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Finding God in the Appellate Brief: A Quick Follow-Up

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4 Responses

  1. Handfuls of Dust

    Nate Oman has a pair of posts about “Finding God” in the structural beauty of chess and appellate briefing here and here. Now, as a lover of structural beauty, I sympathize. I am also wowed by the structural beauty of…

  2. Chad says:

    Very interesting post and reply (from God’s handiwork, Will). I do wonder, however, to what extent appellate briefs manifest “the beauty of reason” or the beauty of rhetoric. I don’t feel the same solidness in reading a brief’s argument as I do when considering a philosophical argument. When I am impressed by a brief, I am impressed by its cleverness, not necessarily its reason or logic (perhaps this says something about the way I’m impressed). Is a good brief more like watching a dance finely executed, or listening to a good performace of Mozart? Why, in other words, isn’t a good brief more a performance than an exercise of reason?

    I wonder why I feel this way: is it because there is some truth I take it that philosophy is getting at, whereas in law there is no such truth, no unique answer I am compelled to agree with in any particular case? Or is it because briefs are designed to gather the best evidence/case for a particular side, rather than engaged in a distinerested search for the correct answer?

  3. Will Baude says:

    A related observation.

    In a well-written brief I do indeed see the beauty of reason. In a well-done oral argument, I see the beauty of performance. I was originally going to write a post comparing the two before I decided to explore the nature of divinity instead.

  4. Nate Oman says:

    Chad: I think that you have ODed a little on legal realism. Law is not mathematics, but that doesn’t mean that there are not on occasion right answers. Furthermore, even when there are not uniquely correct answers, there are still some answers that are better than others.

    You are right, however, that legal reasoning is an exercise in rhetoric rather than pure reason. Legal arguments are meant to persuade. They are not an organanon to discovering the truth. That said, good rhetoric will exhibit good arguments. Dressing up fallacious reasoning in shining rhetorical clothes still leaves you with fallacious reasoning and judges (or at least some significant subset of them) are not stupid.

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