Intellectual Charity: How to Disagree Like a Lawyer

Full Transcript

COLLIN TAKITA:  Hello, everyone, and welcome back to the LawHub Webinar Series. My name is Collin Takita, and I’m the director of prelaw learning here at LSAC. If you’ve joined us before, welcome back. If this is your first time, welcome to the party. Regardless of whether this is your first or 10th webinar, I’m glad you’re here today, because we are going to be talking about a topic which I find really interesting.

But before we get into today’s topic, I’d actually like to make a brief but very cool announcement. This summer, LSAC is running two incredible programs, Admission Unmasked and Law School Unmasked. These programs are built specifically for you, and registration for each of them is now open on LawHub. So if you are planning to apply to law school in the near future — next year, this year — register for Admission Unmasked, where we will provide the insights you need to strategically and effectively navigate the law school admission process.

Now, if you’re planning to start law school this fall, register for Law School Unmasked, where we can help you to build the skills you need to get your law school journey off to a flying start. Now, to top it all off, if that’s not good enough, both of these programs are completely free. I’ll say that again. They’re completely free. No joke. They are a combination of live and on-demand learning, built with your needs and your busy schedules in mind.

Now, both programs begin this June, so make sure you register ASAP and take full advantage of these incredible and free resources from LSAC on LawHub. So with that, let’s get back to our regularly scheduled program and talk about the webinar for today. So as I mentioned at the outset, the topic we are covering today is really, really interesting. That topic is intellectual charity.

Now, when I first heard the term "intellectual charity," I frankly had no clue what it meant. But the folks presenting today are absolute pros on this topic, and once they explained it to me, it all made perfect sense. So intellectual charity is just another tool for you to have in your utility belt going into law school and the legal profession. It, among many other things, will help you to disagree like a lawyer. And that’s something which is applicable now in the law school classroom and once you’re actually a lawyer.

Leading this great conversation today will be Nate Otey, lead instructor at ThinkerAnalytix, and Nate, I’ll ask you to turn your camera on, as well as Aidan Kestigian, director of programs at ThinkerAnalytix. They have an incredible presentation prepared for you, and I’m sure you will all find it incredibly interesting. So Nate, Aidan, please feel free to turn on your cameras.

But before I hand things over to you, I want to remind everyone, or let everyone know, rather, that we’ll be answering questions as part of a Q&A period during the second half of this program. So if you have questions, we encourage you to submit them via the Q&A throughout the presentation. We’ll do our best to answer as many questions as possible. Now with that, Aidan, Nate, go ahead and take it away.

 

NATE OTEY: Awesome. Thanks so much, Collin, and so awesome to be with all of you today. My name’s Nate Otey. I’m an associate in the Harvard Department of Philosophy, and I’m the lead instructor for ThinkerAnalytix. And I’ll let Aidan introduce herself as well.

 

AIDAN KESTIGIAN: Yeah. Hi, everyone. My name is Aidan Kestigian, and I’m a program director at ThinkerAnalytix and also a fellow in Harvard’s Philosophy Department. And I take great joy in the fact that I actually get to teach lots of logic and critical thinking courses to students just like you. So it’s a pleasure to be here.

 

NATE: Great. So let’s hop right in. And as Collin said, we’re going to talk to you guys a little bit today about intellectual charity. So we are an educational nonprofit, we’re partnered with the Harvard Philosophy Department. Those are our email addresses if you do have any questions after what we covered today, if you want to follow up with us. So just a brief overview of where we’re going with this today.

We’re going to just do an overview of what is intellectual charity. And Aidan’s going to take you through some demo practice exercises. We’ll talk about why you should practice charity. We’ll talk about how argument mapping helps. Argument mapping is a tool that we’ll use to show you just a little bit about how you can practice these skills. Then we’ll do a short demo discussion on the recently leaked Dobbs opinion draft. So if you don’t know, it’s the opinion draft that’s been leaked from Justice Alito, and it’s a majority opinion from the Supreme Court that’s essentially poised to overturn Roe v. Wade and Casey, thereby returning the issue of abortion back to the states. So this is a live legal issue, and our intention is to have a short, charitable conversation about it. And it’s actually a topic that Aidan and I don’t necessarily agree on. And so we’re both going to try to be charitable and steel-man the other side, so we’re going to try to model these skills for you. And we’ll leave you with some links to additional resources, and we’ll have hopefully plenty of time for Q&A at the end. Before we hop into that, I just want to show you what I mean by an argument map. I mentioned an argument map, and this is a short argument that law students should learn the skills of intellectual charity.

And you might ask, why should I believe that? And that’s what an argument answer is, right? It’s, "Here’s why you should believe this." So here’s some reasons why you should believe that law students should learn the skills of intellectual charity. Because you’ll need those skills when your professors ask you to make the best arguments on both sides of every major case you discuss. And you’re also going to need them as a professional, because you’re going to be making arguments to judges who may hold different opinions than you do. You’re going to certainly be representing clients, and you may disagree with your clients or you may not want to represent them. But nevertheless, it’s your job as an advocate to represent them effectively. And also, most lawyers are involved in some kind of negotiations or arbitrations in which case you’re going to need to charitably interpret your opponents during those conversations. And if you don’t, you’re going to lose the negotiation. So all in all, you’re going to be more persuasive to other people when you take their arguments seriously and show that you’re listening well.

