« Strange Google Effects | Main | God Save the Clerk »

The Amazing Ms. Lithwick

I share the Clerk's disdain for Dahlia Lithwick, possibly the most overrated legal commentator ever to put pen to paper. Particularly annoying is her use of rhetorical devices that my undergrad professors, let alone my law school professors, would laugh at:

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.

But even accepting that this was a 'persistent complaint of conservative commentators' (it's a massively trivializing generalization of a legitimate objection to broad judicial review), Lithwick's 'prescription' would only hold true if the opponents of gay marriage were judges.

The conservative complaint--properly written--generally runs along these lines: the judiciary should not ignore possible future outcomes, but should realize that as an institution it is competent at applying settled law, and be highly reticent to make new law when the outcomes of such a decision might be debatable. This would be because conservatives in general consider the legislatures to be more competent institutions for such things. (As, indeed, the Democrats did in the 1930s.)

Consideration of slippery slopes are properly a matter for consideration. (It's notable that she quotes Volokh as one who argues for taking slippery slopes seriously, but doesn't link to the article where he finds a slippery slope that leads to gay marriage.) They're matters of consideration for legislatures, commentators, and the public in general. Yes, they should be subjected to analysis, and some of the slippery-slope arguments being made are ridiculous. But the fact that Lithwick can't see the difference between the judiciary, a legislature, and a commentator rather proves the point that actual conservatives (as opposed to the hobgoblins she's dreamed up) are trying to make.

Comments

The trouble with weak rhetorical devices is that, empirically, they work rather well. (Rhetoric in general that is, not weak rhetoric in particular !) From a game-theoretic perspective, this kind of nonsense isn't going to go away until it's actually ineffective. The trick of characterising one's opponent(s) inaccurately can be devastatingly effective, so I don't expect it to vanish anytime soon. After all, everyone in the world knows Dubya is stupid (in the words of his opponents). A far smaller proportion could name an alleged positive attribute.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

And like that... he is gone (8)
Bateleur wrote: I tip my hat to you - not only for ... [more]

Law Firm Technology (5)
Len Cleavelin wrote: I find it extremely difficult to be... [more]

Post Exam Rant (9)
Tony the Pony wrote: Humbug. Allowing computers already... [more]

Symbols, Shame, and A Number of Reasons that Billy Idol is Wrong (11)
Adam wrote: Well, here's a spin on the theory o... [more]

I've Always Wanted to Say This: What Do You Want? (14)
gcr wrote: a nice cozy victorian in west phill... [more]

Choose Stylesheet

What I'm Reading

cover
D.C. Noir

My city. But darker.
cover
A Clockwork Orange

About time I read this...


Shopping

Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students