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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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Text Font: 10/11 New Baskerville Copyright © 2012, 2005, 2001 by Pearson Education, Inc. All rights reserved. Printed in the United States of America. This publication is protected by Copyright, and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by anymeans, electronic, mechanical, photocopying, recording, or likewise. To obtain permission(s) to use materialfrom this work, please submit a written request to Pearson Education, Inc., Permissions Department, OneLake Street, Upper Saddle River, NJ 07458, or fax your request to 201-236-3290.

Many of the designations by manufacturers and seller to distinguish their products are claimed as trademarks. Where those designations appear in this book, and the publisher was aware of a trademark claim, the designations have been printed in initial caps or all caps.

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.

And, it comes from a trusted partnerwith educational expertise and an eye on the future.

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 religion in school, and they want to for- bid your child to privately murmur a silent prayer to herself before she eats lunch or gets on the school bus.

3.The anti-abortionists are really out not only to stop abortions, but also to stop every form of birth control except the rhythm method and abstinence.

4.Those people who push for gun control take an unreasonable position. They want to ban all firearms in the United States (with the only exception being for official military use), so that not even the police will be able to carry handguns in the line of duty, and law-abiding hunters and skeet shooters will have to give up their sports.

5.Those who oppose use of animals in biology labs have it all wrong. Students aren’t cutting up animals for fun; it’s a key part of their study of nervous systems, skeletal forms, and muscular systems. Students learn a lot from these studies—they aren’t just fun and games. Exercise 4-2 1.Smoking (and restrictions on smoking) is a controversial issue, and strawman arguments thrive on controversy. One dispute concerns whether we should tightenrestrictions against smoking in public places ( e.g., Should all areas of all restaurants be smoke free?). What are some of the strawman arguments (on both sides) you have heard concerning that issue?

2.Should there be tighter restrictions on promoting and advertising cigarettes to those under age 18?

What are some of the strawman arguments on that question?

3.The reckless financial practices of U.S. banking and lending institutions caused a major financial crisis in 2008, and the debate about how best to regulate those institutions is ongoing. What are some of the strawman arguments on both sides of that issue?

REVIEW QUESTIONS 1. What is the strawman fallacy?

2. Give an example of a strawman fallacy.

3. What is the principle of charity? Studyand Reviewonmythinkinglab.com NOTES 1Centuries ago, people with straws sticking out of their shoes could be found in the vicinity of law courts.

Wearing a straw in one shoe was the signal that the “straw shoe” was willing to go into court and swear to anything—for the right price. Thus a “straw man” would offer particularly weak or doubtful evidence. In the current meaning, a strawman argumentis the weakest possible version (perhaps a distorted version) of an argument, position, or theory.

2Quoted in Gideon’s Trumpet,by Anthony Lewis (New York: Vintage Books, 1966), p. 237.3U.S. Supreme Court, Bowers v. Hardwick,478 U.S. 186 [1986] 66 Chapter 4 The Second Deadly Fallacy: The Strawman Fallacy ReadtheDocumentonmythinkinglab.com Deborah Tannen, The Argument Culture, p. 352. As Deborah Tannen notes, the conditions of adversarial argument pro- vide fertile ground for the growing of strawman distortions and misrepresentations.

Bruce N. Waller, “Straw-Man Fallacy,” Coffee and Philosophy, pp. 10–12. This is a discussion, in dialogue form, of the temptations and dangers of the strawman fallacy.

Holland v. Illinois, 493 U.S. 474 (1990). In this case, Daniel Holland was convicted of several criminal offenses in Cook County, Illinois. He appealed his conviction on the grounds that— by use of peremptory challenges— blacks were unfairly excluded from the jury that convicted him. The majority of the U.S. Supreme Court upheld Holland’s conviction, on the grounds that the right to be tried by a jury that represents a fair cross-section of the community does not mean that the actual jury must be a fair cross-section, but only that the group from which potential jurors are selected must be a fair cross-section; and in particular, that there is no requirement that the actual jury mirror the makeup of the community, and that the important thing is only that the jury be impartial. Writ- ing for the minority, Justice Marshall argued that the majority had attacked a strawman position: the question is not whether an actual jury must “mirror” the makeup ofthe community from which it is drawn, nor whether the jury members are impartial, but whether the jury is seated in a way that is free of prejudice and discrimination.

Bowers v. Hardwick, 478 U.S. 186 (1986) was a famous case involving two Georgia men who were charged with sodomy under a Georgia law which made sodomy a crime punishable by up to 20 years imprisonment (under the Georgia law, heterosexuals engaging in consensual oral sex could also be imprisoned for 20 years; but in prac- tice, the law seemed to be aimed only at homosexual behavior). In the majority opinion (which upheld the law), the Court ruled that the Georgia law was not unconstitutional, because the U.S. Constitution does not recognize “a fundamental right to commit homosexual sodomy.” In dissenting from that majority ruling, the minority argued that the majority had attacked a straw- man position: no one was claiming that the U.S. Constitu- tion recognizes a right to commit homosexual sodomy; rather, the Constitution recognizes a fundamental right of privacy, and a right to be free of government control and interference in one’s private life. (In 2003, in the case of Lawrence v. Texas, the U.S. Supreme Court reversed itself, and overturned Bowers v. Hardwick, on basically the same grounds that Justice Blackmun had urged in his dissent in Bowers v. Hardwick.) INTERNET RESOURCES The “fallacy files” contains an interesting discussion of the strawman fallacy, with some good examples; it can be found at http://www.fallacyfiles.org/strawman.html. Another interesting brief discussion of strawman arguments is found in Sourcewatch, at http://www.sourcewatch.org/index. php?title=Straw_man. ADDITIONAL READING Good information on “Astroturf” organizations that are supported by PR firms while pretending to be objective citizens’ groups can be found in “Public Interest Pretenders,”inConsumer Reports, May, 1994. See also Chapter 7 of John C. Stauber and Sheldon Rampton, Toxic Sludge is Good for Yo u(Monroe, ME: Common Courage Press, 1995). What’s the Question? 5 ❖ ❖ ❖ The vital first step in critical thinking is to determine the exact conclusion.When partici- pants in an argument establish exactly what they are arguing about, they often find that they have been arguing at cross-purposes. When the issue is clearly defined, there is no real dispute. If a genuine difference remains, getting very clear on what’s at issue often leads to a way to resolve the differences. And if you have a tight grip on exactly what is at issue, you are much less likely to be deceived by argumentative tricks and pitfalls.

Becoming clear on the question is the first and perhaps the most important step in finding the right answer. When considering an argument, the essential question is this:

What is that supposed to prove? An effective argument in support of one conclusion may be a total washout in support of some other conclusion. For example, an argument describing the number of farmers, manufacturing workers, and warehouse workers who depend heavily on tobacco for their livelihood may be very effective in establishing that tobacco provides jobs for many people; however, the same argument will be useless in proving that tobacco is not a health hazard. An argument that cites the combined testi- mony of a number of eyewitnesses may be a strong argument for the conclusion that Alice did indeed drive away in Bob’s car. But the same argument may be quite inadequate to establish that Alice is guilty of auto theft, since that will also involve the question of whether Alice had Bob’s permission to take the car. A commercial might give you good reasons for using a fluoride toothpaste but fail to establish that you should be using a particular brand of fluoride toothpaste (rather than a cheaper brand with the same ingredients). An advertisement might effectively argue that being overweight is bad for your health without giving any reason to believe that the diet pills being advertised are either safe or effective. And the district attorney may clearly establish that a brutal and horrifying crime was committed, yet fail to prove that the defendant did it.

D ETERMINE THE CONCLUSION So when you reflect on an argument, consider exactly what it is claiming to prove. That is important any time you confront an argument, and it is critically important when you Listento the Chapter Audio on mythinkinglab.com 67 68 Chapter 5 What’s the Question? serve on a jury. The conclusions being aimed at by the prosecuting and defense attorneys are frequently quite complicated. For example, exactlywhat does the defense attorney attempt to prove? Exactly what is the conclusion for which the defense attorney is argu- ing? Stop and think about it for a moment. You are seated on a jury, and the case involves a charge of first-degree burglary: What exactly is the goal of the defendant’s attorney?

What is he or she attempting to prove to you? How would you state that conclusion?

The most tempting answer is that the defense attorney is attempting to prove that the defendant is innocent. That’s the most tempting answer, but it’s wrong. The defen- dant does not have to prove innocence, and if you consider the defense arguments as if they were aimed at proving the defendant’s innocence, then you will consider them badly.

What is the defense attorney trying to prove? The second tempting answer is that the defense attorney is trying to establish that the defendant is not guilty.That’s especially tempting, since if the defense attorney is successful in convincing the jury, then that’s exactly the verdict the jury will return: not guilty. Even so, that is not actually what the defense is trying to prove, and it is not the question that you—as a juror—should be considering.

What conclusion is the defense attorney trying to establish? Just this: that the defen- dant has notbeenprovedguilty. That’s all. But that’s important. A defense argument might fail to prove that the defendant is innocent of the crime but still succeed in establishing that the defendant’s guilt has not been proved. For example, if the defense can show that the prosecution’s key eyewitness is unreliable, that may knock an unbridgeable gap in the prosecution’s attempt to prove guilt. Thus that may be quite enough to legitimately convince you to return a verdict for the defense: a verdict of acquittal, a verdict of not guilty, a verdict that the defendant has not been proved guilty. In this case, the defense failed to establish that the defendant is innocent of the crime, and if you treat the argu- ment of the defense as if it were tryingto establish innocence, you will conclude that it fails (for it does fail to establish the defendant’s innocence). But that would be a grievous mistake, for the argument doesaccomplish its actual goal: It establishes that the defendant has not been proved guilty.

Consider this example. Imagine that you are a member of the jury in a case in which the butler is being tried on charges of first-degree murder. You are convinced by the evidence that either the butler or the gardener did the dastardly deed; you aren’t quite sure which, but you think that probably it was the butler. In those circumstances you must find the butler not guilty. Clearly you are not concluding that the butler is innocent, or even that the butler is not guilty (you think he probablyis guilty). Rather, you are conclud- ing that the prosecution has failed to conclusively prove that the butler is guilty.

If stating the conclusion of the defense attorney’s arguments is tricky, it would seem that stating the prosecutor’s conclusion is easy. The conclusion of the prosecution’s argu- ment is: The defendant is guilty. But it’s not quite as simple as it sounds.

Consider the seemingly clear and straightforward crime of breaking or entering.

Exactly what must the prosecution prove in order for you to reasonably conclude that the defendant is guilty of breaking or entering? The obvious answer is that you must be convinced the defendant really did break or enter. That seems plausible enough, but it’s not even close. One may be guilty of breaking or entering without either breaking or entering; and one may be notguilty of breaking or entering when one both broke and entered.

W HAT IS THE EXACT CONCLUSION ? This sounds confusing, and it is. To avoid this confusion, you must be clear on the exact details of the prosecution’s conclusion. (Roughly, the prosecution’s conclusion is that the defendant is guilty of breaking or entering; but substantially more detail is required.) Exactlywhat is involved in that conclusion may vary from state to state. As a jury member, you are not expected to know the law on breaking or entering, but it is most important to listen carefully as the judge explains exactly what the prosecution must establish to prove that the defendant is guilty of breaking or entering. In North Carolina, for example, the Chapter 5 What’s the Question? 69 prosecution must establish four things to prove that the defendant is guilty of breaking or entering, and this is how the judge would instruct you if you were a juror in a North Carolina breaking or entering case: Now I [the judge] charge that for you [the jury] to find the defendant guilty of felonious breaking or entering, the State [the prosecution] must prove four things beyond a reason- able doubt.

First, that there was either a breaking (which simply means the opening or removal of any- thing blocking entry) or an entry (walking or reaching in would be an entry) by the defendant.

Second, the State must prove that it was a building that was broken or entered.

Third, that the owner or tenant did not consent to the breaking or entering.

And fourth, that at the time of the breaking or entering, the defendant intended to commit some specific felony. 1 Obviously what the prosecution is attempting to prove is rather complex. In a later chapter, we will examine that conclusion in more detail. Right now the points to note are that con- clusions are very important, that they often are not at all obvious, and that one must care- fully determine the exact conclusion of each argument.

Careful attention to conclusions is also essential outside the courtroom. Consider an argument that occurs in advertisements for Total ®2 cereal. Some poor sod sits down to a nice bowl of raisin bran, and the announcer spoils it by telling her or him: “Hope you’re hungry, cause you’ll have to eat four bowls of raisin bran to get the vitamin nutrition in one bowl of Total.” We are then informed that “Total has 100% of the daily recommended allowance of all these vitamins and iron,” while the disparaged raisin bran has only about 25% of the recommended daily allowance. When the cereal eater is next seen, he or she is dutifully munching Total, having concluded that it’s better to eat one bowl of Total since it has four times the vitamins and iron of raisin bran. At that point the announcer chimes in with the happy ending: “That’s the Total difference.” What’s the conclusion? The conclusion of the argument is roughly the following:

Total is more nutritious than raisin bran. And keeping that conclusion clearly in view, we can evaluate the argument: Does it establish that Total is a more nutritious cereal than raisin bran? The main premiseof the argument (i.e., the main reason given in support of the conclusion) is that Total contains 100% of the recommended daily allowance of nine vitamins and iron, and raisin bran contains only 25%. Now, doesthat premise establish that Total is more nutritious? Obviously, not by itself. Take a moment to think about what other premises would have to be added.

In order to move from “Total has more vitamins than raisin bran” to “Total is more nutritious than raisin bran,” an additional premise is necessary: A cereal that contains more vitamins is more nutritious than a cereal containing fewer vitamins. And if we add that necessary but unstated premise to the argument, then the argument is valid(i.e., the conclusion will follow from the premises). But now we must decide whether that addi- tional premise is true. Is it true that the cereal with more vitamins is more nutritious? No, it’s false, because clearly there is much more to good nutrition than vitamins. For exam- ple, a cereal might contain lots of vitamins yet be nutritionally abysmal—because it has little or no fiber (and fiber is one of the main things you are supposed to get from cereal) and because it is very high in sugar. (In fact, when Consumer Reportsdid a study of the comparative nutritional value of various cereals, Total ranked about average. 3) So that necessary premise—the cereal with more vitamins is more nutritious—turns out to be false, and the argument to establish the superior nutritional value of Total is thus unsound.Or you could simply take the argument as given, without the added false premise. In that case the argument will be invalid—the conclusion doesn’t follow from the premises—and thus is still unsound. Two morals can be drawn: (1) Don’t be misled by deceptive advertising, and (2) whenever you are evaluating an argument—whether in a jury room or watching television or reading an editorial—first pick out the conclusion of the argument and then decide how well the argument supports that conclusion. 70 Chapter 5 What’s the Question? Recognizing the conclusion is always essential to evaluating an argument, for arguments are not good or bad in absolute terms: An argument is good only if it strongly supports its specific conclusion. A very impressive argument may give strong grounds for one conclusion and be totally useless and irrelevant for establishing some other conclusion. Imagine a prosecuting attorney who—in his or her final argument to the jury—argues quite convincingly that crime is doing terrible damage to our fair city, that criminals must be put behind bars for the protection of society, and that it is the duty of all good citizens to oppose crime. Those are impressive points. But since theissueis whether the defendant committed the crime (Isthe defendant guilty of the crime with which he or she is charged?), those impressive premises are useless in establishing that conclusion. If you keep in mind the conclusion—the question at issue— you will not be misled by such demagoguery. Exercise 5-1 1.Sometimes politicians who are tried on criminal charges but are found not guilty claim that this verdict proves they are innocent. What is wrong with that claim? Exercise 5-2 What is the exact conclusion of each of the following arguments? (The conclusion may not be stated precisely; in fact, in some of the arguments it may not be stated at all, but only implied.) It is important that you state it very carefully, perhaps more carefully than it is stated in the original argument. There is not a single exact way the conclusion must be stated; different people may phrase the conclusion differently. It is, however, important to specify the key assertion being made in the conclusion. That is, exactly what does the arguer want to convince you of?

1.When we consider how splendidly the planets are arranged in their orbits, how the Earth is posi- tioned at the right distance from the Sun, how the eye is designed to see and the hand is fashioned for grasping, we must conclude that it was all arranged by some higher, greater intelligence.

2.Small farms are probably not the most efficient way to produce agricultural products; but efficiency isn’t everything. We must also consider the heartbreak of those who lose farms that their families have operated for generations, the satisfaction people receive from owning and operating their own farms, the independent lifestyles of those who run their own farms and their own lives.

Efficient or not, we must find some way to sustain and support the proud tradition of small farms in the United States.

3.Capital punishment requires that a number of people participate in deliberately putting a healthy human being to death. Participating in such a process—dragging a condemned human to an execution chamber, strapping that person into an immobile position, administering the killing jolt or the lethal potion, officially witnessing the whole ghastly process—must inevitably have the effect of brutalizing those who participate, making them more callous and blunting their human sympathies. Even if capital punishment could be justified on other grounds, that is too high a price to pay.

4.We should be developing a power source that will last, that will not be depleted. We shall eventually run out of coal, natural gas, petroleum, and even uranium; but we will never run out of sunlight. Or at least, when the Sun finally does burn out, there won’t be any humans left to worry about power needs.

5.There are billions of stars in our galaxy, and it seems doubtful that of all the stars in the Milky Way, only our Sun would have a planet on which intelligent life evolved. Given the strong possibility that intelligent life evolved elsewhere in our galaxy, we ought to consider the possibility of contacting intelligent life forms in other parts of our galaxy. If those other intelligent life forms are only a few million years ahead of us in evolutionary terms, then there is a strong possibility that they have solved many of the problems facing our civilization—such as how to avoid destroying ourselves Chapter 5 What’s the Question? 71 through nuclear war or environmental pollution. Given what we currently spend on nuclear weapons of potential destruction, shouldn’t we be willing to invest a fraction of that amount in aresearch program to try to find some signal from other intelligent life forms in our galaxy?Compared with the benefits we might ultimately derive, the cost is quite low. 6. Look, I don’t know who robbed the First Federal Bank last September. And the district attorneydoesn’t know, and my client (the defendant in the bank robbery case) doesn’t know, and you, the conscientious and careful members of the jury, don’t know who robbed the bank. It would benice to get that question cleared up. I sincerely wish I could tell you who did rob First Federal, and we could send the robber to jail, where robbers belong. But we don’t know who committed thecrime—and that is part of being mature, patient, realistic adults: Sometimes we must live withthe fact that we do not know the answers to important questions. But there is one important thing that you and I and the judge and indeed all good citizens of these United States do know: Every person has the right to be presumed innocent unless he or she is proved guilty beyond a reasonabledoubt. And it is that certainty, a certainty that is the bedrock of our justice system, that I know eachof you jurors will keep in mind as you consider your verdict. 7. We shall never get anywhere debating the moral right or wrong of abortion. The issue is tooembroiled in conflicting religious beliefs and societal traditions. And besides, there is no agree-ment about the best way to pursue answers to moral questions: There is no agreed-upon “ethicalmethod” comparable to the scientific method. So we should leave the question of abortion to eachperson’s individual conscience or faith, because certainly it would be foolish to attempt to enforcea law on an issue on which there is no moral agreement in society. For when we try to force lawsupon people when there is no underlying moral consensus in support of those laws, we simplyencourage lawlessness and disrespect for the law. 8. When suspected witches were tortured, they usually confessed to their crimes—and named otherwitches as well. That’s just one of the problems with torture: it often yields information, but thatinformation is likely to be false; and it is likely to draw in as many innocent people as guilty ones. Weget better and more accurate information when suspects are treated with dignity and respect, and wegain their confidence and cooperation. But even if torture worked, it is a line we should never cross.First, we should never ask any of our citizens to become torturers: to deliberately inflict severe painon another person. There is no doubt that torture causes severe damage, if not physical thencertainly psychological, to those tortured. But those who do the torturing are also damaged: askyourself, would you want your son or daughter to become a torturer? Would you ever again feelcomfortable with yourself if you had engaged in purposefully and systematically inflicting severe—bydesign, intolerable—pain on a fellow human? And finally, even if torture were effective in gaining some information, what about its larger impact? If you, or one of your friends, or your parents oryour children, were subjected to torture by another country, would you ever forgive that country? Would you be more likely to cooperate with and help that country in the future, or would you doeverything you could to strike back at the country that subjected you or your loved ones to such crueland degrading treatment? Exercise 5-3 Consider the Verdict The defendant, Diana Whetstone, is accused ofhaving committed the felony of theft by deception(or false pretenses misappropriation). Whetstonehad approached the Spring Hill PresbyterianChurch in Spring Hill, New Virginia, and offeredto supply pictorial directories for the church andits members. According to the arrangement, eachmember of the church who wished to have his orher picture included in the directory would pay$25 and would be photographed by Whetstone.Each person photographed would receive a set ofphotographs, plus a pictorial church membershipdirectory. For every six members photographed,Everett Collection / Shutterstock 72 Chapter 5 What’s the Question? the church would receive a free directory. There would be no cost to the church. Whetstone agreed to deliver photographs and directories within 6–8 weeks of the scheduled photography session. On August 15, 2010, church officials signed a contract with Whetstone to that effect, and on the scheduled day more than 100 members had photographs made, paying Whetstone in excess of $2,500.

Twelve weeks after the photographs had been made, church officials attempted to contact Whetstone to inquire about the delivery of the photographs and directories. Whetstone replied that there had been some technical difficulties with printing, but the photographs and directo- ries should be available within 4–6 weeks. After an additional 7 weeks, church officials again attempted to contact Whetstone, but with no success. After waiting an additional 3 weeks, church officials contacted police and filed criminal charges against Whetstone for theft by deception.

Whetstone testified that she had intended to fulfill her contract to have the directories printed and the photographs made, but financial difficulties had plagued her. Shortly after the photography session at Spring Hill, her car had broken down, and she had had to purchase a new one. The down payment and other living expenses had taken all her funds, including the money paid by members of Spring Hill Presbyterian. She had attempted to raise money through additional photography and directory work for churches, but had been unable to secure any additional contracts for directories. She had contacted a photo processing company—Photo Power, in New Richmond—and asked about arrangements for having photos processed and directories printed, but they had refused to do the work without substantial prepayment, and (Whetstone testified) she had no funds for that purpose. (A representative of Photo Power testified that Whetstone had asked them about having directories printed, was told the cost and the prepayment requirement, and had had no further contact with them.) Whetstone testified that she had avoided contact with Spring Hill Presbyterian because she was embarrassed and because she still hoped eventually to find the money to have the directories printed.

After the testimony (by church members, Whetstone, and the Photo Power representative), the prosecution and defense present closing arguments. The prosecution contends that this is a clear case in which an unscrupulous individual set out to deceive and defraud a trusting and thus vulnerable group of people—including elderly church members with very little money—stealing more than $2,500 from them through despicable trickery. The defense contends that the defendant is an incompetent businesswoman who is lousy at planning and organizing and who also encountered bad luck, but who never intentionally deceived anyone. After closing arguments, the judge instructs the jury in the law: A person is guilty of theft by deception if he purposely obtains property of another by deception.

A person deceives if he creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. 4 Furthermore, the judge instructs, the prosecution has the full burden of proving beyond a reason- able doubt that theft was committed. The defendant does not have to prove innocence. If you have a reasonable doubt about the defendant’s guilt, you must find her not guilty.

The jury retires to deliberate its verdict. One of the jurors states, Just think of all those unfortunate people, who trustingly paid their money for their church directo- ries, went to tremendous trouble having their pictures taken, waited and waited for a directory, and then had their hopes and trust cruelly destroyed. Another juror adds, Look, she promised to deliver directories, she took their money; no directories. She’s guilty. And another juror says, We have to think about this carefully. Let’s get clear on exactly what’s at issue. Preciselywhat is the ques- tion that must be resolved in this case? What exactly is the prosecution claiming? What is the defense claiming? What is the key issue? How would you answer those questions? And having answered them, how would you vote: guilty or not guilty? Chapter 5 What’s the Question? 73 Exercise 5-4 Consider the Verdict Look back at the law on breaking or entering. Ed Quarry, age 35, is charged with breaking orentering into the Tau Tau Tau fraternity house. Itis not disputed that last October 14, a Saturday,Ed Quarry entered the fraternity house. Thehouse was deserted at the time, with all thefraternity brothers attending the football gameon campus. When one of the fraternity brothersreturned to the house, he found Ed alone in thehouse common room, with his hands on a stereoreceiver. When asked what he was doing in thehouse, he said he had heard there was to be aparty there, and he was checking to find what time the party would start. However, he could not name any of the people in the house, and he wasnot a student at the university. The fraternity brother called the police, who arrested Ed and chargedhim with breaking or entering. The fraternity house was not locked when Ed entered; no one is surewhether the door to the house was open or closed. The prosecution maintains that Ed intended tosteal stereo equipment from the fraternity house. The defense denies that Ed was intending to stealanything; instead, the defense says, he was just waiting to find out more details about a party he hadheard about. However, Ed’s intentions are not the focus of the defense. The fraternity brother whofound Ed in the house, Rob Sawyer, has testified as a prosecution witness. Rob testifies that he foundEd in the house, and that no one else was in the house at the time. He also testified that when he sawEd, Ed had one hand on the stereo receiver, and the other was behind the receiver, near the wires tothe speakers. Furthermore, he testified that he did not know Ed, and that Ed was unable to nameanyone who lived in the house, or anyone who had lived in the house recently. The prosecution endsits questions of Rob Sawyer, and the defense attorney, Janice Carson, begins her cross-examination: “Mr. Sawyer, was the door to the fraternity house locked when everyone left for the football game?” “No, we didn’t lock it. Some of the doors to the brothers’ rooms were locked, but not the outside door.” “Tell me, Mr. Sawyer, what kind of lock is there on the front door?” “I’m not sure. I guess it’s just a regular door lock, maybe a dead bolt.” “You’re not sure. Perhaps if you looked at your front door key, maybe that would help. What does it say on your front door key?” “I don’t have a front door key.” “You don’t have a key to the front door, Mr. Sawyer? You live there, don’t you? How do you get in?” “Well, we never keep the front door locked.” “Never keep it locked. Um hmm. Mr. Sawyer, I’m sure you have lots of friends. When your friends come over to your fraternity house looking for you, how do they locate you? Do they knock onthe front door, and then your butler informs you that you have guests?” “No, we don’t have a butler.” “Well, what happens then? They knock at the front door, and one of your fraternity brothers lets them in, tells you your friends have arrived?” “No, they just come in and look for me, maybe walk back to my room.” “And if you’re not in your room, they might look for you in the kitchen? Or just sit down and wait for you?” “Yeah, sure.” “Mr. Sawyer, do you ever have parties at the Tau Tau Tau house?” “We have a few.” “You’re under oath, now, Mr. Sawyer. Wouldn’t it be more accurate to say you have a lot? ” “Yeah, I guess so.” “How do you invite people to your parties? Do you send out engraved invitations?” Everett Collection / Shutterstock NOTES 1North Carolina Conference of Superior Court Judges and North Carolina Bar Association Foundation, North Carolina Pattern Instructions—Criminal: Felonious Breaking or Entering.

2Total is a registered trademark of General Mills, Inc.3“Breakfast Cereals,” Consumer Reports,Vol. 51, no. 10 (October 1986), pp. 628–637.4Adapted from Model Penal Code and Commentaries, by the American Law Institute. 74 Chapter 5 What’s the Question? “No, no invitations. For most parties we just put the word out, people show up.” “So you don’t stand at the door checking invitations. People just walk in, that right?” “Yeah, that’s right.” “That’s very democratic of you, Mr. Sawyer. Do you ever have parties outside?” “Yeah, we have outside parties, sometimes after football games.” “What do you serve at your outdoor parties, Mr. Sawyer? What is the usual beverage? Milk? Fruit punch?” “Usually we get a keg, put it on ice.” “Sometimes more than one keg?” “Sometimes.” “Mr. Sawyer, with all this beer drinking, I assume that sometimes your guests have to use the bathroom, don’t they?” “Yeah, of course.” “Well, without going into detail, I assume many of your guests use the bathroom facilities in your fraternity house, right?” “Sure.” “And they don’t get anyone’s specific permission to go in your house and use your bathroom, do they? People show up at your parties, many of those being people you don’t even know, right? And they are welcome to just walk on into your house when they need to use the bathroom, is that right?” “Sure, that’s right.” Defense attorney Carson asks to approach the bench in order to make a motion to the judge. “Your Honor, I move for a dismissal of these charges. One essential element of being guilty of breaking or entering is that the defendant did not have permissionto be in the building. But from the sworn testimony of the key witness for the prosecution, Mr. Sawyer, it is perfectly clear thateveryonehad permission to be in the Tau Tau Tau house. People just walked into the house, went down the halls, looked for people in the house: that was expected, that was the customary practice. They had a party, everyone came, the house was open if anyone needed to go to the bathroom, or get some ice, or whatever, you just walked in. That was the practice, Your Honor:

everyonewas welcome at Tau Tau Tau, you didn’t have to knock. They wouldn’t have known what to make of it if you had knocked on their front door. Your Honor, everyonehad permission to enter Tau Tau Tau; so obviously Ed Quarry had permission to enter the house, and he cannotbe guilty of breaking or entering.” So, how do you rule, Your Honor? Would you dismiss the breaking or entering charges against Ed Quarry? Suppose that you were the district attorney, and you are trying to preventthe charges from being dismissed. How would you argue to the judge that the charges should notbe dismissed?

REVIEW QUESTION 1. What is the key difference between the main conclusion of the prosecution’s argument and the overall conclusion of the arguments by the defense? Studyand Reviewonmythinkinglab.com Chapter 5 What’s the Question? 75 Holland v. Illinois, 493 U.S. 474 (1990). This is a challenging case, in which the majorityopinion of the Supreme Court defines the key question in one way, and the minorityopin- ion argues that the real question at issue is quite different.

Take your seat on the U.S. Supreme Court, and draw your own conclusion concerning what is actually at issue.

Castaneda v. Partida, 430 U.S. 492 (1977). This case involves the question of whether discrimination wasinvolved in the selection of members of a grand jury that was impaneled in the state of Texas. Though the basic issues are relatively clear, it is very important to note preciselywhat is the question before the U.S. Supreme Court in this case; that is, if you were a justice hearing this case, exactlywhat is the question on which you would be ruling? ReadtheDocumentonmythinkinglab.com 76 Relevant and Irrelevant Reasons 6 ❖ ❖ ❖ The defendant is on trial for murder. The prosecuting attorney, in her arguments to the jury, argues that this murder was one of the most brutal, heartless, horrific crimes she has ever prosecuted. Is her argument relevant or irrelevant?

It depends. If the question is whether the defendant actually committed the foul crime—the defense is claiming that this is a case of mistaken identity—then the prosecutor’s arguments are irrelevant: the question is not whether the murder was brutal (everyone agrees that it was) but whether the defendant is the person who committed the crime. Arguing that the crimeof which the defendant is accused is particularly heinous when the questionis whether the defendant actually committed the crime is an irrelevant reasonargument. But if the jury members are not careful, they will find themselves agreeing that the crime really was awful, and then concluding—on the basis of that irrelevant reason—that the defendant must be guilty.

Suppose, however, that the defendant has already been convicted of this terrible crime, and now we are in the separate sentencingphase of the trial: This is a case of first- degree murder, and the crime is eligible for the death penalty; and so followingthe trial to determine whether the defendant is guilty, there will be a second trial in which the jury must decide whether this crime was so terrible that it qualifies for capital punish- ment. In that case, the prosecutor’s arguments about the brutal nature of the crime will be relevant.The moral of this story is an important one: When trying to decide whether the reasons given in an argument are relevant or irrelevant, firstyou must determine carefully the exact conclusionof the argument, that is, what question is really at issue. An argument is considered relevant or irrelevant only relative to a conclusion.

An argument that may be vitally important for one conclusion will be utterly irrelevant to another. Of course the fact that the murder was brutal is not absolutelyirrelevant: a brutal murder is a horrible thing. But the brutality of the murder isirrelevant if the question at issue is whether the defendant committed the murder or is an innocent victim of mistaken identification.

“The U.S. demand for electrical energy will steadily increase over the next three decades.” Is that claim relevant, or irrelevant, to a debate about nuclear energy? Listento the Chapter Audio on mythinkinglab.com Chapter 6 Relevant and Irrelevant Reasons 77 That is a trick question. It is impossible to say whether a reason or a premise is relevantuntil the exact conclusionhas been specified. Information that is of vital importance in proving one conclusion will be irrelevant to some other conclusion. In this case, what is the argument about? If the argument concerns the safetyof nuclear power, then premises concerning increased need for power will be irrelevant. If, however, the conclusion being debated is a more general one—“the development of more nuclear power plants is (is not) a good thing”—then data concerning projected power needs will certainly be relevant.(Of course a premise can be relevantwithout being conclusive.In a debate over whether to build more nuclear power plants, it will certainly be important to know whether more power is needed: If no new power sources are required, then that will count against building power plants of anytype, including nuclear. But you might still conclude that we should notbuild more nuclear power plants—perhaps they are simply too dangerous—even though you recognize that the increased demand for power is a relevant consideration.) If the issue is whether nuclear power plants pose a serious threat to life and health, considerations of need for electrical power are irrelevant.(They are not alwaysirrelevant: Problems of gener- ating sufficient power for an industrialized society are real and important. But such consid- erations are irrelevant to this specificissue of nuclear power plant safety.) PREMISES ARE RELEVANT OR IRRELEVANT RELATIVE TO THE CONCLUSION The key point to remember when considering the relevance or irrelevance of premises is this: Premises, reasons, and facts are not in themselves relevant or irrelevant; rather, a premise, fact, or reason is relevant or irrelevant relative to a specific conclusion.So before you can start judging the relevance or irrelevance of premises, you must first be sure of exactly what conclusion is at issue.

When examining an argument, firstdetermine the precise conclusion. Then, when considering the premises of the argument—the reasons given in support of the conclusion—ask yourself the following questions: Would the truth of this premise make the conclusion more likely? Would the falsity of this premise make the conclusion less likely? If the answers to those questions are yes, then the premise is relevant and actually contributes something to the argument; if the answers are no, then the premise is irrelevant—chuck it aside, for it can only confuse the issue.