So that’s just kind of at a high level. I wanted you to kind of see a little argument and an argument map and give you some idea of where we’re going with this. So that’s kind of the general pitch. So if you want to be an effective advocate and if you want to do well in your law classes, these are skills worth learning. So with that, I’ll turn it over to Aidan to take us through a few practice exercises so that you can get more of a feel for how you might improve these skills.

 

AIDAN: Great. Thank you so much, Nate. So I’m actually going to share my screen and bring us back to where we were before Nate went to the new tab. So what you see here is a series of practice exercises. And the reason why we’re going to show you some practice exercises is that disagreement, the ability to disagree, is actually a skill. It’s one you can do better or worse, and it’s something that you can get better at with practice.

So we really want you to feel what it means to interpret things charitably, interpret arguments charitably in particular. And so that’s what we want you to feel through these practice exercises. So maybe you all can help me answer these exercises as we go through. So here’s an argument. So in the argument below, what is the most charitable interpretation of the word "literally"? So here’s the argument: "Jenna’s birthday party was literally the best event ever. She had live entertainment, delicious food, and an awesome guest list. It was such a pleasure to attend her special day."

So here are your options. All right. Does "literally" mean, A, throughout history there’s never been a better party than Jenna’s; B, Jenna’s party was awarded the honor of best party; C, the speaker will never attend a party better than Jenna’s birthday party; or D, Jenna’s party was one of the best events the speaker has ever attended? So maybe if folks want to ... I believe we have the chat open. Is that right, Nate? So folks can drop an answer in the chat if they want to take a guess at what the solution is here.

 

NATE: I’m not sure if the chat’s open or folks only have the Q&A. But in any case —

 

AIDAN: I apologize.

 

NATE: You can drop it in the Q&A if you don’t have the chat.

 

AIDAN: Yeah, you can drop in the Q&A.

 

NATE: And we’ll get a sense of what everyone’s answer is.

 

AIDAN: My apologies. So yeah, I see lots of people picking D, right? D says that Jenna’s party is one of the best events the speaker has attended. You might have looked at something like A and thought, whoa, A is way too general, way too broad. There’s no way it’s true that throughout history there’s never been a party better than Jenna’s, right? There’s been so many events through throughout history, at least some of them must have been better than Jenna’s.

So anyway, what’s happening here, in D, is that we’ve selected what we take to be a reasonable, at least hopefully accurate, interpretation of the word "literally." So let’s try one more. So in the argument below, what’s the most charitable interpretation of the phrase "It’s sexist to change their last names?" Here’s the argument: "It’s an old-fashioned tradition for women to change last name ... sorry, for a woman to change her last name to her husband’s name when getting married, a tradition born out the idea that women are husbands’ property. So it’s sexist to change their last names.

And so we need to interpret that final statement. Does the author mean, A, women who change their last names are true feminists; B, women change their last names primarily because men force them to; C, the tradition of women changing their last names has sexist origins; or D, it’s unethical to change your last name when getting married? So in this case, I’ll just go ahead and say C seems to be the best option here. It’s a little bit more modest than some of the other claims, right? About it being purely unethical for women to change their last names, or that women change their last names primarily because men force them to, we could ask if that’s really true in all cases. And so really what we’re doing in these exercises is trying to locate the most accurate or the most reasonable interpretation of the claim that’s pointed out in the argument.

OK. I think we can do one more. So in the argument below, what’s the most charitable interpretation of the phrase "Justice is served." So here’s the argument. It says: "It’s true that executing a convicted terrorist is not likely to scare others away from engaging in terrorist acts. New terrorist attacks might even become more likely, since the terrorist we execute might become more sympathetic or impressive than would-be imitators. But nevertheless, it is important that justice is served."

So what do we mean by "justice is served" in this case, or what does the author mean? Is it A, the justice system in this country is fair and equitable; B, the status quo is upheld by punishing anyone who threatens our nation, C, terrorists receive punishments that they deserve for their crimes; or D, punishment for terrorists should be our top priority?

So if you think just for a moment, you might sort of, again, sort of work your way through the various options and come to C. So we came to the conclusion that C seems to be the most charitable interpretation of "justice is served." A is a statement about the justice system as a whole embodying these qualities of being fair and equitable. That didn’t seem to sort of fit exactly what the author was saying in this case. And, for example, D also sort of makes a claim about what our priorities should be, right? Which is sort of steps beyond what the author is saying. So if we’re trying to be really accurate, really charitable, in this case, C seems to fit the bill.

So I hope through these examples you’re starting to see that largely what we’re trying to do when we charitably interpret arguments is understand — really, truly understand — exactly what an author means so that we can then go on to make our own evaluations of what they’re saying. It’s only when we’ve understood another person’s argument that we can reasonably walk through each point and start to dissect it and evaluate it for ourselves. All right. So Nate, I think I’ll switch it back over to you.

 

NATE: Sure. So just to recap what we mean when we say "intellectual charity," I’m going to give you just a brief summary of those skills. Let’s see if I can present. Right. So we mean the skills of listening carefully and asking for clarification, noticing when a statement requires charitable interpretation, maybe because it’s controversial or vague or overstated like some of the claims you just looked at, right? Like the claim "justice is served," it’s kind of vague. The claim that it was literally the best birthday party ever is kind of overstated or exaggerated. So in ordinary conversation, we do this all the time. We just sort of effortlessly interpret people and we give them the benefit of the doubt, but it’s a lot harder to do maybe when you’re engaging in an argument that could be tricky or controversial or both.

