Peter Friedman
Visiting Professor, University of Detroit Mercy Law School
Ruling Imagination: Law and Creativity
Think for a moment whether you can imagine Socrates saying, “Let’s stop talking and go play; we all know you can learn as much about a person in an hour of play as in a year of conversation.”
One of Sarah Palin’s favorite rhetorical moves is the maxim. She resorts again and again to brief sayings she intends to be pithy and apt. Just off the top of my head on Friday I remember her mentioning that only dead fish go with the flow and that, as her parents’ refrigerator stated, your friends don’t need explanations and your enemies won’t believe them.
She often too attributes the maxim she is quoting to some authority or other. One danger in doing this type of thing, especially if you do so without having done more than cursory research or are speaking off the top of your head, is attribution to the wrong source. When she stated that General McArthur had said, “We’re not retreating, we are advancing in a different direction,” she apparently was quoting General Lewis B. “Chesty” Puller, not Douglas McArthur. Of course, Puller isn’t known to her audience (nor to me or, likely, to her), so the quote would not pack the same impact if properly attributed.
The bigger problem, though, is the credibility lost due to improper attribution. But there’s even more danger. You can look just plain stupid. In her Runner’s World interview last week, she said, “We like to have other people participate in these activities with us because, as Plato said, ‘You learn more about a person in an hour of play than in a year of conversation.’” The Weekly Standard (in a post actually entitled “The Philosopher Queen” and now mysteriously gone from its web site(Google cached version), blogged on Wednesday, June 29th: “Sarah Palin mentions a (perhaps apocryphal) quote fromPlat0 in her fascinating interview with Runner’s World.”
Perhaps apocryphal? Could anyone who thinks about Plato for one minute doubt the quote does not come from Plato? Plato’s entire corpus is in dialogue form. His version of Socrates is the foundation of Western philosophy. How is Socrates always portrayed? In conversation. Could you imagine Socrates and Plato suggesting that the dialogues Socrates engaged in should be broken up for some play because “you learn more about a person in an hour of play than in a year of conversation”? It’s ridiculous. It’s ridiculous to even think so, and it betrays nothing but thoughtlessness.
The Power to Pardon and Turkeys
The President and governors have the power to pardon and grant other relief and/or immunities from criminal prosecution. The web site Pardon Power reports the news on the exercise of these powers. As it explains, a “pardon” is
The removal of all disability or punishment. Pardons may be granted before or after conviction. Today, they are usually granted in order to restore civil rights (the right to vote, hold public office, participate in a jury, own a firearm, etc.). Pardons can have conditions attached. There has been a steady decline in the granting of pardons since 1900 whether one looks at the raw number of pardons, the percentage of applications that result in pardons or the percentage of presidential clemency decisions which result in pardons. There has, however, been a more accelerated decline since the late 1960s.
The site also defines on its home page the terms amnesty, clemency, commutation, expungement, remission, reprieve, respite, and sealing, all powers that executives can exercise unilaterally to relieve the burdens of criminal prosecution, whether that prosecution is a potential one, an ongoing one, or a completed one.
Each year the President and some governors engage in a “pardon” of a turkey, which I suppose is intended to deflect our minds from the annual mass sacrifice of turkeys for our national day of gratitude. This year, as seattlepi.com reports, Sarah Palin’s pardon turned into an seeming parody of itself:
Moments after pardoning a Thanksgiving turkey, she gives a news conference at a turkey farm – unaware that apparently unpardoned birds are being executed behind her. MSNBC’s captions include, “Turkeys Die as Governor Palin Takes Questions from the Media,” “Gov. Sarah Palin Keeps Talking While Turkeys Get Slaughtered Behind Her,” and “Gov. Palin Apparently Oblivious to Turkey Carnage over Her Shoulder.”
As the Gothamist notes, this is “probably why the White House Turkey Pardon is done at 1600 Pennsylvania Avenue and not at a slaughterhouse.” Then again, another law professor writes: “Deal with it, you candy-asses. If you eat meat, something like that is going on in the background for you too.” A Palin supporter writes, “After she’s sworn in in 2013, I hope President Palin arranges for a ritual turkey slaughter to be going on behind her at every press conference,” Another: “Farmers kill animals. Then they sell them. Grocery stores package them. Meat-eaters buy them and eat them. This is no big deal – except if you reside in the Ivory Tower or the David Brooks/Kathleen Parker/Arianna Huffington/Daily Kos intellectual complex.” Still another likes the suggestion that Palin “did it on purpose. Tough call: I’m sure she wasn’t fazed by the sight, but it certainly isn’t above her to undermine the stupidity of the ‘turkey pardon’ tradition. If she was having a little passive-aggressive fun, she’s certainly earned it.
From a different point of view, as Joe Windish observes, Michael Pollan wrote in The Omnivore’s Dilemma:
Sometimes I think that all it would take to clarify our feelings about eating meat, and in the process begin to redeem animal agriculture, would be to simply pass a law requiring all the sheet-metal walls of all the CAFOs [concentrated animal feeding operation], and even the concrete walls of the slaughterhouses, to be replaced with glass. If there’s any new right we need to establish, maybe this is the one: The right, I mean, to look. … The industrialization-and brutalization-of animals in America is a relatively new, evitable, and local phenomenon: No other country raises and slaughters its food animals quite as intensively or as brutally as we do. No other people in history has lived at quite so great a remove from the animals they eat. Were the walls of our meat industry to become transparent, literally or even figuratively, we would not long continue to raise, kill, and eat animals the way we do.
