Discussion

CRITICAL THINKING This page intentionally left blank CRITICAL THINKING Consider the Verdict Sixth Edition Bruce N. Waller Youngstown State University Boston Columbus Indianapolis New York San Francisco Upper Saddle River Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montreal Toronto Delhi Mexico City Sao Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo Editorial Director:Craig Campanella Editor in Chief: Dickson Musslewhite Executive Editor: Ashley Dodge Editorial Project Manager: Kate Fernandes Director of Marketing: Brandy Dawson Senior Marketing Manager: Laura Lee Manley Production Liaison: Barbara Reilly Operations Specialist: Christina Amato Manager, Text Rights and Permissions: Charles Morris Cover Manager: Jayne Conte Cover Designer: Suzanne Behnke Cover Image: tlegend/Shutterstock Media Director: Brian Hyland Media Editor: Rachel Comerford Media Project Manager: Barbara Taylor-Laino Full-Ser vice Project Management: Shiny Rajesh, Integra Software Services Pvt. Ltd.

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Librar y of Congress Cataloging-in-Publication Data Waller, Bruce N., Critical thinking : consider the verdict / Bruce N. Waller. — 6th ed.p. cm.

ISBN-13: 978-0-205-15866-9 (alk. paper) ISBN-10: 0-205-15866-8 (alk. paper) 1. Critical thinking. 2. Verdicts. 3. Logic. I. Title.

BC177.W3 2012 160.2'434—dc22 2011010803 1098765432 Student Edition ISBN-10: 0-205-15866-8ISBN-13: 978-0-205-15866-9 À la Carte Edition ISBN-10: 0-205-15881-1 ISBN-13: 978-0-205-15881-2 www.pearsonhighered.com Contents Preface xiii Acknowledgments xvii 1 Introduction 1 Critical Thinking in Everyday Life 1 Play Fair 2 Seating a Jury 2 Jury Research: Eliminating or Selecting Bias? 3 Impartial Critical Thinking 4 Adversarial Critical Thinking 5 Cooperative Critical Thinking 7 Internet Resources 12 Additional Reading 12 2 A Few Important Terms 14 Arguments 14 Statements 14 Premises and Conclusions 16 Deductive and Inductive Arguments 19 Deduction, Validity, and Soundness 21 Induction, Strong Arguments, and Cogent Arguments 23 v Review Questions 27 Internet Resources 27 Additional Reading 27 3 Ad Hominem Arguments 28 The Ad Hominem Fallacy 28 Nonfallacious Ad Hominem Arguments 29 Ad Hominem and Testimony 31 Distinguishing Argument from Testimony 33 Tricky Types of Ad Hominem 41 Bias Ad Hominem 41 Inconsistency and Ad Hominem 44 Psychological Ad Hominem 47 Inverse Ad Hominem 48 Attacking Arguments 49 Review Questions 54 Internet Resources 55 Additional Reading 54 4 The Second Deadly Fallacy: The Strawman Fallacy 56 Straw Man 57 The Principle of Charity 58 The Strawman Fallacy 58 Special Strawman Varieties 63 Limits on Critical Thinking 63 Review Questions 65 Internet Resources 66 Additional Reading 65 5 What’s the Question? 67 Determine the Conclusion 67 What Is the Exact Conclusion? 68 Review Question 74 6 Relevant and Irrelevant Reasons 76 Premises Are Relevant or Irrelevant Relative to the Conclusion 77 vi Contents Irrelevant Reason Fallacy 81 The Red Herring Fallacy 81 Review Questions 90 Internet Resources 91 Additional Reading 91 7 Analyzing Arguments 92 Argument Structure 92 Convergent Arguments 92 Linked Arguments 95 Subarguments 96 Assumptions: Their Use and Abuse 109 Legitimate Assumptions 109 Enthymemes 111 Illegitimate Assumptions 111 Review Questions 113 Internet Resources 114 Additional Reading 114 8 The Burden of Proof 115 Who Bears the Burden of Proof? 115 Appeal to Ignorance 117 The Burden of Proof in the Courtroom 117 Presumption of Innocence 118 When the Defendant Does Not Testify 119 Juries and the Burden of Proof 120 Unappealing Ignorance 123 Review Questions 127 Internet Resources 128 Additional Reading 128 9 Language and Its Pitfalls 129 Definitions 129 Stipulative Definitions 130 Controversial Definitions 131 Deceptive Language 131 Contents vii The Fallacy of Ambiguity 132 Amphiboly 136 Review Questions 139 Internet Resources 139 Additional Reading 139 10 Appeal to Authority 140 Authorities as Testifiers 141 Conditions for Legitimate Appeal to Authority 141 Popularity and Tradition 148 Review Questions 154 Internet Resources 154 Additional Reading 154 Cumulative Exercises One 156 (Chapters 1 through 10) 11 Arguments by Analogy 164 Figurative Analogy 164 Deductive Argument by Analogy 165 The Fallacy of Faulty Analogy 170 Analyzing a Deductive Argument by Analogy 175 Deductive Arguments by Analogy and Cooperative Critical Thinking 179 The Fallacy of Analogical Literalism 180 Caution! Watch for Analogies That Look Like Slippery Slopes! 182 Inductive Arguments by Analogy 184 Review Questions 201 Internet Resources 202 Additional Reading 202 12 Some Distinctive Arguments and Potential Pitfalls: Slippery Slope, Dilemma, and Golden Mean Arguments 204 Slippery Slope 204 Separating Slippery Slopes from Straw Men 205 The Slippery Slope Fallacy 206 Genuine Slippery Slopes 206 viii Contents Dilemmas, False and True 211 Genuine Dilemmas 212 False Dilemmas 212 False Dilemma Combined with Straw Man 216 Consider the Possibilities 216 Golden Mean 220 The Golden Mean Fallacy 220 Constructing Golden Mean Fallacies 220 Review Questions 224 Internet Resources 225 Additional Reading 225 13 Begging the Question 226 The Problem with Question-Begging Arguments 226 A New and Confusing Use of “Begs the Question” 227 Subtle Forms of Question Begging 227 Synonymous Begging the Question 227 Generalization Begging the Question 228 Circular Begging the Question 229 False Charges of Begging the Question 231 Self-Sealing Arguments 231 Complex Questions 233 Review Questions 238 Internet Resources 238 Additional Reading 238 Cumulative Exercises Two 239 (Chapters 1 through 13) 14 Necessary and Sufficient Conditions 253 Necessary Conditions 253 Distinguishing Necessary from Sufficient Conditions 255 Sufficient Conditions 256 Necessary and Sufficient Conditions in Ordinary Language 256 Conditional Statements 258 Alternative Ways of Stating Necessary and Sufficient Conditions 259 Both Necessary and Sufficient 261 Contents ix Valid Inferences from Necessary and Sufficient Conditions 267 Modus Ponens 267 Modus Tollens 269 Fallacies Based on Confusion between Necessary and Sufficient Conditions 269 The Fallacy of Denying the Antecedent 269 The Fallacy of Affirming the Consequent 270 Detecting Argument Forms 271 Review Questions 277 Internet Resources 277 Additional Reading 277 15 Scientific and Causal Reasoning 278 Distinguishing Causation from Correlation 279 The Questionable Cause Fallacy 283 The Method of Science 286 Randomized Studies and Prospective Studies 287 Making Predictions 288 When Predictions Go Wrong 289 Faulty “Scientific” Claims 291 Confirmation Bias 293 Scientific Integrity, Scientific Cooperation, and Research Manipulation 294 Review Questions 297 Internet Resources 298 Additional Reading 298 16 The Truth, the Whole Truth, and Nothing but the Truth 299 Eyewitness Testimony 300 Potential Sources of Eyewitness Error 300 Judging the Honesty of a Witness 307 The Whole Truth 309 Are the Premises True? 312 Digging for Truth 312 Consider the Source 313 Review Questions 314 Internet Resources 315 Additional Reading 316 x Contents Cumulative Exercises Three 318 (Chapters 1 through 16) 17 Thinking Critically about Statistics 343 All Children Are Above Average 343 Empty Statistics 345 Finding the Appropriate Context 345 Caught Off Base 346 Statistical Apples and Oranges 346 Statistical Half-Truths 348 Sample Size and “Statistical Significance” 348 How to Make Your Study Yield the Results You Want 349 Surveys 352 Review Questions 356 Internet Resources 356 Additional Reading 357 18 Symbolic Sentential Logic 358 Truth-Functional Definitions 358 Negation 358 Disjunction 359 Conjunction 360 Conditional 360 Material Implication 361 Testing for Validity and Invalidity 363 Punctuation 366 The Truth-Table Method of Testing for Validity 370 The Short-Cut Method for Determining Validity or Invalidity 374 Review Questions 387 19 Arguments about Classes 388 Types of Categorical Propositions 389 Relations among Categorical Propositions 390 Venn Diagrams 391 Diagramming Statements 391 Diagramming Arguments 396 Contents xi Translating Ordinary-Language Statements into Standard-Form Categorical Propositions 407 Reducing the Number of Terms 409 Review Questions 410 Additional Reading 410 Consider Your Verdict 411 Comprehensive Critical Thinking in the Jury Room State v. Ransom 411 Judge Schwebel’s Summation and Charge to the Jury 424 Internet Resources 425 Additional Reading 425 Key Terms 427 Answers to Selected Exercises 433 Index 445 xii Contents Preface Critical thinking is a valuable skill: whether you are deciding which courses to take or career to pursue, what toothpaste to use or what stocks to buy, which candidate to vote for or which cause to support, which reports to believe or what claims to reject, critical think- ing can be very useful. One of the most important places for careful critical thinking is the jury room. Serving on a jury is one of the most significant and basic ways that citizens actively participate in their government, and jury service makes strong demands on citi- zen-jurors. Jurors must set aside any biases and judge the issues fairly; they must reason carefully about what laws are involved and how those laws apply to the specific case at hand; they must evaluate testimony and weigh both its accuracy and its relevance; and they must give a fair hearing to both sides, distinguish sound from erroneous arguments, and ultimately reach a just and reasonable conclusion. The courts offer fascinating cases for examination and analysis, and the courts have long grappled with many of the key issues in critical thinking: questions about burden of proof, legitimate analogies, distinc- tions between relevant and irrelevant reasons, question-begging arguments and unfair questions, the weighing of testimony (including expert testimony and appeals to expert authority), the distinction between argument and testimony, the legitimate and illegiti- mate use of ad hominem arguments.

The courtroom demands a high level of critical thinking skill, and it is also a fascinat- ing place for studying and developing the key skills of critical thinking: determining exactly what the conclusion is, and who bears the burden of proving it; separating false claims from reliable information; setting aside irrelevant distractions and focusing on the question at issue; and distinguishing between erroneous and legitimate arguments. The skills that make you an effective juror will also make you an intelligent consumer, an effective planner, and a wise citizen.

The sixth edition of Critical Thinking: Consider the Verdictuses the jury room as the focus for developing basic critical thinking skills, but it does not stop there. Those skills are also applied to the various arguments and issues that arise in our daily lives as consumers, students, planners, and citizens. While the courtroom and the jury room are valuable laboratories for learning and testing and applying critical thinking abilities, those abilities must also be exercised when reading editorial columns, debating social issues, making intelligent consumer choices, working effectively at a career, and fulfilling one’s responsibilities as a thoughtful critical citizen of a democracy. Thus, most xiii of the exercises and examples are drawn from advertisements, social debates, political campaigns, editorials, and letters to the editor. Critical thinking skills are valuable in the jury room, but they are also valuable in the classroom, the boardroom, the laboratory, and the grocery store.

Critical thinking is often regarded as an adversarial process, where the stronger arguments triumph over the weaker. Adversarial critical thinking is common and is often valuable: Cases in court usually proceed through an adversarial process, and that can be a useful way of bringing out both strong and weak points in the arguments presented. But not all critical thinking follows the adversarial model, and the sixth edition of Critical Thinking: Consider the Verdictgives careful attention to the contexts when cooperativecritical thinking may prove particularly useful. Several factors enhance effective cooperative critical thinking, and several argument fallacies are especially damaging to a cooperative critical thinking process. Both the promise and the pitfalls of cooperative critical thinking are examined in this new edition.

The sixth edition of Critical Thinking: Consider the Verdictcontains a number of impor- tant changes and additions. • Extensive new discussion of cooperative critical thinking (as distinguished from adversarial critical thinking), and examination of its special strengths and the contexts in which it is most effective.

• New and updated exercises and examples in every chapter.

• A new section on definitions, including examination of misleading definitions.

• Extensive new material on statistical fallacies and deceptions.

• A new section on the importance of scientific integrity and scientific cooperation.

• Additional new exercises in the special-review sections (the sections of cumulative exercises). Critical Thinking: Consider the Verdict, sixth edition, provides a solid introduction to critical thinking; Chapters 18 and 19 offer introductory instruction in symbolic logic. Those two chapters are self-contained, and you may do either or both at any point in the course, or skip them altogether. The boxed exercises and examples throughout the text are not essential to understanding the chapters, but they do present interesting material and challenging questions. You can skip them, but you’ll miss a lot of the fun. xiv Preface Support for Instructors and Students The moment you know.Educators know it. Students know it. It’s that inspired moment when something that was difficult to understand suddenly makes perfect sense. Our MyLab products have been designed and refined with a single purpose in mind—to help educators create that moment of understanding with their students. The new MyThinkingLab delivers proven resultsin helping individual students succeed. It provides engaging experiencesthat personalize, stimulate, and measure learning for each student.

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MyThinkingLab can be used by itself or linked to any learning management system (LMS). MyThinkingLab—the moment you know.

Instructor’s Manual with Tests (0-205-15875-7):For each chapter in the text, this valuable resource provides a detailed outline, list of objectives, and discussion questions. In addi- tion, test questions in multiple-choice, true/false, fill-in-the-blank, and short answer for- mats are available for each chapter; the answers are page referenced to the text. For easy access, this manual is available at www.pearsonhighered.com/irc.

PowerPoint Presentation Slides for Critical Thinking: Consider the Verdict (0-205-15877-3):These PowerPoint Slides help instructors convey critical thinking princi- ples in a clear and engaging way. For easy access, they are available at www.pearsonhighered.

com/irc.

MyTest Test Generator (0-205-15878-1):This computerized software allows instructors to create their own personalized exams, edit any or all of the existing test questions, and add new questions. Other special features of the program include random generation of test questions, creation of alternate versions of the same test, scrambling question sequence, and test preview before printing. For easy access, this software is available at www.pearsonhighered.com/irc. xv This page intentionally left blank Acknowledgments I have received help and encouragement from many quarters. The first edition of the book was completed while I was teaching at Elon College, and my colleagues and students there were generous in their support and aid. John G. Sullivan read several drafts of the book, and provided insightful, challenging, and constructive criticism—while making my work environment congenial and refreshing, and vastly extending my intellectual hori- zons. Anne Ponder read early drafts of several chapters, and her comments and criticisms were invaluable. Barbara Plumblee was wonderfully patient in convincing my computer to cooperate with me. Tom Henricks offered much excellent advice and many words of encouragement, while regularly thrashing me at tennis. Teresa LePors, the omniscient reference librarian, found the answer to every question I posed. Gayle Fishel helped tremendously with design and structure of the book and suggested ingenious ways of organizing examples. Lillian Pollock was astoundingly efficient in the laborious task of securing permissions to reprint.

George N. Schlesinger encouraged me to write the book, gave helpful guidance throughout, and contributed delightful examples. Allen Belsheim read the entire manu- script of the first edition, and made excellent suggestions for improvements.

All the later editions have been completed while teaching at Youngstown State University, and my colleagues at YSU have built a wonderful collegial working environment.

Tom Shipka’s enthusiasm for the project has been constant, and as a remarkably efficient department chair he smoothed my path in innumerable ways. Since my misfortune of becoming department chair (following Tom’s retirement), Tom has been a generous and wise source of counsel. Brendan Minogue, Charles Reid, Larry Udell, Stephanie Dost- Barnhizer, Jeff Limbian, Andrew Stypinski, and Martina Haines have used the book in their classes, and their suggestions for improvements have been particularly useful. The YSU reference librarians answer all my questions and make it look easy. Our student workers, Hannah Detec, James Hamilton, and Gina Ponzio, have provided cheerful help on many of the exhausting details. Our department secretary for several years, Joan Bevan, was remark- ably efficient and unfailingly cheerful; I owe her a special debt for making my first years as department chair run so smoothly. Mary Dillingham, one of the few people in the world worthy of replacing Joan, has carried on a great tradition of efficiency and dedication; she is the essential element in the smooth functioning and congenial atmosphere of the depart- ment. Many other friends and colleagues at YSU have given aid and advice, and have been xvii generous in both intellectual stimulation and warm friendship; special thanks to Nawal Ammar, Chris Bache, Cynthia Brincat, Walter Carvin, Vince Lisi, Sarah Lown, Mustansir Mir, Deborah Mower, Bernie Oakes, Dan O’Neill, Gabriel Palmer-Fernandez, Mark Shutes, Charles Singler, Donna Sloan, Linda “Tess” Tessier, Alan Tomhave, Mark Vopat, Homer Warren, Victor Wan-Tatah, and Robert Weaver.

My students at Youngstown State University have been of enormous help in the preparation of the later editions. They have been kind enough to point out—often with admirable candor—the flaws and difficulties of earlier versions; but of even greater benefit has been their enthusiasm for the book: the times they have told me of actually enjoying the reading of a textbook and sharing the book with their friends and families, their fascination with many of the exercises, and most of all their reports of successful analyses of deceptive advertisements, of political speeches, and of attorneys’ arguments during subsequent jury duty. A number of students brought me examples from their own reading and experience, and many of those examples are incorporated into the later editions.

My friend Jack Raver has frequently been helpful as a computer consultant, and is one of the most enthusiastic, energetic, and joyful arguers I have ever encountered. Lia Ruttan has been a wonderful source of fascinating cases and examples, particularly from the Canadian courts. Richard White has given me many very helpful ideas, especially in the area of cooperative critical thinking in special courts. Lauren Schroeder and Fred Alexander have been particularly helpful on arguments and issues related to politics and the environment.

Special thanks to all the wonderful people who helped in putting together the photographs for the cover and to accompany the exercises: Judge Lou D’Apolito who allowed us the use of his courtroom; two fabulous photographers, James Evans and Carl Leet; Gabriel Palmer-Fernandez and Deborah Mower, who played the roles of attorneys; Homer Warren, who looked wonderfully judicial; and all the jury members (many of whom are current YSU students, together with my long-suffering sons and lovely daughter- in-law)—Russell Waller, Adam Waller, Robyn Repko Waller, Zach Robbins, Cary Dabney, Amanda Benchwick, Sarah Lowry, Rebecca Soldan, William Soldan, Gary Davenport, Heather Carbon, and Mary Dillingham.

I also benefitted from thorough and insightful review of this edition by Victoria Rogers, Indiana University–Purdue University Indianapolis; Eli Kanon, University of North Florida; Glenn Sanford, Sam Houston State University; Jean Miller, Virginia Tech; Chris Cayton, Portland Community College and from excellent suggestions made by reviewers of earlier editions: Richard McCarty, Michael A. Principe, and Joan Esposito.

My editors at Pearson, Nancy Roberts and Kate Fernandes, have been everything any author could ask for in editorial guidance and cooperation: it has been a genuine plea- sure to work with them. Shiny Rajesh, the project manager for this edition, is meticulous, professional, and unfailingly cheerful, and she smoothed the path of taking the book from rough draft to finished text.

My wife, Mary, has advised on every aspect of the work, made many suggestions for exercises and improvements, and her constant affection and support have been invaluable.

My sons, Russell and Adam, have read sections of the book, discussed many of the examples with me, offered valuable suggestions, and have been the great joys of my life. xviii Acknowledgments CRITICAL THINKING This page intentionally left blank Introduction 1 ❖ ❖ ❖ You evaluate arguments and assertions every day: when choosing your breakfast cereal, evaluating reports on the effects of the caffeine in your coffee, reading your morning paper, deciding how to cast your vote. And occasionally you will consider arguments while serving on a jury. In the performance of your jury duty you will be expected to weigh evidence, consider competing arguments, reason carefully, and decide impartially. Some of your fellow jurors may disagree with your conclusion, so you must be able to evaluate their arguments and argue cogently for your own conclusions. So as we practice critical thinking, we’ll examine a wide variety of courtroom and jury arguments: arguments that are interesting, important, and instructive. But we’ll also study political arguments, advertisements, scientific claims, and a wide variety of other contexts where critical thinking skills are valuable.

CRITICAL THINKING IN EVERYDAY LIFE This book pays close attention to jury deliberation, but it is not exclusively or even pri- marily concerned with courtroom reasoning. Jury deliberation is profoundly important, but it is only a tiny fraction of the critical reasoning you must do. Every day you are bom- barded with advertisements, and to find any helpful substance in them you will have to critically winnow out masses of chaff. You are a citizen in a democratic society, and thus it is your responsibility to carefully and rationally evaluate the policies and programs of your local, state, and federal government and to vote intelligently (and perhaps campaign) for the candidates you consider most capable. You encounter advertisements, the evening news, news magazines, opinion journals, scientific reports, editorials, textbooks—all making claims that are sometimes contradictory and sometimes slanting the material presented. Sorting these out, distinguishing fact from speculation, and weighing com- peting theories and interpretations require the same reasoning skills that are required of an effective and responsible juror. Listento the Chapter Audio on mythinkinglab.com 1 2 Chapter 1 Introduction The subject of this book is critical reasoning in all its applications. The only way to be effective at jury reasoning is to be good at reasoning, and good reasoning requires practice. It is not something that can be turned on and off like a politician’s charm. Critical thinking cannot be hoarded for use exclusively in the jury room. Use it or lose it. A Strong-Willed Jur y In New South Wales, a defendant was charged with the theft of several cows. The jury finished their delibera- tions, and returned to the court with this verdict: “Not guilty, if he returns the cows.” The judge was outraged,and ordered the jury back for further deliberations.

The jurors, deeply offended, soon returned with a new verdict: “Not guilty, and he doesn’t have to return the cows.” 1 Smart Jurors Philadelphia Assistant District Attorney Jack McMahon advises rookie prosecutors on selecting a jury: My opinion is you don’t want smart people [on the jury]. Because smart people will analyze the hell out of your case. They have a higher standard.They hold you up to a higher standard because they’re intelligent people. They take those words “reasonable doubt” and they actually try to think about them. You don’t want those peo- ple. You don’t want people who are going to think it out. 3 PLAY FAIR The first requirement for examining arguments intelligently—whether as a voter, a con- sumer, a reader, or a juror—is to be fair in your evaluations. Bias and prejudice close minds and stifle critical inquiry; the first task in good critical reasoning is to eliminate such bias.

At some point you will be in the jury box, and before the jury is impaneled you will be asked a few questions: perhaps by the judge; by the district attorney, and by the defense counsel if it is a criminal case; by lawyers for the plaintiff (the person suing the defendant) and for the defendant in civil suits. The idea is to seat a fair and impartial jury. This process is called the voir dire.(Voir direis French, meaning “to see, to speak.” However, voiris a corruption of the Latin verus,meaning “true”; thus the original meaning is “true talk.” 2) The voir direprocess is supposed to detect any bias or narrowmindedness among potential jurors.

If the defendant is your lover, or if you will lose money if the plaintiff wins, or if the defendant recently ran off with your spouse, then it might be more difficult for you to remain completely impartial in considering the case. If from reading newspaper reports you have formed an unshakable conviction concerning the guilt or innocence of the accused, you will not be an open-minded juror. SEATING A JURY How far should the voir direprocess go? That question is raised by the increased use of jury selection specialists, who use sophisticated techniques in an effort to discover which jurors are most likely to favor which side. A defendant being charged with drunken driving might wish not to seat a teetotaler or a juror whose child was recently killed by a drunk driver. But not all cases are so obvious. For example, in the famous trial of the “Harrisburg Seven” in 1971–1972 (in which Philip Berrigan and six other antiwar activists were charged by the federal government with conspiring to kidnap Henry Kissinger and blow up heating tunnels Chapter 1 Introduction 3 in Washington, D.C.), a group of social scientists did extensive research on the attitudes of the population around Harrisburg, Pennsylvania, from which the jury pool would be drawn.

They discovered important information for the defense. For example, while one might expect college-educated persons to be sympathetic to the antiwar defendants, that was not the case in Harrisburg. As Jay Schulman, who directed the research, states, “Contrary to what our lawyers expected, college-educated people were not likely to be liberal in Harrisburg.

Liberal college graduates, it seems, leave Harrisburg for other places, and those who stay support conservative norms.” 4Thus the defense was alerted to be cautious of college graduates.

(That does not mean that in 1972 all college graduates in Harrisburg were conservatives.

It means only that Harrisburg college graduates were more likelyto be conservative, and thus more likely to be unfavorably disposed toward the defendants.) Jur y Research: Eliminating or Selecting Bias?

Is the use of social scientists to investigate potential jurors a good thing? It is certainly legal, but that is not the question. Does it make a fair trial more likely, or does it subvert justice by unfairly “stacking” the jury? That is a hotly contested issue. Opponents of jury selection specialists claim that they rig juries to reach verdicts on the basis of the jurors’ biases rather than on the basis of the evidence and the arguments. Those who favor the use of social scientific research during voir direclaim that it is essential in order to avoid seating prejudiced jurors who cannot weigh the case fairly. After all, prejudiced jurors cannot always be exposed simply by asking a few questions during voir dire.(Suppose a potential jury member is asked by the lawyer for a black defendant: “Do you know of any reason why you cannot consider this case honestly and fairly?” The potential juror is not likely to respond: “Yes, I do; I have an irrational prejudice against blacks.” In fact, those who are prejudiced are often unwilling to admit their prejudice even to themselves: “No, I’m certainly not prejudiced against blacks; why, some of my best friends are black; I just don’t want them moving into my neighborhood.”) Detecting biased and unfair jurors is not an easy task. Not every prejudiced person has beady eyes and wears a hood.

There are obviously some serious problems in current methods of jury selection.

Procedures that exclude certain segments of the population—for example, systematically excluding blacks from criminal juries through use of peremptory challenges—are unfair.

Such abuses are too frequent and are sometimes systematic. Baseball and Juries Bert Neuborne, legal director for the American Civil Liberties Union, claims that in New York City during the 1950s (when New York had three major league baseball teams—the Yankees, the Dodgers, and the Giants), lawyers used a quick and easy method for selecting jury members: As Neuborne tells it, attorneys needed only one question: “What baseball team do you root for?”Yankee fans, the defense dismissed; Dodger fans, the prosecution dismissed. Giant fans were acceptable to both sides because, Neuborne says, they were “the only reasonable people in town.” 5 A handbook used in 1973 in Dallas County, Texas, gives the following instructions for criminal prosecution attorneys: You are not looking for a fair juror, but rather a strong, biased, and sometimes hypocritical individual who believes the Defendants are different from them in kind, rather than degree; you are not looking for any member of a minority group which may subject him to oppression— they almost always empathize with the accused. 6 4 Chapter 1 Introduction But it is essential in a fair trial that at least some members of the jury be able to empathize with the accused. Imagine how you would feel as a criminal defendant if all members of your race or ethnic group or political party or religion or socioeconomic group were systematically excluded from the jury that tried your case: It would hardly be a “jury of your peers.” Keeping Women in the Kitchen, on the Pedestal, and of f the Jur y In 1966, the Mississippi Supreme Court (in Statev. Hall, 187 So.2d 861) ruled that women could legally be excluded from Mississippi juries, for these reasons: The legislature has the right to exclude women so they may continue their service as mothers, wives, and homemakers, and also to protectthem (in some areas, they are still upon a pedestal) from the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial. In short: It’s for your own good, girls. The Courtroom Is Not a Singles Bar Ideally, jurors should start from a presumption of inno- cence, but without any bias for or against the defendant; and try to remain neutral until all the evidence is heard.

