Sunday, October 3, 2010

Law, Politics, Persuasion and Pessimism

"The law" according to Aaron Burr, an able lawyer among other things, "is whatever is boldly asserted and plausibly maintained."  It's a rather cynical comment.  I'm not sure that is as much the case in the law today as it was in his time; the law has become so complicated that extensive knowledge of it, or particular areas of it, is likely more essential than it was in his relatively carefree time.  But his comment is applicable to many other things, and is particularly applicable to our politics and culture as to what is believed to be true or significant--although it's questionable whether it is necessary to plausibly maintain most anything anymore.

Recently, I argued a case before the Supreme Court of the state in which I practice.  Because this court in most cases is not required to accept appeals, this is quite rare.  It can be an interesting and daunting experience.  I've done it before, but in this case the argument was not held in the imposing courtroom at the state capitol, but in the local court of the county in which the cases to be argued arose, apparently as part of a project to "bring" the court to the people, giving them an opportunity to see how the state's highest court operates.  So, the courtroom was mobbed, and had the atmosphere of an event, even a kind of show, which was unusual given the nature of the case in which I appeared, which has legal significance but is not terribly exciting.

I think this is a fine idea, and don't think it impacted the quality of the arguments at all.  Bold assertions plausibly maintained may impress but tend to be less compelling in the higher courts, even when an unusually large audience is present.  But this admirable idea of exposing the less known aspects of the functioning of the law to those interested reminded me that we as a people are more than ever a kind of audience, who expect events or shows, and are persuaded by them, for good or ill.

When the highest court of a jurisdiction becomes involved in a case, and has the discretion to accept matters, public policy will generally be an issue.  In interpreting and applying a statute, however, a court should not impose its own view of what is appropriate, in most cases.  The policy behind a law is presumably the concern of the legislature which adopted the law; part of the obligation of the court is to determine legislative intent, and the language of the law is all important to this determination.

This is a sound rule, as legislators are elected representatives of the people empowered to adopt laws.  But in these times when the show is so important and apparently so persuasive, one has to wonder whether elected legislators have the interests of the people in mind.

It's election time in this great republic, and advertisements for the various candidates (they cannot reasonably be called anything else) deluge us.  These advertisements are (perhaps necessarily) simple-minded, bombastic and, of course negative--they don't even extol the virtues of the preferred candidate, being focused exclusively on the many defects of his/her opponent.  They boldly assert, and are intended to persuade, but no effort is made to plausibly persuade anyone. 

I find this approach insulting, and ignore the advertising as much as possible, but it is pervasive--it can't be escaped.  Surely, it must have some effect.  Presumably, commercials regarding beer and cars and various other products influence consumers, though I've never considered myself particularly influenced.  Why else would such huge amounts money be paid to create such things?

It is now commonly felt, I think, that our politicians are products like any other, and have been bought and sold so many times before they are elected that they cannot serve the interests of any but their current owners.  If that isn't too cynical a view, it's hard not to consider that at least a limited kind of judicial activism is to be encouraged--unless, of course, judges are made as susceptible as politicians to the influence of others.  This would seem to require that they be protected from such influence.

It's the old problem, of course.  How independent can the judiciary be without becoming a kind of anti-democratic elite?  Can we hope that the politicians, pundits and preachers who endlessly hector us will be unsuccessful in their efforts to persuade us with mere assertions?  When will we demand that they provide plausible explanations for their claims and actions?

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