The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.

What is obscene?

Glenn Greenwald points out an interesting irony. A federal judge last week sentenced Paul Little to nearly 4 years in prison for distributing a porn film the court determined was “obscence” despite the fact it involved only consenting adults and was distributed only to consenting adults. Little’s attorneys argued that the film couldn’t be obscene because it involved no pain to the participants. The judge rejected the argument, writing, “This is clearly degrading, clearly humiliating and intended to be so.”

The Bush Department of Justice makes it a point to prosecute producers of adult pornography. The irony, of course, is that this is the same Department of Justice that argued that “torture” does not include any conduct that does not cause “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To compound the obscenity, “our Congress retroactively immunized anyone and everyone in the Government who may have been involved in any state-sanctioned line-crossing behavior even after the lines were radically re-drawn”

1984 Redux?

As explained in this case study (pdf):

In early 1984, Pennzoil and Getty Oil agreed to the terms of a merger. But before any formal documents could be signed, Texaco offered Getty Oil a substantially better price, and Gordon Getty, who controlled most of the Getty shares, reneged on the Pennzoil deal and sold to Texaco. Naturally, Pennzoil felt as if it had been dealt with unfairly and immediately filed a lawsuit against Texaco alleging that Texaco had interfered illegally in the Pennzoil?Getty negotiations. Pennzoil won the case; in late 1985 it was awarded
$11.1 billion, the largest judgement ever in the U.S. An appeals court reduced the judgement by $2 billion, but interest and penalties drove the total back up to $10.3 billion.

History seems to be repeating itself in the battle between Citigroup and Wells Fargo over who will buy Wachovia. As reported in today’s New York Times, “Wachovia was on the verge of collapse last week until Citigroup salvaged it in a government-backed deal that was upended Friday, when Wells Fargo made its startling bid. The announcement touched off a whirlwind of legal activity and angry recriminations by Citigroup . . . .”

Lawyers for Citigroup and Wells Fargo argued at a judge’s home on Saturday evening, Citigroup’s lawyers in person and Wells Fargo’s by telephone. As of now, the status of the situation is very much up in the air, though the Times hardly minimizes the dispute’s importance: “At stake is the shape of the American banking system, which is being redrawn almost weekly as a handful of large players merge, and the government’s own standing to broker future bank rescues . . . . .

Look for new combinations of old things

Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author and illustrator puts it:

Paul Klee once described an artist as being like a tree, drawing the minerals of experience from its roots – things known, observed, read, intuited and felt – and slowly processing them into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by rethinking the relationships between the objects that have already know about.

Four weeks into my Contracts class with a group of new law students, they still goggle when I point out that the “rules” they learned the first week can be used to explain the results the fourth week. The students think the fourth week’s materials have to be explained by the fourth week’s “rules.” They can be, but in law any good explanation for a given result is an acceptable one. The more good explanations you have, the more likely you are to the court you should win.

In Neil Duxbury‘s “Truth and Rhetoric,”(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116–121), the author quotes from Dennis Patterson‘s book Law and Truth:

In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, “[w]e convince someone of something by appealing to beliefs he already holds and by combining these to induce further beliefs in him, step by step, until the belief we wanted finally to inculcate in him is inculcated.” In law, we choose the proposition that best hangs together with everything else we take to be true. (Law and Truth, 172, citation omitted)

Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as possible.

Good Guys, Bad Guys, the ambiguity of everyday life, and effective argument.

It’s a funny thing that non-lawyers usually consider most legal disputes to be between Right and Wrong, the Good Guy and the Bad Guy. It’s an especially difficult prejudice to overcome in first year law students.

Don’t get me wrong. There are situations where there are Good Guys and others where there are Bad Guys. Then there are situations where there are both Good Guys and Bad Guys. The trick in becoming a good lawyer, though, is that from his own point of view, each side to a dispute thinks he’s the good guy.

Thus, if you merely try to paint your adversary as a Bad Guy, you’re going to lose. If, on the other hand, if you understand his arguments as ones made out of good faith in the belief that they represent truth, justice, and the American way, you have gone a long way toward figuring out how to shape your arguments so you can prevail.