One Canadian juror, Gillian Guess, failed to maintainthat neutrality. During the course of a murder trial in which she served as a juror, she began sleeping with the defendant. She was later sentenced to 18 months in prison for obstruction of justice. IMPARTIAL CRITICAL THINKING The point of this chapter is that in your deliberations you must try to approach the case with an open mind, free of bias and favoritism. There will be those who wish to exploit your fears and prejudices and preconceptions: unscrupulous advertisers who play on our fears of social stigma to sell us overpriced and often unnecessary “remedies” for bad breath, body odor, and the terrors of “flaking and itching”; politicians who pander to our fears to sell us dubious foreign policies; and lawyers who hope that prejudices will substi- tute for arguments. It requires constant vigilance to avoid substituting our biases for rational reflection, but it is essential to do so if we are to reason well—in the jury room and the laboratory and the marketplace and the voting booth.

It is natural to feel a special sympathy with those who have similar goals and inter- ests. Thus if you are a feminist liberal arts major at the old home state university, you may feel predisposed toward a defendant who is a feminist liberal arts major at the same school. That may be a natural tendency, but it is not a fair one. There may be some rotten apples even among the feminist liberal arts majors at state university, and the defendant may be one of them. It may also be difficult to be fair and impartial toward a defendant who is your exact opposite: a hard-nosed businessman who thinks the arts are a waste of time and that a woman’s place is in the home. You may not feel sympathetic toward such an individual, and you wouldn’t want to be stuck with him at a small dinner party. But if you are to consider the issues clearly, you must try to set aside that distaste. The issue is the person’s guilt or innocence of some specific charge, and that has nothing to do with whether you like or dislike the defendant.

The same objectivity is required as you listen to the lawyers in the case. The district attorney may be a pompous ass and the defense attorney a great human being. That is irrelevant to which side has the stronger case, and you must set aside such personal likes Chapter 1 Introduction 5 and dislikes in order to deliberate justly and accurately on the merits of the argument.

Difficult as it may be, it is vitally important to separate argument sources and styles from argument content.

ADVERSARIAL CRITICAL THINKING Critical thinking is a useful weapon. People sometimes speak of skill in critical thinking as “verbal self-defense,” or learning “how to win arguments.” And since you are daily bom- barded with arguments from advertisers and politicians, and often by arguments designed to deceive rather than enlighten you, learning how to protect yourself against misleading claims and flawed arguments is a very valuable skill. Effective argument and the effective critical analysis of argument can also serve a more positive function. Under theadversarialsystem of justice—practiced in Great Britain, the United States, Canada, Australia—lawyers on either side present arguments, and from that tough argumentative contest the truth emerges: or at least, such a struggle, when it functions well and both sides are represented by honest and skillful advocates, is often our most effective means of seeking the truthful outcome. From the local courthouse to the Supreme Court, both sides present their strongest argumentsand probe for weaknesses in their opponents’ arguments, and—if all goes well—from this contest the truth eventually emerges.

In some ways science is also an adversarial system. Scientists present their theories and the evidence in their support; and other scientists challenge those theories and seek evidence to refute them. Karl Popper, one of the great twentieth-century philosophers of science, saw this as the basic method of science: present bold theories, expose those theories to scrutiny and criticism from scientific adversaries, and through this method we developbettertheories. Indeed, Popper thought that often the best scientific work was done when strong theoretical conjectures were refuted by powerful opposing arguments.

A similar process often occurs in philosophy: Philosophers present their theories and arguments, and those theories and arguments are subjected to examination and criti- cism—criticism that often finds flaws in the proposed theory and results in better theories and better arguments.

The contest between adversaries—whether in the courtroom, the laboratory, or the philosophy seminar—is often a valuable method for seeking better theories and finding the truth. But the adversarial process is nota no-holds-barred, eye-gouging, ear-biting, anything goes brawl. Or at least, it shouldnot be, and—when it works effectively—it is not.

To the contrary, for the adversarial process to work well, it is essential that both sides play fair and behave respectfully. Sadly, the adversarial system does notalways function well; and when it does not, that is usually because one or both sides have corrupted the process, and the contest is not fair. Suppose you have a small software development com- pany, and you have developed a really innovative program that is a big improvement in some area of computer use, and that is likely to be very profitable for your company.

A software giant comes in and steals your innovation, and sells it as their own. You hire a lawyer and sue the company that stole your product; and in a fair adversarial process, the evidence will come out, both sides will present their cases and their arguments, and you will win your case and recover damages. But the software giant has enormous funds at its disposal, while you have very little money. If their lawyers file motion after motion and cause one delay after another, then the legal costs for both sides will become enormous— costs the large corporation can easily afford, but costs that soon take all your money and force you to drop the suit. That sort of tactic destroys the effectiveness of the adversary system. Or suppose you are a poor person who is charged with a capital offense, such as murder. You cannot afford an attorney, so the state will appoint one for you. Unfortu- nately, in some cases, the state appoints a defense attorney for you who is grossly incom- petent: in Texas, there have been several cases in which defendants were “represented” by attorneys who showed up drunk, or who actually slept through much of the trial. When 6 Chapter 1 Introduction one adversary is impaired or incompetent or asleep, it is hardly surprising that the “adversary system” fails to function properly (and it is hardly surprising that a number of criminal convictions in Texas have been overturned by later tests of DNA evidence). As Samuel R. Gross states, “The American system of adversarial justice is predicated on the assumption that both sides are competently represented and have adequate resources to present their cases. That assumption is often false.” 7 And, of course, there are other ways the adversary system can go wrong: if the jury is racially prejudiced, or the judge is biased, or the evidence is falsified, or a juror is bribed, then the adversary system cannot work well. But that is not because the adversa- rial process is flawed, but because one or both of the adversaries break the rules. A base- ball contest is a good way of determining which team is actually better—but not if one side bribes the umpire, and not if one side can afford top quality equipment while the other side uses equipment that is falling apart. The adversarial process can also work well in science, but that requires that the adversaries play by the rules. If someone falsifies research, or covers up adverse results, then the scientific adversarial process can break down: just as the adversarial process breaks down in criminal trials when there is perjured testimony or one side has an incompetent attorney, and just as civil adversarial processes break down when one side subverts the system by expensive delaying tactics.

For the adversarial process to work well, both sides must play by the rules. That is hardly surprising: it is true of almost any contest. A football match is a good way of deter- mining which team is superior— but not if the referee is bribed, or the star player on one team has been paid to throw the game. But for the adversarial process to work at its best, more is required than simply adhering to the rules; in addition, both sides must be respectful of their opponents and of the process itself. When civility breaks down, the adversarial process suffers. That doesn’t mean that the adversaries should be less ener- getic in their efforts to present the strongest case possible, and to find and exploit the weaknesses in the positions of their opponents. But such efforts should be consistent with being respectful toward one’s opponent. The importance of respect and civility in the adversarial process is perhaps best observed in the British courts. There is a long and glorious tradition of debate and adversarial contest in the British courts; and it is there that the importance of civility and personal respect is quite clear; indeed, sometimes the tradition of civility is so strong it seems almost quaint. As the judge enters the courtroom, all present rise to show respect: a tradition that is found in many courts, following the British model. But in the British courts, the judge then bows to the barristers, the barris- ters bow to the judge and to each other. Barristers address one another as “my learned friend,” and when one barrister rises to make an objection, the other immediately sits down; when the barrister has made his or her objection, the opposing barrister may then rise and offer arguments in response to the objection; but they would never stand and both talk at once. Remarks addressed to “the learned judge” are often preceded by “if your Lordship (or Ladyship) pleases.” The barristers and the judge all wear white wigs and gowns, and with all the bowing and the very formal address—“My learned friend appears to have forgotten the evidence given this morning; perhaps I might refresh his memory”—may appear quaint; and indeed, if you ever have a free day in London, a visit to the Central Criminal Courts is wonderfully entertaining, and a better show than the changing of the guard at Buckingham Palace. But quaint and a bit old-fashioned as this elaborate formal courtesy may appear, it serves a very important function in the British adversarial system. It is a powerful reminder that the advocates must present their best arguments, and be zealous in looking for flaws in the opposing arguments; but that such a process need not and should not involve attacks on the person giving the arguments.

And if the process is to work well, both sides must be attentive to opposing views, and neither distort nor misrepresent them in attempting to refute them. The elaborate cour- tesy and deep tradition of civility is not merely a quaint British tradition; instead, it is a vital element of an adversarial process that functions well, and that is genuinely interested in seeking the truth. Anyone who remembers or has seen clips of the O.J. Simpson Chapter 1 Introduction 7 criminal trial will recall the constant sniping and insulting and bickering between the prosecution and the defense; and it is clear that the atmosphere of incivility and hostility was a burden on the entire trial process. Whatever one thinks of the outcome, the nasty atmosphere and personal animosity in evidence at the trial—not to mention the media circus—made it difficult for anyone to feel confident that justice had been done.

Sometimes civility is strained, but the forms are generally maintained in the U.S. Senate:

“Will the gentleman yield for a question? Will the gentle lady allow a comment?” In an era of political grandstanding, it seems almost quaint, like the wigs and the robes worn by the barristers (lawyers) and judges. But this elaborate courtesy also serves an important function.

Cooperative Critical Thinking Adversarial critical thinking —when both sides play fair and play nice—can be a very valu- able way of finding the truth and testing theories and trying out ideas: valuable in deter- mining guilt or innocence in the courtroom, valuable for testing theories in the sciences, valuable for trying out new ideas and examining old beliefs in dorm room debates. But valuable as adversarial critical thinking is, the adversarial approach is not always best.

Cooperativecritical thinking is also valuable, and in some contexts is much more useful.

Consider some rather homely examples of effective cooperative critical thinking, offered by legal scholar and legal ethicist Carrie Menkel-Meadow: . . . consider two sisters, who both seem to be fighting about a single orange, when one really desires the fruit for eating and the other the rind for cooking. Or, from my own personal experience, when, with a single piece of chocolate cake left, I wanted the icing (frosting) and my brother desired the cake, demonstrating that a horizontal, rather than a vertical, cut of the cake would maximize both of our desires. . . . 8 Obviously not all problems yield such neat cooperative solutions; but by focusing on finding common grounds and shared interests, it is often possible to reach a conclusion in which no one loses, and everyone comes away satisfied. Notice that the solutions gained through cooperative critical thinking are not always compromises.In the example above, Carrie and her brother might have reached a compromiseby splitting the piece of chocolate cake in half, leaving neither very satisfied; by considering carefully what each really desired, and how those desires could best be met, they found a solution that met the goals of both.

Carrie wanted frosting, and her brother wanted cake. By considering the problem cooperatively, they found a solution that worked for both of them. That brings out the crucial first step in effective cooperative critical thinking: getting clear on exactlywhat goals are in play. Getting clear on the goals is vital, but it isn’t always easy. Carrie wants the piece of chocolate cake, and so does her brother. But in fact, that’s not quite accurate.

Carrie wants the chocolate frosting, while her brother wants the chocolate cake.Only by examining more critically their actual goals can cooperative critical thinking be success- ful. Of course, sometimes the goals are basically incompatible: Her brother wants to eat the entire piece of chocolate cake, frosting and all; and Carrie wants to eat the entire piece of chocolate cake while her brother watches and suffers, because she is angry at him for reading her diary. But perhaps even then careful consideration of goals can result in a favorable outcome for everyone: what Carrie really wants is an apology from her brother, and for her brother to understand that such an invasion of personal privacy is wrong, and a commitment that he won’t do it again. In that case, it’s not impossible that both might have their real wishes fulfilled. But again, that requires looking very carefully at what their real goals are: in her justifiable anger at her brother, she desires to get even with him; getting beyond that anger, and thinking carefully, she may gain a clearer understanding of what her own desires really are. 8 Chapter 1 Introduction Adversarial critical thinking is often beneficial, but in the case of the chocolate cake cooperative critical thinking is likely to prove more helpful. In an adversarial contest, the arguments would probably turn on questions of fairness: who got the last piece of the last cake, who ate the most of this cake, who asked for the piece of cake first. Such arguments might eventually lead to a result, especially if mom is acting as judge and jury. But the loser is likely to feel resentful, and the winner may not get what he or she really wants:

Carrie’s brother gets the cake, but he has to eat through all that frosting to get to the part he really likes. The cooperative solution would have been better for everyone, including the winner of the adversarial contest.

The benefits of cooperative critical thinking are not limited to settling sibling disputes over a last piece of chocolate cake. The legal community has come to recognize that while the adversarial system is often a good way of resolving conflicts and finding truth and protecting individual rights, it works better in some settings than in others; and in those other settings, cooperative critical thinking has proved its worth. In the tradi- tional adversarial divorce proceeding, lawyers for both sides battle to win everything they can for the party they represent: the house, the bank accounts, the retirement accounts, the dog, the kids. If I can get 100% of the bank accounts for my client, then I am a more successful and satisfactory adversarial advocate than if I only get 60%; and if I can get sole custody of the kids for my client, then that’s a better adversarial outcome than joint custody. But is that really the best outcome? Assuming that both parents love their children, and are reasonably good parents, that is very unlikely to be the best outcome for the children. In fact, it is unlikely to be the best outcome for my client, when my client steps back from the adversarial conflict and carefully considers what he or she really wants: because what my client is likely to want most of all is an outcome that is best for the children, the children who are loved by both my client and my client’s former spouse.

Thus in many areas—particularly in domestic disputes involving children—courts have set up special alternative ways of handling conflicts and problems. Rather than adversar- ial procedures, these alternatives are likely to involve cooperative processes, often with the help of counselors.

In adversarial critical thinking, my goal is to present my own position in its most favorable light, probe your argument for weaknesses, reveal the flaws in your views, and establish my position and my arguments as superior: and to the victor, the spoils. In cooperative critical thinking there is still serious sustained inquiry, but the goals are different. Rather than trying to find weaknesses in your position, I am trying to find ways in which our positions can be reconciled. And rather than trying to gain all the spoils for myself, I am seeking a way that everyone can benefit. Which form of critical thinking is better? That’s not a very helpful question: it’s like asking which game is better, chess or tennis. They are quite different, and both are very useful in different contexts and for different goals.

Adversarial and cooperative critical thinking are quite different methods of think- ing critically; but to practice either method effectively, two things are essential. First, whether the process is adversarial or cooperative, the most important step is being clear and precise on exactlywhat is at issue, what is the question. If you are evaluating an argu- ment, you cannot begin to determine whether that argument is good or bad until you know what the argument is supposed to be proving. An argument that establishes that coal is a plentiful and cheap source of energy will be useless if the real issue is whether burning coal increases the danger of global warming. Consider an argument that Jane mighthave murdered Allen, that we cannot rule Jane out as a suspect in the murder: that argument will be useful if the question is being discussed by detectives investigating the murder; however, it will be useless if the district attorney presents the same argument to the jury in Jane’s murder, where the question at issue is whether there is proof beyond a reasonable doubt that Jane did the foul deed. And if we are thinking cooperatively about where we should go to dinner, it’s important that we each consider what our goal really is:

is my main concern to save money, or eat healthy, or make my ex jealous by being seen Chapter 1 Introduction 9 with my new lover. So adversarial or cooperative, the vital first step in successful critical thinking is being clear on exactly what is at issue.

There is a second important element to good critical thinking, useful whether the context is adversarial or cooperative: be respectfulto others. Whether the process is adver- sarial or cooperative, good critical thinking is best accomplished in an atmosphere of respect and civility. That is obvious enough when we are dealing with cooperative critical thinking: after all, cooperative critical thinking can hardly flourish in an atmosphere of distrust and disrespect. But it also applies, and is just as important, when the critical think- ing process is adversarial. An attack on your opponent’s character, or distortion and misrepresentation of your opponent’s arguments and position, is unlikely to succeed in convincing that person of the wisdom of your arguments. And if your goal is to uncover thetruththrough this adversarial contest, then defaming your opponent and misrepre- senting your opponent’s arguments are not promising procedures. Of course if you are not in pursuit of truth, but instead want to bluster and swagger—the sort of thing you can hear any day on talk radio—then abuse and distortion are excellent for your purposes.

But such slogan-shouting “argument” rarely qualifies as thinking, much less criticalthinking.

Both adversarial and critical thinking are useful in many contexts. If the family is deciding where to go on vacation, then—so long as the atmosphere remains cordial— adversarial critical thinking may be a useful way of carefully and critically examining each of the options under consideration. A cooperative approach could also work, of course, with careful consideration of all the interests and desires that are in play, and a coopera- tive effort to find a destination that satisfies everyone’s real preferences.

In criminal court proceedings, the style of argument is generally adversarial; in domestic court, cooperative procedures may be in place. What about in the jury room?

Suppose we are members of the jury in a criminal case: the defendant has been charged with burglary, we have heard the evidence and the arguments and the judge’s instructions to the jury, and now we have arrived in the jury room to consider our verdict. Will our deliberative process be adversarial or cooperative? In most movies and dramas about juries, the style of argument is clearly adversarial. Perhaps the most famous dramatic re-creation of jury argument was the film Twelve Angry Men, starring Henry Fonda. The film is a bit dated— thankfully, few juries are now made up exclusively of men—but it clearly shows an adversarial argument within the jury room: some jurors argue the case for conviction, while others argue for acquittal; they present their best arguments, and attempt to refute the arguments of the other side. But while real juries often use adversarial critical thinking to reach their verdict, others adopt a more cooperative approach. Two leading researchers on juries, Neil Vidmar and Valerie P. Hans, contrast the “verdict-driven” approach (which is more adversarial) to the “evidence-driven” style of deliberation (which is more in line with the cooperative): Once the leader is chosen, the jury embarks on deliberating about the case. They begin in different ways; their choice of how to begin can relate to the jury’s ability to reach a verdict.

Some juries start by taking a formal vote, either through a show of hands or a secret ballot. In one approach, labeled the “verdict-driven” deliberation, jurors then align themselves with those who are on the same side and talk about the evidence that supports the verdict favored by their faction. In verdict-driven deliberations, polling tends to be frequent.

In contrast, in an “evidence-driven” deliberation, jurors tend to embark on a general discussion of the testimony, the facts, and their meaning. Rather than offer only the facts supportive of their preferred verdict, jurors tend to talk about all of the evidence as they collectively aim to develop a common story of the events. . . .

The verdict-driven style tends to be faster but also is more likely to lead to a situation in which the jurors cannot agree on a final decision. 9 Which approach is better for jury deliberation? I don’t know. The fact that one approach is more likely to lead to a hung jury does not necessarily count against it: after all, a hung jury is certainly better than a mistaken verdict. Which approach is actually better is a difficult question to test, and at this point there is no convincing research on 10 Chapter 1 Introduction that issue. Both approaches can work effectively. My guess is that which approach works better may depend on who happens to be on the jury. But whichever approach a jury adopts, they will certainly perform better if they look closely at the conclusion at issue: for example, the question at issue in a criminal trial is notwhether the defendant has been proved innocent, but whether the prosecution has offered conclusive proofthat the defen- dant is guilty as charged. And whichever approach the jury adopts, adversarial or cooper- ative, they will deliberate more effectively if they remain civil and respectful.

The cooperative approach is usually confined to civil and domestic issues, but some Aboriginal peoples in Canada have attempted to apply their community-based nonadver- sarial approach to the resolution of criminal cases. Starting from a common commitment to healing the community after a crime has been committed, these groups see the adver- sarial system as an impediment to that healing. Rather than focusing on who is guilty and which side wins, the emphasis is on what went wrong in the community and how it can be fixed, on reintegrating the offender into the community, and on healing the victims, the offender, and the community. 10 It is a very different process from the adversarial contest of most Western criminal proceedings, but it has some distinct virtues. The Canadian Aboriginal approach to justice focuses on the deeper source of the problem, and seeks a problem resolution that repairs the damage to the community and prevents further diffi- culties. In contrast, most Western court systems impose penalties but do nothing to solve the root of the problem. Trying to reduce crime by imposing stiff criminal penalties has been an obvious failure: Among Western industrialized countries, the United States has by far the highest prison population and is the only country imposing the death penalty, and it also has a huge lead in the amount of violent crime.

Critical thinking is important in adversarial settings, but it is more than just a sword for subduing your opponent and winning your argument. Critical thinking is also valuable in determining exactly what the problems are, exploring the various possibilities for resolving them, examining the effects of the alternatives, and arriving at the best solution for all concer- ned. Whether truth is sought by combat or cooperation, critical thinking plays a vital role. Exercise 1-1 1.Suppose that you are the attorney for the defense, and your client is a 30-year-old black man who works as a tax accountant for Dow Chemical. He has been accused of assaulting a man in a tavern; he claims that he was defending himself from attack by a drunken and aggressive patron of the bar (a 60-year-old white bricklayer). What questions would you ask potential jurors during voir dire?(Be sure that you phrase the questions in such a way as to get genuine answers.) 2.You are the district attorney, and you are prosecuting a case in which a man—the president of a small business—is accused of assault and attempted rape. His secretary made the charges, claiming that the man assaulted her and attempted to rape her one evening when they were working late in the office. What questions would you ask potential jurors during voir dire?What questions would you ask if you were attorney for the defense?

3.In the two cases above, do you think you would be a fair and open-minded juror? If you were those defendants,would you be satisfied to have someone like yourself seated on the jury? Exercise 1-2 Two women are charged with murder. Sarah is college-educated and works for an accounting firm.

She is 26 years old, of mixed race, and recently divorced. Allison is an old college friend. She is 27, Irish-Italian, single; she completed 3 years of college, and now works as a sales representative for a publishing firm. Sarah and Allison had gone to a local tavern for drinks, and were there from 10:00 to 11:00 P.M. While standing at the bar, they began talking with Robert and Jay. Robert is African American, 25 years old, and recently separated; he drives a truck for a package-delivery company. Jay, Robert’s friend and coworker, is Polish American: At the time of his death, he was 26, married, and Chapter 1 Introduction 11 had a 2-year-old daughter. When Sarah and Allison left the tavern, Robert and Jay followed. The defendants claim that Jay asked them for a ride, and when Sarah and Allison refused, he became verbally abusive. Sarah became frightened, and took a pistol from her purse, which she handed to Allison. When Jay advanced toward Allison, she shot him twice. The first bullet grazed his arm, and the second entered his heart, causing his death. Robert agrees that Jay was angry, but claims that his friend did not threaten the women, and that the shooting was unjustified. The defense claims that this was a justified homicide, with the women acting in self-defense. The prosecution is charging both women with first-degree murder (though the jury may consider lesser charges).

Don’t consider whether Sarah and Allison should be acquitted or found guilty: For that, you would have to listen carefully to the whole trial. Rather, imagine that you are seating a jury. You are notan advocate for either the prosecution or the defense; instead, your goal is to seat the best pos- sible jury you can assemble—the fairestand most reasonableandjustjury you can get. Describe your ideally justjury for this case. Exercise 1-3 There are two major views of the ideal jury (i.e., an ideally fairandjustjury). The contemporary view is that we should strive to seat jurors who are intelligent but who know nothing whatsoeverabout the case that they will be hearing (thus ensuring that everything they know about the case will come from evidence presented at the trial). The earlier view was that jurors should be intelligent, well-informed members of the community in which the alleged crime occurred. A juror should not be the brother of the accused nor the sister of the victim; but if the juror knew the setting in which the crime occurred and perhaps knew some of the witnesses (and also knew how reliable—or unreliable—those witnesses might be), then that would make them better jurors (rather than automatically disqualifying them, as would almost certainly happen today). At the very least, good jurors were expected to know about community events, and be well informed about current happenings in the community (which of course would likely include knowing of crimes that had been committed and people who were suspected).

1.Some people claim that the traditional model worked well in earlier times, in settings of small towns and shared community knowledge, but that this model does not work well in our contemporary society. Arethere any factors in contemporarysociety (e.g., societal diversity, or the wayspeople gain information, or the anonymity of urban life, or whatever) that make the older model lessattractive for contemporary justice?

2.If your goal is to seat the ideal fairjury for a trial today, which model of the ideal jury would you follow? Or would you favor a differentmodel altogether?

3.Imagine you were trying to seat the ideally fairjury for a highly publicized case: the O. J. Simpson murder trial. Whowould you select as the members of your ideal jury? Is your answer closer to the contemporarymodel (jurors with no prior knowledge of the case) or the traditionalmodel (jurors who are well informed about community events, who have received considerable information about the case, and have discussed it with their friends and colleagues)? Exercise 1-4 1.Lawrence Kohlberg was a twentieth-century psychologist who conducted research on moral development, tracking the developmental stages of moral development in a large group of chil- dren in the Boston area, following them from their early years (some as young as 7) well into adulthood. In his studies Kohlberg often posed moral dilemmas to his subjects, and asked what they would do and why. One such dilemma was the story of Heinz: A man named Heinz has a wife who needs a drug to save her life, but Heinz cannot afford to buy the drug from the druggist, and the druggist will not give Heinz the drug. Should Heinz steal the drug for his wife? When con- fronted with this dilemma, some of the subjects thought about it, then gave an answer: Heinz should steal the drug, or he should not. But others wanted more information before deliberating about the case: Had Heinz attempted to negotiate with the druggist? What sort of person was the druggist? Wasn’t the druggist concerned about saving the life of Heinz’s wife? What was the relationship between Heinz and his wife? Does the demand for more detailcorrespond to an inclination 12 Chapter 1 Introduction toward one or the other style of critical thinking? That is, would those taking a cooperativeap- proach to this dilemma be more likely to ask for more details than would adversarial critical thinkers? Or vice versa? Or would the style of critical thinking make no difference to the amount of detail desired?

A superb book on juries and the jury system is Valerie P.

Hans and Neil Vidmar, Judging the Jury(New York: Plenum Press, 1986). It provides an excellent history of the jury system as well as a careful yet readable examination ofmany important issues related to the jury system (includ- ing jury selection techniques, jury competence, and jury nullification of the law). The book is particularly well docu- mented, and the notes provide a useful guide to further ADDITIONAL READING NOTES 1This example is taken from Barbara Holland’s very entertaining brief history of trial by jury: “Do You Swear that You Will Well and Truly Try?” Smithsonian,March 1995, pp. 108–117.

2This information is from Seymour Wishman, Anatomy of a Jury(New York: Times Books, 1986), p. 65.3McMahon’s remarks were taken from a 1987 videotape for training prosecutors; as quoted in a story from thePhiladelphia Inquirer,April 1, 1997.

4Morton Hunt, New York Times Magazine,November 28, 1982, p. 82.5Paula DiPerna, Juries on Trial(New York: Dembner Books, 1984), p. 151.6Quoted in Paula DiPerna, Juries on Trial(New York: Dembner Books, 1984), p. 154.7Samuel R. Gross, “The Death Penalty in the United States,” in Adversarial versus Inquisitorial Justice, edited by Peter J. van Koppen and Steven D. Penrod (New York: Kluwer Academic/Plenum Publishers, 2003).

8“Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal Institutions and Roles Evolve,” p. 103.9Neil Vidmar and Valerie P. Hans, American Juries(Amherst, NY: Prometheus Books, 2007), p. 14. 10 Brian Donohue describes this approach to justice in “The Third Solitude: Making a Place for Aboriginal Justice,”Canadian Journal of Native Studies,Vol. 17, no. 2 (1997), pp. 315–328. INTERNET RESOURCES The website for the National Center for State Courts is www.ncsc.org. Click on Information and Resources, then Topic Categories, then Jury to find an abundance of interesting research reports on juries.

The Justice Information Center is at www.ncjrs.gov. The site is operated by the National Criminal Justice Reference Service. In addition to a vast number of good files, it has an extensive and well- organized directory of links to other relevant sites.

The website www.bastionlaw.cais maintained by the Bastion Law Corporation of British Columbia.

