I think we should shoot puppies!

There — that headline should ensure I never can be confirmed for federal office.

Dawn Johnsen, a law professor at the University of Indiana, is President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, which ” provides authoritative legal advice to the President and all the Executive Branch agencies.”  It’s the office that produced the “torture memos,” those shockingly ill-reasoned legal fig-leafs for the Bush administration’s policies regarding the treatment of “detainees in the War on Terror.” Ms. Johnsen was an “unsparing critic” of those memos.  As a result, Senate Republicans are threatening to filibuster her nomination.  But that’s not the reason they are expressing.  What is their pretext?  Twenty years ago in a footnote of a brief she wrote in a lawsuit in which she represented the National Abortion Rights Action League, she wrote that “forcing a woman to bear a child when she had no desire to do so was ‘disturbingly suggestive of involuntary servitude.’” Thus, the Republicans threatening filibuster say, she has “equated abortion with slavery” and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law professor and a federal court of appeals judge, respectively), who purported to provide legal justification for the waterboarding and beatings of U.S. prisoners.  (The torture, of course, ensured that we can never bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained by torture reliable enough to convict those terrorists.)

The Republicans are also threatening to do all they can to block the nomination of Harold Koh to be legal counsel to the State Department.  Koh is the dean of Yale Law School.  Why is he unqualified to fill the job he’s nominated for?  Because, purportedly, he thinks “Sharia law could apply to disputes in U.S. courts.” This stuff is actually taken seriously. Even though none of it is true.

I’m flabbergasted.  Effective persuasion and argument require being open to all sorts of ideas, but it also requires constraints — one cannot persuade with unpersuasive arguments.  But whether justifying torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty or absurd, will have an impact.  It reminds me of the “Obama pals around with terrorists” line.  Since he had professional connections with Bill Ayers 30 years after Ayers’ days in the Weather Underground, we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda.  I would expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in rejecting those ridiculous arguments.  So far, it seems, I’m wrong about the Senate.

Best bonds: AIG? Greatest Fascist Dictator: Adolf Hitler? Best Law School: ?????

What is it with the human thirst for numerical rankings, for judging one thing better than another even when the comparisons are known to be completely arbitrary or, at best, based on judgments so subjective regarding criteria so limited as to render the rankings nothing more than crude subjective judgments disguised as hard data?

Woody Allen fittingly complained:

What’s with all these awards? They’re always giving out awards. Best Fascist Dictator: Adolf Hitler.

But it’s not just the thirst for the rankings.  It’s basing one’s actions on rankings as if they have profound meaning despite their lack of meaning.

As I wrote recently, US News and World Report’s rankings of law schools are determined largely by the LSAT scores and undergraduate grade point averages of the students each law school admits even though those scores and averages bear no correlation to success as a lawyer; rather, they correlate only to success in law school, which, again, bears no meaningful correlation to success as a lawyer (as would not surprise most lawyers but, I would guess, would surprise most non-lawyers, including law students and law professors who have not practiced extensively).

Yet an overwhelming number of law applicants rely on the US News rankings.  Even more depressingly, an overwhelming number of law faculties make their educational decisions to improve those rankings, not to improve the way they educate law students to be lawyers. (As I also pointed out, Detroit Mercy, where I am currently a visiting professor and where I will continue in that capacity next year while remaining on leave from Case Western Reserve, is a rare exception to this rule.)

And today, reading in the New York Times about Moody’s, I realized another reason the US News rankings are so useless and their importance so poisonous to legal education.  It is because the US News rankings are accepted, followed, and never questioned in a way meaningful enough to threaten their influence. There is therefore little incentive to make judgments on a law school’s quality based on judgments independent of those rankings.

Moody’s is one of the private companies that rate corporate bonds.  When a corporation sells bonds to raise money (simply put, they borrow money from the purchasers of the bonds and pay back the loan at the interest rate called for by the bond), Moody’s issues “grades” to the bonds that predict the likelihood the corporation will pay back the loan.  “Junk” bonds are so-called because they are bonds issued by companies that are at high risk of being unable to pay the purchaser of the bond when payment is due.  In other words, junk bonds are “sub-prime” bonds.  Why do people loan money to companies or homeowners despite the high risk the borrowers will default?  Because those borrowers have to pay a higher interest rate.  The high interest rate on the loans that are repaid makes up for the loans that aren’t paid back.

