Notes

One of the many things they don’t teach you in law school is how to persuade someone, especially someone in a black robe. How do you “make your case”? Law school did teach me how to do legal analysis—or at least introduced me to the basic tools of legalist reasoning—but persuasion is not the same thing as analysis.

Sure, I can state the law, apply it to the facts, and explain why my client should win. But will that really persuade anyone? A few months ago I might have said yes, or at least, “Yes, it should persuade a judge.” With only five months of practice under my belt, however, I’ve become both skeptical about whether legalist technique ever works and cynical about whether it actually works even when it seems to work. What are judges and others in a position to be persuaded really looking for?

Sometimes a judge will ask, “What gives me the authority to grant the relief you seek?” Maybe the judge is looking for a legal basis to rule in your favor. Or maybe the judge is repurposing a legalist concept—the search for “authority”—to veil a decision made on concealed, non-legal grounds: “I don’t want to rule in your favor,” the judge seems to be saying, “So no matter what you come up with, I will find a way to brush it aside as not authoritative.” Or maybe the judge really does take a legalist approach, but takes the method so seriously that he or she refuses to exercise any discretion unless there is a rule of decision so clear that ignoring it is no longer a reasonable—or sane—possibility.

Maybe “the facts” will be more helpful? I have yet to grasp this possibility. You can have a whole pile of facts, but the don’t mean anything unless you can give them a narrative structure, and even then you need some standard outside those facts to lend them the kind of moral value and persuasive weight required to reach a decision.

Maybe the central figure of your story is a bank robber with a heart of gold, so the prosecutor hammers on the “bank robber” part while the defense attorney hammers on the “heart of gold” part. What makes their different narrative emphases meaningful to a judge or jury, except for a preconditioned view that something is bad about robbing banks and something is good about having a “heart of gold”? And what is that preconditioned view? Law? Justice? Something else? What social policies are implicated by one or the other view? Are we trying to punish bank robbers, or reward the hearts of gold? Do we care more about the personal consequences for the players, or the economic consequences for those affected? Are we prohibiting certain conduct based on its inherent characteristics, which presumably do not fit the mold of our society, or are we doing something else? The law typically defines illegal acts by their inherent characteristics: taking property without consent by force or threat of force, with the intent not to return it. Other motivations are supposed to be irrelevant. But are they?

I want to fall in with those who assert that rules have a great economizing effect because they reduce the number of factors we need to consider before imposing a penalty. And that doesn’t just simplify the process of deciding when penalties ought to apply; it also simplifies the process of deciding which conduct to engage in because you can more easily predict the likelihood that a penalty will be imposed. Sometimes the rules of law, as an economizing force, will bring us to outcomes that may seem “unjust,” despite their being “legal,” but isn’t that what the “rule of law”—as opposed to the rule of a capricious tyrant, even an enlightened one—all about?

But having seen decisions that appear to flow from a source outside the rules of law, I am deeply skeptical that rational, economizing factors are what drive the decisions of judges. Which is not to say that the judges are capricious tyrants—even though I frequently disagree with their decisions on legalist grounds, I find their decisions to comport with justice almost as frequently. And there is the problem: How do you define justice, except in a circle, to say that justice is simply what “feels” right? Where are the standards? Where is the predictability? The economizing force of law? But how do you persuade someone that something is right without making recourse to some external standard that defines that rightness? “My client should win because it just feels right, Your Honor.” Fat chance persuading anyone with that argument.

This is why “you win some, you lose some.” This is why judicial outcomes are frequently controversial. This is why lawyers cannot guarantee or predict outcomes. Deep down, I suspect that nobody knows how the law works, and nobody knows what it takes to be consistently persuasive, except that you can be more polished and less objectionable. In other words, counterintuitive though it may seem when the subject is “persuasion,” I suspect that you can do much more reduce the likelihood of an adverse decision than you can to increase the likelihood of a favorable one.