And when you do notice that something requires charitable interpretation, you want to choose the way of interpreting it that makes the most sense in context, and is the most plausible. So you guys might have heard of straw-manning an argument, which is taking the worst possible version of it, right? Instead, you want to steel-man an argument, which is taking the strongest version of the argument that you can come up with in order to attack it. So if you disagree with the argument, you don’t want to disagree with the straw-man; that’s not charitable. You want to disagree with the steel-man. A few other things that are great if you can do them. So if possible, you can check your interpretations. Maybe you’re talking to a colleague or another student or someone at the firm you’re working at and you want to just ask, like, here’s my understanding of your argument, is that accurate? So it’s always the most charitable move to just ask for clarification. When you’re going to disagree with someone, it’s usually helpful and it’s rhetorically effective to note what is good about the argument or something that you learned. And finally, you don’t want to attribute mistakes to someone else, especially unfairly, right?

No one likes to have mistakes attributed to them that they didn’t make, so just be careful and don’t attribute mistakes to someone else that you’re disagreeing with if you can help it. If they make a mistake you can point it out, of course. But you don’t want to unfairly or misattribute mistakes to them. OK. So in one sentence, if you wanted to kind of summarize this, if you just want like a way of remembering what we mean, you can think of it sort of like the golden rule for arguments. Treat other people’s arguments like you want them to treat yours. And that’s just kind of a succinct summary for everything that we’ve just said. OK, so why practice charity, right? Because it’s difficult. It’s especially difficult if you’re feeling personally offended or if it’s a topic that you find maybe keys on something that’s important to your identity, right?

I find it difficult to practice intellectual charity. And so here’s some reasons for you. The first and maybe the most important is that you’ll be more persuasive, right? So you’ll be able to formulate your arguments in terms of your audience’s values and commitments. If you listen well to them and understand them, then you’ll be able to see where they’re coming from and then put your arguments in terms that will appeal to them. You can demonstrate your intelligence by showing that you understand both sides of the case. I don’t know if you guys have heard the John Stuart Mill quote that "He who knows only his side of the case knows about little of that," right? And this is certainly something that your law professors are going to ask you to do in practically every class, on practically every topic. They’re going to ask you to argue for both sides in order to understand where a different side is coming from. Also, people will like you, because people like to feel listened to and people can tell if you’re actually listening to them, or if you’re just waiting to make your points for them to stop talking so that you can talk over them, right? And so people will like you more if you listen to them. So as an incoming law student, this is especially important because you’re going to need these skills in order to succeed in your law classes.

I happen to have this on good authority, because my wife is a Harvard law student and she has to use these skills all the time in her classes. And she’s in classes with students who have very strong right-wing opinions about a lot of topics and very strong left-wing opinions about a lot of topics. And all the time she’s asking, like, "What are they talking about?" Right? Because people will say things in law classes that can be a little bit off the wall, and you need to be able to interpret them charitably. But also, your professors are going to ask you to do some challenging work. For example, one of my wife’s professors is a professor at Harvard Law School named Randall Kennedy, who I also had the privilege of speaking with on a panel recently. And Randall Kennedy takes his students through many cases in the United States history which involve explicitly racist claims and involve even laws about slavery, right? And so he needs his students to be able to understand the arguments that were made at the time in favor of slavery, right? And he teaches contracts. So he wants his students to understand what were the reasons that were being given. Not because he thinks they’re good reasons, not because he wants them to hold that position, but because he needs them to charitably understand that position in order to understand why it’s wrong. And you likely in your law classes will be asked to understand and charitably interpret arguments that you may strongly disagree with, and rightly so.

And finally, as we’ve already alluded to, when you’re out in the real world practicing law, you may not end up arguing in a courtroom; most lawyers don’t. But you will be involved in arbitrations, negotiations and other kinds of disagreements, right? That’s what lawyers do, they disagree. And you’re going to need to be charitable in order to win those cases and win those negotiations. So you’re going to be arguing in front of judges who may hold different ideological bents than you do, and you’re going to need to know how to frame your arguments in ways that will appeal to them. All right. So that’s kind of the big "why" pitch, right? There’s a tool called argument mapping. We’ve already alluded to it. You can do more research about it on your own, and we’ve got a lot of research linked on our website about how it improves the skills of charitable thinking and critical thinking skills.

Briefly, some reasons why it might help you practice intellectual charity if you are interested in learning more. One, it can help you increase your focus, because to map an argument requires you to slow down and really sift through it. It can reduce cognitive load, because you can see things visually instead of having large blocks of text. And many of us find large blocks of text very intimidating and difficult to read, but it’s relatively easy to read an argument map. And you can also expose hidden assumptions. And there’s actually a study from the journal Nature, which is a top science journal. They did some tests with Princeton students, and they had a course where they just taught them argument mapping. They didn’t teach them the LSAT, right? They just taught them argument mapping. And the students did significantly better on a post-test for the LSAT just learning argument mapping, which suggests that argument mapping is helping you learn those underlying reasoning skills that are tested on the LSAT. And the students also scored higher on blind graded essays. So it’s going to make you a better writer as well if you really wanted to invest in learning argument mapping.

So that’s what we teach at ThinkerAnalytix, is argument mapping. And if you want to learn more, we’ve got some resources linked and you can take a course on our website, things like that. OK, so, as we’ve already alluded to several times, often in a law classroom, you’re going to be asked to discuss not only historical cases, but potentially even live cases.

