Always remember federal criticism of the bill of rights


522
522 points

Going back to the eighteenth century AD, again when Hamilton Eventually, Federalists famously opposed the Bill of Rights because they believed it to be redundant. Their concern was that since the constitution already stipulated that the federal government was one of the limited and numbered powers, enumerating some of the rights reserved for the people would make people believe that these are the only rights the people retain. As a matter of political prediction, this was not too far away. But more accurately, it was a very good model for how people read lists.

For any deep reason of human psychology, people always tend to treat certain lists as exclusive, even if they are intended and clearly presented otherwise. People focus on the immediate items included over anything else. This is surprisingly true of law practice. For example, in document requests, although “inclusion but not limited to” constructions is commonplace, I have always secretly suspected that many reviewers are doing nothing but work off the list alone. Am I too cynical? Quite possibly, but even if this is only true sometimes, it’s worth thinking about how document requests will be formulated. Resist the urge to rely too much on “including but not limited to” and instead spend a little extra time to include anything you care about at all in the enumerated items.

In addition to document requests, then, this principle applies to other things as well. The menus are big and exciting things. For example, in short, menus take an amazing amount of space and tend to be eye catching, especially fun odd-numbered menus like three, or five, if we’re more elaborate. But it tends to be so sexy that it pulls away from the rest – if you make a more subtle point around the same page, it likely won’t get as much attention.

The same applies to communication at any time, be it with a judge, opponent, or colleague. Specific points always tend to attract attention and crowd out more general ones. If you choose the point carefully, this is an asset: you are drawing attention to the point where you want it, and you do it right. But if you mean your specific points to be just examples, then you have fallen into a swamp with your words, no matter how well intent.

So remember, as you go about your days, study Federalists and their handling of the counted lists.


Matthew and Schmidt Palestrier FarrelloMatthew W. Schmidt He represented clients and advised them in all stages of litigation and in many matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner in the law firm and investigations Farrello arch player In New York, where he and his colleagues represent local and international clients in litigation, arbitration, appeals and investigations. You can reach him via email at Matthew.w.schmidt@balestrierefariello.com.


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