The Poetry of Persuasion: Early Literary Theory and Its Advice to Legal Writers
Stephen E. Smith*
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Whether we think of poetry as simply “literary work in metrical form,”1 “a sort of fervid and exquisite invention, with fervid expression, in speech or writing, of that which the mind has invented,”2 or, somewhat more opaquely, “[t]he self-organized criticality of the cry,”3 we are unlikely to associate it with the work of the legal writer. When poetic form appears in obvious ways in a piece of legal writing, it is without question a curiosity and, perhaps, an object of ridicule.4 A brief should rarely, if ever, be a poem.
A brief is, however, a piece of writing.5 As such, it may have the power and even responsibility to offer the reader some sort of aesthetic pleasure:
[T]he method of prose and verse does not differ; rather, the principles of art remain the same, whether in a composition bound by the laws of meter or in one independent of those laws . . . . In both prose and verse see that diction is controlled in such a way that words do not enter as dry things, but let their meaning confer a juicy savor upon them.6
Although examples from poetry itself may provide little assistance to the legal writer trying to improve a brief’s persuasive effect, this passage from Geoffrey of Vinsauf demonstrates how the rich history of literary criticism provides both justifications for the pursuit of aesthetic pleasure, and suggestions for how to provide it. The poem’s aim of producing aesthetic pleasure may provide an avenue to persuasion that the legal writer should consider in drafting her own persuasive pieces.
This article will address the possibility and necessity of aesthetic pleasure as a part of persuasive endeavors. It will do so through a review of early literary theorists’ statements about what poetry does artistically, and how it does it. It will seek insight from these theorists by extracting from their writings those precepts that seem most useful to the legal writer. This is a selective and non-comprehensive review of the work of a variety of early theorists. It would be impossible to extract from each writer every “helpful hint” he might provide. Moreover, in assembling a variety of suggestions and commands from writers over the centuries, this article does not presume to be mining new concepts in writing practice. The ideas are not necessarily unfamiliar ones, but come from early, perhaps original sources. The article also attempts to go from these past exhortations to some sort of present-day pertinence. How can the advice be employed in a legal writer’s practice? While the aphorisms of early theorists are invaluable, situating them in practical context may be helpful.
Who are the theorists who provide their advice to legal writers? Those who address the ways of persuading, engaging, and pleasing readers. This article is interested primarily in authors who have provided poetry criticism, from Horace in the period immediately preceding the Common Era, to Ezra Pound in the early 20th Century. It focuses on writers from the Medieval period and before, because the issues these writers engage seem most pertinent to the project of legal writing. The article relies, perhaps disproportionately, on Longinus, whose On the Sublime should be required reading for any writer, if only for the enthusiasm he brings to the process of writing analysis.
It is impossible to talk about stylistic issues, however, without resort to Aristotle’s Rhetoric, and it is easier to discuss aesthetic theory by including David Hume and Immanuel Kant. Accordingly, critics addressing issues other than poetry are included, if not emphasized. This betrays the article’s practical bent—it seeks advice for legal writers, not purity of conceit.
While this article does contain occasional references to poetry criticism from the Modernist era,7 it does not engage more contemporary criticism, for the simple reason that the issues addressed in contemporary poetry criticism do not seem especially useful to writing in the legal context.8
I. Persuasion by Providing Pleasure
As every teacher of persuasion and rhetoric knows, Aristotle’s modes of persuasion are the standard model for describing an advocate’s arsenal.9 Persuasion, according to Aristotle, is accomplished through logos, pathos, and ethos.10 In teaching advocacy to law students, we invoke these categories to help explain what is at stake in a particular section of a brief—perhaps pathos evoked through effective narrative, or logos as rule-based argument. Ethos, too, comes up regularly. Students must attend to form, to grammar, and to usage, because of how their work will reflect on them—how will they be perceived by the reader of their work?
Aristotle also considers, primarily in Book III of Rhetoric, stylistic issues.11 Aristotle indicates that beyond the basic means of producing persuasion, attention must also be paid to “the style, or language, to be used,” and “the proper arrangement of the various parts of the speech.”12 So it is insufficient to speak solely of logos, pathos, and ethos; the “matter of the right management of the voice”13 must also be considered by the would-be persuader.
