Law and Magic Blog

The Lawyer As Deceiver With License

Another take on the lawyer as deceiver with license to steal (or authorized trickster, if you will). 

Lawrence M. Solan, Brooklyn Law School, has published Lawyers as Insincere (But Truthful) Actors as Brooklyn Law School Legal Studies Paper No. 238. Here is the abstract.

Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.

Professor Solan says in part:

Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?

Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.

This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.

Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.

Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.

Law, Language, and Magic

From Jonathan Yovel, a piece on the significance, meaning, and use of language in law and magic.

Jonathan Yovel, Yale Law School & University of Haifa, Faculty of Law, In the Beginning Was the Word: Paradigms of Language and Normativity in Law, Philosophy, and Theology, 5 Mountbattan Journal of Legal Studies 5-33 (2001). Here is the abstract.

This essay attempts to delineate, trace, and reconstruct the main features of three interacting language paradigms significant in legal discourse, practice and theory: rhetoric, representationalism, and performativity. The examples discussed are narratives of institutionalized and customary law that share linguistic attributes with literary forms and theological puzzles. Law, as a complex linguistic activity, is thus placed in a long tradition of linguistic theory ranging from Plato and Protagoras to Wittgenstein, Austin and the linguistic turn (Sapir-Whorf); as well as supernatural uses of law, exercised both by divine fiat and lesser practices - namely the linguistic aspects of magic - especially in determining rights and settling disputes.

Download the full text from SSRN at the link, or from the journal here.

Psych-Ing Out Harry Potter

For Harry Potter fans, a new book (at least new to me) called The Psychology of Harry Potter: An Unauthorized Examination of the Boy Who Lived, edited by Neil Mulholland, and published by Benbella Books. I admit that I don't quite understand the subtitle ("An Unauthorized Examination of the Boy Who Lived". Lived where? Lived what? How? but anyway. Among the essays included are Jessica Murakami's "Mental Illness in the World of Wizardry," and Patricia Rippetoe's "Defense Against the Real Dark Arts."

A couple of other Harry Potter psychology and philosophy titles, if you like this subject:

• David Baggett, Harry Potter and Philosophy: If Aristotle Ran Hogwarts (Open Court, 2004).
• William Irwin, The Ultimate Harry Potter and Philosophy: Hogwarts for Muggles (Wiley, 2010).

Lawyers and the Laid-Back State

So, some lawyers are seeking a zen state.  It happened at the Mindful Lawyer Conference in Berkeley, held at the UC, Berkeley campus (now, don't go saying "of course"), and I've seen a plethora of writing (well, a lot of posts anyway) about the event. Check here at Contemplative Law, here at idealawg, and here at Greedy Associates (topic: billable hours--well, would you expect anything less?)

Moral Choice In J. K. Rowling's Harry Potter Novels

Victoria Saker Woeste, American Bar Foundation, has published "It Is Our Choices That Show What We Truly Are": Moral Choice in the Harry Potter Novels" in the American Bar Foundation Research Paper Series 10-12. Here is the abstract.

This paper delves into the age-old debate over free will and determinism as raised in the work that held popular culture transfixed for the better part of a decade: the Harry Potter novels. Though the final book was published in 2007, thus revealing the outcome of the series’ cliffhanger, this paper (written in 2006) argues that the books embody a Catholic moral theology and sensibility. The central figure through which those ideas are most fully expressed is not the title character, whose moral sense remains less than completely developed throughout the first six novels, but through another major figure in the series. That character’s mysterious past is whimsically explored here and tied to author J.K. Rowling’s larger purpose: to make the book a vivid object lesson in the power of love, forgiveness, and redemption – all essential elements of the Augustinian notion of free will.

Download the paper from SSRN at the link.

 

How Do We Know What We Know? And Do We Really Know What We Know?

Given the increasing shrillness of debates about religion in the public square and in the schools, and over what children should be taught about evolution in the public schools, last night's Nightline debate among several leading thinkers (including Deepak Chopra and Michael Shermer) on religion, philosophy, and science was of interest. Here's a link to the debate if you'd like to hear it again or if you'd like to hear it for the first time.

