not exclusively) associated with mourners and funerals, see Harold Kushner’s The Lord is My Shepherd: Healing Wisdom of the Twenty-Third Psalm (2003). 

     Among Rabbi Kushner’s other books are a best-selling exploration of theodicy, When Bad Things Happen to Good People (1989); and, When All You’ve Ever Wanted Isn’t Enough: The Search for a Life That Matters (1986), which bears similarities to Viktor Frankl’s masterwork, Man’s Search for Meaning (1946; English translation, 1959) (previously discussed here).

     In the most famous scene of 1967’s The Graduate (whose trailer encapsulates virtually the entire plot), Dustin Hoffman’s promising but drifting Benjamin Braddock, newly graduated from a prestigious but never named East Coast university, is steered aside at his California homecoming party for a private poolside conversation by Mr. McGuire, a self-assured, fiftyish, family friend.

     McGuire portentously imparts to him “Just one word: . . . Plastics. . . . There’s a great future in plastics.”

     As symbolic of a synthetic, soulless, and sterile society (and suburbia) as that advice might have been, Mr. McGuire was not wrong, even from the sixties’ scientific and financial (if not necessarily environmental) perspective.  (See, for instance, the most recent volume in MIT’s Essential Knowledge series, whose selection of scores of topics is itself thought-provoking.)

    At the beginning of 2024 and of the spring semester, three words are increasingly, if unsettlingly, relevant to law and pre-law students.

     ● Evacuation.  In a book published last spring, I recommended, during a discussion of often overlooked or underemphasized elements of law school orientation, that students “check the emergency evacuation routes from your classrooms, and whether (and how) their doors can be locked from the inside.  You might also note where the fire extinguishers, AEDs (automated external defibrillators), and any emergency telephones are located, and save for quick reference the emergency and non-emergency phone numbers of the local and campus police.”

     On December 7, 2023, one day after a multiple-fatality shooting on his university’s campus, another law professor wrote, “Next semester, I will teach two classes.  We’ll start with a review for how to escape the building.  It’s how all my classes will start from now on.”

     ● Disruption.  In my list of summer reading suggestions for entering students, I advised, “check your law school’s Web site for the rules of conduct governing law students (some of which may apply to all students, and/or all members, of the university’s community).  Particularly note. . . any policies concerning or regulating speech and conduct (inside and outside the classroom, and online).”

     In light of global and local events, on December 12 the governing body of the (arguably) oldest university in the United States felt it necessary to emphasize,  “At Harvard, we champion open discourse and academic freedom, and we are united in our strong belief that calls for violence against our students and disruptions of the classroom experience will not be tolerated.” 

     Harvard is far from the only institution of higher education to issue such a recent reminder and reaffirmation.

     ● Plagiarism.  The other topic that I suggested students “[p]articularly note” in their schools’ rules is “the provisions of the honor code, especially any definitions of plagiarism (which is an academic, not necessarily an intellectual property law, offense).”

     The identification of plagiarism, another topic of current concern and controversy at Harvard, is now being revisited by schools nationwide, because of the growing use of generative artificial intelligence programs such as ChatGPT.

     In his 2023 Year-End Report on the Federal Judiciary, released on December 31, Chief Justice John Roberts observed that, “Law professors report with both awe and angst that AI apparently can earn Bs on law school assignments and even pass the bar exam,” and speculated that, “Legal research may soon be unimaginable without it.”

   ● A bonus—and a timeless—word: Kindness. 

     Although the statement has been attributed to various philosophers of ancient Greece, it was apparently the Rev. John E. Watson of late nineteenth-century England who authored (the original, and somewhat different, version of), “Be kind, for everyone you meet is fighting a hard battle.”

     The theologian and rabbi Abraham Joshua Heschel (1907-1972) supposedly wrote or said (in some form), “When I was young, I used to admire intelligent people; as I grow older, I admire kind people.”

     And in 1798, William Wordsworth referred to “that best portion of a good man’s life, / His little, nameless, unremembered, acts / Of kindness and of love.”

     As The Graduate’s Mr. McGuire concluded, “Think about it.  Will you think about it? . . . Enough said.  That’s a deal.”