Many long and fruitless arguments result from disputants plunging into argument before determining exactlywhat the argument is about. Consider this example from a Milwaukee jury room. In Wisconsin it is a felony for a person previously convicted of a felony to knowingly possess a firearm. Under the Wisconsin law it doesn’t matter what the intentions of the defendant were in buying the gun. Whether the convicted felon bought the gun for target practice or robbing banks or a wall decoration is irrelevant to whether he or she violated the law. But even in such a seemingly straightforward case, distinguishing relevant from irrelevant reasons can be very complicated. In one case, 2the defendant, a man named Reid, was charged with the crime described above: being a convicted felon knowingly in possession of a firearm. The Wisconsin law states that a person is guilty of that crime if he or she (1) has been convicted of a felony; (2) possesses a gun; and (3) knows that he or she possesses a gun (if a convicted felon bought a sealed trunk at an auction without Somebody Has to Pay A nineteenth-century Devonshire jury found the defen- dant guilty of stealing hay and added the following note: “We don’t think the prisoner done it, but there’s been a lot taken hereabouts by someone.” 1 78 Chapter 6 Relevant and Irrelevant Reasons knowing it contained a pistol, then that person would not know that he or she possessed a gun and thus would not be in violation of the law). Reid’s case was unfortunate. Reid had been convicted of a felony many years earlier. After his release from prison, he had lived a number of years without getting into any trouble. He was a man of low intelligence, a functional illiterate, apparently harmless. He had seen an advertisement for a “training program” for private investigators. Reid mailed in a few dollars and received a “private detective’s badge,” which he always carried. Reid desperately wanted to find work that would allow him to help people (“Like that man on television, the Equalizer,” as Reid stated). In pursuing this detective fantasy, Reid bought a pistol. While in a Milwaukee court- room (he was unemployed, and he often passed his days around the courts), a sheriff’s deputy asked Reid for identification. Reid proudly showed the deputy the receipt for the pistol he had bought (the receipt had Reid’s name on it). The deputy asked Reid to go home, get his pistol, and turn it in to the sheriff’s office. Reid immediately did so—and was arrested and held in jail. When the case went to the jury they debated long and hard about their verdict.

The jury debate focused on Reid. Many jurors argued that Reid was harmless, hardly able to understand the charges against him, certainly not aware that he was breaking the law by purchasing a handgun (the law had been passed years after Reid was released from prison, and Reid was no longer reporting to a parole officer) and with no intention of breaking the law, carried away by the hopeless fantasy of becoming an important and respected private detective who would fight for those who needed help, a man whose goal was to help others and gain respect for himself rather than to commit a crime or cause harm. To many jurors, it seemed needlessly cruel to convict this unfortunate man of the crime. Other members of the jury saw it differently: Reid’s misfortunes are sad but irrelevant. Under the law there are only three conditions for being guilty of this charge:

The defendant must be a convicted felon, must possess a gun, and must know that he is in possession of a gun. That’s all. Reid’s intentions may be good, he is probably quite harm- less, and certainly his lot has been a hard one, but all those issues are irrelevant. As the law is written, Reid is guilty.

In fact, Reid’s intentions and misfortunes were relevantto the conclusion being argued for by one side, and they were irrelevantto the conclusion favored by the opposing jurors. One group of jurors was arguing that Reid’s intentions were irrelevant because intentions are irrelevant to whether one is guiltyunder this particular law. The evidence presented in court showed beyond a reasonable doubt that Reid violated the law, and our task as a jury is simply to decide whether or not the state has proved that Reid violated the law; therefore, we should find Reid guilty.

The other jurors agreed that Reid had violated the letter of the law, but they were claiming that in this case the exact application of the law led to an injustice. Reid was guilty of breaking the law—but Reid is also a special case in which it would be better (more just) to make an exception. Therefore, these jurors argued, Reid should be found not guilty.

What are the different conclusions for which the two groups are arguing? One group is saying that Reid should be found guilty, and the other is saying he should be found not guilty. That’s true, but it is not very helpful. The different conclusions must be stated more precisely. One group is arguing: Reid is guilty under the law, andouronly role is to determine legal guilt or innocence (not to decide whether this result is fair or just or desirable). The other group is arguing: Reid is guilty under the law, butwe as a jury have a further obligation to decide whether applying the law in this case is fair and just.

Once the conclusionsof the two groups are specified, it is possible to see the issue clearly.

Both groups agree that Reid is guilty under the law. The issue is not Reid’s guilt or innocence. Furthermore, both groups agree that Reid is an unfortunate and probably harmless person and that convicting him is very harsh. Exactly where is the disagreement?

The disagreement is over the role of the jury. One group maintains that the function of the jury is strictly as a fact finder: If the jury is convinced that the prosecution proved the defendant meets all the necessary conditions for being guilty of breaking a specific law, Chapter 6 Relevant and Irrelevant Reasons 79 then the jury must return a verdict of guilty. The other group believes that the jury has a role in addition to that of fact finder: The jury must decide whether a law or its particu- lar application is just, and must prevent injustices from occurring. When the different conclusions are specified, arguments can be focused on what is actually at issue. Should the jury stick to fact-finding, and not question whether a particu- lar law or application of law is just (leaving such issues to legislative bodies)? That is not an easy question. There are some strong arguments both pro and con. So becoming clear on exactly what is at issue does not mean that it will then be easy to settle the issue.

However, it does mean that arguments can be directed to what is really at issue. Both sides agree that the defendant is guilty—that is no longer the point, so at this stage of the argument, points to show that the defendant is guilty just confuse the issue. Both sides agree that strict application of the law in this case is very harsh—but that also is now beside the point. The question is what role the jury should play in our system of justice.

That is what the disagreement turns on, and that is what should be argued. The Milwaukee jury frequently discussed whether the defendant Reid knew that he was breaking the law. All agreed that he probably did not know; some insisted that that was irrelevant, and others that it was relevant and important. Again, the relevance or irrelevance of that point depends on what is at issue. It is irrelevant to the question of whether or not Reid actually broke the law (the law says it is a crime for a convicted felon to knowingly possess a gun; it does not require that the person breaking the law know that he or she is breaking the law). However, it is relevant to the question of whether convicting Reid would be treating him unjustly (“It’s not really fair to convict him; he had no idea he was doing any- thing wrong”). Again, what points are relevant and are not relevant is a function of the con- clusion. (Incidentally, in the actual case in Milwaukee, the jury members finally decided that strict application of the law in this case was unjust, and that as a jury they should prevent un- just applications of the law, and they voted unanimously for a not guilty verdict.) How Do You Rule?

In its 1996 session ( Jaffee v.Redmond, No. 95–266), the U.S. Supreme Court considered whether a licensed clinical social worker who had provided psychothera-peutic counseling to a police officer could be com-pelled to reveal in court the contents of those sessions.The clinical social worker (and her client) claimed thatthe conversations between social worker and client wereprotected by a “psychotherapist privilege,” similar tothe lawyer–client privilege or doctor–patient privilege,under which lawyers and doctors cannot be required toreveal in court what their clients and patients have toldthem during professional consultations. The majority of the Supreme Court ruled in favor of this psychothera-peutic privilege, and the Court’s ruling was that thesocial worker could not be required to give evidenceagainst her client. Justice Scalia dissented, and arguedthat there should be no psychotherapeutic privilege forlicensed social workers. During the course of hisdissenting argument he made the following comments: When is it, one must wonder, that the psychothera- pist came to play such an indispensable role in the maintenance of the citizenry’s mental health? For most of history, men and womenhave worked out their difficulties by talkingto . . . parents, siblings, best friends and bar-tenders—none of whom was awarded a privilegeagainst testifying in court. Ask the averagecitizen: Would your mental health be moresignificantly impaired by preventing you fromseeing a psychotherapist, or by preventing youfrom getting advice from your mom? I have littledoubt what the answer would be. Yet there is nomother–child privilege. What is your evaluation of Justice Scalia’s argument? Is it a good one, or is it fallacious? bikeriderlondon / Shutterstock 80 Chapter 6 Relevant and Irrelevant Reasons Consider the Verdict Suppose that the jury in the Reid’s case was not con- vinced that Reid was guilty as charged, and were instead debating that question ( not the issue of whether the guilty verdict is just, but rather the question of whether Reid is or is not actually guilty of the crime). Which ofthe following reasons are relevant and which areirrelevant to the conclusion that Reid is or is not guilty? 1. Reid is not guilty because: He did not know that he was breaking the law; he obviously wasn’t evenaware that there was a law against a convictedfelon possessing a firearm; if he had been awareof the law, he would not have shown the receiptfor purchase of the gun to a sheriff’s deputy.Relevant or irrelevant ? 2. Reid is not guilty because: He did not really know that he possessed a firearm. True, he bought thegun, but his mental faculties were so limited thathe couldn’t distinguish a gun from a stage prop;it was like a child buying a toy—a detective has agun, he wants to be a detective, he buys a gun—but he doesn’t have sufficient understanding toreally know that he has a gun, since his thoughtcategories are just too crude. Relevant or irrele- vant? 3. Reid is guilty because: He possesses a gun; he bought it, owns it, knows where to find it, is ableto bring it in to the sheriff’s office when he is toldto do so. Relevant or irrelevant? 4. Reid is guilty because: He is clearly a threat to society. Look, maybe Reid is not terribly bright,but that is cold comfort. Here’s a guy who is notvery bright, and likes to buy guns. We ought toget him off the streets for the protection ofsociety. What if he decides to act like his hero, theEqualizer, and starts assaulting people? Relevant or irrelevant? If you were on the jury for the Reid trial, would youprefer that the deliberations proceed in a “verdict-driven” (adversarial) or “evidence-driven” (coopera-tive) style? The Scent of Red Herring In 1986, the National Coalition Against Pornographyran full-page advertisements arguing that pornographyshould be banned and attempting to answer the argu-ments of those who oppose censorship. One section ofthe advertisement was headed “Distortions hard-corepornographers want you to believe—and facts you needto know.” The second item under that heading was thefollowing: DISTORTION #2: Banning any pornography, no matter how vile or degrading, amounts to censor-ship that is not in keeping with the American way. FACT #2: The effort to eliminate hard-core pornography is not censorship. It is enforcement of the laws passed by our elected officials and interpretedby our duly appointed Supreme Court justices. That is the very essence of democracy in action! Many forms of speech are forbidden by law for the good of all. You can’t shout “Fire!” in acrowded theater. Revealing national secrets to foreign governments is illegal. Slander and libelare against the law, and so is false advertising. There are also effective laws prohibiting obscenity. So when judges and juries upholdthose laws, it is not censorship. It is responsibledemocracy! 3 Leave aside questions about whether that counts as “responsible democracy” and whether laws banningpornography are comparable to laws against libel andfalse advertising. Instead, focus on this question: Arethe reasons given by the National Coalition relevant to the question at issue? (Remember: In order todecide that, you must first decide exactly what conclusion is at issue.) The question immediately at issue is not whether pornography should or should not be banned; rather,the question in this argument is, Is the banning of pornography censorship? (It’s not a question of whether JEFF PACHOUD/ Getty Images Chapter 6 Relevant and Irrelevant Reasons 81 Consider a case from outside the courtroom. Just prior to the 1984 Olympics, the Mars Candy Company ran commercials showing athletes munching chocolate and caramel bars and stating that such candy bars satisfied their hunger in the midmorning or midafternoon after a tough training session. If the conclusionis that a candy bar will briefly satisfy hunger, then there is fairly decent support for that (quite trivial) conclusion. If instead the conclusion is that candy bars are a wholesome part of a good diet and that it is a good thing for athletes in training to eat a couple of chocolate bars a day (as the commercials certainly implied), then the fact that eating a candy bar briefly satisfies hunger is irrelevantto that conclusion. The point is that in order to decide the relevance and strength of the premises,you must first be certain of the conclusion. And if you keep the conclusion clearly in mind, you should not have too much trouble deciding whether the premises support the conclusion or whether they are instead irrelevant. IRRELEVANT REASON FALLACY The fallacy of irrelevant reasonis committed when the reasons given in support of a conclu- sion are irrelevantto the truth or falsity of the conclusion. The reasons given may be true, they may be important in other contexts, they may even be worthy of celebration, but they have no bearing on the question at issue, and including them in the argument confuses the issue. Certainly an ax murder is a terrible thing, and we all deplore such vicious crimes, but that is irrelevantif the question at issue is, Did the defendant dothat deplorable deed? If irrelevant points—like the ghastly nature of the crime—are injected into the discussion, then attention may be distracted to the horror of the crime and away from the issue. The power of irrelevant reasons to draw people off the right trail has caused the irrelevant reason fallacy to sometimes be called by a different and rather catchy name: the red herring fallacy.

The Red Herring Fallacy The exact source of the “red herring” name for irrelevant reason is unknown, but at least there’s a good story. After a foxhunt, a cloth bag of cooked herring (herring turns reddish, is very oily, and has a strong smell when cooked) was dragged across the trail of the fox; the strong smell of the herring made the hounds lose the trail (and probably censorship is good or bad; rather, isthe banning of pornography censorship?) The conclusion of the National Coalition’s argument is that banning pornog- raphy is not censorship.With that conclusion clearly in mind, now ask, What reasonsare given for that conclusion, and are they relevant?

The key reason given is that laws against obscenity and pornography have been passed by our elected officials, and those officials are our duly elected repre- sentatives, and so the laws they pass are democratically approved. The process is democratic,it is “democracy in action,” it is “responsible democracy,” and thereforeit is not censorship.

But even if we assume that the process really is democratic,what relevance does that have to whether banning pornography counts as censorship?None.

After all, democracies can impose censorship just asdictatorships can. Suppose the United States had a national referendum on whether to ban all Buddhist writings from the United States, and 75% of the voters favored laws banning Buddhist literature. Then Bud- dhist literature might be censored in the United States. It would be democraticcensorship, and popular censorship, but it would still be censorship. So even if it is true that laws banning pornography and obscenity are democratic, that is irrelevantto the question of whether it is censorship. That’s how irrelevant reason arguments work: You are so distracted by important and dramatic statements (in this case, statements about responsible democracy) that you forget that the statements have no bearing on the question at issue.

Democracy is certainly worth talking about. But it has nothing to do with whether banning obscenity and pornography counts as censorship. 82 Chapter 6 Relevant and Irrelevant Reasons their lunch) and thus the hounds could be caught easily. The red herring distracts the hounds from the proper path, and sends them off the scent. And that’s exactly what a “red herring”—an irrelevant reason—does in an argument: It distracts people from what is properly at issue and sends them off on irrelevant pursuits. If the debate is over whether handguns should be banned, it is relevant to consider how many people have been killed in handgun accidents. But suppose someone then asserts, “Everybody talks about handgun accidents! But think of how many people are killed each year in auto accidents! Why don’t we ban automobiles?” You must hold your breath and cover your nose and stay on the trail, for a red herring has just been dragged across the argument.

The danger of auto accidents is certainly serious, and perhaps on another occasion we should discuss how to reduce that danger, but that has nothing to do with the question of banning handguns. Whether there are other unacceptable dangers in society is not the issue; the question is instead whether handguns pose an unacceptable risk. Perhaps they do, perhaps they do not, but no progress will be made on that issue if the arguers are distracted by irrelevant reasons.

Remember, the first thing to ask when considering an argument is, What is the conclusion? What is this argument supposed to be proving? What is at issue? With the conclusion firmly in mind, you will not be tempted down irrelevant sidetracks, no matter how enticing and true and important they may be. Certainly it is true and important that society should be protected from vicious ax murderers; but if you remember that the question is not the proper disposal of ax murderers but rather the guilt or innocence of the defendant, then such irrelevant reasons will not divert you.

One other point: Determining the relevanceof a premise is not the same as deter- mining its truth.A true premise certainly can be irrelevant, as noted in several examples; but also, a falsepremise may be relevant.For example, everyone who plays the lottery wins a million dollars; I wish to win a million dollars; therefore, I should play the lottery. The first premise is relevant;and its falsity does not diminish its relevance. So in determining relevance or irrelevance, don’t ask whether the premise is true; instead, ask whether it matters(for the question at issue) if the premise is true or false. If it doesn’t make any difference one way or the other, then the premise is irrelevant. What Was the Question?

The Pharmaceutical Manufacturers Association placed a two-page color advertisement in the August 1993 issue ofScientific American,featuring a picture of an attractive, smiling, appealing woman, Phyllis, with her cordial cat perched contentedly on her shoulder. The text was the following: Ask Phyllis her opinion of the anti-stroke drug that lets her hold onto her independence and life savings.

When medicines can help people like Phyllis avoid a stroke, that’s obviously a good thing. What’s not so apparent is how dramatically the same drugs reduce nursing home costs.

Stroke often leaves survivors so disabled they require nursing home care, which now aver- ages over $30,000 a year per patient.

But drugs that reduce the risk of strokes are helping individuals and families avoid such a huge financial blow. And helping to hold downthe nation’s expenditures for nursing home care, estimated at $66 billion a year.

America’s healthcare crisis calls for this kind of cost-saving power. And new prescription drugs are our best hope for providing it. Well, certainly drugs that prevent strokes are wonderful, and keeping Phyllis out of a nursing home and helping her “hold onto her independence and life savings” is a great benefit. But the fact that the drug to prevent strokes costs less than the cost of nursing home residence is irrelevant.The question is not whether the drug costs lessthan a nursing home, but whether the drug costs morethan it should: Are the drug companies spending too much on advertising and making excessive profits and overchargingfor the valuable life- saving drugs they produce? The cost of nursing home care is a red herring designed to draw us away from that key issue. Chapter 6 Relevant and Irrelevant Reasons 83 A Red Herring Under the Influence Lou Peters is 59 years old, an agnostic, living in Toledo, Ohio. He was convicted of driving under the influence of alcohol. At his sentencing, the judge gave him a choice between 30 days in jail or attending meetings of Alcoholics Anonymous. Peters chose jail, because he objected to the religious orientation of AA: part of their treatment program requires that we “turn our will and our lives over to the care of God,” meetings often end with the Lord’s Prayer, and meetings are frequently held in churches. Peters objected that his treatment was not fair: an option to jail was provided to religious people but not to the nonreligious.

TheCleveland Plain Dealereditorialized against Peters, as follows: How many options should society have to con- trive for people who break the law and endanger the lives of others by getting drunk, getting in a car and getting on the road? . . . Peters made a rational, informed choice. When he decided against attending the AA sessions and accepting the rehabilitation that a highly effective program could have offered him, the suspension of his jail sentence was revoked, as he knew it would be.

He wasn’t forced to go to AA. He was, how- ever, forced to pay for his misdeed. His dislikeof the price is immaterial. He was in no position to bargain, nor should he have been.

He drank. He drove. He got caught. What does he want, a reward? 4 The editorial writer carries on at length, but never takes up the real issue. The question is not whether those convicted of drunk driving should have an option, or how many options they should have. The question is a simple one: ifa non-jail option is given to those who are religious, does fairness (and the U.S.

commitment to not giving government favor to any religious view) require that a non-jail option alsobe available for the nonreligious?

Imagine that a non-jail treatment option were provided for those convicted of drunk driving, but this treatment option required that “we take charge of our own wills and lives and reject the existence of God,” and thus only agnostics and atheists could participate in this option. Christians, Jews, and Muslims would be excluded.

Would that strike you as fair? Suppose Christians, Jews, and Muslims complained that if agnostics and atheists had a non-jail option, then they should have one also.

Could we legitimately accuse them—as the Plain Dealer accuses Peters—of wanting a reward? Exercise 6-1 For these arguments, determine whether the premises are relevant or irrelevant. (i.e., Do any of these arguments commit the irrelevant reason fallacy?) 1.The Alaskan oil pipeline is certainly nota threat to the environment of the Alaskan tundra (through which the pipeline passes) or to the Alaskan coastal waters. For after all, it is essential to the economic well-being of the United States that Alaskan crude oil be shipped out of Alaska through an efficient pipeline. Alaska contains the largest oil reserves in the United States, and we must have access to those oil reserves if we are to avoid costly and risky dependence on foreign oil supplies.

And the Alaskan pipeline is the most cost-efficient method of making Alaskan oil available to the rest of the United States. So quite clearly the pipeline does not threaten the ecology of the Alaskan tundra or the Alaskan coastal waters.

2.There is now before Congress a proposed amendment to the U.S. Constitution that would make it ille- gal to burn the American flag as an act of protest. Some people oppose this amendment on the grounds that it would, for the first time in U.S. history, place a restriction on the right of political protest and of political free speech. But that’s just false. The proposed ban on flag burning would in no way restrict free speech. For, after all, the American flag is a great and glorious symbol of our country; and our soldiers have fought and bled and died for that flag for over 200 years. When it is burned in protest, it causes great pain and anguish to those who dearly love the stars and stripes. Besides, there are lots of ways one can protest without burning the flag: by giving speeches, participating in marches, signing petitions, writing letters; so there would still be plenty of opportunities for political free speech if flag burning were prohibited. So a ban on flag burning obviously would not be a restriction on free speech.

3.We should certainly vote in favor of legalizing casino gambling in Washington County. For a casino in Washington County would create new jobs, and it would also have ripple effects: Restaurants and hotels and theaters would develop in the area to serve the needs of those who come to the casino. 84 Chapter 6 Relevant and Irrelevant Reasons Furthermore, since all of the casino income is subject to taxation, it would significantly increase our tax revenue. And 25% of that additional revenue will go to our local schools, and so we will be able to improve our schools and provide better education for our children. And finally, many people in Washington County now travel to casinos in Detroit, Windsor, Niagara Falls, Atlantic City, and Las Vegas; and they spend their gambling dollars there, and the money leaves the Washington County economy; if we allow casino gambling in Washington County, much of that money will stay in Washington County and will stimulate our economy, rather than being drained away. So when you consider the advantages, clearly it is time to legalize casino gambling in Washington County.

4.I urge you to vote against legalizing casino gambling in Washington County. Sure, we will raise some additional tax money; but that money will be gobbled up by the increased costs of crime, children’s services, and other social costs that come from the increase in gambling and gambling addiction.

When people have easy access to casino gambling, many people are tempted to gamble a little more than they can afford—and many of those people are people who can least afford their gambling losses, but who desperately and falsely hope that luck at gambling will solve their financial worries.

And rather than stimulating other entertainment enterprises in the area, legal gambling sucks money away from those competing businesses. People who come to the casino stay at the casino when they eat dinner, and so there is actually a loss for local restaurants. And many people who would have spent their entertainment dollars at the theater or the movies or a concert will now go to the casino, and so other entertainment businesses wither away, rather than prosper. And finally, the money that local folks lose at the casino does not stay in Washington County! Instead, it goes to the casino corporation, which is located several states away. We do have some economic problems in Washington County, but legalizing casino gambling will not solve those problems, only make them worse.

5.Legalizing casino gambling in Washington County would notincrease the number of people in the county suffering from gambling addiction. Most people who gamble find it a pleasant and exciting evening of entertainment, and they keep their losses well under control. And when you consider the stimulus to the local economy, the increase in tax revenue, and the new jobs that will be available, you can see that there are tremendous benefits to legalizing casino gambling in our county. So legalized casino gambling will not increase the number of gambling addicts in Washington County.

6.Some students suggest that tuition at Home State University is too high. They claim that through more cost-efficient methods, Home State could reduce tuition without any reduction in educa- tional quality. But tuition at Home State is nottoo high. Certainly a college education is very impor- tant: Education opens the door to literature, the arts, philosophy, world history, the sciences; it also opens opportunities for professional training and an interesting career. So when you consider the wonders of a college education, it is obvious that tuition at Home State is notexcessive.

7.Clearly having stricter gun control laws will notprevent shootings in our schools. Requiring more background checks and gun locks and a longer waiting period to buy guns will cause a lot of bother and trouble for honest hunters, target shooters, and legitimate gun collectors. So stricter gun laws willnotbe effective in preventing school shootings.

8.The United States has a very fair and efficient health-care system. After all, many wealthy people from around the world come to the United States for specialized medical care; and many of the most important discoveries in medical science were made here in the United States. In addition, some of the most effective drugs now in use were developed in the United States by U.S. companies.

So it is obvious that the U.S. health-care system is both fair and efficient.

9.It is sometimes claimed that under our system of capital punishment we may mistakenly execute innocent people who have been wrongly convicted. But such wrongful executions are not a real danger. After all, capital punishment was approved by a democratic process, by our elected representatives, and it represents the will of the majority in the United States. Furthermore, capital punishment seems to bring a strong sense of closure and relief to the families of those whose loved ones have been the victims of terrible crimes. Therefore, there is no genuine danger of wrongful executions in the United States.

10.Some people argue that our present “War on Drugs” policy—using severe criminal penalties to imprison thousands of people who use illegal drugs—is not an effective policy for controlling drugs. But in fact the War on Drugs policy ishighly effective. After all, illegal drugs are a major prob- lem, causing many ruined lives and lost work hours and widespread health hazards and numerous deaths through drug overdoses. Illegal drugs are the source of enormous problems and many heartaches in this country. Illegal drugs are a serious issue, and a major challenge for our country, our communities, and our people. Therefore, it is clear that the severe criminal penalties of the War on Drugs is an effective policy for battling our drug problems. 11. How Do You Rule? The following is a fictitious case, taken from a story by John Mortimer, a British barrister and creator of thesplendid old curmudgeon Rumpole of the Bailey (heroof many of Mortimer’s stories). In this story, an artist,Harold Brittling, is charged with fraud. Brittling ischarged with having sold a painting as “a genuine Septi-mus Cragg” (a fictitious artist, who was supposed to beone of the greatest of the Impressionists, along withManet and Degas, and whose paintings are very valu-able), when in fact—according to the charges againsthim—Brittling did the painting himself. Rumpole is thebarrister (attorney) for the defense; Erskine-Brown is prosecuting (“appearing for the Crown”); and Edward Gandolphini is the leading expert on theworks of Septimus Cragg. At this point in the story, Erskine-Brown has just finished his examinationof Gandolphini (a witness for the prosecution), and Rumpole is beginning his cross-examination: Erskine-Brown sat, apparently satisfied, and I rose up slowly, and slowly turned the picture so the witness could see it. “You said, did you not, Mr. Gandolphini, that this is a beautiful painting.” I beganin a way that I was pleased to see the witness didn’t expect.“It’s very fine. Yes.”“Has it not at least sixty thousand pounds’ worth of beauty? [the price for which the painting hadbeen sold at auction]” I asked and then gave the jury a look.“I can’t say.”“Can you not? Isn’t part of your trade reducing beauty to mere cash!”“I value pictures, yes.” I could see that Gandolphini was consciously keeping his temper.“And would you not agree that this is a valuable picture, no matter who painted it?”“I have said . . . ” I knew that he was going to try to avoid answering the question, and I interruptedhim. “You have said it’s beautiful. Were you not telling the truth, Mr. Gandolphini?”“Yes, but . . . ”“‘Beauty is truth, truth beauty,’ that is all ye know on earth, and all ye need to know.”I turned and gave the jury their two bobs’ worth of Keats.“Is that really all we need to know, Mr. Rumpole?” said a voice from on high.“In this case, yes, my Lord.”“I think I’ll want to hear legal argument about that, Mr. Rumpole.” Featherstone [the judge]appeared to be making some form of minor joke, but I answered him seriously. “Oh, you shall.I promise you, your Lordship.” I turned to the witness. “Mr. Gandolphini, by ‘beauty’ I suppose youmean that this picture brings joy and delight to whoever stands before it?”“I suppose that would be a definition.”“You suppose it would. And let us suppose it turned out to have been painted by an even morefamous artist than Septimus Cragg. Let us suppose it had been done by Degas or Manet . . . . If it werepainted by a more famous artist it wouldn’t become more of a thing of beauty and a joy to behold,would it?”“No . . . but . . . ”“And if it were painted by a less famous artist—Joe Bloggs, say, or my Lord the learned Judge, onewet Sunday afternoon . . . . It wouldn’t become less beautiful, would it, Mr. Gandolphini? It would have the same colourful shadows, the same feeling of light and air and breeze from the harbour. The samewarmth of the human body?”“Exactly the same, of course, but . . . ”“I don’t want to interrupt . . . ” Erskine-Brown rose to his feet, wanting to interrupt.“Then don’t, Mr. Erskine-Brown!” I suggested. The suggestion had no effect. Erskine-Brown madea humble submission to his Lordship. “My Lord, in my humble submission we are not investigating thebeauty of this work, but the value, and the value of this picture depends on its being a genuineSeptimus Cragg. Therefore my learned friend’s questions seem quite irrelevant.”At which Erskine-Brown subsided in satisfaction, and his Lordship called on Rumpole to reply.“My learned friend regards this as a perfectly ordinary criminal case,” I said. “Of course it isn’t. Weare discussing the value of a work of art, a thing of beauty and a joy forever. We are not debating theprice of fish!” 5 How do you rule? Are Rumpole’s questions relevant? Will your lordship allow Rumpole to con- tinue this line of questioning, or will you rule that it is irrelevant to the issue before the court? Chapter 6 Relevant and Irrelevant Reasons 85 Comstock / Getty Images 86 Chapter 6 Relevant and Irrelevant Reasons 12. In the following letter, what is the conclusion of the argument offered by Benny? What reasons does he give in support of that argument? Is the reply made by Ann Landers relevant to Benny’sargument and conclusion? Dear Ann Landers:I’m a high school senior who is speaking for a lot of others my age (17 going on 18). We have a bigcomplaint. First I want to make it clear that we don’t go out and get smashed every night. Most of us are responsible people. The kids who make trouble get the publicity. Good behavior is not news.What we are mad about is the attempt to raise the legal drinking age all over the country from 18 to 21.If we are old enough to go to war, we should be old enough to drink.I’ll be interested in whether you duck this issue or print my letter. Just Benny Dear Benny:The folks who want to raise the legal drinking age from 18 to 21 are not being mean. They aretrying to save lives—and, I might add, they are succeeding.Every state, without exception, that has raised the drinking age from 18 to 21 has reported adecrease in alcohol-related teenage deaths and injuries on the streets and highways. I know of few lawsthat are such surefire lifesavers. 6 13. There is an ongoing debate about whether the District of Columbia should be a state. Those who advocate a constitutional amendment to allow statehood for the District of Columbia argue thatresidents are denied the basic right to be represented by their own senators and members of the U.S.House of Representatives; thus, among other problems, residents of the District of Columbia have novoice in federal law-making and so are taxed by the federal government without having representativesto vote on those taxes. That, say the supporters of statehood for the District of Columbia, amounts to “taxation without representation,” a rallying cry during the days leading up to the American Revolu- tion. The following is an argument in answer to the taxation-without-representation argument: “Taxation without representation” can hardly be an argument in favor of this [statehood for D.C.] amendment since for every 29 cents paid in federal taxation, residents of the District receive $1.00 inreturn. (Letter from Linda Atkins to the Greensboro Daily News ) Is that a relevant answer to the taxation-without-representation argument? 14. John Walker Lindh, the young American who joined the Taliban and was captured in the U.S. invasion of Afghanistan, was charged with conspiracy to murder U.S. nationals. John WalkerLindh’s attorneys argued that statements he made while interrogated by the U.S. military should bethrown out: they were not made freely, because the conditions under which he was held were crueland coercive. He was confined in a freezing metal container, blindfolded, and bound withhandcuffs that cut off his circulation. Any statements made in such circumstances could hardly becounted as voluntary, his lawyers noted. The U.S. attorneys prosecuting Lindh replied that Lindh was in Afghanistan of his own choice: the United States “had not plucked John Walker Lindh out of the California suburb wherehe used to live and dropped him into a metal container in the middle of Afghanistan.” (Reportedby Larry Margasak, Associated Press, March 30, 2002) 15. How Do You Rule? Claudia Klauswitz is on trial for first-degree murder.She is charged with the murder of her hus band. The prosecution claims that she killed him in a lover’squarrel, after discovering his affair with the babysit- ter. She admits that she shot him; she claims, however,that she acted in self-defense, to protect herself againsta violent husband who had abused her in the past, had threatened to kill her, and then advanced upon herwhile she held a gun on him. The prosecution has called as a witness the operator of a shooting range, who testifies that he knewClaudia, and that she sometimes came to the shooting range for target practice. The prosecuting attorney continues with this question: Was the defendanta good marksman with her pistol? The defense objects to the question and asks for a meeting in Comstock / Getty Images Chapter 6 Relevant and Irrelevant Reasons 87 the judge’s chambers (out of the hearing of the jury) to discuss the issue. The judge, district attor- ney, and defense attorney go to the judge’s chambers, and the defense attorney puts her objection:

DEFENSE ATTORNEY : Your Honor, we are asking that you not allow any further questions along theselines. The prosecutor is trying to inflame the jury with an irrelevant point. Thedefendant is an expert shot, whose hobby is shooting at the pistol range;she has friends there, it’s like a night at the bowling alley. But the prosecutor istrying to make her look like the suburban version of Billy the Kid, blazing awaywith her pistol at every opportunity. Of course she’s an expert shot; but thathas nothing to do with this case. I didn’t object to the prosecution establishingthat she knows how to use a pistol; but her expertise with a pistol is irrelevant.It has been well established, by the district attorney’s own witnesses, that thedeceased died from a bullet fired from Claudia’s pistol and that the burns onhis clothing indicate that the pistol was fired from a distance of not more than18 inches. Obviously she doesn’t have to be Annie Oakley to hit someone at adistance of 18 inches, and the fact that she is a good marksman is irrelevant tothe question of whether she acted in self-defense. The prosecution wants topaint a picture of a wild-eyed woman blasting away at every target in sight; andthat is an unfair tactic. They have no good reason for trying to show that she isan expert with a pistol; that is irrelevant in this case, and they are pursuing thisline only to inflame the jury. We’re asking that you not allow any morequestions concerning the defendant’s expertise with a pistol or her enjoymentof target shooting: They are irrelevant and inflammatory. DISTRICT ATTORNEY : Your Honor, these questions are certainly relevant. We want to establishthat the defendant not only owned a gun, but was expert in its use and,indeed, was ready to use it: She didn’t need any self-defense motive; she wasangry, and she used a weapon with which she was expert to vent her angerand avenge her hurt pride. DEFENSE ATTORNEY : Your Honor, this is ridiculous. It has already been established and we donot dispute that she owned a pistol and knew how to use it. The fact thatshe was an expert marksman and enjoyed target shooting no more indi-cates that she would be likely to murder someone with a pistol than wouldher skill at carving a turkey indicate that she would be likely to murdersomeone with a knife. How do you rule? Will you allow the prosecution to continue this line of questioning, or rule itirrelevant? Exercise 6-2 Consider the Verdict Nathan Jackson is on trial, charged with forgery. As he hasadmitted, he forged the signature of one of hisprofessors—Professor Winston—on a letter of referenceand then sent the letter without the permission or knowl-edge of the professor. Jackson admits having done this; hemaintains, however, that this is not a case of forgery, sincehe had no intention of deceiving. Professor Winston hadalready written a letter of reference for Jackson and hadmailed it to the University of North Carolina Departmentof Anthropology, where Jackson was applying for admis-sion to graduate studies. However, while Professor Win-ston was on a trip to Europe and could not be reached,Jackson had decided to apply for graduate study at the University of New Virginia. Jackson knew that Professor Winston’s letter was on the hard disk of hiscomputer, and Jackson—having worked as Professor Winston’s laboratory assistant—had easy andlegitimate access to Professor Winston’s office. So Jackson turned on Professor Winston’s computer,found the file containing the letter of reference, revised the inside address (but left everything elsethe same), and printed it out. Jackson then signed Professor Winston’s name and sent the letter ofreference to the University of New Virginia. IE235 / Image Source Plus / Alamy 88 Chapter 6 Relevant and Irrelevant Reasons When Professor Winston returned from Europe, he found a note from the University of New Virginia, acknowledging receipt of his letter of reference for Nathan Jackson. Thinking that there must have been some mistake, Professor Winston called a friend on the anthropology faculty at the University of New Virginia. The friend faxed a copy of the letter of reference back to Professor Winston, who immediately recognized that the signature was not his own. He confronted Jackson, who admitted what he had done.