Speaking Irrationality

In a burst of interest in why otherwise rational people go off on wacky streaks, I've been reading books like Dan Ariely's Predictably Irrational (2008) and Stuart Sutherland's Irrationality (reprinted 2007). Dr. Sutherland (1927-1998) writes academically but accessibly and cleverly about misinterpretations, false inferences, and missed connections, and in one chapter takes on the paranormal. An inexpensive paperback and recommended, especially for those who like Dr. Ariely's book and Michael Shermer's Why People Believe Weird Things (2002).

Magicology

Another article (from 2008) on "magicology," the newly named study of the interaction of neuroscience and magic. It's Devin Powell's "Magicology: Casting a Spell on the Mind," New Scientist, Dec. 24, 2008. The author says in part,

Over the past couple of years, neuroscientists and magicians have been getting together to create a science that might be called “magicology”. If successful, both sides stand to benefit.

 

By plundering the magicians’ book of tricks, researchers hope to develop powerful new tools for probing perception and cognition. And if they find any tricks they can’t explain, that could lead to new knowledge about how the brain works.

 

Similarly, magicians hope that the collaboration will lead to new magic tricks by alerting them to perceptual or cognitive weaknesses that they didn’t already know about. “The real proof that a science of magic has come of age will be when we can use science to build a better magic trick,” says Richard Wiseman, a psychologist at the University of Hertfordshire in Hatfield, UK.

Interesting. I'd suggest that some of the additional value of a real science of magic might also be in explaining why and how the brain continues to accept (rationally) fakes and understandable but error-prone identifications, for example. That could be helpful in prosecuting fraud and other crime.  The study of "seeing things that are not 'there'" encompasses more than just the study of magic and neuroscience. Check out David Eagleman's "Visual Illusions and Neurobiology," from 2001. There are lots of studies of optical illusions and their effects on the brain. I would suggest that if adherents of "magicology" are really talking about just the active creation of magic effects, deceptions, and illusions primarily for entertainment purposes, they're missing out on an opportunity to help out with some really valuable insights into social and legal issues. Why do people who "know" that something is impossible believe that it "could" be possible after seeing a magician perform a trick? What effect on critical thinking? Why do children believe as they do after seeing a magic trick? Two researchers, Karl Rosengren and Anne Hickling, have published some interesting material on how children as young as 4 or 5 perceive magic tricks. Contrast it with a publication by Andrew Shtulman and Susan Carey on how children think about unusual events.

BigAppleCOR Good Without God Ads Will Adorn New York Subways

Reports CNN, groups calling themselves the Big Apple Coalition of Reason have commissioned ads to appear in the New York subway system beginning October 26 with the label: "A million New Yorkers are good without God. Are you?"

According to the Metro Transit authority, it will accept ads that don't contain nudity or offensiveness. Other than that, its walls are open.

According to the BigAppleCOR (get it?) website, the organization that make up the coalition are

[C]ommitted to a more compassionate world; we are working for a more reasonable citizenry and a higher level of discourse; we are striving to increase the quality of life for all; and we find fellowship an integral part of the human condition. Theists and nontheists alike are the same people: we go to work everyday; we have families and friends; we are involved in our communities, state, and country; and we care deeply about life.
 
Big Apple COR aims to inform New Yorkers that there is a community of people who share a rational basis for their worldviews, who attend intellectual public lectures, enjoy philosophy discussions, and socialize. We invite you to visit our various websites, to contact any of those in which you are interested, and to feel free to attend the public gatherings of any of our organizations.

One supporter of the BigAppleCor is magician Jamy Ian Swiss.

Freemasonry and Free Association

On NPR's All Things Considered, discussion with Mitch Horowitz, author of Occult America, of Jay-Z, and his interest in things metaphysical. There's something of a link, says Mr. Horowitz, with the Freemasons, and with our Founding Fathers, although it might be tenuous. Interesting.