It is a user-friendly site for information concerning Canadian legal issues. Go to www.bastionlaw.ca/ index.aspand click on Criminal Law and Procedure to find informative and readable material on criminal trials and the role of juries in Canada.

The Virginia Judicial System includes on its website an “Answer Book for Jury Service.” While aimed at Virginia jurors, it provides good general information concerning jury service. It is clearly written, well organized, and quite thorough, and it includes a brief but clear glossary of legal terms. The Answer Book for Jury Service is at www.courts.state.va.us/citizens.html. Click on jury service.

The Jury Rights Project contains a number of files on the history and importance of juries; you can find it at www.levellers.org/jrp.

Douglas O. Linder, of the University of Missouri–Kansas City Law School maintains a fascinating site on famous trials in history; you can spend hours there. Go to www.law.umkc.edu/faculty/projects/ ftrials/ftrials.htm.

www.oyez.orgis a wonderful website on the U.S. Supreme Court, including both oral arguments and written verdicts, along with photos of the justices and the courtroom, and even some photos of the private chambers of some of the justices.

The Innocence Project—at www.innocenceproject.org—has a treasure trove of information on trials, especially on ways that trials can go wrong and lead to the conviction of innocent persons. Chapter 1 Introduction 13 Deborah Tannen, The Argument Culture. Deborah Tannen is a professor of linguistics at Georgetown University.

Much of her work (including her book, The Argument Culture, from which this passage is drawn) focuses on how language can be used to increase hostility, as well as to promote cooperation and understanding. In this passage, she notes the strong tendency to frame our social issues in warlike or competitive language. If instead of framing the severe drug problem as a “war on drugs” we concep- tualized it as a “search for workable solutions,” would we be likely to approach the problem differently?

Deborah Tannen, The Argument Culture, p. 26. When we are in an adversarial framework, we tend to assume that there are two opposing sides to an argument; Deborah ReadtheDocumentonmythinkinglab.com Tannen counsels that sometimes it is useful to challenge that assumption.

Deborah Tannen, The Argument Culture, p. 354.

Deborah Tannen notes that when we are engaged in an adversarial argument, and eager to winan argument, it is very difficult to listen carefully to the views and arguments and concerns of our opponent.

“Changing a Man’s Mind.” This is a reminder of the importance of genuinely appreciating and understanding the views of those who oppose our arguments and beliefs.

Gerry Spence, “The Lock.” Attorney Gerry Spence demonstrates the value of seeking common ground as a starting point for discussion and argument. material. A more recent book by the same authors, American Juries(Amherst, NY: Prometheus Books, 2007), discusses more recent questions concerning the jury sys- tem, as well as giving additional history of the jury system and its development.

Paula DiPerna’s Juries on Trial(New York: Dembner Books, 1984) contains interesting information on jury selection as well as other related topics.

For a well-written and fascinating study of the jury system that covers both its history and present circum- stances, see William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy(New York: St. Martin’s Press, 2002).

An excellent psychological study of the jury that gives empirical answers to a number of questions about the jury that were previously only the subject of speculation is a book by Saul M. Kassin and Lawrence S. Wrightsman, The American Jury on Trial: Psychological Perspectives(New York:

HemispherePublishing, 1988).

A detailed study of the techniques of jury selection— which ranges from voir diretechniques to body language to interaction among potential jurors—is Jury Selection,by V. Hale Starr and Mark McCormick (New York: Little, Brown, 1985).

Stephen J. Adler’s The Jury: Disorder in the Court(New York: Doubleday, 1994) gives good illustrations of some of the difficulties facing juries, and includes interesting com- ments on the use of social science techniques for selecting jury members.

A profound yet very readable examination of the jury is We, the Jury: The Jury System and the Ideal of Democracy,by Jeffrey Abramson (New York: Basic Books, 1994). If you wish to take a serious look at some of the basic issues con-cerning the jury system—including jury nullification, the requirement of jury unanimity, scientific jury selection, and the basic question of whether the jury system should be preserved or abandoned—this is the best contemporary book on the subject, and the many fascinating cases and lively style make the book fun to read.

For those who would like to study some important instances of critical thinking in famous cases, Peter Irons has written a wonderful and very readable book that explores 16 twentieth-century cases decided by the U.S. Supreme Court.

The book not only examines the reasoning behind the deci- sions, but also presents the stories of the people whose court challenges led to the Supreme Court cases: courageous but little-known people like Lloyd Barenblatt, who was imprisoned for challenging the frightening power of the House Un-American Activities Committee during the height of the McCarthy era; and Daisy Bates, who braved mob violence, death threats, drive-by shootings, and bomb attacks in her struggle for civil rights in Arkansas. See The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court(New York: Penguin Books, 1988).

There are many good books on critical thinking (often called “informal logic”). DouglasN. Walton has written extensively on the subject; see his Informal Logic: A Handbook for Argumentation(New York: Cambridge University Press, 1989); and the second edition of Informal Logic: A Pragmatic Approach(New York: Cambridge University Press, 2008).

For some interesting articles on the adversarial system (with comparisons primarily to the inquisitorial system, rather than the cooperative system), see Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems, edited by Peter J. van Koppen and Steven D.

Penrod (New York: Kluwer, 2003). 14 A Few Important Terms 2 ❖ ❖ ❖ ARGUMENTS Before we plunge into examining arguments, evaluating commercials, debating social issues, and reaching verdicts, it will be helpful if we are all using the same terms, and we all agree on what those terms mean. We’ll be concerned with arguments.Anargument offers a conclusionand supports that conclusion with reasons(premises). Not every set of sentences is an argument. In fact, arguments constitute a comparatively small—but very important—part of our daily discourse. So the first task is distinguishing argumentsfrom explanations, reports, contracts, ceremonies, questions, instructions, promises, pleas, curses, prayers, poems, exhortations, songs, and sweet talk. (Those are not always mutu- ally exclusive categories. A prayer might contain an argument—to God—in the hope of convincing God to water the drought-stricken crops. A poem might be an argument in verse: Bob Dylan’s song “Hurricane” argues that the boxer Reuben “Hurricane” Carter was unjustly convicted of murder. But usually prayers and poems and songs—and pleas and contracts and instructions—are not arguments.) An argumentinvolves giving reasons that are supposed to support a certain conclusion. In an argumenta set of statementsis arranged in such a way that one is supposed to follow from the others.

STATEMENTS So what is a statement? The term is used in many different ways: “His statement was false.” “Senator, could we have a statement?” “Those orange shoes really make a statement.” We will be using it in a more specific manner: A statement—sometimes called a proposition—is a claim that is true or false; that is, a statementhas a truth value.A statement is expressed in a sentence, but not all sentences are statements. (“Please close the door” and “Did you enjoy the play?” are both perfectly decent and honorable sentences, but they are not statements,since they make no claims and are neither true nor false.) While a statement is Listento the Chapter Audio on mythinkinglab.com expressed in a sentence, it should not be regarded as equivalent to a particular sentence.

For example, this sentence—“The defendant struck Ralph”—expresses a statement, but the same statementcould be expressed with many different sentences: “Ralph was struck by the defendant,” “The defendant hit Ralph,” “The man seated at the table struck the man in the witness box,” and so forth. In addition, the same statement might be made in sentences in many different languages. Furthermore, while the same statement can be expressed with many different sentences, a single sentence can—in different contexts— express different statements: “I saw her” expresses an enormous variety of different state- ments, including Wendell saw Rachel, Wendy saw Vanessa, and Arthur saw the Titanic.

We shall be concerned primarily with statements: claims that are true or false.

Premises and conclusions—the basic elements of arguments—are statements. Exercise 2-1 For the following, tell which are statements and which are notstatements.

1.Please close the door.

2.If you don’t close the door, the dog will get out.

3.Read Chapter 3 before the next class.

4.Why is the sky blue?

5.Mushrooms are the summer homes of elves.

6.Go to hell!

7.Ididsee an extraterrestrial.

8.Don’t rush! Think through each question before answering.

9.Let’s go Mets! Let’s go Mets!

10.The Mets will definitely win the World Series next year.

11.Who was the Republican vice presidential candidate in 1964?

12.Eat your vegetables.

13.The 2010 Winter Olympics were held in Vancouver.

14.The 2010 Winter Olympics were held in Miami.

15.What is your favorite ice cream flavor?

16.Earth is the only place in the entire universe where life exists.

17.Why are there no penguins in Lake Erie?

18.There was a conspiracy to kill President Kennedy.

19.Joe believes there was a conspiracy to kill President Kennedy.

20.I believe there was a conspiracy to kill President Kennedy.

21.Sal loves Sharon.

22.I love you.

23.Either there will be a reduction in air pollution or we will suffer severe global warming.

24.I hope we can reduce air pollution significantly during the next decade.

25.Add more chocolate chips to the cookie dough.

26.The cookies will taste better if you add more chocolate chips.

27.These cookies taste awful.

28.Did you make these cookies?

29.Our Sun is one of the smallest stars in this galaxy.

30.Drive carefully, and watch out for ice patches and potholes.

31.The Loch Ness Monster really exists, and is a descendant of the brachiosaurus.

32.Are there any clear photographs of the Loch Ness Monster?

33.Bill Clinton is the only U.S. president who has played the saxophone while in office.

34.Don’t play poker with penguins. Chapter 2 A Few Important Terms 15 16 Chapter 2 A Few Important Terms 35.All penguins cheat at poker.

36.Every human being has lived many past lives, though very few human beings are consciously aware of their past lives.

37.Jupiter has the most moons of any planet in our solar system.

38.What is the tallest building in Pennsylvania?

39.This is a very tough exercise.

40.Donotlook at anyone else’s paper.

41.How many stars are in our galaxy?

42.Critical thinking students study an average of 6 hours each day.

43.The Steelers will win the Super Bowl in 2025.

44.Global warming will cause catastrophic problems in the United States, and especially along the East Coast.

45.Jupiter is not the largest planet in our solar system.

46.There is a damaged alien spacecraft in a top secret military aircraft storage building near Las Cruces, New Mexico.

PREMISES AND CONCLUSIONS Argumentsare made up of premisesandconclusions.The conclusion is what the argument is trying to prove. Premises are the reasons given for the conclusion, the statements made in support of the conclusion. (The American spelling is “premise”; the British spelling is “premiss.”) It is not always easy to distinguish premises from conclusion. Sometimes the conclusion is at the beginning of the argument, sometimes at the end, and occasionally it is stuck in the middle. There are a few words or phrases that usually indicate premises and others that usually signal conclusions. Premises are often preceded by words such as since, due to the fact that, because.And conclusions are frequently signaled by such words as therefore, hence, it follows that, so, consequently.Attention to such words and phrases may be helpful, but they are not always used and are certainly not a perfect guide to premises and conclusions.

The following arguments all have the same conclusion. Notice that the conclusion occurs at different points in the various arguments and that sometimes there are words to indicate the premises and conclusion and sometimes there are not. There were three eyewitnesses, and they all were certain that the woman they saw running from the bank was the defendant. So the defendant must be guilty.

Of course the defendant is guilty. You could tell by her weak chin and beady eyes.

No other woman was near the bank at the time, thus the defendant must be guilty of the crime. Besides, her alibi was very weak.

Since her fingerprints were found in the bank and the money was found near her car, the defendant must be guilty. The arguments above are relatively simple: a premise or two, and a conclusion. Arguments are often much more complex. A newspaper editorialist may offer several different argu- ments for the same conclusion, or an essay may contain several arguments for several distinct conclusions. Or you may be presented with a lengthy argument that contains several subarguments; that is, in some cases there may be an argument within an argument:

“We should bet on (the racehorse) General Assembly. After all, General Assembly runs very well on muddy tracks. And since it rained all morning, the track must be muddy.” The over- all conclusion is that we should bet on General Assembly. The premises that support that conclusion are: The track is muddy and General Assembly runs very well on muddy tracks.

But there is also a subargument to support the premise that the track is muddy. That subar- gument has as its premise: It rained all morning. The conclusion of the subargument is:

The track is muddy. Thus the conclusionof the subargument is a premiseof the larger argument. “The track must be muddy” is prefaced by “so,” which indicates it is a conclusion; only by thinking carefully about the overall argument can you tell that it is also a premise. Chapter 2 A Few Important Terms 17 Exercise 2-2 Determine which of the following are argumentsand which are not. (Don’t worry about whether the arguments are good or bad; just distinguish the arguments from the nonarguments.) Then for each of the arguments,state the conclusion.

1.If the moon is made of green cheese, then there are mice on the moon. The moon is made of green cheese. Therefore, there are mice on the moon.

2.I solemnly swear to tell the truth, the whole truth, and nothing but the truth.

3.Raspberry Surprise ice cream has big chunks of real fruit! What a combination! Rich ice cream with delicious fruit; it’s my all-time favorite ice cream.

4.Wheaties ®1 is a nutritious cereal. After all, Mary Lou Retton appeared in Wheaties advertisements, and Mary Lou Retton is certainly healthy; so Wheaties must be nutritious.

5.Requirements for this course include three exams and two papers. You must pass at least two of the three exams in order to pass the course, and you must make a B or better on both papers in order to make a B or better in the course.

6.Last summer Joe promised Sarah he would be faithful to her, and he cheated on her. Last spring he made the same promise to Veronica, and he cheated. This past winter he promised to be faithful to Joan, but he ran around on her. And last fall he pledged to be faithful and true to Ann, and he broke that pledge. So now Joe is telling you that he’s going to be faithful to you; but listen, that man’s going to cheat on you.

7.The team with the best pitching always wins the World Series. So the New York Mets will win the World Series, since the Mets have the best pitching.

8.The Yankees won the World Series when they had the best pitching staff in baseball; the Dodgers won the World Series when they had superior pitching; and when the Cardinals won the World Series they had the best pitching. So the team with the best pitching staff wins the World Series.

9.When you are cooking fettucine alfredo, be careful not to overcook the pasta. If the pasta is over- cooked, it will stick together, and the sauce will not spread evenly over the pasta. Also, I recommend that you serve a green salad with the fettucine, and be sure to have plenty of red wine.

10.All professors own private jets. My critical thinking teacher is a professor; therefore, she must own a private jet.

11.Three reliable witnesses saw the defendant in New York just one hour before the murder took place in Los Angeles. There’s no way the defendant could be guilty of the murder. Besides, the defendant had no reason to kill the guy—they were good friends.

12.You guys charged too much for fixing my car. It only needed new spark plugs, which are fairly inex- pensive and are easy to install. So I don’t think I should have to pay this outrageous repair bill.

13.I am not paying that repair bill! I may have to hire a lawyer, I may have to call the state attorney gen- eral’s office, maybe my credit rating will be ruined, perhaps they’ll sue me. I don’t care what happens; I’m still not paying.

14.I like the way the Modern Jazz Quartet plays. They have a cool, tight, almost dispassionate style. It projects a sense of tremendous energy being held tautly in check. And the drums, bass, vibes, and piano work together so perfectly that sometimes it is impossible to tell where one stops and the other starts.

15.To be successful in your critical thinking course, it is important to do as many exercises as possible.

It would also help a lot to read the chapters in the text, perhaps even a couple of times. And attend- ing class regularly wouldn’t hurt.

16.Last year there was an increase in gasoline prices in July, and there was also an increase in July the year before that, and the year before that: in fact, every year of the last decade there has been a significant jump in gasoline prices during the month of July. So you can expect to pay more for gasoline this year in July.

17.When hitting a baseball, you should start with your back elbow up; then swing down. Keep your back foot stationary, and don’t lunge at the ball, and be sure to follow through with your swing. And above all: Keep your eye on the ball.

18.If the recession continues, then there will be fewer jobs next year. And the recession is continuing, so clearly next year there will be fewer jobs.

19.All Cleveland Browns fans hate the Steelers. So Brenda must hate the Steelers, because Brenda is certainly a Cleveland Browns fan. 18 Chapter 2 A Few Important Terms 20.This year North State University had a tuition increase, and there was also a tuition increase last year, and the year before that, andthe year before that. So very likely North State University students will be hit with another increase in tuition next year.

21.Look, this is really simple. Either we are sure beyond a reasonable doubt that the defendant is guilty, or we have to vote not guilty. Now obviously we can’t be sure beyond a reasonable doubt that he is guilty, since the only witness admitted that he was drunk and isn’t sure what he saw. So we have to vote not guilty.

22.If federal disaster relief had been well organized, then effective aid would have reached New Orleans immediately after Katrina passed. But in fact effective aid did not reach New Orleans until long after Katrina passed. So obviously federal disaster relief was not well organized.

23.I love Cajun music. It has a simple beat, but it’s always great for dancing—especially at a Cajun street dance, when you mix plenty of wine with the music. If you have a great Cajun fiddler, who keeps a steady rhythm with the fiddle, and you throw in a good accordion player and maybe a guitar, you can dance till dawn. You haven’t partied until you’ve danced all night to a Cajun band down deep in the Louisiana swamps.

24.Sharon must be tall. After all, Sharon is a basketball player, and all basketball players are tall.

25.If you believe in democracy, then you should vote. And of course you do believe in democracy, so therefore you should vote.

26.Please don’t miss class on Friday. We’ll be studying ad hominem arguments, and that’s one of my favorite topics, and I would be really disappointed if no one was here to discuss ad hominem argu- ments with me.

27.If a wealthy country like the United States does not provide decent health care for allits citizens, then there should be major reform in its health-care system. So clearly there should be major reforms of our health-care system, because the United States does not provide decent health care for all its citizens.

Premises and conclusions are statements. They make claims, and they are either true or false. But while the premises and conclusions of arguments are true or false, argumentsare not true or false. Instead, arguments are validorinvalid, soundorunsound, strongorweak, cogentoruncogent.

Evaluation of an argument comprises two distinct and essential considerations. First, do the premises support the conclusion? Second, are the premises true? Start with the second consideration: Are the premises true?The most obvious way that an argument can go wrong is by having falsepremises. “You should immediately send $10 to Reverend Megabucks, because God commands it, and if you break God’s commandment God will cause blight on your crops, flat tires on your cars, fumbles by your running backs, and holes in your socks.” Well, if true, that might provide some reason for coughing up a sawbuck to the Rev; but before we wonder about whether the conclusion really follows from the premises, we should first question whether the premises are actually true. Since they are not, the argument is no good—it is unsound—whether the premises adequately supportthe conclusion or not.

Now we come to the trickier part of evaluating arguments: Even if the premises are true,dothey provide the right sort of supportfor the conclusion? Does the conclusion really “follow from” the premises? That is a separateand distinct question from the ques- tion of whether the premises are true. After all, an argument with all true premises may fail to support its conclusion; for example: The defendant is named George; Georgestarts with g, and guiltystarts with g; therefore, the defendant is guilty. And an argument with false premises may strongly support its conclusion: If there are dinosaurs on the moon, then Earth is the largest planet; there are dinosaurs on the moon; therefore, Earth is the largest planet. Chapter 2 A Few Important Terms 19 So in addition to asking whether the premises are actually true, we must alsoask, Do the premises provide the right sort of support for the conclusion?

We’ll look further into the questions of how premises support conclusions, and whether in a particular argument the premises provide the right sort of support for the conclusion. But first it is important to note that there are two different waysthat premises can support conclusions, and those two ways mark out two different typesof arguments. The two different types of arguments are deductiveandinductive.

D EDUCTIVE AND INDUCTIVE ARGUMENTS What are the differences between a deductive and an inductive argument? There are several, but they all stem from this key difference: Inductivearguments go beyondthe infor- mation contained in the premises; inductive arguments make a projectionbased on given information.Deductivearguments draw out the implications of the premises; they draw conclusions that are already contained in the premises. So what you must look for in deciding whether an argument is deductive or inductive is the relation of the premises to the conclusion. If the premises are used as a base from which the conclusion makes a projection,then the argument is inductive; if the conclusion is purportedly drawing out implications contained in the premises (rather than going beyond the premises), then the argument is deductive. (Obviously, a deductive argument may contain a premise or premises that were established inductively.In determining whether an argument is deduc- tive or inductive, the question is not how the premisesare supported; rather, the question is how the premises are related to the conclusion.) Suppose that the conclusion of an argument is, The Giants will win their next home game. Would the argument for that conclusion be inductive or deductive? You can’t tell.

It might be either. For example, you might argue like this: The Giants have won all their home games for the last 2 years; so they will win their next home game. That would be an inductive argument, which projects the result of the next game on the basis of information about preceding games. But suppose that instead the argument goes this way: If the quarterback for the Giants is healthy and able to play, then the Giants will win their next home game. The Giants quarterback is healthy and ready to play. Therefore, the Giants will win their next home game. That is a deductiveargument for the same conclusion. Consider another example. All college students like indie music. The students at the University of Texas are college stu- dents. Therefore, all students at the University of Texas like indie music. That is a deductiveargument. The conclusion simply draws out the implications of the premises. It is in fact a deductively valid argument, and if the premises are true, then the conclusionmustbe true. (How do we know that the first premise—“All college students like indie music”—is true? Perhaps it was established inductively; perhaps we determined that through asking absolutely every college student; perhaps it was given in a special revelation from God. Certainly when we are evaluating the soundnessof the argument, it will be important to know whatthe grounds are for believing the premises and whether the premises are in fact true. But when we are trying to determine whether an argument is inductive or deductive, we are notconcerned with how the premises are known or whether they are actually true; rather, we are concerned only with the relation between 20 Chapter 2 A Few Important Terms the premises and the conclusion.) Contrast that deductive argument with this inductive argument: We have interviewed thousands of students at the University of Michigan, Yale University, the University of Arizona, Florida State, and Bates College. All the students we interviewed like indie music. Therefore, all the students at the University of Texas like indie music. That has the same conclusion as the deductive argument in the above example, but it is an inductiveargument that projectsa conclusion about students who were not interviewed (students at the University of Texas) on the basis of people who are somewhat similar to the students at the University of Texas (other U.S. college students). The moral of the story is this: In determining whether an argument is deductive or inductive, you must first deter- mine what the conclusion is, but don’t stop there. Examine the relationbetween premises and conclusion; only then can you decide whether the argument is inductive or deductive. Exercise 2-3 For each of the following cases, first tell whether it is or is notanargument;second, for each argumentdetermine whether it is deductiveorinductive;third, for each of the argumentsstate the conclusion. In at least one case it may be possible to interpret an argument as either deductive or inductive.

1.All licensed physicians in the United States are medical school graduates. Ralph is not a medical school graduate, so Ralph is not a licensed physician in the United States.

2.If you want to live a long and healthy life, then you should eat lots of fruits and vegetables, and stay away from junk food and fast food. Also, be sure to get some exercise, and try to get a decent amount of sleep. And, of course, don’t smoke.

3.Susan is a licensed physician, and she is a medical school graduate. Sarah is a licensed physician, and she is a medical school graduate. Sam is a licensed physician, and he is a medical school grad- uate. Bradley is a licensed physician, and he is a medical school graduate. And Teresa is a licensed physician, and she is a medical school graduate. Ralph is also a licensed physician, so he is probably also a medical school graduate.

4.We have interviewed 1,200 college students, and 900 of them favored 18 as the legal age for the pur- chase of beer.

5.We have interviewed 1,200 U.S. college students, and 900 of them favored 18 as the legal age for the purchase of beer. Therefore, a substantial majority of all U.S. college students favor 18 as the legal age for the purchase of beer.

6.We should set 18 as the legal age for the purchase of alcoholic beverages. If people are old enough to vote, then they are certainly old enough to drink, and 18-year-olds are indeed old enough to vote.

7.The Yankees won the World Series when they had the best pitching staff in baseball; the Dodgers won the World Series when they had superior pitching; and when the Cardinals won the World Series they had the best pitching. So the team with the best pitching staff wins the World Series.

8.The team with the best pitching always wins the World Series. The St. Louis Cardinals must have the best pitching, because the Cardinals won the World Series.

9.I think Jones—the key witness for the prosecution—probably robbed the bank himself, and is now trying to pin the crime on Smith. In any case, there is certainly a reasonable doubt that Smith (the defendant) robbed the bank, so we should all vote not guilty.

10.Look, I don’t know about anything else, but I know for an absolute fact that Jones could never have killed anyone. So when Smith testified that Jones was the murderer, Smith must have been lying.

11.We have carefully surveyed 500 registered voters, chosen at random from throughout Ohio, on whether they favor a law making it legal for ordinary citizens to carry concealed weapons. Of those surveyed, 320 opposed legalizing concealed weapons, 140 supported legalizing concealed weapons, and 40 were undecided or had no opinion. So obviously most of the registered voters in Ohio are opposed to legalizing concealed weapons. Chapter 2 A Few Important Terms 21 12.We had a great camping trip. The weather was warm during the day and nice and cool during the evening, just right for a cozy campfire. The nights were so clear, you could almost reach out and touch the stars. And late at night, warm in our sleeping bags, you could hear loons calling on the lake, and owls calling from deep in the woods. It was perfect.

13.Mighty Casey will almost certainly strike out. For the bases are loaded, and Mighty Casey struck out the last time he batted with the bases loaded, and he struck out the time before when he batted with the bases loaded; and, in fact, the two times before that he struck out when the bases were loaded.

14.Either the Chicago Cubs or the New York Mets will win the World Series. The New York Mets obvi- ously will not win the Series, since they have had lots of injuries, and their pitching and fielding have both been weak. So the Chicago Cubs will win the World Series.

15.When examining arguments, the most important thing to do is this: First, pick out the conclusion.

After you have the conclusion clearly stated, then you should examine the structure of the argu- ment, and pick out any assumptions made by the argument. Next, you should look for any fallacies committed, and the last step is to determine whether the premises are true.

16.In the last five World Series, the team that was at home for the first game won the Series. Therefore, the Toronto Blue Jays are a good bet to win this World Series, since they are the home team for the first game.

17.All U.S. citizens have a right to vote in presidential elections. Joan Jakobovitz is a U.S. citizen; so Joan Jakobovitz has a right to vote in the presidential election.

18.There are currently three major danger areas for the outbreak of war: the Middle East, Eastern Europe, and the border between India and Pakistan. Perhaps the most dangerous of those areas is Eastern Europe, though there are certainly serious dangers elsewhere around the world.

19.Last quarter there were 18 students in the critical thinking course who never missed a class, and they all passed the course. The quarter before that, 16 students attended every class, and all of them passed also. So if you attend every class this quarter, you will pass the course.

20.Ladies and gentlemen of the jury, this is a simple case. Clearly Selena Skowron is not guilty of robbing the Detroit National Bank. The Detroit National Bank was robbed at noon on March 3, 1996. If Selena Skowron was in Cleveland at noon on that day, then she could not be guilty of robbing the Detroit National Bank. And she certainly was in Cleveland at noon of that day, as was proven by the testimony of four reliable witnesses.

21.All students who are registered at the university have a right to use the university library. So Alice Andrews has a right to use the library, because she is a registered student at the university.

22.Bruce has been late for class every day since the semester started. So he will probably be late for class again tomorrow.

23.If Joan is a student at Ohio State, then she hates Michigan. Joan is a student at Ohio State. There- fore Joan hates Michigan.

24.Last year all of the critical thinking exams were really hard. And that year before that, all the critical thinking exams were brutally tough. In fact, for the last ten years every critical thinking exam has been very hard. So very likely the next critical thinking exam will be a hard one.

D EDUCTION , V ALIDITY ,AND SOUNDNESS Deductive arguments are supposed to draw conclusions that are already contained in or directly implied by the premises. If a deductive argument is correctly structured, then the truth of the premises will guaranteethe truth of the conclusion. If that is the case, then the deductive argument is valid.So the definitionof a validdeductive argument is: Ifall its premises are true, then its conclusion mustbe true. Notice the italicized words: ifandmust.They are essential. First the if:We are not saying that a valid argument doeshave all true premises; it may or may not. Rather, ifall the premises are true, thenthe conclusion must be true. Mustbe true. It is not enough for the conclusion to just happen to be true. Its truth mustfollow from the truth of the premises; 22 Chapter 2 A Few Important Terms the truth of the premises must make it impossiblefor the conclusion to be false; the truth of the premises is inconsistentwith the falsity of the conclusion.