Professor Winston, though disappointed in Jackson, was willing to let the matter drop. The University of New Virginia, however, had already awarded Jackson one of a very limited and highly competitive number of slots for admission to graduate study in anthropology. They felt they had been badly deceived, and that such deceit cut at the integrity of academic programs and scholarly research. Thus, they decided to take a strong stand against this sort of practice and filed forgery charges against Nathan Jackson.

The forgery law in New Virginia (where the charges were filed and the case was tried) is as follows: A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

a. alters any writing of another without his authority; or b. makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act. 7 The first witness for the prosecution is Professor Winston. In answer to questions from the district attorney, Professor Winston testifies that though Jackson did have access to Winston’s office and was allowed to borrow books from Professor Winston’s office, Jackson was not authorized to use Winston’s computer, was certainly not authorized to send any sort of letter or message on behalf of Winston, was not authorized to send a letter of reference on behalf of Winston, was not authorized to sign Winston’s name, and that, specifically, Winston had not given permission for Jackson to send a letter of reference from Winston to the University of New Virginia, and Winston had not and would not have given permission to Jackson to sign Winston’s name to such a letter. Then the defense cross-examines:

DEFENSE ATTORNEY : Professor Winston, you said that Nathan Jackson was your student assis- tant, is that correct? PROFESSOR WINSTON : Yes, that’s correct. DEFENSE ATTORNEY : You had a good deal of confidence in him, did you not? PROFESSOR WINSTON : Yes, I did. DEFENSE ATTORNEY : Gave him substantial responsibilities, is that right? PROFESSOR WINSTON : Yes. DEFENSE ATTORNEY : When you left for Europe last spring, had you already turned in your final course grades? PROFESSOR WINSTON : I had finished determining all the grades. DEFENSE ATTORNEY : That is not what I asked. Had you turned in your course grades? PROFESSOR WINSTON : No. DEFENSE ATTORNEY : Did you ask Nathan Jackson to submit those grades for you? PROFESSOR WINSTON : Yes, I did. DEFENSE ATTORNEY : What did that involve? PROFESSOR WINSTON : He had to take the grades from my grade book, write the final grades on the registrar’s grade lists, and then take the list to the registrar. DEFENSE ATTORNEY : That’s not quite all, is it? PROFESSOR WINSTON : What do you mean? DEFENSE ATTORNEY : Isn’t there a space on the grade submission forms that calls for the professor’s signature? PROFESSOR WINSTON : Yes. DEFENSE ATTORNEY : You hadn’t signed those forms, had you? PROFESSOR WINSTON : No. DEFENSE ATTORNEY : And so you expected Nathan Jackson to sign those for you, didn’t you? DISTRICT ATTORNEY : Your Honor, I object to this line of questioning. Whether or not Professor Winston allowed or even instructed the defendant to sign some other Chapter 6 Relevant and Irrelevant Reasons 89 document on his behalf has no relevance to this issue; the only question is whether the defendant fraudulently and deceptively and without permis- sion signed Professor Winston’s name on the letter of reference: that is the document that is before the court, not some set of class grades.

If you were defense attorney, how would you argue for the relevance of this testimony?

Having heard the arguments of the district attorney, and now your own arguments on behalf of the defense, place yourself in the position of judge: How do you rule? Is this line of questioning relevant or irrelevant?

Let’s suppose that the judge allows the question as relevant, and the cross-examination continues: DEFENSE ATTORNEY : So, Professor Winston, when you asked Nathan Jackson to turn in your grade sheets, you expected him to sign them for you, didn’t you? PROFESSOR WINSTON : Actually, I didn’t think about it; it really didn’t occur to me, in the rush of leaving for Europe, that the grade sheets had to be signed. DEFENSE ATTORNEY : But in any case, you didn’t have any objection to Nathan Jackson, your very trustworthy assistant, turning in your grades and signing the forms, is that right? PROFESSOR WINSTON : No, I guess I had no objections. DEFENSE ATTORNEY : So in fact Nathan Jackson wasauthorized to use your signature under some circumstances, isn’t that right? DROFESSOR WINSTON : I suppose so. DEFENSE ATTORNEY : So when you said, in your earlier testimony, that Nathan Jackson was not authorized to sign your name, that wasn’t quite accurate, was it? PROFESSOR WINSTON : No, I had forgotten about that occasion. DEFENSE ATTORNEY : So just before you left, Nathan Jackson was authorized to sign your name on your grades. Since he was authorized to sign your name on something as important as your final grades, it wouldn’t be too surprising if he then believed that he was also authorized to sign your name to a copy of a letter you had already sent on his behalf, isn’t that right? DISTRICT ATTORNEY : Objection, Your Honor; question calls for speculation. JUDGE : Sustained. DEFENSE ATTORNEY : Professor Winston, I just want to be sure I am quite clear on one point.

The letter that Nathan sent to the University of New Virginia, except for the address, was identical to the one you sent on his behalf as a letter of reference to another graduate department, is that right? PROFESSOR WINSTON : That is correct. DEFENSE ATTORNEY : And I take it that the original letter of reference that you wrote for Nathan, that was an honest letter and you believed what you said and you wrote it on behalf of Nathan because that was your true opinion of him, is that right? PROFESSOR WINSTON : That is right. DEFENSE ATTORNEY : Thank you, Professor Winston. No further questions.

At this point, the prosecution rests.

The defense calls the defendant, Nathan Jackson, who testifies that he believed that Profes- sor Winston would have no objection to sending the letter of reference, that he did not think that Professor Winston would mind Nathan sending the letter himself, that he had tried to contact Professor Winston before sending the letter, and that he had had no intention of deceiving the admissions committee at the University of New Virginia. During cross-examination, the district attorney raises the following question: DISTRICT ATTORNEY : Mr. Jackson, why didn’t you sign your own name to the letter of reference you sent to the University of New Virginia? NATHAN JACKSON : Because I couldn’t write a letter of reference for myself; the letters of reference have to come from professors. DISTRICT ATTORNEY : So in fact, you wanted the Admissions Committee at the University of New Virginia to believe that the letter came from Professor Winston, is that right? NATHAN JACKSON : It did come from him; he wrote the letter. 90 Chapter 6 Relevant and Irrelevant Reasons DISTRICT ATTORNEY : No, he certainly did not; he wrote a letter to the University of North Carolina; he neverwrote the letter to the University of New Virginia. DEFENSE ATTORNEY : Your Honor, would you please instruct the district attorney to save her arguments for her closing speech? DISTRICT ATTORNEY : Your Honor, would you please instruct this witness to answer my questions? JUDGE : That’s enough; let’s get back to the questions. Mr. Jackson, please answer the questions as directly as you can. DISTRICT ATTORNEY : Thank you, Your Honor. Now Mr. Jackson, didyou want the Admissions Committee at the University of New Virginia to believe that the letter came from Professor Winston? NATHAN JACKSON : Yes. DISTRICT ATTORNEY : And did you want the Admissions Committee to believe that the signature at the bottom was Professor Winston’s signature? NATHAN JACKSON : Yes. DISTRICT ATTORNEY : No further questions.

OK that’s the case. There seems to be little doubt that Jackson faked Professor Winston’s signature and that he sent a letter over that signature that Professor Winston had not authorized. So ifthere is any doubt about Jackson’s guilt, what would that doubt have to turn on? (i.e., what is the key issue in this case; define it as precisely as possible.) What is your verdict? Do you find Nathan Jackson guilty, or not guilty, of forgery? (You might find it interesting to develop the strongest argument you can on behalf of the prosecution, in favor of finding Nathan guilty; and then develop your strongest argument for the defense, in favor of a verdict of not guilty.) Suppose that we add a few things to the case; for each of these, are they relevantorirrelevant?(i.e., would they—or better, shouldthey—haveanyinfluence on your likelihood of finding the defendant guilty, or not guilty, of forgery.) a. Suppose that Professor Winston testified that sending the letter over his signature was just what he would have wanted Nathan to do (even though the professor had never authorized him to do so, and of course did not know of the act when Nathan did it). Relevantor irrelevant?

b. Suppose that Professor Winston, upon his return, is horrified that such a letter was sent to the University of New Virginia, since Professor Winston had already recommended another student to that program, and as a matter of policy Professor Winston never recommended more than one student to the same graduate school in a single year. (Nathan had no knowledge of Professor Winston’s special policy on recommendations.) Relevantorirrelevant?

c. Suppose that Professor Winston is horrified because he had already recommended a student to the University of New Virginia and his policy is never to recommend two; and Nathan knew of Professor Winston’s policy, and knew that Professor Winston had already recommended someone, before sending the letter. Relevantorirrelevant?

d. Following Professor Winston’s signature, Nathan added “nj” in parentheses, to indicate that he was signing on behalf of Professor Winston. Relevantorirrelevant?

e. Instead of this being a letter of reference in support of an application for admission to the graduate program, it is a letter in support of a joint application for admission and a fellow- ship worth approximately $20,000 a year. Relevantorirrelevant? REVIEW QUESTIONS 1. What is the first thing you must do before you can determine whether a premise is relevant orirrelevant?

2. How do you determine whether a premise is relevant?

3. Why is it that a statement may be relevant in one argument and irrelevant in another?

4. Why is the irrelevant reason fallacy sometimes called the “red herring” fallacy? Studyand Reviewonmythinkinglab.com Chapter 6 Relevant and Irrelevant Reasons 91 Douglas Walton’s Relevance in Argumentation(New York:

Routledge, 2003) is probably the most detailed examinationof the question of relevance in arguments, and of the fallacy of irrelevant reason.

Bruce N. Waller,“Fallacy of Irrelevant Reason,” Coffee and Philosophy, pp. 14–18. This dialogue discusses the difference between relevant and irrelevant reasons in argument.

Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin(Ontario Ministry of the Attorney General). As noted in Chapter 3, this was a case in whichMorin was wrongfully convicted and imprisoned, and the Kaufman Commission studies the circumstances that led to that wrongful conviction. One of the findings was that “evidence” was allowed into the trial that might have influ- enced the jury, but which in fact had no relevance to the question of Morin’s guilt; this passage from the Commis- sion Report describes that irrelevant material. ReadtheDocumentonmythinkinglab.com NOTES 1Marshall Brown, Wit and Humor of Bench and Bar(Chicago, IL: T. H. Flood, 1899), p. 513.2Frontline,with Judy Woodruff: “Inside the Jury Room.” By the Network of Public Television Stations.3Advertisement in USA TODAY,September 26, 1986, p. 13A; advertisement placed by the National Coalition Against Pornography; emphasis included in original.

4Cleveland Plain Dealer,January 10, 2003.5Excerpt from Rumpole and the Golden Thread,by John Mortimer. Copyright © 1983 by Advanpress Ltd.

Reprinted by permission of Viking Penguin, Inc.

6Permission granted by Ann Landers and Creators Syndicate.7Adapted from Model Penal Code and Commentaries,by The American Law Institute. INTERNET RESOURCES Michael Quinion has a website—World Wide Words—on “International English from a British Viewpoint,” and he has an interesting essay on the origins of the expression “red herring.” It can be found at http://www.worldwidewords.org/articles/herring.htm. ADDITIONAL READING 92 Analyzing Arguments 7 ❖ ❖ ❖ When analyzing an argument, start with the conclusion.If you are trying to construct a compelling argument, first decide exactly what conclusion you want to establish. If you are evaluating someone else’s argument, first determine exactly what the argument is supposed to prove.

When you have picked out the conclusion, you can examine the structure of the argument in support of that conclusion. Consider this example. We should not build more nuclear power plants in the United States. Nuclear power is a danger- ous technology: We have already experienced several nuclear accidents, and nuclear accidents have the potential to be catastrophic; even if the operators are well trained and careful and make no errors and all safety features are incorporated into the design—which is unlikely—there is always the danger that a nuclear power plant might be the target of a terrorist strike, with terrible consequences for public safety. Furthermore, nuclear power places an unfair burden on future generations: While we gain the benefit of the electricity produced, we leave for future genera- tions the legacy of dangerously radioactive spent nuclear fuel. It’s selfish and unfair to use a tech- nology that benefits the present at the expense of future generations. Finally, we do not really need the increased power that more nuclear power plants would generate. Through careful conservation of energy—including strict requirements for energy-efficient appliances and equipment and automobiles and houses—we could reduce our power needs, and through greater use of solar and hydroelectric and wind power, we could substantially increase our supply of energy. So we should put an immediate stop to the building of new nuclear power plants. Don’t worry right now about whether that is a good or a bad argument. Let’s just look at thestructureof the argument. First: what’s the overall conclusion?

ARGUMENT STRUCTURE Convergent Arguments The overall conclusion is just this: No additional nuclear power plants should be built.

(It is important to note the precise conclusion. It is notthat there should be no use of Listento the Chapter Audio on mythinkinglab.com Chapter 7 Analyzing Arguments 93 nuclear power; this argument does notattempt to establish that all existing nuclear power plants should be closed.) Next, what reasonsare given in support of that conclusion?

Three main reasons are given for the conclusion: First, nuclear power plants are dangerous; second, use of nuclear power is unfair to future generations; third, the power from additional nuclear power plants is not essential.

The next consideration is this: What is the structure of the argument? How are the reasons related to each other, and how are the reasons related to the conclusion? In answering those questions, the first issue is, Do the reasons given hang together, or does each stand independently? If one of the reasons offered were found to be false,would that undermine the otherreasons also? For example, if we should be convinced that nuclear power is notplacing an unfair burden on future generations (the secondreason is rejected), would that destroy the whole argument? Or would we still have to evaluate the other two reasons independently?

In this case, each of the three reasons stands or falls independently.Consider the first reason offered against additional nuclear power plants: Nuclear power is too dangerous.

If you reject that reason (you decide that nuclear power is not excessively dangerous), what effect would that have on the other two reasons? None. You might still decide that no new nuclear power plants should be built on the grounds that (second reason) nuclear energy places an unfair burden on future generations, or on the grounds that (third reason) alternative energy sources and energy conservation are better ways of meeting our future energy needs. Or suppose you reject the second reason: You decide that spent nuclear fuel can be disposed of in such a manner that it does not unfairly bur- den future generations. You could not just stop at that point and reject the entire argu- ment; instead, you would still have to decide whether the remaining reasons are sufficient to establish that additional nuclear power plants are undesirable. Don’t misunderstand:

If an argument gives three independent reasons in support of a conclusion and one reason fails, then certainly that argument is not as strong as it would have been had all three reasons proved true. Nonetheless, the remaining reasons may still offer substantial support—perhaps sufficient support—even if one reason is rejected. (If additional nuclear power plants are very dangerous, unfair to future generations, and unneeded, those are certainly good grounds for rejecting the construction of additional nuclear power plants. But one might reasonably be convinced that it’s a bad idea to construct additional nuclear power plants strictly on the grounds that nuclear power plants are very dangerous. The first reason alone might be sufficient even if the other two were rejected.

The first reason alone will not offer as much support for that conclusion as all three together, but it might suffice.) Since there are independentreasons, each offering independentsupport for a conclu- sion on which they all converge from separate directions, this argument structure is often called a convergentargument type. In a convergent argument, the different reasons are independent of one another, and when one falls it does not take the others down with it.

Our example convergent argument is diagrammed in Figure 7-1.

Consider another example of a convergent argument. You are a juror in the burglary trial of Priscilla Prowler. The district attorney is endeavoring to prove that Ms. Prowler was indeed the villain who burglarized the Jones’ home, and he offers the following evidence in support of that conclusion: Three eyewitnesses independently identify Ms. Prowler as the person seen running from the Jones’ house carrying a crowbar on the night of the burglary; Ms. Prowler’s fingerprints are found inside the house; Ms. Prowler’s boyfriend testifies that she bragged to him about having “done the Jones job”; and when Ms. Prowler is apprehended she is wearing a diamond bracelet that was taken in the burglary, and Jones’ silver is found in the trunk of her car. That’s a rather strong case against Ms. Prowler. Now suppose that during the cross- examination of Ms. Prowler’s boyfriend it comes out that he and Priscilla had recently been spatting because he had discovered that Priscilla had been secretly seeing an old 94 Chapter 7 Analyzing Arguments Figure 7-1 A convergent argument. flame. As a result, you decide that the boyfriend is probably “out to get” Ms. Prowler, and you become convinced that his testimony—that Ms. Prowler bragged to him of doing the burglary—is unreliable. What effect will that have on your evaluation of the argument as a whole? Not much, since this is a convergent argument offering independent reasons for the defendant’s guilt. The boyfriend’s testimony—if it is believable—would support the conclusion that Priscilla Prowler committed the burglary. The argument for her guilt is not quite as strong as it would be if the boyfriend’s testimony were believable. But failure of that one reason does not undermine the entire argument, for all the other reasons for the guilty verdict remain: They are not undermined by the failure of the boyfriend’s testimony. Even if we reject the boyfriend’s testimony, there are still some very strong independent reasons that point to a conclusion of guilty. However, the danger is that so much attention will be drawn to the failed reason that the remaining reasons in support of the conclusion will be ignored. Alibi The famous British murder trial of Steinie Morrison (convicted in 1911 of the brutal murder of Leon Beron)offers a striking illustration of how one failed reason canoverwhelm other independent reasons. Morrison’sdefense barrister pointed out excellent reasons for rea- sonable doubt of the defendant’s guilt (and remember, the defense need only establish a reasonable doubt).The prosecution case rested heavily on the eyewitnessidentification of Morrison as the man seen with the mur-der victim shortly before the murder. It was establishedthat the light was such that it would have been almostimpossible to identify anyone under such conditions,and indeed the eyewitnesses admitted that they had seennewspaper photographs of the accused just prior topicking him out of a police lineup. The presiding judge’s doubts are clear in his summation to the jury: Are you satisfied beyond reasonable doubt that that is the man . . . ? Think for yourselves. With what certainty could you swear to a man whom you saw on a night like that, by the kind of light there was at those places? Can you feel certain that a man would not be mistaken? . . . Are you so sure that they [the eyewitnesses] really took notice enough, that they had opportunity enough, to be able some days afterwards to swear with certainty to the man? 1 Unfortunately for the defendant, two girls—who appar- ently had become attracted to the handsome defen-dant—testified that they had seen him at a show theevening of the murder. However, that alibi collapsedwhen under cross-examination it was shown that the girls Chapter 7 Analyzing Arguments 95 could remember nothing from the show, could not recall the price of admission, and claimed to have bought tick- ets at curtain time for a show that had long been sold out.

That was only a small part of the defense case and obviously had no connection with the weakness of theeyewitness testimony. Apparently, however, the jurors focused on the weak—almost certainly fabricated—alibi, and gave little attention to the remaining independent points that favored reasonable doubt. They deliberated half an hour and returned a verdict of guilty. When examining arguments, first determine the conclusion: What is this argument supposed to prove? Then consider how the argument is structured: Are there several independent reasons given for the conclusion? If so, you will have to consider each reason on its own merits and not reject the whole argument because one reason is flawed. Linked Arguments Convergent arguments offer independent, free-standing reasons for the conclusion. In convergent arguments, if one reason is not convincing, perhaps another will be. But not all arguments have that form. In some arguments, the premises—the reasons given in support of the conclusion—are linked together like a chain, and if one link breaks, the entire argument fails: The linkedargument is thus only as strong as its weakest link. In short, a linkedargument is an argument in which the reasons given depend on one another for their strength. Separately, each premise offers little or no support for the conclusion; together, they may form a powerful argument.

Consider this example. The defendant is charged with murder, and the questionis whether the defendant is actually the person who committed the drive-by shooting of the victim (i.e., there is no question of self-defense or insanity or accidental death; the only question is the identity of the person who did the deed). One of the arguments given by the prosecution is as follows: White Jaguar automobiles are quite unusual in this area. The defendant owns a white Jaguar, and the car from which the fatal shots were fired has been identified by several witnesses as a white Jaguar. Therefore, there is some reason to think that the defendant is guilty of the drive-by murder. Would that be sufficient reason to find the defendant guilty? Certainly not. Especially not when we consider that the prosecution bears the burden of proof and must do more than establish that the defendant mightbe guilty, or even that the defendant is probablyguilty.

The prosecution must prove the defendant’s guilt beyond a reasonable doubt, and this argument doesn’t come close. But leave that issue aside for a moment and look at the structure of the argument. We have three reasons, all supporting (though not establish- ing) the conclusion that the defendant is guilty. How do they support that conclusion?

Notindependently. Suppose we discover that the witnesses were lying and that the fatal shots were fired from a red van rather than from a white Jaguar. If the premise that the shots were fired from a white Jaguar falls, it brings the whole argument down with it: The other premises—the defendant owns a white Jaguar, and white Jaguars are rare—are now useless in trying to establish the guilt of the defendant. Or suppose we find that the defendant does notown (or have access to) a white Jaguar: Again, if that single link is broken, the entire linked argument fails. Or suppose that white Jaguars are notrare, but instead are the most popular car in that particular area: Again, the argument collapses.

(If you have trouble seeing that, imagine that the testimony is that the fatal shots were fired from a car, and the defendant owns a car; since car ownership is hardly rare, that fact will lend no support to the claim that the defendant is the murderer.) So in this case—as in all linkedarguments—the premises stand or fall together. If we are diagramming an 96 Chapter 7 Analyzing Arguments argument, we need a special way of showing that. In the diagram of the convergent argu- ment, the different independent lines are shown converging along separate paths toward the conclusion. With linked arguments, we want to show the premises joined as a team or unit, all of which together lead to the conclusion. So we might diagram the argument (as in Figure 7-2) with the premises linked by one line, and another line drawn from the link to the conclusion.

SUBARGUMENTS So now you know that it is essential to first pick out the conclusion, and you can distin- guish the premises from the conclusion, and also distinguish among convergent and linked arguments. That’s a good start at analyzing arguments and enough to handle most arguments quite effectively. But arguments can and do get more complicated, and it’s important to be able to deal with that complexity; in fact, it’s in dealing with the complex arguments that argument diagrams are most useful. Look back at the first example: the argument about nuclear power. That argument was actually considerably more complex than our diagram indicated. The argument, you’ll recall, goes like this: We should not build more nuclear power plants in the United States. Nuclear power is a dangerous technology: We have already experienced several nuclear accidents, and nuclear accidents have the potential to be catastrophic; even if the operators are well trained and careful and make no errors and all safety features are incorporated into the design—which isunlikely—there is always the danger that a nuclear power plant might be the target of a ter-rorist strike, with terrible consequences for public safety. Furthermore, nuclear power placesan unfair burden on future generations: While we gain the benefit of the electricityproduced, we leave for future generations the legacy of dangerously radioactive spent nu-clear fuel. It’s selfish and unfair to use a technology that benefits the present at the expenseof future generations. Finally, we do not really need the increased power that more nuclearpower plants would generate. Through careful conservation of energy—including strictrequirements for energy-efficient appliances and equipment and automobiles and houses— we could eliminate some power requirements, and through greater use of solar and hydroelectric and wind power, we could substantially increase our supply of energy. So weshould put an immediate stop to the building of new nuclear power plants. The exact conclusion of that argument is that we should build no new nuclear power plants. In overall structure it is a convergent type of argument: Three distinct and independent reasons are given in support of that conclusion. First, nuclear power is too dangerous; second, nuclear power use is unfair to future generations; and third, additional nuclear power is not necessary. That’s as far as we went in analyzing the argument, but there’s still a lot further to go. The most obvious next step in analyzing that argument is to ask, Are the reasons given in support of the conclusion relevant to Figure 7-2 A linked argument. Chapter 7 Analyzing Arguments 97 the conclusion? That is, do they actually support the conclusion? If they are true, do they make the conclusion more likely to be true? We have already examined relevance in an earlier chapter, so you can determine that the reasons given are relevant. But another question immediately arises: If the reasons given are true, then they will support the con- clusion; but why should we accept the reasons given for the conclusion? That is, are the reasons given actually true? In the original argument, some reasons were given in support of those reasons. That is, there are sub arguments within the larger argument, and the subarguments are argu- ments in favor of the premises of the overall argument. For example, look at the third reason given for the conclusion: We do not really need the increased power that addi- tional nuclear power plants would generate. That is a key premise in support of the overall conclusion; but it in turn is the conclusion of a sub argument. The subargument is thus: We do not need the increased power that more nuclear power plants would generate. Through careful conservation of energy—including strict requirements for energy-efficientappliances and equipment and automobiles and houses—we could eliminate some powerrequirements, and through greater use of solar and hydroelectric and wind power, we couldsubstantially increase our supply of energy. The conclusion of that subargument is that the increased power that more nuclear power plants would generate is not needed. Two reasons are offered in support of that conclu- sion: First, conservation practices could reduce our demand for energy, and second, other nonnuclear power sources could supply all the power we need. There you have a subargument within the larger argument; that is, you have a sort of miniargument in support of one of the reasons that supports the overall conclusion. And notice that the conclusion of the subargument functions as a premise in the overall argument. Notice also that each of the other two reasons given in support of the overall conclusion is in turn supported by subarguments, and that each of those reasons—while functioning as a premise in the overall argument—is the conclusion for its respective subargument. With the added detail, the diagram for the overall argument becomes a bit more complicated, but taken step by step, it should not be confusing. The basic diagram, shown in Figure 7-3, remains the same. To that basic diagram we add diagrams of each sub argument. For example, the diagram of the third subargument is shown in Figure 7-4. And the second subargument is a linked argument; its diagram is shown in Figure 7-5. Now we put them together, with Figure 7-3 A convergent argument. 98 Chapter 7 Analyzing Arguments Figure 7-4 A convergent subargument. Figure 7-5 A linked subargument. the conclusion of each subargument operating as a premise for the overall argument (Figure 7-6). Piece of cake, right?

By examining and diagramming the above argument and subarguments, you can see that some of the reasons given in the argument are in turn supported by other reasons (are supported by further subarguments). But being of an inquiring and reflective Chapter 7 Analyzing Arguments 99 Figure 7-6 The entire argument. nature, you no doubt asked, What about the reasons in the subargument? What supports them? For example, consider the claim that alternative soft energy sources are readily available: Why should I accept that? Shouldn’t there be a further argument—a sub subargument—to support that reason? The answer is that there could be such a subsubargument—and perhaps there should be. In any case, it should be noted that arguments can be pushed to many different levels:

The conclusion that no new nuclear power plants should be built can be supported by the 100 Chapter 7 Analyzing Arguments claim that additional nuclear power is not needed, and that claim can be supported by the claim that alternative soft energy sources are readily available, and that claim could be supported by data on solar energy, and those data could be supported by claims about the reliability of the research studies that generated the data, and so on. At some point, of course, we must stop: when we reach some obvious fact, when we reach some assertion that everyone accepts, when we reach an assumption that is accepted as true for the pur- poses of this particular argument, or when we run out of energy and decide not to press any further back for support. Exactly under what conditions premises should be accepted as true, when assumptions are and are not reasonable, and what degree and type of justi- fication should be demanded for premises are all important questions that will be exam- ined in later chapters.

In some cases, a linked argument can be one of the convergent elements in a larger convergent argument. For example, consider the following argument in favor of physi- cian-assisted suicide: We should legalize physician-assisted suicide for terminally ill patients who wish to hasten their deaths. First, it is psychologically important that people have as much control over their situations as possible, and being able to control the process of one’s death gives some termi- nally ill patients a very satisfying and powerful sense of control. Furthermore, excruciating pain is always undesirable, and some forms of disease cause excruciating pain that can only be relieved by death. And finally, competent people should have the right to make their own decisions about their lives and deaths. In this argument, the overall structure is convergent. There are three convergent lines leading to the conclusion: the first is the argument concerning control, the second the ar- gument about pain, and the third the claim concerning rights. But the first and second of these convergent lines are linkedarguments. The diagram for that argument is shown in Figure 7-7.

Here’s one more example before we turn to some exercises:

Alice should be found not guilty, because Alice did not rob the Key West Conve- nience Store at 10:00 P.M. on August 9. In the first place, she had no motive. Certainly she did not need money: Her parents are quite wealthy, and her personal checking account contained over $8,000 on the day of the robbery. Furthermore, such a crime would be completely out of character for the defendant. She is a gentle, nonviolent individual. Her character is shown by the testimony of her biology professor (who spoke of her adamant refusal to harm a frog in her biology laboratory), the testimony of the director of Meals-on-Wheels (who testified that she had—for over 3 years—been a ded- icated volunteer for their program of providing hot meals to the elderly and disabled), and by the testimony of three of her friends (who noted that she is fiercely opposed to firearms, refused to even hold a pistol shown her by a friend, and refuses on principle Legalize physician-assisted suicide Control is psychologically importantControl of death is an important form of controlPain is undesirableDeath only means of ending some painCompetent people have the right to make their own decisions Figure 7-7A convergent argument with linked elements. Chapter 7 Analyzing Arguments 101 to attend violent movies). This is not the sort of person who takes a pistol into a conve- nience store and robs it at gunpoint. And finally, Alice could not have been the robber because she was not in Key West when the crime was committed. She could not have been in Key West, because at 9:30 P.M. on August 9 she was in Miami, and there is no way to get from Miami to Key West in half an hour. There’s no doubt she was in Miami at the time, for a professor at the University of Miami testified that he talked with Alice at 9:30 P.M. on the night of August 9 while waiting in line to get popcorn at a movie theater in Miami. And he could not have been mistaken, because he recognized her from two seminars she had taken with him at the university. Also, the usher at the theater remem- bered seeing her there. The basic structure of this argument is convergent. The first strand of the argument (Figure 7-8) contains a convergent subargument to prove that Alice had no motive. The second strand of the overall convergent argument ends in the conclusion (the subconclu- sion) that armed robbery is out of character for Alice. That conclusion is supported by a convergent (sub)argument, as shown in Figure 7-9. The third part of the overall conver- gent argument is diagrammed in Figure 7-10. The third reason for the conclusion that Alice did not rob the Key West Convenience Store is the claim that Alice was not in Key West at the time of the robbery. That is in turn the conclusion of a linked subargument (if Miami were only 2 minutes from Key West, the sighting of Alice in Miami would carry no weight; and of course if Alice was not in Miami, it would make no difference how far Miami was from Key West). And there is another subargument (this time a convergent argument) in support of one of the linked premises: Alice was in Miami because her professor saw her in Miami and the usher saw her in Miami. Those two premises are convergent (even if the usher’s testimony is mistaken, the professor’s testimony would independently support the subconclusion that Alice was in Miami). Figure 7-8 A subargument. 102 Chapter 7 Analyzing Arguments Figure 7-9 A convergent subargument.

Figure 7-10 A subargument. Now it’s just a matter of putting all these arguments together. The resulting diagram is shown in Figure 7-11. The diagram might look formidable at first glance; but taken step by step, there’s really nothing difficult about it. As you check your diagram of an argument to see if the pieces are in the right place, start from the most basic premises and work your way up. At each step, ask yourself: Does this premise support the claim above it? Does it make sense to use this as a reason in support of the statement immediately above it? For example, check the line of argument running from “Alice’s parents are wealthy” up to “Alice should be found not guilty.” Chapter 7 Analyzing Arguments 103 Figure 7-11 The entire argument. 104 Chapter 7 Analyzing Arguments Is it diagrammed correctly? Well, does it make sense to say, “Alice’s parents are wealthy” andtherefore“Alice did not need money”? Yes, of course. (And it would notmake sense to say “Alice is gentle and nonviolent,” so therefore“Alice did not need money”; so if you had the argument diagrammed in that form, working upward would tip you off to your mistake.) Likewise, it makes sense to say, “Alice did not need money,” so therefore“Alice had no motive for the robbery.” And the next step also works: “Alice had no motive for the robbery,” so“Alice did not rob the Key West Convenience Store.” (Of course that’s not aconclusivereason for thinking Alice did not do the robbery, but certainly it’s a reason.) And the final step also works: “Alice did not rob the Key West Convenience Store,” and therefore“Alice should be found not guilty.” One note of caution as you check your argument diagram by moving up the ladder: You maycome to a point at which the under- lying premise does notsupport the next step, and yet your diagram of the argument is still correct. In that case, you have the correctdiagram for a fallaciousargument: an argument that commits the fallacy of irrelevant reason.

Of course this is not the end of argument analysis. We still must decide whether the premises are in fact true, and whether the premises—even if they are true—provide adequate support for the conclusion. And there is another essential step in analyzing arguments: determining what assumptions are embedded in the argument. That’s the task of the next section. Exercise 7-1 For the following arguments, state the conclusion;then diagram the overall structureof the argument, showing whether that structure is convergent or linked; and then add to your diagram the subargu- ments (if any) for each of the main reasons given in the argument. Finally, decide whether the reasons given are relevant or irrelevant.

1.You are obviously suffering from the Wyoming Gollywobbles virus; you have green and orange spots on your knees and elbows, and only the Wyoming Gollywobbles virus causes green and orange spots on the knees and elbows.

2.Capital punishment should be abolished, because carrying out the execution has a brutalizing effect on the prison officials involved; there is always the chance of executing the wrong person; and the violence of executions teaches the wrong lesson—that the way to solve problems is through violence.

3.We should stop eating so many prepackaged microwave dinners, because they contain a lot of salt, and eating a lot of salt can cause higher blood pressure, and higher blood pressure can cause heart attacks.

4.The United States must rapidly reduce its enormous stockpile of nuclear weapons. After all, the United States is now the only real superpower, and there is no country competing with the United States in a nuclear arms race. And besides, maintaining a large nuclear arsenal is enormously expensive—and we could use the money for better purposes, such as health care. And finally, we cannot really discourage other countries from developing and testing nuclear weapons as long as we hold a huge nuclear arsenal ourselves: It makes us look like hypocrites to say that they shouldn’t test nuclear weapons while we hold on to thousands of them.

5.The recent outbreak of dizziness and nausea among YSU students was caused by lawn chemicals used on the lawn between Cushwa and DeBartolo. Lawn chemicals must have been the problem, because the lawn was sprayed with herbicides very early on Tuesday morning, and all of the students who became ill attended Professor Ryle’s Philosophy 697 class, which was held that Tuesday morn- ing on the lawn between Cushwa and DeBartolo.

6.We know that it was one of the Teenage Mutant Ninja turtles who assaulted Shredder, because Shredder was karate-chopped by a reptile, and the Teenage Mutant Ninja turtles—Michelangelo, Leonardo, Donatello, and Raphael—are the only reptiles who practice karate. Shredder’s assailant could not have been Michelangelo, Leonardo, or Donatello, since they were all in a newsmaker interview with April O’Neill at the time of the assault. Therefore, Raphael must have assaulted Shredder. Chapter 7 Analyzing Arguments 105 7.The defendant is clearly guilty of murder. After all, the murder weapon was a pistol that was bought by and registered to the defendant. And when the pistol was found, the only fingerprints on the pis- tol belonged to the defendant. Also, two reliable witnesses heard pistol shots, and then identified the defendant as the person running away from the scene. And finally, several people testified that on the morning of the day when the murder occurred, the defendant and the murder victim had had a bitter argument, and the defendant had threatened to kill the victim. So, obviously, the defendant is guilty as charged.