So as we’ve already mentioned, recently, I’m sure you’ve all heard of it, but in case you haven’t, Justice Alito has authored a draft opinion, which is believed to be authentic. And there’s a few caveats about this. One is that it’s just a draft, the argument that we currently have, and the Supreme Court in the next few weeks, or maybe a month or two, is going to pass down the final ruling on the Dobbs case. But it appears that they’re poised to overturn Roe v. Wade and thereby strike down the constitutional right to an abortion. So this is obviously of huge import, not only legally, but politically and socially. So what we’ve done is we’ve mapped out this argument as it’s represented in the draft, and Aidan is going to walk you through, just briefly, what are the main points in the argument. I don’t know how many of you have read the draft, but it’s long, right? It’s like an 80- or 90-page document and there’s all kinds of footnotes and everything.

So the map is a little bit large, but it’s not nearly as intimidating as the actual draft itself. And our intention here is to help you see what we mean by steel-manning an argument that you disagree with. And that’s because Aidan disagrees with this argument, so she’s going to try to present it as favorably as she can. And I broadly agree with it, so I’m going to try to present some objections to it as favorably as I can. So that’s our intention here, is just to model that for you. Again, the whole idea here is this is the kind of thing that you might be asked to do in a law classroom, regardless of how you feel about any given topic. All right. So with that, I will pass it over to Aidan to introduce us to this argument map.

 

AIDAN: Great. Thank you, Nate. And yeah, so just to reiterate, right? The point of showing you this map, which I’ll pull up now, is not to have you think any particular way about it. Really, what we have here is an argument map, which is large, as Nate noted. But really what we’ve tried to do is just represent the reasoning from the leaked opinion. So we have not sort of imported our own views on this. Instead, we’re going to talk you through some of the moves you could make, some of the questions you could ask, some of the additional reasoning you might supply if you were to work through this argument on your own, as you would in a law class, like Nate said. So as you can see, it is large and I know that the text looks very small, and I will zoom in momentarily. But just a couple things I wanted to note right off the bat.

So you can see at the very top of the map, we have the sort of overall claim that’s being made in the draft, which is that the court should overturn Roe and Casey and return the issue of abortion to the states. So that’s sort of the main claim, the ultimate sort of takeaway from the argument presented. What you can then see, and I’ll start to zoom in here a little bit, are sort of two primary lines of reasoning emanating from that top claim. The first, in green, is a line of reasoning based on the claim that the question of a right to an abortion should be left up to the people, to the states, to decide for themselves. So as you can see, there’s sort of positive supportive reasonings presented for that claim, which is then taken as a premise, a reason to believe that the court should overturn.

On the other side of the map, we have a different line of reasoning, which is in response to an objection leveled by respondent. So the red line here indicates that what’s presented below is an objection to the claim above. So the justice heard respondents give this argument about stare decisis, which generally means deferring to precedent. And then what you can see the author doing is responding to that objection, so presenting rebuttals, arguments against the objections. And so you might think just structurally in terms of an argument, one thing you might think is generally good about this argument, and maybe arguments you’ve put written in papers in college, is not just that you entertain sort of your own positive arguments represented by these green lines, but that you entertain objections and you respond to those objections.

So that’s maybe one thing you might look at this map and think, "OK, that’s maybe something to be said in its favor, is that it sort of accounts for both positive and the objections in its reasoning. OK. So that’s one thing to know. What I’d like to do is draw our attention actually down the map and zoom in a little bit on some of the reasoning that’s hidden way deep in the draft and also in this map.

So what you can see here, in this part of the map, Alito is responding to a claim that he attributes to Roe and Casey, that the right to an abortion can be located in the due process clause. And he sort of outlined some reasons why you might think that, right? That’s what this green line indicates. But what you can see, the box slid over a little bit just because there’s so much in the map, this red line indicates that the author, Alito, is responding to these claims by saying that the thing on the left is actually not relevant. They’re responding to the importance or the significance of the claims on the left-hand side by saying that the right to an abortion is sort of fundamentally different from the other rights that could be located in the liberty and due process clause. And so that’s just sort of what’s happening in this part of the map. But one thing I found interesting here, and something that the argument map helps us see that maybe would get lost in long-form texts, are the different kinds of reasons that Alito is bringing forward.

So you can see here, so Alito is claiming that the supposed right to abortion is fundamentally different from other kinds of rights that are listed on the left, and he’s giving both historical and moral arguments to support that claim. So, for example, over here he brings up the moral question of abortion and sort of saying that that’s something important and relevant we need to take into account, but also goes into the historical reasoning over here. So actually two kind of different kinds of arguments that you could bring to bear on the claim above in 5.2. And so that’s something you might do as a law student, right? You’ll have to take into account both history and the sort of moral or ethical reasoning, as the justice has done here. And so I thought that was just sort of an interesting feature of that map, is that it weaves together these different kinds of claims. And importantly, because they’re presented as different reasons, different reasons to believe 5.2, this claim about abortion being a fundamental right, to argue against Alito, we would have to come up with objections to both the historical and moral reasoning here, right? We can’t just sort of knock out one and leave the other to provide a pretty solid argument against this part of the argument map; we’d have to address both.

And so that means that there’s sort of more reasons we’d have to attack if we were to argue against this map, which is maybe something to Alito’s favor. OK. Perhaps just one other thing I’ll point out that I found interesting in this map. So what we can do with a map is we can start to sort of walk through some of the claims that are presented and ask, do we think that these claims are true and do we think that they’re relevant? And you might think that ... Nate sort of brought this up before; you want to put forward claims that would be charitable, acceptable, reasonable to the audience that you’re addressing. And as you look through this map, there are a couple places where I actually think a wide array of people, with maybe very different approaches to the issue of abortion, would actually agree with some of the claims that are being put forward, and that, you might think, is a strength of the argument, right? That it’s putting forward claims that would be largely accepted as true.

