Thursday, January 4, 2018
Extra! Extra! In a Post-Facts World, Facts Still Matter!
Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.
The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions. Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.
Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.
Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability,  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.
So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.
Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.
Elements, per handbook
Explanation in handbook
Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space
This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.
Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false
In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.
Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).
This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect
Core facts should be displayed graphically, if possible.
For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).
 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.
 Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).
 60 Rutgers L. Rev. 381 (2008).
 Id. at 390–92.
January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)
Wednesday, July 13, 2016
This week Supreme Court Justice Ruth Bader Ginsburg drew criticism for her negative public remarks about Republican presidential nominee, Donald Trump. In three separate forums, Justice Ginsburg made remarks about not wanting Trump to become president and saying he has a big ego. The New York Times Editorial Board chastised Justice Ginsburg for speaking out and listed the instances:
In the New York Times: “I can’t imagine what the country would be — with Donald Trump as our president,” joking that if her husband were alive, he might have said, “It’s time for us to move to New Zealand.”
In an interview with the AP: “I don’t want to think about that possibility [a Trump victory], but if it should be, then everything is up for grabs.”
And with CNN: Trump was “a faker,” who “has no consistency about him.” In that interview, with CNN, she added: “He says whatever comes into his head at the moment. He really has an ego.”
Not at all unexpectedly, Donald Trump responded via Twitter by questioning Justice Ginsburg’s competence and ending with a curt command - "resign!"
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!
Commenters have noted that Supreme Court justices are not held to the Code of Conduct as are other federal judges which states that judges should refrain from political activity. Judges should not "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office . . . ." But Justices are subject to 28 U.S. Code § 455 which requires a judge to disqualify himself in any proceeding "where his impartiality might reasonably be questioned." Further, a judge should disqualify himself if “he has a personal bias or prejudice concerning a party . . . .”
Even Justice Ginsburg supporters have agreed that statements like this do put her in a precarious position should a replay of Bush v. Gore become necessary in this election cycle, or for any number of President Trump policy contests that are likely to come before the Court, if the volume of challenges is anything like those President Obama has faced. Further, even under a President Clinton, Justice Ginsburg's decisions may be perceived to be biased in favor of Hillary. Either way, her opinions could draw even more criticisms based on bias, with the evidence being provided by Justice Ginsburg's own words.
Others see no problem with Justice Ginsburg remarks:
Former Ginsburg law clerk Lori Alvino McGill, partner at Wilkinson Walsh + Eskovitz in D.C., defended the justice’s remarks.
“The Justice is human like the rest of us, and an American citizen,” McGill said. “That she uttered out loud some of her personal fears about a potential Trump administration does not cast doubt on her ability to be impartial, should a hypothetical ‘Bush v. Gore’-type case arise and come to the court.”
McGill added, “Any case that comes to the court concerning Trump v. Clinton would not be a referendum on who is the better candidate. It would present a legal question for the court to decide, and I have no doubt that Justice Ginsburg would faithfully execute her duty to decide that question without regard to whether she would give Mr. Trump her vote.”
In theory, it is possible that a judge may hold political views and still provide a judgment in accordance with the law. But, as humans, we inevitably, and probably unfortunately, instantly look for bias in controversial opinions. Lately, it doesn't even seem that a person’s opinion may be considered without an immediate allegation of bias - a personal attack upon that person’s character. This phenomenon has contributed to an increasingly polarized political environment, so much so that productive discussions become more rare every day.
Certainly it is true that judges are human too and invariably will hold personal political opinions. However the accepted norm has been that judges will refrain from stating such opinions in an overtly public way in order to maintain the appearance of impartiality. Perhaps the appearance of impartiality is just a lie we have come to accept as the norm, even though we value impartiality itself. When we hear such a pointed statement come from such a prominent Supreme Court Justice, it is something unusual and may cause us to reconsider the norm.
Would we be better off if our judges freely shared their political views? Would that be better for transparency within the judiciary or would it lead to greater distrust of the judicial system? What are the advantages or disadvantages of abandoning the long held tradition of judges refraining from entering the political arena?