8.When O. J. Simpson was tried for the murder of Nicole Brown Simpson and Ron Goldman, some of the most important evidence was O. J. Simpson’s blood found at the crime scene. The defense argued that the blood was from a blood sample Simpson had given to the police, and that the blood had been planted by the police in an effort to frame Simpson. One key part of their argument was the following: EDTA is a chemical that is added to blood when it is drawn as a sample (the EDTA helps to preserve the blood sample), and EDTA was added to the Simpson blood sample drawn by the police. EDTA does not occur naturally in blood at the levels that are added to blood samples. Significant levels of EDTA were found in the Simpson blood evidence from the scene of the crime. Therefore the Simp- son blood evidence from the crime scene must have been from the blood sample the police collected from O. J. Simpson and then planted at the crime scene. 2 9.We should stop spraying chemical pesticides and herbicides on the lawns at Western University.

After all, there are good natural alternatives for controlling insects and weeds. Also, the chemicals used pose a hazard to students, and are especially hazardous to children when they visit the campus.

Another problem is that when it rains, runoff from the chemicals runs into the sewer lines and contributes to water pollution. And finally, use of strong chemicals sets a bad example for the rest of the area: Western University should be taking the lead in reducing pollution, not contributing to pollution with the use of lawn chemicals.

10.Ladies and gentlemen of the jury, you must find the defendant, Elaine Slevert, guilty of fraud.

Let’s review the facts of this case. Elaine Slevert attempted to sell a painting that she claimed was “a genuine original Jackson Pollock.” But, in fact, the evidence shows that the painting is a forgery, because it was painted on a canvas purchased from Empire Fine Arts. But Empire Fine Arts did not open until 1957, and Jackson Pollock died in 1956. And this obviously was not a case in which Ms. Slevert was honestly mistaken about the work being by Pollock: For when she offered the paint- ing for sale, she claimed that she had been a friend of Pollock’s and had watched Pollock create the painting. So, in sum, the defendant represented this painting as the work of Jackson Pollock, when she knew it was not. So she is guilty of fraud, and that is the verdict you should return.

11.Look, we know the burglary was committed by someone on the football team, because all three witnesses agreed that the person they saw running away with the jewel box was wearing an official warm-up suit from the North State University football team, and only North State football players have those warm-up suits. It certainly was not a defensive player, since all the defensive players were in a team meeting with the defensive coaches. And it wasn’t an offensive player, since all of them are much too large to squeeze through the window where the burglar entered. The only players left are the punter and the placekicker. It wasn’t the punter, since he has a broken leg and couldn’t run.

So the burglar must have been the placekicker.

12.Ladies and gentlemen of the jury, you must find the defendant, Morton Miller, not guilty. For it is a cornerstone of our system of justice that if there is reasonable doubt that the defendant is guilty, then the defendant must be found not guilty; and surely in this case there is at least a reasonable doubt. That doubt arises from several sources. There is doubt, first, because the main witness who claims to have seen Miller rob and shoot the victim admits that the light was bad and that she was not wearing her glasses; so how could she possibly make a positive identification? And there is doubt, second, because the defendant had absolutely no motive for committing this vile murder and robbery: He had recently won a large lottery jackpot, and thus had no need for money. And, finally, there is doubt because there is good reason to think that the defendant was not even in the city at the time of the murder. For remember, his brother testified that Morton was with him in Albany (3 hours north of Brooklyn) the very night the murder was being committed in Brooklyn; and while you might doubt a brother’s alibi testimony under most circumstances, in this case the brother is a Jesuit priest, and he has a sterling reputation for honesty. Also, the waitress at Larry’s Albany Diner remembers someone who looks a lot like the defendant having dinner there—where Morton said he had dinner—at the very hour when the murder was being committed in Brooklyn. 106 Chapter 7 Analyzing Arguments All these factors add up to a more than reasonable doubt; and that reasonable doubt requires a verdict of not guilty.

13.In criminal cases, traditionally a unanimous verdict is required to find the defendant guilty: A defendant cannot be found guilty by an 11 to 1 or 10 to 2 verdict. But recently there has been a push to change this requirement. Louisiana and Oregon now allow nonunanimous verdicts, and there have been proposals in other states to allow criminal convictions by votes of 10 to 2 or 11 to 1. But such nonunanimous verdicts are a bad idea, for several reasons. The most obvious is that before we convict someone of a crime, we want to be very, very certain that that person is really guilty. Requir- ing that all 12 jurors unanimously agree that the defendant is guilty is one way of protecting against convicting the innocent. But there are other reasons that are almost as important, but are perhaps less obvious, for preserving the requirement of unanimity.

One of the things that we want the jury to do is not just vote and return a verdict, but to really deliberate together about the evidence. Requiring unanimous verdicts helps to guarantee such deliberation. Suppose you are serving on a jury, and you have some doubts about whether the defendant is really guilty. If a unanimous verdict is required for conviction, then all the other jurors have to address your reasons for doubting: Everyone has to take your reasons seriously, and try to show you why your doubts are mistaken. And at the same time, they have to consider your reasons for doubting, and perhaps they will be convinced by the reasons and arguments you offer. But if the jury can convict by an 11 to 1 vote, no one has to even listen to your reasons, if you happen to be the dissenting juror. There are already 11 votes for conviction, so no one need worry whether you are convinced or not. This is especially important in a diverse society like our own: On many juries, there may be only one or two members of important minority groups—perhaps only one African American, or one Asian, or one Latin American. If verdicts can be returned by an 11 to 1 vote, then minority members of the jury can be isolated and ignored, and their special contributions to the deliberative process may be lost.

Finally, it is important not only that justice be done, but also that it be seen to be done. It is important that the public believe, and have reason to believe, that those who are convicted of crim- inal acts really are guilty beyond a reasonable doubt. But if people are convicted and imprisoned when some of the jury members who heard all the evidence are notconvinced beyond a reasonable doubt of their guilt, then public confidence that those who are convicted are really guilty is likely to be undermined.

In sum, it is vitally important that we insist on unanimous verdicts in criminal trials: not only for the protection of the rights of defendants, but also to preserve some vitally important social goods. 3 14.Currently the United States has an inheritance tax, a tax on inherited estates that are valued in excess of about $2 million (i.e., there is no tax on estates until the value exceeds $2 million, considerably higher if the estate is a farm or small business). Some people want to entirely eliminate the estate tax, so that those inheriting estates of tens or even hundreds of millions of dollars would pay no tax on them. But the inheritance tax is positive and valuable. It ought to be retained, and perhaps increased.

After all, those who inherit huge sums of money, for which they did nothing, are not really benefitted.

To the contrary, having such a huge inheritance tends to make them lazy and less ambitious, and they tend to waste their talents. Second, the money that comes from inheritance taxes on huge estates can be used to provide those who are less fortunate—for example, those born in poverty—with access to good health care and a good education, and thus give them a genuine opportunity to achieve success.

And finally, when huge estates are passed on without being taxed, then over several generations— through stock investments and other capital investment returns—our democratic system of govern- ment is put at risk, for the inherited wealth tends to accumulate and become concentrated in family dynasties, and those enormously wealthy family groups gain great power and influence over the political process, and thus our democratic principles are threatened by such concentrated power.

Thus inheritance taxes are beneficial and valuable, and ought to be retained.

15.We should not ban hate speech at universities. For as ugly and hateful as racist and sexist and homophobic speech is, banning it only forces it underground, where it becomes even uglier and nastier as those whose ideas are not allowed free expression become even more bitter and resent- ful. Furthermore, banning such speech is not the best way to change the views of those who use such speech; instead of banning it, we must bring it out in the open and make clear how hateful and ugly and unfair such attitudes are, and openly criticize and refute those who hold such views.

And finally, a ban on speech is a dangerous thing: for once we ban speech that we find hateful and offensive, that opens the door to bans on all sorts of expression of opinion, including radical ideas. Chapter 7 Analyzing Arguments 107 16.It must have been Gwendolyn who stole the collected works of Spinoza from the departmental library last night. After all, the only people who have a key to the library are the philosophy faculty and the religious studies faculty. And it couldn’t have been one of the religious studies faculty, because they are too honest to steal anything. And all of the philosophy faculty except Gwendolyn were in Boston at the meeting of the American Philosophical Association, so they weren’t around the department.

17.We should stop giving faculty special parking places closest to the classroom buildings and instead give those spaces to students. After all, students deserve the best parking places, because they pay tuition. Also, faculty need the extra exercise they would get from walking farther to class. And fur- thermore, students usually have to carry heavier book bags than faculty carry.

18.Every citizen of the United States should have easy access to good quality health care. After all, we believe in equal opportunity for all our citizens: that belief is demonstrated by our commitment to the right of every child to have a good publicly funded education. And decent health care is essential for genuine equal opportunity, since you certainly don’t have equal opportunity if you are suffering from illnesses and can’t get treatment. So obviously we should guarantee good health care for every U.S. citizen.

19.Bruce is clearly guilty of robbing the Mahoning National Bank. Consider the evidence against him.

Although the robber wore a mask, the security cameras showed that the robber carried a .38 caliber revolver, and the day before the robbery Bruce purchased a .38 revolver. Also, the robber told the bank teller that “Placing all your money in this bag is a necessary condition of not getting hurt,” and only Bruce would say something that stupid. And finally, the stolen money was found hidden in Bruce’s garage.

20.It was Brendan Minogue who robbed the Home Savings Bank last week. It must have been Brendan:

obviously the bank robber was Irish, because he was singing “Danny Boy” when he walked into the bank; and we know the robber was a philosopher, because he was carrying a copy of Aristotle’s Metaphysics,and only a philosopher would carry Aristotle’s Metaphysicsto a bank robbery; and Bren- dan is the only Irish philosopher in the area.

21.The U.S. government should guarantee that every citizen of the United States has good health insurance. After all, providing health insurance for all would actually save us money overall, since it would encourage people to get early treatment rather than waiting until health problems become very severe and much more expensive to treat. Also, we claim to believe in equal opportunity for all citizens and health care is essential for equal opportunity. And finally, by providing health care for all our citizens, we would end the international embarrassment of being the only Western industri- alized country without universal health care.

22.Okay, let’s think about this carefully. Two hundred dollars was stolen from the special collection box in the Springfield Town Hall. Now we know that one of the Simpsons stole the money, because the money was in the box at 10:00 P.M. last night and then was missing at 8:00 this morning, and the Simpsons were locked in the Town Hall during that time, and they were the only ones there.

The money was tucked away in a cabinet with a very small entrance, and so we know the thief was not Homer, since Homer is too fat to get inside the cabinet. And it wasn’t Marge, because Marge is too honest to steal money; and besides, her hair is so large, she couldn’t have gotten inside the small cabinet. And it wasn’t Lisa, because Lisa was playing her saxophone the entire time she was in the Town Hall. And it certainly wasn’t the baby: the baby was always with Marge, and the baby wouldn’t be interested in the money anyway. So Bart must be the thief: He’s the only one who could have stolen the money. And after all, Bart is exactly the sort of greedy kid who would do such a thing. And there’s one other thing: this afternoon, Bart placed a $200 bet in the first race at Springfield Downs!

23.We should reduce the legal age for the purchase and consumption of alcoholic beverages to 18.

The current law does not really prevent people who are 18 to 20 from drinking: liquor is easily available to those who really want it. Furthermore, the law is so widely violated that it causes disrespect for the law, and undermines respect for our legal system among our young people.

Also, by making drinking illegal we force that age group to hide their drinking behavior rather than learning to drink responsibly and carefully with their families in public settings. And finally, there is the most basic reason of all: since we expect young people of 18 and 19 and 20 to serve as soldiers, risking and perhaps sacrificing their lives for their country, it is simply wrong to ask them to make such adult sacrifices for their country without giving them all the privileges of adulthood. 108 Chapter 7 Analyzing Arguments Exercise 7-2 How Do You Rule? You are the judge in a first-degree murder case. The defendant, Bryan Beacham, is accused of murderingArthur Attlee. The prosecution claims that Bryan andArthur had a heated argument in a tavern over a womannamed Isadora Krayzik. Following the argument, Bryanhid in the tavern parking lot until Arthur left the tavern,then Bryan ambushed Arthur, striking him in the backof the head with a heavy object, thus causing Arthur’sdeath. (No murder weapon was recovered.) Several prosecution witnesses testify that Bryan quarrelled with Arthur the night of the murder, and thatBryan threatened to kill Arthur. Another prosecution witness testified that Bryan was hanging around the tavern parking lot after leaving the tavern, andthat he was holding an iron tire tool. Members of an ambulance crew testified that they responded to an emergency call (the call was traced to a pay phone outside the tavern, but the caller remains unknown), and when theyarrived at the tavern they found Arthur lying unconscious and with no pulse in the parking lot.They attempted to restore breathing and pulse, and continued their efforts during the drive to theemergency room, but without success. The medical examiner testified that Arthur died as a result of a severe blow to the side of the head, which caused cardiac arrest and death. On cross-examination, however, the medical exam-iner admitted that it was possible that death had occurred from a heart attack, and that the blow tothe head occurred after death (though he insisted it was more likely that the blow to the headoccurred prior to the heart attack). Furthermore, the members of the ambulance crew testified(during cross-examination) that in their haste to get Arthur into the ambulance, one of the crewmembers had tripped, causing Arthur’s head to bump against the edge of the rear ambulance door. The defense called only one witness: Dr. Deborah Firestone, a specialist in forensic medicine, who testified that the cause of death was a severe heart attack, and that the blow to the headoccurred several minutes after the heart attack. Following Dr. Firestone’s testimony, the defense attorney asks that you—the judge—dismiss the charges against Bryan Beacham, since there is reasonable doubt that Arthur was the victim ofmurder, and thus the prosecution has failed to present sufficient evidence of Bryan’s guilt. Theprosecution objects, claiming that whether death occurred due to a blow to the head or due tonatural causes is a matter for the jury to decide, and that the evidence of Bryan’s motive, his intent(as voiced in his threat), and his opportunity to kill Arthur (he was waiting in the parking lot with apotential weapon) are such strong evidence that they offset any doubts about the medical evidence.The defense responds that if there is reasonable doubt about the cause of death, then none of theother evidence matters, and the charges should be dismissed. How do you rule? Will you dismiss the charges against Arthur, or allow the case to go to the jury? Exercise 7-3 Try constructing your own argument, and then diagram it. Then use the diagrams to improve your argument: Are there any gaps in your argument? Is each step adequately supported by reasons? Are there any crucial steps that need additional support? The following are some suggestions for argu-ments you might construct—and then diagram—yourself. 1. For the Consider the Verdict exercise on p. 71 , write a closing argument for either the prosecution(Diana Whetstone should be found guilty ) or the defense (Diana Whetstone should be found not guilty). Bob Daemmrich / Alamy Chapter 7 Analyzing Arguments 109 2.Write a closing argument for either the defense or the district attorney for the case of Nathan Jackson, in the Consider the Verdict exercise on p. 87.

3.Write a closing argument for either the defense or the district attorney for the case of Robert Ransom on p. 423.

ASSUMPTIONS : T HEIR U SE AND ABUSE We’ve been talking about the structure of arguments and how to get from premises to conclusions. But there’s another question, of course: How do we get the premises in the first place? There are lots of sources, and we’ll be examining some of them: eyewitness testimony, for example. But not all premises require further justification. Sometimes we simply agree to an assumed premise—everyone participating in the discussion accepts the premise as true, implicitly or explicitly—and then we go on from there.

Legitimate Assumptions It is sometimes said—usually in an oracular voice, as if imparting an ageless truth— that one should never assume anything. Balderdash. We couldn’t function without assumptions. When I drive through a green light I assume that the drivers for whom the light is red will stop. (If I refused to make that assumption and stopped to check, I would get rear-ended by the cars following me.) When I read a scientific report, I assume that the scientist has not deliberately faked the reported data. (If I felt I had to personally check all the results before I could profitably read a scientific report, I should certainly not read many.) When the weatherperson reports a severe blizzard in Minneapolis, I assume that he or she is honestly reporting from reliable sources, and I assume that the accompanying video of Minnesotans under the snow was not taken in Anchorage during 1979. (Sometimes, unfortunately, such trust is misplaced.

Fox News has run inaccurate video reports—such as claiming that a video of a large crowd came from a Sarah Palin book signing event, when in fact it came from a McCain–Palin rally during McCain’s presidential campaign. When that happens, we legitimately lose confidence in that source.) When scientists do research, they operate from many givens that are not brought into question by that particular research project. Research on lasers, for example, might make use of our knowledge of the speed of light—without testingwhat we believe to be the actual speed of light.

(Of course if the research goes badly, one mightthen critically examine the underlying assumptions.) Consider this argument: We should ban the manufacture and sale of lead-based paints. Think about what happens when you paint your house or apartment. You paint over the paint that was there, and even- tually your paint is painted over, until the result is a thick coat of lead-based paint that ulti- mately begins to peel and flake. The small children in the house pick at the paint, then put their fingers—or even flakes of paint—into their mouths. Through these and other events, a substantial portion of the lead may ultimately end up in the children, and thus in their bloodstreams. And when that happens, the children suffer from lead poisoning, which may cause mental retardation, nervous disorders, blindness, and even death. Therefore, lead- based paints should be banned. That seems to me a good argument. In fact, it is essentially the argument that brought about the ban of lead-based paint in most countries. But it contains a crucial assumption that is left unstated. It is a perfectly legitimate assumption, and it is so obvious and widely accepted that it is almost impossible to pick out. You may be able to find several unstated 110 Chapter 7 Analyzing Arguments assumptions in that argument; but the most basic assumption—or at least the most basic unstatedassumption—is quite difficult to detect. Have a go at it before you peek at the next paragraph.

The assumption is: We don’t want children to suffer mental retardation, nervous disorders, blindness, or death. Now that is hardly a controversial assumption; in fact, it is because it is so universally accepted that it is both difficult to detect and unnecessary to state. (If we added to the argument “And we do not wish children to go blind or die,” that would strike most people as belaboring the obvious.) And remember the argument about Alice not being guilty? The main reason was that the crime was committed in Key West, and Alice was in Miami at the time. Alice could not have been the robber, since Alice was not in Key West when the crime was committed. She could not have been in Key West, because at 10:00 P.M. on August 9 she was in Miami. But that involves an essential (unstated) assumption: It is impossible for someone to be in two different places at the same time. That is hardly an assumption that needs to be noted or supported: No further evidence or expert testimony is required to back it up. (That is not to say that it is never disputed: Some “psychics” claim to be in at least two different places—maybe more—simultaneously, through out-of-body experiences. Still, the assumption that if Alice was in Miami, then she was not in Key West at the same time seems a safe and legitimate one.) And the moral of the story is a simple one: Assumptions are sometimes perfectly legitimate.

We often make explicit assumptions—sometimes when we are in fact doubtful of their truth—in order to consider what would follow from them: “Assuming that the track remains very muddy, which horse do you think is more likely to win the Kentucky Derby?” “If we assume that the inflation rate will be low during the next year, what do you think will be the average increase in industrial wages?” In some cases, it is useful to assume things that one believes are falsein order to show that even if they weretrue a certain conclusion still would not follow:

“Look, even assuming that Richard Nixon knew nothing about the Watergate break-in before it occurred, he still deserved to be impeached for helping to cover it up.” “Even assuming that all the Sandinistas are doctrinaire Marxists, it still doesn’t follow that we should support groups like the Contras who commit terrorist acts against the civilian popula- tion of Nicaragua.” “Even if it were true that the tobacco companies really want to curb teenage smoking, it still would not be a good idea to leave efforts to reduce underage smoking to the discretion of the tobacco industry.” In short, assumptions are not the enemy. Assumptions may be wrong, of course. In the case of science, if we try to duplicate a scientist’s findings and consistently find it impossible to do so, we may eventually conclude that we were mistaken in assuming that that particular scientist was reporting data honestly. If we run experiments and our results constantly conflict with our predictions, we may eventually come to believe that some of our operating assumptions were mistaken. We do occasionally find that we operated on mistaken assumptions; when that occurs we reject that assumption and try again, but we do not reject allassumptions.

So it is legitimate and probably essential to operate from some assumptions. The goal is not to eliminate all assumptions; rather, the point is to recognizethe assumptions being made, especially the key ones. Chapter 7 Analyzing Arguments 111 Enthymemes While we’re on the subject of unstated assumptions, this may be a good time to talk about enthymemes,which is just a classy name for a common phenomenon. An enthymemeis an argument that contains a premise that is regarded as so obviousthat it need not be stated.

We’ve looked at a couple already: the argument about Alice not being in Key West because she was in Miami (the obvious unstated premise is that if she is in Miami, then she can’t simultaneously be in Key West); and the argument about the hazards of lead-based paint, with its unstated premise that the damage and death of small children should be prevented.

My grandmother was fond of enthymemes. When I was a boy, when my grandmother thought “my eyes were bigger than my stomach,” and that I had taken more food on my plate than I was likely to eat, she would rebuke me with one of her favorite sayings: “If you eat all that, then I’m the Queen of Sheba.” Since it was obvious that my grandmother was not the Queen of Sheba, her conclusion was clear: “You’re not going to eat all that.” Grandmothers aren’t the only source of enthymemes. “Either I’ve got the best used-car deals in town, or my name’s not Honest Bill Barton. So come on down to Hon- est Bill’s Used Cars, ‘cause Honest Bill is dealin’, darlin’.” Well, it doesn’t take a rocket scientist to figure out that the conclusion of Honest Bill’s argument is that “I’ve got the best used-car deals in town,” and that the unstated premise in this enthymeme is, My nameisHonest Bill Barton. (Honest Bill’s argument is valid;whether it’s soundis a very different question.) Illegitimate Assumptions In order to combat the mistaken assumption that assumptions are typically false, and should always be shunned, we have examined some legitimate and useful assumptions.

But, of course, some assumptions arefalse (such as the common assumption that it is always wrong to make assumptions) or at least are controversial. Such illegitimate assump- tions cause problems, and they are not infrequent.

In uninspired mystery novels, the chief inspector assumesthat the foul murder was committed by either the duke or the cook; and in such cases, you can be confident that the villain is the duchess, or perhaps the butler, but certainly not the suspects who were assumed to be the only alternatives. And when the president of the university announces that the university must either cut classes or raise tuition, that may also be a false assump- tion: perhaps cutting salaries or reducing overhead should also be considered. When one of your fellow jurors announces that the defendant must be guilty, because she did not testify in her own behalf, that juror is operating from a common but false assumption:

that the defendant must prove her innocence.

The problem is not with assumptions as such; assumptions are often legitimate. Nor is there a special problem with unstatedassumptions. In the earlier examples, the assump- tion that Alice could not be in two places at the same time and the assumption that we do not want children to die are both left unstated, but they are so obvious and acceptable that they do not require statement. The problem is with controversialassumptions: assump- tions that are false or at least require further support. Such controversial assumptions are particularly insidious when left unstated.

For example, many of the purveyors of pain-relief medications tout their products asextra strength.Anacin ®4 runs a catchy little commercial in which “the Anacin difference” is strongly emphasized: The two standard aspirin tablets contain a total of 650 milligrams of aspirin; but each tablet of Anacin contains 400 milligrams of aspirin, for a total dose of 800 milligrams if two are taken. The announcer in the commercial points out this difference, and then asks the shopper which she plans to take when she next has a headache; the answer, of course, is that she plans to take Anacin and get the extrapain relief, the Anacin differenceof an extra 150 milligrams of aspirin. 112 Chapter 7 Analyzing Arguments The Anacin commercial contains a very important unstated assumption. What is it?

(Leave aside the fact that by simply taking three generic-brand aspirin tablets of 325 milligrams each, you could get more aspirin for less money than by taking two 400-milligram Anacin tablets.) In trying to detect the unstated assumption in the commercial,firstask, What is the conclusionof the commercial’s argument? With the conclusion in view, it may be easier to detect the tricky unstated assumption.

The conclusion is just that two 400-milligram tablets of Anacin (aspirin) will be more effective in relieving headache than two 325-milligram tablets of aspirin. The unstated assumption is that 800 milligrams of aspirin will provide more effective headache relief than will 650 milligrams of aspirin. That soundslike an innocent enough assumption; but in fact it is false. Clinical studies on the effects of different dosages indicate that at 650 milligrams of aspirin, the dose–response curve levels off markedly. In other words, most people will notget more effective headache relief by taking 800–1,000 milligrams of aspirin than by taking 650 milligrams. A seemingly insignificant and unstated assumption turns out to be crucial for establishing the conclusion that Anacin is better: It is a crucial assumption, and it is false. 5(Though the 800 mg dose won’t relieve your headache any better than the standard 650 mg, there is one significant difference:

the 800 mg dose is more likely to cause nausea.) We typically operate under basic assumptions that shape the way we think about our world and our society. For example, our debate over national economic policies may take place within a controlling, unexamined framework of assumptions about distribution of wealth, rights to profits, and control of capital, and those invisible assumptions may tightly constrain the sorts of options and changes that can be considered. In another instance, a Senate committee might examine scrupulously the most effective method of distributing the limited supply of childhood vaccinations, but remain unaware of the structural assumptions that allow the pharmaceutical industry to control prices and limit supply; examination of those key assumptions might eliminate the problem of how to deal with vaccine shortages. The university’s animal research committee may scrutinize new ways of ventilating cages and reducing the suffering of research animals, while remaining blind to their basic operating assumption that it is acceptable to use animals for research. The slaveowner may examine whether working conditions and living quarters could be improved, while being unable to see the monstrous controlling assumption of the legitimacy of slavery. And Ptolemaic astronomers may develop elaborate and elegant accounts of planetary motion, while leaving unexamined the controlling assumption that the Earth is stationary. Good critical thinking often involves reasoning from assumptions, but the best critical thinking also requires the ability to critically examine those assump- tions, including the most basic social and institutional assumptions of our society. What Does Fire Consume?

In scientific research—as in other areas of thought—it is the unrecognizedassumptions that are most trouble- some. Those assumptions are likely to be embedded in the questions posed by the scientific investigator. For example, eighteenth- and nineteenth-century biolo- gists asked what purposewas served by the existence of such a variety of species. Darwin recognized that the assumption that such variety had to be explained in terms of purposeswas questionable, and he was able to develop his mechanistic theory of natural selection by abandoning talk of purposes. Many researchers of theseventeenth and eighteenth centuries endeavored to discover what leaves the object when it is burned (What does the fire “consume” when something is “consumed by fire”?). The assumption was so natural and pervasive that it led to the development of an elaborate theory of phlogiston: Phlogiston was supposed to be the com- bustible material in an object, which was removed when the object burned. But by questioning that assumption, Lavoisier was able to recognize oxygen as a distinct gas and thus laid the foundation for modern chemical theory. Chapter 7 Analyzing Arguments 113 Assumptions can be legitimate and acceptable in the right setting, and they can be misleading and suffocating in the wrong setting. When someone tries to slip in as an assumption a point that is critical to an argument and that is also a point that might be doubted by some parties to the argument, assumptions are being used in a misleading way (more about that in Chapter 13 on begging the question). But when assumptions are used to specify some points of agreement (perhaps tentative or hypothetical or local or condi- tional agreement) so that attention can be focused on the key issues being contested, assumptions can do valuable work. It’s impossible to argue about everything at once. If the assumptions that are operating are clearly spelled out and agreed upon, it may be possible to focus attention on the key issues. And assumptions need not be carved in stone: Today’s assumption can be critically examined—and perhaps rejected—tomorrow. Exercise 7-4 What are the important assumptions in these arguments? (Be sure to note any important unstated assumptions.) 1.The defense attorney argues, “Ladies and gentlemen of the jury, it is now up to you to consider a verdict in this case. When you look carefully at the evidence, I am confident you must reach a verdict of not guilty. The prosecution has simply failed to establish that my client burglarized Jones’s Grocery. There is no physical evidence placing him at the site, and the only eyewitness testimony was given by a witness who has a long record of perjury, and who admits that he is giving testimony in the hope of getting a shorter sentence for himself. In short, the prosecution has not proved that the defendant is guilty. Therefore, you must return a verdict of not guilty.” 2.It is wrong to raise animals for food. After all, it is wrong to inflict suffering on an animal—on any sentient creature—unnecessarily (when it is merely for the pleasure of enjoying meat, and not out of necessity).

3.We must overhaul the U.S. health-care system. The United States spends more per person—and a higher percentage of its gross national product—for health care than does any other nation. And our health-care costs continue their upward spiral. Yet while we spend more than any other coun- try, we also have tens of millions of people with no health-care coverage and no access to medical care. And we have the highest infant mortality rate of any industrialized country. It will not be easy, but major changes are imperative.

REVIEW QUESTIONS 1. What is the first step in critically analyzing an argument?

2. Define, compare, and contrast convergent arguments and linked arguments.

3. When are argument assumptions legitimate? When should they be questioned or challenged?

4. Under what circumstances might you accept an argument assumption that you believe to be false?

5. What is an enthymeme? NOTES 1Mr. Justice Darling’s summing-up to the jury is quoted in Edgar Lustgarten, The Murder and the Trial (London: Odhams Press Limited, 1960), pp. 59–60.

2The prosecution presented evidence that EDTA (at the levels found in Simpson’s blood from the crime scene)doesoccur naturally (in blood that is notspecially treated with EDTA). Thus, they attempted to break the middle link in the chain.

Studyand Reviewonmythinkinglab.com 114 Chapter 7 Analyzing Arguments ReadtheDocumentonmythinkinglab.com A number of books give excellent guidance in analyzing arguments. One of the best is Michael Scriven, Reasoning (New York: McGraw-Hill, 1976). Another useful approach is offered by Steven Toulmin, Richard Rieke, and Allan Janik in An Introduction to Reasoning,2nd ed. (New York:

Macmillan, 1984); it also contains an excellent section on appeals court reasoning.

For an approach that offers insights into the way reasoning proceeds in the most ordinary settings, see Douglas N. Walton, Plausible Argument in Everyday Conversation(Albany, NY: State University of New York Press, 1992).

Good discussions of the special requirements of legal reasoning can be found in Martin P. Golding, Legal Reasoning(New York: Alfred A. Knopf, 1984) and KennethJ. Vandevelde, Thinking Like a Lawyer: An Introduction to Legal Reasoning(Boulder, CO: Westview Press, 1996). The classic text on legal reasoning is Edward H. Levi, An Intro- duction to Legal Reasoning(Chicago, IL: The University of Chicago Press, 1949), but it’s not easy sledding.

The great French physical scientist of the early twenti- eth century Pierre Duhem was particularly clear on the role of assumptions in scientific research. See Pierre Duhem, The Aim and Structure of Physical Theory,translated by Philip P.

Wiener (Princeton, NJ: Princeton University Press, 1954).

For another view of how science operates (and of how assumptions are used and are overthrown), see the fascinating book by Thomas Kuhn, The Structure of Scientific Revolutions,2nd ed. (Chicago, IL: The University of Chicago Press, 1970). 3This argument is adapted from Chapter 5 of Jeffrey Abramson’s We, the Jury(New York: Basic Books, 1994).4Anacin is a registered trademark of American Home Products Corporation, New York.5The information on pain relievers is taken from an interesting and informative article in Consumer Reports 47, no. 8 (August 1982), pp. 395–399. INTERNET RESOURCES OpenCourseWare on Critical Thinking, Logic, and Creativity is an excellent site covering many topics in critical thinking. For good examples of (what they call) “argument mapping,” go to http://philosophy.hku.hk/think/arg/complex.php. ADDITIONAL READING Daryl A. Bergman, “War on Drugs Fails.” If you dia- grammed Bergman’s two arguments, would each argu- ment be convergent or linked?

Mary Anne Warren, “On the Moral and Legal Status of Abortion,”Monist,Vol. 57, no. 4 (1973), pp. 43–61. This is a well-known argument in favor of the right to an abor- tion; try drawing a diagram of that argument.

Watchtower Bible and Tract Society of New York v.Village of Stratton, 536 U.S. (2002). In this case, a group of Jehovah’s Witnesses wished to go door-to-door in thevillage of Stratton, giving away literature and attempting to win converts. Stratton requires that all door-to-door canvassers register with the mayor’s office and secure a permit. The group of Jehovah’s Witnesses objected to securing a permit before going door-to-door, arguing that such a requirement would violate their First Amendment right of free speech. Starting with Section III of the Court opinion written by Justice Stevens, diagram the argument given by the Court in reaching its judgment, including the conclusion reached in that argument. The Burden of Proof 8 ❖ ❖ ❖ The first step in critically analyzing an argument is determining the conclusion. The second step is determining who bears the burden of proof.

I claim that extraterrestrials have built an amazing undersea city, deep in the Pacific Ocean. They are mining natural resources from below the ocean floor, and transporting these resources back to their home planet through a fleet of interstellar cargo ships. You have doubts about the existence of this ET city, and challenge me to specify its location. I can’t, but I’m still sure it’s there. You ask for photographs of the city; I have none. Are there unusual findings from oceanographic research that would indicate the presence of such a deep sea metropolis? I have no such data. Are there any reliable witnesses who have seen the city? None. But I am firm in my claim: Look, the Pacific Ocean is vast and deep, and most of the ocean floor is unexplored. If you are so skeptical about the undersea city, then provethat it does notexist. And if you can’t prove that the ocean floor does not contain such a city, then that is strong evidence that such a city exists. At the very least, you should keep an open mind about the possibility of such a city, and put your skepticism aside.

W HO BEARS THE BURDEN OF PROOF ? You aren’t likely to buy the existence of an ocean-bottom ET city as a result of this flimsy argument. There was no real proof for the claim, and anyone making a claim or an accu- sation bears the burden of proof.The person making the claim must prove it true; it is not up to others to prove it false. The fallacy of appeal to ignoranceis committed when some- one argues that because his or her claim cannot be proved false, it therefore should be accepted as true. But the fact that a claim cannot be proved false is no grounds for believing it true. (Certainly it does not prove that it is nottrue; it may be true, even though it is not proved so. But failure to prove a claim false is notproof of the claim’s truth.) Attempts to shift the burden of proof are common. In 1988, television evangelist Pat Robertson made an unsuccessful run for president of the United States; during his Listento the Chapter Audio on mythinkinglab.com 115 116 Chapter 8 The Burden of Proof campaign he claimed that there were—or at least might be—Soviet missiles in Cuba.

Since all indications—from spy satellites, for example—were that there were no such missiles, the question naturally arose as to what evidence the Reverend Robertson could offer for his dramatic claim. Having none, Robertson attempted to shift the burden of proof to the other side: His claims were supported by the fact that U.S. intelligence could not conclusively prove that no such missiles existed in Cuba. And of course Robertson was partly correct: Neither the U.S. intelligence service nor anyone else could conclusively prove that there were no Soviet missiles cleverly concealed deep in some Cuban cavern or Placing the Burden of Proof The “preliminary” question of who bears the burden of proof often has great influence on which side prevails in an argument. Suppose that I am a school district superintendent, and I impose a regulation requiring that teachers beyond the fourth month of pregnancy must take an unpaid leave of absence from their teach- ing jobs. You claim that this rule is unfair to women teachers, because it unreasonably deprives them of the opportunity to work. (There is no reason why most pregnant teachers cannot continue to teach effectively; some individuals may be incapacitated by pregnancy, but that should be decided on a case-by-case basis.) Does such a regulation treat women unfairly?

