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.