Archive for June 13th, 2009
Stephen L. Winter is a law professor at Wayne State University School of Law I’ve followed his excellent writings for many years. I recently read one of his more recent articles, “John Roberts Formalist Nightmare,” alleged in the January, 2009 edition of the University of Miami Law Review (63 U. Miami L Review 2009) (not available online).
To set the stage for his brutal critique of Supreme Court Chief Justice John Roberts, Winter considers four approaches to the meaning of “formalism.” In the first approach,
The term “formalist” is an epithet to describe a judicial decision that ascribes away responsibility (as in, “It’s not me, it’s my job . . . or the law, or the text, etc.”). Hence, formalism is the frequent refuge of socially and politically conservative judges when faced with the claims of reform movements.
The second approach is closely related to the first. It refers to “mechanical jurisprudence.” The basic idea is that “general doctrines can be applied deductively to decide specific cases, thereby assuring the objectivity and neutrality of judicial decision-making.” Under this approach, the reasoning process is “supposed to be guided solely by the formal entailment of the concept. Under this second approach, a judge will insist that a concept (e.g., “freedom of contract”) fully determines the outcome of a particular dispute, irrespective of the broader social ramifications.
The third approach connotes “hypertechnicality in judicial decision-making.” Winter points to two recent decisions by Chief Justice Roberts in which the United States Supreme Court rigidly applied legal deadlines “notwithstanding the presence of strong equable claims and long recognized exceptions.” One of those cases was Ledbetter versus Goodyear Tire & Rubber Co., a decision so palpably unfair in its anal-retentive application of a narrow statute limitations that Congress promptly got to work on the issue and recently overruled it. See here and here. As Winter points out, Ledbetter is a great example of the many instances in which “hypertechnicality and conceptualism often work hand-in-hand to provide a cover of necessity for willfully reactionary decisions.”
There is also a fourth sense of formalism. In this fourth approach to formalistic reasoning, concepts are treated as meaningful “entirely abstracted from their contexts. Winter gives the example of Plessy vs. Ferguson, in which the Supreme Court presented its solution to the case as one of “formal equality,” presuming the absolute equality of the races before the law, bringing to mind Anatole France’s famous quote that “The law in all its majesty forbids the rich and poor alike to sleep under bridges, to beg in the streets, and this deal their bread.” Winter laments that thanks to its ability to frame individuals in abstract ways, far from their real-life social contacts, this sense of formalism allows a court to simultaneously express regret for an outcome yet fiercely perpetuate it through conscious and narrowly tailored decision-making.
What do each of these senses of formalism haven’t common? Each of these approaches allows decision-makers to
give every appearance of deciding the case according to law without ever acknowledging that the law they are “following” is in actuality a product of their own interpretive acts. . . . Formalist legal reasoning engages the decision-maker in a performance of impersonal decision by appealing to authority. It disclaims the personal responsibility of the decision-maker and, though us, frustrates accountability. . . It operates in abstraction from the social prerequisites and consequences of law. In all these ways, formalism is anything but democratic . . . it is a distorting methodology that weighs on the law like a nightmare more reminiscent of the injustices of the 19th century than of a modern society that professes to value equal justice under law.
Stephen Winter’s analysis of formalism can be extended far beyond exercises in jurisprudence. It can be extended to all instances wherein someone wielding political power makes an argument or a decision by focusing tightly on a principle detached from the social context that gives that principle its legitimacy.
Winter’s article is also well worth reading for anyone who wants to see substantial evidence that the Chief Justice of the Supreme Court of United States is quite capable of a substantial misreading of one of the most important cases ever decided, Brown v Board of Education. For instance, Justice John Roberts claims that Brown determined the outcome of Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) in that Brown purportedly prohibited government classification and separation, whereas the boundary plan adopted by the Seattle and Louisville school boards did not “separate” students at all. These were plans that were adopted for the purpose of providing a remedy for racial isolation. Winter points out several other major distortions Roberts gives to Brown. Winter also establishes Roberts’ hypocrisy in criticizing a fellow justice (Justice Stephen Breyer) for relying on dicta when Roberts himself strays even further from relying on the holdings of precedent when he relied upon statements contained in appellate briefs, statements not included in Supreme Court opinions at all.
I spotted these guys today. I really admired the way they worked. I had to bring out a reading lamp to the front porch (during the daytime) to get a bright enough field to get a clear photo. I also liked the way the colors turned out here. There were hundreds of ants whisking their cargo from one side of the porch to the other. Nonstop. Unrelenting. Click on the photo for details.
What if there IS a God?
What if God is testing us?
What if He is a cosmic prankster and has directed the creation of many differing religions to confuse us?
What if God intentionally created the bible with its contradictions, inaccuracies, absurdities, mistakes, unbelievable occurrences and prejudices as a test?
What if the test is to see if we fall for it?
What if atheists are the ONLY ones going to heaven?
I work as a trial lawyer. My work presents me with a substantial challenge every day. I work hard to represent my clients as best I can and my job requires me to constantly think of presenting their cases with their best feet forward. But I’m tormented by the confirmation bias.
Because we work hard for our clients and we want to believe in their cases, we tend to see their cases the way we want to see their cases. It’s too easy to get excited about the evidence in my client’s favor and it’s all too easy to overlook the evidence that can hurt my client’s case. How’s that lawsuit coming? It’s always looking pretty decent, it seems, because my natural inclination is to stay upbeat about the case by assuming that the courtroom jury will see the case the same way I want to see it.
