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TOP EVIDENCE EXAMS 2009 question 1

DIRECTIONS: This exam is a take-home exam returnable by e-mail. Include your name and Harvard ID number; when it is completed, e-mail it to Moira Harding ( Your personal information will be redacted. Do NOT e-mail the exam to Prof. Nesson. The exam is limited to 1500 words, to be allocated over the two questions in any way you choose. Include in the subject line to Moira a statement indicating “SHARE” or “DO NOT SHARE”. All exams will remain anonymous.

Question 1:
* The Mission
* deleted, albeit with regret

Question 2:
What is the RIAA’s best case against Joel? Engage and embrace, if you can, Joel’s strongest case.



This is evidence that law school may teach you what process is, but not how it is used. Or if it is used.

This is evidence of the flexibility of judges. Evidence of the flexibility of rules.

I have embraced Vinny. I imagined a conversation between you, your students, Judge Gertner, and Mona Lisa Vito. It was, in Judge Gertner’s words, a “moment of informality.” Is Lisa describing a deer being shot in the woods? Or is she lecturing about this procedure? The request to record this moment stems from your mission. It is what this case is about. It may not be something we can learn in law school.

Evidence is what you make of it. Context can change its impact. Maybe context can change its truth.

The attached audio file (“of what is this evidence.mp3”) is further evidence.


Evidence is anything which might tend to prove the truth, or at least one version of the truth, one perspective of the Necker Cube. So “of what” is the truth which may be proven?

Evidence of our need (or perceived need) for gold stars – for the comfort that comes from repeatedly being told that you are the best, or at least good enough. The desire for approval from authorities: judges, professors, teachers, parents. Do I play the game for approval? This gold star mentality is destructive of self. The need for approval is based in anxiety, and anxiety is based in fear. And fear is the mind killer.

Should I define the game differently, so as to find myself in it, not just as a repository of the arguments and values of others, but as a part of my own journey? How is this game different from other games? I spent much of this month playing poker. Lost my online poker virginity (and $100). Why did I play? Did I play for the gold stars (dollar bills)? Did I play for the competition (camaraderie)? Did I play for the rush that comes from making a good play, from getting inside the mind of your opponent, fully empathizing with their position and their desires, until you know that they will fold to your raise?

This exam taking is the official game of HLS. It’s our poker, and the rules are similar. At least how it is traditionally presented there are winners and losers. As Charlie (the lord of this particular game) has told us, just like in poker the key to winning is empathy. But are these games worth it? Not if the outcome is what matters. You can’t play for the gold stars, that much is clear. In poker, you can never be sure of the outcome, so much the same for HLS exams and litigation. All you can do is make the best moves with the cards you are dealt. Playing only for the gold stars (money, ‘A’s, verdicts) is a waste of time. Often the verdict is only the beginning of the story (see, e.g. “A Civil Action”).

But what about the spectators? Like all games, litigation has spectators. And since the law is about stories and storytelling, the spectators are in some ways just as important, just as present as the parties. Without the spectators, the law is a hollow game. The question is how the law lord (or in this case, Judge Gertner, her agent) imagines herself. If she imagines the “story” being told in the courtroom as tightly circumscribed by well-defined rules (see Vinny: “how do you plead, guilty or not guilty?”), then the only spectators relevant to the game are the jury. Everyone else can be excluded, since their interference can only harm the purity of the process. On the other hand, if she imagines the narrative she presides over (or does the dealer deal herself a set of cards as well?) as larger than the parties, as being part of a grander story being told by and to “We the People,” then the more spectators there are, the better. And why shouldn’t the law lord imagine the law in this way? After all, like all of us, part of her wants gold stars too.


Creation Story

In the beginning, the exam was without form, and void
The Narrator divides the exam into I and not-I
I thinks in a language only I understands, which is to say, no language at all
I perceives everything and nothing at once
I is an eternal moment

The Narrator teaches I identity
I understands that what is is and what is not is not
I knows this with perfect certainty

The Narrator teaches I representation
I names what is ‘the World’

The Narrator teaches I to see similarity and difference
The World is filled with variety
The Narrator gives I memory, which is to say a past and a future
The World is filled with change
Everything is susceptible to doubt
The World testifies and I believes
Everything is evidence of itself

The Narrator breathes Intention into I
The World is filled with things for which there is a use

The Narrator creates U in the image of I
Together I and U create a language

The Narrator teaches I and U a game
A sign hangs in space on which a question is written: “Of What Is This Evidence?”
Above the sign is a small platform on which objects materialize
I and U take turns telling stories
I conjures a world in which the object becomes a sign
U conjures a doubt about the sign’s meaning
I seals the crack through which the doubt entered
The game continues
The Narrator sits in judgment


For there to be evidence, there must first be doubt. A tautology is susceptible neither to proof, nor to doubt. Outside of the tautological everything this susceptible to doubt, but this is not the same as saying that everything is in doubt.

