Here is Robert F. Kennedy, speaking in 1968 and observing, essentially, that our ideas about success, as a people and as a nation, are completely disconnected from reality:

Too much and for too long, we seemed to have surrendered personal excellence and community values in the mere accumulation of material things.  Our Gross National Product, now, is over $800 billion dollars a year, but that Gross National Product—if we judge the United States of America by that—that Gross National Product counts air pollution and cigarette advertising, and ambulances to clear our highways of carnage.  It counts special locks for our doors and the jails for the people who break them.  It counts the destruction of the redwood and the loss of our natural wonder in chaotic sprawl.  It counts napalm and counts nuclear warheads and armored cars for the police to fight the riots in our cities.  It counts Whitman’s rifle and Speck’s knife, and the television programs which glorify violence in order to sell toys to our children.  Yet the gross national product does not allow for the health of our children, the quality of their education or the joy of their play.  It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials.  It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country, it measures everything in short, except that which makes life worthwhile.

Unfortunately, aside from the dollar amount in the second sentence, which now can be revised upward significantly, his observations remain true. Meanwhile, caught in the grip of a terrible economic crisis, we are still latched to dangerous ideas like the “problem” of “consumer spending” being too “low.” And even though Allstate pretends that people are “back to basics” (and one commentator cynically observed, “Home and auto insurance, apparently, are among the basics”),  I have not heard anyone seriously suggest that we want to stay with those basics for long.

While I am not an economist and have only a smattering of knowledge about economics, I suspect more strongly every day that the main reason we are in this “economic crisis” is because we have staked our sense of well-being on things like “consumer spending” and “gross national product.” Making, selling, and buying more stuff—any stuff will do. Have an idea for a “product”? Any product will do. Just make a lot of them, or sell a lot of them, and turn a hefty profit: you are now “successful”! Have no skills but need a job? Learn “sales,” which is the profession of selling stuff—any stuff will do—to people who probably don’t need it (or why would anybody pay you to convince them otherwise?).  There’s nothing remotely thoughtful, healthy, or sustainable in that approach, but that’s what we Amurricans have been all about for a long time.

Is there a better way? Surely. But I am not confident that we, as individuals, as communities, or as a national or global society, have the discipline to free ourselves from what will only continue to be the long cycle of “boom and bust” that has characterized U.S. history right from the start. Some people  like to tout “Western civilization”—with the United States at the apex of that development, of course—as not just a unique phenomenon in world history (it is), but as the best phenomenon in world history (it may be). I question their judgment, not just in the Churchillian worst-except-for-all-the-others way, but in the implicit twin conclusions either that we Westerners or Americans can do no wrong, or that non-Westerners or non-Americans can never do better. The first of that pair is the weaker, obviously erroneous, and would probably be a straw man if pursued. The second is more insidious because it may seem, especially to some “conservative” minds, more rational, perhaps more supportable, but really it’s just another way of expressing the first.

Sophisticated partisans of the Western-is-Inherently-Better view are careful never to state those conclusions outright, however, but leave them to implication. Here’s one I saw in the newspaper recently, dripping with sarcasm:

Here [in a discussion of Islam in history] we see the omnipotent influence of Obama’s multicultural creed: Western civilization is unexceptional in comparison with other cultures, and history must be the story of an ecumenical, global shared brotherhood.

The obvious message behind the eye-rolling is that Western civilization is exceptional in comparison with other cultures and that history is not the story of an “ecumenical, global shared brotherhood,” but the story of a superior, paternal West and its children around the globe.

But we have ourselves turned inside out. We measure our lives and our accomplishments by standards that are not only disconnected from the basic reality of our humanity, but which are probably detrimental to our well-being. Our obsession with “development” and “production” and always more stuff—any stuff will do—has made us think that more factories producing more products (even the word itself flaunts its indiscriminate meaning) for more people to buy and put in more—and bigger!—houses that are further from our jobs convincing other people to buy things they don’t need that we must have more cars to drive further every day and create new externalities and new risks that need to be insured against with policies from companies like Allstate. How far down to the foundation for that house of cards? Welcome to the Western way of life. Cash, checks, and credit cards accepted.

Robert Kennedy had a good point in 1968 and someone else needs to keep making that point in 2009 because few people appear to have been listening 41 years ago.

Bonus points if you can spot the goofy pop-culture allusion in the title of this post and the geeky medieval philosophy allusion that’s embedded with it—and how both of them relate to the body of the post!