If I really want to represent my clients well, however, I need to do better than that. Even though I might tend to minimize the importance of the evidence that hurts my client’s case, my opponent will not overlook that dangerous evidence. My opponent will zero in on it and jam it down my throat at trial. What I really need is to be able to see my case the same way my opponent sees my case, so that I can be a better lawyer. I somehow need to take off my rose colored glasses.
One simple way to do this is to find a quiet place and pretend that that I am my own opponent, but that is much easier said than done. Once again, the confirmation bias is the culprit. It’s really difficult to turn one’s biases upside down.
Over the years, my firm has discovered that conducting “focus groups” is a much better way to see the weaknesses of our own cases. What is a focus group? It is a random unbiased group of people we hire to tell us what they really think about our cases. Here’s how we do it: we hire a group of about 30 people (from a temporary employment agency) for three or four hours on Saturday morning, and sit them down in a big conference room. We don’t tell them which side of the lawsuit we represent. We read them detailed descriptions about our lawsuit. First of all, we give them the “neutral” facts. Then we give them the facts favoring the plaintiff, and then the facts favoring the defendant. We listen in while they deliberate and they eventually give us their verdict.
We also give the focus group “jurors” multiple sets of questionnaires though0ut the process. We give them the first set of questionnaires even before they hear the neutral facts. After all, we want to know what they think about lawsuits in general. What do you think about people who sue? What do they think about big corporations? What do they think about intellectual property cases or consumer fraud cases? After we give our jurors the neutral facts, we give them another questionnaire:
What do you think about this case so far? As we give them more and more facts, we follow it up with more questionaires so that we can track their thought processes.
What’s really delightful is that these people, who are simply there to give their opinions, tell it to us straight. Sometimes, they tell us that we have a strong case. Equally often they tell us that our case doesn’t impress them, and they tell us why. They tell us that they don’t like the plaintiff, or that they sympathize with the defendant, or that our key piece of evidence is not impressive. What’s important is that they actually tell us what they think, and they don’t hold back at all.
When the jurors tell us that our case is weak, it’s a very good thing (although it doesn’t feel good when we first hear it). When they tell us that our case is weak, we are forced to confront reality. When the “jurors” tell us that a key piece of our client’s evidence is unimpressive, there’s no use trying to kid ourselves about it anymore, and it provokes us to reevaluate the way we present our case. Maybe there’s other evidence that we can use to make that point better. Or maybe we will learn that our client’s case is not impressive to matter how we might present it in a real-life courtroom. If so, we have still learned an incredibly important bit of information. If our case is fatally flawed, it’s time to approach the opponent and talk settlement.
On many occasions, we have intentionally stacked the deck against our own case, enhancing our opponent’s evidence and downplaying (or even omitting) the evidence favoring our own client. That way, we can learn what a group of neutral jurors thinks about our opponent’s best foot forward. The bottom line is that when we spin our client’s case against our own client, we learn some incredibly important things that are otherwise difficult to predict or understand. There is simply nothing like having a truly neutral group of individuals weighing-in on a matter in which you yourself are highly biased. The bottom line is that we gain immensely from the process no matter what the focus group “jurors” conclude.
I’ve been thinking a lot about focus groups because we’ve assembled quite a few focus groups over the past couple of months on a variety of cases. It occurred to me that it would be wonderful for non-lawyers to have access to focus groups too. This isn’t a practical suggestion, since assembling a focus group would take a significant financial outlay. But consider this thought experiment: a married couple gets into a heated argument, the wife suggesting that the husband doesn’t do his fair share of the chores and imagine the husband arguing that the wife spends too much money on non-necessities. This is a classic non-resolvable argument. Without a focus group, this married couple will usually end up resenting each other for even bringing up these emotionally-charged topics. Nothing will get resolved.
But imagine how different things could be if a focus group were available to help out. Imagine bringing 20 randomly chosen people into the living room, sitting them down. First, the wife could stand up and talk for ten minutes, and then the husband could have his turn. The focus group “jurors” could then deliberate right front of the married couple and reach their “verdict.” “Yes,” they might tell the husband. “You do need to cut the grass more often and your wife is right that you need to engage in more foreplay.”
Just imagine the many applications for focus groups! Consider an employee having a dispute with her supervisor at work. Was she unfairly overlooked for that promotion? Or imagine a young parent getting angry with her own mother for meddling with how she raises her own children. Was Grandma meddling? Bring in the focus group and get some valuable feedback! Do you think that waiter at the restaurant was being rude? Bring in the focus group! Do you think the neighbor should turn down the stereo? Focus group!
Maybe somebody could even set up a service, “Focus groups for every occasion,” where you would dial 1-800-FOCUS and enter your credit card. Then you’d be put into contact with a telephone conference call includes a dozen neutral jurors ready to weigh in on any dispute you like to present to them. $10 per minute to get real guidance on any serious problem you’d like to present? It could be a bargain. This would be much better than ranting to your friends, who will always tend to agree with you. You need people with no loyalties and no bias. You need a group of hired guns who will tell you what they really think, regardless of how much it might hurt your feelings.
Bottom line? You dial 1-800-FOCUS, you present your case honestly and succinctly and then, after the focus jury tells you that you’re full of shit, you gather the composure to thank the jurors. Then you act on their unbiased advice: “Sorry, [Honey, boss, daughter, mother], I consulted the focus jury, I was wrong, and I’m ready to make some changes in my life.”