Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Anonymous online writing: bad writing that wouldn’t see the light of day if the writer knew readers could match the words to the person.

Wow. I apparently touched a nerve the other day when I blogged on this post and the thread of comments following it and expressed my preference for Dan Hull’s view that anonymous blogging is cowardly.

At the risk of offending one anonymous commenter who desperately wants me to condemn Dan’s insistence on insulting him and forget what I care about — writing words that one is willing to stand behind and justify — I will try to clarify and expand upon what I wrote:

I never said one cannot write anonymously. Quite plainly I don’t ban anonymous comments on my blog. Quite plainly I’ll never be Lord of the Internet with the power to ban anonymous writers. Nor, if I were Lord of the Internet, would I ban anonymous writing. I believe in the freedom of speech, even speech that expresses views I despise. Views I think are stupid are another tolerable phenomenon.

But I do care deeply about the quality of writing. I teach law students how to write as lawyers, and the vast majority of my professional life as a law professor and a lawyer depends on the effectiveness of what I write. One thing I am convinced of and try passionately to convince my students of is that that you cannot be an effective writer if you do not have the courage to own your words. By that I mean, among other things, that you must believe in your words, believe those are the  best words you could come up with under the circumstances to express your point of  view. If you don’t do so, you’re just parroting things you haven’t truly thought through. Your failure to think them through typically means you haven’t entirely grasped what it is you’re trying to say (and what the writer of what you’re parroting meant to say). It also means your words will not convince the intelligent reader who isn’t already convinced that you’re right.

One necessary implication of my belief in the necessity of owning your words is that anonymous online writing loses a lot of its credibility by the very fact that it is anonymous.

My view does not mean that anonymous writing entirely lacks credibility.The anonymous author’s character (and an anonymous author has a character, one that makes an alert reader wonder why he isn’t willing to claim his words as his own) detracts from the reader’s valuation of that anonymous author’s writing. But a myriad of factors go into influencing a given text’s persuasive force. The author’s character is only one, albeit an important one.

The point that really seems to have hit a nerve is that it seems plain to me that choosing to write anonymously is for all relevant purposes grounded in fear. Sometimes that fear justifies the anonymity because (a) the author’s fear is of sufficient immediate and substantial harm and (b) the message is so important that even if it is compromised by anonymity it is worth getting out. Where those so offended by my views and I differ is in the amount of courage we think is appropriate. They have fears of the consequences of identifying themselves online when they write and they’re deeply offended that I don’t believe those fears justify their ways of using anonymity.

Thinking he had caught me questioning the courage of one of my colleagues (whose views, not courage, I question) one anonymous commenter pointed out that Jonathan Adler blogged anonymously on the Volokh Conspiracy as “Juan non-Volokh” prior to being granted tenure. At the time, Jonathan had a legitimate fear that the mere act of blogging would jeopardize his shot at tenure. As a general matter at that time, blogging was not only considered beneath legal scholars, but also to be an actual drain on time better devoted to “real” scholarship. (While blogging is no longer a negative in the eyes of most professors, it still is considered by most entirely irrelevant to scholarly achievement). I have absolutely no reason to believe Jonathan chose anonymity to hide the substance of the views he expressed on the Volokh Conspiracy. Those views were quite well known among his colleagues (and to the public) and in substance were entirely of a piece with the public writing he did under his own name. Nonetheless, I do believe that Jonathan’s writing under his own name has more force than his writing did under his chosen pseudonym. Nor do I have any reason to believe he would disagree.

To take one of Dan Hull’s more obvious examples of non-cowardly fear justifying anonymity, an Iranian dissident has good reasons for writing under a pseudonym. But one question his anonymous identity might raise, among others is this: is he really a dissident or is he in fact a CIA or Saudi plant? All sorts of credibility problems arise when one chooses to separate one’s writing from one’s identity.