The problem of people making abusive comments on newspaper websites is not restricted to Fresno. They have this problem in Las Vegas, too. But there federal prosecutors demanded the identities of people who wrote the abusive comments because they “might be construed as threatening to jurors or prosecutors.”

The ACLU disagrees with the request and thinks that disallowing anonymity would have a “chilling effect”:

“The right to speak anonymously about politics is older than the Constitution,” [staff attorney Margaret McLetchie] said, alluding to the Federalist and anti-Federalist papers, which were published under pseudonyms.

Right. Has anybody at the ACLU actually read the Federalist and the anti-Federalist papers? Do they read the comments that people leave on newspaper websites? Have they bothered to note the enormous difference in quality, both of thought and writing, in those two sources? Comparing the lunacy spewed in the comment sections on newspaper websites to the Federalist and the anti-Federalist papers is either the same kind of irresponsible enabling that people are alleging commentators like Bill O’Reilly committed before the murder of Dr. George Tiller, or a profound insult to the authors of those historical documents.

The authors of the Federalist and anti-Federalist papers did not use anonymity to lob irrationality, insults, and abuse at people. They wrote closely reasoned arguments. Theirs was precisely the kind of speech that the First Amendment was intended to protect. What is the social value in allowing people to hide behind a mask of anonymity, then go on newspaper websites—or any other websites, for that matter—and hurl unreasoned abuse at identified or identifiable individuals?

To be clear, I agree with the California Court of Appeal, Sixth Appellate District, which held last year in Krinsky v. Doe that an anonymity-piercing subpoena (a court order requiring a website to reveal the identity of an anonymous commenter) should overcome a motion to quash only where the plaintiff can show that the anonymous statement is actually libelous. In other words, where anonymity is allowed by a website, court process should not be allowed to overcome that policy unless there is a viable claim at stake.

Quoting the United States Supreme Court, the Krinsky court observed that “the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Quoting another United States Supreme Court case, the Krinsky court further observed:

The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

While that rationale looks good on paper, I am skeptical of that “[w]hatever the motivation” part, especially since the court is talking about “literary endeavor” and “the marketplace of ideas.” But the law in the United States, as it currently stands, is that the First Amendment protects the right of people to go online, refuse to identify themselves, and spew insults, abuse, and irrationality at others, many of whom are openly identified or identifiable. But it only protects them from restrictive government acts, like subpoenas.

So I see no reason why newspaper websites, or newspapers themselves, should automatically favor an anonymity policy in the first place. A better policy would be to make a real-world identity the usual requirement, but then allow anonymous publication only after editorial review. To put it another way, the First Amendment protects free speech, which includes anonymous speech, but does not require newspapers to allow anonymous commenters. Rather, if newspapers and other online publishers believe they have some duty or responsibility to foster free and open debate (and, to add another layer of complexity to my view, I am not convinced they do have such a duty or responsibility), then they should seriously consider the effects of allowing anonymous publication.

Summing up, the First Amendment is good and should protect free speech, even when it’s published anonymously, even when it’s irrational and insulting, and sometimes even when it’s abusive, depending on the circumstances (i.e., when it’s not defamatory). But not because anonymous publication somehow always equates to the Federalist papers or the anti-Federalist papers. That’s just inane. And newspapers, especially ones where there is vigorous community debate going on in the comment sections, as with The Fresno Bee, should carefully monitor the quality of the comments. An anonymous commenter who is opinionated and articulate but not abusive or insulting should be tolerated, but anonymity in itself should not be treated like some quasi-First Amendment right that requires newspapers, absent any other state action, to facilitate the publication of irrationality, insults, and abuse.

And, also, to be fair, I haven’t seen anybody arguing that newspapers are required by the First Amendment to publish anonymous insults and abuse. My beef is really with the argument, apparently advanced by the ACLU, that anonymity in publishing is an automatic good, to be protected in itself, without regard to the content of the anonymous speech.

Yesterday I lamented the horrible state of discourse on The Fresno Bee letters website, which is mostly due to the poor behavior of people who rant insanely against “liberals” and “democrats” and “socialists.” There are a few irate, slogan-slinging left-wingers, too, but the anti-left is the main source of the problem. But even “anti-left” is not really accurate; they are viciously against anyone who disagrees with their views, which are basically xenophobic and religious and characterized by systematic intolerance. I just can’t bring myself to call them “right-wing” or “conservative,” which are labels that ought to be reserved for people who, while taking a certain political position, are not unreasonable about it.