Before you answer that, think about the prior ques- tion: Who bears the burden of proof? You are claiming that my rule unfairly discriminates against women; is it up to you to prove that the rule places a special hardship on women? Or should the burden of proof be on me?

After all, I proposed the rule; should it be my burden to prove that the rule does notunfairly discriminate?

That is a difficult question. The U.S. Supreme Court attempts to resolve it this way: If you want to claim that a law or rule treats you unfairly, then you generally have the burden of proving that unfairness; however, ifyou are a member of a group that has traditionally suf- fered discrimination and unfair treatment (such as women, African Americans, members of a persecuted religion, and the physically challenged) and you claim that the law treats members of your group unfairly, then those passing the law bear the burden of proving that it isnotdiscriminatory. That seems to me a legitimate way of placing the burden of proof in such cases, though it is certainly a difficult issue. In any case, we can leave fur- ther discussion of that question for your seminar in Constitutional Law. The immediate point is that placing the burden of proof can be a very difficult question, and a very important question. When a pregnancy leave case came before the U.S. Supreme Court (Jo Carol LaFleurv.

Cleveland Board of Education), the Court ruled on January 21, 1974, that the school board had failed to demonstrate that their pregnancy leave rule was not discriminatory toward women (a group that had traditionally suffered discrimination), and so struck down the rule. Women might well succeed in proving that such rules are discriminatory, even if they bore the burden of that proof; but with the burden on the other side to prove that the rule is notunfair, women teachers certainly had an easier path to victory. 1 A Burden of Proof Tragedy Placing the burden of proof may be a life or death ques- tion. The 1986 explosion of the Challengerspacecraft cost the lives of seven people. The accident was traced to problems with the O-rings, which did not function properly in the freezing weather at the time of the launch, allowing fuel to leak and thus causing the deadly explosion. Morton Thiokol was the company that manu- factured the O-rings, and prior to the planned Challenger launch, engineers from Morton Thiokol raised the possi- bility of danger from the frozen O-rings. In the past, if anyone raised reasonable doubts about the safety of a launch, then there had to be solid proof that the supposed danger did notexist before the launch couldproceed: The burden of proof was always on those who claimed that it was safeto launch. But in this case the pre- sumption was reversed: The spacecraft was presumed to be safe, and anyone raising doubts had to conclusively prove that there was genuine riskin order to stop the launch. The Morton Thiokol engineers could show reasonable grounds for concern (the O-rings had not been tested in freezing conditions); but they could not demonstrate that the O-rings actually would malfunction in the cold and thereby cause an explosion. Since the burden of proof was (wrongly) placed on the engineers to prove danger rather than on the launch team to prove safety, the launch proceeded to its disastrous end. 2 Chapter 8 The Burden of Proof 117 hidden in some other unknown—and unspecified—location. But that certainly does not substantiate Robertson’s claim, no more than the fact that we cannot prove that no brontosauruses live in caverns deep below New Orleans proves the existence of subter- ranean brontosauruses, and no more than the fact that we cannot prove that there are absolutely no extraterrestrials disguised as earthlings proves that we are in the midst of extraterrestrials. The person making the claim—of Soviet missiles, brontosauruses, or extraterrestrials—bears the burden of proof.

APPEAL TO IGNORANCE The sensationalist tabloids have a field day with the appeal to ignorance. They publish scandalous accusations concerning the lives and loves of movie stars and politicians and then—insupportof those stories—they point out that: “Two weeks ago we published an exclusive story about Ima Starr’s torrid love affair with the Ambassador to Rutabaga; if it’s not true, they should deny it, but since they haven’t denied it, much less offered any proof that it is false, then it must be true.” But Ima Starr and the ambassador are caught in a bind: If they ignore the story, a few people will believe it, but most will ignore it and it will soon pass, since none of the major newspapers or television networks will consider the story reliable. However, if they deny the story, then thatis news—whenever a film star and an ambassador issue statements, the press considers it newsworthy—and those denials (along with the chargesbeing denied) will receive national news coverage, and the story will not blow over quickly. So even if there is not a grain of truth to the charges, it’s unlikely that a denial will be issued. And more to the point, it’s not up to them to prove the charges false(think for a moment of how difficult it would be to provethat you did not have a secret love affair with someone); the burden of proof rests on those making the charges.

A variation on this problem occurs when a snake oil salesman—for example, someone touting the miraculous healing powers of magnets—challenges the medical community to debate: “I’ve proposed that a panel of distinguished medical researchers and physicians examine the wonderful benefits of my Salumagnetomed System, and I’ve offered to meet with them anywhere and give my evidence; I challenge them to debate me! But they keep refusing!” So why won’t the AMA convene a panel to debate this wonderful new magnetic health system? For two reasons. First, such systems have already been examined carefully, and found to be useless; and if researchers took up every new variation of such quackery, they would have no time for legitimate research. And second, if a panel of “distinguished medical researchers and physicians” meet with this quack— even to roundly condemn it as fraud—he will immediately include it in his advertising, and it will greatly increase his credibility: “Try my new Salumagnetomed System, which was recently the focus of a full AMA-sponsored conference, drawing the attention of such distinguished researchers as...”; well, you get the picture. If legitimate scientists and physicians appear on the same platform with such quacks, it gives the quacks instant credibility: distinguished medical scientists believe it is worth taking this new magnetic therapy system seriously, and its inventor is seated on the same panel with legitimate scientists, just one top medical scientist among others.

THE BURDEN OF PROOF IN THE COURTROOM There is a special setting in which it is vitally important to remember who bears the burden of proof, and in this setting—unfortunately—the fallacy of appeal to ignorance occurs with frightening regularity: the jury room. It is now a cornerstone of the American and British systems of criminal justice that a defendant is “innocent until proven guilty.” And in fact, the principle of “presumption of innocence” was already an essential element of English law when the earliest British settlers arrived in the American colonies, and thus 118 Chapter 8 The Burden of Proof it can be found in the earliest rules of legal procedure formulated by the British colonists in New England. The principle that the burden of proving guilt rests on the prosecution continued to be a feature of colonial American judicial procedure, even when (as in the witchcraft trials) courts were not particularly careful concerning the quality of “evidence.” This basic principle of justice is fundamental to the justice systems of many countries; for example, it is a prominent element of the Canadian Charter of Rights and Freedoms, it is a central principle of Australian Common Law (and part of the Victorian Charter of Human Rights and Responsibilities), and is one of the basic rights recognized in the 1789 French Declaration of the Rights of Man and of the Citizen.

Presumption of Innocence Why is the “presumption of innocence” so important? First and foremost because it is simply the correct manner of reasoning. The burden of proof rightly belongs on the party that makes a claim, whether that claim is a pharmaceutical company’s claim that a new drug is “safe and effective” or a tabloid’s claim that extraterrestrials are hiding in Mammoth Cave or the state’s claim that an individual committed a crime. If the proof can be supplied, fine; but failure to either prove or disprove the claim is just that: a failure to prove anything, which leaves the safety of the drug in doubt and the guilt of the defendant unestablished.

There is a second reason why the burden of proof lies with the one making the claim.

If one were allowed to “appeal to ignorance” (appeal to the failure to disprove the claim) in order to “prove” a claim, then one would be able to “prove” the most extraordinary things. For example, it is quite impossible to prove that there is nota group of invisible extraterrestrials lurking in the depths of the Indian Ocean, but we should be loath to count that as proving the presence of such beings. It is not possible to prove that Rousseau never had a very secret love affair with Marie Antoinette, but lack of disproof of such an affair does not prove that such a tryst occurred. More to the point, imagine trying to prove that you are innocent of a murder that occurred at 11:00 P.M. 3 years ago. Unless you keep a remarkably good diary, you probably don’t have an exact recollection of where you were at that time, much less a convincing alibi. (Even if you distinctly remember being in the college library with a friend all that evening, will your friend remember it? And will your friend be absolutely certain that you didn’t leave—for perhaps half an hour around 11:00 P.M.—just long enough to commit the foul crime of murder?) In fact, if failure to disprove the charges were counted as proof of those charges, then we would never have an unsolved crime: Almost any crime that occurred could be “proved”—by appeal to ignorance—against some unfortunate reclusive individual who was not seen by anyone during the time of the crime. Such appeals to ignorance certainly have advantages: They have (to borrow Bertrand Russell’s phrase) “all the advantages of theft over honest labor.” There is another reason for favoring a strong presumption of innocence. It has less to do with logic and more with our principles of individual freedom and justice. We believe that the rights and freedom of the individual are fundamental, and we oppose sacrificing individ- ual rights and autonomy for the benefit of the state; therefore, the general presumption must be that the individual’s rights and freedom should not be interfered with. Any denialof individual liberty (through criminal sanctions) requires powerful overriding reasons and the strongest and most conclusive proof. Placing the burden of proof on the defendant violates principles of liberty as well as logic. Unfortunately, jurors often reverse the burden of proof.

Dr. Stanley Brodsky tells of a jury questionnaire he gave to potential jurors prior to a murder trial in Kentucky. One of the questions was, “No matter what the law says, do you agree that a defendant in a murder trial should have to prove his innocence?” Over 40% of the poten- tial jurors marked their agreement with requiring the defendant to prove innocence—and it is likely that there were others who agreed but were reluctant to admit it.

What is involved in the “presumption of innocence” for the defendant? Most obviously, the defendant does not have to prove anything. The full burden of proof rests on the prosecution, and if the prosecution leaves a reasonable doubt after the presentation Chapter 8 The Burden of Proof 119 of its case, the defense need do nothing at all. And if the prosecution hasmanaged to make a strong argument for the guilt of the defendant, the defendant need not totally shatter that argument; instead, the defense need only show that the prosecution’s argument is not quite convincing. The defendant need not establish his or her innocence. Unless the pros- ecution can build a case that both firmly establishes the defendant’s guilt and withstands all attempts by the defense to raise doubts about the case, the jury should conclude that the prosecution has not proved its case and should therefore vote not guilty.

When the Defendant Does Not Testify The presumption of innocence is a basic principle of logic and of Anglo-American criminal law. But jurors sometimes forget the principle: They reverse the order and demand that the defendant “prove he’s not guilty” or “clear herself of the charges.” And there is a more subtle way in which mistakes are made about the burden of proof in criminal proceedings. When the defendant does not testify in his or her own behalf, many jurors weigh that very heavily against the defendant. But the defendant has no obligation to testify. It is not the responsibility of the defendant to prove innocence: The full burden of proof rests on the prosecution.

U.S. and Canadian courts recognize that the defendant has no obligation to testify on his or her own behalf, and judges in both countries are careful to remind jurors that the decision of a defendant not to testify in no way counts against the defendant. But all too often the defendant’s decision not to testify does create a presumption against him, due to the fallacious reasoning of some jurors. Jurors are apt to think that “He didn’t clear himself of the charges so he must be guilty” or “If he were not guilty he would want to take the stand and deny the charges, so he must be guilty.” Or perhaps they continue to give lip service to the principle that the defendant need not testify, but in their actual deliberations they may still count the defendant’s nontestimony against the defendant. But that is pure appeal to ignorance: He hasn’t proved the charges false,so they must be true.

Until the end of the nineteenth century, defendants in British criminal cases were not allowed to testify in their own behalf. The Criminal Evidence Act of 1898 gave the defendant the right, if he or she chose, to be placed under oath and give testimony.

There are many obvious benefits to such a change, and no doubt it is on the whole a Guilt Not Proven In almost every country, juries in criminal trials have only two possible verdicts: guilty or not guilty. (Of course the jury may not be able to reach a verdict, resulting in a “hung jury”; and in cases when there are multiple charges, juries may find the defendant guilty of some charges and not guilty of others; and in some cases, juries may choose among different charges, such as manslaughter or second-degree murder or first- degree murder; but in each case, the question ultimately comes down to guilty or not guilty.) Scotland is different. Juries in Scotland—in a tradition that is centuries old—have the third option of a “guilt not proven” verdict. This “guilt not proven” verdict (sometimes called the “Scottish verdict”) is legally equivalent to a verdict of not guilty: when a jury returns a verdict of “guilt not proven,” it means that the defendant is exonerated and cannot be retried on those charges. It is sometimes suggested that other countries adopt Scotland’s third verdict of “guilt notproven.” Would that be a good addition to our criminal justice system?

On one hand, the “guilt not proven” verdict seems a bit silly, since that’s exactly what a “not guilty” verdict is (or at least that’s what it’s supposed to be). And it seems a gratuitous slap at the defendant; it’s like saying, “We don’t have enough evidence to determine that you are guilty, but we think you might be.” However, if it reminds jurors of exactly what must be proved (and keeps them from returning a guilty verdict just because the defendant has not been able to prove his or her innocence), then it might be desirable. It would be an important reminder that the prosecution bears the entire burden of proof, and that if the prosecution fails to meet that requirement then the defendant must not be convicted. Under the presump- tion of innocence, if the prosecutor failsto prove the defendant’s guilt, then the defendant is entitled to an acquittal, whether that acquittal is in the form of “not guilty” or “guilt not proven.” 120 Chapter 8 The Burden of Proof great improvement in trial procedure and a salutary extension of the rights of the indi- vidual. However, it is by no means an unmixed blessing: Once given the rightto give testimony on their own behalf, jurors started to expectdefendants to take the stand and deny their guilt; and if the defendant did not testify, jurors often switched the burden of proof—“the defendant would not even deny the charges against him, so he must be guilty”—and counted the failure of the defendant to testify and to establish his innocence as proof of guilt. The right of a defendant to testify is an important right; but if jurors interpret that right as an obligationto testify, or as an obligation that defendants prove themselves innocent, then that right has become a terrible wrong which can and does result in wrongful convictions. And after that act there was also a danger that by not going into the witness box the defendant might lead the jury to conclude that the defendant is unable to establish innocence, and that is an equally mistaken version of misplacing the burden of proof and committing the fallacy of appeal to ignorance.

Juries and the Burden of Proof Consider where the burden of proof lies in this fictional example of a jury debate. 5The defendant is charged with the criminal possession of a prohibited drug. Two arresting police officers testify that they chased and caught the defendant, took him to the police Sacco and Vanzetti The fallacy of appeal to ignorance is at home in the supermarket tabloids and scandal sheets, but it occasionally shows up in more respectable settings. In Sacco & Vanzetti: The Case Resolved,Francis Russell argues that Nicolo Sacco was in fact guilty of the crime for which he was executed. (The Sacco–Vanzetti case is per- haps the most famous—or infamous—American crimi- nal case in the twentieth century. In 1920, in South Braintree, Massachusetts, two gunmen shot and killed a paymaster and guard and stole a payroll. Nicolo Sacco and Bartolomeo Vanzetti were both active in the anarchist political movement and were thus mistrusted by the authorities. They were arrested and—largely on the basis of some rather shaky eyewitness testimony— were convicted of murder. They were electrocuted on August 27, 1927, still steadfastly asserting their inno- cence.) One of Russell’s arguments for the guilt of Sacco is the following (it is contained in a letter Russell wrote to Dante Sacco, the son of the man who was executed): I cannot look on him [Nicolo Sacco] as an innocent man. I may be wrong. So much has always been indeterminate in this case. Yet in the silence of the Sacco family is, at least to outsiders, an implication of guilt. That is the only conclu- sion that I can draw. 3 The fact that the son of the executed man refused to comment on the case proves nothing at all. Certainly it carries no implication that Dante Sacco agrees that his father was guilty of murder. No matter what reason Dante Sacco had for remaining silent, his silence is not proof that his father was guilty. To suppose that silenceproves guilt (to suppose that silence proves anything) is to commit the fallacy of appeal to ignorance. In fact, you can no doubt think of several excellent reasons why Dante Sacco would remain silent even if he believed his father innocent.

First, Dante Sacco was only 7 years old when his father was arrested. Even if he believed his father was innocent, it is not likely that he would have any strong evidence to that effect, and he might have thus decided to keep silent.

Second, Dante Sacco was perhaps traumatized by the electrocution of his father—it’s not difficult to imagine that being the effect on a 15-year-old boy—and thus could never again bear to think of the events, much less publicly speak about them.

Third, perhaps Dante Sacco wanted to get on with his own life and put the past behind him, and thus pre- ferred not to be associated with past events. (There could be some social stigma attached to being in the family of a famous anarchist, and Dante may have wanted to avoid such social pressures.) Fourth, Dante may have kept silent from his desire to spare his own family, including his children, from social pressure and stigma.

And finally, if Dante Sacco believed his father was innocent and had been murdered because of his politi- cal views—which is what his father claimed—then Dante might have had good reason to be fearful of speaking out against such injustices.

Perhaps those are, perhaps they are not, the real reasons why Dante Sacco remained silent concerning the execution of his father. In any case, the moral of the story is this: Silence is not proof, one way or the other. Chapter 8 The Burden of Proof 121 Subtle Shifts When a juror assumes that the defendant must prove innocence, the juror obviously has misplaced the bur- den of proof. But there are more subtle ways of shifting the burden of proof against a defendant. Imagine that you are called for jury duty, and the case involves serious criminal charges (such as murder). You are of course committed to the principle that the prosecution bears the entire burden of proving the defendant’s guilt beyond a reasonable doubt, and you start from the pre- sumption that the defendant is innocent. Before you are seated on a jury, however, the prosecution asks the judge for a special ruling to keep the names of all poten- tial jurors a secret and to have all potential jurors escorted from the courthouse each day by armed fed- eral marshals. What conclusion is a juror likely to draw from such special “protection”? As William M. Kunstler has pointed out, jurors will conclude that the “defen- dant is so far beyond the pale that their very lives would be in danger if their identities were made public.” Such a conclusion, prior to hearing any evidence, effectively torpedoes any “presumption of innocence.” In an arti- cle in the Fordham Law Review,Abraham Abramovsky discussed the problems such policies pose for the presumption of innocence: In effect, by his instruction with respect to anonymity, the trial judge implied that the defen- dants were so vicious and dangerous that anonymity was required to protect the jurors and their families from harassment, physical injury or even death. In any prior jury service, the jurors would not have been instructed to remain anony- mous. Therefore the only reasonable inference that a jury could draw . . . was that protection was mandated by the character of the defendant. . . .

Thus, before any evidence was introduced . . .

the defendants were depicted by implication as notorious individuals. This characterization . . .

eviscerated the presumption of innocence to which these defendants were entitled. If such anonymity were really essential to protect jury members, we would be faced with a tough choice between protecting the safety of jurors and protecting the defendant’s right to the presumption of innocence and to a fair and unbiased trial. But as Kunstler noted, “To my knowledge, during the more than 200 years of this Republic’s existence, no juror has ever been harmed by a defendant or his or her supporters.” 4 The Right to Remain Silent The “right to remain silent” is closely linked to the pre- sumption of innocence: If you are charged with a crime, you have a right to remain silent (and cannot be compelled to testify), becausethe burden of proof rests entirely on the prosecution, and you are not required to say or do anythingto establish your innocence. The right to remain silent was a cornerstone of the British judicial system, and it became firmly entrenched in the legal systems of countries—such as Canada, Australia, and the United States—that were deeply influenced by the British model of justice: the right is recognized in the Fifth Amendment to the U.S. Constitution (as one of the Bill of Rights) and is protected under sections 7 and 11 of the Canadian Charter of Rights and Freedoms. In the United States, the first words of the Mirandawarnings are “You have a right to remain silent.” That is the warning given to all who are arrested, a warning that is a staple of every episode of Law and Order, and a basic principle of justice. Indeed, the right to remain silent has been widely recognized as funda- mental to human rights and to procedural justice: The European Court of Human rights holds that “The right to remain silent under police questioning and the priv- ilege against self-incrimination are generally recognisedinternational standards which lie at the heart of the notion of a fair procedure.” Sadly, that right is under attack in the place of its birth: the British justice system.

The Criminal Justice and Public Order Act of 1994 permits the accused to remain silent, but also permits the judge to instruct the jury that the jurors may “draw adverse inferences” from the fact that a defendant chose not to answer questions or chose not to testify; that is, the judge can instruct the jury that they may conclude that becausethe defendant did not testify, that can be counted as some evidence of the defendant’s guilt. Under this law, juries are not supposed to convict the defendant solelyon the basis of the defendant’s silence; but if there is other evidence against the defen- dant, then the defendant’s silence can tip the scales toward conviction. There has been strong opposition to this law since its passage, and some British politicians who support the law have claimed that the law does not undercut the basic right to silence: you still have a right to remain silent, though if you exercise that right you will be more likely to be convicted and imprisoned. But that is absurd. It’s like saying, “You have a right of free speech; but if you speak freely, you run a greater risk of being imprisoned.” 122 Chapter 8 The Burden of Proof station, but did not find the drug on the defendant. The police then (so they testified) returned to the scene of the arrest and found a packet of tablets of the prohibited drug, which (the police claimed) the defendant had thrown away when he was caught. The defendant denies ever having possessed the drugs and denies any knowledge of the tablets. After long discussion, the members of the jury agree (rightly or wrongly) that someone placed the drugs where they were found, and that it must have been either the defendant (who threw them there) or the police (who planted them in order to “prove” the defendant guilty). At this point an argument develops, and one member of the jury argues thus: Look, the question comes down to this: Do we believe the testimony of the policemen or the testimony of the defendant? It seems to me quite possible that the defendant is telling thetruth, and the policemen are trying to frame him. However, it certainly seems more likelythat the defendant is lying and the policemen are telling the truth. Since we have to believeone or the other, it seems only reasonable to accept the most likely story, and since the policestory is the more likely to be true, we ought to accept it. And if we accept the police account,obviously we must find the defendant guilty. What do you think of that argument? How would you explain what is wrong with it to your fellow jurors? If it were only a question of which position is more plausible, then it might be an effective argument. That is, if it were a question of deciding whether it is more likely that the defendant discarded the drugs at the scene of the arrest or that the police planted them, then perhaps the police account is more likely. But that is not the question. Framing the issue that way misplaces the burden of proof. Instead of the burden of proof resting squarely on the prosecution (where it belongs), the argument places it equally on the prosecution and the defense. The proper question is not which side appears more plau- sible; rather, the question is whether the prosecution proved its case beyond a reasonable doubt. Even if you agree with the juror that the police story is more likely to be true, that is far from sufficient. It is not enough for the prosecution to establish that its case is more plausible; rather, the prosecution must prove beyond a reasonable doubt that its account of the defendant’s guilt is true. The defense need not show that its version of the events is more likely to be true than the version given by the prosecution; instead, the defense need only show that there is a reasonable doubt that the prosecution’s case is true.

Whenever a claim is made—that an artificial sweetener is safe, that an arthritis remedy is effective, that an individual is guilty of a crime—the burden of proof rests on those making the claim. “Share and share alike” may be excellent advice in some contexts, but it is poor logic and fallacious reasoning when trying to locate the burden of proof. Consider the Verdict This case occurred in 2002, in Pennsylvania. Jennie Collins went to a party, where she drank what tastedlike (and what she claimed she believed to be) fruitpunch. She left the party and drove to the residence ofa friend, Megan Neff. There she complained of aheadache, then became silent. Jennie and Megan thenleft together to go to the home of another friend, withJennie driving. Jennie drove past the friend’s home,drove through several stop signs without stopping, andthen swerved into oncoming traffic. Jennie then Jim Pickerell / Stock Connection Blue / Alamy Chapter 8 The Burden of Proof 123 U NAPPEALING IGNORANCE A word of caution. Appeals to ignorance do occur with depressing regularity, but be careful that you don’t start seeing the fallacy when it’s not really there. The fallacy of appeal to igno- rance is a very specific fallacy: It occurs onlywhen one argues that a claim is true because it has not been proved false. Not all ignorant statements and stupid arguments commit the fallacy of appeal to ignorance. If I claim that evil spirits cause sickness, that will reveal my pro- found ignorance of modern medicine; it is not, however, the fallacy of appealto ignorance unless I argue that evil spirits must cause sickness because no one has been able to conclu- sively prove that evil spirits are not the cause of sickness. If I assert that invisible martians live in the sewers under New York City, you may well be justified in concluding that I am an ignorant—perhaps completely batty—individual, but you would be wrong to charge me with the fallacy of appeal to ignorance, for I am not appealingto ignorance. I may beignorant, and that is unfortunate, but it is not a fallacy. In order to commit the fallacy of appeal to ignorance, I must actually make that appeal: I would have to argue that there are invisible martians in the New York sewers becauseno one has been able to prove that there are none.

So not all claims made in ignorance commit the fallacy of appeal to ignorance. On the other side of the coin, a person may commit the fallacy of appeal to ignorance with- out being an ignorant person. Intelligent and knowledgeable persons may easily become confused about where the burden of proof belongs on some particular issue and thus may commit the fallacy of appeal to ignorance. To avoid that fallacy, keep a careful watch on exactly what conclusion is being claimed and who is making the claim. Whoever makes the claim, brings the accusation, or asserts the theory bears the burden of proving it true. Exercise 8-1 Each of the following cases requires you to decide wherethe burden of proof belongs. In each case, you must decide whois making a claim, which side is asserting something special, and who is entitled to claim that they are relying on accepted beliefs and are not asserting anything that requires special proof.

1.I am proposing to place a new mouthwash on the market. The Food and Drug Administration requires that I provide extensive tests demonstrating the safety of the mouthwash. In reply, I give the following argument:

It’s not fair to require me to prove the safety of my new Merry Mouth Mouthwash. If anyone has any doubts about the safety of Merry Mouth, then that doubter should be required to offer proof that Merry Mouth is dangerous. I haven’t made any claims about the safety of Merry Mouth, braked the car while Megan steered it off the road.

Jennie lost consciousness, and when the police arrived she was slumped over the wheel. An ambulance was called, and Jennie screamed at and fought the ambu- lance workers. She was taken to the hospital, and there she tested positive for PCP.

Jennie Collins was charged with driving under the influence of a controlled substance, and a jury found her guilty. In her defense, Jennie had agreed that she was driving under the influence, but argued that her intoxication was involuntary. The judge instructed the jury that the burden of proving involuntaryintoxication rested on the defendant, and that she had to prove by a preponderance of the evidence that her intoxication was involuntary. (She was notrequired to prove beyond areasonable doubtthat her intoxication was involuntary; but the judge ruled that she still had the burden of proof: of establishing involuntary intoxication by a preponderanceof the evidence. That is, she must con- vince the jury that it is more likely than notthat her intox- ication was involuntary; the prosecution must prove that she operated a vehicle while intoxicated, but does nothave to prove that her intoxication was voluntary.) The jury returned a verdict of guilty. Jennie Collins appealed her conviction, arguing that the trial judge erred in his instructions, that her presumption of inno- cence was violated, and that the burden of proving voluntaryintoxication should rest on the prosecution.

As an appeals court judge, the case now comes to you. How do you rule? 6 124 Chapter 8 The Burden of Proof so why should I be asked for any proof? You’re placing the burden of proof on the wrong back. The person who makes a claim—namely, a claim that Merry Mouth is harmful—should have to provethat claim. Those who make the claim should provide the proof.

(In considering this example, think carefully about exactly what claims are made, including any implied claims.) 2.The defendant, Joe Sly, is charged with burglary. He is accused of burglarizing the home of Sam Citizen on the night of October 1, 2003, between the hours of 9:00 and 11:00 P.M., while Sam was at the movies. Sly offers as an alibi the testimony of Crandall Crook, who testifies that on the night of the burglary the two of them were playing cribbage at Crook’s apartment from 8:00 P.M. straight through until after midnight. Unfortunately for Sly, on cross-examination the district attorney inquires into the history of Mr. Crook and discovers a lengthy record of burglary and perjury convictions. As you and the other members of the jury settle yourselves around the jury table, one member of the jury begins the deliberation with the following remarks:

Well, we won’t be here long, will we? That’s the flimsiest alibi I ever heard. I don’t believe a word of what Crandall Crook said. He’s lied before, and he was lying again. Since we obviously can’t accept the defendant’s alibi, the defense doesn’t have a leg to stand on. And that’s the end of it, that’s enough for me: Sly must be guilty as charged.

Has your fellow juror committed a fallacy, or instead reasoned swiftly and sagaciously?

3.Suppose that an industry wishes to place a landfill on some property near a river. Some environ- mentalists claim that the landfill is a hazard to the river, since landfills frequently leak and the leakage from this one would be likely to seep into the nearby river. The industry claims that it will not pollute the river, that there is no danger to the environment from the landfill, and that the environmentalists are extremists who are worried about nothing. How should the burden of proof be placed? Must the environmentalists prove that the landfill is a genuine danger? Or is it up to the industry to prove that the landfill is safe?

4.When, in the sixteenth century, Copernicus proposed the heliocentric theory of the solar system (the Earth travels around the Sun, rather than the geocentric system, with the Earth being stationary and the Sun and planets orbiting the Earth), it contradicted common sense. It seemed obvious that the Earth is stationary, and obviously false that the Earth is traveling at a high rate of speed in orbit around the Sun. People felt that unless Copernicans could supply strong proof of the Copernican system, the geocentric view should be upheld. Did they place the burden of proof in the right place?

5.Ann wishes to place a small bird feeder in her yard, in the hope of attracting robins. Her neighbor, Al, doesn’t like birds and doesn’t want a bird feeder next door. He asserts that before Ann is allowed to place a bird feeder in her yard, she should have to show that bird feeders are not an environmen- tal health hazard.

6.Closing argument to the jury by the district attorney in a murder trial: “Counsel for the Defense has entertained us with the ever-popular defense that lawyers call SODDI: Some Other Dude Did It. But as you consider your verdict, keep this in mind: the defense lawyer never told you who that other dude is, and never gave you any evidence that he—whoever that dude is—is the murderer.” 7.Prior to the U.S.-led attack on Iraq, the United States asserted that Iraq had weapons of mass destruction (in violation of United Nations resolutions). The United States (and the weapons inspectors in Iraq) could offer no proof of such weapons, but the Bush administration insisted that the United States was not obligated to provide such proof. At a Pentagon briefing, Defense Secretary Donald Rumsfeld asserted that: “The president has repeatedly made clear, and it bears repeating, that the burden of proof is not on the United States; it’s not on the United Nations or the international community to prove that Iraq has these weapons. The burden of proof is on the Iraqi regime to prove that it is disarming and to show the inspectors where the weapons are.” Exercise 8-2 Should we allow physicians to assist patients suffering with a fatal disease to commit suicide? When sup- porters and opponents of physician-assisted suicide debate the issue, one of the questions that invariably comes up is whether allowing physician-assisted suicide (for competent terminally ill patients who volun- tarily seek it) might lead to other undesirable consequences. For example, might it weaken the commit- ment of medical personnel to save lives? Could it lead to the “euthanasia” of patients who have not requested it? Would it undermine patients’ trust in their physicians? Supporters of physician-assisted Chapter 8 The Burden of Proof 125 suicide say there is no reason to think such things would happen, whereas opponents of physician- assisted suicide fear they might. But even more basic is the question of who bears the burden of proof. Those who favor physician-assisted suicide say anyone who claims that allowing physician- assisted suicide would lead to these terrible consequences must give strong reasons for their claim:The opponents make the claim that the bad results are likely, and they must back up that claim withsupport; it is up to those who make the claims to carry the burden of proving them true, or at leastpossibly true. But the opponents of physician-assisted suicide insist that the burden of proof rests on the other side. Those who favor physician-assisted suicide are proposing the new policy; therefore, it is up to them to show that it has promise, and that it will not cause harm. The supporters claimwe should adopt this new policy, so they must make the case for it (including the case for why it willnot cause more harm than good). So the question here is not whether we should or should not allow physician-assisted suicide. Instead, the question is, Who bears the burden of proof? Should opponents of physician-assisted sui- cide have to prove the likelihood of bad long-term effects on society? Or should those who favor physician-assisted suicide have the burden of proving that there will not be bad consequences from adopting their policy? Exercise 8-3 You are a competent adult, and you make your own decisions concerning medical treatment. No mat-ter what your physician recommends, you cannot be forced to undergo treatment against your wishesand without your informed consent. If you do not want treatment for your cancer, that’s your decision.If you decide to “treat” your cancer by eating large quantities of bananas, that is also your decision. Butwhen children are concerned, the issues become more difficult. Your hospital has diagnosed cancer ina 6-year-old child; fortunately, the cancer is treatable, and the recommended course of treatment has asuccess rate of approximately 80%. The child’s parents refuse to allow treatment for the child. Yourhospital goes to court to force the parents to allow the child to be treated. Don’t decide how the court should rule in this case. (That will depend on all sorts of factors: How burdensome is the treatment,what is the prognosis for this particular child, what are the parents’ motives in denying treatment, etc.)Instead, focus on this basic first question: Who should bear the burden of proof in this case? Parents are generally presumed to have the best interests of their children at heart, unless it is proved otherwise:Should we start from there, and insist that the hospital must make the case for why the parents’ wishesshould be overruled? On the other hand, this program of treatment is standard, nonexperimental, andlifesaving. Should the obvious interest in saving a child’s life be the starting point, and the parents berequired to show why such standard treatment should not be followed in this case? Suppose the parents had decided to treat their child’s cancer through some special megavit- amin therapy, a therapy that is regarded by the medical community as useless quackery. Would thischange the burden of proof? (Do the parents have to prove it is in the child’s best interests? Or doesthe hospital have to prove that the parents’ wishes should be overridden?) Exercise 8-4 How Do You Rule? Consider the U.S. Supreme Court ruling on the famousNancy Cruzan case. An auto accident left Nancy Cruzanin a permanently vegetative state, with a functioningbrain stem that allowed her basic life-sustaining bodilyprocesses to continue, but with such severe brain dam-age that there was no hope that she would ever be ableto speak, recognize anyone, or regain any level of basiccognitive functioning. After Cruzan had spent severalyears in those circumstances, her family—believing thatit would be her wish—asked that all life-sustaining treat-ment, including the medical provision of nutrition andhydration, be stopped, and that Nancy thus be allowed to die. The state of Missouri opposed stopping treatment, and the case went through variousappeals, finally arriving at the U.S. Supreme Court. Bob Daemmrich / Alamy 126 Chapter 8 The Burden of Proof The majority of the Supreme Court (in a 5 to 4 decision) ruled that Missouri was within its rights in establishing an extremely high standard of proof that the incompetent individual (unable to express her own wishes) really would wish to have treatment stopped in such circumstances; and the court decided that Nancy Cruzan’s family had not met that high standard of proof, and thus her treatment could not be stopped. In writing the opinion for the majority, Chief Justice William Rehnquist asserted that it is quite legitimate for a state to start from the assumption that human life must be preserved, and thus to impose a strong burden of proof on any exception (such as the exception requested by Nancy Cruzan’s family on her behalf). A key passage from Rehn- quist’s opinion was the following: Whether or not Missouri’s clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the state may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. 7 In a review of Rehnquist’s majority opinion, Ronald Dworkin vigorously disputed Rehnquist’s claim that there is always—even in the case of unfortunate individuals in a permanently vegetative state— a presumption that the individuals should be kept alive (so that a heavy burden of proof would rest on the side seeking to allow the individual to die). Dworkin argued that those seeking to stop treat- ment should not have such a burden of proof: While Rehnquist concedes that Missouri’s rigid rule may sometimes lead to a “mistake,” he says that the Constitution does not require states to adopt procedures that work perfectly. But his arguments that the Missouri rule would even in general work to the benefit of incompetent people are question- begging; they reflect a presumption that it is normally in the best interests of permanently comatose people to live, so that they should be kept alive unless there is decisive evidence to the contrary. 8 Dworkin regards that as an appropriate assumption when the individual is healthy or can be restored to healthy cognitive functioning, but: No such assumption is plausible when the life in question is only the insensate life of the permanently vegetative. That kind of life is not valuable to anyone. Therefore, Dworkin maintains, Fairness argues for only one thing: the most accurate possible identification of what Nancy Cruzan’s wishes were and where her interests now lie. Therefore, since Nancy is in a permanently vegetative state, there should be no special burden of proof imposed on those who maintain that Nancy’s wishes were to be allowed to die and that her interests are served in having her treatment stopped rather than continued. Instead of being required to present clear and conclusive evidence that stopping treatment fits her wishes and inter- ests, Cruzan’s family should be required only to show that the weight of evidence tiltsto that side.

