I'm not sure if this addresses Nathan's message but I want to say a little about the question we haven't yet addressed in class but that Professor Lessig raised at the end. Namely, does acoustic separation have any costs. As I understand it, accoustic separation is an attempt by the judiciary to reconcile two differing and seemingly conflicting perspectives: the "bleeding heart/wishy-washy" perspective and the "hard-nosed" perspective. Acoustic separation seems all well and good because the court attempts to reconcile these perspectives. However I think that in sending one message to the general public and another message to the community of lawyers, the court takes on a paternal role. In effect, they are shielding the public from the whole truth because this is supposed to serve the public's best interests. I think that there is danger in allowing an already elitist, undemocratic institution (the judiciary) to take on this paternalistic role.

-- Anonymous, September 22, 1998

Answers

I agree with Ayn in that there is something uncomfortable and undemocratic in the idea of acoustic separation basically hiding the truth from the general public. But, as a practical matter, I'm not sure that it works. Are there two distinct audiences out there? Is the legal community in on this big secret about which the rest of the populace is unaware? Ayn, I guess I'm not really addressing your question, but please let me know what you think.

-- Anonymous, September 23, 1998

I was really confused by the whole class discussion on acoustic separation. Like Kristine, I would be interested in knowing whether we are talking about a theoretical or actual phenomenon. Also, does it actually reconcile the two perspectives mentioned in class and in Ayn's posting? I guess I understood the two perspectives to be 1) justice in the case being tried and 2) the preservation of ex-ante incentives. How is justice in the present case being served by acoustic separation? I think that we might have discussed all this in class, but unfortunately I didn't quite get it. Any clarification would be really appreciated.

Tawen

-- Anonymous, September 27, 1998

I think acoustic separation was less concerned about justice in the case at hand than it was with sending a message that justice was served to the public. In the McKenzie case, for example, the court remanded to the lower court to reconsider whether the attorney's fees were unfair in light of a different standard. This remanding appears to assert judicial authority over attorney fees, thereby preserving public trust of the judicial system and the willingness of people to go to lawyers for help. If the lower court then upholds the original fee, the message may be sent to lawyers that contracts with clients actually will be upheld, regardless of the what the higher court said, thereby preserving the incentives for lawyers to enter into such contracts (which, in cases involving contingent fee contracts for poor clients, may be a very good thing overall, for lawyers, clients, and a judicial system that tries to be equitable).

Though it does seem, Tawen, that in speaking to the two audiences, the public and the lawyers, the court may overlook the party that actually brought the claim at hand. That party doesn't benefit from rhetoric and it certainly doesn't benefit from being squashed into oblivion in a lower court that is indifferent to the public pronouncements of higher judges. I also think acoustic separation might be bad for lawyers. It might make them more cynical, to be lied to with a wink in front of the public. I'll get down off my soapbox now, and brush my teeth. Goodnight.

-- Anonymous, September 30, 1998