So for example, I think there would be many people who agree that the undue burden test that was put forward under Casey is problematic or unworkable. Now, what you then do in response to that may change depending on what you believe should be done about this issue. But at least you might be able to say, like, "Well, I at least agree that the claim itself is true." That could be something sort of to the favor of this argument that people with very different approaches to this issue could potentially agree. So maybe in the interest of time, I’ll stop there and let Nate jump in for the alternative approach to this argument. But just wanted to show some of the potential strengths that you could see here, even if, at the end of the day, you don’t necessarily agree with the content of sort of what’s being put forward.

 

NATE: Great. Aidan, I just want to ask, what would you say is the strongest argument that Alito has, or just if you had to say what was the most convincing reason, even if you didn’t actually find it convincing?

 

AIDAN: Yeah. So I think as I was looking through this, the part I found most convincing was about the reasoning in precedent being weak, or at least sort of not necessarily contradictory, but maybe not super consistent, or that there’s sort of differing approaches that maybe should be made more consistent. That I thought was probably one of the strongest lines of argument here. But I should say I’m a philosopher, so you lawyers can tell me what you think.

 

NATE: Sure. Great. Well, thanks so much, Aidan. I’ll just maybe take back the screen share briefly here. So what I wanted to do is just raise some possible objections to this argument. And these are objections that I’ve sort of gathered from not only talking to my colleagues who are lawyers, but also just reading in the news. And I’m sure if many of you have been following this issue closely, a lot of people are very upset about this opinion because of a lot of the implications of it.

So I just want to highlight what I take to be some of the most persuasive objections. One has to do with this concept of what’s called stare decisis, right? Which I think in Latin means something like "it is settled" or "it is decided." And it essentially means deferring to precedent, right? So the worry is that by overturning itself, the court is going to potentially appear politicized, and that in general, people come to rely on previous rulings, and there needs to be a respect for the court and its decisions and a respect for rule of law. So there’s an understandable worry that for the last 50 years since Roe was decided, women especially in America have come to rely on a right to an abortion as part of what’s considered a constitutional right. And so to overturn that precedent is itself a very kind of precipitous thing to do and it’s going to create not only social upheaval, but also potentially diminish the court’s own authority, in a way. And you can see how women in American society have reasonably come to rely on the right to an abortion, because it’s been codified in law, right? So I do think that Justice Alito has some responses to that idea of reliance. And we don’t have time to get into the details now, but you can email me if you want to talk further about it. But I do think it’s worth noticing that, yes, this is a real issue, that many women have come to rely on this right and maybe even made various life decisions in relation to that.

Not only that, but you might also worry about not only the kind of social issues, but that there’s an issue here about autonomy, right? So the court has found a number of rights under the liberty portion of the due process clause, and these include the rights to contraception and the right to a same-sex marriage, which was Obergefell in 2015. And those were located in the due process clause. So those have to do with people’s autonomy in a certain sphere of their private or family life. And so women are, and men too, are naturally concerned about women’s bodily autonomy, as well as their equality with men to be able to participate in society, because it’s thought that women disproportionately bear the cost of childbearing and all that comes with that, right? So it’s a matter of equality and also of autonomy to keep this right upheld. And there’s another kind of argument here, which is a sort of slippery slope argument. So many people are worried that rolling back this right potentially opens the door to a slippery slope of rolling back other rights, such as the right to gay marriage that was found in Obergefell, because it’s a similar rationale in Obergefell. So that’s another fairly significant concern that a lot of people have, that this just opens the door to further rulings. And you can see that, again, there’s a similar type of reasoning being brought to bear that would open the door to that. So those are what I thought were some of the most significant objections to be raised to this, and I think should give us all pause, regardless of how we feel about this topic.

We just wanted to present to you guys, like, here’s some arguments for and some arguments against and try to do so in a way that is fair and even-handed. And you can tell us if you think we did a good job at being even-handed about it. And we may have some time to unpack it further in Q&A if you guys want to pick it up. But for now, I think we’ll probably just wrap up that particular discussion, and I think we’ll just leave you guys with a few resources and closing thoughts and we can do some Q&A.

 

AIDAN: Great. Yeah, and so before we do that, I’ll just say we do have some resources we can share. If folks have enjoyed this session, you find it interesting, you want to learn more, please let us know and let our host know. And I’m sure you’ll be getting some sort of survey afterwards. And we just want to say before we do the Q&A, thank you again, and these are our email addresses for both Nate and for me, and we’d hope to hear from you.

 

COLLIN: All right. Great. Well, thanks, Nate and Aidan, for that really comprehensive presentation. That map blew my mind. I mean, that’s not surprising how big it was, but there’s just so much that goes into it. And you guys gave a really thoughtful discussion about all of the elements that are part of it. I won’t even begin to pretend I could break it down as well as you guys did, so thank you for that.

So some really good questions have come in through the Q&A. We were able to answer some of them live, or I should say via chat during the presentation, but there are some others that we want to make sure that we are addressing now. So let me pull up some of these questions here and I’ll start handing them over to you guys. So here’s kind of a ... I’ll start with a couple easy ones for you. First things first, what is the best way to practice intellectual charity? Rather, how do you become more charitable before you get into some of these higher-stakes conversations where you have to use it?

 

AIDAN: Totally. Nate, do you want to go first?

