Minehunters

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Why Walter Should Shave his Head and the Great Shave

March 24, 2015 Titivillus Logic Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata, Walter Sinnott-Armstrong

Finally, as a last argument in this course, is the one that bothers me most. And it comes from Lauren Brush. I think it must have bothered her too, because It’s not clear that she was ever happy with the formulation and kept changing it. But I’m going to give a very simplified version of it, and see if we can reconstruct it and determine whether it’s really sound. This is what Lauren said in my words, not hers, exactly. Walter wants to up the number of students who get the most out of this class. Now that’s true. I want to increase the number of students who get the most out of this class.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

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.·. (2) Walter should shave his hair on camera and make the video open to all students.

That’s the point of teaching. Therefore, Walter should shave his hair on camera and, make the video open to all students. No! My beautiful locks, no! That is what’s upsetting. But luckily, luckily [LAUGH] this argument’s not valid, now way. It’s possible for the premises to be true and the conclusion false. So, sorry Lauren I’m not convinced. Uh-oh, she can add another premise. She’s probably assuming this.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

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.·. (3) Walter should shave his hair on camera and make the video open to all students.

More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students. Okay, okay, I guess I gotta admit that too. I think people will get more outta the class if they see that, because part of what you get outta this class is you have some fun. At least I hope you’ve had fun, I have. Okay Lauren. But still, still it’s not valid. It’s not valid, and so I’m not going to shave my head yet, no way, no way. Uh-oh, the main reason it wasn’t valid was that the premises were about what I want, and the conclusion is about what I should do. But wait now maybe it is valid. Sure looks valid if we add one more suppressed premise. Walter should do what will accomplish, what he wants to do.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

(3) Walter should do what will accomplish what he wants.

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.·. (4) Walter should shave his hair on camera and make the video open to all students.

Oh my gosh, if what I want to accomplish is to get more students to get the most out of the class, if I should do what I want to do, then I should do what’s going to make the most students get the most out of the class. And if shaving my head is doing that, then it sure looks like I should shave my head on camera. And make it open to all the students. I feel like I’m in trouble now. What’s going to happen? Oh, wait! Wait! I got it. Even though it’s valid, premise three’s not true. That I should do what’s going to accomplish what I want? What if I want something like, I want to smoke. Well maybe I shouldn’t go to the store and get a pack of cigarettes, because even though I want to smoke, I still shouldn’t because it’s bad for me, because it’s going to hurt me.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

(3) Walter should do what will accomplish what he wants unless doing so has worse effects.

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.·. (4) Walter should shave his hair on camera and make the video open to all students.

So, it looks like you have to qualify that premise by saying that I should do, what will accomplish what I want to do, unless doing it has worse effects. Like in smoking when it might give me cancer and hurt me. So whew, now I’m safe. Now I don’t have to shave my head. Whew, that makes me feel better because you can’t get the conclusion that I should do it from those three premises, right? It’s not valid anymore. Uh-oh, uh-oh, all we need’s another premise.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

(3) Walter should do what will accomplish what he wants unless doing so has worse effects.

(4) Walter shaving his hair on camera and making the video open to all students will not have worse effects.

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.·. (5) Walter should shave his hair on camera and make the video open to all students.

Walter shaving his hair, his head, on camera and making the video open to all students will not have worse effects. Uh-oh! Because, shaving my head is not going to give me cancer, like smoking. Matter of fact, hair will grow back. It’s not. It might be embarrassing for a few days but only a few days. That’s not that bad compared to all those students out there in Courseraland. And, so I guess I have to admit that premise four is true. But wait a minute, if the argument is valid and premise four is true and premise three is true and premise two is true. Premise one is true. Now it’s looking good.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

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.·. (3) Walter shaving his hair on camera and making the video open to all students will accomplish what Walter wants.

(4) Walter should do what will accomplish what he wants unless doing so has worse effects.

(5) Walter shaving his hair on camera and making the video open to all students will not have worse effects.

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.·. (6) Walter should shave his hair on camera and make the video open to all students.

And we can even break it up to make it easier to understand. I want the number of students to increase that get the most out of the course. And more will get most out of the course if I shaved my head on camera and make that video available. So, shaving my hair on camera, making the video available would give me what I want. And I ought to do want I want if it doesn’t cause worse harm. This is not going to cause worse harm, so I ought to do it. Oh, my gosh! Now I’m worried because that means that, the conclusion’s true.

WHY WALTER SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush

(1) Walter wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Walter shaves his hair on camera and makes the video open to all students.

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.·. (3) Walter shaving his hair on camera and making the video open to all students will accomplish what Walter wants.

(4) Walter should do what will accomplish what he wants unless doing so has worse effects.

(5) Walter shaving his hair on camera and making the video open to all students will not have worse effects.

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.·. (6) Walter should shave his hair on camera and make the video open to all students!

If the argument is sound, it’s valid and the premises are true, then the conclusion’s sound. Or at least if I accept the premises and the conclusion follows validly then I’m committed to that conclusion. I’m committed to the fact that I should shave my hair on camera and distribute the video to all students, so you can all watch it. Lauren has convinced me of that.

WHY RAM SHOULD SHAVE HIS HEAD AND POST THE VIDEO FOR ALL STUDENTS

By Lauren Brush (and Walter!)

(1) Ram wants to up the number of students who “get the most out of this class.”

(2) More students will get the most out of this class if Ram shaves his beard on camera and makes the video open to all students.

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.·. (3) Ram shaving his beard on camera and making the video open to all students will accomplish what Walter wants.

(4) Ram should do what will accomplish what he wants unless doing so has worse effects.

(5) Ram shaving his beard on camera and making the video open to all students will not have worse effects.

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.·. (6) Ram should shave his beard on camera and make the video open to all students!

But, notice this argument applies to me, it also applies to Ram. So if I’ve gotta shave my head, Ram’s got to shave his beard. So, although I have to shave my head, at least I’m not alone. Guess we gotta both go do it.

I’m committed to the fact that I should shave my hair on camera, and distribute the video to all students so you can all watch it. Lauren has convinced me of that. But, notice this argument applies to me, it also applies to Ram. So if I gotta shave my head, Ram’s got to shave his beard. So, although I have to shave my head, at least I’m not alone. Guess we gotta both go do it. Okay, so I’m convinced that I should shave my head, but I’m just not going to do it, I don’t know if I can live without my beautiful locks. >> Yeah, I, I know exactly what you’re talking about. I mean, I’m equally convinced that I should shave my beard. But, it just doesn’t feel right somehow. >> I know there’s no way they’re going to force us. >> Yeah. >> No. >> I don’t think it’s going to happen. >> No. >> It’s just not going to happen. >> Yo, I’m going to make you do it. Dude, you need to recognize the power of reasoning and argument. >> Oh no, he got me! Thanks to all of our students we hope you learned a lot and had a lot of fun, we sure learned a lot from you. I remember learning about goats from a goat farmer in Afghanistan and, and AIDS from an AIDS activist in Africa and traffic flow from an Australian engineer, and wild dogs from a, a student from Eastern Europe.

We’ve also been inspired by a lotta students. One student had her house destroyed by a cyclone, and apologized for missing a deadline. An Iranian group of linguistics students, met together every weekend. So did a group in a cafe in San Francisco. We had visually challenged students from Eastern Europe. And one student with a chronic disease that had never been able to take a college course before. So, now sadly we have to say goodbye, but we hope that the lessons will stay with you. Our goal has been to teach you to first of all, ask whether you have good enough reasons for the positions that you hold and then to enable you to formulate those reasons better when you do have good reasons for your own beliefs. But also to pay attention to other people and appreciate and be fair to opponents who hold different positions. So please use these skills throughout the rest of your life. They will help you cooperate with other people and succeed in your own goals, whatever you want to accomplish. So now, there are only two things left to do. One is send all that hair to Locks of Love. And two, [LAUGH] now that it’s all gone, I might as well paint my entire head Duke Blue. [MUSIC] Oh, I don’t know, I’ve got my doubts now, but it did seem like a good idea at the time. Luckily I’m not going to be alone. Rob your turn. >> So, listen, um,you gotta make sure nobody, nobody knows about this. Okay. I do not want to be associated with that big Duke blue clown. Okay. So, nobody can know about this. >> Alright. >> Alright. You don’t tell anybody. [SOUND] >> Alright, alright, good man, good man. >> Okay. >> [SOUND] We are so grateful to all of you for taking the time out of your busy lives to take our course and help us make it even better for future generations of students. Thank you to the graphic designer from Mexico who secretly wants to go study philosophy. Thank you to the retired social worker from Darwin, Australia who is studying to become a workplace meditation consultant. Thank you to the recent college graduate from the Philippines who stuck with our course even when the massive typhoon tragically devastated her country. Thank you to the polite gentleman from Huntsville, Alabama who had to stand up to the criticism of his peers in order to take our course. Thank you to the young man from Rio de Janeiro who did the problem sets in the middle of Carnival. Thank you to the barber from Cairo who would complete the quizzes whenever he had a break between clients. Thank you to the taxi driver from Bangalore who would contribute to the discussion forums using voice recognition software while driving. Thank you to the hypnotist who found time to complete our course while also getting all of his clients to do so, as well. And thank you to the anaesthesiologist who would read our lecture transcripts out loud while at work It is because of all of you that our work was worthwhile. >> Bye >> Bye guys. Thanks for doing such a great job. Bye.

Attacking a Straw Man

March 23, 2015 Titivillus Logic Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata, Straw Man

One problem that can arise when you try to refute an argument is that you end up attacking a straw man. Now, what does that mean? What is attacking a straw man? Let me start off by giving a definition and then giving some examples.

What is it to attack a straw man?

You attack a straw man when you misunderstood the argument or hypothesis that you are attempting to refute.

So, to attack a straw man, is to misunderstand the argument or the hypothesis that you’re attempting to refute. Right, you might try to refute an argument or show that a particular hypothesis is false. But if in the course of doing that you end up misunderstanding the argument of the hypothesis, then we say you’re attacking a straw man. Here are some examples of that phenomenon.

Example 1

Walter: The United States should not have sent in troops to depose the government of Saddam Hussein.

Ram: Oh, so you must think that the suffering that Saddam Hussein imposed upon his citizens does not matter?!

So imagine Walter and I are having a conversation and Walter claims the United States should not have sent in troops back in 2003 to depose the government of Saddam Hussein and Iraq I hear Walter say this and I respond by saying, oh, so Walter you must think that the suffering that Saddam Hussein imposed upon his citizens just doesn’t count for anything. Okay, now clearly, I’m trying to criticize what Walter’s saying but my criticism misunderstands what he’s saying. Walter didn’t say that the suffering that Saddam Hussein imposed upon his citizens doesn’t count for anything. Walter just said, the United States should not have sent in ground troops in 2003 to depose the government of Saddam Hussein. Now, why does Walter think that? There could be a number of reasons why Walter thinks that. But his having reasons for thinking that is consistent with Walter’s also thinking that the suffering that Saddam Hussein imposed upon his own citizens matters a lot. But maybe there would have been more effective ways to address that suffering without sending in ground troops to depose his government. So, until I understand better how Walter is defending his view that the United States should not have sent in troops to depose the government of Saddam Hussein, I’m attacking a straw man when I say oh so you must think that the suffering that he imposed upon the citizens doesn’t count for anything. So there’s one example of attacking a straw man. Here’s another example.

Example 2

Ram: We should distribute condoms to teenagers around the world, in order to prevent unwanted pregnancies and all the tragic costs that result from them.

Walter: Oh, so you must want to encourage teenagers to have as much sex as possible?!

Suppose once again Walter and I are having a conversation and I say we should distribute condoms to teenagers around the world in order to prevent unwanted pregnancies and all the tragic costs that result from unwanted pregnancies. And Walter says oh so you must want to encourage teenagers over the world to have as much sex as possible. Now there Walter’s attacking the straw man. Until he understands what my reasons are for thinking that we should distribute condoms to teenagers around the world, and until he can evaluate the benefits that I see to that policy against the possible costs of possibly making it easier for some teenagers to have sex, he can’t simply assume that I want to encourage teenagers to have as much sex as possible. Maybe I don’t want that. Maybe I don’t want to encourage teenagers to have as much sex as possible, but I still think that it’s a good idea to distribute condoms to teenagers around the world in order to prevent unwanted pregnancies. So, here’s an example where Walter is attacking the straw man. Okay, now, in the video clip that follows, you’re going to see David Mitchell, who’s a British comedian, attacking another straw man. Let’s take a listen >> Have you noticed its no longer good enough to try and live in such a way that pleases you and doesn’t outrage others. No, as if this was too easy a goal and we needed a refinement on the human condition to make a sufficient challenge of it, we’re now suppose to live in the moment. It’s not enough to work towards being happy later. You have to be happy now. Right now. No, now. Not then, not soon, now. Well that’s unfair of me. I realize most of the living in the moment-eers are not saying that’s the only way of being happy that counts. Although, asterisk, some of them definitely are saying exactly that. They’re recommending this as a way to become happy. Are they mad? Apart from the obvious paradox that anytime I’m checking to see if I’m living in the moment or not, I cease to live in the moment, or rather the moment I’m living in becomes the moment of checking, the range of pleasures available to people living in the moment is both small and well, best deal. Unless you’re in the middle of something delicious, intoxicating, caramel or whatever the posh word for sneezing is, you’re stuck. And out of those, the only one that requires no on in the moment planning or forethought whatsoever is sneezing. A nice though a good sneeze is after three they get annoying. And what’s more, I don’t think its as easy as all that to tell whether or not your enjoying a moment in that moment. I remember watching the film Mulholland Drive and believing that I was enjoying myself as I anticipated the dramatic ending that would cleverly resolve and make sense of this intriguing mystery. But there wasn’t one, it just sort of stopped. And once I realized that I had no choice but to retrospectively downgrade what I had thought had been my enjoyment in the moment. My enjoyment was predicated on a demanding to something it was an IOU to be redeemed at the point of pleasurable revelation by which I don’t mean the lesbian sex scene and as there was none, the IOU was never redeemed. Therefore, I haven’t enjoyed myself where this is really starkly obvious of course is sport. Of the three big matches Andy Murray played this year, the one I enjoyed most at the time, by country mile, was his last Olympic game where he went into the lead early and stayed there until he won. The one I think I enjoyed most now is the US open. Where it was touch and go for hours, and then he won. Much more exciting, which is why I value it now, and hated it at the time. Because at the time, I had no way of knowing that the moment I was reluctantly suffering through wasn’t a moment on a long and exhausting journey towards defeat. Like the Wimbledon final, which neither in the moment me nor looking back me enjoyed at all. At the time, when watching any sporting contest in which I’m partisan, I don’t have the faintest idea if I’m enjoying myself. My dominant emotion is I really hope my team wins, so it will turn out later I’m enjoying myself now. That’s the problem with living in the moment. We’re too intelligent a species to be able to avoid living in some sort of narrative, and that involves not knowing how we feel in the moment until we have context for it. Too short-term a focus, and we’ve nothing to enjoy but sneezing. Too long term a context, and it’s all a plan to enjoy something we never get to. And anyway, we’ll all be dead within 100 years. We have no choice but to find some sort of medium term over which to give a shit, or nothing is anything. And once you’ve granted that, then all the delayed gratifications are variations on a theme. And the theme is, chores now for jam tomorrow. Whether it’s, I want to build a cathedral, or I fancy a sandwich. You’re stuck in the middle with me. >>

Now in the clip we just saw, David Mitchell gives two arguments against the advice to live in the moment. Now what are those two arguments? Well, here’s one of them. It goes like this.