Obviously the actual truth or falsity of the premises is an important matter, and we shall certainly return to it. But first we want to know whether the premises, ifthey are true, will prove the conclusion true. Consider this example: If the moon is made of green cheese, then there are mice on the moon.

The moon is made of green cheese.

Therefore, there are mice on the moon. That’s not much of an argument: It has a false premise, a false conclusion, and besides, it’s rather silly. But it is a deductively validargument, because ifthe premises were true, then the conclusion would also have to be true. That’s what it means for an argument to be deductively valid:If the premises are all true, then the conclusion must be true. Or put another way, it is impossible for all the premises to be true and the conclusion false. And if it is possible for the premises to be true and the conclusion false, then the argument is deductively invalid.

In a valid deductive argument, the truth of the premises guarantees the truth of the conclusion. But notice that that is the onlyguarantee that validity gives you; in particular, if a valid argument has falsepremises, then the validity of the argument does not guaran- tee that the conclusion will be false. Of course it maybe false, but it mayalso be true. For example, consider this argument: All turtles are good jumpers.

Michael Jordan is a turtle.

Therefore, Michael Jordan is a good jumper. That is a validargument; the truth of the premises would guarantee the truth of the con- clusion.Allthe premises are false: Not allturtles are good jumpers (Ninja turtles may be, but they are the exception), and Michael Jordan is nota turtle. But the conclusion is still quite true: Michael Jordan is indeed a good jumper.

The validity of deductive arguments depends entirely on their form.Consider the two arguments we just examined. The first (about the moon mice) has this logical form: IfG, then M.

G.

Therefore,M. The second (about jumpers) has this form: AllTareJ.

Mis a T.

Therefore,Mis a J. Both argument forms are valid; it doesn’t matter what you substitute for GandMor for T andJandM, they will stillbe valid. If gold grows on trees, then farmers are rich.

Gold does grow on trees.

Therefore, farmers are rich.

If the defendant is charged with a criminal offense, then the defendant has a right to legal counsel.

The defendant is charged with a criminal offense.

Therefore, the defendant has a right to legal counsel. Chapter 2 A Few Important Terms 23 All kings are jealous.

William is a king.

Therefore, William is jealous.

All whales are mammals.

Shamu is a whale.

Therefore, Shamu is a mammal. All of those are valid arguments. In each argument, ifall of its premises are true, then its conclusionmustbe true.

But obviously not all of those arguments are good arguments; for though they are valid, some have false premises. So there are two conditions that a good deductive argument must meet: It must be valid, andall of its premises must actually be true. When a deductive argu- ment meets boththose conditions, we say that it is a soundargument. If an argument fails on either count—if it is invalid or has one or more false premises, or both—then it is unsound.

INDUCTION , S TRONG ARGUMENTS ,AND COGENT ARGUMENTS You have used inductive arguments all your life. When you awaken on a frosty January morning to see snowdrifts outside your window, you pull on a wool sweater and a heavy coat. This is a snowy January day, and so it will be cold outside. Such is your conclusion, if you think about it at all. But why didn’t you put on your sandals and your short-sleeved shirt with the pink flamingos? That is, why were you so sure—by looking out the window of your warm bedroom and seeing snow—that the snowy day really was cold?

That’s a silly question. But it’s a silly question only because we take inductive argu- ments for granted. You’ve gone out in the cold snow many times before, so you con- cluded—quite reasonably—that this snowy day would also be cold. That is good inductive reasoning. (It’s not very profoundor difficult inductive reasoning, but it is accurate.) A friend tells you about a new film. She likes it very much, and strongly recommends that you see it. Since in the past the two of you have agreed on movie evaluations, you con- clude that you will probably enjoy this film.

You are meeting a friend for lunch. Over the years you have had a standing lun- cheon engagement with him for every Friday at noon, and every time your friend arrives about 12:15. So you wait and go to the restaurant about 12:15, confident that your friend’s tardiness will continue. Again, that is good inductive reasoning. Of course your friend may surprise you and arrive at 12:00 sharp. That’s the way it is with inductive arguments.

Even though the argument is a good one, the conclusion is never more than very probable.

Another example was first proposed by the British logician Bertrand Russell.

A turkey is living quite contentedly on a farm. Every morning the farmer comes out to the barn and brings corn, to the turkey’s delight. The turkey reasons inductively that since for many past mornings the farmer has brought corn, this morning the farmer will again bring corn. But on one final occasion—perhaps Christmas morning—the turkey follows that good inductive argument to a fatally false conclusion. The late turkey used a fairly good inductive argument with true premises: Every past morning the farmer has brought corn; therefore, the farmer will bring corn this morning. How might the turkey have improvedthat inductive argument?

The unfortunate turkey was probably not in a position to gather much additional information. But what sort of information would have been useful to him, would have allowed him to develop a better inductive argument? For one thing, the turkey does not have a very broad range of information to work from: He knows only about his own rela- tion to the farmer. The turkey might have checked around: What happens to other animals that have been in similar relations with the farmer? The pigs, for example, might have told the turkey some hair-raising (or feather-raising) stories about pigs in similar circumstances. Such further information might have allowed the turkey to draw a more 24 Chapter 2 A Few Important Terms accurate conclusion. On the other hand, had the turkey talked to Fluff the cat or Spot the dog, the information gained might well have led the turkey to be even more confident of the farmer’s continued goodwill. Obviously this induction business is important for all of us, turkeys and otherwise—but it can be rather tricky. So it is not enough to merely gather information; we must decide what similarities are and are not relevant.

In analyzing deductive arguments, we applied two standards. Deductive arguments arevalidorinvalid,and they are soundorunsound.A deductive argument is validif the truth of its premises guaranteesthe truth of its conclusion; that is, if all its premises are true, then its conclusion mustbe true. If a deductive argument is valid, andall its premises are actually true,then the argument is sound. Validityis concerned with the relation between premises and conclusion, leaving aside the question of whether the premises are actually true; soundnessbrings in the question of the actual truth of the premises. It’s useful to have corresponding standards for evaluating inductivearguments.

But obviously we can’t just use the terms we applied to deductivearguments, because they won’t fit. In a validdeductive argument, if the premises are true the conclusion mustbe true. But because inductive arguments make claims that go beyond their premises, they cannot be valid and sound, the way deductive arguments are. Excellent inductive argu- ments that contain all true premises still leave the possibility—however slight—that their conclusions are false. So instead of validityandsoundness,we’ll need new terms for induc- tive arguments.

We’ll characterize inductive arguments as strongorweak,rather than valid or invalid.

When we say that an inductive argument is strong,we are saying nothing at all about the truth of its premises. Rather, we are saying that ifits premises are true (notthat they are true) then the premises provide strong support for the truth of the conclusion. Consider an example. Ohio State University has reduced tuition every year for the past 30 years. So there will probably be a tuition reduction at Ohio State University again next year. That’s a reasonable conclusion, given the premises. That’s a stronginductive argument. Ifthe premises are true, then they provide strongsupport for the conclusion. And we can ana- lyze the strengthof that inductive argument without knowing anything at all about whether the premises are actuallytrue (just as we can analyze the validityof a deductive argument without knowing whether its premises are actuallytrue). Suppose, on the other hand, we argued that lastyear Ohio State University reduced its tuition, so probably it will do so again next year. That’s a weakinductive argument. Basing the conclusion on only 1 year makes this a weakargument, and it remains a weakinductive argument whether the premise is true or false. Consider an inductive argument based on a survey. “We surveyed 3 U.S. citizens (selected randomly) and 2 of the 3 favor universal health care. So most U.S.

citizens favor universal health care.” That’s a weak inductive argument. Suppose our sample were 30, and 20 favored universal health care, and we conclude that most U.S.

citizens favor universal health care. That argument is stronger than the first, but still not very strong. If the sample were 1,200, and 800 favored universal health care, the argument would be fairly strong. A sample of 30,000 with 20,000 in favor would be very strong.

You recall that validdeductive arguments can be dead wrong (unsound) because their premisesarefalse. For example, if the moon is made of green cheese, then there are mice on the moon. The moon is made of green cheese. Therefore, there are mice on the moon. That’s a validargument; but it’s still a lousyargument, because its premises are false.The argument is valid,butunsound.Something similar applies to the argument about tuition at Ohio State: Ohio State University has reduced tuition every year for the past 30 years. So there will probably be a tuition reduction at Ohio State University again next year.

That’s a stronginductive argument; but students at Ohio State should not look forward to a tuition reduction next year, because the premisesof that inductive argument are false.Ohio State certainly has not reduced tuition every year for the past 30 years; to the contrary, like most universities, it has steadily increased its tuition. Just as the deductive argument about the mice on the moon is validbutunsound,this tuition argument is strongbutnot cogent.For a deductive argument to be sound,it must meet two conditions: it must be valid,and all its Chapter 2 A Few Important Terms 25 premises must actually be true. Along similar lines, for an inductiveargument to be cogent,it must be strong,and all its premises must actually be true. If a deductive argument is either invalid or has a false premise (or both), then we say it is unsound.If an inductive argument is either weakor has a false premise (or both), then we say it is uncogent.

One last point. When we are dealing with deductive arguments, they are either valid or invalid, sound or unsound. There’s no in-between. It’s sort of like baseball: you either win or you lose, there are no draws and no middle ground (okay, there could be a game called off on account of rain, but you get the idea). But inductive arguments are very different. There are surely some stronginductive arguments (there has been at least one tornado in Oklahoma every year for the past 100 years, so Oklahoma will probably have at least one tornado this year), and there are also some weakinductive arguments (I hit the lottery number yesterday, so I’ll probably win again today). But in-between, there’s a large area of gray. For example, the United States has had a flu outbreak every year for the last 5 years, so we’ll probably have one this year. Is that a strong inductive argument? Well, it’s not all that strong. Certainly it would be stronger if the premise stated that the United States has had a flu outbreak every year for the past 100 years; it would be weaker if it cited only the past 2 years. Exactly when does it pass from weak to strong? There’s no bright line. That doesn’t mean that we can never distinguish between strong and weak inductive arguments, but it does make things a bit tricky. Sorry about that. Exercise 2-4 Some of the following arguments are deductive, and some are inductive. For each of the argu- ments, choose which oneof the following alternatives applies. (a) valid, but unsound; (b) invalid; (c) sound; (d) strong, but uncogent; (e) weak; (f) cogent.

1.All stars produce energy. The Sun is a star. Therefore, the Sun produces energy.

2.The University of Michigan has reduced tuition every year for the past 20 years. So probably there will be a reduction of tuition at the University of Michigan next year.

3.Rover is a dog. No dogs can play bridge. So Rover cannot play bridge.

4.All dogs are animals. All cats are animals. Therefore, all dogs are cats.

5.If Miami is in Wyoming, then Miami is the largest city in Wyoming. Miami is in Wyoming. There- fore, Miami is the largest city in Wyoming.

6.If the Steelers score 20 touchdowns in their next game, then the Steelers will win. But the Steelers will not score 20 touchdowns in their next game. So the Steelers will not win.

7.Last year there was snow in Cleveland during February, and Cleveland also had snow in February the previous year. So Cleveland will probably get snow this year during February.

8.All undergraduates at Ohio State, Oregon State, North Carolina State, Florida State, Penn State, Arizona State, and Oklahoma State are celibate; so probably all of the undergraduates at Michigan State are also celibate.

9.Either Jupiter is the largest planet in our solar system, or all professional astronomers are totally mistaken. But it is certainly not the case that all professional astronomers are totally mistaken. So Jupiter is the largest planet in our solar system.

10.All dogs can fly. All animals that can fly have teeth. Therefore all dogs have teeth.

11.All basketballs are round, and all billiard balls are round. Therefore, all billiard balls are basketballs.

12.The United States has had a trade deficit every year for the last two decades, so the United States will probably continue to have a trade deficit for at least the next few years.

13.Either penguins can fly, or the Empire State Building is in New York City. Penguins cannot fly.

Therefore, the Empire State Building is in New York City.

14.There has been a major snow storm in Los Angeles on July 4 every year for the past 50 years; so probably Los Angeles will have a major snow storm on July 4 next year.

15.All penguins are great mathematicians. George Bush is a penguin. Therefore, George Bush is a great mathematician. 26 Chapter 2 A Few Important Terms 16.There was a tornado in Oklahoma last year, so there will probably be a tornado in Oklahoma this year.

17.In St. Paul-Minneapolis there has been at least one day of subfreezing temperature every winter for the past 50 years; so St. Paul-Minneapolis will probably have at least one day of subfreezing tempe- rature next winter.

18.The last 27 summer Olympic games have been held in Las Vegas, so very likely the next summer Olympics will also be held in Las Vegas. Exercise 2-5 The following multiple-choice questions are about valid, invalid, sound, unsound, strong, weak, cogent, and uncogent arguments. In each case, select the one best answer.

1.In a valid deductiveargument, if all the premises are truethen the conclusion:

a. is probably true.

b. must be true.

c. may or may not be true.

2.In a strong inductiveargument, if all the premises are truethen:

a. the conclusion is probably true.

b. the conclusion must be true.

3.If a deductive argument has a false premise, then:

a. the conclusion cannot be true.

b. the argument cannot be valid.

c. the argument cannot be sound.

4.If a deductive argument is valid, then:

a. all of its premises must be true.

b. at least some of its premises must be true.

c. any or all of its premises may be either true or false.

5.If a deductive argument is invalid, then:

a. it must have at least one false premise.

b. it must have a false conclusion.

c. it may or may not have false premises and/or a false conclusion.

6.If a deductive argument has a falseconclusion, then:

a. the argument is valid.

b. the argument is invalid.

c. you can’t tell from the information given whether or not the argument is valid.

7.If a deductive argument has a trueconclusion, then:

a. the argument is valid.

b. the argument is invalid.

c. you can’t tell from the information given whether or not the argument is valid.

8.If a deductive argument is valid and has a false conclusion, then:

a. all its premises must be false.

b. at least one of its premises must be false.

c. it may or may not have a false premise.

9.If an argument has a false conclusion but all its premises are true, then the argument cannotbe:

a. a valid deductive argument.

b. a cogent inductive argument.

c. either valid or cogent.

10.In a sound deductive argument:

a. the conclusion is always true. Chapter 2 A Few Important Terms 27 b. the conclusion is probably true.

c. it’s impossible to tell from the information given whether the conclusion is always or probably true.

11.If all the premises of a deductive argument are false, then that argument is:

a. valid.

b. invalid.

c. impossible to tell from the information given.

12.If an inductive argument contains a false premise, then it cannotbe:

a. strong b. cogent 13.If an inductive argument has a true conclusion, then the argument must be:

a. strong b. cogent c. none of the above 14.If a strong inductive argument is uncogent, then:

a. it must have at least one false premise.

b. it must have a false conclusion.

c. none of the above.

REVIEW QUESTIONS 1. What is a statement? How does a statement differ from a sentence?

2. What is an argument? What is a premise?

3. What is the difference between deductive and inductive arguments?

4. What is a validargument?

5. What is a soundargument?

6. What is a strongargument?

7. What is a cogentargument? Studyand Reviewonmythinkinglab.com ReadtheDocumentonmythinkinglab.com NOTE 1Wheaties is a registered trademark of General Mills, Inc., Minneapolis, Minnesota. INTERNET RESOURCES The Internet Encyclopedia of Philosophy has a nice brief article on inductive and deductive reason- ing; go to http://www.iep.utm.edu/ded-ind/ San Jose State University’s Critical Thinking web page is engaging, and the material presented is clear and well organized; you can find it at www.sjsu.edu/depts/itl/graphics/main.html.

Bruce N. Waller, “Deductive and Inductive Arguments,” Con- sider Philosophy. The important but difficult distinctionbetween deductive and inductive arguments is discussed in this passage. ADDITIONAL READING For a much more detailed look at deductive and induc- tive arguments, you might examine Davis Baird, InductiveLogic: Probability and Statistics(Englewood Cliffs, NJ:

Prentice Hall, 1992). 28 Ad Hominem Arguments 3 ❖ ❖ ❖ We have talked about inductive and deductive arguments, valid and invalid arguments, strong and weak arguments. But little has been said about the sources of arguments. The reason is that in analyses of whether an argument is valid or invalid, strong or weak, the source of the argument is irrelevant. Criticizing the sourceof an argument rather than the argument itself commits the ad hominem fallacy.

THE AD H OMINEM FALLACY Ad hominem arguments are, literally, arguments “to the person.” There are many dangers, confusions, and temptations associated with ad hominem arguments. But if you faithfully follow one commandment, you can avoid most of the pitfalls and snares of the ad hominem fallacy. That commandment is When considering the quality of an argument, thou shalt notconsider the sourceof the argument. It does not matter whether the argumentwas given by Richard Nixon or Mother Teresa or Al Capone or St. Francis or God Herself: If it’s an argument,it must stand or fall on its own merits. The argument may come from the mouth of a babe or of a sage, it may be sung in the rich resonant tones of Pavarotti or screeched in the grating cry of the Jabberwocky, it may be carved on gold tablets or scribbled on a scrap of paper—it doesn’t matter. You cannot judge an argument by its source. If we should discover that an argument long attributed to Socrates was in fact given by Socrates’ favorite sandalmaker, then that would be important for scholars studying ancient Greek philosophy, but it would have no bearing on the strength of the argument.

Productiveargument—whether the argument process is adversarial or cooperative— requires an atmosphere of respect for the participants in the argument. The attacks on character and motives that have become standard practice on talk radio and on many blogs and message boards destroy the mutual respect that is the essential starting point of Listento the Chapter Audio on mythinkinglab.com intelligent critical argumentative exchange; and when the conditions for fruitful argument are damaged, democracy itself is threatened. There are still blogs and forums where intel- ligent civil debate flourishes; but sadly, in many forums name-calling and personal invec- tive have become so common and ugly that room for critical argument is crowded out.

The following remarks—lifted from message boards that are supposedly devoted to argumentabout important issues—are typical: It is clear that Keyboardtek is a Kool-aid drinker and should have been in Jonestown.

Keyboardtek is just another Anti-American Al Quaida collaborator who wants to destroy this country.

And this:

All you talk about is how evil the government is, you sound like a confederate. I bet you wish there was still slavery. Yes, the government is out to get you, the moon landing was a hoax, JFK was a conspiracy, and the government was responsible for 9/11. You are just a crazy, superstitious bastard. Such ad hominem attacks have no place in serious critical argument: first, because they poison the atmosphere and make serious argument impossible (name-calling is not argu- ment); and second, because they are clearly fallacious.Thesourceof an argument is irrelevant to the qualityof that argument: whether I am drunk or sober, conservative or liberal, a patriot or a traitor, my argumentstands or falls on its own merits, and the charac- ter of the person giving the argument doesn’t matter. You may admire Barack Obama and loathe Sarah Palin, or despise Nancy Pelosi and love Rush Limbaugh; but when they give arguments, you must consider those arguments on their own merits and flaws—and the virtues and vices of the sourceof the argument are irrelevant. If you read an argument that you thought was given by George Washington, and now you learn it was an argument by Benedict Arnold, that should have no effect whatsoever on your judgment about the quality of the argument.

N ONFALLACIOUS AD H OMINEM ARGUMENTS The ad hominem fallacyis committed when one attempts to discredit an argument by attacking the source of the argument. But not all ad hominem arguments involve the ad hominemfallacy;in fact, most ad hominem arguments do not commit the ad hominem fallacy. (Many people regard all ad hominem arguments as automatically fallacious. That has the advantage of being easy; it has the disadvantage of being wrong.) An ad hominem argument commits the ad hominem fallacyonly if it attacks the sourceof an argument and claims that because of some flaw in the source of the argument the argument itselfis flawed. If former President Richard Nixon arguesthat we should improve our trade rela- tions with China, then we must evaluate Nixon’s arguments on their own merits; to claim that the flaws in Richard Nixon’s characterweaken his argumentis to commit the ad hominem fallacy. If Tiger Woods gives an argumentin favor of marital fidelity, then we must evaluate Tiger’s argument on its merits. Tiger himself would be a hypocrite, but his arguments may still be good arguments.

But imagine a very different situation. We are not discussing arguments at all; instead, we are simply having a discussion of famous (and infamous) Americans of the 1960s and 1970s. During our discussion, someone asserts that Richard Nixon was a terri- ble man (“He misused the power of the presidency, he surrounded himself with corrupt and dishonest men, he lied to the American people, he was vindictive toward those who opposed his views”). That is certainly an ad hominem argument,but it is not an ad hominemfallacy.And one may object to such an attack on Nixon: you might think it ethically wrong (“You shouldn’t hit a man when he’s down”), in poor taste (“If you can’t say something nice, don’t say anything at all”), or factually mistaken (“Nixon didn’t really Chapter 3 Ad Hominem Arguments 29 do all those nasty things; he was hounded out of office by the liberal press”). But whatever faults that ad hominem attack on Nixon contains, it does notcommit the ad hominem fallacybecause it does not attempt to refute one of Nixon’s argumentsby attacking the source of the argument(it simply attacks Nixon, not Nixon-as-source-of-argument).

So ad hominem arguments may be legitimate and effective. Let’s say that I am running for the Senate and my opponent argues that I am unfit to be senator because I have three convictions for perjury, four for mail fraud, and five for forgery. That infor- mation may well be important to voters, who would legitimately wish to consider it in judging my fitness to serve as their senator. If, on the other hand, my opponent attacks me because I’m bald and my ears look funny, that ad hominem attack seems irrelevant to my ability to be an effective senator. It is not an ad hominem fallacy(it does not suggest that my argumentsare no good because I’m bald and have funny-looking ears); but it is an irrelevantad hominem argument, even if the ad hominem attacks are true. Consider another example. If Lionel Lizardliver is a candidate for a position as first-grade teacher, it will certainly be a relevant—and nonfallacious—ad hominem argument to say: Lionel should not be hired to teach first grade because he is only marginally literate, he has an extremely violent temper, and he hates small children. (To argue that Lionel is unfit because he is bow-legged and wears ugly socks would be an irrelevantad hominem attack; it would not be an ad hominem fallacy.) Notice that it is not the truth or falsity of the claims made in the ad hominem argu- ment that determines whether or not the argument commits the ad hominem fallacy.If the claims made in the above ad hominem argument against Nixon are false, then the argument certainly will be unsound, but it will still not commit the ad hominem fallacy (though it may contain some otherfallacy). It does not commit the ad hominem fallacy because it does not attack an argument source.And if Nixon gives an argumentin favor of more trade with China, then an attempt to discredit his argument by attacking him does commit the ad hominem fallacy, even if everything said in the ad hominem attack is perfectly true. When ad hominem arguments are fallacious, they are fallacious not because the attack on the arguer is false; they are fallacious because the attack on the arguer is irrelevantto the quality of the arguer’s argument. Argumentsmust be judged on their own merits; their origins don’t matter. 30 Chapter 3 Ad Hominem Arguments Nose Size and Argument Quality Shortly after the U.S. destruction of the Iraqi army in 2003, the Bush administration awarded an enormous contract to the Halliburton Corporation. The contract was for work on the Iraqi oil fields and a few other projects—it was difficult to know exactly what it cov- ered, since the details were not released—and was worth at least $600 million (exactly how much the contract was worth was also left unclear; some estimates were that it would be worth closer to $6 billion). This was a no-bid contract for an enormous amount of money, the details were kept hidden, and the contract was awarded to a company that was once run by Vice President Richard Cheney (a company where many of Cheney’s friends still worked, and a company that had made large campaign contributions to the Republi- cans). This contract raised some legitimate questions (questions that the U.S. media largely ignored); and Senator Henry Waxman from Oregon criticized the contract, arguing that it was awarded secretively and wasnot open to other bidders. One talk radio show host rejected Waxman’s argument, on the grounds that Wax- man has a large nose with flaring nostrils, and thus looks funny. You probably didn’t need a course in criti- cal thinking to know that such talk radio ad hominem attacks, common as they are, commit the ad hominem fallacy. But suppose that Senator Waxman had been givingtestimonyrather than argument. In that case, the talk radio attack on Senator Waxman would nothave committed the ad hominem fallacy.(The ad hominem fallacy is committed onlywhen one rejects an argument based on the argument source.) But even though it would not be an ad hominem fallacy,it would still be a lousy ad hominem argument; if Senator Waxman had been giving testimony, the ad hominem attack on his appearance would commit the fallacy of irrelevant reason: The size and shape of the testifier’s nose obvi- ously is irrelevantto the reliability and integrity of the person giving testimony. Chapter 3 Ad Hominem Arguments 31 Ad Hominem and Testimony So not all ad hominem arguments are fallacious. To the contrary, in one situation ad hominem arguments are quite valuable. When a claim is based on testimony—rather than argument—then ad hominem arguments are an appropriate and important means of chal- lenging the claim. Testimonytakes its strength entirely from its source. If I argue that the defendant must be the murderer (because his fingerprints were found on the murder weapon, the victim’s wallet was found in his possession, reliable eyewitnesses saw him running from the scene of the crime, etc.), then you must focus on the argument (and notthe arguer): Is the argument valid, and are the premises true? But if I testifythat the defendant is the murderer (because “I sawhim do the foul deed”), then the strength of the testimony depends entirely on the sourceof the testimony, and you can effectively evaluate my testimony only to the degree that you have knowledge of my character, my truthfulness, my reliability.

Consider this fictional case of a jailhouse informant (Jones) who testifiesagainst the defendant on trial for murder (Smith). Jones is in jail, awaiting sentencing on drug charges. Jones claims that one day while they were eating lunch at the prison cafeteria, Smith began talking about how he had committed the murder: how he had strangled the victim in the course of a nighttime burglary, when the defendant awakened and con- fronted him. After Jones gives his testimony about the confession by Smith, the defense attorney begins her cross-examination. “Mr. Jones, have you ever committed perjury? Have you ever lied under oath? Have you ever taken an oath to tell the truth, the whole truth, and nothing but the truth, so help you God, and then lied?” “I don’t remember ever doing that, no.” The defense attorney looks at some papers on her desk, and then walks toward the witness.

“You say you don’t remember ever lying under oath? Let me refresh your memory, Mr. Jones. Two years ago, in this very courtroom, you were on trial for selling cocaine, is that right?” “Yes, but those charges were later reduced.” “Well, we’ll get to that. My question is, were you on trial for sale of cocaine?” “Yes.” “When you testified during your trial, you swore under oath that you had never sold cocaine, that the charges against you were a mistake, is that right?” “Yes.” “The trial was stopped, and you were allowed to plead guilty to possession. But during your sentencing hearing on the reduced charges, you explicitly admitted that you had sold cocaine, didn’t you? The judge specifically asked if you had sold cocaine, and you answered that you had done so.” “Yeah, but what I said was I hadn’t sold much; that I had sold some cocaine, but I was not a big cocaine dealer, or anything like that.” “So when you testified—under oath—that you had never sold cocaine, that was a lie, wasn’t it? You swore that you had never sold cocaine, when in fact you had. Is that right?” “I didn’t sell much.” “Mr. Jones, listen carefully to the question. You testified under oath that you had neversold anycocaine; that was a lie, wasn’t it?” “Yes, I guess it was.” “So you lied under oath, didn’t you?” At this point the district attorney intervenes: “Objection, Your Honor. That question has been asked and answered.” “Sustained. Counselor, move on to your next question.” “Thank you, Your Honor.” The defense attorney turns back to the witness. “My next ques- tion, Mr. Jones, is this. You just told this jury, under oath, that you could not remember ever lying under oath. That was a lie, wasn’t it? Because you certainly did remember lying under oath, just two years ago, in this very courtroom. So when you testified that you didn’t remem- ber, that was another lie, wasn’t it?” 32 Chapter 3 Ad Hominem Arguments “Well, my memory was a little vague.” “Lying just comes natural and easy to you, doesn’t it, Mr. Jones? You lie whenever it’s convenient.” “Your Honor,” the district attorney rises to object, but the judge interrupts and addresses the defense attorney: “Counselor, that is argumentative; save your arguments for your closing.