We do not encounter the world in the first instance as evidence. I see a blue field. Do I conclude that there is a blue field in front of me? Is the perception ‘evidence’ of the conclusion? As if I thought to myself “I am having a perception of blue; in the past when I have had such perceptions, there has been a blue object in front of me; there is most likely a blue object in front of me now.” Such reasoning plays no role in the experience. I simply see blue. And by this, I do not mean that the reasoning happens subconsciously—or algorithmically.

Someone says “everything in the world is evidence.” How is this to be understood? Think of a case where there is a disputed proposition—whether a painting is a fake. Parties to the dispute offer grounds in support or against it. This is a situation where evidence has a role to play. Someone wants to extend this game beyond its normal limits. They say “you believe that I’m standing in front of you, but I could be an apparition; it is only based on your past experience that you infer my presence is the cause of what you see.” They are taking a situation where the inferential reasoning is quite explicit and connecting it by intermediate cases to a situation where it would normally play no role at all. They want to focus on the similarities between the cases and ignore the differences. Yet, how different it is to doubt whether a painting is authentic and to doubt whether my perceptions are caused by an outside world.

“Everything is susceptible to doubt and everything is evidence that points in one direction or another.” Two possibilities: 1) they are truly in doubt; 2) they are trying to show something interesting about the nature of evidence and the rules of the game in which the word is used—to make us look at it from an unfamiliar perch.

Ordinarily, evidence is offered in conjunction with a hypothesis or theory. First there is a hypothesis, then evidence is offered to support or contradict the hypothesis. Yet, the hypothesis wasn’t plucked out of space. It was formed based on prior experience. Did the experience become evidence only after a hypothesis was formed to explain it? Why did the experience require an explanation in the first place? A hypothesis plays a role where there is uncertainty.

We do not call something evidence simply because it conveys information. In the case of a proposition about which everyone agrees, there is no question of evidence. Information that fits with our existing assumptions is not experienced as evidence. Only when an assumption is questioned does the evidence on which it rests come to the fore. Does this mean that the evidence was there all along—latent? A broomstick is used in a game of stickball—was it really a bat all along? To call something evidence only makes sense within the game of uncertainty and explanation.

The purpose of an explanation is to be accepted. To say an explanation is accepted means that a doubt has been removed, but not that every possible doubt has been removed. The level of certainty required varies according to the circumstances. How do we know when the doubt has been removed? To understand where explanation comes to an end is to understand the entire culture of which it forms a part.

To call something evidence is to presuppose the existence of a question to which it suggests an answer. In this way, evidence plays a role in the recursive process by which our understanding of the world unfolds.


Of What is This Evidence?
Ought we, living underground, dare
To ask such questions of the Universe?
To search for the space that lies between?

It was not so, formerly.
There was a time for me
When I let loose my curiosity
To arch its back, and
Go into the night and see what it would find.
Never mind the consequences,
Never mind.
There were no questions, then, with answers that I fled—
No polished scales for me to dread,

But if Truth comes to us through a glass, darkly
How is it that Justice, blindfolded, is supposed to see
Through all the bullshit, all the lies, all the expert testimony?

Ought I dare
To go into the cave,
To hear the answer to the question
That I would rather not ask?
To do battle with the lawyers
Who carry their evidence jingling in their pockets?
Our ancestors searched for truth in the arena
The Evidence was—
defeating your accuser in mortal combat,
having burning coals heaped upon your head,
holding your hand in a pot of boiling water.
The Exhibits were—
your wounds, and those of your accuser:
whoever God heals first wins.
But at least the sides were evenly matched.

Do I dare, then,
Climb the mountain?
Follow the arduous path
To its end?
And what is there that I,
If I reach the summit weary, bleeding, my mouth dry,
Can do if the One at the top should reply:
Truth is being at the top of the mountain
And evidence merely the journey that takes you there.

No! I am not J. Prufrock, nor was meant to be;
I am Ulysses; I am Solomon
And I mean to have my answer!

