The slide from “Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law” into the attack on Paul Campos’ was nearly seamless, not because it was smooth, but because segues are for kids. Dave Hoffman at Concurring Opinions writes:
Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism. Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard. Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers. Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.
Kahan asserts that the Supreme Court, by exhibiting doubt and humility in its decisions, is more persuasive and hence subject to greater acceptance. Mixing apples and Chevys, Hoffman leaps to:
Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).
As an example of the how Campos’ revelations have been seized by the Philistines, Hoffman goes on (with my added paragraph breaks to make readable):
This post was catnip for many bloggers and commentators. Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know. It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm.
Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices. Many have sought positions as law professors, but haven’t obtained tenure-track jobs. Others, like Scott, appear to be happy in practice. For these machoblawgers, law professors’ language in response to the “crisis in legal education” exemplifies the problem with law schools: it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).
Note how Campos and Greenfield have come to the identical criticism, though from quite different premises. Law professors are eggheads, protected from brutish reality by their high walls. If only “they” understood how the world really worked. If only they confronted it with more forceful, manly, speech.
Machoblawgers? There’s a nice ring to it. Yet Dave contends that we, the Machoblawgers, may come off tough and manly, but wholly unpersuasive. Persuasiveness, as asserted in Harvard Law Review, comes from the delicate, nuanced language of the effetes (his word, not mine, but I like it).
Putting aside the resort to logical fallacies ranging from the weak ad hominems to the false dichotomy, and ignoring the blatant confirmation bias, Hoffman delivers the coup de grace:
Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary). But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.” Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk. So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation. The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?
We are not merely anti-intellectuals for our blunt and strong arguments, but Hoffman argues that we are ineffective. To be a “better lawyer,” we should sound more like law professors.
Missing from the analysis is a basic understanding of communication, that it consists not merely of sending but of receiving as well. What we say is only as valuable as what others hear. He would be absolutely correct in his assessment of persuasiveness if we were playing to the Academy, where the strain to mix in ten dollar words and such depth of nuance as to make every utterances indecipherable is what distinguishes the poseurs from the pretentious. But we don’t live in that world.
There’s a reason why few outside the Academy read the “intellectual” lawprof blogs. No, it’s not just because they tend to be tedious and boring. It’s that they’re too difficult to understand. Rather than say things like “I agree with this and disagree with that,” they can go on for paragraphs with such clue as “this is ‘notable,” but that is”curious.” Scholars write that way. The rest of us don’t. And they wonder why law reviews have never gained widespread popularity.
Even here, where I use language that Dave considers brutish and vulgar, overly strong in making my point and lacking in the humility (meaning acknowledgement of the legitimacy of opposing arguments or points of view), a significant percentage of readers think I’m too subtle and nuanced, and feel the need to reduce my point to a far more simplistic and gross level. One thing that lawyers learn in the real world is that we speak to a wide spectrum of folks, and it’s very difficult, if not impossible, to express things in a way that will work for everyone.
Communication. Making our point in a way that the listening/reader will understand and appreciate it, is something that comes not from argument, but experience. We start learning at birth and development this experience every day of our lives. We talk to others, from society’s lowest to its most powerful, and adapt our communication to suit our purpose. As lawyers, we adapt to our clients, our judges, our juries. Not too many juries consist exclusively of lawprofs. There is the occasional effete juror, but since neither side plays to their sensibility, they can think we’re all brutes.
No one is persuasive talking a different language from their listeners. While I’ve been critical of lawprofs’ refusal to lay down the big words and hiding behind the pedagogical jargon, if it makes them feel less anti-intellectual when chatting among themselves, that’s fine. Many insular groups feel better about themselves by using their own secret lingo, which creates a sense that they’re special.
When advocates argue a point, they do so for the purpose of prevailing in their position. We argue to a trial judge differently than an mid-level appellate bench. And often differently to a top level judge. We often know who we are arguing to, where they came from and the nature of argument they find persuasive. We know that some are biased against us from the outset, and we try to address that bias. We research our audience to try to find a way to squeeze our arguments into their mindset. We often knew them when they were younger, advocates just like us, and are aware of their intellectual proclivities. Or lack thereof. What they aren’t, and weren’t, were lawprofs, who used words like “normative.” We know this.
As for blawgs, where Hoffman tries to apply the lessons from the Supreme Court and law review editorships, we aren’t writing to persuade the effete or bore the reader to absolute death by belaboring every point. For the most part, we already know the counter-arguments, and they don’t have to be spelled out “in fairness.” We are writing for our fellow groundlings, and sometimes trying to be informative and others times explanatory. Sometimes, small shifts in understanding among those inclined to agree serve this purpose, though our own nuance is used differently than would scholars, who can’t see it because they lack the experienced gained in the trenches.