The unconscionable innacuracy of Moody’s rankings, however, has played a major role in our financial crisis.  As the Times points out:

Moody’s rated Lehman Brothers’ debt A2, putting it squarely in the investment-grade range, days before the company filed for bankruptcy. And Moody’s gave the senior unsecured debt of the American International Group, the insurance behemoth, an Aa3 rating – which is even stronger than A2 – the week before the government had to step in and take over the company in September as part of what has become a $170 billion bailout.

Moody’s and the other major ratings companies also “put their seals of approval on countless subprime mortgage-related securities now commonly described as toxic.”

There are numerous reasons to the ratings companies were bound to fail, but the Times article brought up an interesting one I had never considered before.  There is little incentive to question anyone who is paid to judge the the quality of something unless and until the accuracy of those judgments is put to the test. As Frank Psrtnoy, a law professor at the Universitiy of San Diego and a former derivatives trader, explains it:

Imagine if you had a rabbi and said, “All the laws of kosher depend on whether this rabbi decides if food is kosher or not.”  If the rules say “You have to use this rabbi,”  he could be totally wrong and it won’t affect the value of his franchise.

In other words, if you wanted kosher food, you’d buy food approved by that rabbi and never question his judgment unless and until the accuracy of his judgments was threatened in a meaningful way. US News is that rabbi.  It has become the principal judge of law school quality and it doesn’t matter whether its judgments are legitimate or not.  Students buy its rankings guides, law faculties and deans make decisions driven solely by the desire to meet the criteria US News employs, and applicants and legal academia continue to make their educational decisions based on the criteria employed by US News rather than on their own judgments.

It’s a terrible situation, and particularly ironic when it comes to legal education.  Lawyers every day, every moment, make judgments and decisions based on incomplete, subjective, and biased information.  You can only consider the circumstances under which those decisions are made inadequate, however, if you believe it is ever possible to have all the information you would want and if all that information could be stripped of the distortions inherent in the limitations of human perception.  Making decisions based on incomplete, subjective, and biased information is what life is about. That doesn’t mean there aren’t better and worse judgments; it merely means that one can never be certain, that there is always risk, that almost every important decision one makes in one’s life cannot be reduced to a choice between black and white, right and wrong, #1 and #2.  Lawyers make their living making such difficult decisions and judgments.  The legal situations where there are clear answers don’t require lawyers, and if lawyers become involved they certainly don’t make much of a living answering those questions.

Yet law school applicants and law professors act as if the judgment that one law school is better than another can be reduced to a comparison of hard numbers, and that, therefore, those numbers should be the determinant of their actions.  They’re being as stupid as the investors in Lehman Brothers and AIG were in relying on Moody’s.

And the Times article mentions one other fact that bears on this point.  Warren Buffett — the man “known as the Oracle of Omaha,” the daddy we turn to to guide us out of our financial pit, “the closest thing that the United States economy has to a life coach”  — owns 20% of Moody’s.  But you know what?  In making his investment decsions he doesn’t rely at all on Moody’s ratings.  He has his own research department.  He makes his own judgments.  I wish more college graduates did the same.  And it maddens me beyond measure that most law professors don’t.

Hard cases make GOOD law.

The U.S. Supreme Court ruled today that Wyeth is liable to Diana Levine (pdf) for $7 million, the amount (reduced from $7.4 million by the judge) that a Vermont jury had awarded her (and that the Vermont Supreme Court had affirmed) based on the jury’s conclusion that Wyeth had been negligent under Vermont tort law in failing to provide a strong enough warning against intravenous injection of the drug Phenergan. As a result of being injected with Phenergan, an anti-nausea drug manufactured by Wyeth, Levine’s right arm had to be amputated. Wyeth’s warning warning regarding the safety of injecting Phenergan stated:

When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.

