George Lakoff’s Expansive Lecture: How Linguistics Relates to Everything Else.

This talk by George Lakoff has got to be one of the most ambitious 40-minute talks I’ve ever watched. Lakoff is a linguist who has spent his life studying language, but not merely language. He has also drilled down into the brain using neuroscience, connecting our use of language to such things as neural binding and mirror neurons. He has also looked upward from conceptual metaphors to point out their personal and cultural ramifications.

Metaphors begin taking root in three-year old children based on physical activities. As adults, we employ these metaphors ever-so-easily in order to understand complex social phenomena such as romantic relationships, art, teaching and politics. Whenever we employ these metaphors (and we are always doing this) we are thinking with our bodies. Further, without these metaphors we would have an impoverished understanding of essentially everything that is important to us. If you don’t want to invest in the entire 40-minute talk, I would urge you to go to the 24-minute mark to hear Lakoff’s story how the explosion of research on conceptual metaphors began with a tearful graduate student’s comment, “I’ve got a metaphor problem with my boyfriend.” After hearing this story and watching the short audience participation segment where Lakoff connects up romantic love with the physical act of traveling, the field of conceptual metaphor will likely become vivid and compelling for you. Conceptual metaphors are invisible to most of us, but once you see how they work, you will see them everywhere.  You might even feel that you have new superpowers for seeing how people talk, think and attempt to persuade each other.

Lakoff is probably best known for his work on metaphors (with philosopher Mark Johnson), beginning (but by no means ending) with the book, “Metaphors We Live By.” I’ve written on the importance of metaphors in many other places, including here, here and here.  Conceptual metaphors are critical to my own profession, the legal profession. I’ve published my own analysis on the critical connection between metaphors and the legal doctrine of stare decisis here: "The Exaggerated Importance of Stare Decisis." 

Continue ReadingGeorge Lakoff’s Expansive Lecture: How Linguistics Relates to Everything Else.

The Political Left Cheers Law Enforcement Abuses in the Case of Michael Flynn

I'm wondering how many of us on the political left will be able to tamp down tribal instincts in order to see these disturbing facts for what they are. Matt Taibbi explains in an article titled "Democrats Have Abandoned Civil Liberties: The Blue Party’s Trump-era Embrace of Authoritarianism Isn’t Just Wrong, it’s a Fatal Political Mistake":

Warrantless surveillance, multiple illegal leaks of classified information, a false statements charge constructed on the razor’s edge of Miranda, and the use of never-produced, secret counterintelligence evidence in a domestic criminal proceeding – this is the “rule of law” we’re being asked to cheer.

. . . .

In the last four years the blue-friendly press has done a complete 180 on these issues, going from cheering Edward Snowden to lionizing the CIA, NSA, and FBI, and making on-air partners out of drone-and-surveillance all-stars like John Brennan, James Clapper, and Michael Hayden. There are now too many ex-spooks on CNN and MSNBC to count, while there isn’t a single regular contributor on any of the networks one could describe as antiwar.

Democrats clearly believe constituents will forgive them for abandoning constitutional principles, so long as the targets of official inquiry are figures like Flynn or Paul Manafort or Trump himself. In the process, they’ve raised a generation of followers whose contempt for civil liberties is now genuine-to-permanent.

If you are willing to dig deeper into the details (and I hope you are), spend some time with Glenn Greenwald's article and detailed video (1 hour 45 min long). The long title to Greenwald's article: "New Documents From the Sham Prosecution of Gen. Michael Flynn Also Reveal Broad Corruption in the Russiagate Investigations." The Surveillance State is running amok and those of all political stripes should be deeply disturbed. Neither Taibbi nor Greenwald expect typical members of the political left to have enough integrity to step out or their tribal costumes in order to see and appreciate these disturbing facts.  Greenwald's analysis of tribal blindness is spot on:

Because U.S. politics is now discussed far more as tests of tribal loyalty (“Whose side are you on?”) than actual ideological or even political beliefs (“Which policies do you favor or oppose?”), it is very difficult to persuade people to separate their personal or political views of Flynn (“Do you like him or not?”) from the question of whether the U.S. government abused its power in gravely dangerous ways to prosecute him.

Flynn is a right-wing, hawkish general whose views on the so-called war on terror are ones utterly anathema to my own beliefs. That does not make his prosecution justified. One’s views of Flynn personally or his politics (or those of the Trump administration generally) should have absolutely no bearing on one’s assessment of the justifiability of what the U.S. government did to him here — any more than one has to like the political views of the detainees at Guantanamo to find their treatment abusive and illegal, or any more than one has to agree with the views of people who are being censured in order to defend their right of free expression.

The ability to distinguish between ideological questions from evidentiaryquestions is vital for rational discourse to be possible, yet has been all but eliminated at the altar of tribal fealty. That is why evidentiary questions completely devoid of ideological belief — such as whether one found the Russiagate conspiracy theories supported by convincing evidence — have been treated not as evidentiary matters but as tribal ones: to be affiliated with the left (an ideological characterization), one must affirm belief in those conspiracy theories even if one does not find the evidence in support of them actually compelling. The conflation of ideological and evidentiary questions, and the substitution of substantive political debates with tests of tribal loyalty, are indescribably corrosive to our public discourse.

