The importance of writing a court opinion well

Joshua Preston Supreme Court

The author outside the Supreme Court (c. January 2009)

This month Texas Monthly published an interview with retiring Texas criminal court judge Cathy Cochran, and in it she discusses the top judiciary reforms of the last twenty years. These include the increased use of DNA evidence, compensation for the wrongfully incarcerated, and policies to curtail false eyewitness identifications. All of these are surprisingly progressive reforms in a state that (often deserved) is criticized for its conservatism.

Yet, legal reforms aside, something in the interview stood out. When Cochran was asked how important a judge’s writing abilities are, Cochran answered:

Oh, very important—if you want to motivate people, if you want to make people pay attention, if you want people to do something, you need to say it well. A good politician rouses the crowd with language that people can understand and appreciate. If you want to be a good writer, you need to read good writers. I love reading Churchill, love reading Shakespeare. You need to make simple analogies that make sense to people who aren’t lawyers. When I started, I had my twelve-year-old grandson read some of my opinions.

Although it’s unlikely many laypeople ever read court opinions, we don’t appreciate their literary value (and even when it involves the Supreme Court, many only read excerpts). Contrary to the John Roberts school that supposes a judge is merely an “umpire” calling what they see, the judiciary is a political entity and its opinions are meant as much to inspire as they are to clarify the law of the land. Lines from Brown v. Board of Education (1954) are carved in marble. Justice Stewart’s “I know it when I see it” has become a pithy punchline. Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014) is a rallying cry for gender equality advocates. Now when was the last time someone quoted a bill?

Yet, increasingly, fewer judges are writing their own court opinions. Instead, they rely upon law clerks to write the first draft, which is then edited. The consequence of this is that, according to legal scholar William Domnarski writing in The New York Times,

[M]uch of importance is lost …. Judge-written opinions require greater intellectual rigor, exhibit more personal style and lend themselves to more honest and transparent conclusions. …

It is no coincidence that Judge [Richard A.] Posner, the most influential (and most widely cited) appellate judge of his generation, writes his own opinions. His judicial voice is marked with stylistic touches, to be sure, shunning (and even lampooning) legalese as well as disregarding the traditional five-part structure on which law clerks typically rely. But what most grabs the reader is the voice of a judge thoroughly engaged with a problem in the law and working through it with enthusiasm, almost joy. As Judge Posner himself has written, “I know that only a few of the readers of my opinions are not lawyers, but the exercise of trying to write judicial opinions in a way that makes them accessible to intelligent lay persons contributes to keeping the law in tune with human and social needs and understandings and avoiding the legal professional’s natural tendency to mandarin obscurity and preciosity.”

Domnarski then adds that in addition to his political and social value, writing is a necessary part of the legal process. It is imperative for understanding the fine details of a case.

Unlike lawyers who are paid to argue for just one side in a case, judges are paid to pursue the truth. The bench is free from the limitations of advocacy; judges get to test arguments and follow a line of reasoning wherever it might take them. They get to explore the law. The opinion, properly done, reveals the judge sorting through the problem, thinking on the page. For similar reasons, judge-written opinions are also less vulnerable to a judge’s reflexive political and ideological leanings. The act of writing brings judges closer to the specific details and relevant issues of a case, forcing them to reckon with the case at hand in all its particulars, rather than seeing it as an instance of some more general theory or problem. [Emphasis mine].

Being able to fully engage with an idea and then clearly articulate one’s conclusions is a fundamental part of the democratic process. When the writing’s bad or judge’s skip out on their duty, everyone loses. So kudos to both Judges Cochran and Posner for recognizing this.

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Neuromodulation, Or “Every Science Lab Needs a Philosopher”

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published October 17, 2012.

If a fundamental question in neurolaw is how the legal system should move forward with the specific brain on trial, then the major role neuroscience can play in the courtroom is in the sentencing process. In fact, after identifying the biology that may have predisposed an individual to criminal behavior, attention must be paid to how sentencing – the rehabilitation process – can effectively be carried out. For example, if it was a malformed frontal lobe that unfairly led an individual to give in to an irresistable impulse, neuroscience plays the dual role of identifying this malformity and how best to correct it.

This can take many forms (including basic conditioning) but one promising field is neuromodulation.

