Today we get a special treat — a guest blawg by the one . . . the only . . . the delightful . . . Gretchen S. Sween.  

Her post deals with the epistemology of drawing lines.  Blawgletter thinks you'll like it.  We sure did.

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Before I built a wall I'd ask to know

What I was walling in or walling out,

And to whom I was like to give offence.

 

Robert Frost

 

Last night, I heard about a delightfully absurd bill that has been introduced in Congress.  The thing is spearheaded by Senator and former Presidential candidate Sam Brownback and reputedly sponsored by about twenty other (mostly Republican) Senators, including Senator John McCain.  The bill, at least as described by a member of the news media, would impose a federal ban on efforts to create human-animal hybrids. 

 

Huh? 

 

My thoughts instantly leapt to the pig valve that was nicely implanted in my mother a few years ago in the wake of a heart attack and the subsequent discovery that a critical feature of that life-sustaining pump had failed.  If this “no human hybrids” legislation were enacted, would that make my mother ex post facto illegal?

 

Okay, I understand that Mr. Brownback’s bill is not actually targeting pig valves but rather mermaids, centaurs, and The Island of Doctor Moreau.  So, I turn to a less facetious question:  Why are we humans, especially those in the business of lawmaking, so obsessed with defining rigid boundaries, borders, bright-line cutoffs? 

 

Interestingly, science, one realm of human endeavor where our longing for essential answers is clearly manifest, has been quite successful in the past century or so at deconstructing the very notions of essentialism and clearly discernible boundaries.  Indeed, the Greatest Hits of Twentieth Century Scientific Innovation could be aptly dubbed “The Triumph of Fuzzy Borders.”  Consider quantum physics, which at the most basic level of physicality, blurs the distinction between waves and particles and relies on retroactive causation.  And of course cosmology teaches that the universe itself has no outer boundary, but continues to move away from a singularity in all directions at the speed of light.  Then there is chaos theory, which provides insights into the dynamics of non-linear systems, such as weather, the formation of coastlines, and the stock market, which produce patterns—but patterns that can never be predicted with any certainty from one moment to the next because their “initial conditions” are highly sensitive to even the most subtle kind of feedback.  And of course there is the development of modern psychology-neurobiology, which has successfully dismantled the long cherished belief in mind-body dualism.  Moreover, anyone who has spent any time studying genetics (or raising a kid, a pet, or a plant) will tell you that trying to separate the precise boundary between DNA and environmental influences is impossible—not just because of current epistemological limitations but because, from the outset of life (another fuzzy boundary) the feedback between genes and environment is so pronounced that the contributions of each set of variables cannot be ascertained with apodictic certainty.  Ever.

 

So, scientists have pretty much gotten the message, at least in their professional capacity, that many natural phenomena are most accurately described as having ambiguous boundaries, best expressed in terms of probabilities and trends rather than rigid, singular determinations.  That is, from a scientific perspective, “right answers” to certain kinds of questions will often be expressed as a continuum instead of a hard number.

 

And well before scientists finally found their way to wave-particle duality, evolution, psychoanalysis, the double helix, and the general realization that boundaries are porous things, this terrain had been canvassed by plenty of poets.  If you don't believe me, go read some Euripides or Shakespeare or Wallace Stevens.  But since poets, like scientists, are human, one can also find plenty of poets (think of Plato) who have resisted evidence suggesting that the demarcation between nature-culture, male-female, love-hate, right-wrong, light-dark, true-false is somewhat indeterminate.

 

So, what about lawyers, lawmakers, judges?  Does our work reflect a peculiar impatience with fuzzy borders?  Certainly, The Law is replete with attempts to draw a clear line between “okay” and “not okay.”  And isn’t most litigation about accusing some entity of crossing over some line or another—and then fighting tooth and nail to shape the way a supposedly disinterested fact-finder will apply The Law (as presented) to the facts (as presented) to reach a conclusion, if not necessarily The Truth?