 

NATE: Sure. Let me just say one thing about the really large map. I just want to assure you all that you do not need to have the skill to be able to produce one of those in order to be a really effective advocate and to do amazing in law school and to be very charitable. We were being extra by mapping out the whole thing, and we just wanted to use it as a tool to kind of show you. So I just don’t want to leave anyone with the opinion or the impression that you need to be able to do that yourself in order to benefit. Collin, it’s a great question. I would say that there are practice exercises. We’ve designed thousands of them, and they’re available on a course that we can make available to you all, and we can build more practice exercises to make available to you through the LSAC.

But I would also say just in your personal life, find people who are charitable and hang out with them. It’s a sort of disposition as much as it is a skill. And it’s a kind of thing where you can kind of absorb it by osmosis. So you may all know people who you take to be really thoughtful or who you intellectually admire, and see if you can try to be like them or see if you can hang out with them a little bit. And then you might also just try to practice steel-manning arguments that you disagree with. So maybe some of you, while you’re watching us talk about the Dobbs opinion, maybe you find you feel really strongly about it. So try to think, like, what’s the best argument that I disagree with? And anytime you feel strongly about a potentially loaded topic, try to come up with what is the best argument that is on the other side of the case, and see if you can actually get yourself to talk to somebody who does disagree with you and hear what they think about it.

 

AIDAN: And I would say you don’t have to start with topics as perhaps large and tricky and complicated like policy or like Supreme Court decisions, right? Start with, like what’s better, basketball or soccer? Right? I mean, you don’t have to jump in the deep end, right? We can have meaningful disagreements with people in our lives about any number of issues, and starting sort of with smaller things, things you care about certainly, but things that maybe don’t rise to the occasion of the Supreme Court, are totally reasonable places to practice charity too.

 

NATE: Yeah. We’ve made some argument maps about whether there’s more doors or wheels in the world, whether pineapple belongs on pizza, whether a hot dog is a sandwich. These are controversial. So you could try to find someone who disagrees with you about one of those topics and be charitable to their argument.

 

COLLIN: So taking off your professor hats for a second, right? How common is it that you see these needs to practice intellectual charity in the real world? I mean, I know you just gave a few examples, and I know you mentioned at the beginning of the presentation, but is this a real-life skill outside of the courtroom, outside of the classroom, outside of professional conversation?

 

NATE: Yeah. I mean, if you ever find yourself disagreeing with anyone about anything; if not, shoot me an email and explain how. But otherwise, yeah. I mean, I certainly find that I need these skills not just for my job, because I teach it for my job, but all the time when I’m reading things online, right? I don’t use social media very much, but the people I know who do find that they definitely need this skill in order to be able to stay sane.

 

COLLIN: Yeah. And I certainly don’t disagree with you. I wanted to throw that one out there because another situation in which I see this happening a lot is in a lot of my interpersonal relationships with friends, family, my wife, for example, without even realizing it, I’m practicing intellectual charity when I want to make sure I’m having a fruitful conversation where there’s an outcome which maybe I don’t entirely agree with, but at least I’m confident with how I got there and I feel like we’ve had a thorough conversation.

 

AIDAN: Yeah. And many of the folks on this call are already doing it, right? So often in college classrooms, maybe even in your high school classrooms, you would have conversations about topics where there were points of disagreement. I mean, we don’t just all sit around sort of agreeing all day long. And so we’re giving it a term and we’re sort of breaking it down into component skills so you can practice, but I’m sure most folks have already gotten a significant amount of practice doing that already.

 

NATE: Yeah. There’s actually a, I don’t know anything about marriage counseling, but I do know that marriage counselors often use this same technique, which is if the husband and the wife are having trouble understanding each other, they just try to get the husband to repeat back what the wife was saying or vice versa. And so marriage counselors use it too, but yeah, it’s definitely relevant.

 

COLLIN: So let me kind of address something here, right? Now, intellectual charity is something which often gets used when the topics are controversial, right? I mean, the topic that we’ve discussed in great detail today is something which has polarized opinions, right? So one question which is really interesting is what if you just really, really disagree with someone, right? How do you practice intellectual charity when you’re so completely against the other opinion that it’s really hard for you to think and prepare your thoughts, especially when you’re doing it live and you don’t have time to prepare a response?

 

AIDAN: Yeah. So I can maybe put a disclaimer to start, which is maybe every lawyer’s favorite, but so there are, I think, many people would say there are some arguments that are so either founded on really horrible claims, so claims about, say, racism, or we can come up with historical examples, that maybe we think are so beyond the pale that they shouldn’t be interpreted charitably or they’re sort of not deserving of charity, right? So really egregious arguments. So we’re not saying that you need to take on every argument you see necessarily, but we are trying to prepare you for the arguments that you will have to engage with as law students. So I just wanted to put that out there, that we’re not proponents for taking on every possible thing you could read, say, on the internet. That would not be worth your time ,and you might have legitimate moral reasons for not wanting to do that. There’s my disclaimer. I don’t know, Nate, did you want to jump in? I think I cut you off. I don’t know.