The burden of proof should be equal,with no starting presumption that continuing to live is in Nancy Cruzan’s best interest.

So take a turn on the Supreme Court. If you were ruling on this narrowissue of where the bur- den of proof should be located in the Cruzan case, where would youplace the burden of proof?

(There are at least three possibilities: You can agree with Rehnquist that the burden of proof rests on those who favor allowing her to die; you can rule that the burden of proof rests on those who want to continue life-sustaining treatment; or you can agree with Dworkin that in such cases there should be no starting presumption favoring either sustaining life or allowing death.) Exercise 8-5 This is a controversial issue, one on which there is obviously room for intelligent disagreement. But there is also room for intelligent thought and argument, and you might enjoy thinking about it.

One of the controversies surrounding the insanity defense is, Who bears the burden of proof in cases in which the defense pleads not guilty by reason of insanity? Chapter 8 The Burden of Proof 127 Those who believe that the prosecutionshould bear the burden of proving sanity argue that it is up to the prosecution to prove the defendant is guilty,and part of proving guilt is proving that the defendantintendedto commit the crime (if one kills someone by accident, one cannot be guilty of first-degree murder; if one was incapable of forming a reasoned intention of killing someone, one cannot be guilty of first-degree murder); so the prosecution must bear the burden of proof of sanity. Those who think the defenseshould bear the burden of proving insanity argue that in all our dealings with one another we naturally assume that those with whom we are dealing are sane and responsible; if someone wishes to claim an exceptionto that general rule, then it is up to the person claiming the exception to provide the justification and proof.

Where should the burden of proof rest when the defendant pleads not guilty by reason of insanity? Exercise 8-6 In some professions—such as law—one requirement for admission to the profession is supposed to be that the applicant is “of good moral character.” This has always been a difficult standard to apply:

trying to agree on what counts as “good moral character” is not an easy task. Leave those difficulties aside for a moment. Suppose that we decide that one condition for admission into our profession (whatever our profession is) should be that the applicant is of good moral character.In that case, who should bear the burden of proof? Should applicants have to provethey are of good moral character (perhaps through testimonials)? After all, we require that applicants for a medical license pass tests to prove that they are competent. The burden of proof is on the applicant in that case; is establish- ing good moral character similar to that? Or should the burden of proof be reversed? After all, we generally assume that one is of good moral character unless proven otherwise (just as we assume one is mentally competent unless proven otherwise); so perhaps the applicant should be assumed to be of good moral character unless someone can prove that she is not. Exercise 8-7 You have every right to dress as you wish, wear your hair as you like, tattoo and pierce your body to your heart’s content. You want to wear purple shorts and a day-glow orange shirt, rings through your ears and nose and tongue and navel and eyebrows, tattoos on your arms and legs and forehead, and a beard that makes you look like the Prophet Jeremiah; that’s your right, enjoy yourself, it’s a free country. You may have some trouble getting a job with Wall Street investment firms, and some upscale restaurants may not welcome you with open arms. Still, how you dress is your decision, your right.

Except, perhaps, in high school. As you may have experienced, some high schools—including some public high schools—have dress codes, and some of those dress codes can be rather restrictive.

The courts have ruled that high school students do not lose their rights as citizens when they go to a public high school: they still have freedom of speech, freedom of religion, and freedom of the press, for example. However, the courts have also ruled that high schools do have the right to restrict dress in certain ways in order to maintain order, and to prevent disruption of the educational process. My question is a very narrow one. Assume (for the purposes of this question) that we accept the legal principle that high schools have the right to restrict dress when necessary to maintain order and pre- vent disruption of education. Suppose a student wishes to wear a nose ring to school, and the school objects;whoshould have the burden of proof? Should the school have to prove the piercing ispoten- tially disruptive, or should the student have to prove that it is not?

REVIEW QUESTIONS 1. Why does the burden of proof rest on the prosecution?

2. Define the fallacy of appeal to ignorance. Studyand Reviewonmythinkinglab.com A particularly good discussion of the burden of proof in legal proceedings can be found in Chapters 8 and 9 of A. A. S. Zuckerman’s The Principles of Criminal Evidence (Oxford: Clarendon Press, 1989). The book also contains interesting material on a number of other issues, including relevance of evidence, testimony, and the role of the jury.

For an excellent, clear discussion of physician- assisted suicide and the burden of proof, read Chapter 3 ofBioethics: A Committee Approach,by Brendan Minogue (Sudbury, MA: Jones and Bartlett, 1996).The definitive logical analysis of the burden of proof and the fallacy of appeal to ignorance is by Douglas N. Walton, Arguments from Ignorance(University Park, TX:

The Pennsylvania State University Press, 1996). The writing is clear, and Walton offers a wealth of instructive examples.

Richard H. Gaskins, in Burdens of Proof in Modern Discourse(New Haven, CT.: Yale University Press, 1992), offers a detailed but demanding analysis of how burden of proof questions influence judicial decisions.

128 Chapter 8 The Burden of Proof NOTES 1This case is discussed in Peter Irons, The Courage of Their Convictions(New York: Penguin Books, 1988).2This case is discussed in Richard H. Gaskins, Burdens of Proof in Modern Discourse(New Haven, CT: Yale Uni- versity Press, 1992), pp. 148–149.

3Francis Russell, Sacco & Vanzetti: The Case Resolved(New York: Harper & Row, 1986), p. 191. For another view of the Sacco and Vanzetti case, see Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen(Boston, MA: Little, Brown, 1969).

4William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,October 22, 1983.5This example is inspired by Sarah McCabe’s remarks on some sociological research with shadow juries (“Discussions in the Jury Room: Are They Like This?” The British Jury System,University of Cambridge In- stitute of Criminology, 1975, pp. 22–27); but it differs greatly in details and is essentially a fictional ex- ample.

6If you want more details, the case is reported in Pennsylvania Discovery and Evidence Reporter,February 3, 2003, under the headline “Sufficiency of Evidence.” [It can be found in Lexis Nexis.] In the actual case, the Pennsylvania Superior Court rejected the appeal and upheld her conviction.

7Taken from the majority opinion, by Chief Justice William Rehnquist. United States Supreme Court, Cruzanv. Director, Missouri Dept. of Health,U.S. 580 SLW 4916.

8Ronald Dworkin, “The Right to Death,” The New York Times Review of Books,January 31, 1991. INTERNET RESOURCES A good brief discussion of the burden of proof in legal proceedings can be found at http://law.jrank.org/pages/4927/Burden-Proof.html.For a more detailed examination, go to http://www.worldlingo.com/ma/enwiki/en/Burden_of_proof. ADDITIONAL READING ReadtheDocumentonmythinkinglab.com Bruce N. Waller,“Fallacy of Appeal to Ignorance,” Coffee and Philosophy, pp. 6–8. In this dialogue, students discuss both the burden of proof and the fallacy of appeal to ignorance.

McMillan v. Pennsylvania, 477 U.S. 79 (1986). In this case, the U.S. Supreme Court grapples with the question of the burden of proof and the standard of proof when there are special “sentencing factors” (such as use of a firearm) that could have a substantial effect on the prison sentence of a defendant who has been found guilty.Castaneda v. Partida, 430 U.S. 482 (1977). The ques- tion of the burden of proof—and how it shifts—is the key question in this case.

Victor v. Nebraska, 528 U.S. 225 (2000). It is a key prin- ciple of our system of criminal justice that the burden of proof rests on the prosecution, and that the prosecution must prove every element of a criminal charge “beyond a reasonable doubt.” But the question of exactly what that means can be controversial. In Victor v. Nebraska, the U.S.

Supreme Court wrestles with precisely that question. Language and Its Pitfalls 9 ❖ ❖ ❖ “There’s glory for you!” “I don’t know what you mean by ‘glory,’ ” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘There’s a nice knock-down argument for you!’ ” “But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” Words shape the way we reason, perceive, and remember. In one study noted earlier, witnesses who were asked how fast the cars were going when they “smashed” together were likely to “remember” a violent crash, and witnesses who were asked about the speed “at contact” described a less severe crash. Careful use of language is an important tool in seeking the exact truth and the justified conclusion.

D EFINITIONS Definitions are tricky; consider ostensivedefinitions. An ostensive definition is a common way of defining a term for those who are not familiar with it. If I have never seen a dog, you might “define” a dog for me simply by pointing to Rover: “That’sa dog,” you say, indicating the Scottish terrier running to greet us. But while ostensive definitions may be useful, they may also be very confusing. Are you indicating only this species of dog? Or perhaps only this color of dog? Or maybe you are indicating any animal with four legs; or any animal that is running; or any animal with sharp teeth; or any object moving swiftly along the ground. If you use your German shepherd in your ostensive definition of “dog,” I may find it difficult to understand why the wolf we see crossing the road should not be called a dog. Philosophers, burdened with tortured imaginations, have come up with 129 Listento the Chapter Audio on mythinkinglab.com 130 Chapter 9 Language and Its Pitfalls other possible confusions: Willard Van Orman Quine pointed out that when you point to an animal and say “dog,” you couldbe indicating undetached animal parts. Okay, that hardly seems likely. Still, it’s clear that ostensive definitions, while they can prove useful, often leave a lot unsettled.

Even clear written definitions may leave murky edges and loose ends. Suppose we define an innkeeper as one who offers rooms designed for overnight accommodation of travelers. This may be an important definition, as we may set certain legal requirements on innkeepers: for example, innkeepers may be required to provide a safe for the secure protection of the valuables of their guests. What about a steamboat taking travelers up and down the Mississippi River, and providing rooms for the travelers: Does the boat count as an inn (which would require it to provide a secure safe)? What about upper and lower berths designed for sleeping on a passenger train—are they rooms designed for overnight accommodation of travelers? What if I rent out tents to overnight travelers?

What if my motel does not really cater to overnight guests, but rooms are instead rented by the hour for illicit purposes?

Definitions are often important, and legal disputes often revolve around how a word or phrase should be defined—what its boundaries are, what it covers and does not cover.

Suppose I sell you my vintage 1962 Cadillac, with the original motor. It doesn’t have the original spark plugs, of course, but the motor remains the original motor. But what if the carburetor has been replaced? The pistons? Is there any clear point at which it is no longer “the original motor”?

And what about the famous claim by President Bill Clinton: “I did not have sex with that woman!” Was that claim true? Depends on your definition. If “having sex” means sexual intercourse, then Bill Clinton did not have sex with Monica Lewinsky; if oral sex also qualifies as “having sex,” then his statement was false.

The definition of a term—especially the redefinition of a term—can have a major impact on important reports. In 2006, Secretary of the Interior Gale Norton released a very positive report on the state of America’s wetlands. The Fish and Wildlife Service had been issuing reports on wetlands since 1954, and this was the firsttime that they had reported a net gainin America’s wetlands. Secretary Norton used these figures to assert that the Bush program for stopping the loss of wetlands was on the right track. But in fact, the Fish and Wildlife Service reported that during the period covered, there had actually been a lossof over 500,000 acres of natural wetlands. What had changed was not better preservation of wetlands; instead, what changed was the definitionof wetlands. Instead of counting only natural wetlands, the Bush administration redefined “wetlands” to include such things as reservoirs, farm ponds, and even golf course water hazards. So when all of the man-made lakes, golf course water hazards, irrigation ponds, and so forth—that had been built over the past decades—were suddenly added to the range of “wetlands,” it is hardly surprising that there was an increasein the reported “wetlands.” But that tells us nothing whatsoever about what really concerns us: that there had been a decline in natural wetlands (and in fact a severe decline in overall “wetlands,” including both natural and artificial) during the reported period.

STIPULATIVE D EFINITIONS Stipulativedefinitions specify the definition for a term in a particular context. “For the purposes of this law concerning breaking or entering, when any part of the body enters the building, that shall count as an entry.” If I stick my little finger inside your door, normally you wouldn’t say that I had enteredyour home; but under this stipulative definition, I have met the conditions for an entry. It’s useful to have the term “entry” specified so precisely; otherwise we get into impossible wrangles about what counts as an entry: If I reach in through your window with only my hand, is that an entry? What about with my entire arm? What if it’s only the arm up to the elbow? What if I get my arm and Chapter 9 Language and Its Pitfalls 131 leg inside, but not my head? With a stipulative definition, we can avoid some—but not all—of those controversies. We are playing poker, and my three kings loses to your three aces. I wail and gnash my teeth, and complain loudly and sadly about suffering a bad beat.

In poker parlance, a bad beat occurs whenever a very good hand loses to a better hand:

when Jane’s full house beats Jack’s ace-high flush, Jack has suffered a bad beat. But suppose a casino poker room wishes to have a “bad beat jackpot,” in which any player who suffers a severe bad beat wins a pool of money. In that case, the casino will stipulatetheir definition of a bad beat: “To qualify as a bad beat, for the purposes of winning the bad beat jackpot at the Red Diamond Casino, the losing hand must be four of a kind or better.” If the bad beat is not specified in that manner, then every time a player loses a hand he or she will try to claim the bad beat jackpot.

CONTROVERSIAL D EFINITIONS Definitions can be useful, but they can also be deceptive. In the passage quoted at the beginning of this chapter—from Lewis Carroll’s marvelous Alice in Wonderland—Humpty Dumpty is well aware of the importance of definitions. “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” There’s a lot of wisdom in Humpty Dumpty’s words: whoever controls the defini- tions is usually masterof the discussion.

At what age did you become a legal adult? It all depends. We do not require children to serve in our armed forces; but once you turn 18, we can draft you and require you to risk or even sacrifice your life for whatever military ventures the government approves. So if it’s a question of whether you can be drafted, or whether you can be condemned to death for your crimes, then you’re an adult at age 18; but if you want to buy a beer, you’re not an “adult” until you turn 21. Sounds like Humpty Dumpty was right.

“Marriagemeansa legal union between a man and a woman.” If that’s the definition of marriage, then same-sex marriage is ruled out; and that is one argument often offered against same-sex marriage. But even ifthat’s the definition of “marriage,” that definition doesn’t settle much of anything; for there would remain the question of whether we shouldenlargethat definition to include marriage between gay and lesbian couples. (The debate over same-sex marriage is not a debate about the current legal definition of marriage, but a debate over whether that definition should be changed.The fact that the current definition of marriage excludes same-sex marriage is irrelevant to that debate.) What counts as a person? The definition of that term is the epicenter of a wide range of controversies. Is a fetus a person? Is an embryo a person? Is someone in a permanent vegetative state still a person? Should a chimpanzee—who is capable of affection, careful planning, deception, and learning language—count as a person? Do corporations count as persons, and thus enjoy the rightsof persons (such as the right of free speech, as the U.S. Supreme Court ruled in a very controversial 2010 decision which opened the flood- gates for unlimited corporate spending to influence elections)? Deceptive Language There is a wide variety of ways that language can be used to deceive and mislead and misinform—and advertisers are experts at using all of them. Lawyers and politicians have also mastered many of the language tricks. So if you want to be an intelligent consumer, an effective juror, and a responsible well-informed voting citizen of a democratic country, it is important that you learn to recognize and protect yourself against these deceptive forms of language. 132 Chapter 9 Language and Its Pitfalls Using emotionally charged words to distort the picture of events is a rather obvi- ous—but very common—way of using language to mislead. When I answered a hostile question in a political forum, I spoke firmly in favor of my principles; but when my oppo- nent answered a hostile question, she railed against her questioner. My opponent wants to slash social security benefits; I want to place judicious restrictions on those benefits. My opponent greedily grabs all the pork-barrel money she can get for her district; I actively seek funding projects that will benefit the people who elected me. I point out important facts about my opponent’s character and record, while my opponent stoops to vicious negative campaigning. My opponent goes on junkets; I go on fact-finding trips. My oppo- nent panders to special interests; I strive to consider the concerns of every group.

But the overuse of emotionally charged words is only half of the problem—and it’s not the trickiest half. Using euphemisms—sometimes called “doublespeak”—to hide practices and policies and events that might generate legitimate negative emotional reactions is another and even more devious way of manipulating language. Not every case of euphemism is deceptive. If we say that someone “passed on” (instead of saying he died), that may be a gen- tler way of breaking the sad news; certainly it sounds nicer than he “kicked the bucket,” or— the British phrase—he “dropped off the twig.” But many uses of euphemism (doublespeak) are not so innocent. Everyone is worried—legitimately—about the enormous number of bad loans made by financial corporations, leading to mortgage foreclosures, bank failures, and bailouts. So now companies no longer have “bad loans” on their books; those have become “nonperforming assets.” And when bad financial management makes it necessary for failing companies to fire workers, the workers are no longer fired; instead, the company is “down- sized” by making “workforce adjustments.” Some people might worry about sludge(a semi- solid mixture of bacteria- and virus-laden organic matter, toxic metals, and settled solids removed from domestic and industrial waste water from sewage treatment plants) being used as fertilizer in fields in their area; but when sludge is renamed as “biosolids,” it doesn’t sound so scary. Bad guys torture people, but our country uses “enhanced interrogation techniques.” When bombs and missiles kill innocent civilians rather than soldiers, the deaths are due to “incontinent ordinance.” And when the United States invaded Iraq, that was not an unprovoked attack on another country, but an act of “preemptive defense.” The Fallacy of Ambiguity The fallacy of ambiguity occurs when onemeaning of a word or phrase is used in the premises,but a differentmeaning is used in the conclusion.Such fallacious arguments are probably the most difficult of all fallacies to detect. When encountering ambiguous arguments, one often has a sense that somethingis amiss, but it is very difficult to put your finger on the problem.

A politician is charged with taking bribes and is tried on those charges. After a lengthy trial with much evidence and many witnesses, the jury returns a not guilty verdict.

The politician immediately calls a press conference, and asserts that after a thorough trial he has been found to be innocent: It has been proved that he never accepted bribes.

What is wrong with the politician’s argument?

The politician is trading on two senses, two distinct meanings, of “innocent.” The jur ydecided that there was not sufficient evidence to convict the politician of accepting Doublespeak Doublespeak is language that pretends to communicate but really doesn’t. It is language that makes the bad seem good, the negative appear positive, the unpleasant appear attractive or at least tolerable. Doublespeak islanguage that avoids or shifts responsibility, language that is at variance with its real or purported meaning. It is language that conceals or prevents thought; rather than extending thought, doublespeak limits it. 1 Chapter 9 Language and Its Pitfalls 133 bribes; that is, the jury decided that the politician’s guilt was not proved. Thatsense of “innocent” merely implies that the prosecution was unable to prove the case against the politician; the jury maythink that the politician was probablyguilty of accepting bribes, but believe there was reasonable doubtthat he accepted bribes. If so, the jury rightly voted for aninnocentverdict: “innocent” only in the sense that the politician’s guilt could not be conclusively proved. But on the basis of that verdict, what does the politician concludein his argument to the press? He concludes that he has been proved innocent.“Innocent” as the politician is using the term means “in actual fact not guilty of the crime.” But those are two very different meanings of “innocent.” As the jury uses “innocent,” it means only that the politician is not provedguilty (although he may in fact beguilty); but as the politician uses the term in his conclusion, “innocent” means in actual fact notguilty. When the ambiguity is removed, it is clear that the conclusion does notfollow from the premises: The jury has concluded that there is a reasonable doubt that I accepted bribes. Therefore, it has been proved that I did not accept bribes. When the ambiguity is eliminated, the invalidity of the argument is plain. But with the ambiguity in place, the argument is seductively appealing.

Ambiguity does not require a full argument to accomplish its deceptive tricks.

Sometimes a single sentence will suffice. Perhaps the most notorious ambiguous statement in recent years was forcefully asserted by a U.S. president: “I did nothave sex with that woman.” In one sense that was true. Bill Clinton apparently did not have sexual intercourse with Monica Lewinsky, and that is one meaning of “having sex.” But the statement was nonetheless deeply misleading, since “having sex” can also encompass other intimate sexual relations, such as oral sex. Another, though not quite so fascinating, example of ambiguity in a single sentence: “We accept all credit applications.” That’s a sign you sometimes see, printed in large letters, in front of automobile dealerships.

Sounds good, right? I’ve been having a bit of trouble getting credit since I missed several payments on the mortgage, had my television set repossessed, defaulted on my cell phone bill, and the repo man got my new BMW. So I’m happy to find a car dealer that accepts all credit applications. Well, it’s true they acceptall credit applications, but “accepting” credit applications is ambiguous. It can mean they approvemy credit application and actually give me credit (as in “We accept your offer, it’s a deal”); orit can mean we are happy to acceptyour application, but we may turn it down after we look it over. “Myth” Another example of how ambiguity can cause confu- sion is found in the criticism made by fundamentalist- literalist Christian sects (who take the Bible “literally”) against those who believe that the Bible should be inter- preted as telling stories that express moral truths rather than literal facts. The nonliteralists interpret the Garden of Eden story as teaching moral and religious truths (e.g., that all humans are created equal) but not as literal biology or history. That is, they take such accounts as myths,as stories that teach important truths but are not themselves literally true. But the fundamen- talists, when told that these stories are interpreted as myths, understand “myth” in a very different sense: as if the stories were being reduced to mere fables or fairy tales. “Myth” has those two different meanings: “storynot literally true, but teaching important truths” (as, for example, Paul Tillich uses the term); and alternatively, “a fable, a story that is untrue.” Failure to distinguish the two senses has exacerbated controversy between various religious groups. The error is illustrated by this excerpt from a letter to the editor from the very irate Reverend William W. Robbins: I believe the first 11 chapters of Genesis are true; the liberal camp (the higher criticism, documentary hypothesis approach) has Genesis 1–11 as fable and myth. 2 The “liberal camp” does indeed interpret Genesis 1–11 as myth, but not in the sense of fable. 134 Chapter 9 Language and Its Pitfalls Consumer Reports(September 1987) took note of a newspaper advertisement that headlined “A FULLY LOADED VINTAGE WINE CELLAR” for under $1,500. The photo- graph in the advertisement showed a handsome temperature-controlled cabinet, fully stocked with 440 bottles of wine. But before you run out to make your purchase, check the fine print: “Fully loaded vintage wine cellar” does notmean a wine cellar that is fully loaded with wine;rather, it means a wine cellar that is fully loaded with “free options,” such as a deluxe handle and lock.

The Folger Coffee Company has a television commercial featuring famous restau- rants and showing happy people enjoying splendid food at the restaurants. After they have enjoyed a sumptuous meal, the diners are served—instead of the restaurant’s usual coffee—a cup of the sponsor’s instant coffee. They express their delight with the coffee and then their amazement at the fact that the coffee they have just enjoyed is instant. The announcer then chimes in with the clincher: “Folgers Instant Crystals:

Coffee rich enough to be served in America’s finest restaurants.” Impressive. After all, if these super restaurants are willing to serve this instant coffee, it must be good.

But it’s not that simple. The restaurants were not open for regular business on the night the commercials were made; instead, Folgers rented the restaurants and invited people in for a free meal. Then, after they’d enjoyed this great meal—at no charge— they were served coffee and were asked, “How do you like it?” What would most people answer under those circumstances? But that’s another issue. Focus on exactly what the announcer said: “Coffee rich enough to be served in America’s finest restaurants.” That sounds impressive, on first hearing: If America’s finest restaurants will serve it, it must be rich. But the sentence is ambiguous. It can mean that the restaurant itself is willing to serve its customers that brand of instant coffee. (That would be the usual meaning, and that is what the company wants you to think.) Or it can mean something quite dif- ferent. It can mean just what it literally says: The coffee is “rich enough to be served in America’s finest restaurants”—not bythe restaurant, just inthe restaurant—when it is rented by the Folger Coffee Company. But just how rich does the coffee have to be for it to be served inthe rented restaurant by the coffee company that rentedthe restaurant?

(If you rent the buildings, you can serve pretty much anything you like “in America’s finest restaurants.”) One more example of ambiguity: a favorite among advertisers. “Best” is an ambiguous term. In ordinary usage, when we say something is bestwe usually mean it is better than everything else in that category. “This is the bestchocolate chip cookie I have ever tasted” means that it is better than any other chocolate chip cookie I have ever eaten. “LeBron James is the bestplayer in the NBA” means there is no other NBA player as good as LeBron. “This is the bestnovel I’ve ever read” means I have never read a novel that can measure up to this one. But “best” has another meaning: In this use of the term “best,” to say that “this is the best class I’ve ever taken” may just mean: All my Read the Fine Print In 1997, Millennium Sales of West Palm Beach sent out this mailing: This shall serve as our final notification regarding a fully detailed 1997 model car we will deliver directly to you. Failure to respond by the posted deadline date will nullify your opportunity to claim the $15,638 automobile. Failure to respond will result in forfeiture of the 1997 model car pending delivery to you. On a separate sheet there is a list of six new 1997 model cars, including a Mustang GT and a Chevy Blazer. You select one, send in the $21.99, and they guarantee delivery. And deliver they do: a brand new 1997 model car, the one you chose. It comes in the mail, in a small box: a 1997 modelcar. And you are also entered into a drawing for the “opportunity to claim the $15,638 automobile”: the full-sized 1997 model car.

Good luck. 3 Chapter 9 Language and Its Pitfalls 135 classes have been rather bad, but this one is no worse than the others. “This is the best lasagna I’ve ever tasted” could mean that I don’t much care for lasagna, and it all tastes about the same to me, and this one is as good as the rest: none of the lasagna I’ve had really stands out.” “Mark is the best kazoo player in the world” means that—well, you get the picture. Advertisers have a field day with this ambiguity. If there is a range of prod- ucts that are all equally effective—one mouthwash works as well as another in fighting bad breath, most fluoride toothpastes are equally good at fighting cavities, all deter- gents are equally effective in removing tough grease stains—then a mouthwash can claim that it is proven bestagainst mouth odor, a detergent can advertise that tests show it is “bestin cleaning tough stains.” Ambiguity is tricky. Examine the following argument, tell what phrase is being used ambiguously,and tell what meaning that phrase has in the premisesand what (different) meaning the phrase has in the conclusion. Some Americans who hold radical political views (socialists, for example) claim that they cannot get a public hearing for their views. But that claim is absurd. Of course they can get a public hearing for their views. After all, we do have freedom of speech in America, and anyone who wants to stand on a street corner and make speeches is perfectly free to do so, and as the public walks by and perhaps stops to listen, the public will hear what the speaker says. So radicals or anyone else can indeed get a public hearing for their views. Startby finding the conclusionof the argument, then line up the premisesof the argument, and then decide what phrase is being used with onemeaning in the premises and with a differentmeaning in the conclusion. What is the conclusion?

Radicals can get a public hearing for their views in America.

What are the premises?

Radicals are free to speak out in public. Since radicals can speak out in public, their views can be heard by the public; that is, there is a public hearing of their radical views.

Whatkey phraseis used with two different meanings?

“Public hearing” Whatmeaningdoes “public hearing” have in the conclusion? That is, when political radicals complain that they “cannot get a public hearing” for their views, whatare they complaining about? Obviously they are not complaining that they are unable to speak on street corners. Instead, “public hearing” to the radicals means access to the public media, coverage of their views in newspapers, news magazines, and television newscasts. Thatis the kind of “public hearing” of which they claim to be deprived.

But what meaning does “public hearing” have in the premises?As used in the premises, “public hearing” means, heard by some (usually very small) segment of the public Now the ambiguity should be plain. “Having access to the national news media” (one sense of “public hearing”) is obviously quite different from “speaking one’s views to a few people in public” (the othersense of “public hearing”). With the ambiguity eliminated, the argument looks like this: Since radicals speak to people in public, it follows that radicals have their views reported by the national news media. Obviously that is an invalid argument. 136 Chapter 9 Language and Its Pitfalls AMPHIBOLY Amphiboly is a special variety of ambiguity, in which a modifying word can be read as applying either narrowly or more broadly; or more generally, amphiboly is a grammatical form of ambiguity, in which the different possible meanings result from the grammatical structure. Amphiboly is often the stuff of rather silly jokes, though it can be used for more sinister purposes. Let’s start with the jokes. My favorite amphiboly joke comes from Groucho Marx, describing his African hunting trip. “One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know.” But not all uses of amphiboly are quite so innocent. “This cereal contains 100% natural fruits and grains.” Sounds good, right? You would be really healthy if you started your morning eating only natural fruits and grains, with no added sugar or salt or highly processed products; and it sounds as if this cereal is made up entirely, 100%, of natural fruits and grains. That’s one way of reading it. Unfortunately, that 100% may not apply to everything in the cereal; instead, it applies only to the fruits and grains in the cereal: they are 100% natural. And there actually are some 100% natural fruits and grains in this cereal—along with the sugar, salt, and all other non-natural highly processed stuff that goes in the cereal mix. Anacin used to run an advertisement with a very clever—and very deceptive—use of amphiboly. “Anacin is the strongest pain reliever you can buy without a prescription:

Stronger than aspirin.” So I’ve got a bad headache, and I want a really strong pain reliever, something even stronger than aspirin. Anacin costs more, but it’s a stronger pain reliever than aspirin, so I’m willing to shell out some extra money for that stronger pain relief. But wait a minute. Anacin just isaspirin, with a very small shot of caffeine thrown in. So how can Anacin be a stronger pain reliever than aspirin, when the pain reliever in Anacin is aspirin? No, you’ve got it all wrong; and Anacin is very sorry you misunderstood. The advertisement doesn’t mean that Anacin is a stronger pain reliever ; that is, it doesn’t mean that Anacin is stronger as a pain reliever. The “ stronger ” doesn’t modify “pain reliever.” Rather, among all the pain relievers, Anacin is a stronger pain reliever than aspirin, because it contains an added drug, namely caffeine; and that makes it stronger , but not stronger as a pain reliever, just a stronger drug combination in the class of pain relievers (all of which are equally strong as pain relievers). Exercise 9-1 Consider the Verdict You are a juror in an auto theft case. Weldon Wheels has been charged with stealing the car ofan elderly lady, wrecking it, and then abandoningit. Weldon was picked up by the police 4 days afterthe theft because he lived in the area of the theftand he seemed to fit the victim’s description ofthe thief. The next day the victim identified Wel-don from a police lineup as the young man shehad seen speed away in her car. In court the ladyappears as the chief witness for the prosecutionand again identifies Weldon as the thief she sawdriving away in her car as she looked out her frontwindow. The case turns on her identification ofWeldon as the thief. The defense claims that this is a case of mistaken identity, that the elderly lady glimpsed someone driving away and then in the policelineup simply picked out the person who most resembled her brief impression of the criminal andlatched onto that unfortunate person—the defendant—as the car thief. Weldon insists that he was athome watching television when the theft occurred and that he knows nothing at all about the stolencar. One of the jurors offers this argument: Look, here’s what this case boils down to: Was that old lady Everett Collection / Shutterstock Chapter 9 Language and Its Pitfalls 137 telling the truth, or not? Now I don’t know about the rest of you, but I am absolutely convinced of one thing: that dear old lady certainly did not go up on the witness stand, place her hand on the Bible and swear before God to tell the truth, and then coolly lie about what she saw. She has taught Sunday school for over 30 years, has lived in the same house since she was married 52 years ago, and she retired 10 years ago after teaching handicapped children for almost 40 years. She is as truthful, honest, and upright a person as there is in this country—as indeed several very respectable people testified. She could no more tell a lie under oath than she could run the high hurdles. There’s certainly no doubt in my mind that she is telling the truth, and I don’t see how anyone could doubt her truthfulness and honesty. So I believe she’s telling the truth when she says she saw that fellow driving away in her car, and that means we must find him guilty. What do you think of this juror’s argument? (Are any of the words ambiguous? If you need a hint, look back to the beginning of this chapter.) Exercise 9-2 Identify the language deception involved in each of the following cases. In cases of ambiguity, be sure to specify exactly what word or phrase is ambiguous, what the different meanings are, and why this ambiguous use makes the argument unsound or the claim deceptive.

1.Why should anyone believe in the Darwinian account of evolution? After all, the Darwinian theory is just that—a theory, and theories are merely speculation.

2.Former President Richard Nixon is not guilty of any of the crimes connected with Watergate (perjury, breaking or entering, burglary, etc.). He certainly was not criminally involved in any of the Watergate activities. President Gerald Ford granted Nixon a complete and unconditional pardon for any crimes related to the Watergate events. And since President Ford clearly had the constitu- tional authority to grant such a pardon to Nixon, that makes Nixon not guilty.

3.Some complain that poor people do not receive equal justice in the U.S. courts; but that is not true, for all citizens of the United States are equal in the eyes of the law and are treated equally by the courts, no matter how rich or poor they may be.

4.

SELLER : If you want the low cholesterol of corn oil, buy Happy Heart Cooking Oil.It contains 100% corn oil. CUSTOMER : No it doesn’t; look, it says right there on the list of ingredients: Contains palm oil, cottonseed oil, and corn oil. SELLER : Well, still, it does contain 100% corn oil; it just also happens to contain some 100% palm oil and some 100% cottonseed oil.

5.We must accept some degree of repression in our society and in our political life. After all, as Freud noted and as psychiatrists generally agree, repression is the price we pay for civilization.

6.Why do prices keep increasing? Why, for example, does the cost of a new car keep going up? As we know, there are only two basic costs for all products: natural resources and labor. Natural resources are always there, and Mother Nature has not increased her prices; so all the cost increases must be coming from the labor side. The increased cost of labor—the higher wages that are paid to workers, the demands of unions for more pay and better benefits—must therefore be the real source of inflated prices. It is increased wages—the increased cost of labor—that is the sole source of inflation. 4 7.Fortunately in the United States we live in a democracy, so all our citizens have an equal voice in our government. In our country, everyone counts equally, and no one’s views or wishes get spe- cial treatment, and every citizen has an equal right to serve as mayor, governor, senator, or even president.

8.Why did you tell me that Professor Sponge is a good teacher? He’s the worst teacher I’ve ever had; his class is boring, his lectures are incomprehensible, and he knows nothing about current develop- ments in the field. He’s certainly not a good teacher.

No, he really is a good teacher. Of course he’s lousy as an instructor, you’re right about that.