As we are still living in a period where our understanding of the brain is in its infancy, neuromodulation still has ways to go but is promising in its ambitions. Much of it is focused on the treatment of disease such as depression, eating disorders, and damage to one’s motor control, but if we are able to produce devices that can effectively give Parkinson’s patients a new lease on life (like the example of this man who was diagnosed in 1998 and now feels “like a newborn baby”), what else could we do? As the author Douglas Coupland once famously remarked, “Where does personality end and brain damage begin?” why could we not develop a piece of technology that, when attached to those parts of the prefrontal cortex responsible for decision making, maintains a steady stimulation that allows us to, say, rationally assess the relationship between our long- and short-term self-interests? After all, why would we ever let the better angels of our nature flitter away?

Of course, I understand this could be the fodder for a Huxleyan dystopian novel but this is not science fiction and these are the major ethical and social questions we will soon need to answer. It’s clear that neuromodulation opens many doors in the medical world, but it does the same for both the legal world (rehabilitation) while opening hundreds more in the socio-political world (for example, what constitutes “neural rights”?). These are issues that we cannot avoid, and even though I cannot claim to have any answers it’s about time every science lab hired a philosopher.

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Reading Rana Dasgupta’s “Tokyo Cancelled” (2005).

j

Tokyo Cancelled (2005) by Rana Dasgupta

After being recommended to me by a friend, I just finished reading Rana Dasgupta’s Tokyo Cancelled (Black Cat Press, 2005). Checking out the reviews online, though, there seems to be contention as to whether it fits the standard definition of “magical realism” or (something I’ve only now discovered) “irrealism.” Of course, a distinction like this means nothing to most readers, but it’s the difference between Calvino and Kafka. Both engage in fantasy, but Calvino allows the reader to attach themselves to the story according to an internal logic; Kafka allows as much only to undermine it. The short stories of Tokyo Cancelled drift between both.

Made up of thirteen tales, the book is named for the frame story that holds them together. The premise is that, in a nondescript airport, a connecting flight to Tokyo is cancelled due to extreme weather. Unable to make accommodations at nearby hotels, thirteen gather and decide to entertain one another through stories. Called a modern Arabian Nights, Dasgupta’s work is contemporary and global yet draws upon the tropes of folktales and myth. Here a trapped sailor coughs up a dove that wanders off to inform his waiting maiden, an old man in quarantined Paris has a garden growing inside of him, poking through his flesh. Magical oreos turn a woman into a clothing boutique that threatens the local Chinese cartel. These stories are weird, but they’re also (surprisingly) moving.

Searching for interviews with Dasgupta, I came across the following from The Guardian (published when the book came out). His explanation on why he staged his story in a common airport with common people is thoughtful and worth sharing.

… “I think it stages the production of “literature” as something that normal people do. If it seems fantastical that a collection of travellers might tell such stories then this raises the question of why it is so much easier to stomach the idea that Chaucerian illiterates might do so. One reason is the creeping institutionalisation of culture: only “writers” write, only “artists” make art, and everyone else can only consume. These stories aren’t presented as non-negotiable outpourings from on high, but in a setting of people who are both artists and audience. By embedding them in life, by leading readers into a world that is rather like our own but where everyone tells stories, the book issues a challenge: for more storytelling.”

Additionally, here’s his defense of merging folktales and fantasy with the every-day and modern. Perhaps this is how we all ought to engage with reality. (I see here glimmers of Adorno and Horkheimer’s “disenchantment of nature”).

“The infantilisation of folktales is a recent thing, contemporary with the emergence of modern ideas of childhood,” he points out. “Now, children get their quick fix of everything that is uncanny, irrational and enchanted then cast it off in favour of a ‘rational’ adult self. How is such an astonishing division sustained? One commentator said about Disney World that its patent unreality helps us to believe that what we step into when we leave is ‘reality’ – yet sometimes we find ourselves glimpsing something in this outside world that is remarkably similar to the inside. When Alan Greenspan pronounces on the future of the US economy and sends people scuttling to prepare themselves for ill times, don’t we also remember the witch doctor, the shaman, the prophet who descends from solemn communion and tells the masses that the harvest will be bad? I suppose what I’m trying to say is that Tokyo Cancelled isn’t about ‘updating’ old stories – it’s about a search for a language to describe my own reality. In the process of this search, folktales jumped out at me.”