As Justice Stevens observed in his majority opinion, “The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection . . . can be almost entirely eliminated” by administering the drug by IV rather than by injection. The jury concluded “Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had brokenthe causal connection between the product defects and the plaintiff’s injury.”

The principal argument Wyeth made is that since the warnings it provided along with the drug were in compliance with the FDA’s requirements, the Court should have concluded that there can be no enforceable state law that requires stricter requirements. The argument would mean that as long as Wyeth had satisfied the FDA it had done everything right, no one could sue Wyeth, not even if, as the jury in Levine’s case concluded, Wyeth had been negligent and that negligence had caused the loss of Levine’s arm. In legalese, this argument is that the Federal regulation of these warnings “preempts” any state regulations on the same subject.

Whether federal law preempts state law turns on whether, in the Court’s opinion, Congress intended the federal law to do so. As Justice Stevens explains, there is good reason to believe Congress intended state tort law to supplement FDA regulation of drug safety, and there is very good reason that should be the case. Over the decades Congress has enacted laws governing the FDA, it has made clear its understanding federal regulation of drugs has needs to be supplemented by state tort law. Nevertheless, Congress has sometimes intended certain FDA regulations to preempt state law — on those occasions Congress expressly so stated in the legislation regarding those regulations. Thus, it is reasonable to conclude that congressional silence on preemption in the legislation at issue in Levine’s case indicates no intent to preempt.

Moreover, it would be foolish to shift exclusive responsibility for all responsibility for drug safety to the FDA. The FDA does not have the resources to make all determinations necessary to maintain drug safety. The drug makers do. Without state tort liability, the drug companies would be absolved of any responsibility for the safety of drug labeling. Thus, Stevens points out that

Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.

Stevens even points out that the FDA has traditionally been in favor of having state law complement their own regulation of drug safety:

The FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.

The dissenting opinion, written by Justice Alito on behalf of himself, Chief Justice Roberts, and Justice Scalia, opened with a variation on one of my most hated legal clichés — “Hard cases make bad law.” Alito’s cute variation? “This case illustrates that tragic facts make bad law.”

Why do I hate this sentiment? As I’ve written before, the ultimate point of our justice system is to do justice. The cliché that “hard cases make bad law” expresses the idea that one harms the law if one goes out of one’s way to interpret it in favor of someone you know should, if real justice rather than law applied, prevail. The jury concluded that Wyeth should have given a stronger warning against injection of Phenergan and that it’s failure to do so caused Levine to lose her arm. Those determinations could not have been overturned by the Supreme Court — they are the type of determinations left to the jury who saw the evidence. So, in the absence of explicit Congressional statements that the statute is intended to preempt state law and thus shield Wyeth from any liability, justice would seem to require  Wyeth to be responsible for the harm its negligence caused to Levine.

Since the dissenters concluded the law requires otherwise, they believe, despite their stated sympathy for Levine’s “tragedy,” that the Court’s hands have been tied and, sadly, it must find that Levine is not entitled to sue Wyeth.

Typically, as in this case, such reasoning rejects perfectly reasonable reasons to find that the “tragic victim” should prevail. Thus, it seems, typically when a court hauls out that old “hard cases” line, it is really not acting in the interests of either law or justice, but, rather in the service of a cause that remains largely hidden.

That cause, in this case, is the conservative campaign against state tort lawsuits (in the name of “tort reform”).

Why do we have such safe drugs? Such high standards in the quality of our medical care? Cars enormously safer now than just a couple of decades ago?

Because the people and organizations most responsible for that safety and most capable of maintaining it are held responsible if they don’t provide for that safety. Tort regulation isn’t perfect, but it’s a lot better than governmental regulation alone. (No regulation at all, of course, would lead to drugs we could have no confidence in.)

But Alito, Steven, and Scalia are clearly acting in the service of the interests that would get rid of state tort suits — in this case, the pharmaceutical industry. This case isn’t a result of the majority’s effort to make people happy for Levine; it’s a case that both does justice to her and is consistent with existing law and sound national policy that Stevens has persuasively explained. Alito isn’t sorry that Levine lost her arm. He’s sorry Wyeth can be sued for its negligence.

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.