But in the Courtroom, the Prosecution tells its story
brick by brick.
It builds a wall to close me inside
or stand me up against.
And Lady Justice, blinkered, cannot see
Through the lies, through the expert testimony
To the truth, there at the top of the mountain with me

Here, underground, Evidence is but a shadow—
—a shadow that we, lambent, project
Onto the walls of Plato’s cave.
And the Truth is but the space in between.


These objects serve as evidence and, in context, tell the story of a man whose interpretation of the game of life both selects and shapes his endeavors.

I will ascribe my personal interpretation of the big thoughts presented in the first object and explain how these thoughts guide Mr. Nesson’s decision to litigate this case, raise the issue of internet in the courtroom, and finally his accession to the Judge. In doing so, I assume ‘the mission’ represents Mr. Nesson’s personal intuitions.

The first big thought is the importance of asking questions. The mission asserts that what is ultimately important to us, and is ultimately driving every question we ask, is finding the answer to what is the meaning of it all. The mission asserts that this may be impossible under the circumstances but in my interpretation that is not of importance–what is ultimately important is that we continue to ask these questions and that they continue to drive us forward.

The second thought is that this is best accomplished through a sharing of ideas. We learn and define ourselves in relation to the world around us.

Most importantly, I have personally found it to be true that an accurate understanding of another’s interpretation of your contribution is essential to increase the likelihood of furthering a desired end.

An understanding of the mission allows us to understand the importance of winning this case. This mission carries with it the implication that we must facilitate the flow of information between us. Cyberspace allows us to evaluate another person free from the biases created by the material world. These biases include physical appearances and social mores that often limit an individual’s freedom to ask those ‘silly’ questions. The anonymity associated with online interaction strips away these distractions.

If we truly acknowledge the importance of asking these questions, then we must realize that cyberspace furthers this end in ways we cannot yet appreciate. For example, the pursuit of truth in science is historically riddled with successes fueled by ideas that when first proposed were considered silly by some.

In the history of man, there have been four great advances in communication. They were speech itself, followed by the written word, and then the printing press. The last is the internet in whose birth and infancy we are now enveloped. The free and easy dissemination of information has transformed the acquisition of human knowledge. A click brings enlightenment.

But with enlightenment comes empowerment and there are always those who do not want to share power. The mission is to ensure that this great step forward not be hobbled by censorship and commercial avarice.

The internet may truly be man’s most important creation to ask the important questions. Thus, its freedom, from the RIAA and any other limits, is certainly the most important goal to anyone who commits to this mission.

In my interpretation, the mission asserts that one must understand the rules of a game in order to properly play it. In this particular game, the rules that bind Mr. Nesson are not just the Federal Rules of Evidence as applied by the Judge, but are best defined by the subtle individual nuances that define the Judge’s person.

Mr. Nesson adheres to these rules by introducing the idea that the internet serves important purposes in the Judge’s mind early in the proceedings (through the introduction of the tape recorder in the phone conversation). This play forces the Judge to consider the importance of media to freedom in a context tangent to internet piracy. The Judge’s hand is forced early in the case as her attitude on this matter certainly relates to the conclusion she will ultimately reach. Mr. Nesson’s interpretation of her attitude will undoubtedly help shape the story he will tell. Furthermore, the proposition undermines one of the RIAA’s main points: in the words of Joel Tenenbaum, “If the RIAA’s campaign is about educating people, how could they possibly oppose internet in the courtroom?”

Strategically, in the mind of the Judge, his decision to record before asking demonstrates his conviction on the issue and his quick accession demonstrates his respect for the process.

Two individuals, within the context of a game, appreciating and understanding one another’s view, is a step forward.