First Argument (Straw Man)

(1) Living in the Moment involves a very restricted set of pleasures.

(2) A good life involves many pleasures outside that restricted range.

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(3) Therefore, a good life does not involve living in the moment.

Premise one: living in the moment involves a very restricted set of pleasures. Mitchell describes them as vesture. Premise two, a good life involves many pleasures outside that restricted range. And so conclusion a good life does not involve living in the moment. Okay. Now I hope it’ll be clear once we set the argument out like that that this argument is not valid, this argument is not compelling at all Just because living in the moment involves a very restricted set of pleasures, and let’s suppose for the moment that it does, and the good life involves many pleasures outside that restricted range, and let’s grant that it does, it doesn’t follow that a good life does not involve living in the moment. For all that we get from premise one and two. For all that those two premises tell us it could be that good life involves living in the moment and a whole lot of other things as well, and a whole lot of other pleasures as well besides, living in the moment. So, this is an example of an argument that is not valid. But given how obvious the invalidity is, why does Mitchell think that this argument is worthwhile levelling against the proponent of living in the moment? He thinks it is worthwhile levelling against that proponent. Because he thinks that proponent is someone who says that a good life just involves the pleasures of living in the moment. But, that’s a misunderstanding of what the proponent of living in the moment is saying. The proponent of living in the moment isn’t saying that life doesn’t involve any pleasures whatsoever over and above living in the moment. The proponent of living in the moment is simply saying that in addition to whatever other pleasures life involves, we need to remember the pleasures of living in the moment. Okay, that’s one argument that Mitchell uses against the proponent of living in the moment, and that argument is guilty of attacking a straw man. Here’s the other argument Mitchell uses against the proponent of living in the moment. It goes like this.

Second Argument (straw man)

(1) Living in the moment is ascertainable only after that moment.

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(2) Therefore, living in the moment is impossible.

Premise, living in the moment is ascertainable only after that moment as Mitchell says: you can only check whether you are living in the moment if that moment that you’re living in becomes one of checking. Conclusion, therefore living in the moment is impossible. This is the paradox that Mitchell describes early in the clip. Now, how does it follow from the premise, living in the moment is ascertainable only after that moment? That living in the moment is impossible? How is this argument supposed to be a good one? Well, Mitchell’s idea is if you’re ascertaining whether you’re living in the moment then the moment that you’re living in becomes one of checking. And since checking isn’t itself self pleasurable, you can’t live in the moment. But, that doesn’t follow because it leaves it open into the proponent of living in the moment to say that you can only live in the moment when you’re not checking whether or not you’re living in the moment. The happiness that you can enjoy when you’re living in the moment is not a happiness that you can enjoy while you’re checking to see that you’re having that happiness. It’s a happiness that you can enjoy only when you’re not preoccupied with checking to see that you have it. So, once again we have an invalid argument, and the invalid argument is badly directed against the proponent of living in the moment. Mitchell assumes that the proponent of living in the moment is affected by this argument because the proponent of living in the moment must think that living in the moment somehow requires knowing that you’re living in that moment. And knowing that you’re living in that moment somehow requires checking that you’re living in that moment. But the proponent of living in the moment need require no such thing. The proponent of living in the moment might advise us to live in the moment without advising us to check whether we’re living in that moment. Without advising us to think about whether we’re living in that moment, but simply to live in that moment. And Mitchell’s argument doesn’t affect the view that we should live in the moment so long as that view isn’t understood to be the view that we should check to see whether we’re living in the moment. Okay. So, those are two examples of straw man arguments that occur in the clip that we just saw. Both of them arguments directed against the proponent of living in the moment, but both of them attack a straw man. In the exercises that follow we’ll see some more examples of arguments that may or may not be attacking the straw man.

False Dichotomy

March 23, 2015March 23, 2015 Titivillus Logic False Dichotomy, Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata

Today we’re going to talk about false dichotomies.

What is a false dichotomy?

An argument relies upon a false dichotomy when it falsely assumes that there are only two possible situations.

A false dichotomy is something that can go wrong with an argument, but it can go wrong either with an argument that we’re trying to refute, and so we can refute that argument by showing that it depends on a false dichotomy, but it can also go wrong with the argument that we’re giving by way of refutation, in other words, our attempted refutation of an argument can go wrong because it relies on a false dichotomy. So, what’s a false dichotomy and why is it a bad thing? Let’s talk about that now. A false dichotomy is when, an argument relies upon a false dichotomy when that argument falsely assumes that there are only two possibilities, when in fact, there are more than two possibilities. ‘Kay? This is a common problem with arguments. It’s a common problem with arguments that we try to refute and it’s also a common problem with arguments that try to refute them. Let’s look at some examples.

Example 1

Either other nations are with us, or they are against us, in our war against terrorism.

Switzerland is not with us.

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Switzerland is against us.

So consider the following argument. You can imagine someone from, let’s say, a powerful western nation giving the following argument in the course of determining which alliances to foster and which international relations to cut-off. Either other nations are with us or they’re against us in our war against terrorism. That’s premise one. Premise two, Switzerland is not with us. In conclusion, Switzerland is against us. And then, from this conclusion, you can imagine that the proponent of this argument would draw various further conclusions like the diplomatic relations with Switzerland should be cut off, the trade relations with Switzerland should be cut off and so forth. Maybe we should have an embargo on Swiss goods. So, the problem with this argument is that: even if premise two of the argument is true and, actually, even if premise three of the argument is true, premise one of the arguments is a false dichotomy, or at least may very well may be a false dichotomy. Isn’t it possible that a nation might simply be neutral, with respect to a particular conflict that our nation has with some other force, right? Couldn’t a nation simply be neutral with respect to that conflict? Why must they choose between being with us and being against us? Why couldn’t they just remain neutral? So this argument relies on a false dichotomy and we can refute the argument by showing that it relies on a false dichotomy. Here’s another example of an argument that relies on a false dichotomy. So imagine someone argues as follows.

Example 2

Either the government must listen in to our phone calls, or else they will be collecting our body parts after another terrorist attack.

Better to listen in our phone calls than to collect our body parts.

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The government must listen in to our phone calls.

Premise one, either the government must listen in to our phone calls or else, they will be collecting our body parts after another terrorist attack. Premise two, better to listen in to our phone calls than to collect our body parts, right, rather lose our privacy than lose our lives. Conclusion, the government must listen in to our phone calls. Now again, let’s suppose that premise two is true. In fact, we can even suppose that the conclusion is true. But even if the conclusion is true, this argument does not successfully show that the conclusion is true. And the reason it doesn’t successfully show that the conclusion is true is that premise one, again, is a false dichotomy. Premise one assumes that there are only two possible situations, either the government is listening in to our phone calls or there’s going to be another terrorist attack and the government will have to collect our body parts. But why are those two the only possible situations? Is there absolutely no other way of preventing another terrorist attack or, in any case, reducing the likelihood of another terrorist attack without listening in to our phone calls? Until someone can establish that there is no other possible way of doing that, we can suspect that premise one of this argument is a false dichotomy, and so the argument is unsuccessful. The argument doesn’t show that its conclusion is true even if its conclusion is true. So those are two examples of arguments that rely on a false dichotomy. Now, I’d like you to look at the following video clip, in which you’ll hear three arguments given.

First Argument (Appeal to Popular Opinion)

The whole world puts on a sock and a sock and a show and a shoe.

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You ought to put on a sock and a sock and a shoe and a shoe.

(Rebuttal: this argument is a fallacy)

Now, the first of the three arguments is an appeal to popular opinion, but then, I think you’ll see some examples of false dichotomy. Okay, we’ll talk about it right after the video clip is over. >> You know that we don’t catch that fishing boat, there ain’t going to be no deep sea fishing. We’ll have to stay in a dock that the old people are. Hold it. Hold it. Hold it. What are you doing here? >> What? >> What about the other foot? >> [LAUGH] >> There ain’t no sock on it. >> I’ll get to it. >> [LAUGH] >> Don’t you know that the whole world puts on a sock and a sock and a shoe and a shoe? >> [LAUGH] >> I like to take care of one foot at a time. >> [LAUGH] >> That’s the dumbest thing I ever heard in my life. >> [LAUGH] >> It’s just as quick my way. >> Wait a minute. That ain’t the point. You see what I’m doing. Don’t keep doing it. Listen to me. >> [LAUGH] >> Suppose there’s a fire in the house and you gotta run for your life. Your way, all you got on is one shoe and a sock. My way, you got on a sock and a sock. You see, you’re even. >> [LAUGH] >> Suppose it’s raining or snowing outside. >> [COUGH] >> Your way, with a sock on each foot, my feet would get wet. My way, with a sock and a shoe on one foot, I can hop around and stay dry. >> [SOUND] >> I think you’ve been hopping around on your head. >> [LAUGH] >> Wait a, wait a, listen to me. >> [LAUGH] >> Supposing the other sock’s got a hole in it. >> It doesn’t have a hole in it. >> I said supposing it’s got a hole in it. >> Alright. Suppose it has a hole. >> Alright. It’s got a hole in it. So you ain’t got another matching pair. So, what are you going to do? Your way, you’re going to take off a whole shoe and a sock. My way, all you gotta do is take off one sock. >> [LAUGH] >> All right, if it’ll make you happy, I’ll start all over again. >> No, no, no. >> [LAUGH] >> You’re half way through. Now, jeez, get on with it. We’re in a hurry. >> [LAUGH] >> You can start doing it the right way tomorrow morning. And do it that way for the rest of your life. >> [SOUND] >> All the Americans are going to recognize that video clip as from a TV show called All in the Family which aired in the 1970s in the United States. The older character with white hair is named Archie and the younger character with brown hair and a moustache is named Michael. Now in that clip, Archie gives Michael three arguments for the conclusion that Michael ought to put on a sock and a sock and a shoe and a shoe, in contrast to the way Michael’s actually doing it, which is to put on a sock and a shoe and a sock and shoe. Now the first of those three arguments is just an appeal to popular opinion and goes like this. Premise, the whole world puts on a sock and a sock and a shoe and a shoe. Conclusion, Archie doesn’t spell out this conclusion, but clearly, it’s the conclusion that he wants Michael to draw, you, Michael ought to put on a sock and a sock and a shoe and shoe. Since, after all, that’s how the whole world does it. Now, that’s an appeal to popular opinion and, clearly, it’s fallacious. Just because the whole world does it, doesn’t provide a reason for you to do it. Of course, if there’s a good reason to why the whole world does it that way, then whatever that good reason is, that might also be a good reason for you to do it that way. But, the fact that the whole world does it that way, by itself, that’s not a good reason for you to do it that way. There might be evidence that there is a good reason, but, by itself, it’s not a good reason. And so Michael says, I like to take care of one foot at a time, perfectly good rebuttal to that argument. Now that’s an appeal to popular opinion and it’s a fallacy of relevance and those we discussed last week. But the next two arguments are interesting examples of false dichotomy arguments. Let’s consider each one of them. So, in the next argument, Archie says the following.

Second Argument (false dichotomy)

(1) If you have to rush out of the house halfway through putting on your footwear, either your feet will each have a sock, or one foot will have a sock and a shoe.

(2) Better for your feet to be even than not to be even.

————————————————————

(3) Better to put on both your socks first.

Premise one, if you have to rush out of the house halfway through putting on your footwear, well, either your feet will each have a sock on them or one foot will have a sock and shoe on it and the other foot will have nothing on it. ‘Kay? Premise two, better for your feet to be even than to not be even. Let’s suppose that’s true and so, conclusion, better to put on both your socks first. This argument is a fallacy. And it’s a fallacy even if premise two is true I don’t know if premise two is true, but even if premise two is true and even if the conclusion is true, the argument is still a fallacy. And it’s a fallacy because premise one and premise two, together, don’t support the conclusion. See, premise one says, if you’re under certain circumstances, namely, you have to rush out of the house halfway through putting on your footwear, then, either your feet will each have sock or one foot will have a sock and a shoe and the other will have nothing. Okay, that’s right, and maybe it is true that it’s better for your feet to be even than not. That doesn’t mean that it’s better, all things considered, to put on both your socks first, because, what if you don’t have to rush out of the house halfway through putting on your footwear? I mean, Archie considers the case in which you do have to rush out of the house halfway through putting on your footwear, but first of all, that situation is one that’s extremely unlikely to be the case. And secondly, he pays no attention to what would happen, what the consequences would be, of the different courses of action when that situation isn’t the case, in other words, when you don’t have to rush out of the house halfway through putting on your footwear. So, this is a false dichotomy, not because premise one is false, but because, in the transition from the two premises to the conclusion, what Archie loses track of is that premise one is true only given the condition that you have to rush out of the house halfway through putting on your footwear, right? So, if you’re in that situation, if you have to rush out of the house halfway through putting on your footwear, then, the following two are the only possibilities, you have a sock and a sock or you just have a sock and a shoe. Those are the only two possibilities if you have to rush out of the house halfway through putting on your footwear. But, if we don’t restrict ourselves to considering, the situation which you have, what, we have to rush out of the house halfway through putting on your footwear, and then we see that there are lots more possibilities. You could have to rush out of the house a quarter of the way through putting on your footwear or three quarters of the way through putting on your footwear or immediately after putting on your footwear or maybe you don’t have to rush out of the house at all. So there are all sorts of other possibilities, in which the dichotomy that Archie lists in premise one, the dichotomy either you have a sock and a sock or you have a sock and a shoe, in which that dichotomy just doesn’t hold, in which there’s a third possibility on top of the two possibilities that Archie mentions. And Michael, interestingly, tries to show that Archie’s argument is no good by giving his own argument of exactly the same form with an incompatible conclusion that it’s better to put on a sock and a shoe first. Remember, on Michael’s alternative argument, he says, well, suppose you have to rush out of the house halfway through putting on your footwear but it’s raining outside, right? If you have a sock and a sock, then both your feet will get wet whereas, if you have a sock and a shoe, then you can hop around on one foot and stay dry. So, that’s an argument of the same form as Archie’s argument, but it reaches an incompatible conclusion, the conclusion, namely, that it’s better to put on a sock and a shoe and a sock and a shoe rather than a sock and a sock and a shoe and a shoe. And that just shows that Archie’s argument wasn’t itself very compelling. Okay. So, that’s Archie’s second argument and that’s guilty of a false dichotomy. Now, let’s consider Archie’s third argument, which goes like this.