Ken, who chooses anonymity, has written that he prefers to remain anonymous because his favorite styles are, as he describes them, “satire, sarcasm, and ridicule.” Ken also believes that “these are potent weapons in the fight over ideas.” But, unfortunately, poor Ken is too subtle for most people and he therefore fears their reactions:

People don’t like being made fun of. Moreover, some people are functionally incapable of understanding irony, sarcasm, and satire. Other people are offended easily, and particularly by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally featured here to the extent it amuses us.

I would suggest to Ken words he so proudly identifies as satire, sarcasm, and ridicule are not really the “potent weapons” he believes they are. It is well known that online writing in particular is a very poor medium for the effective use sarcasm. Effective satire that actually persuades someone previously unconvinced of the writer’s point of view is a very rare thing. Far more often, satire is just the words of someone seeking affirmation from others who share the writer’s contempt for the object of the satire. And ridicule? Ridicule amuses your toadies. To everyone else, it’s just name-calling.

But Ken is no Jonathan Swift, and I think he knows it. In fact, Ken’s “satire, sarcasm, and ridicule” are, to my mind (and to the mind of those who are convinced by me, but plainly not to Ken and his anonymous colleagues), merely the lazy expression of hostility and disagreement.

But, regardless of how we characterize the writing that Ken believes to be a “potent weapon in the war of ideas,” what he fears is the risk those “functionally incapable” of understanding his meaning would pose to him. Who are these people? Well, he once worked for big firms that would so dislike what he wrote he feared his employment would be threatened. He has clients he fears he’d lose if they knew the truth of his views on social issues. He fears needing to justify his writing to opposing lawyers or judges who might use those words against him. He fears he or his family will be stalked or threatened like other bloggers have been. And he bravely wrote critically once about a white supremacist who lived just one town over from him.

Are these fears the legitimate fears of a brilliant writer wielding potent tools in the war of ideas? You can judge for yourself. The fear of the law firms, the clients, and opposing counsel and judges seems to me more likely fears of being busted for using stupid words by people to whom one has the responsibility to express oneself intelligently. The fear of being stalked seems to me the fear of something so unlikely (even though it does happen, of course) that it’s really nothing but an empty rationalization. The fear of the white supremacist? I might grant Ken that one, but then why does all of his writing need to be anonymous?

To address the question more generally: are your political views so inconsistent with your employment that your job would be threatened if you really expressed them? Are you so desperate for a job you need to keep that one despite the fact it is inconsistent with true expression of what you believe? Are you writing online about your employer despite an employment policy that forbids you to do so? Is that a legitimate exercise of anonymity? If you’re Karen Silkwood or Daniel Ellsberg, it would be, but I have grave doubts that the people complaining to me are in that league.

And if it’s your clients’ reactions you fear, why would they not like what you write? Would they like it if they knew you were hiding your real thoughts from them? Why do you represent them if legitimate expression of what you really believe would offend them? Are you really capable of representing them zealously if you harbor secret thoughts that, if known, would cause them to retain different lawyers? Is a blog really an appropriate place for telling stories about how dumb your clients are? You enjoy doing it. You want to do it. But does being able to do that justify anonymous blogging?

I AM NOT suggesting that  fears are always illegitimate. What I am suggesting is that a free-floating fear of being stalked as a result of online writing is pretty far off the wall. And I’ve worked for big law firms and clients of all sorts. It’s not the everyday law firm or client who would fire you for thoughtful writing online. There would have to be something really atrocious about the employer. And clients care far more about courage, skill, and passion than they do about disagreements on social issues that are irrelevant to their representation, especially if those views are expressed cogently and the lawyer is willing to stand behind those views. The last thing clients want is a lawyer who’s afraid to let the world know that he believes in and will stand behind his words.

And are these fears so real that they justify anonymity on everything a blogger writes? Selective, tactical anonymity is an option, guys. And choosing to remain silent on matters that you can’t write about in ways that won’t endanger you with people who matter to you is an option too. That of course, is a whole other topic: a good lawyer takes a lot of really interesting stuff to his grave with him.