As a result, whether one is now deemed on the right or left has almost nothing to do with actual political beliefs about policy questions and everything to do with one’s willingness to serve the interests of one team or another. With the warped formula in place, U.S. politics has been depoliticized, stripped of any meaningful ideological debates in lieu of mindless team loyalty oaths on non-ideological questions.

Continue ReadingThe Political Left Cheers Law Enforcement Abuses in the Case of Michael Flynn

Axiomatic Civic Responsibility

I’m looking at the “protesters” in Michigan and ruminating on the nature of civil disobedience versus civic aphasia. By that latter term I mean a condition wherein a blank space exists within the psyché where one would expect an appropriate recognition of responsible behavior ought to live.  A condition which seems to allow certain people to feel empowered to simply ignore—or fail to recognize—the point at which a reflexive rejection of authority should yield to a recognition of community responsibility.  That moment when the impulse to challenge, dismiss, or simply ignore what one is being told enlarges to the point of defiance and what ordinarily would be a responsible acceptance of correct behavior in the face of a public duty. It could be about anything from recycling to voting regularly to paying taxes to obeying directives meant to protect entire populations.

Fairly basic exercises in logic should suffice to define the difference between legitimate civil disobedience and civic aphasia. Questions like: “Who does this serve?” And if the answer is anything other than the community at large, discussion should occur to determine the next step.  The protesters in Michigan probably asked, if they asked at all, a related question that falls short of useful answer:  “How does this serve me?”  Depending on how much information they have in the first place, the answer to that question will be of limited utility, especially in cases of public health.

Another way to look at the difference is this:  is the action taken to defend privilege or to extend it? And to whom?

One factor involved in the current expression of misplaced disobedience has to do with weighing consequences. The governor of the state issues a lockdown in order to stem the rate of infection, person to person. It will last a limited time. When the emergency is over (and it will be over), what rights have been lost except a presumed right to be free of any restraint on personal whim?

There is no right to be free of inconvenience.  At best, we have a right to try to avoid it, diminish it, work around it.  Certainly be angry at it.  But there is no law, no agency, no institution that can enforce a freedom from inconvenience.  For one, it could never be made universal.  For another, “inconvenience” is a rather vague definition which is dependent on context.

And then there is the fact that some inconveniences simply have to be accepted and managed.

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Justice Brett Kavanaugh’s Target on the Back of Roe v Wade

In the recent U.S. Supreme Court decision of Ramos v. Louisiana (decided April 20, 2020), Justice Kavanaugh looks like he's putting a target squarely on the back of Roe v Wade.  The decision focuses on the legal doctrine of stare decisis, a doctrine with a troubled legal history and a fascinating concept for those willing to view it through the lens of cognitive science (as I recently did in this article for the Bar Association of Metropolitan St. Louis). The Kavanaugh Concurrence is getting lots of attention for his treatment of stare decisis.

It goes with out saying that the official Roman Catholic position is that abortion is a form of murder.  This view is embraced even by the current leader of the Catholic Church, Pop Francis.  See here.  Kavanaugh is one of five men on the Supreme Court who are practicing Roman Catholics (Kavanaugh, Roberts, Thomas and Alito) or who were (in the case of Justice Neil Gorsuch) were raised Roman Catholic. Justice Sotomayor is also Roman Catholic.

Here are a couple excerpts from the Kavanaugh concurrence:

The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.

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New Podcast for Trial Lawyers: “The Jury is Out” Featuring John Simon and Erich Vieth

For ten years I had the privilege of working as a trial attorney with John Simon. I learned firsthand why John and his team so often won substantial verdicts for their clients on high profile cases. The “secrets” turned out to be nonstop hard work and a recognition that law school is only the beginning of one’s legal education.

About five years ago, I branched off into my own law practice, but I continued working with John on a variety of projects. A few months ago, John invited me to be his co-host on a podcast to teach trial law skills to lawyers and law students. Both John and I teach law students at Saint Louis University School of Law and we both present at legal seminars. Offering a podcast was thus a natural extension of our interests in legal education. We named our new podcast “The Jury is Out” and we released the first five episodes to the public a few days ago. We record our podcasts at a dedicated recording studio at the Simon Law Firm in downtown St. Louis.

John and I will be passing on what we've learned over the years, including lessons we’ve learned from hard experience. Our trial law episodes are geared to particular skills, including multiple episodes on the topics of “Opening Statement,” “Voir Dire” and “Expert Witnesses.” We will also offer interviews with prominent attorneys from St. Louis and beyond. Our guests on upcoming episodes include Hon. Mike Wolff (persuasion), Yvette Liebesman (intellectual property issues of concern to artists), Amy Gunn (efficiencies in the practice of law) and Hon. Glenn Norton (mediation).

You’ll quickly see that our approach for each episode is to roll up our sleeves and get right to it. After you listen to a podcast or two, we would appreciate if you would take a moment to rate this new podcast. And feel free to send us an email with suggestions you might have for future episodes.

You can find “The Jury is Out” wherever you get your podcasts. We’d be honored to have you join us.

Continue ReadingNew Podcast for Trial Lawyers: “The Jury is Out” Featuring John Simon and Erich Vieth