Comment Re:The way we think (Score 1) 1153
People with a strong math education understand logical argument, whether it be in symbols and numbers, or in words. The emotional, rhetoric-laden argument style that humanities teaches doesn't hold water in the legal profession, because judges are usually very sharp and aren't going to fall for that shit.
And yet, consider what Lawrence Lessig wrote about why he failed to persuade the Supreme Court to limit the 1998 extension of copyright terms (Free Culture, pgs. 244-45, emphasis added):
Most lawyers, and most law professors, have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. When Don Ayer said that this case would be won based on whether I could convince the Justices that the framers’ values were important, I fought the idea, because I didn’t want to believe that that is how this Court decides. I insisted on arguing this case as if it were a simple application of a set of principles. I had an argument that followed in logic. I didn’t need to waste my time showing it should also follow in popularity.
As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this Court. Justice Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Justice Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue.
Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan?
My friends huddled around me to insist it would not. The Court was not ready, my friends insisted. This was a loss that was destined. It would take a great deal more to show our society why our framers were right. And when we do that, we will be able to show that Court.
Maybe, but I doubt it. These Justices have no financial interest in doing anything except the right thing.They are not lobbied.They have little reason to resist doing right. I can’t help but think that if I had stepped down from this pretty picture of dispassionate justice, I could have persuaded.
The Supreme Court that Lessig addressed was composed of some of the most highly trained, best respected legal minds in the world. And they could not, and did not dispute the logic of his argument. As Lessig wrote, "It had never even occurred to me that they could reconcile [the Commerce Clause and the Progress Clause] simply by not addressing the argument." (242, emphasis in original) Lessig failed to give the issue a human face: an emotionally real story demonstrating the harms done by the retroactive extension of copyright terms. And because the Justices could not see -- could not feel -- that harms were being done, they ignored his argument and denied his requests.
Geeks worship at the altar of logic. It is a foundational assumption of our sub-culture that reason, based on sound evidence, is the best way to make decisions. But, as Lessig found out, reason is not the only way to make decisions. I would venture to assert that reason is not even the most common way that humans make decisions. On balance, we are creatures of emotion first, and of reason only second.
Bear Lessig's experience in mind the next time you denigrate the "emotional, rhetoric-laden argument style that humanities teaches". Rhetoric is about persuading your audience. If logic alone works, great! But if logic fails in the face of blinkered ideology, or incomprehension, or sheer human cussedness, do not be too proud to present an argument founded more on emotion than on evidence.