Author: David Fagundes


Two (more) cheers for rhetorical coolness

Dave’s awesome post from a few days ago, along with the ensuing discussion, got me thinking a bit more about the virtues of  humility in reasoning (the Kahan paper he cites calls this “aporia,” but for all I know that could really be Greek for “platypus” so I’ll just stick with good old English).  I’m a fan of the approach to discourse that Dave describes in the post, which I will refer to herein as rhetorical coolness (to contrast it with overheated rhetoric, and because it think it actually is cool, in the sense that Fonzie is cool).

By “rhetorical coolness,” I refer to a style of reasoning that entails respectful consideration of opposing arguments, evinces due humility about the inevitable limitations of one’s capacities to reason, and avoids the kind of hysterical tone that characterizes much public dialogue these days, especially cable news and the blogosphere.

It doesn’t seem to me particularly surprising that people should give carefully articulated reasons for their positions rather than engage in all-caps, red-faced, Nancy-Grace style ranting.  But then again, if you take a look at the viewership of cable news or the readership of blogs, it often seems like the hysterical style is what really moves people, so I may be in the minority on this.

Hence my encouragement at reading Dave’s citation to literature suggesting that while people may feel gratified by (and hence seek out) inflammatory information outlets that tend to confirm their preexisting positions, what tends to persuade people to change their minds is balanced, non-hysterical reasoning that evinces rhetorical humility as I’ve described it above.

I haven’t done the kind of empirical research that Dave Hoffman or Dan Kahan have on cultural cognition, but I still wanted to advance a pair of non-quantitative (but still empirical) reasons in praise of the cool style.  I articulate these reasons below the fold.  Fair warning:  in the ensuing discussion, no one will be compared to Hitler.

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The Pink’s Paradox: excessively long food lines as overly strong signals of quality

There is a great hot dog joint here in Los Angeles called Pink’s Famous Hot Dogs.  I love their delicious chili dogs.  I am a huge fan of the location’s classic L.A. style (parts of the best film ever made were filmed on the site, and there’s a probably false rumor that Orson Welles got obese because he was addicted to Pink’s chili dogs).  They’re located a quick drive from where I work.  And I never, ever go there.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many local eateries. Rather, at almost any time of day, the line to get a Pink’s chili (or any other) dog snakes through a few switchbacks, up La Brea, and back into their parking lot, frequently lasting a good hour.  At peak times, the line has been said to approach 1.5 or two hours (and here, I’m going on word of mouth because, as you’ll gather from this post so far, I’m deterred by the long line and haven’t actually experienced it).

Classic L&E would suggest that this isn’t a paradox at all, and that the line merely reveals the unusually strong preferences of the public for Pink’s chili dogs, meaning that they really are worth the interminable wait.  And while this is an empirical question, and while tastes are subjective and highly variable, I can’t buy that account.  I can understand waiting in line for hours, say, to obtain critical medical services, or in a bread line in Soviet Russia where the only alternative is starving.  I can even imagine waiting in line for a couple hours to get tickets for a once-in-a-lifetime chance to see your favorite performer appear live.  But for chili dogs?  No way.  Something more than simple preference satisfaction has to be going on.

So what explains the Pink’s paradox?  Why is it that demand for these chili dogs continues to grow, even as the experience costs and actual costs associated with its food increase at an even greater rate (and appear to swamp the benefits of eating even the tastiest chili dog)?  And what does this tell us about the rationality (or irrationality) of line-waiting generally?  I discuss possible conjectures responding to each of these questions below the fold.

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Everything Is Empirical

What is “empirical” legal scholarship?  I think most people in the contemporary legal academy would respond that “empirical” work refers to the formal statistical analysis of data about law.  Indeed, if you search the Googles for “empirical scholarship”,* you get all manner of links to workshops for learning how to analyze data about law using statistical methods as well as papers about and some criticism of this approach.  This august site’s very own subcategory for “Empirical Analysis of Law” includes posts only about statistical analysis of law.  And my quick, incomplete scan of the last CELS program yielded almost exclusively papers in this quantitative vein.

Something’s always struck me as a little strange about this use of “empirical.”  The weirdness has nothing to do with the merits of statistical analysis of data relating to law (which I generally find, despite my not being conversant with it, really interesting).  Rather, it’s a much narrower question about terminology, and in particular the tendency of the legal academy to refer only to statistical analysis of data as “empirical.”  The term “empirical”, outside the legal academy at least, is not limited to quantitative studies of data using statistics.  Rather, the term refers more broadly to reasoning that derives from observations about the world rather than from theoretical propositions (this roughly but inexactly tracks the distinction between inductive and deductive reasoning).

So while “empirical” work is undoubtedly empirical, so is (at least by the definition I’m using above) much legal scholarship that is not typically so described.  I say more about this anomaly, and why it matters, below the fold.