But he’s a very good, warm-hearted, and generous person. He’s genuinely good, through and through. And he happens to be a teacher, albeit a lousy one. He’s a goodteacher; not a good teacher.

9.“That batter wasn’t out; she beat the throw to first by a full step!

“No, you’re mistaken; she certainly was out. The umpire called her out, so she’s out.” 138 Chapter 9 Language and Its Pitfalls 10. Ladies and gentlemen of the jury, the defendant in this case is charged with assault and theft. He is accused of a vicious, brutal, even heartless crime: knocking down an 80-year-old woman as sheleft the supermarket with her groceries, breaking her left arm and giving her a severe concussion,then—while she lay groaning and bleeding on the cold parking lot pavement—stealing her purseand running away. You heard the defendant’s attorney, Ms. Taylor, argue that this is all a case ofmistaken identity, that the defendant didn’t commit this terrible crime, and that therefore thebrutal nature of the crime is irrelevant. Well, ladies and gentlemen of the jury, you will make up your own minds about that. But I will tell you this: It will be a sad day for our fair city when ourcitizens and our good jury members start thinking that a brutal assault on a defenseless elderlywoman is irrelevant. You wouldn’t consider it irrelevant if it was an attack on your mother; and as far as I’m concerned, no attack on a frail and defenseless and vulnerable woman can ever be described as irrelevant. Exercise 9-3 Consider the Verdict The defendant, Ted Zurich, is a major leaguebaseball player. He is charged with attemptingto bribe a police officer. He was stopped byOfficer Jones, a member of the state highwaypatrol, on suspicion of driving while intoxi-cated. Officer Jones alleges that as sheapproached the defendant’s car, Zurich leanedout the window with his driver’s license in hisright hand, and a fist full of money in his lefthand. When she reached the car, Zurich said(she testifies), “You can choose either hand;why don’t you choose the left hand, and we’llboth be a lot happier, and we can forget thiswhole thing.” The defense attorney, on cross-examination, asks Officer Jones if she knows any professional baseball players. She testifies that she does not. The cross-examination continues as follows:

DEFENSE ATTORNEY : “Officer Jones, do you know Seth and Louise Arthur?” OFFICER JONES : “Yes, they lived down the street from me when I was growing up.” DEFENSE ATTORNEY : “Do you know their son, Alex Arthur?” OFFICER JONES : “Yes, I know him; he’s several years younger than I am. He was a teenagerwhen I moved away, and I haven’t seen him since.” DEFENSE ATTORNEY : “But you do know Alex Arthur, don’t you? You’ve known him since he was asmall child, isn’t that right?” OFFICER JONES : “Yes, I haven’t seen him in 10 years, but I know him, and his family.” DEFENSE ATTORNEY : “Officer Jones, Alex Arthur now plays for the Louisville Sluggers. Do youknow what the Louisville Sluggers are?” OFFICER JONES : “Isn’t it a baseball bat, or something like that?” DEFENSE ATTORNEY : “There is a baseball bat by that name, but there is also a professional minorleague baseball team by that name. Alex Arthur has played third base for theLouisville Sluggers for the last 2 years.” OFFICER JONES : “Well, that’s nice; I had no idea what Alex was doing.” DEFENSE ATTORNEY : “But you testified that you know Alex Arthur, right? And Alex Arthur is aprofessional baseball player. So when you testified, under oath, that you don’tknow any professional baseball players, your testimony was false, wasn’t it?” 1. Was the testimony of Officer Jones false? 2. Suppose the defense attorney claims that Officer Jones’s testimony was false, and the prosecuting attorney claims that her testimony was true. What ambiguous word or phrase might be in dispute? Everett Collection / Shutterstock Chapter 9 Language and Its Pitfalls 139 REVIEW QUESTIONS 1. What is an ostensive definition?

2. What is a stipulative definition?

3. What is “doublespeak”?

4. What is the fallacy of ambiguity?

5. Give an example of the fallacious use of ambiguity.

6. What is amphiboly? NOTES 1William Lutz, The New Doublespeak: Why No One Knows What Anyone’s Saying Anymore(New York:

HarperCollins, 1996), p. 4.

2Greensboro Daily News,June 23, 1985.3Reported in Consumer Reports,November 1997.4Adapted from a letter to the editor, Greensboro Daily News. INTERNET RESOURCES Anil Gupta has an excellent and extensive discussion of definitions in the online Stanford Encyclope- dia of Philosophy.Go to plato.stanford.edu/entries/definition. A nice brief examination of defini- tion can be found at www.philosophypages.com/lg/e05.htm.

The National Council of Teachers of English gives an annual “doublespeak award” for the most misleading use of language. Some excellent examples of ambiguity and other fallacies can be found at their site. Go to www.ncte.org; then enter “doublespeak” in “Search NCTE.” ADDITIONAL READING Studyand Reviewonmythinkinglab.com Leonard Pitts Jr., “Can Blacks Be Racist?” This essay shows the importance of careful definitions in examining arguments.

Jack Shafer, “Weasel-Words Rip My Flesh!” “Weasel words” are among the most common language decep- tions; they turn what looks like a substantive claim into a statement that actually has little or no content.

Weeks v. Angelone, 528 U.S. 225 (2000). This case deals with the question of confusing language in jury instructions, and whether a jury mistakenly understood the judge’s instructions during the sentencing phase of a capital trial. When the U.S. Supreme Court heard the case,the Court split 5 to 4, with the majority ruling that the jury had correctly understood the instructions. The minority— in an argument written by Justice Stevens, and presented here—insists that there are reasons to believe that the jury was confused over ambiguities in the judge’s instructions.

Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, excerpt from “Chapter II:

Forensic Evidence and the Centre of Forensic Sciences,” pages 83–89 (Ontario Ministry of the Attorney General).

Disturbing account of how misunderstandings of how terms were being used by forensic scientists may have contributed to a wrongful conviction. ReadtheDocumentonmythinkinglab.com For a fascinating—and amusing, though also disturb- ing—look at how ambiguity, vagueness, and “doubles- peak” function in advertising and politics, read Doublespeak: From “Revenue Enhancement” to “Terminal Living”; How Government, Business, Advertisers, and OthersUse Language to Deceive You,by William Lutz (New York:

HarperCollins, 1989). A more recent book by Lutz on the same subject is The New Doublespeak: Why No One Knows What Anyone is Saying Anymore(New York: Harper- Collings, 1997). 140 Appeal to Authority 10 ❖ ❖ ❖ Much of what you know is based on the testimony of reliable sources. Think for a moment of your own knowledge of history, geography, physics, and biology. Some of it may have been gained firsthand: you know where Vancouver is because you’ve been there; you know that John McCain was the Republican presidential nominee in 2008 because you watched the election coverage; you know that acids turn litmus paper red because you have done the experiment. But almost all of your knowledge of such subjects—even if you are an expert in the field—comes from testimony.Through testimony of reliable authorities you may know the path of the Nile River through Africa, although you have never actually followed and charted the Nile. You accept the testimony of biologists that there are penguins in Antarctica. Your knowledge that light travels at a speed greater than 186,000 miles/second rests on reliable testimony, and it’s quite reasonable to firmly believe that you know the speed of light (even though you’ve never measured it for yourself). And you know—by reliable testimony—that Napoleon was the French general at the Battle of Waterloo, although you did not personally observe the battle. Testimony is essential, and even in areas of expertise, experts and researchers must rely for the bulk of their knowledge on the testimony of other researchers. (That is why fraudulent research testimony—such as Sir Cyril Burt’s fabricated data on identical twins—is so damaging to scientific work.) Without the testimony of others, we would not get very far beyond our own noses in gaining knowledge of the world. (Isaac Newton generously acknowledged his own dependence on the testimony of earlier scientists: “If I have seen farther, it is by standing on the shoulders of giants.”) But when we draw from testimony, it is essential that the testimony be reliable. Judging the reliability of testimony requires consideration of thesource.

Testimony must be evaluated by two standards: Is this source of testimony trustwor- thy, honest? And is this source of testimony really knowledgeable about the topic in question? (The testimony of a lying expert is no more helpful than the testimony of a sincere incompetent.) If a witness identifies the defendant as the person who ran from the scene of the crime, we want to know: Is this witness trustworthy(does the witness have a special bias, such as a deep hatred for the defendant; does the witness have a reputation Listento the Chapter Audio on mythinkinglab.com Chapter 10 Appeal to Authority 141 for honesty) andis the witness a careful observer with good eyesight (an honest witness whose eyesight is so bad that he or she could not have made an accurate identification will not provide strong testimony).

In discussing ad hominem arguments it was frequently noted that ad hominem arguments against testimony do notcommit the ad hominem fallacy. If someone’s testimony is inconsistent with his or her actions, then that inconsistency is an indication of insincerity and thus weighs against the testimony. If the person testifying has a special interest or bias, that bias should be considered when evaluating the testimony.

The credibility of the testimony depends on the reliability of the source. Similar care is required in deciding whether to accept or reject a special kind of testimony: the testimony of a special authority,or the testimony of an expert witness.

AUTHORITIES AS TESTIFIERS Suppose we disagree about which planet exerts the strongest gravitational pull. There are several ways to settle the dispute. We might visit each of the planets and take measurements. On a tighter budget, we might appeal to an authorityon planetary astronomy. We could consult a book on the solar system written by some person whom astronomers recognize as an authority, or look it up in a standard reference book such as the Encyclopaedia Britannica.Appeal to such an authority is a perfectly legitimate way of gathering information and confirming beliefs, as long as we keep in mind that no source is absolute or infallible. Authorities are sometimes mistaken, authorities are sometimes dishonest, and what authorities in a field agree to be true is sometimes false.

But I am sometimes mistaken about what I have seen “with my own eyes.” Probably no empirically based beliefs are absolutelycertain. If that sort of certainty were required, then we could hold no beliefs at all about the world. If we set somewhat less stringent requirements for knowledge, then appeal to genuine authorities will be one way of gaining knowledge.

CONDITIONS FOR LEGITIMATE APPEAL TO AUTHORITY In the courtroom, expert witnesses may testify, for example, that the blood found on the defendant’s shirt was the blood of the murder victim, or that the substance found in the marmalade was a lethal drug, or that the fingerprints found in the burglarized apartment were not those of the defendant. But while appeal to authorities and to expert witnesses is reasonable and useful, there are some special pitfalls: In order for an appeal to authority to be legitimate in settling an issue, the authority must be a genuine authority on that subject, and there must be agreementamong authorities.

Consider more carefully the first requirement for legitimate appeal to authority:

The person appealed to must be a genuine authority in the area in question. Thus if we are in disagreement about the gravitational force of various planets, we might reasonably be guided by the testimony of Carl Sagan. Carl Sagan was an expert on astronomy. However, if someone claims that smoking is dangerous to health because Carl Sagan said it is, then that would be a fallaciousappeal to authority. Carl Sagan was not (and did not claim to be) an expert on the health hazards of tobacco. If there is a question concerning the behavior of chimpanzees, then Jane Goodall’s testimony on the subject is authoritative, and the fact that Jane Goodall asserts a particular claim about chimp behavior is good grounds for believing it to be true. But to cite Jane Goodall’s opinions about foreign policy, quasars, or toothpaste, and then to maintain that her opinions must be true because Jane Goodall asserted them, is to indulge in a fallaciousappeal to authority. 142 Chapter 10 Appeal to Authority A Dubious Endorsement Pfizer Pharmaceuticals has made billions of dollars from its sales of Lipitor, a cholesterol-lowering drug that is the all-time leader in sales among prescription drugs.

Recently, however, a much cheaper generic version of Zocor—another cholesterol-lowering drug—has been taking market share from Lipitor. To combat this chal- lenge, Pfizer has spent several hundred million dollars advertising Lipitor. Some of its most prominent advertisements enlisted Robert Jarvik, a leader in the development of artificial hearts, as an authoritative spokesperson. In one of those advertisements, Jarvik is seen rowing a racing shell across a beautiful mountain lake. Unfortunately, that’s not actually Jarvik (who isapparently not very athletic), but instead a stunt dou- ble. But that’s the least of the problems. Jarvik claims that “as a doctor” he endorses Lipitor to lower choles- terol; but Jarvik (though he has a medical degree) is not a licensed physician, has never practiced medicine, and cannot prescribe drugs. And while he claims that Lipitor has been effective for him, in fact Jarvik was not taking Lipitor at all until about a month after he started pro- moting the drug (for a payment from Pfizer of well over a million dollars). When the House Energy and Com- merce Committee began an investigation of deceptive advertising practices by pharmaceutical companies, Pfizer decided to drop its advertising campaign. Such fallacious appeals to authority seem rather obvious and would hardly deserve comment were it not for the fact that such fallacies are so often committed. You cannot turn on the television without being confronted by an expert test pilot (Chuck Yeager) givingnonauthoritative testimony concerning batteries, an expert basketball player (Michael Jordan) giving unwarranted advice about breakfast cereal, or an outstanding swimmer (Michael Phelps) giving his nonexpert views on submarine sandwiches. Perhaps the most interesting recent “celebrity” endorsement is the promotion of “BidHere”—an Internet auction site—by Jamie Jungers, a Las Vegas lingerie model who is best known for her affair with Tiger Woods. I’m not certain what Jamie Jungers might claim as an area of expertise, but I’m pretty sure it’s not Internet auctions.

Fallacious appeal to authority is perhaps the most common fallacy occurring in advertisements (although advertisements are so riddled with fallacies that it may be diffi- cult to get an accurate count on which fallacy is the leader). So the first point to check when dealing with appeals to authority is whether the individual is really an expert in that area (he or she may be an authority in some other area, with no special standing in the subject under consideration, or may be a celebrity with no real authority on anysubject). Failed Authority There are many famous examples of falseclaims by recognized authorities. For example, Lord Kelvin, a distinguished nineteenth-century physicist, asserted in 1895 that heavier-than-air flying machines were physi- cally impossible; in less than a decade, the Wright brothers proved him wrong. General William C. Westmoreland, Commander of U.S. Forces in South Vietnam, thought it “inconceivable” that the Viet Cong could defeat the South Vietnamese military forces. Robert Andrews Millikan, winner of the Nobel Prize for Physics, insisted that releasing energy by splitting the atom was an absolute impossibility. Supposedly the Decca Records executive who rejected the Beatles was confident that“groups of guitars are on the way out.” Ken Olson, president of Digital Equipment Corporation, was confi- dent that “There is no reason anyone would want a com- puter in their home.” Those cases of expert error are a useful reminder that experts are sometimes wrong.But don’t go overboard with such cases; remember, appeal to a consensus of genuine and trustworthy authorities is often a legitimate means of gaining knowledge.

These glaring examples of mistaken expert opinion should give you a healthy dose of skepticism. But don’t throw out the baby with the bathwater. Even the best authorities are not infallible, but appeal to genuine authority is often an excellent means of gaining knowledge. Chapter 10 Appeal to Authority 143 If Tiger Woods offers you guidance on how to hit your short irons, then it is reasonable to follow his expert advice. In fact, you could hardly be blamed for mentioning Tiger’s advice on every possible occasion (as in: “You can hit a 7 iron on that shot if you want, but the last time I played a round with Tiger, he advised . . . ”). But Tiger’s expertise in golf lends no authority to his recommendations (in television advertisements) of a particular model of car. And to believe that the car must be good because Tiger Woods recommends it is to fall prey to the fallaciousversion of appeal to authority.

If instead of testimonythe individual were offering an argument,then all considera- tions of expertise and authority become irrelevant. If someone offers an argument (instead of expert testimony) in favor of a particular shaving cream, then that argu- ment must be considered on its own merits, and it matters not whether the argueris an ex-baseball player or a nobel laureate.

When dealing with appeals to authority(claims of expert testimony) there is a second consideration that must be noted. Not only you must be sure that the person to whom you appeal really is an expertinthat subject,but you must be sure that the subjectis one on which authoritiesagree.If the question concerns the gravitational force on some planet, then appeal to a genuine authority is legitimate, since there is consensus among authorities on that question. But if instead the issue is the safety of nuclear power plants or the long-term effects of low-level radiation or whether Secretariat was the greatest racehorse in history, then appeals to authority are fallacious:On those questions there is no settled agreement among the authorities in the respective areas. When that is the case—when genuine authorities dis- agree—we must consider the competing arguments.Since each side can marshal impressive and competing authorities, appeal to authority cannot be used to settle the issue.

That may not sound too difficult—and in some cases, it is not hard to distinguish legitimate from fallacious appeals to authority. But there are some notorious difficul- ties—problems that have troubled judges and scientists as well as philosophers. In order for an appeal to authority to be legitimate, there must be agreementamong genuine authorities. But what counts as agreement? If every genuine expert on the subject agrees, then that is obviously sufficient. But is it necessary? Probably not. If there are 10,000 genuine experts in astronomy, and 9,999 of them agree that Jupiter is the planet with the greatest mass, then is it legitimate to appeal to authority on the question of what planet has the greatest mass? Yes, that seems like enough agreement. But what if the issue is one in which 9,000 of the astronomers hold one view, and a thousand other expert astronomers dissent? Is 90% enough to count as general agreement among authorities?

Or would it be a fallacy to appeal to the authority of the majority astronomers on such a case? What if the split is 70 to 30? At 51 to 49, certainly we would say that there is no general agreement among authorities, and so appeal to authority would be fallacious. But just how close to unanimity does the agreement have to be? In Fryev. United States, 1the 1923 U.S. Supreme Court ruled that expert testimony is legitimate if the theory or technique about which the expert is testifying is “generally accepted” as reliable in the relevant scientific community. But that leaves the question of what countsas “generally accepted.” In answering that question, U.S. courts have generally followed the rule that if a scientific judgment has been subjected to and passed peer review through publication in an accepted scientific journal, then that is sufficient for counting it as being “generally accepted by the scientific community.” That may be enough to establish that a scientific opinion is expert,but it obviously won’t answer our question about what counts as sufficient agreementto make an appeal to authority legitimate: After all, scientific work by scientists who hold minority views is regularly—and rightly—published in peer-reviewed scientific journals. Recently the U.S. Supreme Court, in Daubertv. Merrell Dow Pharmaceuticals, Inc., 2 rejected the Fryestandard. In the Daubertcase, the Court ruled that publication in an accepted scientific journal is not a good standard for scientific legitimacy, since some published scientific work is not reliable and some reliable scientific work has not been published. 3UnderDaubert, the Court ruled that in order to count as legitimate expert testimony the research resultsneed not be generally accepted by the scientific community, 144 Chapter 10 Appeal to Authority Dubious Authority In a 1990 civil trial, the parents of two teenage boys sued a British heavy-metal rock band named Judas Priest.

The two boys had attempted suicide (one was success- ful) after listening to an album by Judas Priest. The plantiffs charged that one of Judas Priest’s songs contained a subliminal phrase (“Do it”) that triggered a suicidal impulse in the two boys.

Experts on cognitive psychology generally agree that subliminal messages have little if any effect on beliefs, atti- tudes, or behavior. The plantiffs had an impressive expert witness, Howard Shevrin, who has published reputable research on subliminal influences. Shevrin testified thatsubliminal messages might induce suicidal behavior, and he insisted that “my expert judgment [is based] on a corpus of literature, on hundreds of experiments.” However, when pressed to cite some of this experimental support, Shevrin could name no studies demonstrating such powerful subliminal effects on behavior. 4 Dr. Shevrin is, of course, “entitled to his opinion”; but he is not entitled to present it as if it were based on sound scientific research and the general considered acceptance of the scientific community. In this case, Dr. Shevrin isan expert; but the consensus of scientific expertise goes againsthis views. Adrift among Authorities One of the most difficult tasks facing a juror is the evalua- tion of conflicting expert testimony. The jurors at the trial of John Hinckley, Jr. (tried in the spring of 1982 for attempting to assassinate U.S. president Ronald Reagan) had the “benefit” of hearing many highly qualified experts, who were summoned by both sides to give testi- mony about the state of the defendant’s mind at the time he committed the crime. Unfortunately, the jurors could not merely accept authority, since there certainly was no consensus among the experts: one expert testified he was clinically depressed, while another expert rejected thatclaim; one expert diagnosed Hinckley as schizophrenic, while an equal and opposite expert denied that diagnosis; an expert for the defense insisted that Hinckley was severely psychotic, while a prosecution expert insisted that Hinckley had never been psychotic. In such a case, the jurors must attempt to decide whether all the authorities are really experts in the field, and assuming that there are genuine authorities who give conflicting testimony, the jurors are then required to weigh the competingargumentsof the expert witnesses (since appeal to authority is fallaciouswhen authorities disagree). but the methodologyused in the research must be based on scientifically sound and accepted principles. (It will still be up to the “fact finder,” that is, the jury or—in trials without juries—the judge, to weigh the credibility of the expert testimony.) So directly or indirectly the Court has retained the basic but troubling standard for legitimate exper- tise: It must be “generally accepted” by the relevant scientific community. But what counts as “generally accepted” remains a vexed question.

Appeal to authority can be legitimate, but only when the person to whom appeal is made is genuinely an expert in that area, andthe experts agree on the answer. If the “authority” cited is not an expert on the subject, or there is disagreement among authorities, then it is a fallacious appeal to authority.

An example of expert testimony and its evaluation may clarify the issues involved in evaluating appeals to authority. Suppose that the expert, Dr. Jones, testifies that the deceased died of a bullet wound before being submerged in water: “The bullet wound was the sole cause of death; I am absolutely certain of that as a result of my careful and expert examina- tion of the victim, and I would stake my professional reputation on it.” And Dr. Smith, equally an authority in forensic medicine, testifies that the victim was drowned and that the bullet wound alone would not have been fatal: “The victim died from drowning; the bullet wound was a serious injury, but it would not and did not cause death; death was by drowning; I am absolutely certain of that as a result of my careful and expert examination of the victim, and I would stake my professional reputation on it.” In such a case, doctors Jones and Smith have notgivenargumentsfor their views; instead, they have given expert testimony.And since the experts disagree, it would be fallaciousfor either the prosecution or the defense to appeal to their authoritative pronouncements as establishing the truth about the cause of death. Chapter 10 Appeal to Authority 145 A Tarnished Expert My favorite example of a questionable “expert” wit- ness occurred in a civil case in Cleveland. Claire Free- man-McCown had been fired from her job as chief executive officer of the Cuyahoga Metropolitan Hous- ing Authority (CMHA) by the CMHA Board on grounds that she was fraudulently taking money from the agency (payments on her credit cards and on mortgages for personal property) through forging a number of documents. (It was claimed that docu- ments supposedly signed by the CMHA Board were forgeries.) She sued CMHA for damages, claiming that the charges against her were false and malicious.

Since the question of forgery was central to her case, she presented the expert testimony of F. Aurelius McKanze, who appeared as an expert forensic docu- ment examiner. He claimed that he had been a colonel in the Air Force, had done undergraduatestudies at Ohio State University, and that he had a doctorate in criminal psychology from the University of Arizona. The Air Force, Ohio State, and the Univer- sity of Arizona denied his claims. He also had been in prison for receiving stolen property and theft. But he did apparently have some knowledge of forgery: He had been convicted of forgery in 1973.

Freeman-McCown lost her case, and her “expert witness”—F. Aurelius McKanze—was charged with perjury. McKanze pleaded guilty, but at his sentencing he was placed on probation (rather than receiving an active prison sentence) because of letters from local physicians stating that McKanze was dying of prostate cancer that had spread throughout his body. Unfortu- nately for McKanze, the judge changed his mind concerning probation when it was discovered that the letters from the doctors had been forged. But since both Jones and Smith are giving testimony(not argument), it is quite legiti- mate to direct ad hominem attacks against the two experts. An attorney might try to establish that one of the experts is not really an expert at all (“Dr. Jones, isn’t it true that you bought your medical degree from a mail-order university you found in the classified section of Soldier of Fortune?”); or that one “expert” is not very reliable (“Dr. Smith, didn’t you recently serve 3 years at Leavenworth for a perjury conviction?”); or that one expert has a strong bias or interest that is likely to slant her judgment (“Dr Jones, isn’t it true that the defendant in this case is your ex-husband, with whom you are currently engaged in litigation for custody of your three children?”). If the reputation, reliability, or objectivity of one of the “experts” can be called into question, then the strength of that “expert” testimony will be weakened. In that case, counsel might argue that there is no disagreement on this issue among genuine, truthful, fair-minded experts (all the “experts” on the other side are biased, incompetent, or incapacitated) and therefore the testimony of the legitimate authority ought to be accepted.

This is tricky stuff. For if the expert is giving argumentsfor her view (rather than simply saying “take my expert word for it,” she is instead saying “consider these reasons for this conclusion”), then you must consider the arguments,and forget the credentials and the character of the arguer. In thatcase, the witness’s bias, the amount of money the witness is receiving, and the witness’s credentials don’t count. If the witness is giving argument,rather than testimony, it makes no difference whether her degree came from Harvard or the Stumpwater Institute for Delinquent Girls. Cases in which witnesses are givingargument(rather than eyewitness or expert testimony) are comparatively rare, but they do occur. If the expert “witnesses” are giving argument, rather than testimony, it is irrelevant to their arguments that they are hired guns; whether they are hired to give argument, or are giving arguments out of pure love of justice and truth, or whatever their motivations, that is irrelevantto proper evaluation of their arguments.But if they are simply assertingthe truth of their claims on the basis of their expertise—“Take my word for it, I’m an expert”—then their status as advocates or hired guns may be weighed in the balance.

One more point concerning legitimate and fallacious appeals to authority. If there is deep disagreement among authorities about theory Z, then it is quite legitimate for the gen- uine authority Dr. Alice Andrews to affirm that “In my best judgment, theory Z is correct.” The expert is stating her expert opinion, notappealing to authority. However, if Joe then says that “The respected expert Dr. Andrews says that Z is correct, so Z must be correct,” 146 Chapter 10 Appeal to Authority Is the Authority Sincere?

Tiger Woods appears in commercials for Nike golf balls, and endorses “Nike Tour Accuracy” golf balls. Suppose that on the basis of that advertisement I assert that Nike must be the best golf balls, because Tiger Woods recom- mends them, and Tiger Woods is an expert golfer. Well, the fact that Tiger recommends them is certainly relevant:it’s not like Tiger recommending a particular model of car, an area in which presumably he is no more an expert than you and I. When it comes to golf, Tiger Woods can stake a strong claim to expertise. Still, there would be some problems with this appeal to Tiger Woods as an authority on golf balls. First, there is apparently no consensus among golf experts on which golf balls are best (most touring professionals use Titleist), and thus the second condition for legitimate appeal to authority is not met. Also, Tiger Woods is getting paid—$100 million over a 5-year contract—for his recommendation of Nike golf balls. Since Tiger isgiving “expert testimony” on the golf balls, it is legiti- mate to bring up any special interests he might have that might make him less than a perfectly objective expert witness: and receiving $100 million for his endorsement is a very special interest. Finally, the golf balls that Tiger actually uses in professional competi- tion are not the “Nike Tour Accuracy” balls he endorses in advertisements; for his own play, Tiger uses a ball that is custom made by Nike (with a harder inner and outer core) that is not sold by Nike. Tiger’s undisputed golfing greatness notwithstanding, such factors raise legitimate questions about the legitimacy of Tiger’s authoritative testimony on behalf of Nike golf balls.

Does Tiger’s well-publicized marital infidelity count against his expert testimony? Since it raises questions about his truthfulness(he promised to be faithful to his wife, and he deceived her) it does tarnish the reliability of his testimony. then Joe is offering a fallacious appeal to authority. (And of course if Dr. Andrews, still testifying about the disputed theory Z, says that “In my best judgment, theory Z is correct, and since I am a recognized authority on this subject, you ought to accept theory Z as true,” then in that case Dr. Andrews is fallaciously appealing to her ownauthority.) In sum, there are several key points to remember about appeals to expert authority. When evaluating an appeal to authority(when the authority is offering testimonyon the grounds of his or her status as a knowledgeable expert, and is not giving an argument), you must consider two main issues. First, is this individual really an authority in the appropriate area? (Thus ad hominem arguments aimed at undermining the claimed expertise of the authority will be relevant, and inversead hominem arguments aimed at establishing the wisdom and integrity of the expert witness will also be legitimate.) And second, is this an issue on which authorities are generally in agreement? (If not, then no appeal to authority can be legitimate.) But in many instances, unfortunately, there is a third factor that must be considered. Is this authority likely to give his or her truthful, unbiased, unslanted expert opinion? Or will the authority be tempted to slant (or even falsify) his or her expert opinion? That question will certainly be relevant (and ad hominem attacks on the honesty and objectivity of an expert authority will be relevant), since experts may be as subject to temptations of the flesh—including the cash paid by the side that hires them to testify—as anyone else. Especially in court cases, the expert authorities who appear as witnesses for both sides may not be the dedicated-only-to-truth-and-science objective independent authorities that we might wish them to be. One former president of the American Bar Association put the point quite bluntly: I would go into a lawsuit with an objective uncommitted independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers. 5 Often these “hired guns” cannot be trusted; thus it is important for jurors trying to weigh the value and reliability of their testimony to know something about the character of such expert testifiers, and about any special biases and influences (including cash influences) that may slant or distort their testimony. Chapter 10 Appeal to Authority 147 Biased “experts” are also a problem outside of court. One of the great difficulties in dealing with claims by “authorities” is in knowing which ones are genuine experts, presenting impartial expertise, and which ones are charlatans. That problem has become even more severe in recent years, as industries and public relations firms have put together sham “foundations” that represent themselves as impartial experts, when in fact they are front groups that are bought and paid for by special industrial interests. The American Council on Science and Health claims to be an independent and objective group of research scientists. In fact, it is funded by the chemical and food-processing industries. It receives grants from Burger King, and publishes reports praising the nutritional value of fast food. It criticizes studies showing the health problems generated by tropical oils, while taking money from palm oil producers. And it asserts that “There has never been a case of ill health linked to the regulated, approved use of pesticides in this country,” while receiving funds from a number of pesticide manufacturers. 6Before you trust the reports of these “objective independent scientists,” you are justified in considering the source.

Consider another example: the “Air Hygiene Foundation” sounds like a wholesome organization dedicated to improving air quality; it was in fact an industry-funded front, whose purpose was to provide cover and misinformation on behalf of industries creating silica dust, which was responsible for thousands of deaths from silicosis, a lung disease brought on by breathing silica dust, a disease that plagued workers in mining, sandblasting, pottery, and foundries, and permanently disabled many that it did not kill. Not only do such foundations carry a false air of concern for safety and the environment along with their air of disinterested objectivity, they also manage to generously sponsor “research” that conve- niently “proves” the results the foundation prefers. As noted by Rampton and Stauber, By 1960, 63 scientific papers on the subject of asbestosis had been done, 11 of which were sponsored by the asbestos industry, the other 52 coming from hospitals and medical schools. The 11 industry studies were unanimous in denying that asbestos caused lung cancer and minimizing the seriousness of asbestosis—a position diametrically opposite to the conclusions reached by the nonindustry studies. 7 The moral of the story: When evaluating “expert testimony,” it is important to know whether the “experts” are genuine objective experts or merely paid industry hacks. And when evaluating expert testimony, it is also important to know—as with the evaluation of any testimony—whether the testifier has any special incentive that might lead him or her to testify untruthfully. For example, in the 1990s, tobacco companies paid over $150,000 to 13 scientists simply to write pro-tobacco letters to influential medical journals. 8One might doubt the objectivity of such expert letter writers.

One last example. Latex gloves, used by nurses and doctors, cause severe allergic reactions in about 10% of the doctors and nurses who wear them. Some 200,000 nurses have developed latex allergies, and the allergies can be severely disabling, and even deadly (four nurses have died from their reactions to latex). Alternatives exist, and are now being used. But former Surgeon General C. Everett Koop testified before Congress that concern over latex gloves is a case of “borderline hysteria,” and that the risks were greatly exaggerated. Dr. Koop forgot to mention in his testimony that a maker of latex gloves paid him over $600,000 to serve as a spokesman for the company. But a payment of $600,000 is something you might wish to consider in evaluating the reliability of Koop’s “expert” testimony: testimony which was far outside Dr. Koop’s area of expertise (his practice was in pediatric orthopedic surgery). 9 Appeal to expert authority can be—and often is—legitimate and valuable; but before putting your trust in an appeal to authority, you must be confident that the authority really is an authority on that subject, that there is consensus among authorities on that question, and that the authority is testifying in an honest and unbiased manner.

That’s a lot to ask of genuine appeals to authority, but no one said that careful critical thinking would be easy. 148 Chapter 10 Appeal to Authority How Do You Rule?

When O. J. Simpson was charged with murder, it was obvious that a key part of the trial evidence would be theblood stains found in Simpson’s home and car, on hissocks, on a glove, and at the murder scene. And central tothat evidence would be DNA testing to determine whoseblood it was. With that in mind, Simpson’s defense teamhired an expert on DNA testing: Dr. Kary B. Mullis.Dr. Mullis was not just any expert on DNA. In 1993, hehad won the Nobel Prize for his breakthrough researchon DNA testing. He had invented the PCR (polymerasechain-reaction) technique for identifying and reproduc-ing DNA. Dr. Mullis believed that PCR testing wasvaluable in the laboratory, but that it was ill suited forcriminal investigation because of the uncontrolled natureof the crime scene, and that therefore the DNA testing incriminal cases was unreliable. A major defense theme wasthe sloppy work of the police investigators in gatheringblood evidence, transporting the evidence, and runningtheir tests. The skeptical testimony of a Nobel Prize win-ner, who won the prize for his work on DNA testing,would seem to be a major triumph for the defense. And yet the defense never called Dr. Mullis. A nobel laureate, willing to testify that the DNA testingthat linked Simpson to the crime was unreliable, andyet the defense never called him. Why not? Since Dr. Mullis was testifying as an expert, his credentials and reliability were open to attack. AndDr. Mullis was vulnerable to attack on several fronts. Inthe first place, since winning the Nobel Prize he hadlargely abandoned scientific research to devote himselfto surfing, taking hallucinogenic drugs, and pursuingwomen. As a result, he was out of touch with recentdevelopments in DNA research. For example, RFLPtesting is a recently developed and more reliable way ofmaking DNA identifications, and a major advance inDNA research; yet when the defense lawyers inter-viewed him, Dr. Mullis could not remember what RFLPtesting was. Furthermore, Dr. Mullis had exhibitedrather bizarre behavior and championed views thatplaced him well out of the mainstream of scientificresearch. He maintained that the HIV virus is not thecause of AIDS; and he was banned from one scientificconference after showing slides of nude women duringhis lecture. When the defense was considering calling Dr. Mullis as an expert witness, they asked Judge Ito to rule thatDr. Mullis’s lifestyle and character were “completelyirrelevant,” and that the prosecution should not beallowed to ask questions on those topics. The prosecu-tion responded that: Should the defense choose to call Dr. Mullis to voice any relevant criticisms about forensic PCRapplications, the prosecution is fully prepared tocross-examine Mullis on every aspect of his lifewhich reflects on his credibility, competency, andsobriety.