And, honestly, I don’t see substance on Popehat (the site I originally linked to and from which the hostile commenters came) that would usually be the sort of thing that would threaten the livelihood of its authors or commenters. They’re a bunch of guys who might like to romanticize the subversiveness of what they write, but, really, they’re not exactly a threat to anyone or anything.

Nor am I.

Then again, while the content at Popehat is pretty run of the mill, the words themselves do not really do that substance a lot of justice. And that indeed is a major part of the problem. As Charles wrote, anonymity allows you to write that a cop was a “fascist” without people who know you and would be offended by those words know that you wrote them. But merely writing that a cop is a “fascist” is just nasty name-calling, not credible writing. And Patrick, in the very first comment responding to my blog post – writing anonymously, of course — explained that he’s never heard about me but that if he really cared he could “write a blogpost mocking [me], that would stick to the front page of a Google search for [my] name forever.”

A put down and a threat as an opening move? That’s a perfect example of why I called anonymous writing online cowardly. If one is going to insult and threaten, one ought to have the courage to let one’s employers, clients, loved ones, and targets know that being a bully is what one is in the business of doing.

Or one could claim to use insults rhetorically, to highlight a point, but that’s a dangerous game, and it takes a special person to get away with it, and Dan Hull happens to be a special person.

But the most important thing about Dan Hull for purposes of this discussion (though quite plainly Patrick and his Popehat People want to make anyone who happens upon this post or the last one on this point think otherwise) is that Dan Hull wrote those insults under his own name! He’s willing to own and justify those insults. And doing so has benefited him immensely. Clients love lawyers who make the work their own. And it sure doesn’t seem that the Popehat guys are big believers in political correctness, so I can’t believe they were genuinely hurt by his words except to the extent the substance behind his insults hit home.

My point is that if you don’t own your writing you cannot truly be persuasive. That’s why I emphasized that my students, as lawyers in training, must learn to own their words, to be ready to justify the choices they made in writing the words they wrote.

And Charles happens to be right about one thing — outside the law (and too much within it, truth be told) the courage to own one’s words is sorely lacking. I think that’s a real shame and a major loss for the quality of any discourse, be it about politics, literature, science, religion, etc. Charles, I guess, expects less of people than I do. I also think that people would be surprised how much they’d benefit from saying what they mean in ways they’d be proud to claim as their own to anyone.

Finally, I am making no demands. I am stating my point of view. Yes, I am an Associate Professor of Legal Writing, but that’s just a title. And I hardly use it to put on airs. Anyone who knows anything of the status wars within academia or has read much into my archives knows I write quite openly, under my own name, about (1) the fact my title is reflective of a remarkably low status and an absence of job security and (2) my opinion that (contra Patrick) law professors are NOT an elevated class.

Am I a nobody? Well, Mike (whoever he might be) certainly things so. One thing I do know — anyone with access to an internet connection has about as good an opportunity to determine that for themselves as they would for anyone who writes openly under his own name.

And they can take that information and factor it into their judgment whether and the extent to which they agree with me.

Here’s my suggestion to everyone, including the Popehat guys: try writing under your own names. You might find your words and views become far more compelling not only to your readers but also, far more importantly, to yourselves. But be careful: being thoughtful and precise — writing things that you’re willing to justify to those who challenge them — might make you rethink some of the stuff you hold to so passionately.

Or you can ignore me entirely. That’s entirely your prerogative. You can even, if you wish, go on thinking of me as a narcissistic nobody who doesn’t matter, and I’ll go on thinking of of most anonymous bloggers as a bunch of cowards who write to please themselves and don’t persuade anyone who hasn’t already bought into their point of view.

And when it gets down to it, tthe vast majority of anonymous online writing is simply bad writing that wouldn’t see the light of day if the writer knew everyone he knows could match the words to the person.

Own your words. Anonymity is cowardice, and cowards aren’t known for their wisdom.

An important lesson for my legal writing students: you must own your words to be genuinely persuasive.

By that, of course, I do not mean that their words are their property. There’s a lot of confusion about that issue, but that’s not today’s lesson.