The turkey pardoned this year by the President, incidentally, is known as the “National Thanksgiving Turkey.” This year’s National Thanksgiving Turkey, according to the White House, was flown after its pardon “first class to Disneyland Resort in Southern California, where he [was] the grand marshal of ‘Disney’s Thanksgiving Day Parade.’ After the parade, guests will be able to visit the turkey in Frontierland section.”
If you can’t say it clearly, you aren’t thinking it clearly.
At Language Log, Geoffrey K. Pullum makes a crucial point in criticizing Sarah Palin’s inchoherence:
I think being so utterly unable to explain what one wants to say is truly and reasonably regarded as a defect in one’s qualifications for office – partly because being so inept at talking in a controlled and sensible way strongly suggests that there was no sensible thought back there, and partly because even if there were sensible thoughts back there somewhere, a leader needs to be more skilled at articulating them.
I suppose I’d qualify Mr. Pullum’s statement in one way — where there’s incoherence, there rarely are sensible thoughts, even allowing for the ungrammatical nature of a lot of spoken language,
In short, if you cannot write or speak your thoughts coherently, you don’t have coherent thoughts. Think about it. How often have you heard a lecture, thought how much brilliance was there, and then gone home to write down notes embodying that brilliance, only to find out that there are gaps and fallacies filling spaces that must be filled if the brilliance is to persist?
If you can’t say it, you don’t know it. On this point, Malcolm Gladwell’s Blink has been widely misinterpreted (and was perhaps intended) as a brief in favor of gut feeling over analysis. I think, given the compelling examples he writes about, that Gladwell’s thesis would better be stated as follows: the gut feelings of people well trained and experienced in a field are often better than analysis. There is a huge difference between the gut feelings of hockey moms untrained in tax or foreign policy and hockey moms trained in tax and foreign policy when it comes to opining on tax and foreign policy. Richard Posner’s review of Blink explains (emphasis and hyperlink added) my point well:
As Exhibit A for the superiority of intuitive to articulate thinking, Gladwell offers the case of a purported ancient Greek statue that was offered to the Getty Museum for $10 million. Months of careful study by a geologist (to
determine the age of the statue) and by the museum’s lawyers (to trace the statue’s provenance) convinced the museum that it was genuine. But when historians of ancient art looked at it, they experienced an “intuitive revulsion,” and indeed it was eventually proved to be a fake.
The example is actually a bad one for Gladwell’s point, though it is a good illustration of the weakness of this book, which is a series of loosely connected anecdotes, rich in “human interest” particulars but poor in analysis. . . .
But back to the case of the Greek statue. It illustrates not the difference between intuitive thinking and articulate thinking, but different articulate methods of determining the authenticity of a work of art. One method is to trace the chain of title, ideally back to the artist himself (impossible in this case); another is to perform chemical tests on the material of the work; and a third is to compare the appearance of the work to that of works of art known to be authentic. The fact that the first two methods happened to take longer in the particular case of the Getty statue is happenstance. Had the seller produced a bill of sale from Phidias to Cleopatra, or the chemist noticed that the statue was made out of plastic rather than marble, the fake would have been detected in the blink of an eye. Conversely, had the statue looked more like authentic statues of its type, the art historians might have had to conduct a painstakingly detailed comparison of each feature of the work with the corresponding features of authentic works. Thus the speed with which the historians spotted this particular fake is irrelevant to Gladwell’s thesis. Practice may not make perfect, but it enables an experienced person to arrive at conclusions more quickly than a neophyte. The expert’s snap judgment is the result of a deliberative process made unconscious through habituation.
Sarah Barracuda? Not if Heart can help it.
Ann Wilson and Nancy Wilson posted a message Friday on their Web site condemning the use of their 1977 hit at the Republican convention. The song was played when McCain, the party’s presidential nominee, was joined onstage after the speech by his running mate, Alaska Gov. Sarah Palin. . . . Republican officials didn’t ask for permission to use the song and would not have been given the OK if they had done so, the Wilsons said.In a statement posted Friday on the EW.com site, the Wilsons wrote:
“Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song ‘Barracuda’ no longer be used to promote her image. The song ‘Barracuda’ was written in the late ’70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.”
In the heart of his 1984 re-election campaign, Ronald Reagan made a speech in Hammonton, New Jersey, and took the opportunity to invoke the name of one of the Garden State’s favorite sons.”America’s future rests in a thousand dreams inside our hearts,” the president said. “It rests in the message of hope in the songs of a man so many young Americans admire: New Jersey’s own Bruce Springsteen.”
Reagan — or his speechwriter — was likely thinking of one song in particular: “Born in the U.S.A.,” the title cut from Springsteen’s No. 1 album of the time. . . .But look deeper, and there was another dimension to “Born in the U.S.A.” The song was the ferocious cry of an unemployed Vietnam veteran.”Down in the shadow of the penitentiary/Out by the gas fires of the refinery/I’m 10 years burning down the road/Nowhere to run ain’t got nowhere to go,” Springsteen sang in a working-class howl.The singer wasn’t amused by Reagan’s appropriation of his work. “I think people have a need to feel good about the country they live in,” he later told Rolling Stone. “But what’s happening, I think, is that that need — which is a good thing — is getting manipulated and exploited. You see in the Reagan election ads on TV, you know, ‘It’s morning in America,’ and you say, ‘Well, it’s not morning in Pittsburgh.’” The singer, who spent much on 1984 on a huge concert tour, dedicated ‘Born in the U.S.A.’ to a union local at one stop.
Segways.
Hey, maybe I should sue for copyright infringement!

