Better Thinkers,
Up close, the law is a pretty boring enterprise. Don’t take my word for it: ask your friendly neighborhood attorney. It involves digging through obscure statutes, reviewing mind numbingly prosaic merger agreements, and organizing endless streams of detail. The work is often well paid, but it is always demanding. Very quickly, the intellectual gymnastics of law school give way to the brutal grind of actually practicing law. Instead of forests full of ideas, legal work involves getting up close and personal with the trees. It is best suited for obsessives, not oracles.
But every once in a while, a legal matter becomes something like a national referendum. It transcends the confines of the courthouse and seems to rhyme with a larger conversation. We’ve had a run of these sorts of cases recently, from the Kyle Rittenhouse verdict to the Ghislaine Maxwell and Elizabeth Holmes trials, all of which commanded widespread attention beyond the Bar. I remember watching the OJ Simpson car chase in a sweaty summer camp dining room, and I can’t imagine being alone in having that white Ford Bronco etched into my memory. Eichmann in Jerusalem stood trial for nothing less than the greatest crime in human history.
What is on trial in all of these cases is not just a person but an idea: not just a scenario, but a particular vision of and for America. Sometimes, the stakes can ripple out far beyond the guilt or innocence of one life: Supreme Court review of the federally guaranteed right to an abortion hangs like the Sword of Damocles over American politics and culture. Millions of lives have changed for the better because of laws banning racial discrimination and legalizing gay marriage.
Seen from a certain distance, law can be another kind of storytelling. Trials have their ebb and flow, their climaxes and dramatis personae, plot twists and evidentiary surprises. The best trial lawyers, in real life and on television, remain exquisitely attuned to their audiences (juries and judges). There is a reason Law & Order will play on repeat until the end of time and Scott Turow sells millions of books: even non-lawyers find the law interesting in the right light, in the same way that even those of us who never went to medical school might catch an episode of E.R. or Grey’s Anatomy.
But at the same time, the law is not bound by narrative. It doesn’t have to conform to your politics, and it probably should not if it is being decided with integrity. The jump to condemn in the court of public opinion says more about us than it does about the legal system. The law’s language is specialized and narrow. It is interpretive, not emotive. It wields the power of the state, but it can’t tell us how to live.
Elizabeth Holmes’s just concluded fraud trial is perfectly situated at this intersection of law, media, and culture. The story that began when a striking blonde dropped out of Stanford, stocked her closet with turtlenecks, and started speaking in that crazy deep voice ended (pending appeal) with three fraud convictions: she was acquitted on four others, and the jury couldn’t come to a verdict on the remaining three, raising the possibility of another trial.
The charges were in connection with her blood testing start up, Theranos, which had been hailed as a world changing advance in the ability to perform blood tests without recourse to the bloated and complex laboratory industry. Promising a revolutionary new machine, Holmes raised $724 million and Theranos was valued at $10 billion. Needless to say, there was no miracle machine, and there were lots of lies.
Something more than Elizabeth Holmes took the stand in California. The whole bluster and bravado of Silicon Valley stood trial: the overpromising, the cults of personality, the venture capital gambling, the betting on the future and disregard for the past. Crowded in the courtroom with her were Adam Neumann’s WeWork visions of grandeur, the failed prophets and Olympian founders who blustered their way to the bank.
As is often the case, the fascination with Holmes is not so much the facts of the case. My criminal law professor Robert Weisberg points out that those weren’t really in doubt. The issue is what those facts mean. This was bad blood and black magic, legal evidence meets a world where evidence was as good as your pitch and where the standard of proof was as low was you could get some august old men on your board of directors to go.
Part of me wanted to see Holmes held accountable. She lied and peddled a non-existent product. Her efforts to make Sunny Balwani, her former business and romantic partner the scapegoat for her misdeeds was a desperate gambit that didn’t pass the laugh test. That way does not lie the path to female empowerment. Just like the financiers who brought the U.S. to financial ruin, Holmes let her greed blot out every other consideration. The fact that even one person pricked themselves to send Holmes their blood is an outrage. This was the Fyre Festival with needles and without Ja Rule.
But there is also a nagging voice in my head that is singing a very different tune. Yes, Holmes deserved what she will get. Just because many sin does not mean anyone one sinner is less culpable. Justice applies to the rich just as much as the poor, the beautiful just as much as the average-looking, the blonde just as much as the brown.
However, there is no monopoly on guilt. You and I want the newest devices, the fastest phones, the instant tests. We don’t want to wait in line, or even leave our homes. We want the world to come to us curated and sorted, bespoke and packaged. Our patience is an extinct species. How do we think this happens? Who do we think builds the world’s store or all of those electric cars or the phones and laptops on which you are reading this essay? It is not the altruists and the saints, the righteous and upstanding. It is by and large the cruel and obsessive, the possessed and savage. In 2022, the meek do not inherit the earth: the strong transform it.
In that sense, Elizabeth Holmes no doubt deserved to be convicted. The more difficult question is ascertaining our guilt as are her unindicted co-conspirators.
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