While often (and appropriately) characterized as issues of “rhetorical style,”14 questions of style, usage and the elements of good writing also implicate aesthetic concerns. Pre-modern literary criticism has taken up many of the issues initially raised by Aristotle (in both Rhetoric and Poetics) and added both differing bases for their value, and continued explorations of the “best practices” of aesthetic accomplishment.
Rhetoric’s “function is not simply to succeed in persuading, but rather to discover the means of coming as near such success as the circumstances of each particular case allow.”15 Book III teaches style as one of those means. It does not, however, explain the mechanism by which stylistic tools accomplish persuasion. By the Rhetoric’s own terms, style appears to be important for its emotional effect: “an emotional speaker always makes his audience feel with him, even when there is nothing in his arguments; which is why many speakers try to overwhelm their audience by mere noise.”16
Aristotle earlier explains why emotional effect is important to the orator. He hopes his audience will
be in just the right frame of mind . . . . When people are feeling friendly and placable, they think one sort of thing; when they are feeling angry or hostile, they think either something totally different or the same thing with a different intensity: when they feel friendly to the man who comes before them for judgment, they regard him as having done little wrong, if any; when they feel hostile, they take the opposite view.17
He also suggests there is a cognitive, logos-related if not logos-based, element to stylistic choices. Praising the use of metaphor and simile, Aristotle suggests that they help listeners “seize a new idea promptly.”18 Here, however, there is still a lack of clarity. Discussing the figures of metaphor and simile, he also writes that they can help make “the significance of contrasted ideas . . . easily felt”;19 in other words, they provide something more than pure reason— they provide some spark of engagement, perhaps originating in the emotions.
Early literary critics do not resolve the question of what sort of effect on readers is produced by the proper use of stylistic or aesthetic tools. Longinus, in his seminal work On the Sublime, does not commit to which human faculty is affected by a work of art, but seems to locate it as an emotional tool. He writes that the use of visual imagery in writing “seek[s] to work on the emotions.”20 “[A]n image lures us away from an argument: judgment is paralysed, matters of fact disappear from view, eclipsed by the superior blaze.”21 He also seems, however, to speak of something almost spiritual, noting that images do “not merely convince the hearer, but enthrall[] him.”22
This is also noted elsewhere in his work. “A lofty passage does not convince the reason of reader, but takes him out of himself. . . . [A] sublime thought, if happily timed, illuminates an entire subject with the vividness of a lightning-flash, and exhibits the whole power of the orator in a moment of time.”23 Again, this suggests some sort of effect upon a spiritual (or otherwise unnamable) faculty—in any event, not strictly based in reason or emotion.
Quintilian suggests an almost “Trojan Horse”-like effect provided by the use of stylistic devices: “For although it may seem that proof is infinitesimally affected by the figures employed, none the less those same figures lend credibility to our arguments and steal their way secretly into the minds of the judges.”24 Aesthetic devices, by this view, are a subliminal vehicle for delivering the conclusion we want the listener to reach.
Suggesting a logos-based responsiveness to aesthetic objects, Plotinus writes of art that “the stone thus brought under the artist’s hand to the beauty of form is beautiful not as stone—for so the crude block would be as pleasant—but in virtue of the Form or Idea introduced by the art.”25 And what is this art? A manifestation of the intellect at play, the source of even the beauty of the gods: “[W]hat makes them so? Intellect; and especially intellect operating within them (the divine sun and stars) to visibility.”26
Kant, millennia later, seems to locate aesthetic pleasure outside the realm of emotion or reason and in a category of its own—perhaps as Longinus did before. He contends that a judgment of taste evaluates “the character of the object only by holding it up to our feeling of pleasure and displeasure.”27 It is not “a cognitive judgment (whether theoretical or practical) and hence is neither based on concepts, nor directed to them as purposes.”28 He then explicitly excludes any emotional component from aesthetic pleasures—“[a]ny taste remains barbaric if its liking requires that charms and emotions be mingled in, let alone if it makes these the standard of its approval.”29 His notion of the pleasure derived from judgments of taste seems to exist in its own unique category.
Hedging his bets, Edmund Burke begins by locating the pleasures of taste in a variety of sources—sensory, imaginative, and reasoning.30 Ultimately, however, he casts his lot with aesthetic pleasure as a function of reason: “where disposition, where decorum, where congruity are concerned, in short wherever the best Taste differs from the worst, I am convinced that the understanding operates and nothing else.”31
Why is this important? The nature of aesthetic pleasure is not resolved by these writers, and perhaps need not be. But the attention paid by these authors in their efforts to locate the effects and benefits of style demonstrates that we ignore stylistic issues at our peril. If we dismiss aesthetics, we are leaving something out. Some aspect of persuasion—logos, pathos, or some other less stable category—is receiving short shrift.