Now today I read Paul Krugman’s column titled “The Big Hate.” He writes:

Back in April, there was a huge fuss over an internal report by the Department of Homeland Security warning that current conditions resemble those in the early 1990s — a time marked by an upsurge of right-wing extremism that culminated in the Oklahoma City bombing.

Conservatives were outraged. The chairman of the Republican National Committee denounced the report as an attempt to “segment out conservatives in this country who have a different philosophy or view from this administration” and label them as terrorists.

But with the murder of Dr. George Tiller by an anti-abortion fanatic, closely followed by a shooting by a white supremacist at the United States Holocaust Memorial Museum, the analysis looks prescient.

Read the rest of the column. He suggests that we may be on the cusp of an extended period of extremist violence, facilitated, in part, by the so-called “conservative” media outlets, and people like Jon Voigt who declared President Obama to be a “false prophet.” Huh? Again, I just don’t think “conservative” is the right word for these people. “Insane anarchists” maybe?

I’ve also been reading a book on Weimar Germany. In case you’re unfamiliar, the “Weimar Republic” is the name often given to the period in Germany between the two World Wars. There was a flowering of culture and liberalism, but, of course, the outcome was Adolph Hitler and the Nazi party, rising from the simmering sludge of angry anti-liberals.  Here is a paragraph from pages 75-76 the book:

Ludwig Finckh, a conservative Swabian author, loudly proclaimed, “Berlin is not Germany.” The capital was inhabited by “visionaries, dreamers, and adventurers . . . [who] live in a delusion.” They call for the brotherhood of all peoples while Germany’s adversaries laugh away. The Social Democrats “teach respect for every opinion,” and are thereby at best indecisive, at worst traitorous, while the military renounces the reason for its existence by failing to use force. Finckh even called for a new German capital, one that would evoke “the spirit of Germany” against the “spirit of Berlin.” Similarly, the conservative journalist Wilhelm Stapel complained about the “cesspool of the Republic, the spoiler of all noble and healthy life.” Even worse was the desire of small-town residents to replicate it, to make “every little rathole in all of Germany . . . a microcosm of Berlin.” Stapel did not refrain from voicing the deepest fear of conservatives—deracination: “All too many Slavs and all too many altogether uninhibited East European Jews have been mixed into the population of Berlin. It is an embarrassing mixture; it determines through sheer quantity the character of this city.”

Sure sounds a lot like  our anti-left today, especially in California. Just change “Slavs” to Mexicans, “Jews” to gays and the godless, “Berlin” to San Francisco, Los Angeles, and maybe even Sacramento. We’d best be vigilant.

Over at The Fresno Bee, they post letters to the editor on their website. These are the same letters that are published every day in the printed newspaper, under the following guidelines:

Please include address and daytime phone number for verification, and limit to 200 words.

The Bee does not publish anonymous letters, open letters, form letters or poetry.

That text is printed next to the letters in the newspaper every day, with addresses for both email and physical mail submissions. You can also submit letters through an online form. Oddly, the text next to that form is different:

Your comments will be sent to the editorial staff at The Fresno Bee, for possible use in the printed and online edition of The Bee. Your first and last name, as well as your phone number are required for letter verification. If those are not present, your letter will not be considered for publication. Please refer to our letter policy for more detailed guidelines.

Letters must be no more than 200 words.

And, inexplicably, the words “refer to our letter policy” are not a hyperlink. I have never been able to find their “letter policy” either, even after a Google search with these terms:

site:fresnobee.com “letter policy”

Those things—the two different texts for the same purpose, the absent “letter policy”—are not really a big deal, but they indicate that The Bee does not care about details, has no clue how to run a good website, or both.

At any rate, the letters printed in the newspaper are just like letters in most newspapers: if you want to respond, you need to write your own letter. I am only guessing about this based on my experience, since the “letter policy” remains safely concealed, but it appears that The Bee will print only one layer of responses to a letter. In other words, they might print fifteen responses to one letter, but it seems they won’t print responses to any of those letters.

Once the letters are published on the website, however, the Bee allows registered users to post comments, much as they might on a blog. This leads to long and unruly threads, mostly populated by some of the most irate, ignorant, and inarticulate people on the internet. Most of these commenters remain anonymous, using cryptic usernames instead of real names. And even though The Bee allows these registered users to create “profiles,” few of them provide any identifying information.

