CCR Symposium: Rhetoric, A Good Thing

First, a word about a word, rhetoric: please do not kid yourselves; persuasion is a core aspect of speech. So-called rhetoric of this, that, and other tells us little. Go to the core of the idea. What motivates it? Go to the core of an opposing idea. What motivates it? Continue that process. By so doing, one may, and I stress may, find that over time, a clearer picture of what is going on emerges. Orin and Nancy’s exchange highlights this point. Civil rights has a certain logic and power. So does free speech. As Nathaniel noted, one can nonetheless find aspects of each position that map to the other. Yet, let me be clear, rhetoric is not and cannot be about adopting a frame. That idea makes little sense. Framing reveals some, but it cannot by itself control thoughtful engagement. Put differently, the power of Danielle’s paper is that it challenges. It forces one to ask the questions that have arisen throughout the symposium. It presents a view of the world that for some is quite accurate, but for others seems unfounded. That is the beauty of the endeavor; it makes one think. For me, presenting a problem in a new light approaches Conrad’s description of writing which I believe fits what we should strive to do with scholarship:

My task which I am trying to achieve is, by the power of the written word, to make you hear, to make you feel — it is, before all, to make you see. That — and no more, and it is everything. If I succeed, you shall find there according to your deserts: encouragement, consolation, fear, charm — all you demand; and, perhaps, also that glimpse of truth for which you have forgotten to ask.

With that said, let me note what the paper and the symposium has made me consider. Is there a harm? Yes. Do we know exactly what it looks like? No, but we have a pretty good idea of what it is. Is the harm always the same? No. Do we have countervailing interests at stake? Yes. Do the two seemingly competing interests either over or under protect? Yes. Where does that leave us? With Danielle’s paper.

Danielle’s paper chooses to tackle possibly incommensurate ideals. Yet, that possibility demands that we see what can be done. As she notes:

The law’s reaction to claims against large actors for new types of harms typically goes through three distinct phases. First, it recognizes the new form of harm, but not the benefit that the new technology has occasioned. This drives the law to adapt existing theories of liability to reach that harm. Second, after the technology’s benefits become apparent, the law abruptly reverses course, seeing its earlier awards of liability as threats to technological progress and granting sweeping protection to the firms in the new industry. Finally, once the technology becomes better established, the law recognizes that not all liability awards threaten its survival. It then separates activities that are indispensable to the pursuit of the new industry from behavior that causes unnecessary harm to third parties.

It seems that we may be entering the third phase, and so Danielle is asking what balance would look like.

I will have a separate post about the details of the paper and the symposium ideas.

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1 Response

  1. A.J. Sutter says:

    This is a minor point, Deven, but what do you mean by “rhetoric is not and cannot be about adopting a frame”? What is a frame if not a rhetorical device? It’s usually a metaphor, or at least a source of concepts and analogies.

    E.g., your Conrad quote is a rhetorical appeal to the notion that direct sensory perception is the best source of truth (which is itself far from being universally true). Your next paragraph continues in this frame by assuming that there is an objective, common-sense reality to the harms and interests discussed in the forum, i.e. you treat them as if they are reified and directly perceivable in Conrad’s sense. I don’t disagree that clearly there’s something wrong going on in connection with the activities Danielle is writing about, but that’s more because I share certain moral or ethical values with her and you, rather than believing these harms and interests have a separate reality obvious to all. Were they so obvious, there wouldn’t be a need for this this forum.

    As the forum shows, when people look at things from a criminal law frame or an economic incentives frame or a self-help frame, they don’t see things seen by the people who look from a civil rights frame. The usefulness of being aware of frames in this context is that by consciously changing them we can consider issues from different perspectives, and maybe recognize harms and interests that we couldn’t see from our old one. The frame often constitutes (transitive verb) the harms and interests, the “core of the idea”; it doesn’t simply mask them, as you seem to suggest.

    Your Conradian approach might be construed as a “sui generis” frame, saying (i) let’s look at what’s happening without reference to other doctrines of law, and (ii) let’s craft remedies to deal with that. But when you actually implement this, no doubt there will be other frames, legal, moral and otherwise, helping you to characterize the harms and interests you’ve reified.