Whether aesthetic pleasures arise from emotional responses, spring from the intellect’s response to aesthetic stimuli, or exist in a realm of their own, the weight of early literary theory supports the proposition that pleasure is a fundamental goal of writing. There does not appear to be any reason to distinguish between writing that has pleasure as its specific goal, or as an ancillary goal designed to support a more fundamental goal of persuasion.32
There is, unsurprisingly, unanimous agreement among critics that to bring a reader pleasure is the goal of poet and persuader alike. Horace, in Ars Poetica, writes that “[t]he man who combines pleasure with usefulness wins every suffrage, delighting the reader and also giving him advice; this is the book that earns money for the Sosii, goes overseas and gives your celebrated writer a long lease of fame.”33 Quintilian says the same regarding the orator, who is “not merely to instruct, but also to move and delight his audience; and to succeed in doing this he needs a strength, impetuosity and grace as well.”34
Writing, therefore, is not merely a tool for instruction, but succeeds, and gains admiration, if not adherence, through its art and artifice. “Every voice is united in applauding elegance, propriety, simplicity, spirit in writing; and in blaming fustian, affectation, coldness and a false brilliancy.”35 The persuader and the poet must both employ figures and other aesthetic strategies to accomplish their goals.
Gotthold Lessing’s concept of the goal of the poet seems an equally apt description of an advocate’s hopes in writing to a judge:
The poet does not want merely to be intelligible, nor is he content—as is the prose writer—with simply presenting his image clearly and concisely. He wants rather to make the ideas he awakens in us so vivid that at that moment we believe that we feel the real impressions which the objects of these ideas would produce on us.36
So if we accept that inducing aesthetic pleasure is a goal of legal writing, what do pre-modern critics have to offer us as advice to help achieve that goal? What follows is a selection of suggestions from authors dating from BCE (before the Common Era) to the 20th Century. These are not the entireties of every useful piece of information each author might provide a legal writer—that would be impossible. They are, however, suggestions that seem particularly significant to the legal writer.
II. The Elements of Good Writing
Through the ages, critics have tried to provide roadmaps to, or perhaps cookbooks for, good37 writing. They have been unwilling to simply throw up their hands, and leave good writing to the muses.38 Aristotle initiates the discussion, providing very specific stylistic advice. He encourages, among other things, “the proper use of connecting words,” “calling things by their own special names and not by vague general ones,” and “avoid[ing] ambiguities.”39 He also describes ways to add “impressiveness” to language. He advises orators to “[d]escribe a thing instead of naming it: do not say ‘circle’, but ‘that surface which extends equally from the middle in every way’.”40
Longinus offers a catalog of elements which can lead to poetic sublimity. Leaving aside his (and other classical writers’) interests in subject matter as a source of sublimity, he also enumerates stylistic elements he believes lead to the best writing. He requires “a certain artifice in the employment of figures [of speech and thought],” proper word choice, “the use of metaphors and other ornaments of diction,” and “majesty and elevation of structure.”41
There are a few categories in which the voices of many critics, over many centuries, have had much to say. By attending to these elements, writers should be able to increase the aesthetic appeal of their writing.42 The sections below discuss the use of imagery, word choice, figures of speech, variety, and tone.
A. Visual Imagery
Early on, Aristotle champions the use of visual imagery. He notes that “liveliness is got by . . . being graphic (i.e., making your hearers see things).”43 Aristotle’s specific recommendation is that orators present things “as in a state of activity.”44 Here, he refers (as he often does) to Homer, whose poetry he praises as representing “everything as moving and living; and activity is movement.”45
Longinus, too, emphasizes the use of imagery. “The dignity, grandeur, and energy of a style largely depend on a proper employment of images . . . by reason of the rapt and excited state of his feelings, [the speaker] imagines himself to see what he is talking about, and produces a similar illusion in his hearers.”46
Ezra Pound, an originator of literary Modernism, if not the originator, describes the power of imagery—“An ‘Image’ is that which presents an intellectual and emotional complex in an instant of time.”47 He, and the writers before him, identify a singular power in the vivid presentation of an idea or action.