The jury will disregard the last statement from the defense counsel.” “Mr. Jones,” the defense attorney resumes her questions, “when you lied under oath about never selling cocaine, did that keep you awake at night? Did your conscience trouble you?

Were you troubled by telling a lie under oath?” “Your Honor,” the district attorney again rises, “I object to this question.” “No, I will allow the question. The defendant will answer the question.” Jones gives a small half-smile, then answers. “No, it didn’t really bother me, I guess.” The defense attorney walks back to her desk, looks at a paper, then returns to questioning the witness.

“Mr. Jones, you said that in your trial for selling cocaine, the trial was stopped, and you were allowed to plead guilty to a lesser charge, the charge of simple possession, is that right?” “That’s right.” “Well, that was very fortunate for you, wasn’t it. Here you’ve got this very serious charge of selling cocaine, and in fact it was an even more serious charge of selling cocaine near a school—conviction on that charge would have put you in prison for several years—and the charges get reduced to simple possession; and you were then released for time served, with no additional prison time, is that right?” “That’s right.” “Mr. Jones, you are presently in custody, aren’t you? You were brought here to testify from your jail cell, and when you are done testifying you will go back to jail, is that right?” “Yes, I’ve been in jail.” “Why are you being held in jail, Mr. Jones? What are the charges against you?” “I’m charged with possession of cocaine.” “You’re charged with possession. Was that the crime you were originally charged with?” “No.” “What were the original charges?” “I was charged with selling cocaine, but those charges were dropped.” “Actually, Mr. Jones, you were charged with selling cocaine on school property, isn’t that right?” “Yes, but I’m not charged with that now.” “No, you’re not. You got lucky again.Charges were dropped down to simple possession.

What happened before those charges were reduced? Did you have a meeting with the district attorney’s office?” “I might have.” “I’m not asking what you might have done. Didyou meet with someone from the district at- torney’s office?” “Yes.” “What happened at that meeting? What did you tell them?” “I told them about my conversation with Sam Smith.” “With the defendant in this case, Sam Smith?” “Yes.” “Did you tell them that you were willing to testify against Mr. Smith?” “Yes.” “Were there any conditions on your testifying?” “Not really conditions. I told them I was worried about the charges against me, that I was hoping for a lesser charge.” “And your hopes were answered, weren’t they? Twice you’ve been charged with selling drugs, selling drugs in the vicinity of schools—apparently your favorite market for drug dealing—and twice the charges have been dramatically reduced, after you agreed to testify against someone else. You’ve gotten a very good return on your testimony, haven’t you? No further questions, Your Honor.” This cross-examination brings out a number of relevant facts about the witness: facts that the jury would certainly wish to consider in weighing the credibility of the witness. Chapter 3 Ad Hominem Arguments 33 The witness is a drug dealer, who apparently specializes in selling to students; the witness is quite willing to lie under oath; and the witness is getting substantial benefits in return for his testimony (some might even say that he is being paid off for his testimony), and thus he has a motive to lie. (Of course a witness with a special interest may still tell the truth, but if the witness admits to lying whenever it is convenient, and admits that he also has a special interest that might tempt him to lie in this case, then the jury might be justi- fied in being skeptical about that witness’s testimony.) If I am a notorious liar, severely paranoid and delusional, known to take bribes, and convicted several times of perjury, then that will severely weaken my testimony,but it will have no bearing at all on the validity of my argument.(Of course you will want to check carefully on the truth of the premises in my argument; and if any of the premises are based on my testimony,then my problems and flaws will be good grounds for doubting the truth of that testimony.) If I am a trained observer with a strong reputation for hon- esty and no special stake in this case, that will give my testimonysubstantial credibility, but anyargumentI give will have to make it on its own, without any help from my character.

D ISTINGUISHING ARGUMENT FROM TESTIMONY How do you distinguish argument from testimony? It’s not always easy. Testimony often occurs in court, given by sworn witnesses; but sometimes those witnesses—especially expert witnesses—actually give arguments rather than testimony. And, of course, testi- mony occurs more frequently outsidethe courtroom than inside it. “Come on, lend me $10; really, you can trust me, I will certainly pay you back.” “I saw your lover last night, dancing cheek-to-cheek with an attractive stranger at the Backdoor Lounge.” Neither of those is sworn courtroom testimony; but both are testimony, nonetheless. Both depend for their plausibility on the trustworthiness of the testifiers.

Suppose that one of your friends meets you at the coffee shop and immediately tells you the following: I saw them! They’re here! Just now, as I was walking down Church Street on my way to the coffee shop, I heard this high-pitched hum, and I looked up just in time to see a small, bright An Unassailable Witness Not every ad hominem attack on a witness’s credibility is quite as successful as the attack on Jones. The following cross-examination occurred during a 1952 murder trial at London’s Central Criminal Court. Mrs. Fish—a friendly and spirited Irishwoman—had just testified that she heard screams coming from an upstairs room, and when she forced her way into the room she found the defendant’s wife “naked and streaming wet and lying on the floor and clinging to the foot of the bath for dear life, and he [the defendant] with his sleeves rolled up to his armpits”; and (Mrs. Fish continued) the wife said: “He tried to drown me. He wants to kill me.

Don’t leave me alone with him.” The defense attorney begins his cross-examination of Mrs. Fish with the fol- lowing question:

“I put it to you that you are not a very reliable witness?” “And for why should you say that, Sorr?”“Weren’t you convicted of keeping a brothel at Liverpool in 1947?” “Sure,” agrees Mrs. Fish as though brothel-keeping was the worthiest of occupations.

“And again in 1949?” “Sure,” replies Mrs. Fish, much puzzled. “But what’s that got to do with drowning a poor Christian woman in her bath?” “And then in 1949 weren’t you sent to prison for procuring an abortion?” “I was indeed,” agrees Mrs. Fish fervently. “And it’s you that would have done it yourself if you’d seen that poor girl all by herself as she was.” 1 The defense barrister’s attack on Mrs. Fish’s char- acter and veracity is certainly relevant (it does not com- mit the ad hominem fallacy); however, it is doubtful that questions about this woman’s “bad character” con- vinced the jury that she was “not a very reliable witness.” 34 Chapter 3 Ad Hominem Arguments silver sphere, about the size of a basketball, descending into the vacant lot just across from me. Six tiny purple creatures, with bright orange eyes, leaped out of their spacecraft, ran three times around the lot, picked up some bottle caps, and then jumped back into the sphere, blasted off, and swiftly ascended through the clouds and out of sight. The extrater- restrials have arrived! I saw them with my own eyes! Doubtful Witnesses David Eddleman was charged with being the gunman in a drive-by shooting, and in 1999 was convicted of second-degree murder and a firearm offense in a Michi- gan state court. The Sixth Circuit U.S. Court of Appeals reviewed his case and overturned his conviction; and in the course of that review the Court examined the key witnesses against Eddleman. Brian Babbitt received significant benefits from the police in exchange for his testimony. On January 3, 1997, Babbitt was arrested for the killing of Georgescu. On January 7, 1997, he was arrested again, this time for the murder of Freddy Sanchez. The Wayne County prosecutor’s office granted him immunity from prosecution for both murders on January 22, 1997, in exchange for his testimony against Eddleman. . . .

At the time, Babbitt also faced charges of felony assault, using a firearm in the commission of a felony, and violating probation. After nego- tiating the immunity agreement, the prosecutor allowed Babbitt to plead guilty to a reduced charge of aiming without malice, with a sentence of time served. . . . . The next witness, jailhouse informant Ricky O’Neal, testified . . .

pursuant to a plea agreement in which the state agreed to reduce a pending charge of assault with intent to rob, which carried a possible life sentence, to two counts of felony assault, for which he received concurrent sentences of one to four years. He had an extensive prior criminalrecord, including convictions for breaking and entering, larceny, and unarmed robbery. The next two witnesses, Brian Weaver and Thomas Valastek, both testified that they heard Eddleman admit to the shooting. . . . Weaver may have avoided punishment for numerous probation violations by testifying against Eddleman. . . .

Three other pieces of information call into question Valastek’s credibility. First, he too cooperated with police only after he was arrested in connection with Georgescu’s murder.

Second, he admitted on cross-examination that his initial statement to police contained “a lot of lying.” Third, he admitted that he chose to cooperate fully with police a day after he saw that Babbitt was receiving special perks in jail—such as family visits, outside food, and television privileges—and figured “he must have told them something really good to give him all of that.” Jury members must decide whether witnesses are trust- worthy; and the extensive criminal records of these witnesses, together with the substantial benefits they received as payment for their testimony (including reducing possible life sentences to a sentence of one to four years, and in another case dropping murder charges and substituting a charge of “aiming without malice” with a sentence of time served) are certainly factors that jurors should carefully consider. Paid Testimony Recently, several celebrities have appeared on television talk shows, and talked about their illnesses and the suc- cessful treatments for them. Kathleen Turner, on Good Morning America,discussed her arthritis, and then mentioned “extraordinarily effective” new arthritis medications that viewers could learn about at a website sponsored by Amgen and Wyeth. Olympic figure skater Peggy Fleming discussed her cholesterol problem on an ABC show, and heaped praise on the prescription drug Lipitor, made by Pfizer. Lauren Bacall appeared on the Todayshow to talk about the terrible, blinding disease macular degeneration, and also to mention the eyedrug Visudyne. This is a very effective promotion for the drug companies: it’s not an advertisement, but an apparently heartfelt endorsement from people the viewers know and trust. In all those cases, however, the drug manufacturers paid the celebrities for their endorsements, although no one mentioned that on the shows. It might have been information that viewers would have considered valuable: Kathleen Turner, Peggy Fleming, and Lauren Bacall weren’t just praising these drugs out of their altruistic desire to help viewers improve their health, but out of a desire to put money in their own pockets. 2 Chapter 3 Ad Hominem Arguments 35 Do you believe any of this story? Well, first you want to know whether your friend has a drug or alcohol problem, is he taking some sort of medication, has he been under a lot of strain lately (if 2 weeks ago he burst into the coffee shop and told you that he had just seen a herd of miniature purple and orange elephants doing tricks in the same vacant lot, that will certainly count against believing his story). In other words, your friend’s claims about extraterrestrials are based entirely on his own testimony, and that testimony depends on his character, his truthfulness, his stability. (Of course you might not believe him in any case; but if he is sober, reliable, and a pillar of stability, you will give his testi- mony considerably more weight—and might even decide that he probably did see some- thing strange—than you would if you knew he was a notorious trickster or drug addict.) In contrast to the above, imagine that your friend earnestly argues that we are even now being visited by extraterrestrials: Look, there probably are some extraterrestrials observing our planet, perhaps even visiting our planet. Think for a minute. How many planets are there in our solar system, orbiting our little star we call the Sun? Eight, right? Now consider how many stars there are—just counting our own Milky Way galaxy, leave aside all the other galaxies, some that are vastly larger. As Carl Sagan would say, there are billions and billions of stars, OK? And it seems likely that most of those stars also have planets; in fact, astronomers have already observed planets orbiting a number of relatively nearby stars. So those billions and billions of stars probably have tens and perhaps hundreds of billions of planets, not to mention several times that many moons. Out of all those planets orbiting all those stars, does it seem likely that our little backwater planet is the only one suitable for life? Of course not. No doubt the conditions that made life possi- ble are rather special, and quite rare; but with tens of billions of opportunities, the right conditions probably existed at least a few thousand—more likely a few million—times. That being the case, doesn’t it seem likely that life developed, and began to evolve, somewhat earlier on some other planets? And if that’s so, isn’t it also likely that some—probably many— species on other planets circling other stars would have discovered scientific method just a few thousand years ahead of us? And imagine what our science will be like in a few thousand years!

In less than a century, we have gone from uncertain flights of a few hundred feet to spacecraft that are exploring the outer reaches of our solar system. In another hundred years, where will we reach? In another thousand, we may have explored what seems almost inconceivable now:

the far reaches of our entire galaxy. So it seems likely that even now, some extraterrestrial species, just a few thousand years ahead of us scientifically and technologically, is exploring our galaxy, and probably is sending scouting parties (the way we send explorers and anthro- pologists) to examine other civilizations and other cultures. So we must conclude that it is likely that even now we are being observed and perhaps visited by extraterrestrials. Are you convinced? Probably not. The argument does a good deal of hand-waving and builds quickly into wild speculations from a rather thin foundation of facts. But notice this:

You do not have to know anythingabout your friend to evaluate that argument. Whether your friend is drunk or sober, reliable or untrustworthy, stable or unbalanced, wise or foolish does not matter. Your friend has offered an argumentfor the likelihood of extrater- restrials in our midst, and the arguer’s character, motives, and state of mind are irrelevant to the quality of that argument. Unlike testimony,the argument stands or falls on its own merits. If the argument had been given by Carl Sagan, it would not be a better argument.

If it had been given by a long-term resident of a facility for the criminally insane, it would not be a weaker argument.

It is important to distinguish between argument and testimony; unfortunately, that distinction is not always easy to make. In everyday life we frequently combine testimony with argument: My argumentmay contain premises that I testifyare true. Suppose there is a disagree- ment about whether Joe went to a tavern last night. Mary offers the following argument: Joe certainly did not go to the tavern last night. We all agree that Joe stayed in town the entire evening; and we all know that there are only two taverns in the town. The Red Lion Tavern was closed—the health department closed them down last week and they still haven’t 36 Chapter 3 Ad Hominem Arguments reopened. So Joe obviously wasn’t at the Red Lion. The only other tavern in town is the Student Prince, and I was there from the time it opened until closing, and Joe never set foot in the place. So Joe could not have been at a tavern last night. Okay, that’s an argument.But one of the key premises of Mary’s argument—Joe was not at the Student Prince Tavern—is based on Mary’s testimony.So testimony and argument get intertwined here, and that makes things difficult. But if Mary is giving testimony (and in this case she is) then she is a legitimate target of ad hominem attack. If you decide that a key premise of her argument is doubtful because it is based on her unreliable testimony, that would give you good reason to suspect that her argument is unsound.

In ordinary life, argument and testimony are often mixed together. But while argu- ment and testimony are not always separated in day-to-day life, they are—or at least are supposedto be—in court. Witnesses give testimony, the attorneys give arguments, and the attorneys are notsupposed to give testimony.The distinction is usually drawn quite care- fully. Paul Bergman, in his instructional book Trial Advocacy,gives the following helpful guidance to practicing attorneys: When no expert has testified, the law tries to steer a course between allowing you [the attor- ney] to make the factfinder [judge or jury] aware of pertinent scientific knowledge, and for- bidding you to insert in argument facts that are not part of the record. The general rule is that you may read from a scientific authority if it presents matters of common knowledge and illustrations drawn from common experience. But you may be forbidden to read the author’s conclusion set forth in the study, or from presenting scientific experiments or theories to the factfinder if they are not matters of common knowledge.

To focus the dichotomy [between argument and testimony], assume you are questioning the validity [accuracy] of an eyewitness identification. Clearly you may argue the common experience of thinking you recognize a friend, only to find out later that you were mistaken.

Just as clearly, you may read from books and newspapers examples of convictions that resulted from mistaken identification. You may also read from a book describing the factors that lead to faulty identification, and then argue the presence or absence of those factors in the evidence. In many jurisdictions, you could also refer to a scientific study showing the like- lihood of misidentification. These matters appear to grow out of the common knowledge and wisdom of the community. But you could probably not read the conclusion of a scientific study showing that in a case pretty much like yours, there is a great likelihood of misidentifi- cation. That would be viewed as placing expert testimony before the factfinder in the guise of argument. 3 Thus if you wish to place expert testimonybefore the fact finder, you must produce the expert to actually testify;then the opposing side can (legitimately) raise questions about the qualifications and integrity of the expert witness, and the fact finder can then judge whether the witness’s testimony is reliable. (That is why “hearsay” testimony—“I heard George claim that Ralph robbed the bank”—is generally notallowed. There is no oppor- tunity to cross-examine George, test his truthfulness, and inquire about his character and biases and reliability.) This distinction between advocacy(argument) and testimonyis especially important in court, and judges rightfully insist on it. The lawyer is nottestifying; the lawyers are giv- ingarguments,and those arguments must be evaluated on their own merits—noton the merits of the arguer, and not on the basis of whether the arguer does or does not believe her own arguments. Defense lawyers often try to convey to the jury their own belief in the innocence of their clients, and prosecutors frequently try to impress upon the jury the prosecutor’s own belief in the defendant’s guilt. But such tactics are not legit- imate. If the lawyers were witnesses,then it would certainly be important that they believein what they testify (otherwise they are lying); but when you are evaluating an advocate’s arguments,you must judge the arguments themselves and not the sincerity (or any other characteristic) of the advocate—whether the advocateis or is not convinced by the argu- ment is irrelevant. When advocates begin to offer their own testimonyrather than confining Chapter 3 Ad Hominem Arguments 37 themselves to argument (“I sincerely believe that this defendant is innocent”), judges shouldpoint out the irrelevance of the advocate’s own beliefs—as in the following exam- ples from British courts: Serjeant Shee, while defending the poisoner Palmer, [said] to the jury: “I begin Palmer’s defence and say in all sincerity that I have an entire conviction of his innocence.” The Lord Chief Justice who was trying the case, Lord Campbell, told the jury: “I most strongly recom- mend to you that you should attend to everything that Serjeant Shee said to you with the exception of his own private opinion. It is my duty to tell you that opinion ought not to be any ingredient of your verdict. It is the duty of the advocate to press his argument on the jury, but not his opinion.” Even Erskine [an outstanding barrister], carried away in defence of Tom Paine, said: “I will now lay aside the role of the advocate and address you as a man,” to earn the rebuke [from the presiding judge]: “You will do nothing of the sort. The only right and license you have to appear in this court is as an advocate.” 4 Ideally, attorneys should be giving arguments,not testimony. They are advocates, not witnesses. But of course attorneys often doinsert their own testimony, and judges are not always scrupulous in preventing it. This example is from the career of Jake Ehrlich, a famous San Francisco lawyer from the 1920s through the 1950s. In 1936, Ehrlich was defending a policeman—Lieutenant Henry Ludolph—accused of accepting bribes.

Ehrlich’s summation to the jury was passionate: I don’t defend Ludolph as a client, not as a policeman—but as an old and dear friend. I know before God that Henry Ludolph never committed a dishonest act or took a cent of dirty money in his life. 5 Ehrlich’s testimonyon behalf of Ludolph may or may not be true; in any case, it is out of place. The jury should decide the case on the basis of the testimonyof the sworn witnesses and the argumentsof the attorneys. But an attorney’s testimonyshould be given little weight. In the first place, the attorney obviously has a strong special interest in the case and so is notgiving unbiased testimony. Even more important, there is no opportunity for the opposing side to challengethe attorney’s testimony.When a witness testifies, the witness is placed under oath and is liable to perjury charges if he or she lies. Furthermore, the witness can be challenged and cross-examined by the opposing attorney, and information about the witness’s character and truthfulness and motives can be brought out by the opposing attorney. But when an attorneytestifies, the attorney is not under oath and is not liable to perjury charges; the opposing attorney has no opportunity to cross-examine; and the other side has no chance to bring in evidence about the attorney’s dishonesty, biases, tendency to exaggerate, drug addiction, general unreliability, or whatever. When you evaluatetestimony,it is essential to know the character of the testifier:Is this person honest, unbiased, accurate, careful in stating only what he or she actually knows? When one of the lawyers in the case testifies, the jury cannot learn such things about the testifier. Thus “advocate testimony” (“I know my client is innocent,” or—from the prosecuting attorney— “I am absolutely sure this person is guilty”) should carry little or no weight. In sum: Listen carefully to the advocates’ arguments;theirtestimonyshould not be part of the trial, and if it is, it should be disregarded.

In court, the distinction between advocacy and testimony is relativelyclear; so it is obvious enough that if an attempt is made to discredit an advocate’s argumentby attack- ing the character of the advocate, then that attack commits the ad hominem fallacy.

And attacks on witnesses who are giving testimony—attacks on their honesty, their san- ity, their special interests, their mental stability—will be relevantto the strength of the witness’s testimony(and thus—whether true or false—they do not commit the ad hominemfallacy). Outside the courtroom, the distinction between advocacy and testi- mony is not always so easily drawn. In any case, the point to remember is that when a 38 Chapter 3 Ad Hominem Arguments How Do You Rule?

In her closing arguments to the jury in theO. J. Simpson murder trial, prosecutor Marcia Clark made the following remarks: I started on that side of counsel table [referringto the lawyers for the defense]. I was a defenseattorney. I know what the ethical obligations are of a prosecutor. I took a cut in pay to jointhis office, because I believe in this job.I believe in doing it fairly and doing it rightand I like the luxury of being a prosecutor.Because I have the luxury on any case of goingto the judge and saying, “Guess what, YourHonor, dismiss it, it’s not here.” Ladies and Gentlemen, I can come to you and I can say, “Don’t convict, it’s not here.” I have that right. I have that luxury. This jobgives me that luxury. It doesn’t give me a lot ofmoney but it gives me that luxury. I can get upin the morning and look at myself in the mirrorand say I tell you the truth, I will never ask for aconviction unless I should, unless the law saysI must, unless he is proven guilty beyond areasonable doubt on credible evidence.

At that point in her closing argument, the defense intervened with an objection. The defense claimed that Marcia Clark’s remarks were improper,and that she should be forced to retract them,because she was improperly giving testimony about her own convictions concerning Simpson’s guiltrather than presenting argument based on theevidence. Marcia Clark asserted that there wasnothing improper in her closing argument. Shedenied that she was giving any testimony concern-ing her own beliefs; instead, she claimed, she wassimply giving arguments based on well-knownprinciples governing legal ethics and the ethics ofprosecutors. Was Marcia Clark improperly putting her own testimony before the jury? Or was she, quiteproperly, simply giving an argument? How doyou rule? claim is based on testimony, the claim is only as strong as the person giving the testimony (and thus questions about the character and reliability of the testifier are legitimate and important); but when an arguer is attempting to draw out the implications of given facts, the argument must be evaluated independently of the arguer (and questions about the character and reliability of the arguer are irrelevant, and attacks on the arguer commit the ad hominem fallacy). A closely related point will perhaps help sort out these issues. Suppose the chairman of the board of a major U.S. auto manufacturer presents an argument for the conclusion that imports of foreign cars should be drastically restricted. The chairman argues that the importing of such autos should be restricted because they pose a health and safety hazard to U.S. consumers: The imported cars are made of inferior steel, the steel is weaker than that used in U.S.-made cars, and under the stress of high-speed driving the cars are more likely to wobble and go out of control. In this hypothetical case, the chairman is giving an argument for restrictions on imported autos. (He is not merely giving his own testimony against imported cars; he is not saying, “Look, we would all be better off if there were restrictions on imported automobiles; I know about these things, trust me.”) He is instead arguing that inferior materials will result in obvious dangers under common driving condi- tions and that U.S. citizens should be protected from such dangers. Now suppose someone responds, “Don’t listen to the chairman’s argument! He has a strong reason for opposing imports. If there are fewer imports then he can charge a higher price for his company’s cars and make more money! He’s not really interested in the safety of U.S. drivers; that greedy money-grubber is just interested in making more money.” That would commit the ad hominem fallacy. Even if the chairman’s motivation is greed rather than concern for consumer safety, that is irrelevant: The chairman has given an argument, and you must examine the argument (not the arguer). However, it may still be useful to know that the bikeriderlondon / Shutterstock Chapter 3 Ad Hominem Arguments 39 fellow giving the argument ischairman of the board of a U.S. auto manufacturer and does have a special financial interest in the issue. It will be useful, but notbecause that knowl- edge will be good grounds for dismissing the chairman’s argument.Rather, it will be useful because it will prompt us to look very carefullyat the premisesof the chairman’s argument:

Are the premises in the argument really true? Isthe steel used by foreign manufacturers inferior? We cannot reject a person’s argumenton the basis of the character or special interest of the arguer; however, knowingthat the arguer is dishonest or greedy or has a financial interest in the issue willbe good reason to double-check the factual claims (the premises). If the premises are false, then the argument will be unsound. If the premises are true and the argument is valid, then the argument is a sound argument no matter how self- ish, despicable, biased, or untrustworthy the arguer may be. (Of course if the support for one of the premisesis simply the testimonyof the person giving the argument—“They really do use inferior steel; I know, because I saw them do it!”—then the character of the person giving that testimony isdirectly relevant to the value and reliability of the testimony.) Exercise 3-1 The following examples involve ad hominem arguments; tell which ones do—and which ones do not—commit the ad hominem fallacy,and explain why.

1.Ralph claims that pornography ought to be banned because it exploits and degrades those who are involved in its production and because it provides too many opportunities for organized crime.

However, I happen to know that Ralph frequently rents hard-core pornographic videotapes. Well, so much for Ralph’s arguments to ban pornography! Arguing for Profit When argument is given, we must consider the argument:

We cannot reject an argument based on the sourceof that argument. So when Dr. Robert Kehoe argued that lead in leaded gasoline is nota health hazard, it would be an ad hominem fallacyto reject his arguments on the basis that he is heavily funded by the lead industry. However, that does not mean that we should ignorethe fact that he has a special interest in denying the health hazards of leaded gasoline: it should warn us to give careful scrutiny to his arguments and his research, since he does have a special bias. And in the case of Dr. Kehoe’s research, that careful scrutiny pays off. One of the things Dr. Kehoe attempted to prove through his research was that the lead burned in leaded gasoline (7 million tons in the United States during the twentieth century) does not accumulate in humans, and so cannot cause lead poisoning; and that high levels of blood–lead are common and natural. As proof, he compared a group of people living in remote rural Mexico—not exposed to leaded gasoline—with people living in U.S. urban envi- ronments. Sure enough, the blood-lead content of the rural Mexicans was approximately the same level as the lead-blood level of U.S. city dwellers. Unfortunately, in his zeal to defend the lead industry, Dr. Kehoe had not randomly chosen a rural population; instead, the Mexican village he chose for comparison was heavily exposed to lead through the lead glazes it used inmaking its local pottery, and also from consuming food prepared and served in lead-glazed pottery. When later studies compared other rural peoples against U.S.

citizens exposed to leaded gasoline, they found that the U.S. blood-lead contamination was much higher. So although we cannot reject Dr. Kehoe’s argument on the basis of his payoffs from the lead industry, those payoffs should alert us to look more closely at the research that forms the basis of his argument. When that research is shown to be shoddy and biased, it is perfectly legitimate to point out the serious flaws in Dr. Kehoe’s research, and the flaws in Dr. Kehoe’s arguments. Such criticisms ofargumentsare not ad hominem at all, and so obviously do not commit the ad hominem fallacy. (If Dr. Kehoe testifiedthat his research was accurate and unbiased— “trust me, my comparison groups were not specially selected”—then of course it wouldbe legitimate to make ad hominem attacks on his testimony.) Finally, it is also legitimate to make an ad hominem attack against Dr. Kehoe: “Dr. Kehoe is a disgrace to the scientific com- munity, who distorts his studies in order to cover up a major health hazard.” You might make that legitimate ad hominem attack in pushing to have Dr. Kehoe fired by his university. But whatever Dr. Kehoe’s flaws, you cannot reject his argumentsbecause of flaws in him— though of course you can reject his arguments because of flaws in the arguments themselves. 6 40 Chapter 3 Ad Hominem Arguments 2.Bert maintains that there was indeed a conspiracy to assassinate President John Kennedy. He says that he knows there was such a conspiracy, because he is now confessing to being part of the conspiracy, along with Oswald. However, I don’t put much faith in Bert’s conspiracy theory; after all, he also has confessed to being involved in the conspiracy to assassinate Abraham Lincoln.

