Tag Archives: rhetoric

Pro Se at Your Own Risk

The first rule of bankruptcy ought to be: Do not file for bankruptcy unless you have a clearly defined goal you are trying to accomplish. Maybe the bank is about to foreclose on your house or repossess your car. Bankruptcy may be able to stop (or at least delay) those things. Which leads me to the second rule: Do not file for bankruptcy unless you are confident that it will help you accomplish your goal.

Sarah Katherine Sussman lived on Clark Avenue in Tampa, Florida. She held title to the property as trustee for The Sussman Family Trust Living Trust. The Trust had obtained the property from Sarah’s mother, Teresa M. Gaffney, after her father, John J. Gaffney, died in December 2011. For whatever reason (the opinion does not say), the administrator of John’s estate wanted to undo that series of transfers. The administrator sued Sarah and Teresa in state court and obtained a final judgment on October 16, 2017, ordering that title be returned to John’s estate and that Sarah be evicted. Sarah appealed and moved to stay the judgment pending appeal, but that motion was denied. So, on October 24, she filed a pro se petition for bankruptcy, hoping “to obtain a stay of eviction from [the] property.”

It’s easy to see why she did that. Section 362 of the Bankruptcy Code says that the mere filing of a petition for bankruptcy automatically stays “the commencement or continuation” of any lawsuit against the debtor, the “enforcement, against the debtor or against property of the estate” of an existing judgment, and any act to obtain possession or control of property of the estate, among other things. 11 U.S.C. § 362(a)(1)-(3). It seems like an eviction would be the enforcement of a judgment against the debtor, so filing for bankruptcy should have kept her in the house. Right?

Not necessarily. The stay is broad and it is powerful, but it does not cover absolutely everything that might be related to the debtor or the bankruptcy. One major limitation is that it only applies to legal and equitable interests “of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). The automatic stay does not automatically undo things that happened before the petition was filed. There may be other procedures and remedies available to address those things, but the automatic stay does not automatically un-foreclose your house or un-repossess your car. You must file the petition before the foreclosure or repossession happens. Evictions are a little different. Unlike foreclosures and repossessions, evictions generally require a judicial determination of the right of possession before the eviction can occur. In this case, the state court determined that John’s Estate had the right of possession of the Clark Avenue house before Sarah filed for bankruptcy. Accordingly, the bankruptcy court, the district court, and the Eleventh Circuit all held that the bankruptcy petition would not undo that judgment or stop the eviction.

The Eleventh Circuit said that she filed for bankruptcy specifically to stop or delay the eviction. If so, that was a poor strategic choice, and not just because of the nuances of the distinctions between foreclosures and evictions. The first sentence of the Eleventh Circuit’s opinion tells us that Sarah is “a debtor proceeding pro se.” The “Disussion” section says they can only “discern from [Sarah’s] scattershot appeal, two issues sufficiently developed for appellate review.” The footnote to that sentence explains that several other issues were waived because they were either “not raised below or raised in a cursory fashion without citation to authority.” In other words, there may have been other arguments that would have worked but she didn’t raise them effectively. All of which is why you hire a lawyer: to help you know which arguments to make and how best to make them.

The Government’s Right to Flood You Out

I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured. 

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005).  Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights.  We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.”  Slip Op. at 6-7.

Wait, what?  There’s a case directly on point?  Why didn’t you lead with that?  I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important.  It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America.  In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary.  We decide them by looking to our collective experience in resolving disputes. 

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981.  It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.”  They do it all the time in criminal cases.  It’s interesting that they didn’t do it here.

I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.

Pith and Wit and Truth

Ancient Greek and Roman lawyers recognized that pith and wit could overcome logical rigor in the courtrooms of their day. For example, Socrates was convicted and executed, not because his prosecutors proved that he did what they alleged with irrefutable logic, but because their rhetoric convinced the jury to make one decision instead of another.1 Rather than run from rhetoric in search of truth, ancient lawyers used rhetoric to aid the truth in coming out. Cicero, for example, wrote a few books on the use of rhetoric in courtrooms. Perhaps they understood that rhetoric often beats logic, even in a fair fight.