Third Argument (false dichotomy)

(1) If you find a hole in your second sock after putting on two socks, then you need only change your socks.

(2) If you find a hole in your second sock after putting on a sock and a show, then you need to take off your shoe.

(3) Easier to take off two socks than a sock and a shoe.

————————————————————————–

(4) Better to put on your socks first.

Premise one: if you find a hole in your second sock after putting on two socks, then you need only change your socks. Premise two: if you find a hole in your second sock after putting on a sock and a shoe, then you need to take off your shoe. Premise three: it’s easier to take off two socks than a sock and a shoe so, conclusion, better to put on your socks first. Okay now, Michael doesn’t actually try to rebut this argument, but it’s worth our while considering how compelling this argument is. See, this argument, like the one before it, also seems to rely on a false dichotomy. The false dichotomy is this. Under a certain circumstance, namely, when you find a hole in your second sock, one of two possible situations obtains, either, you only need to change your socks or, you need to take off your shoe in addition to changing your socks. So, under that scenario, when you find a hole in your second sock, then there are only two possible outcomes, you have to change your socks or you have to take off your shoe in addition to changing your socks. Okay, now, that might be right. Well, actually, it’s not right because you do have the alternative of simply walking around with your hole, with a hole in your second sock or of just having unmatched socks. But let’s suppose we rule that out somehow, we rule out the acceptability of walking around with unmatched socks or with a hole in your second sock. So we allow that, under the circumstances that Archie envisages, mainly, where you find a hole in your second sock, only one of two possible scenarios can obtain, either you have to change your two socks or you have to take off your shoe in addition to changing your socks.. So, there’s a dichotomy. But, it’s a dichotomy, that obtains only when we’re in the situation that Archie specified, namely, where we find a hole in our second sock. But what if we don’t find a hole in our second sock? Then there are any number of situations that could obtain, like we could end up putting on our socks and shoes and not having to change anything, or we could end up changing one sock after finding a hole in our first sock. We could end up having to take off our shoe after we find, not that there’s a hole in our second sock, but that the first shoe doesn’t feel comfortable with the first sock. There are any number of scenarios that could obtain, but Archie restricts himself to considering just two possible scenarios, the one where you have to change your two socks versus the one where you have to change your two socks and take off your shoe and he restricts himself to considering just those two possible scenarios because he’s only thinking about a situation In which, what prompts you to change your footwear is finding a hole in your second sock. He’s not considering any other possible situation. And so, once again, in this instance, he’s guilty of a false dichotomy. He’s arguing that it’s better to put on your socks first, but he’s arguing that by showing that, given a certain pair of options, that’s the pair of options that you’re facing when you find a hole in your second sock, given just that pair of options, it’s better to put on your socks first. But why are those two the only possible options? Archie doesn’t tell us that. That’s what makes his argument a bad argument. Okay. So I hope I’ve given some real life examples here of false dichotomies that can occur in arguments and that can vitiate those arguments that can make them bad arguments.

Reductio ad Absurdum

March 23, 2015March 23, 2015 Titivillus Logic Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata

Today we’re going to talk about a kind of refutation that we call a reductio ad absurdum. Now what’s a reductio ad absurdum, and why does it have such a mysterious name? Let’s begin with the definition. So, reductio ad absurdum is a Latin phrase that means reduce to absurdity. And that’s what a reductio ad absurdum is.

What is reductio ad absurdum?

A reductio ad absurdum is an argument that proves that a particular hypothesis is false, because it implies an absurdity.

It’s a refutation of an argument that focuses on a particular claim in that argument, either one of the premises or the conclusion, and it shows that that claim, that proposition implies some absurdity. And since it implies some absurdity, the claim itself has to be false. Because nothing that’s true can imply something that’s obviously false. Only something that’s false can imply something that is obviously false. And so, if you do a reductio ad absurdum on a proposition, you show that the proposition is false. And if that proposition is one of the premises, or the conclusion of an argument, then you’ve refuted that argument. You’ve shown that that argument is unsuccessful. Okay, so that’s a reductio ad absurdum. Let’s look as some examples.

Example 1

The best way to fight theft is to eliminate the conditions that make it possible.

The use of tangible medium of exchange (e.g., cash) is a condition that makes theft possible.

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Therefore, the best way to fight theft is to eliminate tangible media of exchange.

So consider this argument. Premise one, the best way to fight theft is to eliminate the conditions that make it possible. Premise Two, the use of a tangible media of exchange like cash, let’s say, or gold, is a condition that makes theft possible. Right, with-, without a tangible media of change, there can’t be any theft. Conclusion, therefore, the best way to fight theft is to eliminate tangible media of exchange. Now, I’ve actually heard this argument before. The argument is that if all exchanges, all transactions take place electronically. Let’s say in a way that’s traceable by your fingerprint or by your retinal scan or something like that. If there’s no cash, if there’s no tangible medium of exchange, then we eliminate the black market and all kinds of goods and services. And, we also eliminate the violent crime that’s associated with stealing cash. Okay. So, the conclusion of this argument might be true. In any case, it might true for all I’m going to say here. But what I want to point out right now is that we can use reductio ad absurdum to show that premise one of this argument is false. So, whatever else is true about the conclusion of the argument, premise one of the argument is false. And so the argument itself does not succeed in proving its conclusion. So, why do I say premise one of the argument is false? That the best way to fight theft is to eliminate the conditions that make it possible? Well, if that were true, then think about the various conditions that make theft possible. One of the conditions that make theft possible is oxygen. Or water. Or any of the conditions that make human life on the earth possible. Without those conditions, of course, theft wouldn’t be possible. So, that would imply, premise one would imply that the best way to fight theft is to eliminate the conditions like oxygen, like water, that make theft possible. That’s clearly not the best way to fight theft. It of course would be a way to fight theft. But, it’s not the best way. So, premise one implies something that’s obviously false. Namely that the best way to fight theft would be to eliminate oxygen and to eliminate water, that’s obviously false. And, so premise one itself must be false because nothing that’s true could imply something that’s obviously false. Okay, so that’s an example of how we can refute this argument using reductio ad absurdum to show the premise one of the argument is false. Here’s another example.

Example 2

If you count long enough you will eventually run out of numbers to count.

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Therefore, counting is an activity that cannot go on forever.

So consider this argument premise, if you count long enough you will eventually run out of numbers to count. In conclusion, therefore counting is an activity that cannot go on forever. Now this argument is valid, but the premise of the argument isn’t true and so the argument isn’t sound. Why is the premise of the argument not true? Why is it not true that if you count long enough you’ll eventually run out of numbers to count? Well, here’s a way to see that its not true. Suppose, for a moment that it were true, that if you count long enough, you’ll, you’ll eventually run out of numbers to count. Suppose that were true, well then there would be some last number, some greatest number. Now, whatever that number is, call it n. But now whatever that number is, we can just add one to it. Addition is going to be defined over that number, that number n, whatever n is, and one. So we can add one to n, and now we come up with a greater number. So if this premise were true, then it would imply something that’s inconsistent with the premise, namely that there’s a larger number than n. So, the premise can’t be true, because it implies something that’s inconsistent with the premise itself. So, the premise is false and that shows that the argument is unsuccessful. So, we just did a reductio ad absurdum of the premise of our argument. Now I just gave a couple of examples of reductio ad absurdum that work. But not every attempt at reductio ad absurdum works. Consider this one.

Example 3

Some things exist even though no one is thinking of them.

——————————————————————–

Therefore, reality exceeds the reach of the mind.

Premise, some things exist even though no one is thinking of them. Conclusion, therefore, reality exceeds the reach of the mind. There’s more to reality than there is in the mind. Now suppose someone challenges the premise of this argument as follows. They say, look, you’re saying that some things exist even though no one is thinking of them, but as you’re saying that, presumably you’re not just mouthing the words. You’re really thinking it. You’re thinking that some things exist even though no one is thinking of them. But if you’re thinking that proposition, then you are thinking of those things. So whatever those things are that illegibly exist, even when no one is thinking of them, well you’re thinking of them right now. And so the proposition that you’re thinking, namely that some things exist, even when no one is thinking of them that proposition is not true, because you’re thinking of those very things right now; those very things that exist even though allegedly no one is thinking of them. I leave it as an exercise for you to work out and for you all to discuss with each other in the forums. What’s wrong with this attempt at a reductio ad absurdum of the premise of this argument? I’ll let you think about that.

Refutation by Parallel Reasoning – Counterexamples

March 23, 2015March 23, 2015 Titivillus Logic Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata

Refutation by parallel reasoning

Today we’re going to talk about refutation by parallel reasoning. What is refutation by parallel reasoning? Let me start by giving a definition and then I’ll give some examples.

What is Refutation by Parallel Reasoning?

To refute an argument by parallel reasoning is to show that the argument’s form is not valid or strong.

So first, to refute an argument by parallel reasoning is to show that an argument’s form is not valid or strong; the form of the argument is bad. Now, one way to show that, a way that we’ve described over past couple of weeks is to show that the argument commits one of the fallacies that we have described. For an instance that it commits some kind of slippery soap fallacy or it’s a fallacious dismisser or, a fallacious amplifier or commits a fallacy of …That’s one way to show that an argument is a fallacy that its form is not valid or strong. That it’s premises whether true or not don’t support its conclusion. But sometimes an argument is a fallacy even though it doesn’t fit into any of the categories of fallacy that we have described up until now. But you can still show it’s a fallacy. And the way you show it’s a fallacy then is to refute it by parallel reasoning. And the way you do that is by finding another argument that has exactly the same form as the first argument. Exactly the same form, but the other argument is clearly a fallacy. So if the second argument is clearly a fallacy and it has the same form as the first argument, then the first argument must also be clearly a fallacy. Since whether an argument is a fallacy or not doesn’t depend on the truth of its premises or the truth of its conclusion. Whether an argument is a fallacy or not just depends on its form, on the relationship between the premises and the conclusion. So if you can find an argument with exactly the same form that’s clearly a fallacy that shows that the first argument is a fallacy that’s refutation by parallel reasoning. Now let me give you some examples. So consider this argument premise.

A good example

If I had a higher salary, I could buy a bigger house.

——————————————————————–

Therefore, if everyone had a higher salary, everyone could buy a bigger house.

If I had a bigger salary, I could buy a bigger house. Conclusion therefore if everyone had a higher salary, everyone could buy a bigger house. Okay, now I’ve heard reasoning that resembles this kind of reasoning in the past. People think, well, if we can raise one person’s wages and make them material, materially better off, then if we could raise everyone’s wages, we could make everyone materially better off. Okay, but tempting as this kind of reasoning may be, it’s fallacious. And in order to show that it’s fallacious, let me refute it by parallel reasoning. Let me find another argument that has exactly the same form but that’s obviously fallacy. So, consider this example. This is a parallel argument.

A Parallel Argument

If one person stands up at a ball game, then she will get a better view.

————————————————————————

Therefore, if everyone stands up at a ball game, then everyone will get a better view.

If one person stands up at a ball game then she’ll get a better view. I’d imagine that she’s sitting in an audience of people. All of whom are seated. And so there are all these people seated and watching the ball game and maybe the people sitting in front of her are blocking her view of the events in the stadium. So she decides to stand up so she can see over the heads of the people seated in front of her. So if she stands up she’ll get a better view. Conclusion, if everyone stands up at a ball game then everyone will get a better view. Okay, well, that conclusion is not just obviously false but it’s clearly not supported by the true premise. In fact, this argument is a very clear example of an invalid argument, because the premise is very plausibly true. At just about any ball game, when you have one person sitting down, if they stand up, they’re, they individually are going to get a better view, but the conclusion is certainly false. If everyone stands up, then that does not mean that everyone will get a better view. In fact, if everyone stands up then there going to be some people who end up getting a worse view. So, this is clearly an invalid argument but if this argument is invalid then this argument must also be invalid because they have the same form. And that shows that this first argument about salaries has got to be invalid. It’s got to be invalid because it has exactly the same form as the second argument about standing up at a ball game. It has exactly the same form and the second argument is obviously a fallacy because in most scenarios, the premise would be true when the conclusion would be false. So, if the second argument is invalid, the first argument must be as well. Okay, that’s an example of refutation by parallel reasoning. Now, let’s consider another example. So, we get the idea. So, consider this argument.

Another good example

Most people who start business ignore statistics of failure.

Most people who ignore statistics of failure are stupid.

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Therefore, most people who start business are stupid.

Premise one. Most people, who start businesses, start their own businesses; ignore statistics of failure because the statistics of failure for start-up businesses are pretty bleak. Vast majority of start-up businesses fail. They lose money, they go out of business they go into bankruptcy. So, most people who start businesses have to ignore all that, have to believe somehow, despite all this statistics of failure that they are going to succeed. Premise two: most people who ignore statistics of failure are stupid. Conclusion, therefore, most people who start businesses are stupid. Okay now let me say immediately that I think this argument is a fallacy and further more that its conclusion is false. But, how can we see that this argument is a fallacy. For most people who start businesses ignore statistics of failure, and most people who ignore statistics of failure are stupid. How can we see that it’s fallacious to infer most people who start businesses are stupid? Well to see how this argument is a fallacy compared to this other argument that has exactly the same form of reasoning.