3.Joan favors developing a system of radio receivers that would monitor the heavens for radio signals from intelligent extraterrestrials. Joan argues that there are millions of stars similar to our Sun, and so there are probably also millions of planets orbiting those stars, and thus it is likely that life evolved on at least some of those other planets. And if there is life on other planets, then it seems reasonable, so Joan argues, that at least some of those planets began their evolutionary process earlier than did Earth, and thus might well contain intelligent life that has advanced far beyond the intelligent life on Earth. If so, we might be able to learn a great deal from intercepting their radio signals. In any case, Joan thinks it is worth the investment required to try. Joan’s argument sounds pretty good, and I was almost convinced that her proposed radio receivers were a good idea until I learned that she also wants to place television cameras deep in the forests so we can record the dances of the woodland elves! I’m afraid Joan’s elevator doesn’t go to the top floor.

4.Bill claims that Professor Paula Pithy gave him a D in eighteenth-century British history when he really deserved at least a B. Bill says that Professor Pithy didn’t like him, because several times dur- ing class he noted errors in her lectures and corrected her mistakes. He says he knows more about British history than Professor Pithy does—and that she resented it, and thus gave him a much lower grade than he really deserves, and that’s the only thing that kept him from making the dean’s list.

Well, maybe so. But Bill also claims that he was an all-state football player in high school, and I went to high school with Bill so I happen to know that Bill never even made the football team.

5.Senator Scam is running for reelection, and now he claims that he is really concerned about improving the quality of life for all of our citizens. He says he is an independent senator, and that his only goal is to promote the good of the people. But don’t you believe it. Senator Scam has been raking in money from every lobbyist in Washington; in fact, he received more money from the insurance, tobacco, and health-care industry than any other senator! And those lobbyists got what they paid for: a senator who has spent the last 6 years blocking every major effort at health-care reform and blocking investigations into the activities of the major tobacco companies. And now he claims that he is only interested in the good of the people! His only real interest is in getting your vote, so he can keep raking in the money. Don’t vote for that sleazy hypocrite.

6.Many physicians claim that active euthanasia is wrong and should be prohibited. They argue that active euthanasia would undermine trust in the medical profession’s commitment to healing, that active euthanasia would be subject to abuse by those who simply want to get rid of older people who are viewed as burdensome, and that proper and aggressive use of pain-control medications can alleviate suffering and thus eliminate any need for euthanasia as an escape from suffering. But you shouldn’t trust the arguments of those doctors. For if active euthanasia is not allowed, then those who are terminally ill will have a longer period of illness leading to their deaths, and they will require expensive long-term medical treatment, and so those very same doctors will make more money. It’s not really surprising that physicians argue against active euthanasia:

Blocking active euthanasia means money in their pockets and payments on their Porsches.

7.William H. Webster was named by the Securities and Exchange Commission to head a new board overseeing the accounting industry, and to clean up wrongdoing in the industry. But it turns out that when Webster was a director of U.S. Technologies, he was chairman of the audit committee for the company. While holding that position he was warned by BDO Seidman, a large accounting firm that was auditing U.S. Technologies, about serious financial problems in the company. Webster, rather than cleaning up the problems, fired the auditor. And this is the man who President Bush wanted to clean up the accounting industry. He is obviously not qualified for the job!

8. Don’t take a course from Bruce! He is the most boring professor I’ve ever had: He sits at the desk and reads passages straight from the book, and then he reads from these old yellowed notes that he hasn’t changed in 20 years—I think maybe they are notes he took when he was an undergraduate— and he mumbles, so you can’t even tell what he’s saying. And he gets really angry if you ask him to repeat anything or explain something. But worst of all is his exams! They are absolutely impossible:

They usually ask about things the class isn’t even covering, and they are so long no one has time to finish more than half the exam, and then he counts off for all the questions you didn’t have time to answer. Out of 40 students in his class last semester, 32 made Fs and the rest made Ds. So when you are considering who to take for your philosophy courses, avoid Bruce like the plague. Chapter 3 Ad Hominem Arguments 41 TRICKY TYPES OF AD H OMINEM Ad hominem attacks against arguments are fallacious. And if an ad hominem attack charges an arguerwith stupidity or corruption, you will instantly recognize that as a fallaciousattack on the argument. Unfortunately, some instances of ad hominem fallacy are more subtle. Instead of making obvious frontal assaults on the arguer (“Don’t listen to his argument: He is a swindler and a drunkard, and he hates kittens”), the ad hominem may be more insidious. Even those more subtle forms of ad hominem fallacy will not deceive you if you always remember that the sourceof the argumentisirrelevantto the strength of argument (although the source of testimony isrelevant when judging the strength of testimony).

Bias Ad Hominem Not all forms of ad hominem fallacy are as obvious as calling the arguer nasty names.

Consider the biasform of the ad hominem fallacy. This fallacy occurs when an argument is disparaged on the grounds that the arguer has some special interest or bias in the question at issue. For example, the American Tobacco Institute has been running adver- tisements that contain arguments againsttighter restrictions on smoking in public. The American Tobacco Institute is by no means a disinterested, neutral party. It is the public relations–lobbying branch of the tobacco industry, and it is funded by cigarette- manufacturing companies. So obviously the American Tobacco Institute and the compa- nies it represents have a special interest in opposing restrictions on smoking: More restrictions mean less smoking, fewer cigarettes sold, and smaller profits. Thus someone might argue: Pay no attention to those American Tobacco Institute arguments against restrictions on smoking. You shouldn’t take their arguments seriously; after all, those arguments are bought and paid for by the tobacco industry. This sounds like an effective and forceful critique of the arguments by the American Tobacco Institute, but in fact it is an instance of the ad hominem fallacy.For if the American Tobacco Institute has given an argument, then their argument stands or falls on its own merits or its own faults. And it is irrelevant whether that argument was paid for by the tobacco industry or was developed by some pure, innocent, and absolutely unbiased philosopher, or whether it dropped from the heavens like manna. Remember:

The source of the argument—whether good, bad, or indifferent—is irrelevantto the quality of the argument.

Don’t misunderstand: If an argument is offered against restrictions on public smok- ing, it may be usefulto know the special interests of the arguer; for if we know that the argument is being given by someone with a special interest, that may be a helpful reminder to check very carefully the premises of that argument (to be sure that any “facts” cited are genuine, that any data given are accurate, that the “truths” stated are not half-truths). But while it may be helpful to have a reminder to check carefully the sound- ness of the argument, it is nothelpful—in fact it is wrong—to reject an argument because the source of the argument has a special interest or bias.

If it were true that any argument presented by a paid advocate is unsound, then a sound argument would be a rare event in the courtroom. Certainly many American attor- neys and British barristers are genuinely committed to fair and just trials. But they are also involved in an adversarial system of justice that functions by having the prosecution present as strong a case as possible while the defense works to show that the defendant has not been proved guilty. And in almost all cases the prosecution and defense attorneys are paid to argue for their respective sides. So if being paid to present arguments or 42 Chapter 3 Ad Hominem Arguments having a special interest made one’s arguments unsound (fallacious), then a sound argument would hardly ever occur in court. But having a special interest in a position does not make one’s argumentsfor that position unsound, and to claimthat an argument is unsound merely because the person giving the argument has a special interest in the case is to commit the ad hominem fallacy.

But remember that the situation is completely different when ad hominem argu- ments are directed against testimony.If a witness is testifying—not presenting an argument—then the claim that he or she has a special interest in the case (and thus that one should weigh the possible effects of that special interest when evaluating the truthful- ness and reliability of the witness’s testimony) is certainly relevant,and does notcommit the ad hominem fallacy. If the witness is the defendant’s best friend, then the witness has a special interest that may influence his or her testimony. If the prosecution witness is a police officer who has worked for months to build a case against a suspected drug dealer, then convicting the defendant will be a feather in the officer’s cap and the officer has a special interest in the case: The defense attorney will be justified in reminding the jury of the witness’s special interest. If Hatfield and McCoy have been mortal enemies for decades, then Hatfield has a special interest in McCoy’s case; and after Hatfield has testi- fied that he saw McCoy (the defendant) running from the scene of the robbery, it is legit- imate for the defense attorney to launch an ad hominem attack against Hatfield’s testimonyby charging Hatfield with a strong bias against the defendant. That is an ad hominem attack, but not an ad hominem fallacy.(The defense attorney’s ad hominem attack on Hatfield—which reveals Hatfield’s hatred of McCoy—provides important information for you as a jury member even if you do notdecide that Hatfield is lying.For while Hatfield’s hatred of McCoy might not lead Hatfield to lie under oath, it might influ- ence Hatfield’s perception of events. Eyewitness testimony is notoriously unreliable; if Hatfield’s eyewitness perceptions are colored by his hatred of McCoy, that may make Hatfield’s honestbelief about what he observed more open to doubt. For if Hatfield already believes that McCoy is just the sort of scoundrel who would commit a robbery, then Hatfield may be more likely to “see” McCoy fleeing the scene of a robbery. If Hatfieldexpectsto see McCoy running from the robbed liquor store, then the man he sees running is likely to look like McCoy.) So it is important that you know the bias or special interest of anyone whose testi- mony you must evaluate. And it is quite reasonable for attorneys to make the jurors aware of any special interests or biases the witnesses may have. But of course you must still exercise caution in drawing your conclusions about the reliability of the testimony. The police officer does have a special interest in the case, but it certainly doesn’t follow that the police officer will lie in order to get a conviction. The defendant’s best friend strongly desires that the defendant be acquitted, but that doesn’t mean that the friend is willing to commit perjury in order to bring about that acquittal. Hatfield’s hatred of McCoy may not be as strong as Hatfield’s love of the truth. And the defendant—who certainly has a special interest in the results of the trial—may nonetheless be testifying honestly. Some- times people overcome their own personal interests and testify truthfully, and sometimes they do not. In order for you to decide whether the witness is testifying accurately and truthfully—and that is one of your major responsibilities as a jury member—you must weigh all the information you have about the past behavior, character, and special inter- ests of the witness, and then make the best decision you can about the quality of the testimony. For that task, information about the character of the witness is certainly relevant, and ad hominem arguments by the opposition are one legitimate means of providing the jury with information about the person testifying. (Ad hominem attacks on testifiersdo not commit the ad hominem fallacy; however, not every ad hominem attack on a testifier is relevant. An ad hominem argument against a testifier may make points that do not have force against the person testifying. If the defense attorney attacks the witness Hatfield because Hatfield’s ears are ugly, that ad hominem attack certainly should not count for much against Hatfield’s testimony.) Chapter 3 Ad Hominem Arguments 43 You might get the impression that in the courtroom all ad hominem arguments are against testimony, and thus that the ad hominem fallacynever occurs during trials. Not so. An example of ad hominem fallacycan be found in F. Lee Bailey’s closing argument for the defense in the trial of George Edgerly (accused of murdering his wife). In The Defense Never Rests,F. Lee Bailey describes one of the most dramatic moments in his closing argument:

At one point, I walked over to the D.A. [district attorney, the prosecution lawyer] and shouted: “Here’s a man so callous as to try to put a man in the electric chair for something he didn’t do just in order to get reelected.” 7 But the district attorney’s motives and interests (whether they are as commendable as trying to protect society from vicious criminals or as despicable as trying to promote his own reputation for selfish political purposes) are irrelevant;the district attorney was giving arguments,not testimony, and thus an attack on the district attorney’s motives is an example of ad hominem fallacy.

But the ad hominem fallacy is a two-edged sword, and in courtrooms it cuts both ways. In the famous Loeb–Leopold murder case (in which Loeb and Leopold, teenage boys from very wealthy Chicago families, stood trial for the brutal murder of a younger boy), the great criminal defense lawyer Clarence Darrow was accused by State’s Attorney Crowe of defending the boys only because he received a huge fee. (This was not true; although it was rumored that Darrow received a $1 million fee, he in fact received only $40,000, and most if not all of that money went to pay for court costs and office expenses.) The Scandal of “Jailhouse Informants” One of the most obvious and troublesome sources for biasedwitnesses is the use of “jailhouse informants.” These witnesses are convicted criminals whom authori- ties plant in the same cell with a suspect who has been arrested and is awaiting trial. The authorities tell the informant to befriend the suspect, and to listen carefully to everything the suspect says, in hopes that the suspect will confess his or her crime to the informant. Since the informant and suspect are together day and night, it is hoped that the suspect will eventually say something incriminating to the informant “friend.” The problems with this process are obvious and profound. In the first place, the informant is a convicted criminal, and the- refore not the most reliable witness in the world. But second, and even more troubling, the informant is offered a deal by the authorities: if you testify that the suspect told you something that will contribute to the suspect’s conviction, then you will receive a reduced sen- tence or early parole (and if you cannot provide testi- mony helpful to the prosecution, you get nothing). So the informant is being paid for his testimony, and paid in precious coin: reduced prison time. It is easy to see how such incentives could lead to false testimony, and in fact there have been many cases of innocent people being wrongly convicted by the perjured testimony of jailhouse informants (and while there have been many cases of obviously perjurious testimony by such infor- mants, I know of only two cases in which a jailhouseinformant was prosecuted for perjury: one was a case in which the jailhouse informant embarrassed the district attorney’s office by going on television and bragging about the special deals he had gotten from the district attorney’s office in exchange for his false testimony against other defendants). With these problems in mind, the Alberta Department of Justice recently issued these guidelines for use of such testimony:

1. All testimony from in-custody informants must first be reviewed by the Crown prosecutor’s office and then by a Ministry of Justice official outside the prosecutor’s office.

2. Jailhouse informant testimony can only be used when there is a compelling public interest.

3. Defense counsel will receive full disclosure con- cerning the informant’s past and all details of the deal offered to the informant.

4. Jailhouse informants who lie will be criminally prosecuted.

These guidelines may not go far enough—some feel that jailhouse informants have no place in a system of justice that is supposed to protect the defendant’s rights and discourage perjured testimony—but at least the problem is acknowledged, which is more than has happened in the United States. 44 Chapter 3 Ad Hominem Arguments But even if Crowe’s claim were true, it would still be irrelevant, since Darrow’s motives— whether selfish or altruistic—were irrelevant to the soundness of his arguments. Darrow returned the favor, accusing prosecutor Crowe of being a “hanging” state’s attorney who “would laugh at the hanging of these boys.” 8Now if Darrow’s claim were true, it would cer- tainly indicate a severe lack of basic human sympathy in Crowe’s character, and that might be good grounds for not wishing to spend your summer holidays with prosecutor Crowe.

But true or not, it is irrelevant to Crowe’s arguments. Both Darrow and Crowe are indulging in ad hominem fallacies. (Darrow and Crowe apparently did not take offense over this exchange of fallacious ad hominem attacks, since they remained close friends after the trial.) Inconsistency and Ad Hominem The charge of bias is not the only tricky form of ad hominem fallacy. Another subtle use of ad hominem fallacy is to claim that the arguer’s words are inconsistent with his or her deeds. If Sandra Smith argues that abortions are wrong, then we must evaluate her argument How Do You Rule?

You are the presiding judge in a robbery trial. A witness for the prosecution (Mr. Candor) hastestified that he saw the defendant running throughan alley shortly after a bank robbery was committedand that the defendant had a large money bag in hisleft hand and a pistol in his right hand. The defen-dant’s attorney is now cross-examining Mr. Candor: DEFENSE ATTORNEY : Now Mr. Candor, you say you observed the defendant runningthrough an alley. MR.C ANDOR : Yes, sir. DEFENSE : What were you doing in the alley? MR.C ANDOR : I was talking with friends. DEFENSE : Mr. Candor, do you spend a good deal of your time in such alleys? MR.C ANDOR : Yes, sir. DEFENSE : You are dressed very fashionably today, Mr. Candor; is that the way youwere dressed when you were chattingwith your friends in the alley? Do youand your friends normally dresslike that? DISTRICT ATTORNEY : Your Honor, I must object to this line of questioning. WhatMr. Candor was wearing when heobserved the defendant certainly didnot affect his vision; and what Mr. Candoris wearing today in court is equallyirrelevant. I beg you to instruct coun-sel for the defense to stop these ridicu-lous questions and confine himself torelevant issues. DEFENSE ATTORNEY : Your Honor, the pros- ecution knows full well that these arerelevant and important questions. Thejury has a right to know that being aprosecution witness has been veryprofitable for Mr. Candor: the prosecu-tion has bought new clothes for thewitness, has provided him much morecomfortable accommodations—a greatimprovement over drafty alleyways—for the duration of the trial, given himfood and money and comforts farbeyond his usual experience. DISTRICT ATTORNEY : Your Honor, where the witness sleeps, what he eats, andwhat he wears has no bearing on thiscase. The defense is simply trying toobscure the real issue: Mr. Candor’spositive identification of the defen-dant running from the scene of thecrime with a gun and the loot. How do you rule? Do you sustain the district attor-ney’s objection and require the defense attorney todrop this line of questioning as irrelevant? Or, do youoverrule the objection and allow the defense attor-ney to continue asking about the witness’s new suit? bikeriderlondon / Shutterstock Chapter 3 Ad Hominem Arguments 45 on its own merits. An argument that we should “Pay no attention to Sandra’s arguments against abortion, for I happen to know that Sandra herself has had threeabortions!” would commit the ad hominem fallacy. If Joe Jones gives an impassioned argumentin favor of vegetarianism (raising and killing animals is cruel to the animals, feeding grain to beef animals is wasteful in a world where there are many hungry people, and eating meat causes high cholesterol levels), then Joe’s argumentis not weakened by the fact that you see him wolfing down burgers later that evening. (In evaluating Joe’s argument for vege- tarianism, it doesn’t matter whether he was eating veggie burgers or Big Macs; it would change our opinion of Joeif we learn that his is a hypocrite, but it should not affect our evaluation of Joe’s argument.) Suppose that the district attorney arguesthat although the penalties for drunken driving may seem harsh, we must enforce them, for it is essential that we get drunk drivers off our highways; if later that evening you observe the district attorney stagger out of a bar and into the driver’s seat of her car, that is irrelevant to the strength of the district attorney’s argument.If you point out an inconsistency between an arguer’s argumentand her actions,and conclude that the inconsistency refutes her argu- ment, then you have committed the ad hominem fallacy.

Don’t get me wrong: I’m not approvingof people who say one thing and do another.

The television evangelists who preach spiritual values and the rejection of worldly wealth and then drive their limousines back to their mansions are a sleazy hypocritical lot. A Special Case A nineteenth-century New York murder trial contains a striking example of an arguer’s special interest. In the 1857 trial of Mrs. Emma Augusta Cunningham for the premeditated murder of Dr. Harvey Burdell, the public prosecutor who argued for the conviction of Mrs. Cunningham (and thus for her execution) was also the lawyer for the blood relatives of Dr. Burdell and represented them in their efforts to claim the property of Dr. Burdell. Since one of the claims of Mrs. Cunningham (disputed by the prosecution) was that she was secretly married to Dr. Burdell, that meant that if her claims were upheld she would receive the bulk of Dr. Burdell’s considerable estate. The public prosecutor—in his role as counsel for Dr. Burdell’s family—thus had a special interest in having Mrs. Cunningham convicted and executed: that would get her out of the way and leave Dr Burdell’s estate for the clients of the prosecutor.

The defense attorney for Mrs. Cunningham made quite sure that this peculiar situation was emphasized for the jury: I ask again, gentlemen, why was it that such a sav- age attack was made upon this defenceless woman? There is only one principle upon which I can understand it. The moment the lifeless remains of Harvey Burdell are consigned to the cold and silent tomb, and even before, com- mences the scramble for his property. We know with what avidity his heirs, his blood relatives, have sought to snatch, and divide up among them, whatever property he left. We know how they have hunted this unfortunate woman; and I know, also, that the very Counsel of the members of thatfamily who has appeared in the Surrogate’s Court, in order, if possible, to make null and void her marriage with the deceased, so that they might get the property—that very Counsel, although a wor- thy man and an able lawyer, appears here to pros- ecute this woman to the death. Gentlemen, you all recollect, upon the Coroner’s inquest, with what unmingled feelings of disgust was viewed the con- duct of a certain lawyer who appeared there as Counsel for the blood relatives of the deceased, and took part in the inquest. As you mingled with your acquaintances and the people in this city, and read the newspapers, you heard the universal condemnation of the course pursued by that man; you heard denounced the indelicacy, and inde- cency even, of his appearing as public prosecutor, and, at the same time, as Counsel for those pecu- liarly interested in the death of my client. 9 Certainly the defense counsel is correct that the actions of the prosecutor—in serving as counsel for the rela- tives of Burdell and also prosecuting Mrs. Cunningham— were “indelicate,” and perhaps even indecent. It does appear that the prosecutor operates from a position of very special interest in this case. But distasteful as that may be—even if we regard the prosecutor with “unmin- gled feelings of disgust” because of such conduct—that has no bearing on his arguments.The prosecutor, after all, is notgivingtestimony;rather, he is presenting argumentsfor the guilt of the defendant. And those arguments must be evaluated on their own merits and demerits, independently of the character, interests, or flaws of the person who presents them. 46 Chapter 3 Ad Hominem Arguments Politicians who proclaim their commitment to civil rights while belonging to segregated country clubs are despicable. But being a hypocrite has nothing to do with the quality of one’s arguments. Argumentsstand or fall on their own, and the character of the arguer is irrelevant to the strength of the argument. An argumentthat smoking is extremely haz- ardous to health and that no one should smoke may be perfectly sound, despite the fact that the arguer smokes three packs a day.

If, on the other hand, someone is giving testimony(not argument), then inconsis- tency between words and deeds does weaken the testimony. Suppose a guru testifies (rather than argues) that a simple ascetic life is the way to true happiness: “Trustme; as you can see my own serenity, so you too can find true peace and inner joy through giving away all your possessions and eating only brown rice.” If you should discover that the guru in fact owns a fleet of Cadillacs, a mansion with a Jacuzzi in Pasadena, and lives on white wine and croissants, then you are quite justified in doubting the guru’s testimony.(But if the guru has given argumentsto prove that a simple ascetic life is a happier life, then the guru’s own luxurious—and hypocritical—lifestyle is irrelevant to the guru’s arguments.

In the earlier example of Joe, the hypocritical meat-eater who argues for a vegetarian diet, Joe is notgiving testimony; thus Joe’s hypocrisy is completely irrelevant to the quality of his argument.) Suppose the defendant is testifyingin court that he is a gentle, peaceful man who would never hurt anyone and would certainly never have committed the assault and battery of which he is accused; then if the witness has a pair of brass knuckles in his shirt pocket and threatens to punch the bailiff’s lights out for mispronouncing his name, you certainly may count such inconsistent behavior against his testimony.

Another possible confusion must be avoided. If someone gives an argument,then inconsistency between the argument and actions does not count against the argument.

But, inconsistency withinthe argument itself is fatal. For if an argument contains inconsis- tent premises—premises that contradict each other—then at least one of the premises must be false.And if an argument contains a false premise, then the argument is unsound.

Thus, while inconsistency between words and actions is irrelevant to the soundness of the argument, inconsistency withinan argument is lethal for the argument.

Ad hominem arguments are tricky stuff, and dealing with inconsistency claims is one of the trickiest parts. Suppose that you and I are arguing about whether it is wrong to slaughter pigs so that we can enjoy bacon, ham, and pork chops, and you are trying to convince me that it’s wrong. “Look,” you say, “you oppose killing animals for fur coats, right? You say that it’s not right to kill animals for the luxury of a fur coat, when we have other materials that keep you just as warm and that don’t involve killing ani- mals. Well, we have other foods that keep you just as well nourished—better, in fact— that do not require the killing of animals. So since you believe it’s wrong to kill animals for the luxury of a fur coat, you should also agree that it’s wrong to kill animals for the luxury of a pork chop.” 10 That is a legitimate and important element of serious argu- ment: consider what beliefs you hold, and then examine whether the claim you are currently making is consistent or inconsistent with that stock of beliefs. When you assert that my current position is inconsistent with other views that I hold, then I have several options. First, you may convince me to change my current claim: “Yes, you are right; I do think it’s wrong to kill animals for the luxury of wearing their fur, and so now as I think about it, I have to also conclude that it’s wrong to kill animals for the luxury of eating their flesh.” Second, I may decide to revise some of my other views, and bring them into line with the claim I’m currently making: “Well, I still think it’s OK to kill pigs for the luxury of pork chops; so I guess I’ll have to change my stance on fur coats, and now I see nothing wrong with killing mink, fox, and seals so that humans can wear luxurious furs.” Or third, I can attempt to show that my views are not really inconsistent:

“No, fur coats are a luxury; but steaks and chops are a necessity.” “No, the cases are really different: seals, foxes, and mink suffer when they are trapped and killed for their fur; but cows, chickens, and pigs live happy lives and die peaceful deaths at the factory farms and slaughterhouses.” Chapter 3 Ad Hominem Arguments 47 Pointing out that my current position is inconsistent with my other beliefs is not an ad hominem fallacy; in fact, it’s not really ad hominem at all. It’s not an attack on me, but an attack on my argument:my position has implications that I had not thought through, implications that are inconsistent with the beliefs I hold. But notice: that is very different from saying that my argumentis inconsistent with my actions.If I argue against killing animals for food while wearing a full-length mink coat, then you may think that my behavior is somewhat bizarre, and that I am a hypocrite; but no matter how weird and hypocritical the source of the argument, the argument itself must still be judged on its own merits, and not by its source. If I am giving testimony,however, then pointing out the inconsistency between my words and actions isrelevant, and is a legitimatead hominem argument. “Take my word for it, I know; that bridge is perfectly safe.” If I now refuse to drive across the bridge, instead taking a long and inconvenient detour, then you have good reason to doubt the reliability of my testimonyconcerning the safety of the bridge.

If the owner of a company insists that he absolutely is not a racist, yet there are no African Americans among his 200 employees, then his actions are evidence against his words. And if a politician asserts that she strongly supports efforts to protect our environ- ment, but consistently votes against legislation to prevent pollution, then we are justified in doubting the truthfulness of her pro-environment testimony. Psychological Ad Hominem We have examined several subtle varieties of ad hominem fallacy; the last one is perhaps the most deceptive of all. Call it the psychological form of ad hominem fallacy. This form occurs in attempts to discredit an argumentby questioning the mental state of the arguer.

It is an insidiously effective form of ad hominem fallacy, for it often masquerades as spe- cialsympathyfor the arguer. Consider an example: Jane Jackson gives an argumentagainst abortion. Instead of answering her argument,someone says, “Poor Jane, it’s such a tragic thing: She has always desperately wanted to have children, but she has never been able to.

It’s not surprising that she opposes abortions. It must break her heart when people who do not want a child have an abortion, while she wants a child so much and cannot become pregnant.” Notice what such a comment does: It “explains away” Jane’s argument, by implying that since we now know the unfortunate psychological source of the argument we need pay no attention to the argument itself. But whether or not that is the correct psychological account of Jane’s feelings about abortion, it is irrelevantto the validity or invalidity of her argument. And to focus attention on the arguer instead of the argument is to commit the ad hominem fallacy.

Bertrand argues that we should immediately ban all killing of whales: Such killing threatens the survival of several species of these majestic creatures; the killing methods are cruel and painful to these sensitive mammals; and all the products we obtain from the killing of whales can be efficiently produced by other means. Someone responds, in a deeply sympathetic and pitying tone: Bertrand is such a sad case. You see, his mother abandoned him when he was only 4 years old; and now he subconsciously identifies whales—those huge, gentle, and powerful mammals— with the mother he lost. It’s a very sad thing, and we should all be gentle with him. Bertrand may indeed be a sad case, and his subconscious may be completely screwy; but neither Bert’s subconscious nor anything else about him is at issue. The question is the soundness of his argument.And that argument stands or falls independently of the arguer.

