Gawker vs. Merrick Garland: The tightrope skill of steering your legal future

Posted on 03-25-2016 by
Tags: law students , Top Stories

“Today's gossip is tomorrow's news.”

This is Gawker’s proclamation. But beware: tomorrow is always a foggy concept, one with limited visibility. Gawker’s publication of the Hulk Hogan sex video – a whole lot of fog. Gawker failed to see “tomorrow” the $140 million privacy verdict that crushed their “today.” [1]

But “fog” doesn’t mean “walking blindly.” In his book, The Black Swan, Nassim Nicholas Taleb stresses the fog of narrow-minded predictions and the “numbing effect of magic numbers.” Seeing beyond the fog is futile; better, Taleb advises, to navigate it:

Put yourself in situations where favorable consequences are much larger than unfavorable ones. … I will never get to know the unknown, since, by definition, it is unknown. However, I can always guess how it might affect me, and I should base my decisions around that.

For Supreme Court nominee Merrick Garland, “favorable consequences” may have always been his endgame. As noted by Professor Josh Blackman, Garland “really doesn’t have any major opinions of jurisprudential note.” Is this an insight into Merrick’s future-think; i.e., has he been guessing, as Taleb advises, at the unknown and how it might affect him?  The implication, as Blackman points out, is that:

Garland ruled in such a restrained manner, lest it ever injure his chances of higher office.

Time Travel? A Better Alternative for Your Future

You can’t go “back to the future” to fix your legal path. Time travel won’t work. As described by Chuck Klosterman, time is like a train, with new tracks being laid, the train passing, and the rails being torn up immediately thereafter. In Eating the Dinosaur, Klosterman correctly notes:

The past disappears, the future is unimagined, and the present is ephemeral. [emphasis added]

Like Garland (and unlike Gawker), your best strategy is to position yourself now as an equalizer against your unimagined / unpredictable future. For the future of your legal career or business, John C. Maxwell’s “Law of Navigation” offers a tool for the present. Maxwell says that any trip depends on a pre-process “to give the trip the best chance of being a success.” Maxwell’s “Law of Navigation,” from his book, The 21 Irrefutable Laws of Leadership, involves:

  1. Drawing on past experience as a source of information;[2]
  2. Listening to what others have to say;
  3. Examining the conditions before making commitments; and
  4. Balancing faith and fact.

While somewhat broad (and a little simplistic), the list offers a framework for facing the future. If Gawker had drawn on past experiences before publishing the Hogan video, they might’ve hesitated. Probably not, considering their 1st Amendment arguments, but the fog clears a bit knowing Hogan’s possible reaction. A clue: Hogan once sued World Championship Wrestling for defamation and false light invasion of privacy.[3]

John Adams: Historic Advice for Your Future

When setting the course for your legal career/business, the greatest wisdom is knowing that you can’t see the future, that it’s highly unpredictable. The best course of action is to immerse yourself in situations that slant toward favorable consequences. This, it seems, was the strategy of Merrick Garland, though the favorable consequence (his nomination) may be tripped up by the unpredictable (Scalia’s untimely passing during an election year).

Some will argue that Garland, having tread the safe middle, doesn’t “deserve” a Supreme Court spot. But what is deserved and what is won are not necessarily synonymous. Garland, whether or not confirmed, is “deserving” because he stockpiled situations of favorable consequence. It echoes the advice of John Adams, who was fond of saying:

We cannot insure success, but we can deserve it.[4]


[1] Of course, an appeal may deliver Gawker a better tomorrow.

[2] However, drawing on past experience”can be hazardous. As Taleb notes: “Mistaking a naïve observation of the past as something definitive or representative of the future is the one and only cause of our inability to understand the Black Swan.” A “black swan” is an occurrence, deemed improbable, that delivers massive consequences.

[3] Judgment for defendant was affirmed in Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555 (Ga. Ct. App. 2005).

[4] Paraphrased from the play “Cato” by Joseph Addison. The actual line is: "We can't guarantee success, we can do something better, we can deserve it."

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