One reason rhetoric is so powerful is that logic is so dadgum hard. Denying the antecedent has been recognized as a logical fallacy for perhaps 2,300 years. Aristotle gave an example of its twin sister, affirming the consequent, way back in his Sophistical Refutations in the late 4th century B.C.E. I am not aware of a “classic” example of denying the antecedent, but they are easy and fun to come up with. For example:

  1. If it is a basketball, it is round.
  2. A baseball is not a basketball.
  3. Therefore, a baseball is not round.

On the other hand, a piano is not a basketball, and a piano is, in fact, not round. Sticking the piano into the syllogism in the place of the baseball makes it look like the syllogism works:

  1. If it is a basketball, it is round.
  2. A piano is not a basketball.
  3. Therefore, a piano is not round.

And that’s the trouble with logical fallacies: they tell you nothing about the conclusion. They make it neither more likely nor less likely that the conclusion is true.

Still, this particular fallacy has some staying power. Perhaps that is because its other two sisters—affirming the antecedent and denying the consequent—are logically valid. If the thing in my hands is a basketball, it must be round. Because the piano in my room is not round, it cannot be a basketball.

Denying the antecedent is a common mistake. People make it all the time. Even federal judges in published opinions affecting the lives and livelihoods of hundreds of people. In fact, I found an example in a recent Fifth Circuit opinion, DISH Network Corp. v. NLRB. The facts are remarkably complicated, but the bedrock syllogism on which the decision is built goes something like this:

  1. If the attrition rate at the union shops was 116 percent, then the offer to phase out QPC was substantial evidence that the parties were not at an impasse.
  2. The attrition rate at the union shops was not 116 percent.2
  3. Therefore, the offer to phase out QPC was not substantial evidence that the parties were not at an impasse.

(Slip Op. at 8–9.) Or, to put it in the same terms as the first syllogism:

  1. Definitions
    1. Let the “basketball” signify that the attrition rate at union shops is 116 percent.
    2. Let the “baseball” signify that the attrition rate at union shops is not 116 percent.
    3. Let “being round” signify that there is substantial evidence that the parties were not at an impasse.
  2. If it is a basketball, it is round.
  3. A baseball is not a basketball.
  4. Therefore, a baseball is not round.

It may or may not be actually true that the parties were at an impasse. Perhaps what I have called a baseball is in fact a piano. That’s the problem with invalid syllogisms—they look smart but they tell you nothing.

Rhetoric, on the other hand, particularly pith and wit, can be very satisfying to read. And the court gets high marks on for that. The opinion is full of quotable soundbite phrases like:

  • “The Board’s no-impasse finding flunks these standards.” (Slip Op. at 7.)
  • “The ALJ erred, and the Board doubled down. Two wrongs can’t make the Board right.” (Slip Op. at 9.)
  • “We recognize that the NLRB, in particular, struggles with this rule.” (Slip Op. at 14.)

Pith and wit are more exciting to read and, on some level, convincing. But they should not be confused for logical rigor.


n.1: Despite his (disingenuous?) thrashing of rhetoric as an empty art in Plato’s Gorgias, Socrates really could have used it at his trial. His trademark socratic method may be a great educational tool, but it’s pretty terrible at convincing anybody to do anything.

n.2: The opinion never states what the attrition rate at the union shops actually was, and this is a second problem. Although the court refers to the attrition rate at union shops as the “relevant data” and assures us (the people it’s trying to convince) that the “relevant data . . . supported DISH,” the court never discloses the relevant data. One footnote concedes that the “correct attrition rates,” whatever they may have been, were “described . . . as ‘high’.” (Slip Op. at 9 n.3.) Another paragraph refers to “an attrition rate of 30.5%,” but the court dismissed that as “simply not what the Board or the ALJ said.” (Slip Op. at 14–15.) So it’s not clear what the actual attrition rate was.

Perhaps the court avoided showing the “correct attrition rates” because it wanted to avoid the paradox of Zeno’s grain of millet. The court seems to agree that an attrition rate of 116 percent would be high enough. Its refusal to confront the 30.5-percent rate suggests that 30.5 percent may be high enough, but it’s not conclusive. What about the 86 percent that a prior court in the same case found at one of the union shops? Kinard v. DISH Network, 228 F. Supp. 3d 771, 782 (N.D. Tex. 2017). The truth is: we don’t know what attrition rate would have been high enough for the court to perceive the union’s offer to phase out QPC as substantial evidence that the parties were not at an impasse and further negotiations might be fruitful.