To this day, it is standard advice to legal writers to use visual images. This advice is supported not only by intuitive appeal, but also by experimental evidence. A 1980 study by three Stanford psychologists concluded that “flashy, dramatic facts can flood the mind of the decision-maker, outweighing by their insistence alone the more pallid truths of the case.”48 The writers first reviewed existing literature, noting that “[w]ords and phrases that are concrete and evoke vivid imagery are better remembered than abstract, pallid words in practically all verbal learning experiments.”49 They then set forth their hypothesis: that vivid imagery is more memorable and therefore available to the hearer/reader, and as a result the material is used disproportionately by the hearer/reader in making judgments.50
Here is an example of the sort of “vividness adjustment” made in the study. The posited case was a trial on a drunk driving charge. The subjects were to determine whether the defendant had, indeed, been drunk. The pallid version of the driver’s condition before arrest described this scene: “On his way out the door, Sanders [the defendant] staggered against a serving table, knocking a bowl to the floor.”51 The vivid version, on the other hand, revealed that: “On his way out the door, Sanders staggered against a serving table, knocking a bowl of guacamole dip to the floor and splattering guacamole on the white shag carpet.”52
The study confirmed that “subjects disproportionately recalled the vivid arguments.”53 More important, they were not only easily recalled, but provided the “disproportionate impact on evaluative judgments” the authors hypothesized.54
This experiment confirms what literary theorists have long said. It also makes clear the connection between the literary and the legal. The same tools that provide the “liveliness” prescribed by Aristotle and the “raptness” sought by Longinus may also lead to a measurable effect on the decision made by a judge reviewing a brief.
Petitioners’ opening brief in Morse v. Frederick55 provides an example of vivid presentation. Morse is the notorious “Bong Hits 4 Jesus” case, in which a high school student claimed his speech rights were violated when he was suspended for displaying a banner containing those words at a civic event in Juneau, Alaska. The petitioners did not merely mention a vague “civic event,” however. In an effort to emphasize the importance of the event disrupted by the student’s banner, great detail is provided:
January 24, 2002 marked the first time in Olympic history that the Olympic Torch Relay visited Alaska. In preparation, a local task force of approximately two dozen local civic leaders planned for Juneau’s participation in the international event—a ten-mile relay through Juneau. Members of the city government, including the mayor’s office and the Juneau Department of Parks and Recreation, lent their support. Local businesses, as well as national sponsors of the torch relay, supported the event. The torch ceremony involved a week of community festivities. Upon its arrival in Juneau, the Olympic flame was welcomed by Tlingit Clan dancers, transported in a native canoe around Gastineau Channel, and carried through several miles of Juneau’s streets, including past the State Capitol and the Juneau-Douglas High School.56
This passage walks the reader through the labor-intensive efforts to organize the relay, notes the comprehensive scope of community involvement, and makes clear the momentousness of the occasion. It reads as though the Olympics themselves were taking place in Juneau. Providing this vivid description of the circumstances makes the student’s prank all the more disruptive and far-reaching—the entire city suffered for his acts. Perhaps unsurprisingly, the Supreme Court ruled in favor of the school district, and against the student. While no calculations can assess the effectiveness of vividness in this or other particular cases, the persuasive power of detailed description cannot easily be dismissed.
*© Stephen E. Smith 2009. Stephen Smith is a member of the Legal Analysis, Research & Writing faculty at Santa Clara University School of Law. Mr. Smith thanks Nicholas Dalton (Santa Clara Class of 2010) for research assistance. He also thanks his editors at the Journal for their many improvements to this article.
1 Random House Dictionary of the English Language 1024 (college ed., Random House 1968).
2 Giovanni Boccaccio, Boccaccio on Poetry 39 (Charles G. Osgood ed., 2d ed., The Liberal Arts Press 1956) (originally published 14th Century).
3 Andrew Joron, The Emergency, in Fathom 22 (Black Square Editions 2003).
4 See generally Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597 (2003).
5 And lawyers are, perhaps more than anything else, writers. Benjamin Opipari puts it nicely: “A big litigation firm like ours is filled with nothing but writers. One lawyer here, in fact, tells people that he is a writer when they ask his occupation . . . .” Benjamin Opipari, Beyond the Ivory Tower: From Global Lit(erature) to Global Lit(igation), http://chronicle.com/jobs/news/2008/ 06/2008061801c.htm (June 18, 2008). If writing is so integral a part of law practice, exploring its possibilities should be a part of every lawyer’s continuing education.