Why is this? Probably because we are much better at rejecting things than accepting them, which I also suspect is why one classic decision-making technique is the “process of elimination.” The things we don’t like are the things that stick out most clearly—”like a sore thumb,” as we say—so we look for those, or just see them, first. So what is persuasion? Inspiring the judge with your positive argument, or hiding all your sore thumbs? My experience is pretty meager so far, but judges rarely seem susceptible to inspiration. Like anybody else with a heavy workload, they’re just looking for the sore thumbs that will tip your hand.

So what do you need? The law on your side? The facts on your side? Or no sore thumbs? I’m starting to think that, no matter the law or the facts, your main concern should be those sore thumbs. Do what you can to reduce the likelihood of an adverse decision because that is probably all you can do. Yes, that’s a cynical outlook, but sometimes the cynical outlook is the one that gets the job done.

I recently subscribed to The Green Bag, subtitled “An Entertaining Journal of Law.” Having read through most of the Winter 2009 edition (the only one I’ve received so far), I’m not sure the word “entertaining” usefully describes this journal, but the contents are relatively light and they manifest a sense of wit that other journals lack. Reading a few more editions will probably make up my mind.

One of the more interesting parts of the Winter 2009 edition is its reproduction of the first issue of Journal of Law, published in Philadelphia, July 7, 1830. The first item in the Journal appears to have been an explanation for its publication, including the following paragraph:

It is always important that the inhabitants of a country should possess a general knowledge of the laws by which they are governed, and especially of those regulations which affect them in the pursuit and transaction of their ordinary business. In the United States, where the people exercise so controlling an influence on legislation, it is emphatically necessary that they should be, to the greatest attainable extent, instructed in the philosophy of general jurisprudence, and in the state and leading principles of our own. Unless such instruction be widely diffused, what is good in our system cannot be secure from innovation; what is evil cannot be properly amended.

After 179 years, we still have a need for greater public understanding of the law and the means of its creation, or “the philosophy of general jurisprudence.” Instead of a belief that this is a society ruled by law, which is by definition shared, consensual, and reciprocal, our culture seems to be dominated by a belief in what can probably only inaccurately be called “justice,” thought not in the universal sense. We like vengeance, retribution, comeuppance, and “payback.” We like “zero-sum games,” with spectacular conflicts resulting in both winners and losers. We like “good guys” and “bad guys,” where the bad guys are always bad and the good guys never have to think much about the consequences of their actions: if you’re a “good guy,” then whatever you do must be “good” by definition, right?

But recognizing the rule of law means understanding that actions, rules, and consequences—conduct, laws, and remedies—rely on broad if not universal consent to governance that benefits everyone, not just a few. Enforcement of law should not be an act of vengeance, but a manifestation of our disapproval of vengeance in favor of order. Criminal prosecution and punishment, for example, lie in the hands of the government precisely because we want to address disruptive conduct in an orderly way, without leaving citizens to their own retributive devices. Civil suits, when they happen, should remind us that both sides must consent to orderliness of the system before their submission to the court means anything.

Instead of this, however, we play the law like a game, a weapon whose “technicalities” and “loopholes” can be deployed against our enemies. Just look at the whole same-sex marriage battle here in California. The “people,” so the Legislature created “registered domestic partnership” and cleverly just referred to the provisions of the Family Code relating to marital property and dissolution. Then supporters of same-sex marriage said that violated equal protection and the California Supreme Court agreed. So opponents of same-sex marriage organized a campaign to amend the state constitution because an act of the “people” would, they hoped, go over the Court’s head, so to speak. Then the opponents filed a lawsuit and said the amendment was a revision and ought to be thrown out, while the state Attorney General said the amendment was itself unconstitutional. People chant in the streets, hold rallies, verbally and physically abuse each other, and generally act like a bunch of idiots. Opponents of same-sex marriage engage in what can fairly be called “fearmongering,” while supporters offer little improvement on the technique, sticking intead with repeated chants and slogans. What is missing from this process? How about a discussion of substantive issues? How about some reasoned discourse about the specific reasons why allowing same-sex couples to get married would or would not be good for the state, with specific reasons on both sides? How about something relating to legitimate issues of public policy, instead of personal feelings or beliefs, anecdotal heartstring-tugging, and soundbites?