What I mean is that it’s not enough to parrot words you believe are authoritative to make your case. You must use words you know in your heart state what you mean. Parroting the words of others, even if they are authoritative, won’t do that. Which is why one of my favorite quotes is Ralph Waldo Emerson’s: “I hate quotations. Tell me what you know.” (I love paradox too.)

But in order to own your words you have to have the courage to stand behind them too. It’s one reason I bemoan the influence of anonymous student evaluations. It’s why too I’m all in with Dan Hull in this insane exchange about his insistence that anonymity is the death of productive discussion on the internet.

What possible conviction can you hold in your words if you’re not even willing to put your name to them? As Dan makes clear, there are of course exceptions to this rule — there are times anonymity is necessary to preserve one’s safety. But legitimate fear for one’s safety for stating disagreement is a rare thing that we don’t encounter terribly often in 2010 on the internet in the United States. It’s almost hilarious to find people disputing Dan under the pseudonyms “Publius” and “Marcus Agrippa.” Almost hilarious. Really, it’s pathetic.

If you can’t own your words, put yourself forward as the authority behind your words and rely on the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. I’ve said it recently: a good thing about being a lawyer is there is always someone telling you your wrong. You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but cowardice, and cowards aren’t known for their wisdom.

Paris Hilton as law professor: each judge is your BFF, and remedies are everything.

Knowing the law and being a lawyer are two entirely different things. If something is illegal, does that mean you can’t do it? That would mean you can’t drive 26 mph in a 25 mph zone. In other words, it’s not about whether something is legal or illegal; it’s about consequences, remedies. If you’re in breach of contract, it doesn’t matter much if the party suing you doesn’t have proof that your failure to live up to your promise actually caused the harm you’re thinking of.

Paris Hilton understands that. She also understands how to get a judge on her side. As Law.com reports, “Hilton flirted with a Miami federal judge and mentioned her Zodiac sign as she testified Friday in a civil trial seeking the full production cost of the box office bomb “Pledge This!” for allegedly scanty promotional work.” The plaintiff in the case is “Worldwide Entertainment Group, which was seized by federal regulators as a Ponzi scheme after producing Hilton’s 2006 movie.” Hilton is arguing that she fulfilled all her contractual obligations to promote the film and that her schedule is booked months in advance. To illustrate, she explained that last week she was filming her new reality show, “My New BFF,” in Dubai. “This prompted Moreno to ask what ‘BFF’ stood for. Hilton explained the acronym is short for ‘best friend forever’ and added, ‘You’re my best judge forever.’ Spectators applauded.”

Hilton’s lawyer is arguing not only that she fulfilled her contractual obligations, but also that even if she didn’t the World Wide Entertainment can’t show her failure to do so is the reason the film only made $2.9 million in theatrical release. The judge, apparently won over by Paris, seemed open to that argument — “Moreno said even if he finds Hilton could have done more to boost the movie, he doesn’t know how he can translate that into damages. ‘I know even some of the greatest actors flopped in the movies economically,’ he said.”

Yes, lawyers need to be experts in design and typography too.

I always tell my students that one of the reasons the first year of law school is so difficult is that they come to law school thinking their time and effort will be completely exhausted by the effort to learn all the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case law and regulations and secondary source interpretations to find the rules. Applying them is a whole different thing. That’s probably the hardest part.

But one of the most difficult parts of lawyering, one most students take a particularly  long time to grasp, is that you have to pay attention to everything. So you act like a professional: you show up on time; you use professional language, not the language you use with your friends or on Facebook; you take criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to be a good lawyer, not to earn a good grade.

It never ends. But that’s okay — there’s just always room to get better.

And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. I’m very impressed by his recognition of the reason his expertise is needed. He explains that using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm Beach County, Florida as an historic example of the bad consequences of bad design.

What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be to fail to appreciate that the defect would likely have been known and its consequences guarded against, according to Edward Tufte, if the charts presenting the critical information to the decision makers had been rationally designed. Tufte‘s expertise is in the effective use of graphics in conveying information. He’s a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.

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.