1. In cases like Obergefell, the public will judge a justice more by the result obtained than by the legal logic employed to get there” (Collins and Skover 40). What does the above quote by Collins and Skover mean? Using evidence from Kaplan and the Collins and Skover readings, how do Brown v. Board of Education and Roe v. Wade fit or not fit this characterization? [2 paragraphs] What did the Court do in Brown to instill the public’s confidence in its decision? Were they successful? Why or why not? [1 paragraph] Given the sharp backlash the Court received after deciding Roe, should the Court have reasoned the case differently, like they did in Brown? Why or why not? Besides the specific case consequence (constitutionally protected right to choose), how did the Court’s decision in Roe alter the American political landscape? [1 paragraph] Please remember to support all of your answers with course assigned readings.2. “By entering what he previously had warned was a ‘political thicket,’ Frankfurter wrote that the Court hadn’t learned from self-inflicted trauma.” Without mentioning Dred Scott or Lochner, he said Baker was ‘a massive repudiation of the experiences of our whole past in asserting destructively novel judicial power’” (Kaplan, 179). (A) Explain what Justice Frankfurter meant with this statement, including a discussion of how opinions of the Court exercising its power have changed over time. What were opinions of judicial intervention like during the Dred Scott and Lochner eras versus in the Brown v. Board and Baker v. Carr eras? How were they similar or different? [1-2 paragraphs] (B) Opinions on judicial activism and restraint also invoke the bigger question of when (and in what circumstances) the justices should intervene in a particular case. Summarize Collins and Skover’s approach to this problem: When should the Court embrace a case? When should it avoid doing so? [1 paragraph] (C) According to Collins and Skover, as well as Kaplan, should the Court have intervened in Bush v. Gore? Was the ruling in this case another example of the Court entering the “political thicket” that Frankfurter had warned about? Why or why not? [1 paragraph] 3. When deciding to decide, the Supreme Court’s docket consists of thousands of cases each term. According to Lane and Black (2017), how does the Supreme Court decide what cases to hear? [1-2 paragraphs] Once the Court has agreed to hear a case, scholars argue that the legal briefs on the merits are extremely important in determining the case outcome. Please discuss Black et al.’s (2016a) argument. What are their results? Are legal briefs important, why or why not? Do they actually help persuade a justice to vote in favor of a litigant? [2 paragraphs]
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The Role of Emotional
Language in Briefs before the
US Supreme Court
R Y A N C . B L A C K , Michigan State University
M A T T H E W E . K . H A L L , University of Notre Dame
R Y A N J . O W E N S , University of Wisconsin–Madison
E V E M . R I N G S M U T H , Oklahoma State University
ABSTRACT
The legal brief is a primary vehicle by which lawyers seek to persuade appellate judges. Despite wide
acceptance that briefs are important, empirical scholarship has yet to establish their influence on the
Supreme Court or fully explore justices’ preferences regarding them. We argue that emotional language
conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’
votes. The data concur. Using an automated textual analysis program, we find that parties who employ
less emotional language in their briefs are more likely to win a justice’s vote, a result that holds even after
controlling for other features correlated with success, such as case quality. These findings suggest that
advocates seeking to influence judges can enhance their credibility and attract justices’ votes by employing
measured, objective language.
How can attorneys establish credibility and influence Supreme Court justices? Scholarship on judicial decision making identifies a variety of factors that influence appellate
judges, such as ideological goals (Segal and Spaeth 2002), strategic considerations (Epstein and Knight 1998; Bailey and Maltzman 2011), legal doctrine (Bailey and Maltzman 2008; Bartels 2009), and external pressures (McGuire 2004; Casillas, Enns, and
Wohlfarth 2011). Such studies undoubtedly inform academics about judicial behavior,
but they offer little practical guidance for Supreme Court advocates, who are generally
unable to affect a judge’s ideology, existing legal precedent, or public opinion. Put simPrevious versions of this article were presented at the 2014 meetings of both the Southern Political
Science Association and Midwest Political Science Association. We thank Marcus Hendershot, Kevin
McGuire, Quinlan Vos, Patrick Wohlfarth, the editor, and the anonymous reviewers for their helpful
comments. Contact the corresponding author, Eve Ringsmuth, at eve.ringsmuth@okstate.edu.
Journal of Law and Courts (Fall 2016) © 2016 by the Law and Courts Organized Section of the American Political Science Association.
