www.vtbar.org
ious state and Supreme Court decisions,
Strauss shows that in concluding that separate could never be equal, “the Court in
Brown was taking one further step in a wellestablished progression.”
If David Strauss’s marvelous book doesn’t
convince Justice Scalia to accept rather than
abhor the idea of a living constitution, nothing will.
____________________
William Wargo, Esq., was the Winooski
City Attorney for ten years and the Vermont
Health Department’s Legal Counsel for almost twenty years. He is now an Adjunct Assistant Professor of Medicine at the University of Vermont and an Adjunct Professor at
Saint Michael’s College.
Top Dog
Po Bronson & Ashley Merryman, Top
Dog: The Science of Winning and Losing
Grand Central Publishing, 2014
240 pp., $29.99
Reviewed by Franklin L. Paulino, Esq.
Many clients and lawyers prefer to bring
their cases to court even though mediation
and collaborative law have become popular
alternatives to the use of trials as a means
of resolving disputes. Po Bronson and Ashley Merryman’s book, Top Dog: The Science
of Winning and Losing, supports this preference and compellingly argues that competitive environments, such as the courtroom, produce better results than less competitive contexts. Top Dog finds that people work harder when they compete and the
benefit of participation in a competitive environment outweighs the negative connotations associated with competition.
Submitting a dispute to a judge or jury for
resolution is inherently risky; despite that,
Top Dog supports a preference for competitive environments because the environment
itself, with its uncertain and stressful atmosphere, elevates performance. Top Dog
cites numerous psychological studies, which
show that the mere presence of another
person engaged in the same activity enhances the performance of all participants.
For example, professional indoor cyclists,
riding in each other’s presence, shaved an
THE VERMONT BAR JOURNAL • WINTER 2015
average of five seconds per mile off of their
solo times.
Bronson and Merryman go on to explain how various competitive environments
require differing responses from their participants. For example, Top Dog differentiates between environments that have a definitive ending—called finite competitions—
from those that do not—infinite competitions. In an infinite competition, such as the
ongoing nature of the workplace that has
no end, the goal is not to win but to get
ahead. To get ahead in the workplace, Top
Dog suggests that participants set the ego
aside, which will improve their ability to recover from the countless daily losses. An
infinite competition is a war comprised of
endless battles and the focus should be on
the next possible win.
Top Dog recognizes that while some people may benefit from participating in a finite competition, such as the first-year of
law school, others may not. Everyone has a
point of optimal functioning where the benefits gained from being in a competitive
environment are outweighed and performance actually suffers from excessive exposure to the stresses of competition. Top Dog
further differentiates participants between
what it calls elite versus average performers.
The difference between an elite and average performer is all mental, or the psychological construct of the participant’s stress
tolerance. In several studies, elite performers were found to acclimate to the stress of
performance and control their psychological responses more efficiently than average
performers, giving them a better chance
of achieving the intended physiological response. Despite having lifelong experience
and countless hours of practice, elite performing actors, musicians, ballroom dancers, and face surgeons were no less nervous
than the average performers in the same
fields.
The concepts discussed in Top Dog to
enhance performance can be used to improve performance in any competitive environment. Top Dog shows that the inherently competitive dynamic of the courtroom
process can be employed as a productive
tool in shifting the odds in one’s own favor
and getting better results. Top Dog shows
that, in addition to hard work, gaining the
competitive edge in litigation may be a matter of accepting and utilizing the emotional aspects of the competition by believing
in one’s ability to win and focusing on the
successful outcome itself, rather than the
chances of winning.
____________________
Franklin L. Paulino, Esq., is a litigation
associate at Bergeron, Paradis & Fitzpatrick. His practice focuses on family, criminal, and employment law matters.
Book Reviews
ment could discriminate against racial minorities whenever it wanted to; the Bill of
Rights would not apply to the states; states
could freely violate the principle of “one
person, one vote” in designing their legislatures; and many federal labor, environmental, and consumer protection laws would be
unconstitutional. Facing such a forceful argument, even Justice Scalia, probably today’s most prominent defender of originalism, would have to concede that hard-core
originalism cannot be defended rationally.
And, indeed, Strauss quotes Scalia as admitting “I’m an originalist—I’m not a nut.”
But is it enough to show that originalism
is deeply flawed? “You can’t beat somebody
with nobody,” Strauss posits, and he spends
the rest of his little book describing and defending the approach that he thinks is at the
heart of our living constitutional tradition:
“an approach derived from the common
law and based on precedent and tradition.”
In Chapter 2, Strauss describes the common law approach, an approach guided by
attitudes rather than algorithms. These attitudes are humility about the power of individual human reason and “courteous empiricism,” an inclination to ask “what has
worked in practice?” Adoption of such attitudes makes the common law approach
superior to originalism because such an approach is more workable, more justifiable,
and more candid. It is also what we actually
do, Strauss says.
Strauss illustrates t