November 10, 2006
Being Right Redux: Is Demonizing the Fruit of Modernization?
Posted by Jeff Lipshaw
The morning after the election there was an interesting column in the Wall Street Journal by a former Boston Globe columnist turned Sand Hill Road venture capitalist (hmm, interesting) named John Ellis on the strange death wish that seemed to underlie negative political advertising.
Entitled "All Slander All the Time," it focused on Gallup polling showing that the overwhelming majority of voters in six states with closely contest Senate races viewed the advertising "as either 'somewhat negative,' 'very negative' or 'extremely negative.' Roughly a third of those surveyed in each state said 'extremely negative.'" And Ellis notes the ironic effect:
What makes our politics so sensationally awful is not just the amount of money spent denigrating the category and the profession, but the equally stunning amount of energy that is expended by party apparatchiks to amplify the negative in news-media coverage of politics. And the news media are only to happy to comply. The truth is they can't get enough of it.
The net effect of this constant and unrelenting assault on politicians and the political process is voter resignation and ultimately a kind of doomed acceptance. It must be true. They must all be hypocrites, fools, thieves and scoundrels. They're talking about themselves, after all. It's $1 billion of self-portraiture.
For what it's worth, I couldn't help but juxtapose this with a blog post on combativeness and demonizing from several weeks ago: the paper by Andrea K. Schneider (left, Marquette) and Nancy Mills entitled What Family Lawyers are Really Doing When They Negotiate. To repeat, this was survey data indicating that in twenty-five years (1976 to 2000), the number of lawyers perceived as being adversarial/competitive versus problem-solving/cooperative has risen from 27% to 36% as a percentage of the total bar, and the number of perceived ineffective lawyers has risen from 12% to 22%. Moreover, the aggressive lawyers are getting "more negative and nastier. Twenty-five years ago, the effective competitive lawyers still had plenty of positive adjectives describing them, including convincing and experienced. Today, that situation is quite different - the top seven adjectives describing adversarial lawyers are stubborn, headstrong, arrogant, assertive, irritating, argumentative and egotistical."
I'll add one more anecdote from practice. Back in the eighties, I was a young pup lawyer on an antitrust case in which a dealer of a consumer product accused the manufacturers in that particular industry of a concerted refusal to deal, on the theory that the dealer was a price cutter. Each of the defendants had the antitrust guru of one of the big local firms representing it, and there was a longstanding relational aspect to the interaction of defense counsel. They had been in this position in other cases in other industries, and would likely be so again in the future. At a certain point, one of the defendants decided this perceived coziness was not in its interest, and a lawyer from one of the big Chicago firms substituted in on its behalf. He proceeded to conduct the litigation with an almost psychopathic obnoxiousness, which was obviously intended to provoke a quick settlement so as not to have to deal with him anymore. The irony of all this is the lawyer ended up on the wrong end of a grievance, as a pro hac vice member of the U.S. District Court bar no less, in our jurisdiction.
I know my JSP-educated co-editor Childress gets nervous when I stray into sociology, but is this obnoxiousness and demonizing the fruit of the gemeinschaft (community) to gesellschaft (organization) modernization theory articulated by the German sociologist Ferdinand Tönnies (note we are not umlaut-challenged here at LPB)? As the community ties break down, there is less social norming, less compromising, less "life is too short for this fight." Remorse and sympathy are as much forms of conflict resolution as proving that one is right. To tie back into Professor Schneider's area (as to which I retain my amateur standing!), think about how you might have successfully resolved a fight with a spouse or partner. I suspect it had more to do with remorse or sympathy than proving to the other that you were right. (On the political side of things, think about the organized effort to reconciliation in post-apartheid South Africa.) But there is increasing reliance, within in the family or without, on systems and mechanisms of formal win-lose resolution, whether they are Robert's Rules of Order, litigation, or popular vote.
Ironically, Tönnies also observed that the community to organization trend of modernization is not consistently linear in that direction. If we can think about stemming the tide of global warming, or the erosion of wetlands in the Mississippi delta, maybe it's not beyond our capacity to do some mid-course corrections on our need to be right and to show opponents not only to be wrong, but to be demons.
November 10, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society, Lipshaw | Permalink
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I really don't (get nervous or discourage him). Jeff is just saying that for dramatic effect. But if you ever hear me referring to 'ontological' as anything other than a cancer doctor, he'll scream in surprise.
Posted by: Alan Childress | Nov 10, 2006 9:14:23 AM