A parallel argument

Most of my friends are organisms.

Most organisms are microscopic.

—————————————

Therefore, most of my friends are microscopic.

So, here’s a parallel argument, most of my friends are organisms. Alright, I mean it’s possible that a few of my friends are robots but I think that’s unlikely. I think, at the very least most of my friends are organisms. If one or two of them are automata who are cleverly disguised to look and act like human beings, so be it. Still, most of my friends I’m confident are organisms. Now most organisms are microscopic Of course we don’t always keep that in mind because most of the organisms that we interact with on a day to day basis are not microscopic. Human beings, dogs, cats, and trees right these organisms are not microscopic but in fact most of the organisms that exist are microscopic. So someone might infer well if most of my friends are organisms and most organisms are microscopic then doesn’t it follow that most of my friends are microscopic, well no obviously not. In fact none of my friends are microscopic all of my friends are creatures that I can see without the use of a microscope. So this argument right here is obviously a fallacy. I mean both of the premises are true and the conclusion is certainly false. So, this argument is obviously a fallacy. It’s an invalid argument but since this argument is invalid and it has exactly the same form as this earlier argument about ignoring statistics of failure, it follows that the earlier argument must be invalid. Right, these earlier arguments from the premises, most people who start businesses ignore statistics of failure and most people who ignore statistics of failure are stupid. It does not follow that most people who start businesses are stupid. That doesn’t follow at all. This is a fallacy. It’s an invalid argument. It just showed that by means of parallel reasoning by finding a parallel argument that has exactly the same form but is clearly a fallacy. So since this parallel argument is clearly a fallacy, this earlier argument about ignoring statistics of failure must also be a fallacy. Okay, now refutation by parallel reasoning doesn’t always work. Sometimes, we get results that are unclear or don’t show what we were trying to show. For instance, let me give you an example of that. So consider the following argument.

A not-so-good example

If guns are outlawed, only outlaws will have guns.

It would be bad if only outlaws had guns.

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Therefore, guns should not be outlawed.

If guns are outlawed only outlaws will have guns. That’s premise one. Premise two: it would be bad if only outlaws had guns. Conclusion, therefore guns should not be outlawed. Okay so that’s an argument that’ll be familiar to some Americans. That’s an argument. Is it a fallacy or not? Well suppose we try to refute it by parallel reasoning as follows.

A Parallel Argument?

If gum is outlawed, only outlaws will have gum.

It would be bad if only outlaws had gum.

——————————————————

Therefore, gum should not be outlawed.

If gum is outlawed, only outlaws will have gum. It would be bad if only outlaws had gum, therefore, gum should not be outlawed. Now notice, this parallel argument has exactly the same form as this earlier argument about guns. The two arguments have the same form. So if one of them is a fallacy then the other one is a fallacy. But is this argument a fallacy. That’s not clear. Its not at all clear that its a fallacy. This attempt to refute our earlier argument by parallel reasoning doesn’t succeed. It doesn’t succeed because the parallel argument is not clearly a fallacy. So we can’t tell by looking at the parallel argument whether the earlier argument about guns was a fallacy. So this is a case of refutation by parallel reasoning that doesn’t succeed. So what’s crucial in refutation by parallel reasoning is this. First of all, you have to make sure that the parallel argument that you’re using to refute the original argument, that the parallel argument has exactly the same form as the original argument. And in all three of our examples that we’ve looked at that is true, the parallel argument does have the same form as the original argument. But the second thing you need to make sure of is that the parallel argument is clearly a fallacy. Right, if you’re trying to show that the original argument is a fallacy, and you’re trying to show it by means of parallel reasoning, then the parallel argument that you pick has to clearly be a fallacy. because otherwise, you haven’t shown that the original argument is a fallacy. Okay, and this third example doesn’t meet that second criterion. The parallel argument is not clearly a fallacy. So, that’s refutation by parallel reasoning. Next time, we’ll consider another way of refuting an argument.

Counterexamples

So, what’s a counterexample and how does it help to refute an argument? A counterexample is an example that runs counter. To some generalization, and thereby shows that the generalization is false.

What is a counterexample?

A counterexample is an example that runs counter to a generalization: it thereby shows that the generalization is false.

Counterexamples can be used to refute arguments that contain generalizations in either their premises or their conclusions.

Now, counterexamples can be used to refute an argument that contains a generalization either as one of its premises or its conclusion. So, if the argument contains a generalization as its conclusion, and the counterexample shows that the generalization is false. Then, in effect, what the counterexample does is show that the argument reaches a false conclusion. If the argument contains a generalization as one of its premises, then the counterexample shows that that premise of the argument is false. But, either way, the counterexample shows that the argument is unsuccessful, either because the argument has a false premise or because its conclusion is false. Okay, so, what are some examples of counterexamples?

Example 1

You should always treat others the same way that you would like to be treated.

I would not like anyone to change my diapers.

—————————————————-

I should not change the baby’s diapers.

Well, let’s start by considering this argument. Premise one. You should always treat others the same way that you would like to be treated yourself. Premise two. I would not like anyone to change my diapers. So, in conclusion, I should not change the baby’s diapers. Now, this argument appears to be valid. Furthermore, I can assure you, premise two is true. So, if premise one is also true, then it looks like I have a good argument for why I shouldn’t change the baby’s diapers. I should get someone else to do it. But is premise one true? Well, premise one sounds familiar enough. You should always treat others the same way that you would like to be treated yourself. That’s something we frequently hear people say. But that can’t be precisely true. After all, I would like to be treated as an adult, but that doesn’t mean that I should treat my children as adults, right? So, if the generalization is that you should always treat other the same way that you would like to be treated yourself, that generalization is false. It’s false, because even though I would like to be treated as an adult, it doesn’t mean that I should treat my children as adults. I shouldn’t treat my children as adults, because they’re not adults. But I am. Now, that doesn’t mean that I should baby my children. But I shouldn’t treat them the same way that I would like to be treated myself. I shouldn’t treat them as if they’re adults. Okay, so, that’s a counterexample to premise one. And that counterexample shows that premise one stated in the way that it’s stated here. You should always treat others the same way that you would like to treated yourself. Premise one stated in that way, is false and so this argument does not work. This argument does not succeed in showing that I should not change the baby’s diapers. The reason it doesn’t succeed is because one of its premises is false. Now, premise one might seem to be true but if it seems to be true that’s only because something very similar to premise one is true. What’s similar to premise one that is true is the claim that you should usually. Typically, often, treat others the same way that you would like to be treated yourself. Now, those claims are true. You should usually treat others the same way that you’d like to be treated yourself. But that doesn’t mean you should always treat others the way that you’d like to be treated yourself. That general claim about how you should always behave, that claim is false, and our counterexample shows it. So, there’s a, an example of the use of counterexample to refute an argument. Let’s consider another example.

Example 2

If it is wrong for all of us to perform a particular action, then it is wrong for any of us to perform that action.

It is wrong for all of us to try to take the last piece of bread on the table.

———————————————————————

It is wrong for any of us to try to take the last piece of bread on the table.

So, consider this argument. Premise one, if it’s wrong for all of us to perform a particular action then, it’s wrong for any of us to perform that action. Premise two: it’s wrong for all of us to try to take the last piece of bread on the table. So, conclusion, it’s wrong for any of us to try to take the last piece of bread on the table. You could imagine this situation. Let’s say a bunch of us are sitting around the dinner table eating dinner. And there’s a basket of bread in the middle of the table and we’ve been, bit by bit, reaching in to take out pieces of bread and eat them. And now there’s only one piece of bread left in the basket and there are a bunch of us sitting around the table. Well it would be wrong for all of us to jump up and grab that piece of bread and start fighting over it. That would be wrong. That would be completely unacceptable. But just because that would be unacceptable, does that mean that none of us is allowed to go and eat that last piece of bread? Well, no. That seems like a preposterous conclusion. I mean, if all of us have to sit there just staring at that last piece of bread, and none of us is allowed to eat it, well, then that’s wasting food. That’s not an acceptable conclusion. So, it’s gotta be okay, for one of us to take that last piece of bread, even though it’s not okay for all of us to try to take that last piece of bread. So, here’s an example where it’s okay for one person to do something even though it’s not okay for everyone simultaneously to do that thing. It is okay for one, it’s not okay for everyone. So, that’s a counterexample to the generalization that occurs in premise one of our argument. So, this argument is not a successful argument. This argument does not prove. That its wrong for anyone of us to try to the last piece of bread on the table, and the reason it does not prove is not because the argument is fallacy. The reason it does not prove that is because premise one of the argument is false. Premise one of the argument states that general client and that general client that it states is not true. Well, it might be true that it’s usually wrong for anyone to perform an action that it’s wrong for everyone to perform. It’s not true that it’s always wrong for anyone to perform an action that it’s wrong for everyone to perform. And in fact I just gave a counterexample to that generalization. It’s not wrong for one person to take a piece of bread. The last piece of bread on the table, even though it would be wrong for everyone to try to take that piece of bread simultaneously. Okay, so, there is another example of an argument that we can refute by means of counterexample. We can use a counterexample to show that premise one of that argument is false and so, the argument is unsuccessful. Finally, let’s consider this third case.

Example 3

Breaking the law is almost always wrong.

Double parking is breaking the law.

————————————————–

Therefore, double parking is almost always wrong.

Premise one. Breaking the law is almost always wrong. Premise two; double parking is breaking the law. So, conclusion, double parking is almost always wrong. Can we refute this argument by means of counterexample? Well, there’s no counterexample to premise two. Premise two is simply true, double parking is breaking the law. That’s part of what’s involved in double parking, when you double park you are breaking the law. But what about premise one, breaking the law is almost always wrong. Is there a counterexample to that? No. There is no counterexample to premise one as stated. If premise one was to say breaking the law is always wrong. Then, we could produce a counterexample to premise one. Sometimes it’s an emergency, you have no choice but to double park. You have to do something very quickly. It’s not wrong to double park in that situation especially not if you’re doing it for just a few seconds. It’s not wrong to double park and yet you’re breaking the law because there’s a law against double parking. So, if premise one we’re to say, breaking the law is always wrong, then there would be a counterexample to premise one. But premise one doesn’t say that, premise one says, breaking the law is almost always wrong. Now, how do you produce a counterexample to a claim of the form almost always. Well, the answer is you don’t. Because even if you produce an example of a case where breaking the law is not wrong, that still doesn’t show that it’s false, that breaking the law is almost always wrong. Maybe breaking the law is almost always wrong. But just not in the case that you produced. So, you can produce a counterexample to generalization of the form breaking the law is almost always wrong. That generalization might be false, but you can show that it’s false by showing a counterexample. Okay. So, we cannot refute this argument by means of counterexample. That’s not to say that this is a good argument. In fact, this third argument is not a good argument, but we can’t show that it’s not a good argument by using a counterexample. So, sometimes counterexample can succeed in refuting an argument and sometimes it can’t. It depends on whether the argument contains a generalization to the effect that something always happens or something is true in all cases if the argument contains a generalization like that an unexceptional generalization a generalization. Without any room for exceptions, then a counterexample can be used to refute that generalization. But if a generalization is phrased in such a way that it admits of exceptions, like if a generalization talks about what almost always happens. Or about what usually happens, about what typically happens, then we can’t refute that generalization by means of counterexamples.

Refutation Its Varieties and Pitfalls

March 23, 2015 Titivillus Law Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata, Refutation

Over the last couple of weeks, we’ve been talking about fallacies in order to help you all figure out ways in which you can criticize an argument. Sometimes, an argument might seem valid or strong. But if you recognize that it’s actually a fallacy, that’ll help you to see what’s wrong with the argument and not to be moved by it. But there are other ways of criticizing arguments besides recognizing them as fallacies or, in any case, recognizing them as the one, one of the kinds of fallacies that we’ve been discussing so far over the past couple of weeks. And this week we’re going to broaden our scope a little bit and talk about other ways of criticizing arguments. This week we’re going to talk about refutation, its varieties and pitfalls. So, what’s refutation? What are the varieties of refutation? What are the pitfalls of refutation? Let’s address those questions in order. So, first, what is refutation?

What is Refutation?

To refute an argument is to show that the argument is unsuccessful.

An argument may be unsuccessful because we are not entitled to accept its premises, do not support its conclusion.

Refutation, or to refute an argument, is to show that the argument is unsuccessful in some way or other. That’s what you’re doing when you refute an argument. You’re showing that the argument is unsuccessful in some way or other. Now, an argument might be unsuccessful because we’re not entitled to accept its premises, right? Maybe its premises are false or maybe whether they’re true or false, we just have no reason to accept them. Or an argument may be unsuccessful because whether or not its premise are true or known by us to be true, the premises don’t support the conclusion of the argument. So, the conclusion isn’t adequately supported by the premises. It doesn’t follow from the premises. It’s not something that the premises give us very powerful reason to believe. So, we can refute an argument by showing that it’s unsuccessful in any of those ways. So, because refuting an argument is just to show that it’s unsuccessful in any of those ways, there are going to be different ways to refute an argument corresponding to the different ways. In which arguments can be unsuccessful.

The Varieties of Refutation

To refute an argument is thus to show that its premises do not support its conclusion or that we are not entitled to accept its premises.

We can do the former using refutation by parallel reasoning.

We can do the latter using counterexamples or reductio ad absurdum.

So, for instance, if we’re going to show that the premises of an argument don’t support its conclusion, then we can do that by means of something that we’ll call refutation by parallel reasoning. One way of doing that, of course, is to point out that the argument is a fallacy. It might appear valid or strong but, in fact, it’s not. But another way of doing that, independently of pointing out that it’s a fallacy, is to refute the argument by parallel reasoning. And in the next lecture, we’ll talk about what refutation by parallel reasoning is. Another way that we might refute an argument is by showing that its premises are false or in any case whether they’re false or not, we’re not entitled to accept them. And we can do that; we can show that we’re not entitled to accept the premises by using things that we’ll call counter examples. Or a method that we’ll call, reductio ad absurdum. Okay. So those are the varieties of refutation. We can refute an argument by means of parallel reasoning. We can refute an argument by means of counterexamples. Or we can refute an argument by reductio ad absurdum. And we’ll talk about those different varieties of refutation this week. Now, often refutations are successful and help us to see why an argument that someone else is giving or maybe an argument that we ourselves gave is unsuccessful. But sometimes, refutations don’t work. In particular, there are a couple of different kinds of error to which refutations are especially liable. One of those kinds of error is what’s called attacking a straw man, or refuting a straw man.