 

An affection for bright-line distinctions reflects the quintessential human fantasy:  the desire to wrest order out of chaos.  And those who make and interpret the law like bright-line rules because they seem more orderly, more predictable.  But no matter how deftly judges and legislators try, they cannot parse language finely enough so as to create absolute, eternal, and transparent answers about what a given community has decided is okay.  Language, the medium of lawmakers, is perpetually fluid.  And the legislators and judges who try to draw these keeping-chaos-at-bay lines can never predict all the ways they have come up short until after their efforts have been put to the test out in the real world.

 

Anyone who remained moderately conscious during their first year of law school must remember noting how Sisyphean the whole project seemed—or worse, irredeemably arbitrary at some level.  Remember that infernal fox case?  It wasn’t the guy who’d prepared for days and schlepped over hill and dale chasing the fox that The Law had rewarded with ownership rights.  It was the guy who’d appeared out of nowhere, at the very last second, and merely laid hands on the little critter first.  That case came out the way it did because the arbiters of The Law had decided, quite reasonably, that trying to sort out the true meaning of Ownership would be hopelessly complicated and that a clear boundary between ownership and non-ownership was better for civil society.  Therefore, the person in possession prevailed, not necessarily True Ownership or Cosmic Justice. 

 

We all got it—at least eventually.

 

But outside of the law school context, perhaps the tremendous compromise that the fox case represents is not so apparent.  Perhaps we do not discuss often enough the fact that this compromise was consciously embraced to serve pragmatic interests.  Perhaps practitioners do not remind the world often enough that hard edges in The Law are largely constructs.  Constructs with some practical value, to be sure, but nevertheless constructs, not the ding an sich.  Clarity, certainty—these are all terrific values.  I’m a big fan.  But perhaps the art of crafting and interpreting The Law would be enhanced somewhat by occasional reminders that few boundaries are truly rigid and that a great deal of fuzziness characterizes the transitions between many states—matter/energy, liquid/gas, guilt/innocence, human/non-human, living/non-living.  Indeed, some of the ugliest episodes in legal history involve attempts to cling to hard distinctions—based on race, gender, mental capacity—where one side of a fuzzy boundary was defined as good/entitled/capable and the other was not. 

 

Perhaps, in seeing bright-line rules as a tool to curb arbitrary adjudications, The Law has been unduly optimistic or cynical, it is hard to say which.  At least in some circumstances, clinging to bright-line rules may be more likely to engender arbitrary results.  This should come as no surprise to students of The Law, who know that all manner of tests once considered to be based on “bright lines” have been extinguished or faded away.  In truth, most lawyers’ bread-and-butter involves cognizance that there are very few bright lines or certainties of any kind in the quagmire known as litigation.  Even facts are never as wonderfully solid as we like to imagine.  Facts, like the law, are subject to interpretation—a process that takes place in a context that is forever shifting, thereby continuously affecting the variables that impinge upon the interpretation.

 

In short, some nuance is frequently missing from certain legal debates—about how best to define the border between Texas and Mexico, about what kinds of marriage contracts states may sanction, about how to determine who is mentally retarded and thus exempt from execution, about the difference between “strict construction” and “judicial activism,” and about the need to ban “human-animal hybrids.”  No matter how personally attached we may be to bright-lines, lawyers know professionally that borders—whether they are made out of matter, facts, or law—are rarely digital.  Working to inject this insight into more high-profile legal debates might ultimately help more lawmakers and judges resist the urge to seek refuge in bright-line cutoffs that do not always (or even often?) allow us to best approximate Justice.

Thanks, Gretchen!

Feed-icon-14x14 Our feed suspects Ms. Sween of liking jury trials.

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

TRIAL COUNSEL
Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

COMPLETE PACKAGE
A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

HARD GRADERS
Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

CIVIC ENGAGEMENT
Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

KEEPING PERSPECTIVE
Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

PERSONAL
Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.