Two (more) cheers for rhetorical coolness

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7 Responses

  1. Matt says:

    what fun would it be to use the cool style when watching your favorite team play football?

    There’s something to this, of course, and yet, I also feel the pull of the lesson Marcus Aurelius attributes to his “first teacher”, “Not to support this side or that in chariot-racing, this fighter or that in the games”, and can see how getting too excited and involved in sports fandom can be a symptom of, and perhaps lead to, worse things. (I say that as someone who, at points, hasn’t been able to watch certain very close baseball games.)

    I also wonder if there isn’t a lesson for some sorts of legal scholarship, the sort that tends to read more than a bit like a legal brief written by an advocate. There’s a place for such stuff, but I suspect much of it shows up outside of the right place (the courtroom).

  2. A.J. Sutter says:

    I think that in this post and in Dave H.’s previous thread, many apples and oranges are being mixed.

    1. SCOTUS: This institution has a unique role in American society, though perhaps other appellate courts have some similarities to it. I share the view that its opinions should seem reasoned, and as if both sides have been weighed. Maybe most Americans only pay attention to the “bottom line.” But those who are most engaged will also pay attention to the opinions.

    BTW I wouldn’t equate aporia with humility — in rhetoric, it’s only the feigned appearance of humility (or actually, of not knowing where to turn or how to proceed). True humility in Supreme Court opinions would be terrific. But even the appearance of it does have some expressive function in our political culture — as long as it isn’t too obviously feigned.

    Your observation about advocates before the Court, though, is a bit of a red herring: Since the composition of the Court changes slowly, the Justices have heard it all before. No doubt they’re pretty immune to rhetorical antics. Not all audiences are as experienced as they are. So the Justices’ response vel non to a style of argument isn’t a good basis for drawing conclusions about argumentative styles directed to others.

    2. Consumers of legal scholarship: I can only speak as a practitioner. If an article is about a real-life legal issue, and it doesn’t tell me both sides of the story so that I know the weak points of its main argument as well as its strong points, it’s a waste of my time. Back in the day, there used to be articles about whether UCC Article 9 provided an adequate remedy for this or that, about some ambiguity in Reg D, etc.; were such articles to be written solely from an advocate’s POV, they would be simply useless.

    It seems that most articles today don’t adopt such practical positivism in their first few sections, but rather they’re all too often vehicles for some sort of “law and …” (in this context, for ‘ELS’ read ‘law and econometrics’). Very often the shrillness is buried in the premises of the “and …”.

    In the BBC’s very entertaining update of the Jekyll & Hyde story, Jekyll (2007), there’s a scene where the main character (played by James Nesbitt), in his Hyde phase, is trapped in the laboratory of an evil biotech company along with his wife and children. With more than human strength, he tears out a chunk of the flooring, and tells his family to follow him in escaping through the crawlspace. When his wife, a strong character in her own right, questions whether this is wise, he replies very rationally, “Trust me – I’m a psychopath.”

    Though in the story that was a reasonable statement of professional qualification, that’s less often the case in scholarship. Even a coolly-stated argument isn’t persuasive if based on outrageous premises. At least, to those of us who examine the premises.

    3. Blogs: Obviously, these occupy a social role quite different from a court decision or a scholarly work. Why do people read them — to be persuaded, or to be entertained? Or a mix of both?

    4. Empirical research: Who are the subjects? American law or college students, e.g.? What are the cultural controls? or are the results explicitly restricted to those who are American voters, potential jurors, etc.? E.g., in Japan, a shrill argument won’t get you far, but often a dry, rational one won’t either — something more sentimentally emotional (“wet” is the adjective here) tends to work best.

    5. The excluded middle: The choice between shrill and cool is itself too polarized. There are situations in which aporia is not so appropriate, such as when encouraging a team, or when trying to inspire people. Often, these are situations that require leadership. E.g., would you call the “I have a dream” speech shrill? cool? One can be un-cool without demonizing one’s opponents, if indeed there are any; but too much rationality can be a drawback, even in American culture. (And I mean that not in the cynical sense of gaining market share or popularity, but in the most serious way.) Case study: compare our current President’s ability to connect to people vs. Bill Clinton’s.

  3. Frank Pasquale says:

    I think the flip side of the hysterical style is the David Foster Wallace-imitating Gawker Style, described here:

    We should worry about “a philosophy of moral relativism that softens critique and a culture of social insecurity that pleads for likes and follows. The two mash together to create a generation of pleasers and hedgers, a digital world of opinionless opinionators [or trimmers, or concern trolls]. We don’t know what’s right, and even if we did, we wouldn’t want to make anybody mad. And these choices are reflected against the pools of “sort ofs” and “reallys” swamping our prose, like portraits of a spineless Dorian Gray.”

    The solution can only be sincere grappling with the realities of whatever domain you’re dealing with. For the topic of Dave’s post, the folks at Law School Innovation (Berman, Chander, etc.) are doing exactly that.