If you’re looking for a good book the next time you’re stranded in the airport, pick up Tokyo Cancelled. Either do that, or tell stories.

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A Letter on “Hope.”

Joshua Preston Hope

A Letter on Hope

Recently on Fiverr, I was asked to write a letter, which being a (militant) advocate for written-correspondence I was glad to do. The only problem, though, was that I was asked to talk about “Hope.” Where does one even begin?

Deciding not to focus on my own experiences, I wanted to investigate what Hope actually is — and I wanted it to be more practical and philosophical than merely (and often unfulfillingly) poetic. You’ll find here no allusions to spring or sunrise. For such a nebulous but necessary emotion, I think it requires more seriousness than that.

For anyone interested in my letters, in September 2013 I posted a series called “Four Men in May,” in which I included one about the last week of my undergraduate career. If you’d like me to send you your own letter, visit my Fiverr page here.


February 7, 2015
Houston, TX

Dear _______,

Walking home from work the other day, I gave a lot of thought to your message, thinking about what I could possibly write that is unmistakably “hopeful.” It’s a challenge (I type with an insuppressible grin on my face) but for being such a fundamental part of the human experience, it is a necessary exercise and I’m thankful for the opportunity you’ve given me. I think you should try it, too, and I’d love if you sent me a copy of your thoughts. Because even if we are not always as hopeful as we’d like, Hope is imperative. As I’m sure I’m not the first to say: Without it, What’s the point?

So, already, we know that Hope is a guide: It guides us to what “the point” is. By this I mean it is the quickest way to identify those things that matter most to us. What are you hopeful for? Why? Ask yourself these questions the next time the feeling swells inside of you. Within your answer you’ll discover the aspirations and relationships you cherish most.

Yet, I don’t know if we encounter Hope or if it encounters us. For every instance when Hope takes hold, ensnaring us without warning, there are others when it’s discovered by engaging with our aspirations. When we know the obstacles to be overcome, sometimes we must search for Hope by breaking them into smaller, more-manageable components. For example, let’s say one is committed to but hopeless about passing an “impossible” class. Instead of focusing on the class as one giant, single problem, one ought to focus on the number of tests and ask What must I do to pass each one? Suddenly, the class ceases being “impossible,” and in that moment we feel in our chests a rush of relief: Hope.

Fearing that I may not have much to say about “Hope,” I reached out to a friend of mine, a young philosopher-poet named Andreana S., and asked what her thoughts were on this subject. Here’s an abridged version of what she sent me:

“Hope is a means of self-preservation in the face of helplessness. … Learning to cultivate hope is not self-deception, as some would dismiss it; some would say that hopefulness is fanciful thinking, … and that one would be better off focusing on the aspects of life within one’s control rather than hoping for a different, distant, but seemingly always-possible future. However, hope is self-sustenance – an act of friendship towards the self. It is a gift we give ourselves when we do not have anywhere else to turn for support.”

This, she added, allows one to “let go of judgment and permit in oneself an emotional investment” in what we aspire for. “Only with that emotional connection, that hope, can one then build upon that foundation by channeling the hopeful energy” into action. That cannot be stressed enough: Hope without action is mere faith. We cannot expect our problems to change for us; instead, Hope grants us the power to know that there is more in our control than instinct suggests — and for what we can control, we can change.

These are all the thoughts I have right now and I’d like to get this letter in the mail sooner rather than later.

Sincerely,
Joshua Preston

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Writing Advice from Sinclair Lewis on His 130th Birthday

Sinclair Lewis Yale University Honorary Degree

Professor Sinclair Lewis accepting an honorary degree from Yale University (1936). Minnesota Historical Society.

On this day in 1885, writer Sinclair Lewis was born. Author of Main Street (1920), Babbitt (1922), and Elmer Gantry (1927), Lewis was the first American to win the Nobel Prize for Literature (1930). So to celebrate his 130th birthday, I’m sharing his writing advice from when he taught briefly at the University of Wisconsin (1940) and University of Minnesota (1942).

[Quotes are from Richard Lingeman’s biography, Sinclair Lewis: Rebel from Main Street, 2002].

