Wednesday, September 24, 2014

Scotland, Hawai'i, and How to Talk to Non-Lawyers

by Michael Dorf

My new Verdict column uses the occasion of the Scottish independence referendum to discuss the international law governing secession. I juxtapose the UK's scheduling of a referendum vote on independence with Crimea's unilateral secession (and subsequent annexation by Russia). I explain and provide some normative support for the general rule in international law: Unilateral secession is impermissible, with the caveat that there is modest support for an emerging norm allowing secession by a badly oppressed minority group.

After I wrote the column but before it went live, I had occasion to talk with a friend who grew up in Ireland and holds views of the English that are not uncommon among natives of the Emerald Isle. He expressed disappointment in the Scottish vote, which he attributed to fear. But he also opined that it was only a matter of time before other secession movements succeeded. He asserted confidently that Hawai'i would be next.

I was surprised. I explained that the U.S. would not let Hawai'i go. He responded that Hawaii's original entry into the union was coerced and that therefore the U.S. had no right to prevent Hawaii's departure. I countered that the history was legally irrelevant. Texas v. White firmly rejected any state right of unilateral secession. Moreover, just five years ago, in Hawaii v. Office of Hawaiian Affairs, the Supreme Court unanimously rejected the argument that President Clinton's formal apology to Native Hawai'ians for the role of the U.S. in overthrowing the Hawai'ian monarchy in 1893 in any way diminished Hawaii's status as a state of the Union.

Not being a lawyer, my friend was not impressed with my invocation of legal authority. But like most non-lawyers with strong opinions about legal questions, he did not think the law was irrelevant; he simply held an unorthodox view of the law, which he nonetheless believed very strongly was surely right. Think about how Tea Partiers talk about what the Constitution "really" means on any number of subjects or, for an example from the left, think about how critics of the SCOTUS campaign finance decisions talk about what the First Amendment "really" means.

Something like my friend's attititude towards law is even held by a fair number of politically active lawyers as well, although they are usually sufficiently sophisticated to be able to distinguish the positive law as declared by authoritative sources from their professedly "true" view about what the law should be. To be sure, even among lawyers, one finds a tendency to blur normative arguments for changing the law with efforts to delegitimatize the existing positive law. But the tendency is much greater among non-lawyers.

How should a lawyer talk to a non-lawyer who espouses an idiosyncratic view of the law? This issue arises quite frequently in practice. A client fixates on some issue that is emotionally salient to him or her but is legally irrelevant, such as someone's failure to apologize or failure to give notice when no notice was legally required. Experienced lawyers learn how to let the client vent but then to move quickly to ascertain the legally salient facts.

Even in the course of client representation, it is probably a good idea for lawyers to allow clients greater room to discuss legally irrelevant matters. As Professor Colb described in a June column on mediation, parties to a legal conflict may care more about legally irrelevant matters than they care about the issues that would come into play if their case were to go to court. A lawyer seeking to help a client resolve a conflict in a way that the client finds satisfying would thus do well to listen carefully to what the client regards as most important to him or her, regardless of what the law considers relevant.

In retrospect, I might have applied that same lesson to my friendly discussion about secession. I came away from the discussion thinking my friend was very badly informed, while he probably came away from it thinking I was a bit of a pedant. Our conversation might have gone better if I had made an effort in my own mind to "translate" his invocation of legal language into frankly normative non-legal claims, and engaged with it on those terms.