So I try to be different. My username is “peter_j_wall,” while my profile includes a photograph of me, says I am an attorney, and names the firm where I practice. I try to keep my comments substantive, nonpartisan, and reasonable. After all, with the information available on my profile, anybody who wants can look up this blog, my State Bar profile, the website for the firm where I practice, my brother’s blog (he also comments on the letters), and probably plenty of other information.

Despite all that, I dropped in on a comment thread earlier today to discover one of the other commenters—someone who goes by the username “Joe_Smith_60″—calling me a “lieyer.” And it was clear that he had not read or not understood the comment he was responding to, or maybe had no intention but to grind his own axe at my expense. I have no idea if “Joe Smith” is his real name, or if he is the Joe Smith who, according to Classmates.com, graduated from Bullard High School in 1963. (If the “60″ is supposed to be indicative of age, the numbers would be about right.) Who knows? His profile gives no more information and has been listed as “currently being reviewed by the editors” for quite a long time.

Fortunately, I suppose, The Bee allows you to “Report abuse” for various reasons: “Obscenity/vulgarity,” “Hate speech,” “Personal attack,” “Advertising/Spam,” “Copyright/Plagiarism,” and “Other.” So I reported, chose “Personal attack”—it seemed the most appropriate—and explained that, while I recognize the popular animosity against lawyers (there is even a recent book called Lawyers Are Liars), it is not appropriate for someone in that kind of forum to refer to me personally as a “lieyer.” (And it may even be defamation in the form of libel, though certainly not worth litigating.) The comment was removed, and now there is only placeholder text: “Joe_Smith_60’s comment is abusive and has been removed.”

But the reporting hardly seems worthwhile and the removal is little more than a token gesture. The real problem, I think, is anonymous commenting. When you write a letter for publication in the newspaper (and now online), The Bee requires authenticating information and demands editorial control. Lots of irritatingly stupid letters still get through, however, and I almost agree with Ed Brayton: “Letters to the editor are quite often some of the most depressing things one can read.” Reading the online comments on the letters printed by The Bee is even worse.

When the local newspaper offers an online forum for citizens to discuss the issues raised in letters to the editor, I fail to see why that discussion should not be held to standards just as high as those for the letters themselves. Require some authenticating information. Prohibit anonymity.

There is a difference between readers of a local newspaper using the web to discuss politics and a bunch of strangers worldwide using the web to discuss, say, the Star Wars movies. The whole point of going online to discuss the minutiae of the Star Wars universe, just to stay with that example, is to escape and inhabit a fantasy world, for fun and recreation. Anonymity is almost necessary there. But when people want to talk about pressing political issues with fellow locals, what good is anonymity? It only promotes rudeness and idiocy, from what I can tell.

According to my brother, who has been in contact with one of the editors at The Bee, they are “working on a number of things that [they] hope will keep the bad behavior to a minimum while keeping the comment system as open and freewheeling as possible.” I hope they succeed, but I’m not holding my breath.

Nevertheless, I still wonder about some of these commenters. Their comments are bizarrely worded, poorly spelled and punctuated, devoid of substance, but angrier than anything, mostly about “liberals” and “democrats,” which seem to be codewords for anybody who fails to agree with them. But I don’t even feel comfortable calling these people “conservative” because they seem too far removed from reality and decency and plain sense. A better label would be “seventh graders.”

I’ll keep trying to bring some stabilizing reason to the discussions over there, but I doubt the possibility of making a real difference. When being a lawyer means I spend almost every waking moment (and too many sleeping ones) trying to be honest and wondering if I have screwed something up, to have some quasi-anonymous jerk call me a “lieyer” can pretty much ruin my day. Joe_Smith_60 should hold himself to the same high standard and The Bee should refuse to put its imprimatur on a system that does not require people to strive for that standard.

The Bee’s editors are right: we should have “freewheeling” public discourse on important issues. But real public discourse should never be confused with the useless cacophony that spews from shrill partisan drones in echo chambers.

Blogger has decided to limit all comments on Blogger-hosted blogs to 4,096 characters. Brilliant move, guys. Keep it up with that enforced, incremental dumbing-down and before you know it we’ll all be putty in Google’s hands.