Both sides think they’re right. And both sides to most disputes have merit. Usually, though, one side has the better of a well-articulated argument.

Foreign law, the Federalist Society’s view that the U.S. is better than the rest of the world, and censhorship

I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last two posts) comes from.  It’s the belief that the U.S. is so exceptional there’s no point in looking to the “socialist constitutional courts of Europe.”  That’s what Steven Calabresi, a law professor at Northwestern and co-founder of the Federalist Society writes in the September 20 New York Times:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country. . . .

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts xenophobic is, after all, not off base.  The first Chief Justice of the United States Supreme Court, John Marshall, himself stated that the opinions of British courts “are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Merely dismissing the decisions Western European countries have reached on profound legal and moral issues (including the execution of juveniles) as the decisions of “socialists” unworthy of even being considered by us “exceptional Americans” is not argument — it’s name calling and egocentricity.  I don’t see what the difference is between law review articles, British courts, or any other source that might be considered the opinion of  wise people who have maturely studied the subject they are opining on.  Foreign court decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly political too: it’s all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.  By that I don’t mean to be a cynic or a hard core Legal Realist — rather, I mean it’s all argument.  If one is persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution of juveniles made doing so “cruel and unusual,” then why should one not be permitted to consider that fact?  Justice O’Connor explained why she wasn’t convinced by that fact, but she explained why with counter-argument, not by suggesting the argument was illegitimate.

Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder.  I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and other countries too “socialist”) to even allow the courts to look at other countries’ laws in determining what U.S. law is or should be.

It is their views I consider un-American.  Their views suggest the courts should be censored.  It is one thing, as I’ve written, to not be persuaded by the views of other countries.  It is censorship, however, to suggest judges cannot even consider those views.  Who better represents the source of American Jurisprudence than John Marshall?  Are no jurists from other countries wise men who have maturely studied the subjects they decide?  And if we forbid reference to foreign law, why not forbid reference to law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely have any influence whatsoever on an actual lawmaking?

The sooner we get over “American Exceptionalism” and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are studying, the sooner we’ll be better off.

But one more word on the Federalist Society.  If you pay attention, its members spout an unerring common line on issues they’ve identified as important.  They sometimes remind me in their methods of organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet Communist Party’s word.  Professor Calabresi in his letter to September 20th’s Times makes clear the Federalist Society leadership’s view on whether U.S. Courts should even be allowed to refer to foreign law.  Is it any wonder that in the Times article provoking Calabresi’s letter quoted Scalia, Roberts, and Alito in ways entirely consistent with Calabresi’s and the Federalist Society’s views?

What’s so wrong about looking to foreign law?

An Australian correspondent writes, in response to my post yesterday

What’s surprising to me as an Australian is that there is any controversy at all. There’s a huge difference between looking at various sources for examples of reasoning and acknowledging established local precedent as representing the law. From 1st year our students are taught the difference between persuasive and binding authority. Isn’t it healthier to be transparent about the reasoning process rather than pretending that judges aren’t sometimes influenced by personal ideology or politics or God forbid, high level judicial reasoning from othe jurisdictions with a common legal heritage?

He also reminds me of a law review article written here in the States over ten years ago that, on the same grounds, questions the basis for any objection to using foreign law for guidance in making U.S. law.  In “All the World’s a Courtroom, Judging in the New Millennium,” 26 Hofstra L. Rev. 273 (Winter 1997), Shirley S. Abrahamson and Michael J. Fischer opened with the description of an oral argument in a case before the Wisconsin Supreme Court:

In the . . . case, the defendant, a one-time farmer who had been diagnosed with Alzheimer’s disease, struck and injured the head nurse in a health care center where he was confined. The court was asked to resolve one issue: Should the farmer be judged by the traditional tort standard of the reasonable person, or given that he was not capable of either controlling or appreciating his conduct, should he be absolved from civil liability altogether? 

In most states, including Wisconsin, the courts ha[d previously] concluded that a mentally disabled person must be held to the same objective standard of care as someone without such a disability. Thus the mentally disabled are generally held liable for their acts under the reasonable person standard.