All rights reserved. 2164-6570/2016/0402-0006$10.00
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ply, much of what we know about judicial behavior turns on things over which attorneys have little control. What is left then for attorneys? What can they do, if anything,
to influence the Court? We believe they can use the legal brief, conditioned by their
perceived credibility, to try to influence justices.
The legal brief is a primary vehicle by which lawyers seek to persuade appellate judges.
As Judge Frank M. Coffin once stated: “I know of no other field of human endeavor
where a limited number of pages of written and structured argument can be so decisive
as in appellate decision-making. The heavy artillery of appellate practice is the brief ”
(Coffin 1994, 107; emphasis in original). The brief is a key tool lawyers use to communicate with judges. In this capacity, briefs have the potential to influence how judges
think about a case and vote in that case (see, e.g., Wedeking 2010).
Yet a brief’s influence likely is conditional on the brief writer’s perceived credibility in
the eyes of the justices. Persuasion literature consistently shows that under most circumstances, highly credible sources are more persuasive than low-credibility sources (see,
e.g., Pornpitakpan 2004). To that end, we believe the language attorneys use in their briefs
signals their credibility—or lack thereof. Appellate briefs are supposed to avoid emotionally charged language (Magidson 1971; Scalia and Garner 2008). A brief containing
overtly emotional language suggests that the attorney writing it lacks credibility. Conversely, a measured brief that contains objective and logical information highlights the
attorney’s awareness of the Court’s function and suggests that she is a credible appellate
advocate. Therefore, we believe, briefs should be less likely to persuade Supreme Court
justices when they feature emotional language.
The data concur. Justices are more likely to vote for parties whose briefs eschew
emotionally charged language. Specifically, a party that abstains from emotional language
in its briefs is more likely to win justices’ votes while a party that employs more emotional language is less likely to do so. For petitioners, using minimal emotional language
is associated with a 29% increase in their probability of capturing a justice’s vote. For
respondents, the effect is even greater: using minimal emotional language is associated
with a 100% increase in their probability of winning a justice’s vote. To be sure, the
available data do not allow us to make strong causal claims; however, these correlations
(along with a host of robustness checks) offer considerable support for our theory.
These results are important for at least three reasons. First, for legal practitioners, the
findings offer a cautionary tale: Avoid overtly emotional language. Certainly, not every
brief that avoids such language will lead to victory. Yet, by showing empirical correlations between victory and language, we offer pragmatic guidance to practitioners. Second, the findings inform our understanding of judicial behavior by highlighting a critical component of the decision-making process. That judicial decisions are associated
with brief language emphasizes the importance of quality lawyering before the Court
(see, e.g., Johnson, Wahlbeck, and Spriggs 2006). The finding also suggests the value of
looking beyond policy matters to explain Supreme Court decision making (Baum 2006).
Indeed, the findings suggest that justices might rely on things such as heuristics and
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Role of Emotional Language in Briefs
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cognitive biases when interpreting messages from lawyers. Third, our findings suggest
important implications for the role of persuasion in politics more generally. At least in
the judicial context, argumentation appears to matter: Decision makers tend to side with
advocates who make more credible arguments. The same may be true in nonjudicial
contexts in which the written word plays a key role. As just one example, our results
might carry over to notice and comment rule making in federal agencies (see, e.g., Yackee
2006).
T H E I M P O R TA N C E O F L E G A L B R I E F S T O T H E S U P R E M E C O U R T
It is widely accepted that the written brief is critical to modern judicial decision making. The brief has been described as “the central feature of modern appellate practice”
(Martineau et al. 2005, 770). Briefs offer lawyers a prized opportunity to communicate
directly with courts. A series of interviews with the chief justice and associate justices
highlight the importance of briefs.1 Consider the following comments from Chief Justice Roberts: “[We] may not see your strong case. It’s not like judges know what the
answer is. I mean we’ve got to find it out” (quoted in Lacovara [2008, 285]). Similarly,
Justice Scalia has stated that “the overarching objective of a brief is to make the court’s
job easier. Every other consideration is subordinate” (Scalia and Garner 2008, 59). When
discussing whether attorneys should focus more effort on brief writing or oral argument,
Justice Ginsburg declares that the brief “is ever so much more important. It’s what we
start with; it’s what we go back to” (quoted in Garner [2010, 136]).