Although he’d held workshops and lectures across the country, in the fall of 1940, Lewis took his first step into academia by accepting a nonpaying position at the University of Wisconsin. Attracted to the city of Madison, he enjoyed teaching and so, once a week for two hours, he’d pace the room listing everything he’d ever learned about writing. One student, theater critic Frances Benn Hall, recorded one of Lewis’ lectures:

When you write don’t worry about whether or not it’ll sell …. Don’t want success at twenty-two. If you want fame, be a prize fighter or a movie star. If you write, write because you must write. Because you can’t help it. Write what you believe, what you know, what moves you. And always write the best you can. Be self-proud. You can fool the critics but never yourself. Remember you’re competing with the best that’s ever been written. Try to be better than the best. There’s no limit for you and there can be no writing but great writing. Possess a divine egotism. . . . And never forget that you’re competing with Shakespeare (451).

Lewis’ time in Madison was short as, after six classes, he abruptly returned to New York, telling his students, “I’ve taught you all I know. From here on in, all would be repetition” (452).

Two years later, returning to Minnesota to gather material for his next novel (Gideon Planish, 1943), Lewis joined the University of Minnesota where he taught another writing course. Though there for only one semester, Lewis was uncomfortable socializing with his peers:

The novelist Robert Penn Warren was on the faculty there, but Lewis was wary of him because he was friendly with the critics Allen Tate and John Peale Bishop, also teaching at the university, whom Lewis felt looked down on him — which they did (468).

Presumably Lewis taught his course very similarly to that at Wisconsin, but when the semester ended he left with these last words for his students: “In writing as in life, righteousness is permissible” (469).

That’s advice that could be used today.

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The natural sciences can inform rather than dictate our public policy

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published October 30, 2012.

In an article titled “Can Neuroscience Challenge Roe v. Wade?” William Egginton, professor in the Humanities at John Hopkins University, cautions us to be careful in how we use the natural sciences to shape public policy. In this case, abortion rights. Egginton writes about attorney Rick Hearn’s suits against Idaho’s Pain-Capable Unborn Child Protection Act “and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability.” The reason for this is because Hearn believes that the government is using results from the natural sciences “as a basis for expanding or contracting the rights of its citizens.” The logic goes like this: if it can be proven that fetuses are capable of pain then they are conscious and thus a person deserving of their full rights under the constitution. This clearly has political overtones.

The turn to legislation based on alleged neuroscientific findings in search of an end-run around the protections provided by Roe v. Wade is popular among Republicans. Mitt Romney voiced his strong support for such legislation in 2011, when he wrote in a piece in National Review, “I will advocate for and support a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.” Since viability is, according to Roe v. Wade, the point at which the state’s interest in protecting “the potentiality of human life” becomes compelling enough to override its interest in protecting the right of a woman to make decisions regarding her body and its reproductive organs, Idaho’s statute and others like it would either be found unconstitutional or, if upheld, entail overturning a fundamental aspect of Roe v. Wade.

This is reasonable enough since the Republicans are simply trying to reinforce their philosophical arguments with evidence. If it is true that the fetus experiences pain (as we would conceive of it), that is a pretty strong argument in their corner. Unfortunately, when the Republicans refer to pain sentience there is the implication that these feelings arise from a primitive form of consciousness, which is debatable.

Current neuroscience distinguishes a spectrum of degrees of “consciousness” among organisms, ranging from basic perception of external stimuli to fully developed self-consciousness. … The neuroscientist Antonio Damasio, for instance, distinguishes degrees of consciousness in terms of the kind of “self” wielding it: while nonhuman animals may exhibit the levels he calls proto-self and core-self, both necessary for conscious experience, he considers the autobiographical self, which provides the foundations of personal identity, to be an attribute largely limited to humans.

… For a fetus to be conscious in a sense that would establish it as a fully actualized human life, according both to current neuroscientific standards and to the philosophical tradition from which the concept stems, it would have to be capable of self-perception as well as simple perception of stimuli. … By turning to consciousness in an attempt to push Roe’s line-in-the-sand back toward conception, in other words, abortion opponents would in effect be pushing it forward, toward the sort of self-differentiation that only occurs well after birth and the emergence of what the phenomenological tradition has called “world” [Emphasis mine].