    To continue with another choice excerpt from the URL:

    There “has been a widening rhetorical gap between what the powerful say — which is to say, feel-good things — and what the rest of us feel. Today’s most interesting broadcasters have moved to fill that rhetorical gap in order to reclaim credibility, dumping the paternal Cronkite tones for worldviews a little more in line with their viewers’ perception of reality. Fox News taps into the deep well of perceived persecution and aggrievement felt by many small-town conservatives over the disrupted traditions and shifting power structures in their lives; Jon Stewart, meanwhile, channels liberals’ disbelief and smug amusement at the abundant absurdities of life in the United States.”

    My sense is that both approaches are manifestly inadequate to the crises of inequality, environmental devastation, global privation, and domestic economic insecurity that we’re undergoing today.

  4. shg says:

    While Dave Hoffman’s post demonstrated some independant thought, not to mention cutting humor, I am struck by this quote from Fagundes’ comment to that post:

    “Finally, the term “machoblawgers” gave me a good laugh. Because, you know, it’s so tough and courageous to sit at a keyboard taking angry potshots at people from the safety of your computer.”

    I would hope that someone capable of holding down a full time job teaching has the capacity to recognize himself in his words, albeit as the passive-aggressive version who rides the coattails of another who expresses original thought.

  5. David Fagundes says:

    Apologies for being out of the loop and hence late on the responses, but there are many good thoughts here. Some thoughts:

    @Matt: True, there could be a downside to getting too wound up about sports. I’ve always believed that yelling about sports serves as a safety valve rather than something that carries over into the rest of life. But certainly given the violence that has accompanied rivalries on the West Coast this season, there may be something more pernicious about it than I’ve let on (or it could be that people are displacing increasing increasing social anger into sports).

    @AJ: Tough but fair points, thanks for taking the time to write them. A few quick reactions: The point about faking aporia is really interesting, and seems like a pretty plausible critique of the Kahan piece–the world might be worse off with Justices who faked humility to manipulate people to agree with their fully politicized opinions. In terms of SCt advocates, yes that’s a limited group, but I think the point about coolness in tenor describes appellate advocates (and argument) generally, at least the numerous ones I’ve met. In terms of context, I was pretty much limiting my discussion to situations where people are having a serious dialogue about law or policy, hence my example about football being an example of one possible exception. But the point about purpose is well-taken. If you want to convince people who are willing to think about both sides of an issue, coolness strikes me as the best approach. OTOH, if the aim is to whip up the excitement and support of people already inclined to agree with you, a fiery approach may well be better (hence the failure of Obama’s cerebral style).

    @Frank: If I was still guest-blogging, I’d write a whole post following up to this one. I read the link you sent, and think it’s dead on in parts and dead wrong in others. I’m especially thinking about the critique of DFW, who I think is great both in style and substance (non-fiction at least). But I can see the author’s point that taking using his self-referential style without saying anything of value, simply for style’s sake, is an empty gesture. But while I’m on board with the general proposition that you have to take positions in writing, there’s a place (esp on the web) for harmless entertainment. I don’t think Gawker seeks to do anything more than that, so I think the author was being more than a bit unfair in making them the target of critique.

    @shg: I’m not sure why you found my innocuous descriptive observation in the other thread upsetting, but the fact that you did is a nice illustration of my point that “machoblawger” is an inaccurate and rather silly term. The ad-hominem attack in this thread is similarly puzzling, and obviously doesn’t merit any substantive response (since ad-hom attacks are by nature devoid of any substance), but it too is a nice illustration of my point in the initial post that use of the hysterical style is typically all bluster, no content.

  6. AYY says:

    I have to take issue with the second to last paragraph of your post.
    The purpose of the speech is vastly different. When you’re advocating you’re trying to persuade someone who may be skeptical. When you’re at a football game you’re simply venting.
    But even though you’re venting at the football game, your “rhetorical coolness” concept still comes into play if you think there’s ethical and unethical venting. It’s the difference between saying something like the player is a bum because he’s not a good player (which isn’t a moral failing on the part of the player) as opposed to saying that the player is a bum because he showboats too much (which I would consider a moral failing.)
    It’s also the difference between saying something like a player “stinks”, in contrast to saying he’s too slow to cover receivers, he misses tackles and he gets confused in the coverage. They might amount to the same thing, but one is a lazy subjective reaction, while the second is an informed objective evaluation.

  7. David Fagundes says:

    @AYY: First, full credit for the Fonzie reference. Second, with respect to sports, agreed that there’s a difference between venting without giving reasons and venting while giving reasons. But wwhile I’m (obviously) a believer in giving reasons rather than engaging hysterical ranting when it comes to debates about matters of public import (law, policy), I’m not sure it matters as much in sports. Sports is just a harmless diversion (or should be, IMO, anyway), while law and politics actually matter. Sports thus strike me as an appropriate space in which to let our unreasoned instincts run riot. That may be exactly what makes sports so appealing. By contrast, in law/politics settings, I think we’re better off to reign in our instincts and engage instead in reasoned, respectful (or as I’ve termed it here, “cool”) discourse, because getting to the right or best outcome actually matters in an important way.