It’s not that I don’t appreciate the sometimes interesting ideas raised by lawprofs who are doing much of the heavy-lifting when it comes to new ideas about the law. Every once in a while they come up with something truly insightful and novel, and I suffer the naive and leaden posts to find those rare nuggets. It’s just that I wish they would use real words and express clear thoughts so it wouldn’t be so brutally difficult to read their posts to figure out whether they have anything worthwhile to say. I can live with being a brute to their effete, if only they would engage in some occasional “intellectual” noblesse oblige for the benefit of the manly.
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Why does Professor Hoffman have such contempt for PI and Criminal practice? He teaches at a law school where a significant portion of the subset of students who will actually go on to practice law at all will work in those areas. Does he unveil this veiled contempt when he’s teaching? When students are sending in their tuition check? To the faculty who teach criminal law in torts? To the state court judges whose dockets are devoted 97% to pi and criminal law?
Scott,
A few responses to this.
1. I’m not sure who you think you are talking to, but using words like “insular,” “ad hominem,” “proclivities,” and “coup de grace” doesn’t mark you, exactly, as one of the people. Stop with the class-warfare nonsense. You are privileged to be protected by one of the great monopolies known to man: the organized Bar.
2. The point of the psychology research is about how to persuade lay listeners, not lawyers. Lawyers like one-sided arguments. That was the point of my post. And so do law professors. But the research suggests that lay people aren’t equally persuaded, and feel worse about outcomes defended in one-sided ways. This isn’t what the Harvard Law Review says – it’s what psychologists who study argument say. But, notably, it’s a preliminary finding. The jury is still out on why and when and how.
3. Dan says – and I take it you think as well – that my post was someone insulting to PI or criminal law practice. That’s pretty sad. The point was that you exist in a community of folks that might think and talk in a particular way — there are other kinds of lawyers (transactional, commercial practice, family law, T&E) who would talk and think differently. Generalizing from your own experience to all lawyers (or what you see of me to all law professors) is an error.
4. I’m surprised to find that when I take serious the stuff you write, you bleat and whine like a stuck mule. How about the suggestion (not accusation!) that you characterize arguments you don’t like as feminine and unmanly. Doesn’t that seem troublesome to you?
1. I am indeed privileged to be a lawyer. But the nice folks whose hands I hold aren’t, and I talk to them. And to the other lawyers who sit on hard benches waiting for their 90 seconds in the well. We’re all not hidden away in wood-paneled offices making a couple mil a year to tell associates to “hop to it,” or opine to corporate titans as if our word is handed down from God. I’ve seen these guys on their occasional forays into courtrooms. They suck. Can’t say it any plainer than that. And of course, they think they’re brilliant. What else is new?
2. As for the psychological premise to Kahan’s intro, I got it. People who lose want to at least be acknowledged, or so they say. But that’s got nothing to do with persuading, Dave. That’s all about making losers feel better. Fee-eee-eeelings. That’s great, but my clients prefer to win.
3. I think PI and crim lawyers can handle it. But we’ll never know, since most don’t read lawprof blogs or law reviews, and couldn’t care less what lawprofs have to say. I am the exception. I care deeply.
4. See, you did it again. I “bleat and whine” but you take my stuff seriously. I take your stuff seriously too. I just put it into language that others can understand without falling asleep or sticking needles in their eyes. And this is the thanks I get? I should get a medal. No really, I should.
He doesn’t have contempt for PI and Crim law practitioners. He just uses brutes like me as an example of what’s brutish in the blawgosphere, a bit of dramatic hyperbole when reaching out to the groundlings.
Dave appears to have lost the common touch after leaving the hard-scrabble, street-level law culture of Cravath, Swaine & Moore, LLP to enter the hallowed, vertiginous confines of the Ivory Tower. See what I did there? Plain writing is for wimps.
Lumping Scott and others in with anonymous law students was a nice bit of sophistry.
You’ve heard of Déformation professionnelle, n’est pas?
“Machoblawging” is where it’s at, baby. I will assuredly remember to exercise restraint when flexing my intellectual muscle and kicking rhetorical sand in my straw-man opponent’s face.
Cravath is a tough place, no room for wimps.