So long as the Wordpress software does not start creating similar limits, I’m proud to say you’re welcome to respond with long comments here. (That is, when I find the time to start posting things again…)

In his essay “How I Believe in God,” Roger Ebert observes: “Science is not ’secular.’ It is a process of honest investigation.” And then: “No, I am not a Buddhist. I am not a believer, not an atheist, not an agnostic. I am still awake at night, asking how? I am more content with the question than I would be with an answer.” He writes about growing up in a Catholic home, going to a Catholic school: “Most of my neighborhood friends were Protestants who were not interested in theories about God, apart from the fact that of course he existed.”

Ebert describes a way of living—an engagement with being—that is a process,  a voyage of exploration that’s driven by curiosity and guided by reason. It is not a response to marching orders because there are no discernable orders. You can look for them, you can claim you found them, you can find others who already agree with you, but you will probably never be able to persuade people that your orders are what you what you claim they are. If you persist, then one day you will probably find yourself old and frustrated, your curiosity destroyed, your reason dulled, and no one caring what you think or say. Having ignored your life in a futile effort to skip to the back of the book for the answers you believe must be there, you will find that others who lived the process are happier and better equipped for the changes that are inevitable.

Never stop your honest investigation of everything. You will be more content with questions than answers.

Ebert more recently wrote:

I grant you that if the universe was Caused, there might have been a Causer. But that entity, or force, must by definition be outside space and time; beyond all categories of thought, or non-thought; transcending existence, or non-existence. What is the utility of arguing our “beliefs” about it? What about the awesome possibility that there was no Cause? What if everything…just happened?

If you want to have a “spiritual” experience, ponder that last question. But while it’s useless to argue beliefs about what transcends existence or nonexistence and all categories of thought or nonthought, we have plenty going on right here inside space and time, within our categories of thought, sharing our existence. That so many religious people choose to ignore those things as the substance of life and the source of plenty of problems and questions that are worth arguing about makes no sense to me. Why do they shove aside the mysteries that shoot through every moment of our existence to exalt the other mysteries whose presence and existence are not obvious, and which first need to be persuasively established before anyone will bother to care about them at all? Paraphrasing John Lennon, life is what happens for everyone else while you are cajoling them accept your religious beliefs.

Shakespeare, through Hamlet, called the bluff:

There’s the respect
That makes calamity of so long life,
For who would bear the whips and scorns of time,
Th’oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office, and the spurns
That patient merit of th’unworthy takes,
When he himself might his quietus make
With a bare bodkin? who would fardels bear,
To grunt and sweat under a weary life,
But that the dread of something after death,
The undiscovered country from whose bourn
No traveller returns, puzzles the will,
And makes us rather bear those ills we have
Than fly to others that we know not of?
Thus conscience does make cowards of us all,
And thus the native hue of resolution
Is sicklied o’er with the pale cast of thought,
And enterprises of great pitch and moment
With this regard their currents turn awry,
And lose the name of action.

If the purveyors of divine edicts were as sure of their truth as they demand everyone else to be, then why not speed the way to that undiscovered country? Why not make your quietus? Why bother to grunt and sweat in life? Why bother to bear those ills we have? But conscience makes them cowards. They hang, like fools, between their claims to know the truth of what lies beyond and their inexplicable refusal to go there themselves. But we should rather bear the ills we have, and struggle through our lives, to join that voyage of discovery that’s driven by curiosity and guided by reason because we possess that now, and we know that the process yields great satisfaction.

That the religion-pushers fail to recognize their bluff, their cowardice, or their hypocrisy is pathetic on the individual scale, but tragic in the global extent of their number. Life is here to be lived, and they are here, too, but not living. They walk among us like zombies, purporting to carry out those marching orders that, despite their claims to the contrary, lie just beyond the other side of an unscalable epistemological wall. Most of them will never wake up.

Yesterday, I attended a continuing education course on winning writs and appeals. The main speaker was Myron Moskovitz, who is a professor at Golden Gate University. As a practitioner, he also has a great record of winning in appellate courts. Most of what he said confirmed what I had already intuitively concluded: judges care more about justice than about law.

That’s not to say the law doesn’t matter. Where there are settled principles, the law certainly matters. But Professor Moskovitz suggested that of the three elements in any argument—facts, policy, and law—you do more to increase the probability of winning by using the facts and public policy than you do by stating the law correctly and applying it to your situation.

