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Always Remember The Federalist Critique Of The Bill Of Rights

Be careful with nonexclusive lists.

By Matthew W. Schmidt  
on

Way back in the 1700-whatevers, back when Hamilton took place, the Federalists famously opposed the Bill of Rights because they thought it was confusingly redundant. Their concern was that, since the Constitution already set forth that the federal government was one of limited, enumerated powers, to enumerate some of the rights allocated to the people would make people think that those were the only rights held by the people. As a matter of political prediction, this wasn’t too far off. But even more accurately, it was a very good model of how people read lists.

For whatever deep reason of human psychology, people always tend to treat specific lists as exclusive, even if intended and clearly presented as otherwise. People focus on the immediate items listed out over anything else. This is surprisingly applicable to the practice of law. For instance, in document demands, while “including but not limited to” constructions are common, I’ve always secretly suspected that many reviewers do nothing but work off of the list alone. Am I too cynical? Very possibly, but even if it’s only sometimes true, it’s worth factoring into how you draft document requests. Resist the urge to rely too much on “including but not limited to,” and instead spend a little extra time to list anything you care about at all in the enumerated items.

Beyond document requests, then, this principal applies to other things as well. Lists are big, exciting things. For instance, in a brief, lists take up a surprising amount of space and tend to draw the eye, especially lists with pleasingly odd numbers such as three or, if we are getting elaborate, five. But they tend to be so exciting that they draw away from the rest — if you make a more subtle point around the same page, it’s likely to not get as much attention.

The same applies in communicating at any time, be it with a judge, adversary, or colleague. Specific points always tend to get the attention, and crowd out more general points. If you carefully choose your specific point, this is an asset: you are intentionally drawing attention to the point you wish to, and doing so properly. But if you intended your specific points to be only examples, then you have backed yourself into a quagmire by your words, however well intended they may have been.

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

Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

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