The argument may be soundeven if Bertrand is a looney tune.

One more example of the psychological ad hominem fallacy is noteworthy. In 1979, during the Iranian Revolution, Iranian students stormed the U.S. embassy in Tehran, and held a number of U.S. diplomats hostage for a period of several months. When the U.S.

hostages were released from the Iranian embassy, some of them arguedthat there should 48 Chapter 3 Ad Hominem Arguments be an investigation of U.S. interference in the internal affairs of Iran, and they cited several strong reasons for believing that the United States had used embassy personnel for covert activities against the Iranian government. But those arguments were quickly dismissed on the grounds that these unfortunate hostages were suffering from the “Stock- holm syndrome”: a psychological disorder that sometimes causes long-term captives to identify with their captors. Now I’m not sure that this supposed psychological disorder of Stockholm syndrome is genuine; but I am sure that it is irrelevantto the argumentsgiven by the returning hostages. If they are suffering from psychological problems, then certainly we should feel sympathy for them and for their ordeal as hostages. But if they give arguments,their arguments stand or fall independently of any characteristics—psychological or otherwise—of the arguers.

Of course if one is giving testimony,then evidence of psychological imbalance— evidence of paranoia, hallucinations, or delusions, for example—will indeed undermine the credibility of the testimony. (The testimony of Mehmet Ali Agca is the most dramatic example I know. Agca attempted to kill Pope John Paul II and later became the key pros- ecution witness against several defendants accused of plotting to kill the pope. However, some of his pronouncements during the trial—for example, that he is Jesus Christ reincarnated and that he has had visions of how the world will end—may prompt a bit of doubt concerning his mental stability; if so, one might also have some doubts about his testimony.) But neither an arguer’s psychological imbalance nor an arguer’s well-adjusted psychological stability have any bearing on the soundness of an argument.

INVERSE AD H OMINEM There is a flip side to the ad hominem fallacy. Instead of attackingthe source of an argu- ment and then claiming that the argument is weak (as in the ad hominem fallacy), one maypraisethe source of an argument and then claim (fallaciously) that the argument is therefore strong: We’ll call that the “inverse ad hominem fallacy.” 11 Inverse ad hominem is not as common as ad hominem—which is sort of depressing, when you think about it, since it suggests that people give more insults than compliments.

Just as flawsin an argument’s source do not count againstthe argument, also virtues in an argument’s source do not count in favorof the argument. For example, “It took a lot of courage for Senator Blowhard to attend the meeting of the National Organization of Women and argue againstthe Equal Rights Amendment. So there must be some substance in his arguments against the ERA, since he’s so courageous in presenting them.” Such courage is indeed rare and wonderful, especially in an era when politicians tend to tailor their speeches to fit the tastes of their particular audience. But while we may applaud the senator’s courage, that courage scores no points for his argument, which must stand or fall independently of the arguer’s virtues or vices. Of course if no arguments are at stake, then simply saying something nice about someone—“Horace is the kindest person I’ve ever known,” “Claudia is a whiz at calculus”—is certainly not committing the inverse ad hominem fallacy. And if someone is giving testimony(rather than argument), then “inverse ad hominem” support isrelevant: Knowing that the witness (the testifier) is highly principled, profoundly truthful, psychologically sound, and completely unbiased is certainly useful when evaluating testimony.

Think of inverse ad hominem as the happier twin of ad hominem: It is a fallacy when ad hominem is a fallacy (when it is directed at arguers); and it is legitimate when ad hominem is legitimate (when evaluating testimony, deciding who to vote for, selecting the best person for a job, choosing a dentist, and determining what professor to take for cell biology).

In sum, an ad hominem attack on the source of an argumentcommits the ad hominem fallacy. Inversead hominem supportof the source of an argument (this argu- ment is good because its source is good) commits the inverse ad hominem fallacy. And Chapter 3 Ad Hominem Arguments 49 just as ad hominem attacks are often useful and legitimate (this witness is biased, this politician is a fraud, this advertiser is a liar, this card player is a cheat, this teacher is a bore, this guy is a pig), so likewise inversead hominem praise is often valuable and nonfallacious (this person is a good credit risk, this student is well qualified for your grad- uate school, this candidate is sincere and high-principled, this witness is honest and reliable and sober, this surgeon is splendid).

Samuel Johnson used a particularly apt metaphor to capture the important difference between argument and testimony. Engrave it on your memory, and you will avoid forever the traps and snares of the ad hominem and inverse ad hominem fallacies: Argument is argument. You cannot help paying regard to their arguments, if they are good.

If it were testimony you might disregard it. Testimony is like an arrow shot from a long bow; the force of it depends on the strength of the hand that draws it. Argument is like an arrow from a cross-bow, which has equal force though shot by a child. 12 Attacking Arguments One word of caution in dealing with ad hominem arguments. Suppose that I give an argumentfor capital punishment. If you attack the source of the argument in an effort to discredit my argument, you have committed the ad hominem fallacy: it doesn’t matter how vile or cold-hearted or irrational or self-serving the argueris, you still have to consider the quality of the argument.But if you attack my argument(and not the person giving the argument), then that is notad hominem fallacy, and it is not a legitimate ad hominem argument: it is not ad hominem at all. If I give an argument, it is perfectly legitimate to train all your guns on that argument.You can note that my argument makes a logical error, or that its premises are false, or that its premises are irrelevant to its conclusion. Arguments are a fair target; arguersare not. The main purpose of this book is to help you recognize and construct goodarguments, and recognize and destroybad arguments. So an attack on an argument is neither fallacious nor legitimate ad hominem, simply because it is notan ad hominem argument. Your criticism of an argumentmay succeed or fail, but so long as you are not attacking the sourceof an argument, you are notcommitting the ad hominem fallacy. So by all means, search out and destroy bad arguments;but leave the arguerout of it. Don’t attack the person giving the argument; likewise, when someone criticizes one of yourarguments, don’t take it as a personal insult: An attack on your argument is not an attack on you. Exercise 3-2 Some of the following examples are ad hominem arguments, some are inverse ad hominem argu- ments, and some are neither.For each example, first decide whether it is ad hominem, inverse ad hominem, or neither; if it is ad hominem or inverse ad hominem, determine whether it is a fallacy, and explain why it is or is not fallacious.

1.Ladies and gentlemen of the jury, the district attorney has argued that you should find the defen- dantguiltyof burglary. But ask yourself what evidence there is that the defendant is guilty. The prosecution’s whole case rests squarely on the claims made by one witness, Jack Jefferson. Jefferson claims that he saw the defendant enter the house holding an empty bag and later leave the house with the bag filled with silver and jewelry. But what about this Jack Jefferson? He admitted that he himself has participated in burglaries to support his drug habit, that he lied under oath in his own trial just 3 months ago, and that he is now cooperating with the district attorney in hopes of getting early work release from prison. I think you must conclude that the testimony of a man like Jack Jefferson cannot be certain beyond a reasonable doubt, and therefore I believe you must return a verdict of not guilty. 50 Chapter 3 Ad Hominem Arguments 2.The following is a letter to the editor of the Greensboro Daily News. To the Editor:

I have seen a lot of ludicrous positions taken by the press, but nothing like your November 21 editorial against tobacco cultivation. I must take a moment to highlight your ridiculous position.

Your editorial suggests that North Carolina farmers should begin to produce more diverse crops because of your belief in the inevitable decline of tobacco, the “harmful product” which they grow. In short, you argue they should get away from producing and depending on revenue that comes from products which you think are harmful.

Your editorial staff must not read too much of your paper. On this same day, two pages over, you ran a full-page advertisement for a cigarette brand. In fact, you run many ads for cigarettes. I checked your advertising rates and you make a lot of money from these ads! If your opinions are “a matter of principle,” then consider how ridiculous you appear publishing principles that your paper does not live up to. 13 3.The district attorney argued that the defendant, Sarah Sartoris, must have been the murderer be- cause she was seen near the victim’s house on the night of the murder and she had a motive for killing him. But that’s certainly a weak argument. After all, Sarah had a perfectly good reason for being near the victim’s house on the night of the murder: The grocery store where she shops is on that street. And besides, the victim was quite wealthy, and many people had a motive for killing him.

So you should certainly not accept the district attorney’s argument.

4.Ralph Rivet argues that we should simplify the federal tax code. Ralph argues that the complicated deductions and exemptions are unfair to most Americans, since only those who can afford to hire an accountant are aware of them and can benefit from them. He also argues that they lead investors to focus on avoiding taxes, rather than on investing their capital in developing solid, worthwhile, profitable industries that would provide good jobs. And Ralph, it so happens, is a highly paid tax accountant. Obviously if the federal tax code were simplified Ralph would lose a lot of the money he now makes by preparing tax returns. Yet he still argues for tax simplification! Since he certainly is not arguing just for his own narrow self-interest, we must consider his arguments to be especially powerful and convincing.

5.If you haven’t quite decided who to vote for in the school board race, let me make a suggestion: Vote for Martha Manning. Before her retirement 2 years ago, she was a public school teacher for more than 30 years, including 10 years in this community and before that 20 years in public schools in Pennsylva- nia. So she has long and varied experience in the public schools, and she knows what is needed for good public education. Also, she is committed to keeping our schools modern and effective: Just last year, she took three courses in computer education at a state university, so that she would better understand how to effectively bring computers into the classroom. And finally, she is profoundly dedi- cated to providing the best education for our children: She has no further political ambitions, and no agenda other than helping our children get the best education possible. While she was a public school teacher, she was named Teacher of the Year in Pennsylvania, and was a finalist for that award while she was teaching in Ohio. When she was teaching in this community, she often took money out of her own pocket to buy supplies for her classroom. She is dedicated, progressive, experienced, and committed to good education for our children, and I think she would make a great school board member.

6.Dr. Andrews argues that abortion should be legal and unrestricted and that each woman has the right to make such difficult and intimate decisions for herself, with the aid of her own conscience and through consideration of her own moral principles and in light of her own personal situation and beliefs. But before you are persuaded by Dr. Andrews’s arguments, here is something you should know:

Dr. Andrews is currently conducting a massive, heavily funded research project on medical use of fetal tissue. If abortions are restricted, then it will become impossible for him to obtain the fetal tissue for his research, and he will lose his funding! When you take into consideration Dr. Andrews’s special reasons for wanting abortion to remain legal and unrestricted, his arguments do not sound nearly so strong.

7.Senator Slidell argues that we should have a national sales tax of one cent for every dollar of purchases, as a means of eliminating the budget deficit. Senator Slidell argues that such a sales tax is fair to all and would raise an enormous sum of tax money and would thus eliminate the budget deficit. But in fact a sales tax is not fair: It falls heavily on the poor, who can least afford it. And besides, it would probably slow down the economy and thus would not actually raise much, if any, additional tax revenue. So when we carefully examine Senator Slidell’s argument for a sales tax, we find that it is not very convincing.

8.Look, I know some of you jurors were impressed by the closing arguments of Mary Lanier, the attorney for the defense. She argued that the prosecution case was built on speculation and that there was insufficient evidence that the defendant knewhe was transporting illegal drugs when he was arrested Chapter 3 Ad Hominem Arguments 51 for hauling a bag of marijuana in the back of his truck. I admit, her argument that the defendant was an innocent dupe of drug dealers—and that he did not know that the truck he was driving was carry- ing marijuana—sounded pretty plausible. But before you are persuaded by her arguments, consider this: She has made a career—a very profitable career—out of defending people accused of selling drugs, and she is being paid a verygenerous fee for her work on this case. I don’t think we should be impressed by the arguments of a person like that.

9.Professor Lee argues that tuition at Home State University is too high. She says that the university is spending too much money on fountains, brick sidewalks, and flowers and faculty salaries and that, if those expenditures were reduced to a more reasonable level, tuition fees could be reduced with- out any sacrifice in educational quality. And there is something special you should note about that argument: Professor Lee is arguing for reduced tuition even though that would mean reduced faculty salaries, and thus a reduction in her own pay! Only a person with strong principles would argue that her own pay should be reduced! Obviously, then, we must accept her conclusion that tuition is too high.

10.On April 14, 1992, Rush Limbaugh (a radio talk show host) discussed the issue of animal rights. In the course of the discussion, Limbaugh described—and rejected—the arguments put forward by the son of a wealthy Illinois cattleman. This young man argued that raising beef animals for food imposes suffering on the animals, wastes grain, and contributes to pollution, and that since we do not require beef to live—in fact, we would be healthier without it—the factory farming of beef animals is wrong. In response, Limbaugh asserted that this was a classic case of liberal guilt: The young man had become wealthy as a result of his father’s beef-farming operation, and the young man had himself done no work for this wealth; so now he must attack his father and the source of his wealth in order to assuage his guilt for enjoying wealth he did not earn and in order to establish his independence from his father.

11.The tobacco companies claim that they are genuinely committed to stopping underage smoking.

They say that if they are left alone, they will voluntarily act to stop minors from getting tobacco products, and they will make sure that none of their advertising is aimed at children. But you shouldn’t believe their claims. Their only motive is to put up a smoke screen so that there are no real regulations imposed that would effectively limit underage smoking. After all, they have long claimed that they do not attempt to attract underage smokers—but their actions speak louder than their words. They have purposefully used advertising images of attractive, popular, and athletic young people smoking in order to attract younger smokers; and they have heavily invested in sports events attended by younger people—the Winston Cup racing series, the Virginia Slims tennis tour- naments—in order to associate sports and tobacco in the minds of youths. Furthermore, they have used cartoon images—such as Joe Camel—that obviously have great appeal for the young. Given their long history of trying to make cigarettes and “smokeless tobacco” appealing to young people, combined with their powerful motive to hook a new generation of young smokers to replace the ones who are dying (many of them from the effects of tobacco), there is absolutely no reason to believe their current claims that they are committed to stopping underage use of tobacco.

12.You say that you are opposed to guaranteed health care for every U.S. citizen. But if you think about it carefully, perhaps you will change your mind. After all, you have a deep commitment to equal opportunity: You believe that all people should have the opportunity to make the most of their lives and go as far as they can go. That’s why you are such a strong defender of our public schools. Just yesterday you were telling me that there is nothing more important than good, sound public schools, and that every child should have a fair opportunity to get a good education, because with- out that guarantee of good educational opportunity there can be no real equality of opportunity. As a believer in fair opportunity, you should also embrace universal health care. After all, nobody has a decent opportunity to achieve success if they can’t get decent health care. Inadequate health care is just as great a barrier to opportunity as is an inadequate education. So as a strong believer in equal opportunity for all our citizens, you should also be a supporter of universal health care.

13.Betty Hill claimed that in 1961 she was abducted by a UFO. Hers is perhaps the most famous UFO case on record. A best-selling book (The Interrupted Journey,by John G. Fuller) was written about it, and in 1975 NBC ran a movie about it (The UFO Incident). Mrs. Hill is now retired and spends her time giving UFO lectures and observing UFOs at a landing spot she claims to have discovered in New Hampshire.The Skeptical Inquirerrecently gave the following account of Mrs. Hill’s current activities: Mrs. Hill claims that the UFOs come in to land several times a week; they have become such a familiar sight that she is now calling them by name. Sometimes the aliens get out and do calisthenics before taking off again, she asserts. One UFO reportedly zapped a beam at her that was so powerful that it 52 Chapter 3 Ad Hominem Arguments “blistered the paint on my car.” Mrs. Hill also reports that window-peeping flying saucers sometimes fly from house to house late at night in New England, shine lights in the windows, and then move on when the occupants wake up and turn on the lights. Recently John Oswald, of Dr. J. Allen Hynek’s Center for UFO Studies, accompanied Mrs. Hill on her thrice-weekly UFO vigil. Oswald, who is certainly no UFO debunker, reported: “Obviously Mrs. Hill isn’t seeing eight UFOs a night. She is see- ing things that are not UFOs and calling them UFOs.” Mr. Oswald reports that during the vigil of April 15, 1977, Mrs. Hill was unable to “distinguish between a landed UFO and a streetlight.” 14 14.Andrew argues that abortion should not be legal, because it weakens respect for life, and thus weak- ens the entire weave and structure of our system of basic values. Andrew maintains that uncompro- mising respect for human life is the vital center of all our ethical commitments, and weakening this center will weaken the entire structure. But then, Andrew is a man, and he never has to worry about becoming pregnant; so his arguments against abortion are irrelevant.

15.Jesse Ventura, a former professional wrestler who became governor of Minnesota, returned to the wrestling ring as a referee for a highly promoted professional wrestling show. One of Minnesota’s major newspapers, the St. Paul Pioneer Press,criticized the governor’s actions, saying that he was setting a bad example for the children of the state by participating in a professional wrestling show that promotes staged violence and sexual exploitation (scantily clad young women being a major part of the pro wrestling spectacle).

16.In response to the criticisms of the St. Paul Pioneer Press(noted in the previous example), Governor Ventura accused the newspaper of being hypocritical, since they run advertisements for X-rated movies and for strip clubs. Calling the newspaper the “St. Paul Pioneer Porn,” Governor Ventura said that TheSt. Paul Pioneer Pressis triple-X. They are lining their pockets with pornography. They are working together with the X-rated industry. (August 29, 1999) 17.Fellow members of the Pleasant Valley Town Council, we must decide today whether to fire our police chief, Larry Lucas. As you know, it was recently discovered that after attending a law enforce- ment training course in New Orleans, Chief Lucas stayed an extra day and charged the cost of his hotel room to his expense account. No one objects to the chief spending an extra day in New Orleans, but of course he must pay for it out of his own pocket, and not out of the budget of the town police department. Whether an intentional or accidental misuse of department funds, this is a serious mistake, and one that we cannot tolerate in our town’s chief of police. Thus I believe we must fire Chief Lucas. Now, earlier you heard Council Member Zack Zuriff argue that Chief Lucas should not be fired. Zack argued that Chief Lucas has been a good and honest police chief for 12 years, and that this mistake in filling out his expense account was merely an accounting error and not an intentional wrong, that Chief Lucas immediately reimbursed the department for the cost of the hotel room as soon as he recognized his error, and that such a small mistake does not justify the dismissal of a person with such a long and outstanding record. But I’m afraid we can’t give much weight to Zack’s argument for keeping the chief. After all, Zack and Chief Lucas have been friends since their high school days, and Zack is obviously offering his argument out of loyalty to his friend. Certainly it is heartwarming to see a friend like Zack stick by his comrade through adversity. Such loyalty is rare and wonderful. However, once we recognize that Zack’s argument is merely the support of a loyal friend, it is clear that we should not take it seriously.

18.Alice Wykowski argues that the United States should not impose trade restrictions on China because of human rights violations by the Chinese government. She argues that reducing trade with China will only isolate China, and lead to even more restrictions on human rights; but through trade, China’s people, culture, and economy will be exposed to wider influences, including the influences of respect for basic human rights. However, you should realize that Alice owns a toy importing busi- ness, and almost all of her imports are from China! And so trade restrictions against China could take money out of her pocket, while fewer trade restrictions might mean more money for Alice’s import company. Her argument for more trade with China may sound good at first, but Alice’s argu- ment loses its force when you realize that more trade with China means more money for Alice.

19.Look, I know you are planning to have open-heart bypass surgery to correct your heart problems.

That’s fine. But I heard your surgery is scheduled with Dr. Pangloss, and that’s terrible. Dr. Pangloss has been suspended from practice by the Pennsylvania Board of Medicine for botching several operations while under the influence of alcohol: that’s why he moved here to Cleveland. And the Ohio Board is currently reviewing his license because of charges that he caused the death of a surgical patient through gross recklessness. And I know two people in Cleveland who sued Dr. Pangloss for Chapter 3 Ad Hominem Arguments 53 malpractice, and they both received large settlements from his insurance company. And he has had his hospital privileges revoked by at least three area hospitals, reportedly for making his hospital rounds while intoxicated. In addition, his driver’s license has been permanently suspended for driving under the influence. So if you want a clumsy, reckless surgeon with a severe drinking prob- lem cutting on your heart, then stay with Dr. Pangloss. But I strongly recommend you to find another surgeon, and stay as far away from Dr. Pangloss as you can.

20.

JOE :We should stop providing food stamps, welfare payments, and Medicaid to the impoverished.

Such payments make those who receive them dependent, and weakens their desire to do productive work, and thus traps the recipients in a cycle of poverty. So those payments actually, in the long run, harm those people who receive them. MOE :That argument is just an excuse for not wanting to help those who are in poverty; such an argument is merely an attempt to excuse your own callousness and lack of concern for those who are less fortunate than you.

21.Adam Forge claims to have miraculous psychic powers. He claims that he has actually made metal objects—such as spoons—bend through psychic power, and without touching them; and he claims that he can make objects move from one place to another through his special psychic forces. But Adam Forge has actually been videotaped bending spoons with his hands, and then claiming that he never touched them. He makes a lot of money by claiming to be a psychic; but whenever he is tested scientifically, he can’t do the things he claims to be able to do, and he resorts to trickery. So Adam Forge is a liar and a fraud—and I see no good reason to believe any of his claims that he has performed psychic miracles and possesses psychic powers.

22.PEOPLE WHO LIVE IN GLASS DAY-CARE CENTERS Agnes Love, the leading opponent of higher state standards for day-care centers, has a secret.

In numerous public hearings and committee meetings at the [North Carolina] General Assembly, Love has argued against tighter regulations because she said they would price day-care services out of the reach of many parents—and would force some day-care centers to close.

But, according to documents on file at the N.C. Office of Day Care Licensing, Love’s own day- care center has trouble meeting the current state standards. Her Love and Care Nursery and Kindergarten in Charlotte was issued a “disapproved” sanitation report in February because of con- tinued improper sterilization of dishes.

Over the past 2 years, compliance officers have found repeated violations of the state’s sani- tation standards at Love’s center. And in December 1983, inspectors discovered only one staff member present for 27 children, rather than the required three. 15 23.Ladies and gentlemen of the jury, as you consider this case, weigh carefully the sworn testimony of Amanda Popovich. Ms. Popovich testified, under oath, that she saw the defendant at a restaurant at the very time that he is accused of robbing a liquor store on the other side of the city. Ms. Popovich is a reliable, sober citizen, with an unblemished record of honesty. Her eyesight is perfect, she is not delusional, and she has long held a responsible position as a second-grade teacher at Western Elementary, where she was selected Teacher of the Year just last year. She has no motive for lying, since she is not a friend of the defendant. She is testifying for one purpose only: to see that justice is done and that an innocent man is not wrongfully convicted. Her sworn testimony is powerful evidence that the defendant is an innocent victim of mistaken identity, and I ask that you consider the honest testimony of this good and trustworthy woman and return a verdict of not guilty.

24.Bruce says that he is willing to sell his Beanie Baby collection for a bargain price. He says that his entire collection is made up of original, authentic Beanie Babies, and he guarantees that every one of them is authentic and genuine, bought directly from the manufacturer. He claims that he has to raise money quickly to pay for his mother’s surgery, and so he is going to sell his Beanie Babies for a special low price. Well, you can buy Beanie Babies from Bruce if you want to, but there are a couple of things you might want to know. First, his mother died over a decade ago, so I have some doubts about his story that he’s trying to raise money for her surgery. And second, a couple of years ago he was offering to sell his baseball card collection, and he guaranteed that every card was authentic and original, and that the ballplayer signatures were genuine. But it turned out that he had made the cards himself using a photocopying machine, and that all the signatures were forged. 54 Chapter 3 Ad Hominem Arguments That time he was convicted of fraud, and he’s still on probation for that baseball-card caper. So you might want to be a bit careful before buying Bruce’s Beanie Babies.

25.We should select Wanda Willis as Teacher of the Year. She has been a tireless and dedicated classroom teacher, often staying long hours after school to consult with the parents of her students. She has developed innovative teaching techniques for helping children learn mathematics quickly and easily.

And her enthusiasm for teaching makes her classroom a warm and happy place for her students. So I say, Wanda Willis should be our Teacher of the Year.

26.Senator Forge recently argued that there should notbe restrictions on the sale of guns at gun shows.

He argues that those who sell guns at such shows are usually small dealers, who sell only a few guns, and that they don’t have the means or resources to carry out background checks on buyers. Further- more, since the shows only last a day or so, a waiting period is not really workable. But Senator Forge is heavily funded by the National Rifle Association, and they give massive support to his elec- tion campaigns. In fact, Senator Forge is just a puppet of the NRA, and when they fill his pockets and pull his strings, out comes the argument against gun control. So in the debate over gun control, we should pay no attention to Senator Forge’s arguments: They are bought and paid for by the National Rifle Association.

27.You should certainly accept Donna as a student at Home State University Law School. Donna is a person of the highest principle, with a profound commitment to honesty. She is also a brilliant student and a very hard worker. She will be an excellent law student and a wonderful attorney.

REVIEW QUESTIONS 1. What is the ad hominem fallacy?

2. When is an ad hominem argument not an ad hominem fallacy?

3. What is inverse ad hominem? When is it a fallacy? Studyand Reviewonmythinkinglab.com NOTES 1 The Criminal Lawby F. T. Giles (Pelican Books, 1954; 2nd ed., 1961; 3rd ed., 1963; 4th ed., 1967), p. 51, Copyright © F. T. Giles, 1954, 1961, 1963, 1967. Reproduced by permission of Penguin Books. 2 Information from a column by Lenore Skenazy, columnist for the New York Daily News, printed October 29, 2002. 3 Paul Bergman, Trial Advocacy(St. Paul, MN: West, 1979), pp. 323–324. 4 Richard Du Cann, The Art of the Advocate(Hammondsworth, Middlesex, UK: Penguin Books, 1964), p. 40. 5 John Wesley Noble and Bernard Averbuch, Never Plead Guilty(New York: Bantam Books, 1955), p. 58. 6 Example based on information in “The Secret History of Lead,” by Jamie Lincoln Kitman, in The Nation, March 20, 2000, p. 34. 7 F. Lee Bailey and Harvey Aronson, The Defense Never Rests(New York: The New American Library, 1971), p. 40. 8 Irving Stone, Clarence Darrow for the Defense(New York: Doubleday and Company, 1941), p. 465. 9 Henry Lauren Clinton, Celebrated Trials(New York: Harper and Brothers, 1897), p. 149. 10 This kind of argument is sometimes called circumstantial ad hominem; and some textbooks treat it as fallacious. But far from being fallacious, it is a central and legitimate part of careful critical argumenta- tion: determining what views the argument participants hold, and perhaps agree on, and then attempt- ing to work from there to a conclusion that they both accept. 11 In past editions, I have called this the “good intentions” form of argument; but “inverse ad hominem” makes clearer the nature of the argument. There does not seem to be a standard name for this argument form. Douglas Walton suggests it might be called a “negative ethotic argument” (Ad Hominem Arguments, 1998, p. 213), but “inverse ad hominem” seems easier to remember and more descriptive. 12 Samuel Johnson, Life, May 19, 1784. 13 Greensboro Daily News. 14 “Psychic Vibrations,” The Skeptical Inquirer,Vol. 3, no. 1 (Fall 1978), p. 14. 15 The North Carolina Independent,March 15–28, 1985, p. 2. Chapter 3 Ad Hominem Arguments 55 ReadtheDocumentonmythinkinglab.com ADDITIONAL READING INTERNET RESOURCES The Internet Encyclopedia of Philosophycontains an excellent article by Bradley Dowden, “Fallacies,” that not only discusses almost every fallacy ever imagined, but also links to additional essays on most of them. You can find a discussion of ad hominem, as well as any other argument form discussed in this book. Go to www.iep/utm.edu/fallacy.

Testimony: A Philosophical Study,by C. A. J. Coady (Tony) (Oxford, UK: Oxford University Press, 1992), is a com- prehensive examination of testimony, including but not limited to courtroom testimony. And Douglas Walton’sAd Hominem Arguments(Tuscaloosa, AL: University of Alabama Press, 1998) is a very thorough and careful study of ad hominem arguments, both fallacious and legitimate.