He demonstrated this principle by asking the room full of lawyers and judges if we had heard of Rod Blagojevich and the story of his legal troubles. We all had, of course. “How many of you think he’s guilty?” he asked. Many hands around the room went up. The professor paused. “Now, how many of you know what he’s charged with?” One hand darted up. In other words, explained the Professor, in this room full of lawyers and judges, where almost nobody can state the charges at issue, where probably nobody has read a single applicable statute or case, we were willing to convict the guy based just on the story—the facts, the policy, and our sense of justice. Judges are no different.

The law matters, but justice matters more. That may not be fair or even right, but it highlights the tension between law and justice. Most people want justice for themselves, but they want the law applied to others. Law simplifies reality. Law says, “You can consider these things, but not those things.” But justice requires you to think about all those other things. We’re all intimately familiar with the mitigating factors that should result in justice for ourselves, but for others, we want everything simplified. You stole a loaf of bread? Criminal conviction for you! Don’t tell me why. Don’t tell me your family was starving. That doesn’t matter. Irrelevant! But if I stole a loaf of bread? Please, let me explain!

We need law to keep our system of justice rolling. If disputes could only be resolved by considering all the factors that inform our sense of justice, we could hardly work efficiently.

None of this is new or earth-shattering. Anybody who has ever thought seriously about the philosophy of law or politics has struggled with this tension. But we need to recognize that the tension is there. Failure to consider that problem leads to ill-considered views about our own rightness and the wrongness of others, which only breeds more conflict and increases the need to resolve more disputes.

That is probably why President Obama, talking about appointing a replacement for Justice Souter, said:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

The President strikes exactly the right tone, I think. Judges must be dedicated to the rule of law and have the empathy that allows them to understand and identify with people’s hopes and struggles. If we could reduce the courts to legalist science, we might have a pure system of neutral principles, but I doubt people would be happy. The laws applied by the courts would still be dictated by legislatures who can be swayed by monied interests,and by the tyranny of the majority in states with more direct forms of democracy. In other words, the disputes would simply be limited to the unabashedly political arena and removed from the place where people can go to tell their story in search of mercy and justice, relief from the legislature, from monied interests and tyrannical majorities.

Neutral principles sound nice in the abstract. They seem fair. But the longer I think about them, the less I think that trying to establish them in the courts will result in a more just society.

One of the many things they don’t teach you in law school is how to persuade someone, especially someone in a black robe. How do you “make your case”? Law school did teach me how to do legal analysis—or at least introduced me to the basic tools of legalist reasoning—but persuasion is not the same thing as analysis.

Sure, I can state the law, apply it to the facts, and explain why my client should win. But will that really persuade anyone? A few months ago I might have said yes, or at least, “Yes, it should persuade a judge.” With only five months of practice under my belt, however, I’ve become both skeptical about whether legalist technique ever works and cynical about whether it actually works even when it seems to work. What are judges and others in a position to be persuaded really looking for?

Sometimes a judge will ask, “What gives me the authority to grant the relief you seek?” Maybe the judge is looking for a legal basis to rule in your favor. Or maybe the judge is repurposing a legalist concept—the search for “authority”—to veil a decision made on concealed, non-legal grounds: “I don’t want to rule in your favor,” the judge seems to be saying, “So no matter what you come up with, I will find a way to brush it aside as not authoritative.” Or maybe the judge really does take a legalist approach, but takes the method so seriously that he or she refuses to exercise any discretion unless there is a rule of decision so clear that ignoring it is no longer a reasonable—or sane—possibility.

Maybe “the facts” will be more helpful? I have yet to grasp this possibility. You can have a whole pile of facts, but the don’t mean anything unless you can give them a narrative structure, and even then you need some standard outside those facts to lend them the kind of moral value and persuasive weight required to reach a decision.

Maybe the central figure of your story is a bank robber with a heart of gold, so the prosecutor hammers on the “bank robber” part while the defense attorney hammers on the “heart of gold” part. What makes their different narrative emphases meaningful to a judge or jury, except for a preconditioned view that something is bad about robbing banks and something is good about having a “heart of gold”? And what is that preconditioned view? Law? Justice? Something else? What social policies are implicated by one or the other view? Are we trying to punish bank robbers, or reward the hearts of gold? Do we care more about the personal consequences for the players, or the economic consequences for those affected? Are we prohibiting certain conduct based on its inherent characteristics, which presumably do not fit the mold of our society, or are we doing something else? The law typically defines illegal acts by their inherent characteristics: taking property without consent by force or threat of force, with the intent not to return it. Other motivations are supposed to be irrelevant. But are they?