I’ve just spent some little time arguing with people who believe that ‘psychics’ are a reliable source of information on crimes and that they themselves can determine guilt based on how ‘evil’ the eyes of the defendant are.
They can’t begin to understand the relationship between evidence and a crime, nor follow a logical argument based on such evidence. They brushed this aside as irrelevant although when the opinions of ‘experts’ coincided with their own they found such compelling.
This is your jury pool. How are the lawprofs dealing with this?
Regarding No. 3, “That’s pretty sad.” Why is it sad? Do you mean mistaken? Wrong? I don’t see what’s sad about it.
Regardless, if you were simply describing that various sub-groups of lawyers have different cultures and that the criminal defense and pi lawyers come from the brutish class that speaks in an unrefined and overly-confrontational manner, I’m sure you’ll make that point the next time you’re at a gathering where the Beasley family is present.
Psychics may be a bit off the beaten path. Think poorly educated people who find conceptual thinking problematic.
On Scott’s second point, this isn’t the same as wanting to be acknowledged so they feel better. (Though that would seem to be pretty useful too!) It’s about persuasion. At least, that’s what the paper I originally cited in the blog post found.
Should I have a medal made for you — though it might require us to raise tuition to pay for. What would you like it to say?
“Conceptual” thinking? You give them too much credit.
And BTW, I saw a post from one guy unlucky enough to wind up on three different cases. He said in each at least one juror announced that they didn’t understand the case and would vote with the majority.
I take issue with the premise that Supreme Court opinions are more “persuasive” when they acknowledge doubt and humility. What I see is the pretense of validation, that “maybe the position I agree with lost but at least they didn’t treat me like dirt.” Spend some time reading the comments at MachoBlawgs, or non-lawyer blogs, and you’ll come to realize that the distinction between thinking and feeling has been lost. People believe what they feel, and their feelings are either acknowledged (which makes them feel better) or not, which makes them angry and hostile.
I was aware of the paper cited even before you wrote about it (I know, can you imagine?!?), and doubted there was any language that could have overcome this phenomenon because the respondents can’t distinguish between feelings and thinking. It’s extremely dangerous, but one of the many things us brutes need to address when persuading people to come around to our way of thinking.
As for my medal, just make it titanium so you don’t have to raise tuition, and have it say: “I survived Hoffman.” Thank you.
Only one? We expect 9 of the 12 to go with the flow so we only have to persuade three.
You can’t sort these out in voir dire? Or search for reasoning ability?
Of course we can. Voir dire is like magic, where we learn all the hidden secrets by using our secret lawyer-fu powers.
(so it isn’t one word wide)
SHG wrote: “Of course we can. Voir dire is like magic, where we learn all the hidden secrets by using our secret lawyer-fu powers.”
Kung-fu == lawyer-fu?
OK. How about a question like: “We’ve all seen the video where Joran van der Sloot and Stephany Flores go into his hotel room. The he leaves, he comes back and then he leaves. Later, she is found beaten to death in his room. What would raise doubt in your mind about his guilt?”
FYI: Two reporters from Holland went to Lima and checked out the hotel. They found some interesting things (they have real reporters in Holland). They reported that there was no video camera before he checked in. His was the only room so monitored. After he fled, the camera was removed. The Chinese couple who own and run the hotel refuse to answer any questions about cameras. And BTW, the quality of this video is excellent – better than the one camera that does monitor the lobby area.
How you manage to go from here to Joran van der Sloot in Lima and Dutch reporters looking for cameras is truly extraordinary. Warped, but impressive.
It’s but one example. I have others. What I have learned is that most people fake the ability to think by learning the ‘right’ responses to most questions or comments. When pressed to actually think, they can only come up with dumb looks. This doesn’t give one much confidence in juries.
The problem with voir dire, assuming the lawyer is permitted to engage in individual questioning of potential jurors and assuming the judge let’s him have more than 10 minutes to do a panel of 12, is that you’re caught between trying to delve behind vague or simplistic answers, and alienating the jury. You don’t get to throw them all off, you know, and even though you find a juror to be dopey doesn’t mean they are tossed for cause. You use peremptory challenges sparingly, as they go quick and you have no idea how bad the next panel will look.
Bottom line: Reality isn’t pretty.
A system which is designed for men (no, not women) with a lot of experience of the world, tradesmen and business owners and the like, now stacked with people who couldn’t function on their own and who, in many cases, don’t register to vote and for good reason.
Yeah, that’s ugly. How do you dumb it down for them?
Who says you want your jurors to have reasoning ability?
Good point.
An accused who has the evidence to prove innocence?