A Law Professor Asks 1Ls: Is Persuasion Dead?

Feb. 8, 2021, 9:00 AM

Across the country, first-year law students spend the spring semester learning to be advocates. They draft briefs on fictional legal problems to convince hypothetical judges of the rightness of their arguments. Professors, like me, who shepherd students through the process, often label the spring the “persuasive semester.”

In 2021, the persuasive semester is feeling futile. Outside my classroom, the past four years have been more a lesson in the art of heel-digging than dialogue. As I’ve watched Congressmen nearly throw punches on the House floor, citizens defend conspiracy theories, and Twitterati blithely call for “canceling” those who contest a particular orthodoxy, I am left asking: Is persuasion dead?

Not so long ago, I firmly believed in the possibility of persuasion. As a litigator at a law firm, I built a career around it. As a law professor, I have tried to teach students how to do it effectively and ethically.

For our first class of the spring semester, my students read Martin Luther King Jr.’s Letter from a Birmingham Jail. I, and many other teachers, use it to introduce the building blocks of classical rhetoric—the art of persuasion dating back thousands of years. King weaves logos (logic), ethos (credibility), and pathos (emotion) in a tour-de-force of persuasion. Each time I read it, I am stunned by its power. I am persuaded anew. But in January of 2021, I also wonder, could King’s words persuade the racists of today? Or, have too many people shut out any challenges to their beliefs?

Because for justice to be done, for democracy to work, and for us to flourish, being able to persuade isn’t enough. We need to be open to persuasion. The prosecutor needs to be amenable to the alibi. The plaintiff’s lawyer needs to be able to believe the defendant made a mistake. The judge needs to be willing to recognize that a legal precedent is unjust. We all—lawyers and non-lawyers alike—must be ready to concede that maybe, just maybe, we are wrong.

The ‘Deep Story’ vs. the Truth

But we have collectively hardened to this possibility. Persuasion is crumbling in the face of, among other things, what social psychologist Arlie Hochschild has called the “deep story.” Deep stories are those we tell ourselves about who we are and what we believe. These stories may not actually be true, but they feel true. And when facts conflict with these deep stories, we tend to jettison the facts.

Our deep stories and our preference for coherence over truth contribute to the pandemic of online disinformation. As digital media scholar Whitney Phillips has said, sometimes “shining a light does not disinfect.” Sometimes, it merely puts a spotlight on falsehoods.

Plus, social networking platforms are optimized to intensify our beliefs and feelings. As we scroll through posts pegged to play to our biases, we reflexively give a thumbs-up, but little critical thought, to what we see.

Neither I nor my law students are immune to deep stories. Advanced degrees don’t wholly inoculate us. We could look to the Supreme Court for proof. In many cases, it is relatively easy to predict how a certain justice will vote. We could attribute this to ideology or doctrine, but in some instances, it may be the result of a refusal to be persuaded.

Of course, persuadability is not always desirable. There are moral imperatives and issues worthy of heel-digging. But the universe of these issues is likely far smaller than we have come to believe.

This spring, in addition to teaching my students to persuade, I hope to expand their openness to being persuaded. To do that we will put ourselves in the shoes of our opponent. We will try to listen to and understand the story they are telling. We will practice what poet Marilyn Nelson and others have called “generous listening,” in which you are truly hearing and appreciating what is being said by another. We will lean into logic and credibility, along with emotion.

As with all the skills I teach, I will try to practice these things in my own life, too. Can I persuade you to join me?

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Erin Carroll is a professor of law, legal practice at Georgetown Law. She teaches courses on legal analysis and communication as well as technology and the press.

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