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No More Fire, the Water Next Time

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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11 Responses

  1. Orin Kerr says:

    Just downloaded Dan’s paper. It looks terrific. And kudos to the HLR editors for inviting Dan to write the Foreword.

  2. Ken Rhodes says:

    In the middle of this interesting post, I found a two-sentence paragraph that made me wonder:

    “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?”

    If they were lawyers practicing law (rather than teaching it, judging it, or writing about it), then weren’t they supposed to be *advocates* for their clients? Shouldn’t their effective advocacy sound like they have total confidence that their side is the right side, and their positions are the correct positions?

  3. Dave Hoffman says:

    Ken,

    A great point, which we address in They Saw a Protest, and Dan I think mentions in the Forward. I think that it is an open question whether advocacy that “sounds like they have total confidence that there side is the right side” is in fact more persuasive than the the more modest presentation that the post talks about. We’re working on some experiments in this vein, as is Dan Simon and others. We’ll see how it turns out. (See – there I’m doing it!)

    Also, of course, not all lawyers are advocates in precisely the same way — very few, in fact, end up primarily writing briefs for other legally trained professionals. Many others argue to lay people; or they try to find common solutions with other lawyers; or they work alone “for the deal”.

  4. Joseph Slater says:

    This is a terrific post with a lot of interesting and persuasive ideas, arguments, and links. I have one small quibble/question. It’s about this bit here:

    “But I think others don’t understand how they sound to those that disagree with them: they sincerely believe that the best way to persuade is to make an argument a second time. LOUDER. WITH MORE @#$ TALKING ABOUT FRAUD!!”

    [As a VC reader, I was amused by the "FRAUD!!!" in that]

    Two points. First, I’m not sure how much “legal style” is responsible for this type of debate on the internets. I read various blogs on subjects having nothing to do with law, and this style is pretty common among lots of blog commentors and even bloggers who I’m quite sure don’t have much exposure to law and lawyering. You see this on blogs related not just to politics, bu also to sports, music, etc.

    Related, I think that for lots of folks adopting this style, the point is not to try to be more persuasive to folks who may not already agree with them. Folks who post like that see others who disagree as the enemy: not just misinformed but actively badly intentioned. Also, some of these folks are simply bullies, trying (consciously or not) to drive uncomfortably dissenting voices away. This too, I think, has little specifically to do with styles of legal argument.

    So in short, I think you’re addressing a broader internet (and maybe broader cultural) issue, for which legal styles of argument have very limited responsibility at most. But again, great post.

  5. Ken Rhodes says:

    I’m sure Joseph is exactly correct — the style of internet discourse is often extreme.

    I try to catch myself before (a)calling somebody stupid and/or (b)shouting in all caps. Except, of course, on the Grandstand BBS when discussing my Orioles or Dodgers.

  6. Larry Rosenthal says:

    I wonder how much real empirical support the view of the virtues of more carefully couched rhetoric as a persuasive tool, at least in popular culture (I put aside scholarship and legal writing for present purposes). People will tell pollsters that they prefer measured language — just as they tell pollsters that they prefer bipartisanship — but what seems to sell is strong rhetoric, like strong partisanship.

    Justice Kennedy is a good example of a writer who uses carefully qualified language. Yet, was his opinion in Lawrence v. Texas greeted with more respect by those who are troubled by the constitutionalization of sexual libertarianism than was Justice Douglas’s opinion in Griswold? Did Roe v. Wade gain more acceptance because Justice Blackmun admitted that he did not know how to define human life? Did the opponents of affirmative action admire the Grutter opinion because it displayed its discomfort with affirmative action so plainly? Law professors likely overvalue the importance of crafting opinions as opposed to the bottom line. Most Americans, of course, care much more about the bottom line in these intensely controversial cases than their reasoning. Expressions of doubt may only intensify the view that judges are not ruling on the basis of “law,” but rather their personal views. If one wants to promote radical reform, the case for measured rhetoric seems even more problematic. More people will pay attention to Paul Campos if he overstates his case than if it is presented in a carefully qualified way. This may be regrettable, but I do not see very much empirical evidence to the contrary, at least outside of the laboratory.

    Larry Rosenthal
    Chapman University School of Law

  7. Brian Tamanaha says:

    When Anonymous LawProf first came out with pistols blazing, I might have agreed with your post, but now I’m inclined to think otherwise.