I want to fall in with those who assert that rules have a great economizing effect because they reduce the number of factors we need to consider before imposing a penalty. And that doesn’t just simplify the process of deciding when penalties ought to apply; it also simplifies the process of deciding which conduct to engage in because you can more easily predict the likelihood that a penalty will be imposed. Sometimes the rules of law, as an economizing force, will bring us to outcomes that may seem “unjust,” despite their being “legal,” but isn’t that what the “rule of law”—as opposed to the rule of a capricious tyrant, even an enlightened one—all about?

But having seen decisions that appear to flow from a source outside the rules of law, I am deeply skeptical that rational, economizing factors are what drive the decisions of judges. Which is not to say that the judges are capricious tyrants—even though I frequently disagree with their decisions on legalist grounds, I find their decisions to comport with justice almost as frequently. And there is the problem: How do you define justice, except in a circle, to say that justice is simply what “feels” right? Where are the standards? Where is the predictability? The economizing force of law? But how do you persuade someone that something is right without making recourse to some external standard that defines that rightness? “My client should win because it just feels right, Your Honor.” Fat chance persuading anyone with that argument.

This is why “you win some, you lose some.” This is why judicial outcomes are frequently controversial. This is why lawyers cannot guarantee or predict outcomes. Deep down, I suspect that nobody knows how the law works, and nobody knows what it takes to be consistently persuasive, except that you can be more polished and less objectionable. In other words, counterintuitive though it may seem when the subject is “persuasion,” I suspect that you can do much more reduce the likelihood of an adverse decision than you can to increase the likelihood of a favorable one.

Why is this? Probably because we are much better at rejecting things than accepting them, which I also suspect is why one classic decision-making technique is the “process of elimination.” The things we don’t like are the things that stick out most clearly—”like a sore thumb,” as we say—so we look for those, or just see them, first. So what is persuasion? Inspiring the judge with your positive argument, or hiding all your sore thumbs? My experience is pretty meager so far, but judges rarely seem susceptible to inspiration. Like anybody else with a heavy workload, they’re just looking for the sore thumbs that will tip your hand.

So what do you need? The law on your side? The facts on your side? Or no sore thumbs? I’m starting to think that, no matter the law or the facts, your main concern should be those sore thumbs. Do what you can to reduce the likelihood of an adverse decision because that is probably all you can do. Yes, that’s a cynical outlook, but sometimes the cynical outlook is the one that gets the job done.

I recently subscribed to The Green Bag, subtitled “An Entertaining Journal of Law.” Having read through most of the Winter 2009 edition (the only one I’ve received so far), I’m not sure the word “entertaining” usefully describes this journal, but the contents are relatively light and they manifest a sense of wit that other journals lack. Reading a few more editions will probably make up my mind.

One of the more interesting parts of the Winter 2009 edition is its reproduction of the first issue of Journal of Law, published in Philadelphia, July 7, 1830. The first item in the Journal appears to have been an explanation for its publication, including the following paragraph:

It is always important that the inhabitants of a country should possess a general knowledge of the laws by which they are governed, and especially of those regulations which affect them in the pursuit and transaction of their ordinary business. In the United States, where the people exercise so controlling an influence on legislation, it is emphatically necessary that they should be, to the greatest attainable extent, instructed in the philosophy of general jurisprudence, and in the state and leading principles of our own. Unless such instruction be widely diffused, what is good in our system cannot be secure from innovation; what is evil cannot be properly amended.

After 179 years, we still have a need for greater public understanding of the law and the means of its creation, or “the philosophy of general jurisprudence.” Instead of a belief that this is a society ruled by law, which is by definition shared, consensual, and reciprocal, our culture seems to be dominated by a belief in what can probably only inaccurately be called “justice,” thought not in the universal sense. We like vengeance, retribution, comeuppance, and “payback.” We like “zero-sum games,” with spectacular conflicts resulting in both winners and losers. We like “good guys” and “bad guys,” where the bad guys are always bad and the good guys never have to think much about the consequences of their actions: if you’re a “good guy,” then whatever you do must be “good” by definition, right?

But recognizing the rule of law means understanding that actions, rules, and consequences—conduct, laws, and remedies—rely on broad if not universal consent to governance that benefits everyone, not just a few. Enforcement of law should not be an act of vengeance, but a manifestation of our disapproval of vengeance in favor of order. Criminal prosecution and punishment, for example, lie in the hands of the government precisely because we want to address disruptive conduct in an orderly way, without leaving citizens to their own retributive devices. Civil suits, when they happen, should remind us that both sides must consent to orderliness of the system before their submission to the court means anything.