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South Park & a Necessity Theory of Fair Use’s Parody/Satire Distinction

As those of you who have seen my guest posts so far can likely surmise, I consider it particularly important to focus on crucially important social issues that affect all of us, deeply and profoundly.

And so you can imagine my delight when the perfect opportunity presented itself.  Just a couple weeks back, the U.S. District Court for the Western District of Wisconsin issued a decision in a copyright infringement matter pitting the creators of South Park against the owners of the copyright in the immortal viral video “What What (In the Butt)” (hereinafter, in the interest of both brevity and something like tact, “WWITB”).

The utter, fascinating bizarreness of WWITB itself strains my narrative capacities, so I’ll only suggest that you check out the three-minute video here, though probably not at work.  While this video was enjoying its fifteen seconds of internet fame in 2007-08, an episode of the TV show South Park featured a minute-long (and unauthorized) variation of WWITB in which the character Butters Scotch performed an animated simulacrum of the song and video.  The assignees of the rights in WWITB sued for infringement of their copyright in the work, and the district court granted the defendants’ motion to dismiss the complaint on the theory that their video was protected under the statutory affirmative fair use defense.

What makes Brownmark interesting is not that it was wrongly decided (quite the contrary–my sense is that it reached the right result).  Nor is the case interesting because it took an atypical approach to analyzing the fair use issue.  Rather, what’s interesting to me about Brownmark is that it’s very typical in its approach to fair use.  The district judge formally marched through all four statutory fair use factors (as section 107 requires), but the analysis was driven almost entirely by transformativeness (part of the first-factor analysis, which has become along with the fourth factor almost conclusive of fair use issues, as some really good recent empirical work has shown), and the analysis of transformativeness in turn was driven almost entirely by the judge’s conclusion that the South Park clip was a parody (rather than a satire) of WWITB.

I say more about why I think the approach to fair use epitomized by Brownmark is flawed, and suggest a different way to locate parody/satire within the fair use skein, below the fold.

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Adverse possession amid the foreclosure crisis

Apparently I can’t stop blogging about morality, which is kind of weird because it certainly doesn’t play much of a role in my personal life or even my writing.  Anyway, a student from a past property class recently passed along this really interesting article about Kenneth Robinson, a man who occupied a vacant house in a tony suburb of Dallas, apparently in an attempt to adversely possess it.  The contemporary twist is that the house—valued at about $300,000—was vacant because its owners had abandoned it, apparently when they found themselves upside down on their mortgage.  (They appear to still be the house’s title holders, since foreclosure has not yet taken place.)

I like this story for lots of reasons, including that it provides another modern data point about the continuing relevance of adverse possession.  Another reason is that it stresses that adverse possession “is not just a loophole, it’s the law.”  The article says that adverse possession is “as old as Texas” but even that understates the case—it’s actually one of the oldest property doctrines around, dating to Hammurabi’s Code.

But I like this story especially because it raises a new twist on the rationale for and merits of adverse possession doctrine.  News stories about adverse possession are almost invariably accompanied by cries of outrage by people who regard the doctrine as offensive to property rights.  In class, students also tend to regard the doctrine skeptically, though (to their credit) in a more measured and thoughtful way.

As this article (or at least the comments to it) illustrate, though, the ongoing housing crisis and related foreclosure epidemic have caused public reaction to adverse possession cases to become less angry and in some cases even positive.  I explore this phenomenon in more detail below the fold.

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Diving, soccer, and cultural differences about the morality of rulebreaking

The FIFA Women’s World Cup ended last weekend (disappointingly, for the US team, at least) and I was faced with the same experience that is familiar to Americans who like soccer whenever the sport blips across our national radar screen.  Friends and family alike who talked about the WWC with me invariably steered the conversation as soon as possible not in the direction of the last-gasp heroics of the teams involved, or the individual brilliance of many of the players, but instead to a moral outrage that apparently overshadowed any merit the WWC might otherwise have had for them:  diving.

Diving, or simulation, is the practice of inventing or exaggerating physical contact in order to draw a foul on the opposing team, or relatedly of inventing or exaggerating an injury in order to waste time and let the game clock wind down (e.g., Brazil in extra-time versus the US in the WWC quarterfinal before Wambach’s famous game-tying goal).  This practice is not exclusive to soccer (one sees variants of it, increasingly, in NBA basketball), but it is certainly most prevalent in soccer, especially among certain national soccer cultures.

What interests me about this reaction to diving is how pronounced it is among some sports fans, and how subdued it is in others.  Some soccer cultures regard simulation as the sporting equivalent of murder (morally reprehensible regardless of whether you’re caught doing it), while others regard it as the sporting equivalent of jaywalking (illegal, and not a good idea, but something you might do every so often if you think you can get away with it and it gains you some advantage).  I examine this puzzle in more detail, and pose some conjectures about resolving it, after the break.

