You convince people by confirming that what they believe about the world is true.

One of the most difficult things to convince law students of is that law is not merely the application of law to facts. Students start out believing that learning law is learning the rules that will answer whatever questions arise. Some students never get past that idea. The ones who become good lawyers do.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

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.

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.