Tuesday, September 15, 2015
Readers may find this of interest:
Tuesday, December 9, 2014
Allegations of non-random assignment of gay marriage cases by the Ninth Circuit were offered recently by gay marriage opponent, Coalition for the Protection of Marriage. This allegation is not new, dating back to California Prop 8 litigation in 2010.
Ninth Circuit Chief Judge Kozinski responded on the record regarding the recent allegation, though what, if anything, that adds is left as an exercise for the reader. For more detailed reading on the issue of judicial panel assignments, one might examine a pair of recent articles available on SSRN.
First, a new working paper on SSRN by Adam S. Chilton (Chicago) and Marin K. Levy (Duke) Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals. addresses the issue of circuit assignment practices across all circuits. The abstract ably summarizes the work:
A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.
Second, Margaret V. Sachs (Georgia) has a forthcoming article in the UC Davis Law Review, Superstar Judges as Entrepreneurs: The Untold Story of Fraud-On-The-Market, that discusses Judge Posner and Easterbrook's opinions on class certification in securities class actions. Sachs notes that the two judges dominated the development of the law on this issue in the circuit by retaining merits appeals of cases they agreed to hear as motions judges. Sachs examines how these two "superstar" judges were able to select these cases through a pecularity of the Seventh Circuit assignment process.
The Administrative Office of the U.S. Courts suggests that assigment is typically random but that assignment might be made based on substance or geographic considerations:
Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.
Wednesday, September 17, 2014
This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.
After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:
"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."
Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.
A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests.
I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?
Hat tip to reader Maryanne Heidemann
Friday, May 23, 2014
Almost a month ago, Legal Ethics Forum mentioned an AP story out of Washington about The Center for Public Integrity's conflict check on the federal appellate courts. CPI examined the last three years of financial disclosure reports of federal appellate judges and the federal appellate cases before each judge. The review found twenty-six cases involving sixteen judges where the a judge had a financial interest in one of the parties or in a law firm appearing before court. Such a small number of cases in the large volume of appeals suggests a reasonably functioning screening system, but even this small number of conflicts calls into question the outcomes in those cases and threatens the public perception of the judiciary as unbiased.
CPI notes that all sixteen judges have now informed the litigants in these cases of the conflict. Litigants whose cases are still pending have some chance at relief, recusal and perhaps a substitute judge added to their panel. Litigants whose cases are closed may have a tougher time of things. Those still in the window for en banc review may seek that rare remedy and getting the Supreme Court to review the cases seems even more remote.
Relatedly, our sister blog, the Civil Procedure and Federal Courts Blog, posted yesterday that the National Law Journal has issued a Special Report on Judicial Transparency and made available in digital format the 2012 disclosure statements of 257 federal appellate judges. Having this data publicly available increases the opportunity for the kind of conflict checking done by CPI as well as allowing for a scholarly or journalistic examination of judges' extra-judicial income. Of course, it also allows for the all-too-human poking our noses into other people's business, should anyone be interested in doing that.
Friday, March 21, 2014
The show must go on. This is the lesson that Illinois attorney Michael Joseph Finn learned. He was accused and later admitted to faking an illness in order to get out of doing an oral argument before the 7th Circuit Court of Appeals.
On the day in question, he alerted the court that he was sick and had vomited earlier that morning. He later reiterated the story once questioned by the ethics board before finally admitting that he was simply unprepared to present that day. This admission led to the Illinois Supreme Court issuing an order on March 14, 2014 suspending his license for 60 days. He also received a $1,000 fine and was ordered to pay restitution of $5,000 to the client.
The moral to the story: be prepared. If you are not prepared, timely request a continuance. If it is too late to make such a request, do not fake an illness to avoid your responsibility to your client. The better route is to pull and all-nighter preparing, show up and do your very best, and then vow that you will never put yourself in such a precarious situation again.
Hat tip to ABA Journal.