The Laundry List Approach: How To Bury Your Failed Position

One of the more problematic mechanisms of argumentation is the laundry list, the lengthy list proffered in support of a position by its advocate in an effort to demonstrate two related points: first, that the target of the argument is nothing new, and second, that there is a wealth of support for the line of reasoning, if not the particular application, of the argument.

What makes this method a problem is that the advocate, tendering the laundry list, has had ample opportunity to put it together, while the person arguing against it is often left with little to no time to parse the list, separate the individual items on the list, research the specifics of the list and test whether it’s in fact correct and that the rationale for each item on the list is, as claimed, relevant to the argument then being made.

It’s also a problem that a list has surface appeal, so the absence of being able to individually address each item on the list leaves the decision-maker with the superficial sense that the list has some merit.

Beware the laundry list. Its use as a rhetorical device invariably conceals its failure of support. If there was direct logical support for the proposition for which it’s being offered, the advocate wouldn’t need to throw everything against the wall, but would focus on the specific argument that conclusively demonstrates the propriety of the position. 

When constrained to argue by laundry list, a red flag should immediately go up, signifying that there is no direct support for the proposition, and the advocate is thus left to cobble together unrelated anecdotal arguments in the hope that nobody notices. It’s quantity over quality, or the old “if you can’t dazzle them with brilliance, baffle them with bullshit.”

What the hell is he talking about?  John Yoo provides a great example, in his just-released memo when he was deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice.  The memo to FISA Judge Colleen Kollar-Kotelly was parsed by Brad Heath at USA Today, Mike Masnick at Techdirt, and finally Tim Cushing at Techdirt.  It was written in 2002, when memories of 9/11 were fresh and the government’s mantra was that 9/11 changed everything.

So what made warrantless surveillance permissible, Fourth Amendment notwithstanding, according to Yoo?

A variety of government searches, therefore, have met the Fourth Amendment requirement of reasonableness without obtaining a judicial warrant. The Supreme Court, for example, has upheld warrantless searches that involved the drug testing of high school athletes, id, certain searches of automobiles, Pennsylvania v. Labron, 518 US. 938 (1996) (per curiam), drunk driver checkpoints, Michigan v. Dept of State Police v. Sitz, 496 U.S. 444 (1990), drug testing of railroad personnel, Skinner v. Railway Labor Executives Ass’n 489 US. 602 (1989), drug testing of federal customs officers, Treasury Employees v. Von Raab, 489 US. 656 (1989), administrative inspection of closely regulated businesses, New York v. Burger, 482 US. 69] (1987), temporary baggage seizures, United States v. Place, 462 U.S. 696 (1933), detention to prevent flight and to protect law enforcement officers, Michigan v. Summers, 452 U.S. 692 (1931), checkpoints to search for illegal aliens, United States v. Martinez-Fuerte, 423 US. 543 (1976), and temporary stops and limited searches for weapons, Terry v. Ohio, 392 US. 1 ([96 8). The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control. See Indianapolis v. Edmond, 531 U.S. 3 2, 41 (2000); Delaware v. Prouse, 440 US. 648, 659 n.13 (I979).

Is that it? Oh no, there’s more.

If privacy interests are viewed as intruded upon only by [redacted ] is likely that Fourth Amendment interests would not outweigh the compelling governmental interest present here, In the context of roadblocks to stop drunken drivers, another area of “special needs” under the Fourth Amendment, the Court has permitted warrantless searches. See Michigan Dep’t of State Police v. Sitz,, 496 US. 444 (1990). There, the Court found that a roadblock constituted a “reasonable” search due to the magnitude of the drunken driver problem and the deaths it causes — in fact, the court compared the death toll from drunk drivers to the casualties on a battlefield. Id. at 451. It found that this interest outweighed the intrusion into privacy at a checkpoint stop, which it characterized as “brief” in terms of duration and intensity. Similarly, [redacted] than in the case of a roadblock, where a [redacted] law enforcement officer stops each driver to examine whether they are inebriated. It seems that if the Supreme Court were willing to uphold drunk driver checkpoints, it would be equally or even more willing to allow [redacted].

Wow. That’s a lot of stuff, a long list of searches and seizures that don’t require warrants, and clearly conveys Yoo’s message that there are tons of times, tons of situations, where no warrant is required.  And that’s why no warrant is required for mass surveillance.

The purpose of the list is to tip the scales of the balancing test of “reasonableness” in favor of the government’s “compelling interest” in protecting the nation from attack.  Tim has some fun pointing out a few anomalies in Yoo’s examples.

According to the government, warrantless surveillance is a Terry stop… or a drug test performed on railroad workers… or a demand for records from a pawn shop.

Yoo expands on this rationale later in the letter, stating that warrantless electronic surveillance is really nothing more than a DUI checkpoint, but for terrorism.

Yoo, of course, isn’t arguing that mass surveillance is “really nothing more than a DUI checkpoint,” as such an argument would be facially absurd. Rather, he’s arguing that the warrant clause is ignored all the time, so why not now?

Of course, in each exception, there  is a stand-alone rationale which may have no bearing whatsoever on the issue at hand, but the effort required to see through the laundry list is a couple orders of magnitude harder than compiling a bullshit list.  So the laundry list method is not only superficially appealing, and thus effective, but too much work to deconstruct.  But when someone argues by laundry list, you know they’ve got nothing, so they’re trying to bury the failure of their position under a big steaming pile of malarkey.