If you were Judge Ito, how would you rule? Would you allow the defense to ask such questions, or would you rule that Dr. Mullis’s lifestyle, drug use, andbehavior are irrelevant? POPULARITY AND TRADITION Two special varieties of fallacious appeal to authority should be noted. Those special versions of the fallacy of appeal to authority are the appeal to the (false) authority of pop- ularity and the appeal to the (false) authority of tradition. Remember that in order for ap- peal to authority to be legitimate and non fallacious, the “authority” to whom appeal is made must be genuine and must have special knowledge and expertise in the subject. But since neither the crowd (popularity) nor tradition has special knowledge, such appeals are always fallacious. These are common and distinctive fallacies, and we have special names for them: appeal to popularity and appeal to traditional wisdom. Appeal to popularity is a common advertising ploy. Advertisements frequently suggest that a product must be good—or even the best of its type—because it is the most popular. But such an appeal to popularity would have force only if the people who buy the product were experts—and obviously they are not. bikeriderlondon / Shutterstock Chapter 10 Appeal to Authority 149 Being misled by a commercial appeal to popularity may result in wasting money on inferior products. During jury deliberation, when 12 persons are deciding whether to find the defendant guilty or not guilty, failure to recognize fallacious appeals to popular- ity may have more serious consequences. Suppose that after long deliberation 10 or 11 members of the jury favor one verdict, and one or two members favor another. At that point, the majority will almost certainly appeal to the weight of its numbers in an effort to persuade the dissenters to agree with them. The one or two in the minority will probably be subjected to such arguments as: “Look, everyone else on the jury agrees that the defen- dant is guilty; you are the only one who doubts it. Since there are so many more of us who have come to the guilty conclusion, doesn’t that show you that your own conclusion must be mistaken? Be reasonable, and accept the view of the overwhelming majority. After all, 11 heads are better than one.” But such an appeal to popularity is fallacious.The fact that a view is popular is no grounds for believing that it is correct; no more than the fact that a brand of pain reliever is the biggest seller is grounds for believing that it is the best.

Neither a crowd of purchasers nor a crowd of jurors are experts. Of course, the members of the majority—and also the members of the minority—may and should offer arguments to convince the other side of the correctness of the conclusion favored. But appeal to popularity is not a sound argument.

Jurors are not the only ones who may be led astray by the seductive appeals of popularity. Judges have sometimes encouraged jurors to be swayed by majority opinion.

In a famous (or infamous) charge to a hung jury (in Allenv. United States), the judge instructed the jury:

that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s argument; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might reasonably doubt the correctness of a judgment which was not concurred in by the majority. 10 But the fact that a majority disagrees—or agrees—with a conclusion has no bearing on the correctness of the conclusion. The argumentsof any group deserve careful attention, but their numbers—whether great or small—are irrelevant. In rejectingthe Allen charge to the jury, the Fifth Circuit U.S. Court of Appeals cited the opinion of Judge Brown, who wrote, I think a mistrial from a hung jury is a safeguard to liberty. In many areas it is the sole means by which one or a few may stand out against an overwhelming public sentiment. Nothing should interfere with its exercise. In the final analysis the Allen charge itself does not make sense. All it may rightfully say is that there is a duty to consider the views of others but that a conscientious person has finally the right and duty to stand by conscience. If it says that and nothing more it is a superfluous lecture in citizenship. If it says more to declare that there is a duty to decide, it is legally incorrect as an interference with that rightful independence.

The time has come, I think, to forbid this practice. Like the silver platter, this is too dear to keep. The cost in fundamental fairness is too great. 11 And there is another cost to being convinced merely by the weight of opinion against one’s position: the cost of falling into the fallacy of appeal to popularity.

A similar category of fallacious appeal is the appeal to traditional wisdom. The crowd is not expert, and neither is tradition.That a view or a position has been held for many years is not evidence of its correctness. 150 Chapter 10 Appeal to Authority When in the sixteenth century Copernicus argued that the Earth is notstationary (but instead orbits the Sun), his opponents argued that belief in a fixed and immovable Earth had endured for centuries. But his opponents then concluded—incorrectly— that that was good reason to think the belief true. Traditional beliefs of long standing may be true, of course, but their longevity is not evidence of their truth. Neither tradi- tion nor popularity qualifies as expert.Contrary to popular belief, there is no “test of time” that a long-held belief has passed. Thus the fact that abortion was for many decades believed to be wrong is irrelevant to the question of whether it is really wrong.

The fact that for many years there were almost no restrictions on smoking in public places is irrelevant to the question of whether such restrictions should now be established. Conversely, while tradition carries no authority, neither does novelty. The advertiser’s trumpeting of a newheadache remedy, a newlaundry detergent, or a new underarm deodorant is just as fallacious as the appeal to traditional wisdom. The newness of a product or idea counts neither for nor against it, just as the fact that a belief or idea is old gives it no special weight. Neither the soberness of age nor the fresh bloom of youth counts for or against a belief, theory, idea, or product. Appeal to tradition (like appeal to innovation) is a fallacious appeal to a source that is not genuinely authoritative, a source that has no genuine expertise.

In summary, there are real authorities in some areas, and appeal to the testimony of such authorities is legitimate. But when the “authority”—whether popularity, tradition, or an individual—is not really an expert on the subject (or when genuine authorities do not agree), then appeal to authority is fallacious. And since the authority is giving testimony (and the strength of the testimony depends on the integrity and expertise of the authority), ad hominem attacks againstsuch appeals are legitimate: they do not commit the ad hominem fallacy. Exercise 10-1 1.The following are appeals to authority; for each one, tell whether it is legitimate or fallacious.

a. I’ve been having trouble getting my lawn to grow—the grass is not very thick, and in some spots there’s really no grass at all. But yesterday while watching television I saw Don Shula, the coach of the Miami Dolphins—and he recommended this special new lawn fertilizer from Hyponex.

He says it is great stuff and that it will do wonders for your lawn. Well, Don Shula is a very bright guy and is perhaps the best football coach in the National Football League. Since he thinks Hyponex is the best lawn fertilizer, I’m going to get some. It must be good stuff.

b. You remember our argument about how to amend the U.S. Constitution? We were arguing about how many states must approve an amendment in order to pass it. Well, I have settled that question. I just talked to former U.S. Supreme Court Justice Sandra Day O’Connor and to Ronald Dworkin (Professor of Constitutional Law at New York University), and they both agreed that amendments to the Constitution must be approved by three-fourths of the states.

c. The question of whether a computer might ever be programmed to really think—intelligently and creatively, as well as or better than the most intelligent humans—is certainly hotly debated, and top computer scientists and programmers, psychologists, and philosophers often disagree about whether such intelligent computers are really possible. Well, Hans Moravec is head of the Robotics Institute at Carnegie-Mellon University, he holds a PhD in computer science from Stan- ford, and he has done major research at the Stanford Artificial Intelligence Institute. In fact, he is one of the leading authorities in the world on artificial intelligence (computer intelligence) and robotics. He recently claimed that computerized robots with intelligence fully equal to that of the most intelligent human beings “will be common within 50 years.” That should settle the question. If an acknowledged expert like Hans Moravec says such computer intelligence is possible, then it must really be possible.

d. It is quite clear that high sugar soft drinks are causing health problems and contributing to obe- sity in elementary and middle school children. The American Medical Association, the American Heart Association, the National Institute of Health, Harvard Medical School, and the Mayo Clinic have all agreed that children’s consumption of these high sugar drinks is a major cause of both obesity and health problems in school age children. e. There is great controversy over the economic impact of opening new casinos in Ohio. Some economists claim that the new casinos would bring in thousands of new jobs, and greatlyincrease the tax revenue to the state. Other economists say that the casinos would not bring inmore jobs, but would instead just replace some current entertainment jobs with casino jobs; andthey say that tax revenue would not really increase, because the state would have to spend moremoney regulating and policing the casinos than we would get back in revenue. Obviously this isa controversial issue among economists. But I recently talked with the chair of the economicsdepartment at the University of Southern Ohio, Dr. Susan Corbett; and Dr. Corbett said that thecasinos would definitely not bring more jobs or increase tax revenue! That should settle the issue: Dr. Corbett is one of the top economists in Ohio, and if she says the casinos would notbring more jobs and more tax revenue, we should accept her claim.

f. Lead poisoning is a major health hazard for children who are exposed to lead in lead-basedpaints and from other sources. The dangers from lead were recently confirmed by Dr. AliceBiagiotti, who is chair of the Manhattan University Medical School Department of Environmen-tal Diseases, and has published dozens of articles on the hazards of lead: She stated that leadpoisoning is one of the major causes of neurological damage to children. g. Dr. James Solomon is one of the world leaders in nanotechnology, and he heads the Nanotech- nology Research Institute at New York University for Science and Technology: Dr. Solomon’srecent research led to a major breakthrough on microradiation treatments for cancer, and heshared the Nobel Prize in physics for that accomplishment. Dr. Solomon firmly believes in lifeafter death, and he maintains that evidence from near-death experiences offers conclusive proofthat life can and does continue after death. When the Nobel Prize winner in physics asserts thatthere is life after death, that should settle the issue for all reasonable persons. 2. How Do You Rule? Jacqueline Ripper is on trial for the murder ofQuincy Victim. She is accused of stabbing Quincy todeath after a bitter argument in a local tavern.Dr. Constance Competent, a leading authority on theidentification of blood types, is appearing for theprosecution as an expert witness. She has testified thatthe blood on a knife identified as belonging toMs. Ripper is the same blood type as that of the lateMr. Victim. The prosecution continues its questioning of Dr. Competent as follows: DISTRICT ATTORNEY : Now Dr. Competent, you have carefully examined the blood-stained knife,state’s exhibit number 3? DR.C OMPETENT : Yes, I have. DISTRICT ATTORNEY : And you have seen the defendant, Ms. Ripper, here in court? DR.C OMPETENT : Certainly. DISTRICT ATTORNEY : In your expert judgment, would Ms. Ripper have sufficient strength to usethat knife to inflict a fatal wound on a middle-aged man of average size andstrength? DEFENSE ATTORNEY : Objection, your honor. The prosecution is asking for speculation. Howwould Dr. Competent know how much strength is required to inflict afatal wound, much less how much strength is in the defendant’s arms?Dr. Competent is no expert in such matters. DISTRICT ATTORNEY : Your Honor, I submit that Dr. Competent is well-qualified to answer the ques-tion. In the course of her work on identifying blood types, she has examinedmany fatal wounds and is thus in an excellent position to testify about suchwounds. I’m sure the jury will want the benefit of the full and unfetteredtestimony of such an internationally renowned expert as is Dr. Competent. Chapter 10 Appeal to Authority 151 Bob Daemmrich / Alamy Should Dr. Competent be allowed to offer expert testimony in response to the district attorney’s question? That is, do you sustain the defense objection, or do you overrule and allowDr. Competent to answer? 3. Aristotle was one of the greatest philosophers in all history. For over a thousand years, he wasso widely acclaimed that he was often referred to as simply “the Philosopher”: when someonespoke of “the Philosopher,” everyone knew that meant Aristotle. Aristotle insisted that the pathto virtuous living must be a path of moderation. In seeking to live virtuously, one should alwaysseek the mean : the virtue of bravery is the mean between rashness and cowardice; the virtue of thrift is the mean between stinginess and wastefulness; and so on. This doctrine came to becalled the golden mean account of virtue, and many people have found it useful for over 2000 years. Therefore, the life of virtue must be one of careful moderation, avoiding extremesand excesses on both sides. How would you evaluate that argument? 4. You go to see your doctor, Dr. Joan Jones, for your annual physical checkup. After all the reports areback, she sits down with you to discuss your current state of health and how it could be improved.Dr. Jones lights up a cigarette, takes a deep puff, and starts talking: Look, you’re in pretty good health. Your blood pressure is good, and you seem to be getting enough exercise. But you really ought to stop smoking. There have now been many reliable studies—by theAmerican Cancer Society and others—that show that smoking is the major cause of lung cancer andthat it also greatly increases your chances of developing cancer of the mouth, cancer of the throat,emphysema, or having a heart attack. You want to avoid cancer and heart attacks, right? Then youshould quit smoking. What effect should Dr. Jones’s smoking have on your evaluation of what she says? 5. You go to see your doctor, Dr. Sam Smith, for your annual physical checkup. After all the reports are back, he sits down with you to discuss your current state of health and how it could be improved.Dr. Smith lights up a cigarette, takes a deep puff, and starts talking: Look, you’re in pretty good health. Your blood pressure is good, and you seem to be getting enough exercise. However, you really ought to stop smoking. Listen to me: I’ve seen what smoking does topeople, and it’s not pretty. I’ve watched patients die in agony from lung cancer. Take it from me:Everyone ought to stop smoking. What effect should Dr. Smith’s smoking have on your evaluation of what he says? 6. How Do You Rule? This is a civil case, in which Dr. Lawrence Logan is being sued for malpractice. Dr. Logan is an oncologist.The lawsuit against him is asking for heavy damages onbehalf of Janice Joust, a 35-year-old woman whosefamily doctor referred her to Dr. Logan. Dr. Loganexamined her briefly, ran very few tests, and concludedthat she was not suffering from cancer, but instead wasfeeling the effects of a lingering bronchial infection;Dr. Logan assured her that the infection would soonclear up on its own. Unfortunately, Ms. Joust developedlung cancer; when she was checked by Dr. Logan itwas—the plaintiff claims—at a very early and treatable stage that could have been discovered with adequate testing. During the months following, whilethe patient received no treatment, the cancer spread throughout her body; by the time Ms. Joustwent to another oncologist, the cancer was far advanced. Ms. Joust underwent several treatments,but a few months after beginning those treatments she died from the cancer. The witness on thestand is Dr. Carl Covington, who is also an oncologist, and shares a practice with Dr. Logan andthree other oncologists. Dr. Covington has testified—as an expert witness for the defense—thatDr. Logan carried out a thorough and professionally competent examination of Ms. Joust; andthat—in Dr. Covington’s professional opinion—Ms. Joust’s cancer had not been present when 152 Chapter 10 Appeal to Authority Bob Daemmrich / Alamy Chapter 10 Appeal to Authority 153 she was examined, but had begun at a later date. Now, Dr. Covington is being cross-examined by the plaintiff’s attorney.

“Dr. Covington, you share a practice with Dr. Logan, is that correct?” “Yes, with Dr. Logan and three other physicians; the Brightwood Oncology Center.” “Could you tell me, Dr. Covington, how you manage your malpractice insurance? Do you buy it individually, or as a group?” “We purchase malpractice coverage through a group policy; all of the physicians at Bright- wood are on the same plan.” “Did your insurance premiums go up last year?” “The premiums increase just about every year; you lawyers make sure of that.” “Was there a particularly big increase in your insurance costs last year?” “There was a substantial increase, yes.” “Do you know why there was such an increase, Dr. Covington? Did your insurance agent give you any reason?” “He said it was because of all the frivolous malpractice suits you lawyers are filing.” “Is that what he said, Dr. Covington? Or did he give you a more specific reason? Let me remind you that you are testifying under oath.” “He said that part of the increase was because of a malpractice suit that had been filed against a physician in the practice during the previous year.” “Who was that physician, Dr. Covington?” “I was.” “I see. And what was the result of that malpractice suit that was filed against you?” “The jury found in favor of the plaintiff.” “Yes, thank you, Dr. Covington. And what damages did the jury award?” “One and a quarter million.” “That’s one and a quarter million dollars?” “Obviously.” “And the damages against you were for failing to give additional chemotherapy treatments that might well have prevented the return of a cancer that resulted in the death of a forty-year-old mother of three; is that right, Dr. Covington? Is that one of the frivolous cases you were referring to?” “Your Honor,” the defense counsel rises to object; “counselor is badgering the witness, and that question is argumentative.” “I withdraw the question. Now Dr. Covington, what would happen to your malpractice insurance if the jury reaches a verdict against Dr. Logan? Did your insurer tell you anything about that?” “No, nothing that I remember.” “Let me refresh your memory, Doctor. This is a letter from Northern Medical Insurance, addressed to Brightwood Oncology. Is that a letter from your malpractice insurer?” Dr. Covington looks at the letter. “It appears to be.” “Appearances can be deceiving, Dr. Covington. I’m not asking about appearances. Is that or is it not a letter from your malpractice insurance company, addressed to your medical practice?” “Yes, it is.” “What does that letter say?” “It says that if the company has to pay another large malpractice settlement on behalf of Brightwood, that they will double our premiums.” “They will double your premiums. Tell me, Dr. Covington, how much would your own insur- ance costs go up, how much more would you have to pay, if this jury decides this case in favor of the family of Ms. Joust? How much would that cost you out of pocket?” At this point the attorney for Dr. Logan objects. “Your Honor, these questions are irrelevant.

This case is about the professional work of Dr. Logan. This tiresome talk about medical malpractice insurance, which is a terrible burden on all physicians, has nothing to do with the issue at hand.” How do you rule? Will you sustain this objection, or overrule and allow the questions along this line to continue? 154 Chapter 10 Appeal to Authority INTERNET RESOURCES Some very nice examples of appeal to authority and appeal to popularity can be found at http://www.cbsd.org/sites/teachers/hs/NMUNROE/Student%20Documents/11-%20Basics%20of%20 Rhetoric%20Unit%20Materials/Fallacies%20pp.pdf. ADDITIONAL READING A meticulous and extensive study of appeal to popularity can be found in Douglas Walton, Appeal to Popular Opinion (University Park, Pennsylvania: Pennsylvania State University Press, 1999). For a careful study of expert testimony and appeal to authority, see Walton’s Appeal to Expert Opinion:

Arguments from Authority(University Park, Pennsylvania:

Pennsylvania State University Press, 1997) For more on expert testimony, see Testimony: A Philosophical Study,by C. A. J. Coady (New York: Oxford University Press, 1992).

For a detailed discussion of the Fr yeandDaubert legal standards for expert testimony, see Kenneth R. Foster and Peter W. Huber, Judging Science: Scientific Knowledge and the Federal Courts(Cambridge, MA: The MIT Press, 1997), especially Chapter 9.

Jeff Chesen, in “Canada’s Use of Expert Witnesses and Scientific Evidence Admissibility,” is a very clear examination of the Canadian approach to expert testimony, and thehistorical development of that approach. The paper was published by the National Clearinghouse for Science, Technology, & the Law, July 2006; it can be found online at www.ncstl.org/evident/July,%202006.

An interesting and very readable case of conflict over “expert” testimony—including a helpful analysis of the standards for expert testimony—is found in Timothy E. Moore, “Scientific Consensus and Expert Testimony:

Lessons from the Judas Priest Trial,” Skeptical Inquirer, Vol. 20, no. 6, November/December 1996.

Sheldon Rampton and John Stauber, Trust Us, We’re Experts!(New York: Tarcher/Putnam, 2001), is a fasci- nating and in-depth study of how “experts for hire” can be used to manipulate public opinion.

For an excellent article on how “scientific” studies can be distorted and manipulated, see “The Secret History of Lead,” by Jamie Lincoln Kitman, in The Nation(March 20, 2000). REVIEW QUESTIONS 1. What is the fallacyof appeal to authority?

2. Under what conditions is appeal to authority legitimate?

3. What is the fallacyof appeal to popularity? Why is it a fallacy? NOTES 1Fr yev. United States,293 F. 1010–1019.2Daubertv. Merrell Dow Pharmaceuticals, Inc.,61 U.S.L.W. 4801–4812.3There has been much discussion of the Daubertcase; for a clear and brief examination of some of the issues, see an article by Alexander Morgan Capron, “Facts, Values, and Expert Testimony,” in Hastings Center Report(September–October 1993).

4For an excellent discussion of the issues in this case, see Timothy E. Moore, “Scientific Consensus and Expert Testimony: Lessons from the Judas Priest Trial,” Skeptical Inquirer(November–December 1996).

5Peter W. Huber, Galileo’s Revenge(New York: Basic Books, 1991), p. 18; quoted from “From the People Who Brought You the Twinkie Defense: The Rise of the Expert Witness Industry,” Washington Monthly (June 1987), p. 33.

6For more details, see Chapter 11 of Toxic Sludge is Good for You,by John Stauber and Sheldon Rampton (Monroe, ME: Common Courage Press, 1995); and an article by Howard Kurtz, “Dr. Whelan’s Media Operation,” in Columbia Journalism Review(March–April 1990).

7Sheldon Rampton and John Stauber, Trust Us, We’re Experts(New York: Tarcher/Putnam, 2001), p. 86.8Ibid, p. 199.9Ibid, p. 256. 10 164 U.S. 492 (1896). 11 297 F.2d 754, 759 (5th Cir. 1962).

Studyand Reviewonmythinkinglab.com Chapter 10 Appeal to Authority 155 ReadtheDocumentonmythinkinglab.com Andrew Fenton, “Rwanda Is So Hot Right Now.” In this essay, Fenton examines the question of inconsistency between the actions and the publicized views of celebrities; a crucial ques- tion here will be whether the celebrities are offering argu- ments (in which case, the character of the arguer—whether sincere or hypocritical—is irrelevant) or whether they are presenting their views as based on their own special authority (in the latter case, their inconsistency or hypocrisy would raise legitimate questions concerning their special testimony).

Tom Brown Jr., “An Opinion with Substance.” This is an illustration of a genuine authority, whose expert opinion is worthy of careful consideration.Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). This is the clearest statement of the current standard adopted by the U.S. Supreme Court for dealing with questions of expert witnesses and appeals to expert authority. It marks a significant change from the earlier standard; whether it is an improvement—and whether it ultimately offers a workable standard— remains a matter of debate (note that in his dissent, Justice Rehnquist clearly thinks the Daubertstandard still has problems). 156 Cumulative Exercises One (Chapters 1 through 10) The following are examples of the various sorts of arguments we examined in Chapters 1 to 10. Some are fallacious; some are not. For each example, firsttell what form the argument is (such as ad hominem), thendetermine whether the argument is or is not fallacious. So for each argument, you should write something like this: fallacious appeal to authority or nonfallacious ad hominem.

As a brief guide, these are the argument forms that may be included in these exercises: Ad hominem: sometimes a fallacy, sometimes not Inverse ad hominem: sometimes a fallacy, sometimes not Strawman: always a fallacy Irrelevant reason (or red herring): always a fallacy Appeal to ignorance: always a fallacy Ambiguity: always a fallacy Appeal to authority: sometimes a fallacy, sometimes not Appeal to popularity: always a fallacy Appeal to tradition (traditional wisdom): always a fallacy 1.Philosophy courses are very valuable for all college students. After all, if students do not take philosophy, then philosophy professors would lose their job. And since philosophy professors have no other marketable skills, and many are old and run down, most of them would not be able to find another job, and their children would go hungry, and they would lose their homes, and their families would be destitute. So obviously philosophy is a useful and beneficial course for all students.

2.Ever since the comets crashed into Jupiter a few years ago, some people have been afraid that a comet might strike Earth, with cataclysmic consequences. There is, of course, a very small danger of that; but the chances are very small. I have talked with Dr. Alice McGovern, professor of Astronomy at Harvard University, who assured me that given the vast distances in space and the relatively tiny size of Earth, the likelihood of a comet striking Earth any time in the next five centuries is very small indeed. When I called Dr. Seth Zarech, scientific director of NASA, he agreed with Dr. McGovern.

And Dr. George Maravich, who is chair of the Astronomy Department at the University of Michigan, said exactly the same thing. So obviously there is very little risk of Earth being struck by a comet anytime in the near future. 3.During the recent intensive debate over health-care reform, Sarah Palin argued that the proposed reforms were bad, because they would involve setting up death panels that could decide to kill any elderly patients who were admitted to hospitals. Some people said her argument was not a good argument: that it committed the strawman fallacy, and distorted the position it criticized. But in fact Palin’s argument wasa good argument, because it was successful in convincing many people to oppose health-care reform, and that was Palin’s goal.

4.Fifty dollars is missing from the store cash register. Laura Ring was working at that cash register for part of the day, and someone suggested that Laura might have stolen the money. Well, I don’t know what happened to that money: maybe it was lost, or someone made a mistake making change, or whatever. But I do know this: Laura certainly did not steal the $50. I have known Laura for over 10 years, and she is one of the most honest, high-principled people I have ever known. George Washington would tell a lie before Laura would, and it would never even occur to her to steal money. When Laura tells you something, you can count on it. And when Laura does a job, she does it honestly and to the best of her ability. She is completely trustworthy, and honest through and through; and she certainly is no thief.

5.Some people complain about the profits being raked in by the major oil companies: Exxon made a profit of 8 billion dollars in the last quarter, and Chevron made 4 billion. They claim that the oil companies are making enormous and unfair profits, while we consumers are paying painfully high prices for gasoline. But no one should take their criticisms seriously. Apparently they believe that people in the oil industry should work for free, and that investors in Exxon and Chevron have no right to make a profit on their investment. They think that all profits are wrong, and that no company should ever make a profit for its work. They apparently want to abolish capitalism altogether, and do away with our free enterprise system.

6.There may be many opinions about music; but we can settle right now the question of what was the greatest piece of music ever written. Yesterday I heard a lecture by Fyodor Smirnoff, the music director and conductor of the Moscow Symphony Orchestra. Smirnoff is not only a great con- ductor, but is also a wonderful composer and an expert on musical history. In his lecture, Smirnoff asserted that Mozart’s 23rd Symphony is the greatest single piece of music ever written. That should settle the issue once and for all: if Smirnoff says Mozart’s 23rd Symphony is the greatest music ever written, then it must be the greatest.

7.There are some people who favor a ban on trophy hunting. That is, some want to ban the hunting of lions, bears, elephants, and tigers for trophies. But trophy hunting has been a sport enjoyed for many decades by trophy hunters. All through the nineteenth and twentieth centuries, trophy hunting has been regarded as an exciting, legitimate, and morally acceptable sport, and so trophyhunting should certainly not be banned or condemned.

8.Melba Martin has been arguing that more efforts and money should be invested in cleaning up the Mahoning River. She points out that the pollution of the river poses health hazards, and that if the river were cleaned up, it would become a valuable recreational resource, and if the river were clean then restaurants and other businesses would probably be built along the river in Youngstown, just as happened with the Flats in Cleveland, and that could lead to the revitalization of the Youngstown urban area. Her arguments sound pretty good, when you first hear them. But then I discovered that Melba owns some land along the southern Mahoning River, and if the river is cleaned up then her property will substantially increase in value. So I can’t really give much weight to Melba’s arguments.

9.The defense has claimed that Melissa Johnson is not guilty of murder, because she shot her hus- band by accident, and unintentionally. Her husband, Art Johnson, returned a day early from a busi- ness trip, arriving in the middle of the night. He didn’t turn on the lights, because he apparently didn’t want to awaken his wife. When Melissa heard someone enter the house, she thought it was a burglar; there had been burglaries in the neighborhood, and she was terrified. So when she saw her husband’s dark figure in the hallway, she aimed her pistol at him and pulled the trigger, thinking it was an intruder who might harm or even kill her. But notice this, ladies and gentlemen of the jury:

when Melissa picked up that pistol, aimed it, and pulled the trigger, she definitely intendedto shoot the person she saw in the hallway. That person happened to be her husband; and so clearly you must conclude that she intentionally shot and killed her husband.

10.Art claims that the reason Julie made the dean’s honor list is that she buys all her papers from an In- ternet term paper service. He said he saw her credit card bill, and it had hundreds of dollars of charges to TermPaperPro.Com. But you should keep in mind that Julie and Art used to be lovers, and last year Julie dumped Art, and Art has hated her ever since. And besides, Julie has always Cumulative Exercises One (Chapters 1 through 10) 157 made better grades than Art, and he’s really jealous of her. And Art has been known to spread false rumors about other people he doesn’t like. So I would be really skeptical of what Art says about Julie.

11.Some people claim that McDonald’s promotes bad eating habits: they target children in their advertising and provide toys that reward children, even toddlers, for eating high-fat hamburgers and fries and high-sugar soft drinks; and those childhood eating habits tend to carry over into adult- hood. But such criticisms of McDonald’s are nonsense. After all, McDonald’s provides clean, safe restaurants where the whole family can enjoy themselves together, local McDonald’s restaurants often sponsor little league teams and youth soccer leagues, and lots of high school students get valuable experience in their first real jobs at McDonald’s. So there is no basis for the claim that McDonald’s promotes unhealthy eating habits.

12.Recently there has been fierce debate over the best way of preventing and controlling crime, with some experts pushing for more educational, prevention, and early-intervention programs, and less use of prison sentences. But former U.S. attorney general Edwin Meese asserts that the best way to stop juvenile crime is through a get-tough policy that treats young offenders very harshly, giving them long prison sentences in adult prisons. Attorney General Meese has dealt with issues of justice and crime for many years, and as attorney general he served as the top law enforcement officer of the United States; so Meese’s program of getting tough on juvenile offenders must be the best way of handling that problem.

13.The U.S. Congress has recently passed legislation that allows people to be held in jail for longer periods when they have not been convicted of crimes, allows the government to tap into phone lines and listen in on private conversations almost without restriction, and even suspends the basic right of trial by jury for some types of crimes. Some people say that these are an assault on our basic rights and that such policies threaten our liberties. But in fact these policies do not threaten our basic rights and liberties. For these are desperate and dangerous times, and the threat of terrorism is very real. Indeed, we are now in a full waragainst terrorism. So these new policies obviously do not pose a threat to our basic rights and liberties.

14.Bill Gates, the chairman of Microsoft, argues that every U.S. citizen should have access to a com- puter and to the Internet. He points out that the Internet is a very important source of information, and that if some people do not have access to the Internet they will be left out of the information age, and they will not have equal opportunity for success. Access to the Internet, Gates argues, is just a matter of giving everyone fair opportunity. But you should realize that as the chairman and major owner of Microsoft, Bill Gates obviously stands to make more money as more people use comput- ers and start using the Internet. In fact, the more people use computers and the Internet, the richer Bill Gates will become. So Gates’s arguments are not really that convincing when you understand the financial stake he has in them.

15.Former President Jimmy Carter argued that we should not rush into a war with Iraq. He said that as the strongest nation in the world, we should set a good example for the rest of the world in show- ing how to resolve conflicts peacefully. He also noted that the Middle East is already a very unstable region, and a war there would only increase tensions and perhaps lead to a wider war. And I say we should have accepted former President Carter’s argument: after all, he has enormous foreign pol- icy experience, and his years of working with Habitat for Humanity instead of using his fame for his own selfish gains show that he is a person who has dedicated himself to making the world better.

16.Some people argue that we should stop doing medical tests on chimpanzees: they say that chimpanzees are very sensitive animals, closely related to humans; they suffer pain just as we do, and suffer severe depression when kept in isolation, and that it is wrong to inflict suffering on such sensitive animals, especially when we have other means of running medical tests that would not impose such suffering on these highly intelligent animals so closely related to ourselves. But we should pay no attention to the complaints of these anti-science zealots. They want to put an end to all scientific research, and stop all scientific progress. If they had their way, we would never make any advances in medical treatment.

17.This makes me so mad. Jeff’s paper won the Philosophy Department Langston Prize for out- standing undergraduate paper, an award of $500. I should have won that prize. Jeff’s paper was plagiarized! I just know it was. Okay, I couldn’t find the source he copied it from, and I can’t really prove he stole that paper. But it’s clear that he did. After all, he couldn’t prove that he wrote it himself. He said he typed it on his computer, and revised as he went, and so there’s no old version of the paper. Sounds very suspicious to me! He has no proof at all that he didn’t steal the paper, and so obviously that’s exactly what he did. 158 Cumulative Exercises One (Chapters 1 through 10) 18.Al Gore argues that we must take steps to reduce pollution: he argues that unless we significantly reduce pollution we’ll face major problems of global warming, flooding, and severe food shortages.

But it turns out that Al Gore often travels in a private jet, and private jet travel causes major pollution problems, and in terms of pollution it is one of the worstmethods of travel. As long as Al Gore travels in private jets, there’s no reason to take his arguments against pollution seriously.

19.Bobby Parks claims that some of the university librarians are plotting to kill him. He says that one afternoon while he was downstairs looking for a book, he overheard four librarians discussing a plan to poison him. Unfortunately, however, Bobby is addicted to amphetamines, and ampheta- mine addicts often become nervous and paranoid and fearful of everyonearound them. So I certainly don’t place much confidence in Bobby’s claims that the librarians are trying to kill him.

20.Look, we all agree that Bruce is an honest person, who always tells the truth. So when Bruce says that he saw extraterrestrials land on Glenwood Avenue, he was telling the truth. Therefore, it must be true that there were extraterrestrials landing on Glenwood Avenue.

21.One proposal to pay for expanding health care is a special tax of 1% on all income over $250,000/year for individuals or $500,000 a year for couples. But what those people who are proposing that tax really want is to tax away all wealth whatsoever, and make everyone in America exactly equal in income. If they get their way, no one in this country will be wealthy, and no American child can ever again dream of becoming wealthy.

22.State Senator Owens recently argued that we should increase the state tobacco tax in North Carolina. He pointed out that North Carolina has the lowest tobacco tax in the country and that much-needed revenue for our schools could be gained through adding a small state tax of 3 cents a pack on cigarettes. Well, as everyone knows, the tobacco industry is verypowerful in North Carolina, and it strongly opposes any increase in tobacco taxes. By arguing for an increase in the tobacco tax, Senator Owens bravely risked offending all the tobacco farmers and tobacco manu- facturing workers in the state, as well as all the smokers. It takes a lot of courage for a senator to argue for such a controversial position, and any politician showing that much courage and con- viction must be giving strong arguments.

23.Oysters are an effective aphrodisiac: Eating oysters will improve your love life and make you more passionate. That is clearly true, since there is no scientific evidence that conclusively proves that eating oysters does not improve your love life and increase passion.

24.Ladies and gentlemen of the jury, you have heard the chief prosecution witness swear that he saw the defendant running from the burglarized store the night of the burglary. But don’t believe a word of it! After all, that witness has himself been convicted of burglary charges, and he is testifying against the defendant in hopes that the defendant will be convicted and he (the witness) will there- fore no longer be a suspect in this burglary.

25.Some people claim that it is important that a defendant be allowed to have his lawyer present at any lineup in which the defendant participates, so that the lawyer can guard against unfair lineups. But in fact defendants do not really need lawyers present at lineups. For, in the first place, if the defen- dant’s lawyer has to be called in before the lineup, then that will take lots of time and probably will cause delays in setting up the lineup, and it will thus increase the workload of our already overworked police forces. And besides, since many defendants cannot afford attorneys and instead have court-appointed attorneys or public defenders, that would greatly increase the cost to tax- payers, since it would be the taxpayers who would have to pay for the time the defendant’s lawyer spends at the lineup. So lawyers are not really needed to guarantee that the defendant is not placed in an unfair lineup.

26.Dr. Stanley Steamer has told us that there is no reason to worry about nuclear power. He says that he has studied nuclear power carefully and is an expert on all the possible hazards as well as safety features of nuclear power plants. He also says that he can absolutely guarantee that nuclear power plants currently operated in the United States are not dangerous. But in fact it turns out that Dr. Steamer was recently fired from his teaching position at the University of Nebraska when it was discovered that he had falsified research data and lied ab