    You write: “Even if you disagree with him, I think his writing is more persuasive for nonpartisans than Campos’s accusations of a scam, or than the anonymous commentators that appeared on Prof. Horwitz’s post.”

    Perhaps that is correct, but I don’t believe “persuading nonpartisans” plays out in such narrow terms. If his goal was to bring more attention to the issues, his shrill approach has been wildly successful.

    And now that previously disengaged “nonpartisans” are concentrating on these issues, they can make up their own minds, reading more nuanced positions laid out by others (the many posts that responded to Anonymous LawProf, including yours), as well as (after the initial defensive reaction–”I’m not a scammer!”–subsides) reading beneath the broad brush of his posts to consider the merits of his underlying arguments.

    Getting attention is a prerequisite to persuasion. Nuanced posts might well be more persuasive, but that accomplishes little if no one is listening.

  8. shg says:

    Machoblawgers? I like it.

  9. David Fagundes says:

    I shared some of the concerns Larry and others raised above about the plausibility of this finding. It seems to me that the popularity of hysterical, partisan blogs and news shows indicates that what really drives opinion is not careful, objective reasoning, but careless, subjective bloviating.

    Having thought about this issue a bit more, though, I think the distinction is this: Big loud rhetoric sells well, and may drive up ratings for Fox News or readership for the Huffington Post, but only because it tends to make people feel good by entrenching their preexisting opinions (or make people feel enraged by taking shots at their preexisting opinions, thereby further entrenching them).

    But the paper’s point about “aporia” strikes me as more in the vein of what will persuade, not what will sell well. I take the insight to be that if you want to change the mind of someone who does not agree with your position, yelling about the contrary opinion is going to be a lot less effective than presenting reasons carefully and without a hysterical tone.

    Finally, the term “machoblawgers” gave me a good laugh. Because, you know, it’s so tough and courageous to sit at a keyboard taking angry potshots at people from the safety of your computer.

  10. Paul Horwitz says:

    Two more things to consider about this issue of the relative success of different kinds of rhetoric. The first has to do with the nature of the market. Fox News does quite well in the ratings relatively speaking, but its share would be laughable in comparison to the audience for the big three network news programs a few decades ago. Of course, they were the only game in town then. The broader point is that in a highly fragmented market, people are fighting for market fragments, not the whole megillah. They may achieve that goal better by being more shrill, and by appealing loudly and directly to particular market niches.

    Then there’s the distinction between bringing publicity to something and thus putting it on the public agenda, and having actual and lasting influence in the arena of public discourse. Campos’s blog, as many people have noted, did very well in bringing publicity to a set of issues and helping put them on the agenda, or more accurately putting them on more people’s agenda. The overheated rhetoric, along with the pseudo-subversive combination of his anonymity and his assertion that he was a first-tier professor, surely helped. But it is much less likely that he will be taken seriously and have a real influence on the course of discussion or reform, even if he sometimes has valuable things to offer to the discussion. He’s already established a high discount rate for himself. One could say similar things about Fox News, which often affects the public agenda but, in appealing so heavily and heatedly to one fragment of the audience, undercuts its broader influence (or persuasiveness, as Dave puts it) in public discussion.

  11. Max Kennerly says:

    Different situations call for different means of advocacy. Justice Roberts’ opinions are viewed as illegitimate because he writes them like a brief for the Chamber of Commerce when he is supposed to be an “umpire” – his word, not mine – over legal disputes. A justice writing a majority opinion should recognize and concede the portions of their opinion where there is room for reasonable doubt and then explain why they reached the conclusion they did. Anything less is undemocratic.

    Trial lawyers are frequently trained to concede damaging issues where the evidence is against them, and most good trial lawyers will either openly concede a damaging issue or simply not contest it. That said, where the evidence is genuinely in dispute, it usually does an advocate no good to concede weakness in their entire position. Rather, they need to address challenges to their argument and explain why the challenge should not be sustained.

    Arguments on the internet should be avoided if possible. Where a person can’t help but write about stuff on the internet, their tone and manner should be dictated by their intended audience. My tone and manner is generally a mix of two intended audiences: (1) what I think my regular readership looks like and (2) people Googling for information about that specific topic. The former might be more inclined to listen to me preach to the choir — and might enjoy it! — but the latter comes in with, I hope, an undecided and open mind, and so I try to lay out the land a little bit for them.

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