6 Geoffrey of Vinsauf, Poetria Nova 83 (Margaret F. Nims trans., Pontifical Inst. of Mediaeval Studies 1967) (originally published 1213). Others agree. Wordsworth, in his “Preface to Lyrical Ballads,” writes that poetry and prose: [b]oth speak by and to the same organs; the bodies in which both of them are clothed may be said to be of the same substance, their affections are kindred, and almost identical, not necessarily differing even in degree; Poetry sheds no tears ‘‘such as Angels weep,’’ but natural and human tears; she can boast of no celestial ichor that distinguishes her vital juices from those of prose; the same human blood circulates through the veins of them both. William Wordsworth, Preface to Lyrical Ballads, in 9 Anglistica 111, 120 (W.J.B. Owen ed., Rosenkilde and Bagger 1957) (originally published 1800). David Hume, too, contends that “every kind of composition, even the most poetical, is nothing but a chain of propositions and reasonings; not always, indeed, the justest and most exact, but still plausible and specious, however disguised by the colouring of the imagination.” David Hume, On the Standard of Taste, in Essays: Moral, Political, and Literary 226, 240 (Eugene F. Miller ed., Liberty Classics 1985) (originally published 1757).
7 Literary modernism is typically associated with the early 20th Century. J. A. Cuddon, The Penguin Dictionary of Literary Terms and Literary Theory 515 (4th ed., Penguin Books 1999).
8 See e.g. Artifice and Indeterminacy, An Anthology of New Poetics (Christopher Beach ed., U. of Ala. Press 1998).
9 See e.g. Michael R. Smith, Advanced Legal Writing, 22–24 (2002).
10 See Aristotle, Rhetoric, in Rhetoric and Poetics of Aristotle 19, 164 (W. Rhys Roberts & Ingram Bywater trans., Modern Library 1954) (originally published 4th Century BCE).
11 See id.
12 Id.
13 Id. at 165. In Rhetoric, Aristotle is advising as to the means of persuading by “the spoken word.” Id. at 24.
14 See e.g. Smith, supra n. 9, at 24.
15 Aristotle, supra n. 10, at 23.
16 Id. at 178.
17 Id. at 91.
18 Id. at 187.
19 Id. at 185 (emphasis added).
20 Longinus, On the Sublime 32 (H.L. Havell trans., Macmillan & Co. 1890) (originally published 3rd Century).
21 Id. at 36.
22 Id. at 35–36.
23 Id. at 2–3.
24 The passage continues: For just as in sword-play it is easy to see, parry, and ward off direct blows and simple and straight forward thrusts, while side-strokes and feints are less easy to observe and the task of the skilful swordsman is to give the impression that his design is quite other than it actually is, even so the oratory in which there is no guile fights by sheer weight and impetus alone; on the other hand, the fighter who feints and varies his assault is able to attack flank or back as he will, to lure his opponent’s weapons from their guard and to outwit him by a slight inclination of the body. Further, there is no more effective method of exciting the emotions than an apt use of figures. For if the expression of brow, eyes, and hands has a powerful effect in stirring the passions, how much more effective must be the aspect of our style itself when composed to produce the result at which we aim? Quintilian, The Institutio Oratoria vol. 3, 359 (H.E. Butler trans., William Heinemann 1921) (originally published 95).
25 Plotinus, The Six Enneads 422 (Stephen MacKenna trans., U. of Chi. 1953) (originally published 270).
26 Id. at 424. This accords with Aristotle’s statement in Poetics, that “to learn gives the liveliest pleasure, not only to philosophers but to men in general.” Aristotle, The Poetics, in Aristotle’s Theory of Poetry and Fine Art 15 (S.H. Butcher trans., 4th ed., Macmillan & Co. 1907) (originally published 335 BCE).
27 Immanuel Kant, Critique of Judgment 51 (Werner S. Pluhar trans., Hackett Publg. Co. 1987) (originally published 1790). See also id. at 79 (“There can be no objective rule of taste that determines by concepts what is beautiful. For any judgment from this source [i.e., taste] is aesthetic, i.e., the basis determining it is the subject’s feeling and not the concept of an object.”).