And the talking heads and pundits get on the airwaves and use the dispute as an opportunity to give Californians a “civics lesson,” or some such nonsense. No, this is not a civics lesson. It is a lesson in gamesmanship. Californians on both sides have demonstrated that civics and law mean almost nothing to them, except that they can be re-purposed as clubs to beat each other over the head.

What will it take for people to learn their lessons?

I have elsewhere suggested that granting religious exemptions to otherwise generally applicable laws is a bad idea because, of the two ideas in conflict—the religious idea of the exempted person and the legal idea of the society, the legal idea of the society should be granted more weight. E.g.:

If you want to have a moral principle, if you want to exercise your conscience, then why can’t you do it in a way that can be grounded in reality, in what we experience?

And:

You want to have an opinion? You state it, and you fight for it, and you back it up with solid reasoning—but the laws will have to apply to you just the same as they apply to everybody else.

In other words, I have suggested that religious exemptions rooted in the exercise of conscience are objectionable because there is no solid ground for such religious ideas: they are wholly imaginary. An easy criticism of my view might be that the legal ideas of society are no more connected to “solid ground” than religious ones. Aren’t laws arbitrary and imaginary, too?

Professor Stanley Fish, reading Thomas Hobbes, suggests otherwise in his blog “Think Again” at the New York Times.

Hobbes begins with the etymology of “conscience” — conscire, to know in concert with another — and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” it is a violation of conscience — of knowing together — to prefer their “secret thoughts” to what has been publicly established.

. . .

[I]f one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

Interestingly, this reminds me of Heidegger, whose Being and Time I was reading over the weekend. One of the ideas I reap from Heidegger is that everything is grounded in its relation to everything else. To make a bastardized summary in Heideggerian form: what gives our being solidity is its being in relation all the rest of being. In other words, turning back to Hobbes, whose work is much easier to grasp from the get-go, conscience, as something created relationally, has much greater heft than something asserted individually; something that arises from “two or more” who “know it together” is much more trustworthy than something that arises from one—perhaps a prophet or other self-appointed apocalyptic messenger of the alleged divine?

And the easy critique of that view is that religion is also created relationally. Doesn’t that put it on an equal footing with “authorized external bodies” like legislatures, courts, and professional associations? Probably not—at least not in my opinion. That takes me to another philosopher, John Rawls, and his idea of the “overlapping consensus.” We can’t all agree on everything, but we can all agree on something, and that something should be at the core of our system of governance. Call the overlapping consensus our Hobbesian conscience with a Heideggerian pedigree. (Or not, if you you don’t enjoy the philosophical name-dropping, Bruce.)

In short, the religious conscience is “softer” than the force of generally applicable laws because when we’re in the public sphere, where we have little choice in the fact that our neighbors may take different moral or religious views than we do, we still must relate to those neighbors as the face—or the mirror—of the society that enables our social existence. Granting people the ability to undercut the basic structure of human society because their moral or religious views are different from those we’ve elevated to the level of law is not substantially different from advocating a structureless society, which is an oxymoron.

So it appears that maybe Amazon.com is not engaging in censorship. A hacker says he did it, basically by exploiting an Amazon.com “feature” for reporting “inappropriate content.” I’ve always thought those kinds of “features” on websites were dangerous.

“Weev” says he was able to spark the sales rank strippings by exploiting an Amazon.com feature for reporting inappropriate content. A small number of reports on any given title would cause it to lose its ranking, he says—so he created a script to find all gay- and lesbian-themed books, then worked with owners of some (unnamed) popular Web sites to send in scores of complaints.

And if Weev’s claims are true, then he has also made an interesting piece of performance art. In precipitating an outcry by targeting books with gay and lesbian themes to be marked as “inappropriate,” he suggests, despite the wailing of some social conservatives, who will be dragged into reality only kicking and screaming, that there is nothing remotely “inappropriate” with being gay or lesbian.