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Two Stories About One Story About the Morality of Intellectual Property

The PROTECT IP Act (PIPA) is a currently pending Senate bill that seeks to reduce online piracy by shutting down domestic access to foreign ‘infringing’ websites (inverted commas because there’s much dispute about what ‘infringing’ means in the context of the Act).  Proponents of PIPA, primarily content industries and affiliated entities, claim that the Act is an essential bulwark against growing threats to piracy from rogue websites, especially foreign ones.  Opponents of PIPA, primarily internet-freedom advocacy groups and some industry players, such as Google, respond that the Act represents a threat to internet commerce, innovation, and free speech.

One of the staunchest foes of PIPA is Demand Progress, a political advocacy group that favors privacy and internet freedom.  Yesterday, the founder of Demand Progress, Aaron Swartz, was arrested and charged with an indictment in U.S. District Court for breaking into MIT’s computer network and illegally downloading information from the internet archive JSTOR.  These charges are no joke—they could carry a penalty of up to 35 years in prison and fines of up to $1 million.

What I found most interesting about the news reports about Swartz’ arrest was not the details of these reports (given that only a complaint has been filed, it’s a bit early to have a fully formed opinion on the strength of or motivation behind the federal government’s charges), but rather the strikingly different tenor of the news reports themselves.

This account from paints Swartz and the charges against him in a sinister light.  This account from, by contrast, portrays Swartz as a hero, and the charges against him as “bizarre”.  I say more about these two very different accounts of Aaron Swartz’ arrest, and what the difference between them means for the morality of and social norms surrounding intellectual property, below the fold.

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CCR Symposium: CCR and the Law of the Horse 2.0

For my last post in this symposium (which has, btw, been lots of fun—thanks to the organizers for including me and to Danielle Citron for writing such a provocative piece), I’m going a bit farther afield. In the late 1990s, just as the internet was beginning to explode, two major figures—Frank Easterbrook and Larry Lessig—wrote a pair of essays in which they disagreed about how law should react to and regulate cyberspace.

Easterbrook’s essay, “Cyberspace and the Law of the Horse”, came out in 1996, and as the title suggests, the judge took issue with the idea that cyberspace should be treated by lawyers and academics as a sui generis field. Easterbrook argued that regulating cyberspace with extant legal mechanisms was sufficient, and that there was no more need to offer “the law of the internet” course in law school than there was to offer “the law of the horse”.

Lessig’s 1998 response, “The Law of the Horse: What Cyberspace Might Teach”, unsurprisingly took a more sanguine view of the internet as a distinct subject for legal study. While Lessig did not call for an entirely separate and distinct body of regulations to govern cyberspace (as some scholars at the time did), he did argue that studying the internet could impart distinct lessons about separation of powers, transparency, and the tailoring of law that any other subject matter (e.g., horses) could not.

CCR engages the issue that was joined by Easterbrook and Lessig over a decade ago. It takes some familiar topics—civil rights, sex harassment—and re-situates them in cyberspace in order to cause us to understand them in a new way, though Citron’s calls for regulation leverage traditional legal frameworks. What does this I offer a few thoughts about how CCR fits into the Easterbrook/Lessig debate, and who appears to have won that debate over a decade later, below the fold.

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CCR Symposium: In Defense of Self-Defense

As several other symposium participants have pointed out, Danielle Citron’s proposal seeks to enhance some speech by suppressing other speech. A different approach to cyber sex harassment would be to combat the harassing conduct not with legal sanctions, but by enabling and encouraging counter-speech that exposes and criticizes both harassers and their behavior.

In CCR (at 104-06), Citron considers and dismisses the counter-speech approach. The problems that she identifies with this strategy are convincing, but her discussion fails to give full consideration to the various ways that counter-speech may be promising tool to counter cyber sex harassment. I articulate three such reasons below the fold.

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CCR Symposium: Two Stories About Law’s Expressive Value

For the most part, Danielle Citron’s work on cyber harassment has me convinced. Both of her essential points—that online harassment of women is a serious problem, and that it can and should be countered using extant categories of civil rights (and other bodies of) law—seem exactly right. Because I basically agree with Citron’s core thesis, I am going use my posts in this symposium to focus on several ancillary points that are raised by this important work.

This post examines Citron’s invocation of law’s expressive dimension. In a point introduced in Cyber Civil Rights and amplified in Law’s Expressive Value in Combating Cyber Gender Harassment, Citron argues that one of the values of situating cyber gender harassment within a civil rights agenda is that it will efface the perception that the harm inflicted by online harassment is trivial.

This optimistic vision of law’s power to shape social norms possesses intuitive appeal, but it tells only half the story about law’s expressive value. Below the fold, I discuss in more detail an alternative account of how law interacts with social norms that complicates (though does not necessarily contradict) Citron’s thesis.

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