Fortunately for infants everywhere, though, philosophy is always evolving and we can change our views in light of the evidence. Acknowledging neuroscience’s views on consciousness does not suddenly mean that we need to allow abortions in the fourth trimester. Social policy is not strictly beholden to science. Instead, what we often do is use our experiences, intuitions, and philosophies to guide our research in a way that either reinforces or invalidates said experiences, intuitions, and philosophies, the latter of which we then amend accordingly. If our ideas on consciousness could, in theory, allow for the killing of babies, then let us change our philosophies to fit our intuition that killing babies is wrong. It is as simple as that. What our understanding of consciousness simply means (in this case) is that if the anti-abortion movement hopes to gain any traction it must discard the “pain sentience”/”consciousness” argument otherwise maybe we couldjustify abortion after-birth.

I am sure there are other arguments that can be made against abortion but citing pain sentience is not one of them.

Lastly, in this article I think Egginton places too much emphasis on what he calls the “hubris” of science to overreach into those fields he believes to be in the realm of philosophy. At face value I do not disagree but it is misleading for him to blame science’s role in the pain sentience debate rather than the idealogues who are cherry-picking and misusing it to support their ends. It is true that the non-scientific community will often regard SCIENCE! as a beacon of infallibility (except when it challenges their intuitions) but that is not the problem of science it’s the problem of society. This is just another example of how scientific illiteracy pollutes the discourse rather than science being “dictatorial.”

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On Sarah Palin’s Spoken-Word Performance at the Iowa Freedom Summit

Josh Preston Sarah Palin Mall of America

The Author with spoken-word da da artist Sarah Palin at the release of her book-length prose poem, Going Rogue.

Recently speaking at the Iowa Freedom Summit, former Alaskan governor Sarah Palin gave a speech that, as one writer for the conservative National Review wrote, was “meandering and often bizarre.” Satirist Jon Stewart had a field day with this, of course, comparing Palin’s speech to those Lincoln commercials where Matthew McConaughey drives around making sounds. This criticism, though, is unfair.

I mean, sure, if you’re a philistine everything she said was stupid, babbling nonsense (that’s because you’re a philistine), but just look at how Palin’s speech has been excerpted/butchered by the mainstream media (note the formatting):

Things must change for our government. Look at it. It isn’t too big to fail. It’s too big to succeed! It’s too big to succeed, so we can afford no retreads or nothing will change with the same people and same policies that got us into the status quo. Another Latin word, status quo, and it stands for, ‘Man, the middle-class everyday Americans are really gettin’ taken for a ride.’ That’s status quo, and GOP leaders, by the way, y’know the man can only ride ya when your back is bent. So strengthen it. Then the man can’t ride ya, America won’t be taken for a ride, because so much is at stake and we can’t afford politicians playing games like nothing more is at stake than, oh, maybe just the next standing of theirs in the next election.

That’s a total misrepresentation of Palin’s work, and I’m not about to waste anyone’s time jumping on the liberal bandwagon and riding it to philistineville. Why? Because I respect any writer with the courage to stand up and drop one of the dopest SLAM poems of January 24, 2015. Now, I will cede that this wasn’t her best performance (who can forget the 2008 Republican National Convention?), but in this spoken-word, da da dreamscape, it doesn’t take a Harvard Professor to see the influences of John Berryman (the quirky asides), Allen Ginsberg (the not-so-subtle homoeroticism), and William McGonagall (just all of it).

Check it out for yourself, as it was meant to be read:

THINGS MUST CHANGE FOR OUR GOVERNMENT.

By Sarah Palin, Former Alaskan Governor.

I.

Look at it.

It isn’t too big to fail.
It’s too big to succeed!

It’s too big to succeed,
so we can afford no retreads
or nothing will change with
the same people and same policies
that got us into the status quo.

(Another LATIN word, “status quo” –
and it stands for:

“Man,
the middle-class
everyday Americans
are really getting’ taken for a ride.”

That’s “status quo”)

GOP leaders!
By the way!

Y’know the man can only ride ya
when your back in bent.

So strengthen it. 

Then the man can’t ride ya.

II.

America won’t be taken for a ride,
because so much is at stake
and we can’t afford politicians playing games
like
nothing more is at stake than,

oh, maybe just the next standing
of theirs in the next election.

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