In other words Weev may have shined a light not just on a vulnerability in Amazon.com’s software, but also on the problem of defining “inappropriate content.” Brilliant.

Watch out for the censorship—it’s everywhere: even on Amazon.com.

(Also, despite his appearance in the photo accompanying the linked article, Gore Vidal is still alive.)

Robert H. Jackson, Associate Justice of the United States Supreme Court and former United States Attorney General, made a famous observation about appellate argument:

I made three arguments of every case. First, came the one that I planned as I thought—logical, coherent, complete. Second was the one actually presented—interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.

I made my first appellate argument today and I can tell you that Justice Jackson was right on the money.

During the three weeks before my argument, I had a hard time thinking about anything besides the case. When I woke up in the morning, there was the case. When I went to bed at night, there was the case. When nothing else was distracting me, there was the case. It felt a lot like preparing for the bar exam. But I worked out my argument, filling many pages of legal pads with different arguments and concepts, talking through the whole thing hundreds of times. It was all there! Logical, coherent, complete.

Then I showed up at the Court of Appeal this morning, steeped in my case. Ready to throw it all out there for the client, to get the panel of three justices on my side, to show them why my client ought to win. And I got up there at the lectern. Yes, your honor, I would like to reserve time for rebuttal. Sure, five minutes would be fine. Thank you. Adjust the microphone. Start talking. And keep talking. And talk some more. (Why aren’t they asking me any questions? I keep looking at my notes, but the words are more like blobs. But I know what they say anyway.) The panel eventually starts asking questions. The first few are easy. Nothing I didn’t expect. Then suddenly they sound very stern and I am trying to figure out why the words coming out of my mouth don’t sound like the ones I practiced. What’s going on here? Interrupted, incoherent, disjointed, disappointing.

Now I’m at home, ten hours later, with a beverage. I’m thinking about all the things I could have said, but didn’t, and all the things I did say but maybe shouldn’t have said. (Wait, did I really say that? Did I really say that? Didn’t I have much better arguments lined up in my preparation? And the lame one is what came out of my mouth? The last resort, only-use-this-one-when-you’re-absolutely-desperate argument?) Apply palm to forehead now.

Justice Jackson had it exactly right. It’s hard to explain just how difficult it is to make appellate arguments. While I was preparing, I kept thinking about watching Kenneth Starr before the California Supreme Court in the Proposition 8 case, how smooth he was, how he made an argument that I thought was absolutely ludicrous, but he managed to make it sound halfway credible. I thought, “That’s what I need to do.” Yeah, maybe next time.

Nice. So while Sean Penn is just an irritating, big-mouthed, political blowhard, Kal Penn (a.k.a. “Kumar,” a.k.a. “Dr. Kutner“) is actually going to work for the White House as a low-level staffer:

[I]t’s not exactly a glamour job—he’s actually going to be a real live low-level White House staffer. As Penn explains, people in his new post “do outreach with the American public and with different organizations. They’re basically the front door of the White House. They take out all of the red tape that falls between the general public and the White House.”

Meanwhile, my other favorite Penn keeps stickin’ it to the man with Bullshit. He may be an irritating, big-mouthed, political blowhard (in your opinion), but at least he’s a libertarian—which is always a good get-out-of-jail-free card: “You don’t like that I’m all talk? Too bad! I’m free to be all talk and you’re free to do something about it!” Arch-liberals like Sean Penn, on the other hand, always end up looking like hypocrites because they demand action of everyone else without really getting their own hands dirty.

I just discovered that Drum Corps International (DCI) will be in Clovis on Friday, June 26, 2009, for the “Mid Cal Tour of Champions.” Performing corps include the Blue Devils, corps A, B, and C, the Blue Knights, the Bluecoats, the Mandarins, the Troopers, the Santa Clara Vanguard Cadets, and the Santa Clara Vanguard.

If you have never seen a DCI show, or if the only musical fieldwork you’ve seen is a high school band at halftime on a Friday night, check out the Mid Cal Tour of Champions. It’s good stuff.