 

NATE: No, yeah. That’s totally ... Yes. So you need to decide when to be charitable, especially in your personal life, right? And some of the things that you might consider are: What’s your bandwidth? What’s your emotional resources? Right? Like, I don’t have time to talk to every person who’s trying to argue that the Earth is flat. I literally just don’t have time, right? It could be interesting. If I have an hour and someone I really care about really wants to argue this, I might try to listen to them, but otherwise, I don’t have time. You might also consider just the impact of having the conversation, right? So if it’s about a particularly sensitive topic, if it’s an interpersonal relationship, you might actually be able to ... You might risk practicing charity toward them nevertheless if you think it might be able to eventually kind of make some progress or change their mind. But if it’s, like, on Twitter or something, your likelihood of really kind of like moving someone in a better direction, if they’re saying something that really is truly offensive, is pretty low, so you might just think it’s not worth the effort in terms of the impact you’re going to be able to have, not to mention your own emotional bandwidth.

 

COLLIN: So let me give you guys both a couple questions, which are perhaps a little bit more difficult to answer. So the first one is with respect to the map that you put up there and the opinion. The question is, is this a logical chain of deconstructing this draft opinion? In other words, could this not be deducted to a point where there is one opinion that is clearly favorable over the other?

 

NATE: Go ahead, Aidan.

 

AIDAN: I don’t know if I fully understand the question, so I don’t want to answer the wrong interpretation, Nate, if you have a better sense.

 

NATE: Yeah, I actually don’t fully understand the question either. Let me just explain what the argument map is. The argument map is our best effort to represent Alito’s reasoning as it stands in the draft opinion. So first of all, this is just us trying to visualize the structure of the reasoning. Here’s the main claim, here’s the premises, here’s the objections he considers, here’s his responses. And it’s just trying to represent what appears in the draft opinion, right? So it’s not our evaluation of whether this is a good argument. It’s just our attempt to faithfully and accurately and charitably capture what Alito has said. There’s also the caveat, of course, again, that this is just a draft opinion and it’s not the final opinion. And there’s the caveat that this is one side’s view, right? So there will be dissenting opinions published from other justices who disagree with this view, and they will lodge strong arguments against it, and those will also be principled. So the different justices are going to bring different principles of how they do legal reasoning. Are they originalists? How do they do their legal reasoning? And those are going to yield different types of results on these different cases. So I hope I’m shooting in the direction of answering that question, but I’m happy to take another swipe at it if it can be elaborated on.

 

COLLIN: No, I actually think you got right to the core of what was trying to be asked there, I think, which was basically, are these argument maps free of bias, right? And I think that the answer that you just gave is yes. So what you’re doing is you’re looking at the argument itself, deconstructing it, and then maybe you draw conclusions from there, but you’re not letting your own biases slip in, is that correct?

 

NATE: That’s our hope, right? So if you think we’ve misrepresented Alito’s reasoning — in other words, if you think Alito is saying X, but we’ve presented Y as Alito’s argument — you should definitely tell us, because our whole goal is just to represent it faithfully, hopefully in such a way that Alito would look at the map and be like, "Yes, that is a fair version of what I’m saying." That’s what we aimed for, yeah.

 

COLLIN: Great. Do you think that intellectual charity in general could assist in changing the state of polarization today in political discourse in particular?

 

AIDAN: Yes. I mean, I think it could do some work. I mean, I don’t know that I’m so overly ... I love that we teach intellectual charity and we do things like this, but I don’t know that it would go so far as to eliminate the strong polarization that we see. But certainly, helping citizens with diverging opinions listen carefully and understand each other, presumably that would probably start to change at least some people’s minds. But I’ll say — this is consistent with what Nate said about the Alito draft — our goal actually isn’t to have folks who listen to these webinars believe anything in particular about policy or about what the court should do or shouldn’t do. We just want to make sure you have the skills so that you can decide for yourself what those things should be. So even if I think people’s actual political views didn’t change as a result and move closer to the middle or something, whatever the opposite of polarization is, showing and practicing intellectual charity, I think, is still a good thing to be pursued, but that’s just my view.

 

NATE: Yeah. It’s definitely not incompatible with holding very strong views. You can be an extremely principled, ardent believer in causes and issues of justice or whatever your sort of partisan orientation is, and still be highly charitable or not, right? I’ll also just say I think it’d be amazing if every political candidate had to charitably interpret their opponents. If people in Congress had to be able to explain the best argument on the other side of the aisle in order to advance their arguments, or if presidential debates were graded on how charitable they were to each other, it’d be a totally different world. I mean, I can’t even imagine that world, right? It’s so different than the world we actually live in, but it would be, I think, a better world. So I don’t know how to enact that, but you guys can help us figure that out.

 

COLLIN: Yeah. And I think a point you made at the beginning of your comment there, Nate, is important. And that is really that sometimes disagreement is real, sometimes disagreement exists and it’s OK that it exists. It’s not reflective of misunderstanding, right? Rather, it’s just people’s beliefs. And I think the charitable interpretation of arguments is distinct from that. Would you agree?

 

NATE: Definitely, yeah. I mean, to charitable interpret an argument is not the same at all as to agree with it, and to live in a world where everyone practices more intellectual charity is not to live in a world where we all just agree. In some ways, it’s not like kumbaya and "Can’t we all just get along" per se, right? You can still disagree vigorously, but there’s virtue in doing it charitably rather than uncharitably. And you might also just be more effective in your disagreement by being charitable about it.

 

COLLIN: Here’s another question that came up with respect to actually using intellectual charity and some of the difficulties someone might have using it. So let’s say you’re in a conversation with someone or perhaps even a disagreement, an argument with someone who employs some thoughtfully chosen and sophisticated words, has a very well-constructed argument you find difficult to disagree with or to argue with, even though you know you disagree. How do you practice intellectual charity in situations when you don’t have a lot of time to prepare and your opponent is just really good at what they do?