Briefs serve at least three important functions (see, e.g., Black and Owens 2012, 94–
97). First, they help justices overcome information constraints. Justices have preferences
over law (getting the answer to the legal question “right”) and policy (setting conservative or liberal precedent) but cannot always forecast how their votes will translate into
outcomes (Epstein and Knight 1999). Justices need information to make such determinations, and they receive it, primarily, from the briefs filed in cases. Chief Justice Roberts has gone so far as to state, “We depend heavily on the lawyers [writing briefs]. Our
chances of getting a case right improve to the extent the lawyers do a better job” (Lacovara 2008, 281). So, briefs are important because they provide justices with information to achieve their goals.
Second, briefs coordinate judicial attention on an issue or set of issues. The Court’s
norm against issue creation (the “sua sponte norm”) constrains justices from rendering
decisions on issues outside the record of a case (Epstein, Segal, and Johnson 1996).
Justices are expected to decide cases on the basis of the issues presented to them. Consequently, the arguments attorneys present in their briefs, along with the lower court
records, can set the boundaries of the issues the Court will address. Briefs help identify
1. See the interview by Bryan A. Garner with John G. Roberts, Chief Justice of the United States,
Washington, DC (March 2, 2007), available at https://lawprose.org/interviews/supreme-court.php.
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the legal issues, approaches, and controversies within those boundaries and thereby
make the decision-making process more streamlined and transparent.
Finally, briefs provide attorneys their only real opportunity to present their best arguments to the Court without interruption. Many judges formulate lasting impressions
of a case from the briefs alone. Judge Paul R. Michel of the Federal Circuit once declared
he is able to reach a decision in roughly 80% of cases just from reading the briefs (1998,
21; discussed in Corley [2008, 468]). While the importance of oral arguments is well
established (Johnson 2004; Johnson et al. 2006), these proceedings contain limitations
for an advocate hoping to persuade the Court. During oral arguments, justices often
derail the attorneys with difficult or distracting questions. For example, in King v. Burwell (14-114), attorney Michael Carvin completed just one sentence before Justice Ginsburg jumped in to ask him a question. In Elonis v. U.S. (13-983), attorney John Elwood
finished one opening sentence before he was asked a question. He was later interrupted
by Justice Breyer four times before he sighed, exasperated, “I’m trying hard to give [my
answer] to you.” The written brief allows attorneys to present their arguments without
such interruptions. To be clear, we are not suggesting that oral arguments are unimportant. Rather, we believe briefs offer an invaluable mechanism for persuasion since they
emphasize the party’s strongest points just as the attorney wants, in the direction the attorney wants.
Despite conventional wisdom that briefs are important, scholars surprisingly know
very little about the conditions under which briefs influence judicial decision making.
To be sure, legal scholars offer a number of suggestions on how to write effective briefs,
but they largely ignore whether those recommendations empirically bear fruit. To wit:
some legal scholars have engaged in descriptive analyses of briefs. For example, Coleman
and Phung (2010) examined nearly every brief filed on the merits to the US Supreme
Court between 1969 and 2004 to determine which parties used the fewest and most
complex words (see also Fischer 2009; Coleman et al. 2013). Other legal scholars have
attempted to examine the influence of briefs through surveys and experiments. For example, Benson and Kessler (1987) provided mock legal briefs to judges and research attorneys in the California Court of Appeal (Second District) in Los Angeles. Some of the
briefs were written in plain English while others were written in “legalese.” The authors
asked their survey respondents to rate which briefs they thought were more professional,
prestigious, and persuasive. By a large margin, the respondents believed the briefs written in plain English were more persuasive (see also Lewis 2005; Flammer 2010). While
interesting, these studies take place in sterile contexts and face threats to external validity.
Some legal scholars have attempted to examine systematically whether the characteristics
of briefs can lead to increased chances of victory. Long and Christensen (2011) regress a
party’s success on the readability of its brief. Employing various readability scores (such
as the Flesch reading ease and Flesch-Kinkaid readability scores), the authors find no correlation between increased brief readability and success.
