Humility and Advocacy

[Editor’s Note: This month faculty members share their favorite brief writing or oral argument tip. This is the fourth entry in the series.] My favorite advocacy tip applies to briefs and oral arguments alike. (Indeed, for my money it serves as a pretty good rule of thumb for life in general.) It is this: Your arguments are never as good as you think they are.

As a general matter, the phenomenon is a product of (or is at the very least related to) what psychologists call the confirmation bias. That’s our tendency to assimilate new information in such a way as to confirm our pre-existing beliefs. If I’m inclined to believe in the truth of Proposition X, then I will give relatively greater weight to new information that confirms that belief than to information that runs contrary to it.

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Fleeting Indecencies and Enduring Constitutional Doctrine

[Editor’s Note: This month, faculty members will discuss upcoming judicial decisions of particular interest. This is the first post in the series.]

On June 27, 2011, near the end of its October 2010 Term, the U.S. Supreme Court granted certiorari review in FCC v. Fox Television Stations, a case arising in 2010 out the Second Circuit Court of Appeals following a 2009 remand from the Supreme Court.

At issue, in this round of the litigation, is the FCC’s expansion of its broadcast prohibitions to include so-called “fleeting indecencies,” isolated (uncensored) utterances that “describe or depict sexual or excretory organs or activities” and, when used, are “patently offensive as measured by contemporary community standards for the broadcast medium.” Perhaps the most notorious fleeting indecency in recent years was Janet Jackson’s unfortunate “wardrobe malfunction,” precipitated by Justin Timberlake, during the halftime show of Super Bowl XXXVIII.

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Senator Feingold on Civility

Last week in honor of ABA Mediation Week, the DR Society here hosted former Senator Russell Feingold for a talk on Civility in Public Discourse. We had a wonderful off-the-record hour (so I can’t tell you all the good stories!–here is me cracking up at one) but what I can say is heartening in terms of supporting our students. Feingold noted that the most persuasive negotiators in the Senate were those who were passionate and had conviction and would also know when to work out a deal. You could trust that they would keep their word. When I asked him about the “argument culture” that seems to pervade Washington, Senator Feingold urged our students to fight against this mentality–stay civil, be humble, keep your word. In reflecting about his long-term interactions with Senator McCain on the campaign finance reform bill, Senator Feingold pointed out that these cross-cutting relationships are crucial–after all, you don’t need to make a deal with those who already agree with you. Over his 18 years in the Senate, he noted how the atmosphere had changed where a senator was part of a joint enterprise with an honored history and esprit de corps–these days politicians get elected by running against the idea that you need to work together. In focusing on Wisconsin–which has been an incredible battleground in the last year over labor rights, the Supreme Court, and other issues–I will note at least two state senators that seem to be taking a page from Senators Feingold and McCain. Dubbed the Common Ground tour, these two senators are touring their respective districts stumping for common issues.  (For more on the Common Ground tour and to hear directly from these state senators, you can click here to watch our own Mike Gousha interviewing them as part of Marquette’s “On the Issues” series.)

Cross posted at Indisputably.

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