And lest you think Yoo is alone in his nefarious use of the laundry list, you know who else used this ploy for the unwary? But, unlike Mary Anne Franks, Yoo is a lawyer (though they both share the cloak of law prof today) and made his arguments to a federal judge.  But then, 9/11 changed everything, including what constituted logical and legally sound argument.

14 thoughts on “The Laundry List Approach: How To Bury Your Failed Position

  1. Raccoon Strait

    That’s also a lot of redaction’s. If he is saying nothing wrong, what is being hidden? Using his logic then he IS saying something wrong and his entire argument should be ignored because some parts of it are not viewable. Except it isn’t.

    And the judges viewing his arguments are not allowed to make copies or take notes. Does the Executive really have that kind of power over the courts? Should they?

    1. SHG Post author

      As Yoo writes, he offers the memo as a matter of “comity between branches of government.” Not because, you know, he wants the FISA court (which, I note, shouldn’t exist) to let the government ignore the Fourth Amendment.

  2. phroggie

    I just wanted to point out that Yoo cited “Michigan v. Dept of State Police v. Sitz” in his laundry list. Not only are my rights being further eroded each and every day, but they’re being eroded by government lawyers that can’t even cite a case properly. For shame.

    1. SHG Post author

      So you’re one of those slaves to citation accuracy when there are terrorists out there trying to kill us?

      1. phroggie

        Yes, but perhaps only because I believe Yoo and the FISA “court,” et al, to be the real terrorists.

  3. Patrick Maupin

    Being handed a laundry list is almost as bad as being given a mandate to create one.

  4. Jim Tyre

    One of the more impressive things about the laundry list is that the FISC Judge for whom Yoo wrote it was not allowed to either keep a copy of it or take notes on it.. Though not often, Kollar-Kotelly did challenge what the government argued before her while she was a FISC judge. What she may have done if allowed to, you know, reread and study it, we’ll never know.

    Of course, Yoo was a true master of the laundry list, this was an earlier effort. The notorious torture memo, though publicized before this one, was written after.

    Still, now that Yoo’s a lawprof, there are great possibilities here. Write a final exam question that includes a laundry list, give his students 10 minutes to read the question (without taking notes). If the student doesn’t properly address every item on the laundry list in the exam answer, the student fails.

  5. marc r

    These “laundry lists” are par for the course when facing any weak argument. How many times do you get a government memo attached to a pleading/motion with a series of strong cites and parentheticals? Where if you strip away the citations the memo reads something like “the defense motion should be dismissed because it’s not legally proper?”

    The old days…reading Brandeis, Holmes, etc. they cite to a statute and a couple on points cases and debate the line of logic in the most similar cases to tease out the legal principle and whether it stands. Nowadays, it’s a battle of quotes from holdings or dicta that relate to cases decided on completely tangential reasons or the pivotal issues contain those quotes but don’t rely on those quotes.

    I guess if you don’t have the law, quote lots of cherry picked quotes, string cite it for 2-3 pages and hope the judge decides in your favor because you quoted from 25 different jurisdictions that state what you’d like “thus the prosecution argument stands” without analyzing what that precedent case was even about.

      1. marc r

        SHG, you know better than the beg the question. But generally I was expanded your explanation that it’s not reserved for Bainbridge/Franks or Yoo; this is a paradigm shift that occurred at some point in time before I began practicing law. Legal reasoning went from showing allegiance to statutory or case law precedent versus distinguishing the precedent from the facts in the case at issue. That paradigm went from the above “reasoning” to a playing field where volume of precedent and footnote analysis of cases ruled.

        There’s mixed results when confronting this chicanery in court. Some judges agree that the string cites are irrelevant to the case at issue and really all those quotes just went to the appellate standard of review and not the threshold issue of, say, the motion to dismiss for double jeopardy. And those judges demand the government to focus on the issue in this motion and not quote platitudes for similar cases where the salient issue here wasn’t raised on those cases. Other times, the courts ask for my responses to each dump of cites and why my one or two cases outweigh the voluminous onslaught.

        To “re-explain,” do you have advice for a young, not-handsome, CDL confronting the “cite dump” you allude to above. Do you go through all the cites to point out the irrelevancy? Do you take the high ground and just focus on your case most on point? Or do you argue that volume isn’t a substitute for “reasoning?”

        1. SHG Post author

          While I have my issues with non-lawyers unable to stay on topic, I also have my issues with lawyers who confuse my choice of what I write about with their desire to expand upon it, whether to show their chops or teach the world the law. I have no issue with either one. Just not here. This is my soapbox, so I call the tune.

          As for what to do, there’s no one-size-fits-all answer. But the first step is understanding the problem, and that, if lawyers do their job regardless of approach to counter the fallacy, could go a long way in ending the laundry list as anything but a waste of time and space. If people stop buying the fallacy, the fallacy will die a brutal, painful death. As it should.

  6. dm

    If one were a cynic that person might suggest that Yoo learned this tactic from the opinions of appellate court judges twisting previous decisions into pretzels to reach a desired outcome.

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