28 Id. at 51 (emphasis in original).
29 Id. at 69 (emphasis in original).
30 In Burke’s words, On the whole it appears to me, that what is called Taste, in its most general acceptation, is not a simple idea, but is partly made up of a perception of the primary pleasures of sense, of the secondary pleasures of imagination, and of the conclusions of the reasoning faculty, concerning the various relations of these, and concerning the human passions, manners and actions. Edmund Burke, A Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful 23 (J.T. Boulton ed., Columbia U. Press 1958) (originally published 1757).
31 Id. at 26.
32 Obviously, aesthetic pleasure is not the primary goal of persuasive writing. The arts of language cannot help having a small but real importance, whatever it is we have to expound to others: the way in which such a thing is said does affect its intelligibility. Not, however, so much importance as people think. All such arts are fanciful and meant to charm the hearer. Nobody uses fine language when teaching geometry. Aristotle, supra n. 10, at 165–66. However, if the goal of persuasion is to use whatever tools are available to reach a result, to the extent aesthetics provides such a tool, it should be utilized.
33 Horace, The Art of Poetry, in Classical Literary Criticism 107 (D.A. Russell & Michael Winterbottom eds., D.A. Russell trans., rev. ed., Oxford U. Press 2008) (originally published 18 BCE). Similar sentiments may be found in Samuel Johnson’s Preface to Shakespeare (“The end of writing is to instruct; the end of poetry is to instruct by pleasing.”), Samuel Johnson, Preface to Shakespeare, in The Yale Edition of the Works of Samuel Johnson vol. 7, 59, 67 (Arthur Sherbo ed., Yale U. Press 1968) (originally published 1765), and Wordsworth’s Preface to Lyrical Ballads (“The Poet writes under one restriction only, namely, the necessity of giving immediate pleasure to a human Being possessed of that information which may be expected from him, not as a lawyer, a physician, a mariner, an astronomer, or a natural philosopher, but as a Man.”), Wordsworth, supra n. 6, at 123.
34 Quintilian, The Institutio Oratoria vol. 4, 389 (H.E. Butler trans., William Heinemann 1921) (originally published 95).
35 Hume, supra n. 6, at 227.
36 Gotthold Ephraim Lessing, Laocoön: An Essay on the Limits of Painting and Poetry 85 (Edward Allen McCormick trans., Bobbs-Merrill Co. 1962) (originally published 1766).
37 The words “beautiful” or “sublime” might also be used. The differences between them (as discussed in Kant’s Critique of Judgment, supra n. 27, at 97–100) do not seem particularly pertinent here.
38 See Hugh of St. Victor, The Didascalicon 59 (Jacques Barzun et al. eds., Jerome Taylor trans., Columbia U. Press 1961) (originally published 12th Century) (“All sciences, indeed, were matters of use before they became matters of art. But when men subsequently considered that use can be transformed into art, and what was previously vague and subject to caprice can be brought into order by definite rules and precepts, they began, we are told, to reduce to art the habits which had arisen partly by chance, partly by nature . . . .”)
39 Aristotle, supra n. 10, at 174–75.
40 Id. at 176. This is an example of periphrasis. See Edward P.J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student 401 (4th ed., Oxford U. Press 1999).
41 Longinus, supra n. 20, at 13.
42 “Skill in technique is not helped by any inspiration, but only by reflection, industry, and practice.” G.W.F. Hegel, Aesthetics: Lectures on Fine Art vol. 1, 27 (T.M. Knox trans., Oxford U. Press 1975) (originally published 1902).
43 Aristotle, supra n. 10, at 190 (emphasis in original).
44 Id.
45 Id. at 191.
46 Longinus, supra n. 20, at 31–32.
47 Ezra Pound, A Few Don’ts by an Imagiste, in Modernism, an Anthology 95 (Lawrence Rainey ed., Blackwell Publg. 2005) (originally published 1912).
48 Robert M. Reyes, William C. Thompson & Gordon H. Bower, Judgmental Biases Resulting from Differing Availabilities of Arguments, 39 J. Personality & Soc. Psychol. 2, 11 (1980).
49 Id. at 3.
50 Id.
51 Id. at 4.
52 Id.
53 Id. at 5. The authors noted that “vivid information might be better recalled because it is better learned initially or forgotten less rapidly.” Id. at 8 n. 2.
54 Id. at 8.
55 Morse v. Frederick, 551 U.S. 393 (2007).
56 Br. for Petr. at 2–3, Morse v. Frederick, 551 U.S. 393 (2007) (citations omitted).