Instead of this, however, we play the law like a game, a weapon whose “technicalities” and “loopholes” can be deployed against our enemies. Just look at the whole same-sex marriage battle here in California. The “people,” so the Legislature created “registered domestic partnership” and cleverly just referred to the provisions of the Family Code relating to marital property and dissolution. Then supporters of same-sex marriage said that violated equal protection and the California Supreme Court agreed. So opponents of same-sex marriage organized a campaign to amend the state constitution because an act of the “people” would, they hoped, go over the Court’s head, so to speak. Then the opponents filed a lawsuit and said the amendment was a revision and ought to be thrown out, while the state Attorney General said the amendment was itself unconstitutional. People chant in the streets, hold rallies, verbally and physically abuse each other, and generally act like a bunch of idiots. Opponents of same-sex marriage engage in what can fairly be called “fearmongering,” while supporters offer little improvement on the technique, sticking intead with repeated chants and slogans. What is missing from this process? How about a discussion of substantive issues? How about some reasoned discourse about the specific reasons why allowing same-sex couples to get married would or would not be good for the state, with specific reasons on both sides? How about something relating to legitimate issues of public policy, instead of personal feelings or beliefs, anecdotal heartstring-tugging, and soundbites?

And the talking heads and pundits get on the airwaves and use the dispute as an opportunity to give Californians a “civics lesson,” or some such nonsense. No, this is not a civics lesson. It is a lesson in gamesmanship. Californians on both sides have demonstrated that civics and law mean almost nothing to them, except that they can be re-purposed as clubs to beat each other over the head.

What will it take for people to learn their lessons?

I have elsewhere suggested that granting religious exemptions to otherwise generally applicable laws is a bad idea because, of the two ideas in conflict—the religious idea of the exempted person and the legal idea of the society, the legal idea of the society should be granted more weight. E.g.:

If you want to have a moral principle, if you want to exercise your conscience, then why can’t you do it in a way that can be grounded in reality, in what we experience?

And:

You want to have an opinion? You state it, and you fight for it, and you back it up with solid reasoning—but the laws will have to apply to you just the same as they apply to everybody else.

In other words, I have suggested that religious exemptions rooted in the exercise of conscience are objectionable because there is no solid ground for such religious ideas: they are wholly imaginary. An easy criticism of my view might be that the legal ideas of society are no more connected to “solid ground” than religious ones. Aren’t laws arbitrary and imaginary, too?

Professor Stanley Fish, reading Thomas Hobbes, suggests otherwise in his blog “Think Again” at the New York Times.

Hobbes begins with the etymology of “conscience” — conscire, to know in concert with another — and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” it is a violation of conscience — of knowing together — to prefer their “secret thoughts” to what has been publicly established.

. . .

[I]f one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

Interestingly, this reminds me of Heidegger, whose Being and Time I was reading over the weekend. One of the ideas I reap from Heidegger is that everything is grounded in its relation to everything else. To make a bastardized summary in Heideggerian form: what gives our being solidity is its being in relation all the rest of being. In other words, turning back to Hobbes, whose work is much easier to grasp from the get-go, conscience, as something created relationally, has much greater heft than something asserted individually; something that arises from “two or more” who “know it together” is much more trustworthy than something that arises from one—perhaps a prophet or other self-appointed apocalyptic messenger of the alleged divine?

And the easy critique of that view is that religion is also created relationally. Doesn’t that put it on an equal footing with “authorized external bodies” like legislatures, courts, and professional associations? Probably not—at least not in my opinion. That takes me to another philosopher, John Rawls, and his idea of the “overlapping consensus.” We can’t all agree on everything, but we can all agree on something, and that something should be at the core of our system of governance. Call the overlapping consensus our Hobbesian conscience with a Heideggerian pedigree. (Or not, if you you don’t enjoy the philosophical name-dropping, Bruce.)

In short, the religious conscience is “softer” than the force of generally applicable laws because when we’re in the public sphere, where we have little choice in the fact that our neighbors may take different moral or religious views than we do, we still must relate to those neighbors as the face—or the mirror—of the society that enables our social existence. Granting people the ability to undercut the basic structure of human society because their moral or religious views are different from those we’ve elevated to the level of law is not substantially different from advocating a structureless society, which is an oxymoron.