American legal scholars have sharply criticized this traditional American rule. They point out that applying the reasonable person rule to people with mental conditions, in effect, imposes liability without fault, even though the law of negligence is ordinarily grounded in fault, and even though liability is incompatible with modern views and treatment of the mentally ill. 

Counsel for the farmer urged the Wisconsin Supreme Court to adopt a rule that persons should be held liable only when they know what they are doing.  And like most lawyers urging a court to adopt a new rule, counsel for the farmer sought to reassure the court of the wisdom of change by pointing to law from other jurisdictions, specifically Florida  and Canada, which seemed to buttress her point. If the new rule works there, her reasoning went, then surely it could work in Wisconsin.

Florida, the Canadian case was an entirely different matter altogether. “Petitioner is not aware,” the brief noted archly, “if Canadian case law has precedential value in the United States.” 

Counsel, of course, knew quite well that it does not. But by the same token, neither does Florida law have precedential value in Wisconsin. Why then did the nurse’s counsel single out Canada? Probably because the law of foreign countries is treated today with the suspicion that may have once marked some state courts’ approach toward the law of their sister states.

Today our state courts accept the logic behind Justice Cardozo’s famous remark, in a case involving New York and Massachusetts law. New York is “not so provincial,” Cardozo wrote, “as to say that every solution of a problem is wrong because we deal with it otherwise at home.” But while state courts routinely look to the decisions of their sister jurisdictions for the insights and persuasive value they potentially possess, the nurse’s counsel obviously 

viewed looking across our national borders as an “inherently suspect activity.” 

I was perplexed. Why did the farmer’s counsel’s citation of Canadian law signal desperation and trigger derision? Why, I wondered, should case law from Canada–an English-based, commonlaw jurisdiction geographically closer to Wisconsin than Florida–not be considered persuasive?

Professor Johns and I ask the same question, but now of several members of our country’s Supreme Court, including its Chief Justice.  As far as I can tell, there’s no good reason other than a pandering to the jingoism running strong through our current politics.  One correspondent has taken strong exception to me in essence calling Chief Justice Roberts a xenophobe, and I don’t think he personally is.  Nevertheless, his political support depends on pandering to xenophobia.  I can think of no other reason to close off consideration of arguments and reasoning that may be helpful to resolution of difficult legal questions.

Foreign law and legal argument

I wrote a post over two years ago on the point, but the legitimacy of U.S. courts referring to foreign law is an issue again today because the New York Times published a front page article discussing the waning influence of the U.S. Supreme Court’s decisions on the court decisions of other nations.  One reason, according to the article, is the steady outcry from some quarters against any reference to foreign law in the U.S. courts. 

I find this outcry absurd and positively contrary to the tradition of Anglo-American law.  The common law system, unique to the Anglo-American world, is one that builds law case by case, recognizing that to achieve justice the unique facts of each case require consideration of the arguments of the parties directly affected by those facts.

The key to my point is that the courts hear arguments.  They consider prior precedents, the views of experts, and even the rantings of political idealogues.  There’s nothing wrong with doing so.  There should be no limit on what courts can refer to and rely on; rather, faced with deficient evidence or authority, the answer is correct evidence or authority.  Thus, as I explained two years ago, when a judge relies on the above-referenced political idealogue’s screed about the purported litigation explosion in reaching her decision, the answer isn’t to forbid her from doing so.  The answer is for lawyers and judges to point out that the facts don’t support her argument, that in fact 86% of trial judges surveyed consider frivolous litigation anything from “no problem” to a “small problem,” while only 2% consider it a “big problem.”

Thus, when Anthony Kennedy wrote the majority opinion in the Supreme Court case holding that executing juveniles is “cruel and unusual punishment” under the 8th Amendment to the U.S. Constitution, it was perfectly legitimate of him to point out in support of his conclusion that ”evolving standards of decency that mark the progress of a maturing society” could be measured in part by the fact that no other Western industrialized country executes juveniles.  One may  disagree that U.S. standards are identical to those in other countries.  Justice O’Connor did so in that decision, arguing that “too few states had recently enacted such laws to convince her that the country generally had ‘set its face’ against the juvenile death penalty.”