The medium of a question transforms the question, and the ordered courtroom is a medium that necessarily reduces the dimensions of a question. The Rules of Evidence, for example, attempt to provide structure by logically defining concepts that can be understood only by the intuition. Human beings possess an innate conscience and an ability to gauge the coherence of stories. This ability includes an intuitive understanding of relevance and an ability to judge a witness’s credibility. The Rules of Evidence are ambivalent about the intuitive abilities of juries. On the one hand, the hearsay rules (along with the Confrontation Clause of the Constitution) help the court make use of the juries’ abilities. On the other hand, the juries’ abilities strain against the Rules’ attempts to define concepts like relevance and character. This tension may be inevitable. The Gertner recording and “The Mission” are evidence that the traditional medium of the courtroom is insufficient for deciding multi-dimensional questions. However, the limitations of the courtroom are essential to legal legitimacy.
The clearest indication of this thesis comes in Judge Gertner’s statement that she wishes to have the recording turned off because she wants “to ask certain questions of the parties without the necessity for people to come in and have a formal proceeding.” Recording, for Gertner, apparently means accountability to rules. Rules draw out lines. The lines limit chaos; they ensure a forum for storytelling, but these lines necessarily flatten out the forum. Gertner believes that formal lines restrict questions — the real questions that drive us forward, as “The Mission” states. At the same time, Judge Gertner seems to believe that a wider audience necessitates narrower constraints. The forum must be limited in some direction, either in the freedom of the actors or in the freedom of the information.
Limitations are necessary because they allow the words of the legal system to be judged by standards that we can pretend are objective. “The Mission” suggests that a professor’s media are text and speech, yet ironically undercuts this statement by adding the dimension of music. By analogy, the traditional legal media of text and speech are insufficient for complete understanding without the music of human tone and reaction. But the illusion of objectivity, which undergirds the legal system’s legitimacy, depends on flattening human questions into two-dimensional text. Technology provides the flexibility to choose which dimensions are more important, but it does not yet remove the necessity of flattening the question.


11:36 a.m., Friday, Building Reality.

Blank screen = 0. Start with that. Then two linked digital audio files, 1 and 1. Then a brief question, with few ground rules for the response. The key term, “evidence,” is undefined. As the Exam Taker, I assert the power to lay down the missing definition: evidence is that which tends to prove something.
So then, what do these audio files tend to prove?

Depends on whom you ask. As the Exam Taker, I will put forth a statement of what they tend to prove. And my statement will be my version of the truth, crafted to serve my purposes (to win a high grade). Other exam takers will provide different statements, and like the stories put forth by opposing attorneys, these versions might spar. It is a competition; a game of skill rather than chance.

The linked audio files are the raw material (like facts), to be manipulated by the storyteller. The Exam Taker places them in context, weaves them into a story, builds a framework around which to understand them.

Truth the Necker Cube: the raw audio files lead to no single answer that is correct. There is only a process designed to select the best surrogate based on the meaning attributed to it by the players (here, the exam takers). It ultimately depends on how the Exam Grader is persuaded to see it. It is a human process, where a human Exam Grader uses his perceptive abilities to determine the relevance and persuasiveness of the response.

Both the trial process and the grading process deal in surrogates. The persuasiveness of the student’s story, as relative to the persuasiveness of the other students’ stories, becomes a surrogate for that student’s worth in the class, which is then assigned a grade.

So then, of what those files tend to prove, depends on whom you ask, and ultimately on the sorting decisions made by the Exam Grader. Full circle.

2:05 p.m., Sunday, Story Time.
The use of different forms of media in pedagogy is expanding. Educators are finding alternative ways to express themselves, and to illustrate their lessons, than they have traditionally used. While the age of the printed textbook is not dead, society is increasingly experimenting with non-traditional media to convey educational messages.

The Mission and the Conversation with Nancy are evidence of this trend. For example, when Professor Nesson was asked a difficult question in his winter 2009 evidence class (“what is the meaning of life?”), he responded through the telling of a story (the meaning of life is an apply), as well as by playing The Mission audio clip. The use of an audio file containing music and lyrics/spoken word to convey a message to a classroom of students is an alternative pedagogical method employing non-traditional forms of media. While The Mission file itself, standing alone, does not prove this, many students can testify to the truth of the description of the chain of events, and other statistics could be supplied to show that playing mp3s is not a traditional teaching method.

The Conversation with Nancy also tends to prove that at least one classroom is attempting to employ non-traditional media to teach class lessons. The file represents an attempt by Professor Nesson to record his conversation with Judge Gertner and plaintiffs’ lawyers, at least in part in order to play the record in class as a non-traditional teaching tool. Again, the recording by itself doesn’t complete the proof, but numerous students, and the Professor himself, can attest to the planned use of the recording in this way.

These audio files tend to prove that classrooms are experimenting with new forms of pedagogy. This is
my story. Other students may say something different – some may even contradict my version of the events. That’s not surprising, given what I’ve said about the nature of truth, and how it depends on one’s perception of it, and one’s use of it in a story that provides the context. Still, Exam Grader, I’ve set out a sufficiently cohesive story for you to see it my way.

[more to come]

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