The Pitfalls of Refutation

In attempting to refute an argument, we may end up attacking a straw man, on relying upon a false dichotomy.

Sometimes, when you try to refute a particular argument, you end up attacking something that isn’t quite the same as that argument. Something that might seem very similar to that argument, you might mistake it for being the same as that argument. But it’s not quite the same and the difference is significant. That’s called attacking a straw man. Your refutation of an argument also might be unsuccessful because it depends upon a false dichotomy. You assume that a particular dichotomy is true, either things have to be one way or have to be other way and you make that assumption in attempting to refute an argument. But your refutation is unsuccessful because the assumption that you’ve made, the assumption that things have to be either one way or another way, is a false assumption. That’s called a false dichotomy. Okay, so those are some dangers to which refutation is subject, and we’ll also be talking about those this week. Alright, so now that we’ve said what refutation is, what its varieties are and what its dangers are, let’s start talking about particular kinds of refutation. Next time, we’re going to talk about refutation by parallel reasoning.

Civil Procedure

March 23, 2015 Titivillus Law American Law, Jan Sanders Cartoons, Law, Tobias Wolff

So for starters, let’s get some definitions on the table. What is civil procedure? Broadly speaking civil procedure has two components, civil and procedure. Civil in this title describes the workings of our judicial system that have to do with the resolution of disputes between people, or sometimes between people and government, that are not criminal in nature. Civil disputes have to do with disputes over ownership of property, injuries that you think you’re entitled to be compensated for, contracts that you want to get enforced, so forth. That is a civil dispute.

Civil Procedure

Civil:

the workings of our judicial system that have to do with the resolution of disputes between people, or sometimes between people and government, that are not criminal in nature

Procedure:

the mechanisms by which we use our court system to resolve disputes

Procedure describes the mechanisms by which we use our court system to resolve disputes. And so the field of civil procedure, broadly speaking, is a field that relates to the use of our court systems to resolve civil disputes between people, to resolve disputes over property, over contracts, over injuries. And the mechanisms by which we resolve those disputes and the ways in which our court system operates in the resolution of those disputes. Now, the field of civil procedure encompasses a very wide array of issues that have to do with the power of courts that have to do with the ways in which people approach the resolution of their disputes, and the power that is bound up with procedure, that is to say the power that is bound up with these mechanism, mechanisms that we use for the resolution of disputes. I’d like to frame my discussion about civil procedure with a quotation from a man by the name of Karl Llewellyn. Llewelyn was a legal scholar, writing in the first part of the 20th century. And in 1929, he wrote a series of essays that were designed for incoming law students and that were in, intended to introduce law students to the fields of study that they were about to be undertaking. And it was a set of essays that were, a set of lectures that were published in a book that was called the Bramble Bush. And when he was talking about the field of procedure, he said the following.

Karl Llewellyn

legal scholar in early 20^th century

Bramble Bush, 1928

“You must learn to read your substantive courses, as it were through the spectacles of the procedure. Because what substantive laws says should be means nothing, except in terms of what procedure says you can make real.”

You must learn to read your substantive courses, as it were through the spectacles of the procedure. Because what substantive law says should be means nothing, except in terms of what procedure says you can make real. Now, Karl Llewellyn was writing at a time when the issue of procedure and procedural reform was really quite urgent. The procedures in our civil court systems in the United States have not always functioned particularly well. And the early part of the 20th century was a time when procedures were extraordinarily varied around the country and even varied within our federal court system, which is our national court system. And there were a lot of very active and elevated conversations around the country about procedural form, reform and what procedural reform might look like. And Llewellyn was specifically writing at a time when procedure was in danger of actively frustrating the ability of litigants to prevail on their claims or to, to bring their claims forward in an effective and meaningful fashion. And in particular he lived and taught in New York at the time, and New York had a really messed up set of procedures in their state courts. And for a series of historical reasons at this point in time, the federal courts looked to what state courts would do in deciding what procedures they would use in many of their cases. So we have, in the United States, two parallel court systems, a federal court system and court systems in each of the 50 states, and these are formally separate systems. And they’re allowed to use different procedures and have many different policies surrounding the resolution of civil disputes. And for a series of historical reasons in the early part of the 20th century and before, the federal courts in many respects didn’t have their own procedures; they looked to what the states did. And at the time that Llewellyn wrote that quote, state procedures were a mess. And as a consequence a lot of federal procedures were a mess as well. And so conversations about procedural reform in the first 30, 35 years of the 20th century were both conversations about what a sensible procedure system might look like. But they were also conversations about whether it would make sense to have a single uniform set of procedures in the federal courts. And largely as a consequence of the negative history, the negative experiences that lawyers and judges had with the existing procedural system, in 1934 Congress passed this very important statute, the Rules Enabling Act of 1934. And the Rules Enabling Act was the very first time that Congress had provided for a single, uniform set of civil procedures to resolve civil disputes in our federal courts.

The Rules Enabling Act of 1934

Congress provides

a single, uniform set of civil procedures to resolve civil disputes in federal courts

And several years following the enactment of this statute, rule makers carried into effect, they brought into being, the very first set of general purpose, and uniform procedural rules for the federal court what are often described as the Federal Rules of Civil Procedure. So, understanding how civil procedure works in the United States is importantly in part, about understanding how both the origins of our federal procedural system and how procedures work in the federal courts, because federal courts are very important, place where civil disputes get litigated. And also the way that our federal courts resolve civil disputes winds up providing a model, winds up providing a lot of guidance how many, many states adjudicate civil disputes as well. So, in understanding civil procedure in the United States it’s important to understand the federal system of civil procedure. And in particular, it’s important to understand three basic principles, which are going to be the focus of much of my discussion here today about the American procedural system. The first basic principle involves a term called trans-substantivity. It’s what you might think of as a philosophical principle that underlies the federal rules of civil procedure, and that has really served to shape to a significant extent, the way that we think about how a procedural system ought to operate within the American justice system. The second basic principle is the relationship between quote, unquote, procedure and quote, unquote, substance. For a lot of people, particularly before you get to law school, if you hear a term like civil procedure, you think, oh that’s going to be the really dry, boring stuff. And that’s not remotely true at all. And this boundary between what we label procedure and what we label substance, it’s a really important issue. And figuring out what it means to distinguish between procedure and substance actually winds up being one of the key issues in the administration of a civil justice system. And I’ll say a few words about that. The third issue that I’m going to discuss has to do with efforts that are increasingly important in the 21st century for litigants and in particular for powerful defendants like corporate defendants, to try to bargain their way out of the civil procedure system. And to use a mechanism called arbitration under the auspices of a very powerful federal statute called the Federal Arbitration Act to find ways to bargain their way around our civil justice system. So the three basic principles that we’ll talk about in, in figuring out how exactly our civil justice system works are, number one, this philosophical issue of trans-substantivity. Number two this sort of practical concern about the distinction between procedure and substance, and what that distinction is meant to capture.

Basic Principles of Civil Procedure

trans-substantivity

the relationship between “ procedure” and “substance”

arbitration

And third, a recent development, a recent development of great practical significance, of efforts of people and particularly defendants to bargain their way around our civil justice system, and what some of the implications are for some of those efforts.

So, let’s start our conversation about this first issue of trans-substantivity. As I mentioned, when the federal rules of civil procedure were brought into existence, procedure had been a mess. Procedure had been a mess in the federal courts and it was a mess in the state courts as well. And one of the goals of the enactment of this statute, the Rules Enabling Act, and the, the bringing into being of these federal rules of civil procedure, one of the goals was to clean up that mess. And to create a set of mechanisms by which people could bring their civil cases into court, that would be relatively uniform and relatively predictable. And the principle of trans-substantivity was one of the tools by which that goal was sought to be carried into effect. And this is a principle that has two concepts bound up in it. You might think of them as vertical trans-substantivity and horizontal trans-substantivity. These are big fancy terms, but they’re really meant to capture some very simple ideas. First of all, this, this idea of vertical trans-substantivity is basically an idea that says that procedures will operate in the same basic way. That is to say, the same procedures will apply whether a lawsuit is a big complicated lawsuit or a small, relatively simple lawsuit. And we have one set of procedures. A very fully realized and, and all the bells and whistles system of procedure, that apply regardless of whether you bring a big, expensive, complicated case into federal court or a relatively simple and relatively low-stakes case into federal court. Now why might this matter? Well, it matters because the, all the bells and whistles version of the federal rules of civil procedure can sometimes be moderately expensive. And one of the facts about the federal procedural system, which has gotten some attention recently, is that the, the completeness of it. The fact that it makes so many tools available for discovery, for learning information from the other side and getting them to turn information over to you for motion practice, for filing formal motions with the court in which you ask the court for various different kinds of relief at various stages of the litigation process. It has a fully realized system of procedure, which when it is utilized in, in, to its fullest extent, can be a relatively expensive way of resolving disputes.

Vertical Trans-substantivity

held for 80+ years

federal procedure system ought to work the same way for big cases as it does for small stakes cases

And so the trans-substantivity principle in this vertical orientation has held for the last 80 years or so that our federal procedure system ought to work the same way for big cases as it does for small stakes cases. Now, there are a lot of benefits that comes from that idea of vertical trans-substantivity. But also potentially some costs as well. There’s at least the possibility that smaller cases might get priced out of the federal courts in various ways and so one conversation about trans-substantivity has to do with the affordability of litigation. That is to say, whether people will have access to justice and whether one unintended consequence of creating this fully realized system of procedure that is uniform in all of its applications, is the possibility that certain types of cases might wind up getting priced out of the federal courts. This is a useful issue to start with because it focuses us on the relationship between a procedural system and the viability of enforcing a claim, right? The cost associated with for, enforcing a claim. That’s an issue that we’re going to talk about a fair amount in relation to the second and third issues that we put on the table just a moment ago. So, that’s this concept of vertical trans-substantivity. There’s also an idea of what I’ll call horizontal trans-substantivity. And here, this is a description of the way that procedure operates in different types of cases.

Horizontal Trans-substantivity

a description of the way that procedure operates in different types of cases

governed by different substantive legal principles

That is to say, different cases that are governed by different substantive legal principles and one of the core concepts one of the core philosophical principles according to which our procedure system has operated for in, its entire lifetime, is that procedures should not vary depending upon the type of claim that you’re seeking to prosecute. Procedures should not vary depending upon the substance of the claim that you’ve brought forward. So, if you’re bringing an anti-trust claim, if you’re bringing a securities law claim, if you’re bringing a civil rights claim, if you’re bringing a personal injury claim, very, very different substantive law claims, claiming very different kinds of injuries. They all use the federal rules of civil procedure if they’re brought in the federal courts, and it’s the same set of federal rules for all of these different types of claims. And at least in theory, the federal rules will operate in the same fashion according, without regard to what type of substantive claim it is that a litigant has brought forward. Now, that may sound like a fairly sensible and straightforward proposition, and indeed, in a lot of ways, this idea of horizontal trans-substantivity has in fact been a very important unifying feature of the civil procedure system in the federal courts. But there are times when it can also cause problems or at least cause some confusion. And there’s a recent case that I want to talk about, that helps to illustrate some of the problems and confusion that this idea of trans-substantivity can introduce. It’s a case called Bell Atlantic versus Twombly. Bell Atlantic versus Twombly was an anti-trust case.

Bell Atlantic Corp. v. Twombly (2007)

anti-trust case

deals with pleadings standards

And it was a case specifically that deals with pleadings standards. Now pleadings standards, pleadings is a description of the very, very first stage of a lawsuit where you initiate the lawsuit by filing a complaint with the court. And when you’re a plaintiff, when you’re somebody who thinks you’ve been injured and you want to start a lawsuit, you draft this document called a complaint. And because you’re right at the outset of a lawsuit, you don’t have any evidence, necessarily. You don’t necessarily have any testimony or any documents from the other side. All you can put in a complaint is allegations, right? I allege that the following things happened. A complaint is basically a promise for what it is that you think you’ll be able to prove. What it is that you’re offering to prove if you’re given an opportunity to have a lawsuit and develop evidence? It contains allegations that are supposed to show why you would be entitled to relief from the court, if you’re able to prove the things that you say happened to you. So, the question of what you have to put into a complaint in order to get into court, right? What is the threshold requirement for initiating the very powerful processes of a lawsuit is a matter of great concern and we refer to that question as the standard of pleading that you have to satisfy. So, Bell Atlantic vs Twombly was a case that involved pleading standards. It involved a dispute over whether a complaint that had been filed by an anti-trust plaintiff was an adequate complaint, whether it met the standard for getting this anti-trust plaintiff into federal court.

Bell Atlantic Corp. v. Twombly (2007)

the complaint was inadequate

failed to satisfy the pleading standard required

So, in the Bell Atlantic versus Twombly case, the Supreme Court wound up deciding that the complaint that the plaintiff had filed in that case was inadequate, that it failed to satisfy the pleading standard required to allow the plaintiff to initiate the litigation process to have a day in court. And specifically, what the court wound up deciding was that a very specific issue of anti-trust law. That is, how, what it is that you have to demonstrate to establish a conspiracy in anti-trust. What it is that you have to show, in order to establish that there has been a conspiracy to violate the anti-trust statute.

The Supreme Court held the pleading in the Twombly case was inadequate because the plaintiff didn’t allege enough facts to make it plausible that there was a conspiracy to violate antitrust statute. This case announced that the standard of pleading is plausibility

That aspect of the complaint was insufficient and the plaintiff had not alleged enough facts to make it, in the court’s words, plausible that there was a conspiracy to violate the anti-trust laws. Now, this was an issue in the field of anti-trust that had a particular a particular substantive context. Anti-trust policy is very concerned about fostering competition, and nonetheless, policing abuses of market power. And so the doctrines around conspiracy in the anti-trust laws seek to draw or to strike a very careful balance between the desire to foster competition, but to prevent certain kinds of abuses of market power.

Bell Atlantic Corp. v. Twombly (2007)

balancing the fostering of vigorous competition with preventing abuses of market power

And what the court had to say in the Bell Atlantic versus Twombly case, about why the complaint in that case was inadequate, were geared, to a very significant extent, to these particular substantive policy judgements that our anti-trust laws make about balancing the fostering of vigorous competition with preventing abuses of market power. So, that was Bell Atlantic versus Twombly. And after Bell Atlantic was decided, there was a question.