Political scientists have begun to examine the role of briefs before the High Court. In
one highly creative approach, scholars used plagiarism software to uncover evidence of
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how the Court “borrows” (i.e., plagiarizes) content from litigant briefs. Corley (2008)
was the first to deploy this approach, finding that the Court borrows more language
from briefs filed by experienced attorneys, ideologically friendly parties, and the solicitor general (see also Black and Owens 2012). Wedeking (2010) examines whether attorneys use frames strategically to influence the dimension on which the High Court
evaluates cases. Wedeking measures the most important words in case documents (e.g.,
cert petitions, party merits briefs, and amicus briefs) using content analysis software and
then factor analyzes them to reveal frames. He finds that the lower court’s use of a prevailing frame decreases the likelihood of petitioners and respondents using alternative
frames. Perhaps more importantly, he finds that when a petitioner uses an alternative
frame, its likelihood of winning increases; when a respondent uses an alternative frame,
the likelihood of the petitioner winning decreases. Put simply, Wedeking’s findings
show that briefs—and their composition—can influence party success. But while
Wedeking’s study is among the first and finest to examine how briefs influence the
Court, it does not tell us how attorneys might establish credibility within those briefs
and thereby win justices’ votes.
A study by Long and Christensen (2008) takes up the question of brief credibility
by exploring the use of intensifiers (i.e., words such as clearly, obviously, and very).
Using a sample of federal and state appellate briefs, they find that more frequent use of
intensifiers by appellants is associated with a decreased chance of prevailing on the merits. While the investigation is limited to civil cases and a small set of word choices—a
total of 12 intensifier words2—this work suggests that the language used in legal briefs
may be connected to a party’s ability to influence judges.
T H E R O L E O F B R I E F L A N G UAG E
Written language is in many ways the coin of the legal realm, particularly at the appellate
level. Courts communicate with each other, parties, attorneys, potential litigants, and
outside actors in writing. Furthermore, the language used by appellate courts is of preeminent importance given their ability to set precedent. Indeed, the common law system in the United States elevates the language of a written opinion to a legally binding
status when it carries the support of a majority of judges on a court. Subsequent courts
may then be constrained or left to their own discretion by the language used in decisions that carry precedential weight. Thus, judges have significant incentives to be attuned to written language. This notion is supported by evidence that Supreme Court
justices spend significant amounts of time drafting, fine-tuning, and negotiating over
the content of majority opinions (Maltzman, Spriggs, and Wahlbeck 2000). For our purposes, such attentiveness to language suggests that justices also likely have preferences
regarding the language used in briefs and are responsive to variation in such language.
But what type of brief language do justices prefer?
2. The words examined are very, obviously, clearly, patently, absolutely, really, plainly, undoubtedly,
certainly, totally, simply, and wholly (Long and Christensen 2008).
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Judges and justices have been trained and socialized in the traditional “rule of law”
approach, which values objective, logical argumentation (Massaro 1989). Justice Sotomayor’s confirmation hearing before the Judiciary Committee elucidates this idea. Responding to questions regarding President Obama’s comments about the desirability
of “empathy” among judges, Sotomayor rebutted this notion, explaining, “Judges can’t
rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s
the law” (National Public Radio 2009). Since justices are trained to value dispassionate
adjudication of legal questions, we suggest that, while there are various ways attorneys
can establish credibility—many of which we account for below—we suspect that attorneys can earn credibility by avoiding overtly emotional language in briefs. Or, perhaps more aptly, they can lose credibility when they use emotionally charged language.
Centuries of scholarship on rhetoric and communication establish the importance of
a sender’s credibility in the eyes of the message’s receiver. For example, Aristotle once
declared that “we believe good men more fully and readily than others: this is true . . .
where exact certainty is impossible and opinions are divided” (Rhetoric, 330 BC, bk. 1,
chap. 2). As he saw it, persuasion was, in part, a function of the source’s credibility (or
ethos) as much as the logic of the argument being made. In fact, ethos, he believed, was
probably more important even than appeals to logic (logos) or to emotion (pathos). It
gave the speaker the power to say “believe me because I am the sort of person whose
words you can believe” (Halloran 1982, 60). Indeed, Justice Scalia argues that attorneys’
first objective in cases should be to show themselves “worthy of trust and affection”
(Scalia and Garner 2008, xxiii).
Modern studies of persuasion, including several competing psychological models,
support the contention that source credibility matters (e.g., McCroskey and Young
1981; Pornpitakpan 2004). For example, individuals may regard information about
source credibility as a persuasive reason to accept the validity of an argument as they
carefully process a message (Heesacker, Petty, and Cacioppo 1983). Alternatively, source
credibility may function as a simple heuristic cue—or mental shortcut—that can help a
message receiver make quick and efficient judgments while expending minimal mental
energy (Petty and Cacioppo 1981). Heuristic cues, such as source credibility, may even
bias more systematic cognitive processes (Maheswaran and Chaiken 19 …
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