Tuesday, July 17, 2012

Oh, yeah? Well, yo Mama--

He is deformed, crooked, old and sere,
Ill-faced, worse bodied, shapeless everywhere;
Vicious, ungentle, foolish, blunt, unkind;
Stigmatical in making, worse in mind.

The Comedy of Errors (4.2.22-5)

Ad hominem. The most titillating, but, nevertheless, lowest form of argumentation. It sounds more civilized when you give it a fancy Latin name. But when I was a kid, we just called it “Mama ranking.” Whatever you call it, the tactic involves attacking the messenger instead of the message—in a way guaranteed to push emotional buttons, thus causing the audience to see red and thus cease reasoning.

In Austin’s paper today, Governor Rick Perry resorted to this tactic in an editorial called “Tort reform has had just the impact we desired.” That impact involved essentially eliminating medical malpractice as a viable cause of action in Texas back in 2003. Perry’s editorial, published in 2012, is ostensibly a response to a recent empirical study showing that Texas-style tort reform has not, to date, produced cost savings to Medicare at least. But Perry’s response did not address the study in any cogent way—by, for instance, challenging the study’s presuppositions, questioning its controls or measurement errors, refuting any bases for its conclusions. Instead, Perry’s rebuttal relies on attacking the scholar reporting the results. That is, Perry hopes to convince folks to dismiss a serious bit of scholarship (should they ever hear of it) by tagging the scholar as “a University of Texas law professor with close ties to the trial lawyer lobby.”

Good lawyers know that the easiest way to annoy a court is to engage in this sort of ad hominem attack instead of addressing the substance of an adversary’s argument. In fact, few tactics more likely to raise the hackles of a principled trial judge. When courts are forced to witness lawyers sniping at one another, courts tend to experience it as a monumental waste of time. They want to know the facts and the law, presented from each party’s perspective, of course, but without inordinate spin.

But perhaps this, in a nutshell, is the fundamental difference between law and politics. With the latter, victories are often measured in the short term by benchmarks also associated with professional wrestling. But with the law, a win scored by hitting below the belt is likely pyrrhic—or at least less likely to withstand the test of (even a little) time. In any event, Shakespeare’s characters only resort to ad hominems for comic effect—or as a means to indicate their profound desperation. For instance, here is Kent—who knows that his man, King Lear, has made some monumentally stupid choices guaranteed to bring down the entire kingdom—unloading against a hapless messenger, calling him:

A knave; a rascal; an eater of broken meats; base, proud, shallow, beggarly, three-suited, hundred-pound, filthy, worsted-stocking knave; a lily-livered, action-taking knave, a whoreson, glass-gazing, super-serviceable finical rogue; one-trunk-inheriting slave; one that wouldst be a bawd, in way of good service, and art nothing but the composition of a knave, beggar, coward, pandar, and the son and heir of a mongrel bitch: one whom I will beat into clamorous whining, if thou deniest the least syllable of thy addition.

King Lear (2.2.14-24). Hmm. Shakespeare seems to suggest that nothing spells defeat like the retort “Well, your Mama is a mongrel bitch.”


  1. As an unnamed coauthor (is that better than an unnamed coconspirator?) of the study that Perry chose to indirectly respond to, and one with no known ties to the Texas trial lawyers (heck, I'm a registered Republican), thank you.

    We're likely to please Gov. Perry even more with a newer study, in which we find that the 2003 tort reforms didn't have a significant impact on physician supply either. See http://ssrn.com/abstract=2047433

    Bernie Black

    1. Thanks for chiming in! I look forward to investigating the next installment.