After Bell Atlantic Corp. v. Twombly (2007)

Is this a case that establishes a heightened pleading standard across the board for all kinds of lawsuits, no matter what the substantive context?

or is it a case that was really about pleading and anti-trust cases?

Is it really a case that was specific to concern about the substantive policy underlying the anti-trust statute and how conspiracy operates?

And the question was, is this a case that establishes a pleading standard, a heightened pleading standard, across the board for all kinds of lawsuits, no matter what the substantive context? Or, is it a case that was really about pleading and anti-trust cases? Is, is it really a case that was specific to this concern about the substantive policy underlying the anti-trust statute and how conspiracy operates the anti-trust statute? In a series of cases, two cases following the Supreme Court’s Bell Atlantic versus Twombly decision, the Supreme Court answered that question by invoking this principle of trans-substantivity, and saying that in fact, what Bell Atlantic represented was a racketing up of the pleading standard across the board. This is a procedural issue. And what we say about procedure in one context applies in all the other contexts as well. And so, in a pair of cases involving civil rights claims improper imprisonment claims, discrimination claims, that kind of claim. The court took these stronger and more demanding statements that it had made about pleading in the very specific context of a conspiracy to violate the anti-trust statute. It applied the same procedural doctrine to these civil rights cases, and wound up shutting several litigants, or potentially shutting several litigants, out of court because of what it viewed, what the court viewed, as the implausible nature of their allegations at the very outset of the lawsuit. And this is a very consequential procedural holding because the pleading standards not only determine whether you’re going to be able to get into court in the first place, but if your complaint gets dismissed because you have failed to satisfy the pleading standards and you can’t rehabilitate your complaint in a sufficient fashion, that’s your one shot. You get one shot to file a complaint on a given claim in the civil court system and so racketing up the pleading standard means that, potentially, litigants are going to be shut out of court and shut of court permanently. And this principle of trans-substantivity winds up producing this very consequential result. Now, there are both good and bad aspects to this principle of trans-substantivity. The virtue of this principle is that we want our procedure system to be predictable. We want it to be the case that when the courts talk about procedure doctrines in one type of lawsuit, that we can take what they say, we can take the, the holdings and the principles that they articulate in those cases, and predictably apply them to other types of cases as well, right? There is value to that kind of uniformity and predictability.

Principle of Trans-substantivity

Value

uniformity and predictability

Danger

line between procedure and substance is not always sharp

The danger is that the line between procedure and substance is not always quite so sharp. And if we have a procedural holding in one particular type of case that really seems powerfully tied to the substantive law in that case, then is it always clear that this principle of trans-substantivity should mean that it should apply to all kinds of other cases as well?

Principle of Trans-substantivity

If we have a procedural holding in one particular type of case that really seems powerfully tied to the substantive law in that case, then is it always clear that this principle of Transsubstantivity should mean that it should apply to all kinds of other cases as well?

The idea of trans-substantivity, that is, depends upon a fairly robust understanding of the distinction between substance and procedure. And Bell Atlantic versus Twombly is one case that illustrates that, perhaps sometimes, that assumption that there is this sharp distinction between procedure and substance is not always a good assumption. And that applying trans-substantivity in such a, a, a doctrinaire fashion can sometimes produce negative consequences. That illustration of trans-substantivity in this relationship to this substance procedure distinction will provide a great bridge into our next discussion of the second principle, which is, in fact, this distinction between procedure and substance.

The second issue that we will discuss is the distinction between quote, unquote substantive questions and quote, unquote procedural questions. Now the federal statue that brings into existence the Federal Rules of Civil Procedure, the statue called the Rules Enabling Act of 1934, contains in the very text of the statute an apparent requirement that we distinguish between substance and procedure.

Substance vs. Procedure

Rules Enabling Act of 1934

requirement to distinguish between substance and procedure

a set of rules that are designed to deal with questions of practice, procedure, and evidence.

these rules are not allowed to abridge, enlarge, or modify substantive rights

The statute specifies that it authorizes the bringing into existence of these things the federal rules. And it says that there are rules that are designed to deal with questions of practice, procedure, and evidence. And the statute also specifies that these rules are never supposed to abridge, enlarge, or modify substantive rights. So right there in the text of the statute is an apparent requirement that we draw distinction between substance and procedure. And broadly speaking, that’s a distinction that would seem to make a fair amount of sense. Substantive questions are the questions that we might think of as having greater social policy implications, being the types of questions that legislators and other types of account, politically accountable figures, ought to be responsible for carrying into effect. Procedural questions are the types of questions that are generally involved in the administration of a civil justice system. And drawing a distinction between the types of questions that legislature should address and the types of questions that rule makers should address seems quite sensible. And that is, at base, what this substance procedure distinction is meant to capture. But it’s not always quite so easy to draw that distinction. Or at least, to draw it in a way that makes a lot of sense. And after 75 years of practice under the Federal Rules of Civil Procedure, we have learned that, in fact, it’s not always quite so easy to draw a sharp line between matters of procedure and matters of substance. As one example, the pleading standard cases that I mentioned from the previous section. Those are cases in which a procedural issue. Speaks in a very direct fashion to whether people are going to be able to get into court at all. That would seem to have some pretty significant, maybe even quote, unquote substantive implications to it. And so figuring out when it is that we can draw a distinction between substance and procedure that is satisfying is a continuing issue that gets addressed by scholars and by courts in the administration of our civil justice system. So, the example that I want to discuss to illustrate this proposition more fully is the example of class actions. Class actions are one of the most powerful, procedural mechanisms in the modern civil justice system. In the federal system, they are governed by a rule that gets discussed a lot, Federal Rule’s 23 in our civil procedure system. And, the modern version of Federal Rule 23 was brought into being just about 50 years ago in 1966. And, Rule 23 authorizes a representative lawsuit, a class action in which one or several individuals come into court with their lawyers, and they say, we’ve been injured in the following way, a contract has been violated our financial interests have be affected. We’ve been injured in some fashion, but not only have we been injured, a whole lot of other people have been injured as well. A whole lot of other people who are similarly situated to us have been injured in very much the same way. And when litigants come into court and invoke Rule 23 and seek to initiate a class action, what they say is, we don’t want to just litigate our claims. We want to litigate the claims of everybody who’s been hurt in the ways that we’ve been hurt. This is a remarkable proposition if you think about it. A couple of litigants come in with their lawyers, and often it’s the lawyers who really play a much more powerful role in, in guiding the course of these proceedings. And they say, we want to litigate a set of claims on behalf of a whole bunch of people whom we’ve never met, who we have no relationship with. But whom we think we would be adequate representatives for to adjudicate or to litigate their claims that are just like the claims of the particular people who come in, into court to initiate the proceeding. And the circumstances under which a class action is permissible, the circumstances under which a court will allow a lawsuit to proceed as a class action is an issue of major importance in the civil justice system of the United States today. Among other things, as you can well imagine, if a defendant, let’s say for example a corporate defendant, faces the claims of one or a couple or a small handful of injured individuals, then their exposure. The overall amount they might have to pay in response to these law suits is liable to be relatively modest. But if one or a couple or a handful of individuals can come into court and litigate everybody’s claims, litigate the claims of a whole class of people who they say have been injured, suddenly the corporation exposure, the corporation’s potential damages that they have to pay, is enormously magnified and it becomes a very high stakes lawsuit. Class actions serve very important functions, in that they can enable claims that nobody would otherwise be able to afford to litigate, to get adjudicated by the court. So if you’ve got one hundred thousand people. Each one of whom has been injured to the tune of $50, let’s say because of an improper billing practice from their cable company or from their cell phone company, no one person is going to be able to litigate a $50 claim in all likelihood.

Class Action Lawsuits

100,000 people, injuries $50/each

Individual claims:

100,000 separate lawsuits

unlikely to litigate

Group represented by lawyers:

100,000 x 50 = $5,000,000

But, if it’s possible for a couple of people to come into court, represented by lawyers who are going to bring those claims on behalf of everybody, then suddenly 100,000 people with $50 claims becomes a $5,000,000 lawsuit, and that’s a lawsuit that’s worth litigating. So class actions can have the effect of allowing claims to get enforced that wouldn’t otherwise be enforced at all. But the flip side is that class actions have the potential to create a lot of pressure, maybe even improper pressure on defendants to settle lawsuits in order to avoid what might be crippling exposure. And there are all kinds of other reasons why class action lawsuits have to be monitored very carefully, because they can be misused or even abused in various ways. Okay. So, in New York State, there are a series of provisions in their state court systems, and in their state legal framework that address class actions. And in particular, New York brought in to being its own version of the class action, the modern class action. Several years after the federal version were brought into being. But when the lawmakers in New York created their class action system, they took a look at their laws and they said, you know, we have some statutes in New York where we have penalty provisions, we have statutory damages. We, we make certain kinds of remedies available to people on the assumption that they should get paid, not necessarily based upon how much they’ve actually been injured. But, they should get paid a, a fixed amount, which might be a larger amount than the actual injury that they’ve suffered in order to create a mechanism by which people, individual people, can actually bring these lawsuits. Or in order to create disincentives for certain kinds of defendants to engage in bad behaviour. And we think these are great. We think these make a lot of sense in our laws. But if you can have a class action in a case involving statutory or penalty damages, then suddenly you’re going to be magnifying the effects of these penalties totally out of proportion with what they were intended to do when they were first enacted. Or at least there’s a danger that that could happen. And so we in New York are going to create class actions, we think class actions are a great idea. But we’re going to create a separate provision of law that says, if you’re dealing with a statute that confers penalty damages or statutory damages, where there’s this danger that a class action could magnify the liability out of all proportion then no class actions, unless the actual statute that creates the penalty or the statutory damages authorizes class actions. In other words, we’re going to say if we’ve created statutory or penalty damages, these types of damages that are really geared towards individual enforcement and could be misused or, or at least create bad consequences if they’re the subject of a class action, you can’t have a class action for that kind of substantive law dispute. Unless we specifically say in the statute itself that you can have a class action. So that’s how New York geared its class action system in the state courts. Now, in a lawsuit that recently came before the Supreme Court, in a case called Shady Grove versus Allstate Insurance, a question arose. And the question was this. Let’s say that you’re bringing a lawsuit under New York State law. And let’s say that you’re bringing that lawsuit to enforce one of these penalty provisions or one of these statutory damages provisions.

Shady Grove v. Allstate Insurance

. lawsuit to enforce a penalty provision of statutory damages provision

. brought to federal court

. Rule 23, because it was a matter of “procedure,” controls the issue of class actions in federal courts and supersedes contrary law in the State of New York

But instead of bringing it in the New York State courts, let’s say you bring it in federal court. In many ways, the court systems in our country, the federal courts and the state courts, operate in parallel with each other. And there are many types of lawsuits, not all, but many types of lawsuits that could be brought either in the federal courts or in the state courts, and this was potentially one of them. And so the plaintiffs took a look at New York state law, and they said, well, Gee, we can’t have a class action in New York state court; because New York statutes make it very clear that this is the type of penalty case where a class action is not appropriate. But let’s just bring our lawsuit in federal court. And we can invoke Rule 23. And we can have a class action. Rule 23 doesn’t have any of these limitations that New York’s provisions have. And we can have our class action in federal court. And so the question I presented to the Supreme Court of the United States is that possible? Is it possible to bring a lawsuit in federal court based on a New York claim, where you wouldn’t be able to have a class action in the courts of New York, but you can have a class action in federal court, simply by pointing to this provision, Rule 23? And the case went up to the Supreme Court, and in a very fractured five to four in some places, six to three in other places, decision, the court said yes. And the court said, in fact, that Rule 23, because it was just a matter of quote, unquote procedure, controls the issue of class action in the federal courts for all purposes and trumps, or, or supersedes, any contrary law in the state of New York. And in particular, in response to the argument from the defendant in that case which was this insurance company, in response to the argument that there are these serious substantive implications to having a class action according to this New York Statue, where you couldn’t have it in the course of New York, and where it looks like New York law says that a class action shouldn’t happen. What the Supreme Court said was, but nonetheless, we have decided that class actions are a matter of quote, unquote, and procedure. And those procedural questions are governed by the Federal Rules of Civil Procedure. And any consequences that it might impose upon the policies of New York to allow a class action in this kind of case are merely incidental consequences that don’t change the character of this question as a quote, unquote procedural question. Now this is a very controversial opinion. And it’s an opinion that really highlights what could be at stake, when you draw this distinction between quotes procedure and quote substance in such sharp and rigid terms, class actions are the biggest and most important or one of the biggest and most important things going on in our procedural system today. And in the New York case in particular, the result of this decision by the Court was to take what was essentially a $500 lawsuit by an individual and turn it into a $5 million lawsuit on behalf of an entire class. How can that not have some kind of substantive implications? Good question. But if it does have substantive implications, then does that mean that class actions in the federal court are always problematic or always somehow invalid, because, after all, the Federal rules of Civil Procedure are, are only supposed to deal with procedure questions and are not supposed to deal with questions of substance. If class actions have substantive implications in, in every case, then maybe class actions are invalid across the board under the Rules Enabling Act of 1934. This was the vexing question that the Court was presented with in this Shady Grove versus Allstate Insurance case. And in that case, they wound up adopting a relatively formalistic, in a fairly rigid way of defining this distinction between procedure and substance. And they allowed a class action to happen in the federal courts that couldn’t have happened under the courts of, in the courts of New York and under the laws under New York. And so following this Shady Grove decision, the law today is that you can have a class action in the federal courts in a type of claim where you can’t have a class action in the State courts of New York. And the reason for that somewhat surprising result is this sharp distinction that the Court has felt the need to draw between questions of quote, unquote substance and questions of quote, unquote procedure. So, there are two lessons I want to focus on we can, I think take away from this particular grappling with the substance versus procedure distinction. The first is that it’s a distinction that we can’t avoid grappling with. The Rules Enabling Act of 1934, that statute that carries into effect the federal rules of civil procedure, in its very text draws this distinction between procedure and substance. We have to draw this distinction. But it is a very difficult distinction to administer in particular cases. And part of what the Shady Grove decision illustrates is that a lot can be at stake, and if we approach this question with too much formalism, with too much rigidity, it can produce answers that don’t seem to make a lot of sense on the ground.