 

AIDAN: Yeah, that’s a good question. So, often language and the way we articulate the claims that compose our arguments can be a little bit hard to sift through, right? Especially if you use large vocabulary like you saw in that map that we made. And so really just practicing restating confusing or vague claims in your own words is sort of a first step you can do for yourself to try to make sure that you’ve really understood the other person’s perspective, right? So first restating, but maybe asking questions like: What did you mean by that term? Is there a reason why you said that that way and not this way? Am I understanding you properly? So asking questions and trying to restate claims in your own words is a sort of first line or sort of first approach I think you could take in that case, because I agree often vocabulary, maybe freely ornate language, can sort of start to hide or make it harder to see exactly what the structure of the argument is. And that’s where argument mapping can help, right? Argument mapping makes those lines between the claims very apparent. And so that’s why we like to use that tool, because it starts to almost, like, get under the hood, right? Of the great language, right, that’s used on top of it. So I would say, yeah, asking questions and restating in your own words or in language that you feel comfortable with is a good first approach.

 

NATE: Yeah, the only thing I’d just reiterate is don’t be afraid to go slow. You need to slow down to think carefully and to think well, and it’s not a sign of being sort of, like, an unintelligent person to think slowly and carefully, right? We had to think very slowly for a long time to make that argument map, right? You all probably had to slow down to think through the practice exercises that we showed you. Slow is good. So if you’re in a conversation with someone, don’t be afraid to slow it down if it helps.

 

COLLIN: So I have one more question for you both, which I think is a really cool one, and then I want to leave you guys an opportunity to leave some closing thoughts for everyone who’s still with us today. And that is, what if intellectual charity isn’t being practiced by both parties in a conversation or debate? How might you handle that?

 

AIDAN: Oh, that’s a tricky one.

 

NATE: Yeah. I mean, one way we kind of talk about some of the professors we work with is, one thing you could try is you could try sort of like a two-strike rule. So if you’re in a conversation with someone and you’re not sure whether they’re basically trolling, right? Or they’re otherwise, they seem like they’re not really in good faith or they’re not genuinely interested in having a kind of open, intellectually honest conversation, you could sort of ask a clarifying question to be like, "Wait, it sounds like you’re saying this, but are you really saying that, or maybe you’re saying this, or could you restate that differently?" And if they sort of, like, double down on their apparently trollish or otherwise they’re not in good faith, if you give them a real chance to show that they’re interested in a sincere and honest conversation that makes some kind of progress or that they’re interested in listening to you and they just kind of shut the door in your face, and at that point you can kind of walk away, right? Because clearly they’re not interested in actually having a conversation. So you might give them one good chance. That’s just sort of a general rule of thumb that you might try.

 

AIDAN: And in conversation in general, right? You might ask, like, what are you likely to get out of this encounter if the other person isn’t truly interested in listening to what you’re saying or responding to your questions, right? It might not be very useful at all for you.

 

COLLIN: Great. Yeah, I did give you guys a tricky one at the end there. So good work handling that after an hour of talking. So at this point I want to give you both an opportunity to give some closing thoughts to the people who are still with us today. So maybe Aidan, let’s start with you since you’re the last person I had on my screen.

 

AIDAN: Sure. Yeah. Well, first of all, just thank you all so much for coming. I mentioned at the beginning I teach logic and critical thinking largely to students who are about to, or in a few years will be going into law school. And I hope what we’ve shown you are some really useful resources to practice skills and the terminology that you need to engage in arguments that you will see when you enter law school. We dropped some of those resources in the chat. And as always, you can always go to our website, thinkeranalytix.org and find us and send us an email, because we’d love to hear how you’re using these resources to support your education as lawyers.

 

COLLIN: Thank you. Nate?

 

NATE: Yeah, I just ... It really is possible to have good conversations with people when you really disagree. I used this map just in a personal conversation with some friends recently about the topic of abortion, and there were people in the room who strenuously disagreed with each othe,r and we had a good conversation. It was genuinely like, we like each other even though we disagree, and we walked away glad for having had the conversation. And I know that’s a really rare thing in the world that we live in. You may not have ever even gotten to see or participate in a conversation where there was robust disagreement that went well, right? But it is possible. It does happen. It will happen in your law classrooms. Your professors will show you how to do it, and you can do it when you practice these skills. But it really is possible to have good conversations across disagreement. And so I hope that gives you all just a little nugget of hope in case you’re feeling a little bit discouraged.

 

COLLIN: Awesome. Well, thank you both again. I really appreciate your time and your thoughtful effort that you put into this presentation today. I think you covered a lot of really great information and answered a lot of really difficult questions. So thank you for that. And thank you everyone else who has joined us today. Without you, this wouldn’t be possible. So I want to let you know that we’ve done our best to answer as many of your questions as possible. And there were quite a few.

So if we weren’t able to answer your question, please feel free to contact us again at Ambassadors@LSAC.org. In addition to all that, I wanted to let you all know that we’re taking a short break from our monthly webinar series. We’ve been doing this since January and it’s gone very well, and monthly webinars will be back in August. But I would like to remind you all and encourage you all to think about registering for Admission Unmasked and Law School Unmasked this summer.

Again, registration is now open, so please be sure to sign up today for whichever program makes the most sense for you at this point in your application journey. If you don’t already have a LawHub account, go ahead and set one up, maybe even today. Stay connected with LSAC on social media, and stay tuned for more updates on future learning from LawHub. We look forward to seeing you all again soon. Thank you, and have a wonderful day.

 

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