The disagreement between Kennedy and O’Connor is the kind of disagreement courts resolve every day, but to not merely disagree with Kennedy but seek to entirely cut off reference to any source for one’s legal arguments is contrary to any notion of law I understand.  I expect it from (influential) right-wing wackos who think judges should be impeached for even considering foreign law in reaching their decisions.  I don’tf from our most recently appointed and confirmed Supreme Court Justices, John Roberts and Samuel Alito:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and JusticeSamuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

You can just as easily find “anything you want” in virtually any source courts regularly cite.  As I stated above, the answer to bad argument is good argument, not censorship.  There is nothing special about foreign court decisions except, it seems, an ever-growing U.S. fear of everything “foreign.”

Just because most people like it doesn’t mean you have to

I asked last night what it is that makes Barack Obama and not John McCain an “elitist,” and what I’ve figured out is that it’s a stupid question that, like the ad hominem fallacy, tries to avoid the issues we really need to think about.  From Butterflies and Wheels:

But ‘elitists’ don’t have a monopoly on hidden agendas and invidious motives. One-upmanship, jockeying for position, ressentiment, self-righteousness, the thrills of disapproval and condescension and getting it right while others get it wrong – those are all equal-opportunity pleasures. Anti-elitists get their own little frissons from saying You’re a snob and I’m not. In fact, of course, it’s impossible to think anything is right as opposed to wrong, that any attitude, stance, commitment, political view, idea is better than any other, without opening the door to approval of self and disapproval of others. Quite, quite impossible. If we’re too afraid of being smug and superior and self-righteous to have any opinions at all, we just become vacuous spineless shapeless nothings, and we can never improve or correct or change anything. What could be a more conservative position than that? No, abdication of judgment is neither possible nor desirable, we have to be clear about that, and just settle down to doing it well instead of badly. Terry Eagleton puts it this way:

“We should, I think, give no comfort to those who in the name of a fashionable anti-élitism would ignore real evidence of cultural deprivation, though we should remember of course that there is no single index of cultural flourishing or decline.”

The elitism epithet works to inhibit judgment because it is so a priori. It assumes, without argument, that to say that any popular book or movie or piece of music or tv show is bad is a thought-crime, because doing so second-guesses majority opinion; it says majority opinion is wrong. Democracy is expanded from the political realm to that of ideas and art, and taken to mean that the popular is automatically good and the good is automatically popular. Put like that it looks insane, but what else does the elitist epithet mean?

Sad to say, if we’re going to think at all, we have to be able to think for ourselves. De Tocqueville pointed out how difficult this can be in a democracy, and he scared the hell out of John Stuart Mill, who pointed out the difficulty and the necessity even more sharply. Both the difficulty and the necessity are still with us.

With whom would you prefer a lager?

An often effective method of persuasion is to change the topic from what the argument is about to who the arguer is. It’s known as a fallacy because, according to the Nizkor Project, “the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made)”: the topic in the presidential race isn’t what the President will do, it’s what kind of person he is. As Crooks & Liars pointed out last Spring

The data is clear. If the election is about the economy, health care and Iraq, John McCain cannot become the 44th president. Only if the GOP succeeds once again in transforming the race into a media medley about lapel pins, angry ministers and Muslim-sounding middle names can the Republicans hope to maintain their hold on the White House.

And so, [w]hile their man [or woman], be it George W. Bush or John McCain [or Sarah Palin], is the ‘authentic’ guy [or girl] you’d “’ike to have a beer with,’ the GOP drives the media conventional wisdom that paints the likes of Al Gore, John Kerry and now Barack Obama as effete, out-of-touch elitists whose positions change with the wind.”

So it shouldn’t be a surprise that today the Washington Post quoted Rick Davis, campaign manager for John McCain’s presidential bid, claiming that “[t]his election is not about issues,” said Davis. “This election is about a composite view of what people take away from these candidates.”

[This leaves aside to me a truly astonishing question: what is it that makes Barack Obama an elitist but not John McCain?]

The creative mind is the one that can master these methods, take them apart when they’re being used against him, and come back with an even more effective strategy.

But what would I know? I blog about law and creativity, and I’m an academic who used to work with a major law firm and at that time lived in Manhattan. I must be an out-of-touch elitist.