Two Key Lessons

The Rules Enabling Act of 1934

. Carries into effect the federal rules of civil procedure

. draws distinction between procedure and substance

First Principle of Trans-substantivity

. rules operate irrespective of underlying substantive law

. gives more formalistic and more rigid answers to procedure versus substance

The second lesson goes back to this First Principle of Trans-substantivity. The idea that the rules are supposed to operate irrespective of the underlying substantive law, trans-substantivity, right, invites us I think to give more formalistic and more rigid answers to this question of procedure versus substance. Because if you think about it, one alternative in the Shady Grove case would have been to say that the type of statute involved in the New York case is one that needs to be treated differently in a federal class action than other types of statutes might be treated in different types of lawsuits. That might have produced a sensible result. But its intention with this trans-substantivity principle, the procedure is not supposed to vary, depending upon the underlying substance of the legal dispute before the court. And so administering this distinction between substance and procedure is necessary and unavoidable, but also very difficult. And operates in some tension with this important, but, but sometimes excessively applied, principle of trans-substantivity, which says the procedure is supposed to operate in the same way, no matter what the underlying law. If procedure is supposed to operate in the same way, no matter what the underlying law, that encourages more formalistic or rigid answers to this substance procedure distinction. And we’ve seen that dynamic play out many times.

Arbitration is a mechanism by which litigants can choose to have their disputes resolved, not in our court systems, but before a private decision maker. Arbitrators are men and women who are paid professionals, whose job it is to resolve disputes that would otherwise be heard in the court system, but whom the litigants decide to hire to resolve their dispute instead. Now why might a litigant want to have a case heard before an arbitrator instead of before a court? Well broadly speaking, arbitrators are sometimes less formal. There is the possibility that arbitration might be less expensive than a lawsuit. Arbitration can produce a quicker result sometimes.

Why Choose Arbitration?

. less formal

. less expensive

. quicker result

. more final

. less opportunities to appeal

Arbitration carries the promise, at least, of being more final because the opportunities to appeal an arbitration decision are fewer; and so litigants will often get a dispute that will be completely over at a, at a, a sooner point in the process from, from an arbitrator than would be true from a civil court system. There are many reasons why, historically, arbitration has been an option that some litigants have wanted to pursue. And in the United States, there’s a federal statute, the Federal Arbitration Act, which was enacted in 1925, which grants a favoured status to arbitration.

Federal Arbitration Act

. enacted in 1925

. grants favored status to arbitration

. if people sign a contract to arbitrate instead of litigate, the contract has to be enforceable

And in particular, what this federal statute says is that if people sign a contract in which they agree that if a dispute arises between them, then they’re going to arbitrate that dispute instead of litigating it in the courts. Then that contract has to be enforceable and courts are not allowed to set aside that contract simply because they’re hostile towards the idea of arbitration that they don’t like the idea of arbitration. Okay. So in recent years, the practice of arbitration has wound up being a major focus of attention among courts and commentators for a very specific reason, which is, the capacity of arbitration to wind up not just being an alternative venue or an alternative mechanism for disputes to be resolved but also the capacity of arbitration to displace some of the more powerful features of our procedure system. And indeed, in recent years, the Supreme Court has decided a series of cases that have given defendants, and in particular corporate defendants, who are the ones who usually draft contracts, a lot of powerful tools for shielding themselves from certain types of civil lawsuits, and certain types of powerful civil procedure tools that might be available in the federal courts. This is actually one of the major issues that is getting discussed in the field of civil procedure and dispute resolution today. And it’s worth taking a moment to spell out exactly what is at stake here. A lot of the attention on arbitration, in the last several years, has focused on class actions, and the ways in which arbitration can be used to prevent plaintiffs from bringing class actions in certain types of cases. Class actions, that powerful tool that we discussed in the previous section, are this mechanism by which lots and lots of claims that might not be affordable to bring on an individual basis, can be collected together and brought on a representative basis, all at once, in front of a court. So let’s, imagine that we have a series of potential claimants, a class of potential claimants, all of whom have signed a similar contract. It could be a contract with a credit card company. It could be a contract with a cell phone company. And they think that they have a potential claim. Let’s say that the company, in drafting its contract, has included an arbitration clause. A clause which says, if you have a dispute with this company, then you agree that you’re going to resolve that dispute through arbitration, rather than by bringing a lawsuit. So, let’s then imagine that somebody believes that they’ve been injured and they believe that the entire class of people had been injured. The company has engaged in an improper billing practice and it’s engaged in that improper practice with respect to everybody who gets a certain service from that company; classic case where the plaintiff might come into court and say, I’d like to represent not just myself but an entire class of people who have been harmed. If the company has put an arbitration clause into its contract, then the company can respond by saying, you’re not allowed to bring that case in a court. You have to bring that court before an arbitrator. So, a situation like this would present two questions. First of all, can the defendant really force this case to be heard in front of an arbitrator instead of in front of a court? Can the arbitration clause really be enforced?

Question of Contracted Arbitration

. Can the defendant force a case in front of an arbitrator?

. Can the arbitration clause really be enforced?

. Are there limits on the ability compel its enforcement?

. Can it be heard as a class?

. Is there such a thing as class arbitration?

. What are the circumstances of a class proceeding in front of an arbitrator instead of a court?

And more to the point are there any limits on the ability of the drafter of that arbitration clause to compel its enforcement. The second question is, let’s say the case is heard in front of an arbitrator. Can it be heard as a class, nonetheless? Is there such a thing as class arbitration? And what are the circumstances under which there might be a class proceeding in front of an arbitrator, instead of a class proceeding in front of a court? In a series of decisions over the last ten years or so, the Supreme Court has addressed these questions. And it has addressed these questions in a way that severely limits the ability of plaintiffs to bring class action proceedings. And in particular, it gives defendants and the people who draft contracts, mostly corporate actors who provide services or perhaps even who employ a lot of people. It gives a lot of tools to those types of defendants to shield themselves from certain types of class or, or mass adjudication. In particular, let’s talk about two cases that the Supreme Court has decided, that addressed this question of the ability of defendants, and in particular corporate actors, to use arbitration clauses to shield themselves from certain kinds of class actions or mass disputes. One of them is called AT&T Mobility versus Concepcion and it was decided in 2011. And the second is called American Express versus Italian Colours Restaurant, which was decided in 2013.

Supreme Court Cases

ability of defendants to use arbitration clauses to shield themselves from class actions

AT&T Mobility v. Conception

. 2011

American Express v. Italian Colours Restaurant

. 2013

Both of these were cases in which the corporate defendant had drafted a contract. In the case of AT&T Mobility, it was a contract for cell phone services that was drafted for the company’s customers. In the case of American Express, it was a merchant agreement that American Express entered into with certain merchants, like restaurants for example, that specified the terms on which those restaurants could accept American Express cards by way of payment. And in both of these contracts, the company included an arbitration clause, that said that this lawsuit had to be litigated if at all, as arbitration rather than as a lawsuit. And, both of these contracts were also designed to explicitly prevent class actions. And the arbitration clause not only said, this case has to be arbitrated, but the arbitration clause also said no class-wide arbitration. And in the case of At&T Mobility versus Concepcion, there were some provisions in the contract that sought to make it easier for individuals to bring individual arbitrations. But that made it clear that class-wide arbitrations were not permitted. In Italian Colours, there were provisions that not only made it clear that a class action wouldn’t be possible, but there were also provisions that prevented merchants from banding together on a more individual basis, and seeking to pool their resources, and make it more affordable for them collectively to bring a lawsuit asserting what was, in that case, anti-trust claims, federal anti-trust claims against American Express. Both of these lawsuits went up to the Supreme Court, on the question of whether these arbitration clauses could be enforced. And in both cases, the argument was not just a sort of abstract question about the enforceability of the arbitration clause, but they were questions specifically about what the practical impact of the arbitration clause would be, on the ability of people to assert their claims. So in AT&T versus Concepcion, the question was whether in the absence of a class action, there was going to be any real enforcement under state law against what the plaintiffs asserted was an improper billing practice on the part of AT&T Mobility. And in the Italian Colours case, the question was whether there would be any affordable mechanism at all for these individual merchants to assert their anti-trust claims. To assert that American Express was misusing its market power in some way, in defining the terms that it extracted from merchants, this was the allegation in their, in their payment relationships. And there were very good arguments to the effect, in both of these cases, that if the arbitration clause was enforced on its terms, that the practical consequence would be that there either would be very few claims brought, in the AT&T case, or there might be no claims at all brought, in the Italian Colours case, because it simply would not be affordable for individuals to assert these claims on their own. And in both cases, the Supreme Court held that under this very powerful statute, or the statute at least that it’s interpreted in very powerful ways, the Federal Arbitration Act, that the arbitration clauses had to be enforced. That the corporate defendants could draft these clauses, which it would offer to people as what’s often called a contract of adhesion. That is to say, these are the terms on which we’re willing to do business with you.

Supreme Court Decisions

Federal Arbitration Act

. arbitration clauses had to be enforced

Contract of Adhesion

. terms of business

. non-negotiable

We’re not going to negotiate these contract terms. And you’ve probably signed half a dozen contracts of adhesion in the past couple of weeks, if you’ve made reservations online, if you’ve signed up for a gym membership. All of these everyday activities that we engage in, that involve clicking online or checking a box or signing a contract, have many, many terms in them that we would never think about trying to negotiate, and that indeed, might not be subject to any negotiation. That’s often described as a contract of adhesion. And defendants have the ability now, corporate actors have the ability now, to write these arbitration clauses that shield them from some of the very powerful procedural mechanisms by which people who think they’ve been injured, might otherwise be able to seek to pursue their claims and the question that was before the court in the Concepcion case and in the Italian colours case was, are there any limits on the ability of a corporate defendant to succeed, to enforce those arbitration clauses, even if what it means is that the plaintiff is going to be deprived of any practical opportunity to enforce their claims. And in both cases, the Supreme Court said, yes. And in, in the Concepcion case, which was a state law case, the court focused a lot on the ways in which federal law trumps state law Federal law in this case being the Federal Arbitration Act. And the court said, specifically, that even if the enforcement of an arbitration clause under this federal statute might mean that certain claims might quote, unquote, fall through the cracks. But that’s not a basis for arguing around the mandate of this federal statute as the Supreme Court interpreted it. The Italian Colours case was a case in which the claims at issue were federal claims, and so you had two federal statutes potentially squaring off against each other. The Anti-Trust Statute on the one hand, the Federal Arbitration Act on the other hand. And so the plaintiffs in the Italian Colours case said, well our case is different, there has to be some kind of accommodation between these two competing federal statutes. The Supreme Court wasn’t buying it and they said once again, as in Concepcion, that the mandate, what the court viewed as the mandate of the Federal Arbitration Act, require this arbitration clause to be enforced. And the court said, in the Italian Colours case, that the mere fact that a plaintiff has a claim under a statute like the Anti-Trust Statute, doesn’t guarantee that the plaintiff will have an affordable procedural path towards the vindication of that claim. And so even if the arbitration clause is structured in such a way that, as a practical matter, it becomes impossible for a plaintiff to pursue her claim, the mere fact that, as a practical procedural matter, the claim becomes unaffordable, doesn’t mean that, that other federal statute, that competing federal statute, has somehow been improperly treated or improperly served. Now, this I think once again, has two important lessons for us. Number one, procedure really matters, and the mechanisms by which plaintiffs seek to enforce their claims are sometimes just as important as the definition of their substantive rights under the applicable law. And, this is a fact that the people who draft contracts and the people who make major financial planning understand very well.

Two Key Lessons

Procedure matters

. mechanisms to enforce claims are sometimes as important as the definition of substantive rights under the applicable law

. contracts and financial planning

. focusing on how procedure operates is often just as important for corporate defendants and for plaintiff’s advocates as well as focusing on the definition of people’s substantive rights

And so, focusing on how procedure operates is often just as important for corporate defendants and indeed for plaintiff’s advocates, as well as focusing on the definition of people’s substantive rights. The second lesson that I think this has for us, is the importance of remembering our history. We started this conversation with this quote, this famous quote from Karl Llewellyn, that it is important to read the substantive law courses in law school through the spectacles of procedure.

Two Key Lessons

Procedure matters

Remember our history

. important to read the substantive law courses in law school through the spectacles of procedure

. substantive law means nothing except in terms of what procedure says that you can make real

Because substantive law means nothing except in terms of what procedure says that you can make real. In 2013, we had the Supreme Court saying something that sounds almost the polar opposite. The Supreme Court’s saying, yes, you may well have substantive rights, but having a substantive right doesn’t entitle you to an affordable procedural path for actually vindicating and enforcing that right. In saying that, the Supreme Court seems, in some ways, to have forgotten or perhaps even to have rejected the lessons that gave rise to the federal rules of civil procedure in the first place. The lessons that said that you need to understand substantive principles through the spectacles of the procedure, because substance means nothing except in terms of what procedure says that you can make real. In deciding how to administer questions of trans-substantivity, how to draw distinctions between substance and procedure, and when it should be permissible for powerful actors to opt out of the procedural system, even when it means shielding themselves from all kinds of liability. I think it’s very important for us to continue viewing the substantive law through the spectacles of the procedure. The observation that Karl Llewellyn made, way back in 1929, has proven to be just as true today as it was then.

Fallacies of Vacuity: Circularity, Begging the Question, Self-sealers.

March 17, 2015 Titivillus Logic Begging the Question, Circularity, Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata, Self-sealers

Fallacies of Vacuity

We’ve devoted this week so far to talking about fallacies or relevance but today we’re going to talk about fallacies of vacuity. Let me begin by defining what a fallacy of vacuity is.

What is a fallacy of vacuity?

A fallacy of vacuity is a fallacy that results when an argument starts by assuming what it’s supposed to establish.

A fallacy of vacuity is a fallacy that results. When, roughly speaking, an argument starts by assuming what it’s supposed to establish. You could think of it this way. A fallacy of vacuity is an argument that doesn’t go anywhere its starting points presuppose what it is that the argument is supposed to prove. Okay, so there are different kinds of fallacies of vacuity.

Kinds of fallacies of vacuity

Circularity: when the conclusion of an argument is among the premises.

Begging the question: when you have no reason to believe all the premises of an argument that is independent of the reason that you have to believe its conclusion.

Self-sealing: when a proposition or an argument is irrefutable by any possible consideration, and so does not rule out anything.