Bruce N. Waller, “Ad Hominem Arguments,” Coffee and Philosophy, pp. 4–6. This dialogue discusses both legitimate and fallacious uses of ad hominem arguments.

Manitoba Justice, “Jailhouse Informants,” The In- quiry Regarding Thomas Sophonow. Thomas Sophonow spent four years in prison after he was wrongfully con- victed of the brutal murder of a young woman who was working in a Winnipeg doughnut shop. After it became clear that Sophonow was innocent of the crime for which he had been imprisoned, the Justice Department of the province of Manitoba carried out an extensive investiga- tion into why this miscarriage of justice had occurred, and how such mistakes could be prevented in the future. The inquiry found that one of the key factors in this wrongful conviction was reliance on the false testimony of “jail- house informants” (e.g., jailed inmates who offer to testify against other prisoners in exchange for such benefits as reduced charges, reduced sentences, or better treatment during their term of imprisonment). Several sections of The Inquiry Regarding Thomas Sophonowdescribe the char- acter of some of the jailhouse informants who provided false testimony that helped convict Sophonow, and also describe in general terms the problems with relying on jailhouse informants. The ad hominem attacks on the character and reliability of such jailhouse informantsare relevant and legitimate, and do notcommit the ad hominemfallacy.

Report of the Kaufman Commission on Proceedings Involv- ing Guy Paul Morin, Chapter 3, sections A–D, “Jailhouse Informants” (Ontario Ministry of the Attorney General).

Another notorious case of wrongful conviction was the case of Guy Paul Morin, who spent eight years imprisoned in Canada’s only “supermax” prison for the rape and murder of an eight-year-old girl who had been his next-door neigh- bor. The wrongful conviction of Morin—which involved police misconduct, serious mistakes in the crime lab investi- gations, and perjured testimony by jailhouse informants— was profoundly disturbing to Canadian citizens, and it resulted in an extensive investigation and report by a com- mission headed by Fred Kaufman, a former judge of the Quebec Court of Appeal. As in the Sophonowcase, the Kaufman Commission found that the use of jailhouse infor- mants played a major part in this wrongful conviction. The extensive examination of the jailhouse informants and their testimony—and the deals they received in exchange for their testimony—is chilling (and it led to strong restrictions on the use of jailhouse informants in Canadian courts); as in theSophonowcase, the ad hominem attacks on the jailhouse informants who aided in the wrongful conviction of Paul Morin are a legitimate use of ad hominem argument. 56 The Second Deadly Fallacy:

The Strawman Fallacy 4 ❖ ❖ ❖ The ad hominem fallacy poisons critical thinking: when argumentdescends to the level of personal abuse, productiveargument ceases. If the argumentative process is supposed to proceed cooperatively, then it is obvious that personal attacks poison the cooperative atmosphere. If instead the argument is conducted along adversarial lines, the character of the adversarial advocates is irrelevant to the quality of their argu- ments: a lecherous scoundrel may give excellent arguments, while the arguments of a paragon of virtue may be lousy. When ad hominem attacks focus on the character of thearguers, they distract from careful consideration of the quality of their arguments; and that is why—in forums in which adversarial argument is supposed to be carried on in pursuit of truth, such as in philosophical and scientific and legal debate—personal ad hominem attacks are regarded with contempt, and elaborate personal courtesy is the rule.

So the ad hominem fallacy—the fallacy of attacking the sourceof an argument—is the fallacy that is most destructive of productive critical thinking, whether adversarial or cooperative. But there is a second fallacy that is almost as bad: the strawmanfallacy. That is the fallacy of distortingormisrepresentingsomeone’s position or argument in order to make it easier to attack. It is a fallacy that is very common in political argument, which is probably why political argument so often produces much more heat than light. But wher- ever the strawman fallacy occurs, whether in cooperative or adversarial contexts, it under- mines the critical thinking process. The first step in effective critical thinking is being clear on exactly what is at issue; and the strawman fallacy cripples that essential first step by painting a false picture of what is under discussion. Suppose that we are concerned about the federal budget deficit, and arguing about the best way to reduce the deficit. You maintain that we should make careful reductions in spending, while I favor a modest increase in taxes. If you represent my view as a push for much higher taxes on the middle class, while I claim that you want to cut all health-care funding for the elderly, then both of us can score cheap shots against our strawman opponents, but we can’t even begin to have an intelligent discussion or debate—neither adversarial nor cooperative—about the real issue and what policy works best. Listento the Chapter Audio on mythinkinglab.com Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy 57 In an adversarial approach, strawman arguments score cheap points, and perhaps they improve ratings on talk radio shows; but strawman arguments will not convince anyone to changehis or her views: after all, if we are engaged in an adversarial argument, youknowwhat your own position is, and I’m not likely to convince you to change your position by attributing to you a view you don’t hold or an argument you didn’t offer. In cooperative critical thinking, the strawman fallacy is even more destructive. If you and I are deliberating together with the goal of finding a policy or developing a program that will best meet all our interests, then if I start by distorting or misrepresenting your goals and concerns you will not find me a productive partner for cooperative deliberation. The key to effective critical thinking—whether adversarial or cooperative—is being very clear on what’s at issue. Strawman fallacies cripple that essential first step. STRAW M AN When someone is criticizing an opponent’s argument or position, it is crucial to be sure that the critic is accuratelyrepresenting her opponent’s views. And this point is especially important whenweare the critics in question. When we are confronted by a position in conflict with our own (or an argument against a position we favor), it is sorely tempting to consider that oppos- ing position or argument in its weakestpossible form. That makes the argument easy to dismiss, and it saves us the effort of careful critical thinking. But tempting as that approach may be, it is obviously not the path to clear thinking. And tempting as it may be to distort your opponent’s argument to try to achieve a cheap victory, it is certainly fallacious to do so.

It is much easier to win a fight with a straw man than with a real man. And it is much easier to attack a weak substitute for an argument or position than the genuine article.

That’s why the strawman fallacy is so seductive. The strawmanfallacy consists of distorting, and thus weakening, an opponent’s arguments or views and then attacking the weaker position rather than the real one. 1 Scoring Political Points with Strawman Fallacies In late December 2009, Umar Farouk Abdulmutallab was arrested and charged with attempting to blow up a Northwest Airlines plane that was flying into the United States, using explosives he had concealed in his under- wear. The suspect was read his rights and offered a lawyer (as required by law for anyone arrested in the United States). A few days later, former Vice-President Dick Cheney made this statement about President Obama’s position on dealing with suspected terrorists: He [Obama] seems to think if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won’t be at war. He seems to think if we bring the master- mind of 9/11 to New York, give him a lawyer and a trial in a civilian court, we won’t be at war. He seems to think that if he closes Guantanamo and releases the hard-core al Quaeda-trained terror- ists still there, we won’t be at war. But Obama’s decision to follow the law requiring that those arrested in the United States be told of theirMirandarights and offered a lawyer does not meanthat he believes that will end all terrorist attacks. The question of whether to try terrorist suspects in military or civilian courts is a serious one, that deserves serious thoughtful debate and discussion; but such serious discussion is impossible, if one side paints a strawman picture of the other view, claiming that those who favor a civilian rather than a military court are claim- ing that having civilian trials would end the threat of terrorism. Should we close the Guantanamo Prison, where many suspected terrorists have been held?

That’s a serious question: Some people argue that it provides an especially safe place to hold those who might engage in terrorist attacks on the United States; others believe that it has become a symbol of U.S.

mistreatment of terrorist suspects, and has become a rallying point for recruiting those who wish to attack the United States, and that any genuine terrorists still held there could be safely held in maximum security prisons in the United States. But noone proposes that we release any “hard-core al Quaeda trained terror- ists,” and that distortion of the issue blocks the possi- bility of intelligent critical examination of the real question. The Principle of Charity Instead of attempting to find the weakest version of an argument, we should do exactly the opposite: seek the strongest possible version of whatever argument or theory is being considered. If there are alternative possible interpretations of an argument, consider the strongestone. If there are different versions of a position, consider the most plausible one.

If the language of an argument is open to several interpretations, select the interpreta- tion that makes the argument most reasonable. In short, follow the principle of charity when analyzing arguments: Interpret opposing arguments as generously, as charitably, as is possible. By always giving the benefit of the doubt to whatever arguments, theories, or positions you are considering, you will have to think a good deal harder, but you will also think more carefully and be more open to promising new ideas.

If you wish to be comfortably mired in dogma and error, then the strawman fallacy is an effective weapon for you—both against your opponents’ arguments and against your own doubts and questions. But if instead you wish to expand your thoughts, critically evaluate the positions you hold, and honestly examine competing views and new proposals, then the principle of charity will be invaluable.

The Strawman Fallacy It is important that we avoid the strawman fallacy when examining arguments, and it is also important that we not be misled when others commit the strawman fallacy in their argument critiques. When you are considering a critiqueof an argument, a position, or a theory, ask yourself the following questions: Is that an accurate statement of that argu- ment or position? Was that actually what the arguer was arguing? Were those the reasons given for the conclusion? And in particular: Is that an accurate statement of the conclusion of the argument?

Many strawman arguments are heavy-handed and obvious. Television evangelist Pat Robertson mailed a fundraising letter that attacked the advocates of the Equal Rights Amendment. He asserted that supporters of the Equal Rights Amendment are not really after equal rights for women: Their actual goal is to destroy the family and encourage women to leave their husbands, kill their children, destroy capitalism, become lesbians, and practice witchcraft. Certainly it is easier to argue against killing children than against the Equal Rights Amendment, but this is such an obvious and absurd distortion that it would be amusing, were it not so vicious. Slightly more subtle is William F. Buckley’s dis- tortion of the arguments of those who favor a ban on handguns: Now the anti-handgun fundamentalists will tell you that the mere presence of a loaded pistol means that Mr. Finnegan is going to get drunk and shoot Mrs. Finnegan. Or that when Miss Finnegan sneaks in to pay a surprise visit to her mother and father, suddenly she will be dead, taken for an intruder. Or that the Finnegan grandchild, age 6 will one day play with the pistol, it will go off, and there will be tragedy. (July 22, 1982, Universal Press Syndicate) But of course the “anti-handgun fundamentalists” offer no such ridiculous arguments.

They claim instead that the presence of a loaded pistol does increase the likelihoodof a domestic squabble escalating into a domestic homicide, of a contemplated suicide becoming a successful suicide, of a child being killed while playing with a loaded hand- gun. But those accurate and depressing facts are much more difficult to ridicule than the strawman argument that Buckley attributes to his opponents. Or again, those who oppose decriminalization of drugs sometimes suggest that the proponents of decriminalization want to make drugs easily and readily available, like candy at the supermarket checkout counter. Perhaps there is someone somewhere who advocates such open and easy availability of hard drugs, but that is not the position of most of the advocates of decriminalization.

They want, instead, something like an improved and expanded system of treatment 58 Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy 59 clinics, or perhaps a system in which addicts must register with the government and obtain drugs from a physician, or decriminalization (with strict regulation) of marijuana.

In a speech concerning new proposals for economic recovery and federal deficit reduc- tion, President Barack Obama included these remarks: “From some on the right, I expect we’ll hear a different argument—that if we must make fewer investments in our people, extend tax cuts for wealthier Americans, eliminate more regulations, and maintain the status quo on health care, our deficits will go away.” But while most Republicans do seem to favor extending tax cuts for wealthier Americans, only a small fringe group want to eliminate more regulations (many do not want additionalregulations, but few want to eliminate those that remain); and almost no one thinks it is a good idea to “maintain the status quo on health care”; and in any case, those “on the right” do not believe that such policies will cause “our deficits to go away”—to make that happen, they would be more inclined to make dramatic cuts in social programs. Conservative columnist Cal Thomas manages to pack several strawman distortions into a single sentence: “The pursuit of the radical homosexual agenda to win acceptance and special privileges for a chosen lifestyle is not consistent with the government’s legitimate interest to ‘promote the general welfare.’ ” But homosexuals are campaigning for the same rights against discrimination enjoyed by everyone else: the right not to be denied a job or housing because of sexual orientation, the right to be protected against threats and violence, the right to marry, the right to adopt: those can hardly be classified as “special privileges” when they are the common rights of citizens—rights which are often denied to homosexuals. And of course these are not special privileges being claimed by those with a “chosen lifestyle,” since homosexuals no more choosetheir sexual orientation than do heterosexuals. (If you recall your “sexual awakening,” did any part of it involve choosingwhether you would be sexually attracted to Jack rather than to Jill?) The Equal Rights Amendment, gun control, deficit reduction, and drug legalization/ decriminalization are important issues, worthy of debate in a democratic society. But they should be debated honestly, without the distortions of the strawman fallacy.

The strawman examples mentioned above are rather obvious. Unfortunately, the strawman fallacy often comes in more subtle and insidious forms. Consider Figure 4-1, an example from a Mobil Oil “Observations” column. What position is Mobil attacking? How does Mobil portraythat position? Is it an accurateportrayal?

First, Mobil is attacking the view of those who favor increased use of “soft energy” (such as solar power, hydroelectric power, wind power, wood burning, and other rene- wable energy sources). What do people who favor increased use of soft energy actually want? As they are portrayed by this Mobil advertisement, they seem to hold some very weird views. They apparently want “to give every American family of four a 40-acre farm” (last paragraph); and they supposedly want to get allour energy from firewood (middle paragraph). This “back-to-nature” movement (as Mobil calls it) appears to include a bunch of crazies, and we are easily led to agree with the Mobil conclusion: [W]e’re uneasy with people who insist it [soft energy] will do the whole job . . . and who then insist on foisting their dreams on the rest of us. Especially when their dreams can’t stand up to reality. But Mobil’s argument is one long strawman fallacy. Of course it would be absurd to propose that every family live on a 40-acre farm; but the proponents of increased reliance on soft energy do notpropose such a silly thing. To portray soft energy advocates as holding such a view is to distort their positions, and thus to commit the strawman fallacy. Again, there are people who believe that we should use more firewood—in heat- ing homes, for example—and less nuclear power. But noone proposes that we rely completely and exclusively “on energy generated by firewood.” (Have you everheard anyoneadvocate using firewood to power cars, trucks, and buses, for example?) Mobil points out how absurd it would be to try to rely entirelyon firewood for all our energy 60 Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy Figure 4-1 Mobil Advertisement. Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy 61 needs: “If the eastern U.S. tried to live, ‘even at a lower standard, on energy generated by firewood, (that) would mean the end within a few generations of the eastern forest.’ ” And indeed that would be an absurd proposal. But that is notthe proposal soft energy advocates actually make. The soft energy advocates propose that we use more solar power, more wind power, and more of other such renewable energy sources and that we make a greater effort to conserve energy (through stronger minimum mileage standards for passenger cars, for example) and thus reduce our use of nuclear power and petro- leum. The views of the soft energy advocates may ultimately be implausible (or they may be workable), and certainly Mobil or anyone else should be free to criticize the soft energy position. But that position is more plausible, and more difficult to attack, than the distorted positions criticized by Mobil Oil. It’s always easier to attack a straw man than the real thing.

Notice the last illustration in the Mobil argument: the scarecrow, stuffed with straw.I have no way of knowing, but I strongly suspect that some devious critical thinker recognized the strawman nature of the Mobil argument, and slipped that illustration into their advertisement as a prank. It would be nice if all strawman fallacies were marked by straw-filled scarecrows; unfortunately, most of the time you will have to pick out the strawman distortions for yourself. But that’s the problem. How do you recog- nize strawman fallacies? How do you know that the position Mobil is criticizing is a distortion and exaggeration of the genuine views of soft energy advocates? Obviously it’s not easy. You must know somethingabout their position beforeyou read the Mobil essay; otherwise, how will you know that the position being attacked is not the real position soft energy advocates take? And there’s no easy way to accomplish that. It requires that you study the positions in question and that you not rely entirely on the criticsof a position for your information. If an issue interests you, and you want to effec- tively evaluate the arguments on both sides, you must seek out the arguments and posi- tions of both sides. If you want to know the pros and cons of soft energy use, do notrely on Mobil Oil. Look up the actual claims and arguments of those who advocate the increased use of soft energy sources. And to make things even more difficult, you must be sure you are reading the positions and arguments of those who actuallypromote alternative energy, and not the views of some industry front group that pretends to support alternative energy while actually opposing it and misrepresenting it. Such groups often pose as grassroots organizations, made up of citizens concerned about a specific issue, when in fact they are funded and run by industry groups or their public relations firms (such fake grassroots organizations have become so common that they are now known as “Astroturf” groups). For example, the Workplace Health & Safety Council sounds like a good place to get the position of those who favor improving work- place safety; it is actually a lobbying group funded by companies that wish to limit or block laws promoting workplace safety. The National Wetlands Coalition sounds like a good source for arguments in favor of protecting wetlands; but in fact it is a phony citizens group that is funded by oil and natural gas companies and developers that wish to take over wetlands for development and drilling.

Picking out strawman fallacies will be a little easier in the jury box, since you will have heard the arguments that are being criticized. For example, if the prosecution lawyer uses a strawman fallacy against the arguments of the defense lawyer (i.e., the prose- cution distorts a defense argument in order to make it easier to attack), you will have heardthat defense argument, and thus you will be in a good position to decide whether the prosecution is presenting it fairly and accurately. But that is not to say that, as a jury member, detecting strawman fallacies will be easy. Try your hand at the following case, taken from the retrial of Clarence Earl Gideon, accused of breaking and entering with the intent to commit petty larceny. Gideon had been convicted almost 2 years earlier on the same charges; during that trial Gideon—unable to afford an attorney—had asked for, and been denied, legal counsel. He appealed his conviction to the U.S. Supreme Court on the grounds that he had been denied counsel, and the Supreme Court heard his 62 Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy appeal and ruled that a defendant facing a felony charge has a right to counsel, and that counsel must be appointed for such a defendant if he or she cannot afford to hire a lawyer. Thus the Supreme Court overturned Gideon’s conviction, and Gideon, now represented by a defense lawyer paid by the state, was retried. During that retrial the leading witness for the prosecution, who had testified to seeing Gideon inside the Bay Harbor Poolroom, was subjected to a severe cross-examination. He admitted to having been convicted of car theft and admitted other facts that cast doubt on key parts of his testimony; a possible interest he might have had in framing Gideon was brought out as well. During the cross-examination, and later in his summation to the jury, the defense attorney sketched a quite plausible scenario that involved the prosecution witness’s break- ing into the poolroom himself and then attempting to place the blame on Gideon. The prosecutor, in his final charge to the jury, attacked the defense argument with the asser- tions that “There’s been no evidence that Cook [the prosecution witness] and his friends took this beer and wine [from the Bay City Poolroom],” 2thus there is not enough evidence to prove that Cook committed the crime, and therefore Gideon should be found guilty of the crime.

But the prosecution’s argument involves a subtle distortion of the defense argu- ment. For the defense was nottrying to prove that Cook committed the crime; instead, all the defense has to establish is that there is a possibilitythat someone other than Gideon committed the crime. (Remember, all that the defensehas to establish is that guilt has not been proved; notthat the defendant is innocent, certainly not that someone else commit- ted the crime.) So presenting the defense case as if it were attempting to prove that Cook committed the crime (rather than attempting to establish merely the possibility that someone other than Gideon committed it) misrepresentsthe defense argument in a way that makes it easier to attack, and thus commits the strawman fallacy. (Incidentally, the jury voted to acquit Gideon.) Supreme Court Straw Man Even the U.S. Supreme Court is not immune to the charms of the strawman fallacy. In the 1986 case of Bowers(attorney general for the state of Georgia) v. Hardwick,Hardwick appealed his conviction under a Georgia statute that prohibited sodomy. Hardwick had been charged after a police raid discovered him engaged in homosexual conduct in the privacy of his own bedroom (apparently the police had broken into the house on a drug raid, but had somehow gotten mixed up and gone to the wrong house, and decided to charge Hardwick under the sodomy statute). Hard- wick’s attorney argued that Hardwick’s right of privacy had been violated: that the U.S. Constitution protects the right of adults to engage in intimate, consensual, nonharmful behavior in the privacy of their own homes.

Georgia’s law against sodomy applied to both homo- sexuals and heterosexuals, and so—as Justice Blackmun noted—the defendant’s claim that the Georgia law “involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.” The Supreme Court, by a 5 to 4 majority, upheld Hardwick’s conviction on the grounds that the U.S. Constitution does not recog- nize a “constitutional right of homosexuals to engage inacts of sodomy”: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invali- dates the laws of the many States that still make such conduct illegal and have done so for a very long time.” But as Justice Blackmun pointed out in his dissent, “the majority has distorted the question this case presents.” Obviously the U.S. Constitution does not recognize a “constitutional right of homosexuals to engage in acts of sodomy”; but that’s a strawman argument that misrepresents Hardwick’s argument and thus makes it easier to attack. Hardwick’s attorney had argued that there is a fundamental right of privacy, that includes the right of all persons to be free from government interfer- ence in their most private and intimate behavior. Or as Justice Blackmun states it: “The Court [majority] claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.” 3 (In a striking reversal of that 1986 decision, in 2003 the Supreme Court forcefully agreed with Blackmun’s 1986 dissent.) Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy 63 Special Strawman Varieties A few special varieties of the strawman fallacy deserve special note. First, one of the most effective and deceptive means of distorting a position is to find someone who holds an extreme or implausible version of that position and then treat that individual’s version as if it were genuinely representative. For example, it might be possible to find someonewho believes that every family in the United States should be given 40 acres of farmland and be required to live on that land and farm it; however, such a bizarre view isnotfavored by most advocates of increased use of soft energy, and to treat that position as if it is typical of the soft energy view is certainly a distortion. In a similar manner, there may be some supporters of capital punishment who believe that con- demned prisoners should be tortured on the rack before being boiled in oil, but that is not the position of most proponents of capital punishment, who favor executions in the least painful manner. To argue against capital punishment by torture as if it were the typical view of those favoring capital punishment is to pick on a straw man rather than the genuine position.

A second special strawman technique is to criticize an early and relatively crude version of a theory, neglecting the more developed and powerful current versions. Thus, a criticism of behaviorism that deals exclusively with the work of Watson (and neglects all the behaviorist work of the past half century) would be an attack on a weak and outdated strawman version of behaviorism. And an attack on the theory of evolution that dealt entirely with Darwin’s early evolutionary efforts in Origin of Species(and neglected the further evidence and theoretical development of the past 125 years) would commit the strawman fallacy of attacking a weaker version of the target.

One standard strawman trick is to represent everyone in a large group or move- ment as if they supported the views of one small element of the movement. For example, suppose there is a rally in favor of Palestinian independence: it may include Jews, Catholics, Muslims, and atheists, as well as labor unions, peace activists, women’s rights advocates, and students; and among the participants might be some supporters of Stalinism. If the rally is represented as being a gathering of Stalinists, that would be a strawman distortion of the aims and character of the overall group. That would be just as unfair and illogical as suggesting that because the Republican Party contains some members of the Ku Klux Klan—David Duke, a former Klan leader, was a Republican member of the Louisiana Legislature from 1990 to 1992—the Republican party shares the views of the Ku Klux Klan.

Finally, one insidious form of strawman distortion is taking part of an argument out of context. For example, suppose a member of the opposition party stated, “We must fight any administration budget proposal that reduces aid to the elderly.” A member of the administration might then argue, “How can we possibly develop a budget plan when the opposition party has resolved to fight any budget proposal the administration offers?” But of course that was notwhat the opposition stated; the speaker distorted the opposition’s position by taking part of it out of its context. Or imagine that a politician claims that we should first cut military spending, close tax loopholes, and cut many federal programs, and that if all those measures fail and if the budget deficit is still not substantially reduced, then we should raise taxes. If her opponent attacks her as advocating higher taxes, then her opponent is attacking a straw man.

Limits on Critical Thinking Critical thinking is very useful, in both adversarial and cooperative settings. But if you are dealing with someone who purposefully misrepresents your views and arguments, and has no interest in genuinely discussing the issues, then critical thinking runs into a brick wall. No matter how polished your critical thinking skills, you will not persuade 64 Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy a tornado to be less destructive; and if you encounter someone who refuses to reason, and who grossly distorts opposing views, then critical thinking cannot gain much traction.

Critical discussion of health-care policy is vitally important: the United States now spends better than 1/6 of its entire gross national product on health care, yet we have millions of people with no access to health care; health-care costs continue to rise, and major health problems often push hard-working families into bankruptcy. There are many legitimate questions about what direction the U.S. health-care system should go, and a lot of careful honest respectful argument is needed, both adversarial and cooper- ative, in order to find the best policies and the most effective reforms. But if the discus- sion is poisoned by gross and malicious distortions, those valuable debates cannot occur. One particularly vicious and obvious distortion was that some reformers wanted to set up “death panels,” which would review all older patients entering hospitals and choose which ones would live and which ones should be killed. Obviously no one ever proposed anything of the sort. Instead, a law had been passed—with bipartisan support, and signed by George W. Bush—that would require that all persons admitted to hospitals be offered the opportunity to complete a living will, in which they could specify the conditions under which they would and would not want treatment. For example, many people do notwish to be placed on a respirator; others, who have severe heart problems and perhaps other illnesses, prefer not to be resuscitated should they stop breathing, but instead be allowed to die peacefully; others wish to reject all artifi- cial tube feeding. On the other hand, some patients want to specify that they dowant to be resuscitated, placed on a respirator, and tube-fed; and they have the right to make that choice for themselves: a living will empowers them to make their own choices, rather than leaving such difficult choices to others when the patient is unconscious.

And if patients did not want to fill out a living will at all—“just leave all those choices to my children”—they could choose not to do so. Of course most patients dowant to make their own choices, and like the idea of having a living will. The problem is that many patients wanted to discuss the living will with their physicians and get further informa- tion: What does tube-feeding involve? Is it unpleasant? If I am placed on a respirator, what are my chances of ever breathing again on my own? But many insurance compa- nies were refusing to pay physicians for the time they spent discussing these important matters with their patients. The new proposal—that some people twisted into strawman claims about death panels—was only that insurance companies compensate physicians for these consultations with patients. When Congressman Barney Frank held a townhall meeting to discuss health-care reform, one questioner showed up with a picture of Barack Obama represented as Hitler, and—based on the death panel straw man— shouted this question at Congressman Frank: “My question to you is, Why do you continue to support a Nazi policy.” Barney Frank quickly recognized that this was not a case in which offering careful critical argument would be productive, instead respond- ing: “You stand there with a picture of the president defaced to look like Hitler and compare the effort to increase health care to the Nazis. Trying to have a conversation with you would be like trying to argue with a dining room table. I have no interest in doing it.” If you are faced with someone who genuinely misunderstands your perspec- tive and arguments, be patient in helping them understand your real view: just as you should be diligent in trying to understand and appreciate their actual arguments, in their strongest possible form. But if someone is dedicated to distorting your views, and is unwilling to honestly consider your actual arguments, then arguing with them is likely to be a useless endeavor.

In sum, if you remember to seek the strongest version of the arguments or positions you are criticizing or examining (follow the principle of charity), you will not be guilty of the strawman fallacy. And if you carefully question whether the attack on a position, argu- ment, or theory is presenting an accurateaccount of the target, then you will not be taken in by strawman arguments. Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy 65 Exercise 4-1 Pick out the distortionin each of the following strawman arguments.

1.The movement to allow prayer in public school classrooms is a major threat to our freedom. The advocates of prayer in school want to require every school child to participate in a Christian reli- gious program prior to every school day. It violates the rights of those who follow other religions, it violates the rights of those who do not want their children religiously indoctrinated, and it violates our basic principle of separation of church and state.

2.Those who oppose prayer in the classroom want to remove religion from American life. They want to make it impossible for children to learn anything at all about religio