And in this lecture and the next we are going to be talking about three different kinds of fallacies of vacuity. The first is something called circularity a circular argument. A fallacy of circularity occurs when an argument’s conclusion is contained among its premises. You write out the premises of the argument and one of the premises just is the conclusion, that’s a circular argument. And that fallacy is called circularity another broader kind of fallacy of vacuity, when I say broader kind of fallacy of vacuity. I mean this kind of fallacy of vacuity includes circularity as a sub species is what’s called begging the question. Begging the question is when an argument has the following feature. In order to be reasonable in believing the premises of that argument, you already have to have a good reason for believing the conclusion. So, unless you already have a good reason for believing the conclusion independently of the premises the argument can’t go anywhere because you won’t have a good reason for believing the premises. And so, if you don’t have a good reason for believing the premises, then the argument can’t give you a good reason for believing the conclusion. So roughly, an argument begs the question when you need to have a good reason for believing the conclusion already in order for you to have a reason to believe the premises of the argument. That’s begging the question. That includes circularity. Because notice, in a circular argument, you have to have a good reason for believing the conclusion in order to have a good reason for believing the premises because the conclusion is one of the premises. But begging the question can happen even without circularity, and we’ll talk about examples of that next time. The last kind of fallacy of vacuity that I wanted to describe is something called self-sealing. Now a self-sealer can be either a proposition or an argument. But roughly, a self-sealer is when a proposition or an argument is irrefutable by any possible consideration, no matter what. And so it doesn’t rule out anything. So, if I make some claim to the effect that at a certain point in time, you will then be doing exactly what you will be doing. You might think, well yeah, so what does that tell me? What possible situations are ruled out by that statement? The answer is none. And so that statement is empty, it’s “vacuous”. It’s a self-sealer in the sense that there’s no possible situation that it rules out. And so there’s no possible consideration or evidence that could be brought forth against it. A self-sealing argument is one that commits a fallacy of acuity. Because it does assume what it’s intended to establish unfortunately, in a self-sealing argument. What it’s intended to establish is nothing of any significance. It’s nothing that rules out any possibility. And so, it does tend to assume what it’s supposed to establish. So, those are three kinds of vacuity that I wanted to distinguish. In the next lecture, we’ll talk a bit more about circularity and begging the question. And in the lecture after that, we’ll talk a bit more about self sealing.

Circularity and Begging the Question

Now that we’ve introduced the topic of fallacies of acuity, today we’re going to talk about circularity and begging the question. So, what are these things? What is circularity and what is begging the question?

What is circularity?

A fallacy of circularity is a fallacy that results when an argument’s premises contain its conclusion.

Circularity is a fallacy that results when an argument’s premises contain its conclusion when the conclusion is right there among the premises. Now this is a really egregious fallacy. Not one that people are likely to make very often because it’s so easy to notice but let me give you an example, just so you can see what I’m talking about.

Example

This argument has a premise.

This argument has a conclusion.

——————————————-

Therefore, this argument has a conclusion

So consider this simple example of circularity. Premise one, this argument, this very argument, has a premise. Premise two, this very argument has a conclusion. Therefore, conclusion, this argument has a conclusion. Now, notice, the conclusion of that argument is the same proposition as premise two of that argument. In other words, the conclusion is right in the premises. That’s a circular argument. That’s an example of a fallacy of circularity. That’s pretty hard to miss. And that’s not the kind of fallacy that most people often make. But circularity is one very egregious example of a more general kind of fallacy that lots of people make. And that’s called begging the question.

What is begging the question?

A fallacy of begging the question is a fallacy that results when you cannot have a reason to believe an argument’s premises unless you have an independent reason to believe its conclusion.

So what’s begging the question? Well, begging the question is a kind of fallacy that results when you can’t have any reason for accepting the premises of the argument, unless you already have some independent reason for believing the conclusion. So, in a certain sense, the argument assumes what it sets out to prove because unless you already have a good reason for believing the conclusion to be true, you can’t have a good reason for believing the premises to be true. And without having a good reason for believing the premises to be true, the argument can’t give you any insight. It can’t teach you anything. No argument can teach you something unless you have a good reason for believing the premises of that argument to be true. So, that’s the fallacy of begging the question. Now, what’s an example of that? Well, these examples can be a little more subtle. Right, because not all forms of begging the question are circularity. Let me give an example of begging the question that doesn’t involve circularity.

Example

The Pope says that he is infallible.

Whatever the Pope says is always right.

————————————–

Therefore, the Pope is infallible.

So consider this argument, again it’s a simple argument. The Pope says that he is infallible. Premise two; whatever the Pope says is always right. Therefore, conclusion, the Pope is infallible. Now notice, that argument is obviously valid. Right, if the Pope says that he’s infallible, and whatever he says is right, then he must be right to say that he’s infallible. In fact, that’s how the doctrine of papal infallibility was first established, was by papal decree. I’ll let you look that up. Anyhow, if the premises of the argument are true, the conclusion has to be true. So the argument is valid. But even though the argument is valid, in fact even if the argument is sound, the argument is still a fallacy. And the reason it’s a fallacy, is that we can’t have any good reason for believing premise two of the argument. Unless we already have some reason independently of the argument, for believing the conclusion, right? Unless we already know that the Pope is infallible, why should we believe that whatever the Pope says is always right? Well, maybe there is some other reason, but unless that additional reason is supplied in the argument, this argument begs the question. It begs the question, because it relies on premises that we have no reason to believe unless we already have a good reason to believe the conclusion independently of the argument itself. So this argument is an example of begging the question. But notice it’s not an example of circularity. The conclusion of the argument that the Pope is infallible, that conclusion is not in the premises. It’s not one of the premises. Right, there two premises in the argument and neither of those premises says precisely that the Pope is infallible. So this argument is an example of begging the question, but it’s an example of begging the question that doesn’t involve circularity. And that sort of fallacy is much harder to notice, much easier to make and much more common in everyday life. You can see some examples right now.

Self-Sealers

Today, we’re going to conclude our discussion of fallacies of acuity by talking about self-sealers. So what’s a self-sealer? Let me start by giving a definition and then giving some examples. So first, a self-sealer is a proposition or an argument that’s irrefutable.

What are self-sealers?

A self-sealer is a proposition or argument that is irrefutable because it does not claim anything, it does not rule out any conceivable situation.

It can’t be refuted. Because, it doesn’t claim anything, it doesn’t rule out any conceivable situation. So, in that sense it doesn’t place any constraint on how the world has to be, any possible way that the world is would conform to the proposition. So, what are some examples of that?

Example of a self-sealing proposition

“All human action is selfish”

Apparent counterexample: self-sacrificing heroism

Rebuttal: heroism is motivated by desire to be a hero

Well, suppose someone says, and you might have heard philosophers who say this, suppose someone says, all human action is selfish. Now, at first, this seems like a bold conjecture a very substantial thesis that could be right or it could be wrong. There’s an obvious objection to this thesis you say well look what about self sacrificing heroism. Occasionally people will lay down their lives, in the service of a cause that’s larger than they are. Suppose you present this counter example to the proponent of this generalization, and they say, well, look even self-sacrificing heroism is itself, motivated by the desire to be a hero, so the person who is performing the self-sacrificing heroism is still really acting selfishly, because they’re just trying to satisfy their own personal desire to be a hero. Some people want chocolate, and so they go out to get chocolate. Some people want to be a hero, so they go out looking to be a hero. Okay well, suppose we decide to investigate this further. We find people who are who tend to engage in self-sacrificing, heroic behavior. Maybe people who are lucky enough to have engaged in such behavior in the past and they’re still alive, and so, we find such people, and we test them in various ways. We do brain scans of them. We give them various surveys. We do behavioral tests on them, trying to test whether or not they have the desire to be a hero. And all our tests come up empty-handed. We just don’t find any evidence, no matter how many tests we perform. We don’t find any evidence that this person, or these people, really do have the desire to be a hero. They just aren’t thinking about being a hero. They just want to save the world, or save their fellow people, or save the environment, or whatever. So, it’s because of the larger cause that they’re thinking about, that they engage in self-sacrificing, heroic behavior, and we have no evidence that they want to be a hero. Now suppose that we present all of this evidence to the proponent of the generalization in question. We say Look. We’ve tested these people. We’ve given them brain scans, we’ve done surveys with them, we’ve done all sorts of behavioral tests with them, and we can’t find any evidence that they have some desire to be a hero, a desire that motivates their self-sacrificing heroic behavior. And suppose that we put this to the proponent of the generalization, they reply by saying, oh, look, even if their desire to be a hero isn’t rendered apparent by the tests that you’ve performed, it must still be there. After all, how else could we explain their self-sacrificing heroic behavior? Okay, but now it’s clear that the person is offering us a self-sealer. It’s a position which they can defend, no matter what evidence they’re presented with. So no matter what evidence comes up, no matter what consideration come up they can stick to their guns. They can continue to propound their view that all human action is selfish. But now it’s pretty clear that the view they’re propounding the proposition they’re putting forth Doesn’t claim anything. It doesn’t rule out any possible way that the world could be. Because as we come upon various ways that the world is that seem to tell against their generalization, what they do is they make their generalization less and less specific, so that even if the selfishness of which they speak isn’t made manifest in any way at all. It’s going to be made manifest in the human action itself, right? So as long as there is human action there’s going to be selfishness they say because what other way could you explain the human action. Okay, that’s a self sealer. It’s a self sealer because they’re simply insisting on the position in the face of any evidence that comes up. Now, that’s a self-sealing proposition.

Example of a self-sealing argument

Most self-sealing arguments are simply arguments that contain sele=sealing propositions. But here’s an exception:

Premise: Not every argument has a conclusion.

See?

What’s a self-sealing argument? Well, typically, self-sealing arguments are arguments that contain among their premises self-sealing propositions; they’re arguments that depend on self-sealing propositions. But there might be an example of a self-sealing argument that isn’t like that. I say might, I don’t say there is an example, and I say there might be an example. Let me offer it to you now and see what you all think. Here’s the example. Premise one. Not every argument has a conclusion. See. Now, I know what you’re thinking. You’re thinking, wait a second, didn’t we define argument way back in one of those early weeks with a different teacher, didn’t we define argument as something that had one or more premises and a conclusion? Wasn’t that just built in to the very definition of argument? Well, look. Sometimes things can be built in to the very definition of something. But still, you can come upon considerations or evidence that lead you to revise that definition. All right, there’re all sorts of institutions in human life that are defined in various ways and then as the world changes, we decide we want to revise that definition and there could be good reasons for doing so. So, originally we defined an argument as some premises and conclusion but, maybe we should revise that definition. Why does an argument need to have a conclusion? Couldn’t an argument just have a premise and that’s it? Well, I’ll let you debate that in the forums. But I just wanted to point out that if this really is an argument, if this premise really does constitute an argument, then the premise is true that not every argument has a conclusion. But unless you can think of some way of refuting, the proposition that not every argument has a conclusion, then this particular argument, consisting of the premise that not ever argument has a conclusion, this particular argument is a self-sealer, because there’s no evidence that you could present, to show that the argument itself is unsound or unsuccessful. So, that’s an example of an argument that’s a self-sealer, which, if it’s an argument that’s a self-sealer, is not the same as any particular proposition that’s a self sealer, because the premise, not every argument has a conclusion. That premise is a proposition. And that proposition is not a self-sealer. But if that premise is an argument, the argument may be a self-sealer.. So that concludes our week on fallacies of relevance and vacuity. I’ll see you next week, when we’ll talk about refutation.

Appeals to Popular Opinion

March 17, 2015March 17, 2015 Titivillus Logic Jan Sanders Cartoons, Logic, Logical Fallacies, Ram Nata

Over the last few lectures, we’ve been talking about fallacies of relevance, including ad hominem arguments, and appeals to authority. Today, I want to talk about a kind of argument that’s similar to an appeal to authority, but not exactly the same, it’s an appeal to popular opinion. Okay, so what’s an appeal to popular opinion? Here, let me give a definition and then some examples.

What is an Appeal to Popular Opinion?

An Appeal to Popular Opinion is an argument that begins with premises about the popularity of a particular claim, and ends with a conclusion endorsing that claim.

An appeal to popular opinion is an argument that begins with premises about the popularity of a particular claim, and ends with a conclusion endorsing that claim. Roughly, an appeal to popular opinion is an argument of the form; well everyone believes it so it must be true. Now, some arguments of that form are actually good arguments. Let me give you some examples.

Example

(1) Many people think that the verb “to emulate” is a synonym of “to imitate”.

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(2) Therefore, at least one of the meanings of the verb “to emulate” is the same as “to imitate”.

So, here’s an argument, premise, many people think, at least in my experience as a teacher, I found many people think that the verb, to emulate, is a synonym of the verb, to imitate. Therefore, conclusion, at least one of the meanings of the verb, to emulate, is the same as the meaning of the verb, to imitate. Now that’s an appeal to popular opinion, it starts out saying what it is that a lot of people think and then it draws a conclusion that what a lot of people think is true. But here, I think this is actually a pretty good argument and the reason it’s a good argument is because what the verb to emulate means depends, at least in part, on what the users of that verb take it to mean. What they use it to mean. And if people are using the verb to emulate, to mean imitate, then at least one of the meanings of the verb to emulate becomes, imitate. So, popular opinion is, in this example, popular opinion makes it true that the verb to emulate has at least one of the meanings that it has. Okay, here’s another example in a different domain. But a similar sort of phenomenon, where you have a good argument, that’s an appeal to popular opinion.

Another example

(1) More and more merchants regard the local currency as losing value.

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(2) Local currency is losing value.

So, premise, more and more merchants regard the local currency as losing value. Therefore, conclusion, the local currency is losing value. Once again this is a pretty good argument, and its a good argument because if more and more merchants regard the local currency as losing value, then there not going to be as willing to trade their goods and services for the local currency. They will demand more of the local currency in exchange for their goods and services, or maybe they simply won’t be willing to accept the local currency at all in exchange for their goods and services. And if that’s true, then the local currency will lose value because each unit of the local currency will have less purchasing power. And so the local currency will use, will lose value. Once again, here’s a case where popular opinion makes true what it is that the people believe. Alright, so this is a good argument that’s an example of an appeal to popular opinion. Not all opinions to popular appeal are good arguments, some of them are bad arguments, and some of them are fallacies. And let’s take a look at some of those right now.