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This is the familiar argument that some policy, behavior, or practice is right or acceptable because "it's always been done that way. Because an argumentum ad antiquitatem is easily refuted by simply pointing it out, in general it should be avoided. But if you must make such an argument -- perhaps because you can't come up with anything better -- you can at least make it marginally more acceptable by providing some reason why tradition should usually be respected. For instance, you might make an evolutionary argument to the effect that the prevalence of a particular practice in existing societies is evidence that societies that failed to adopt it were weeded out by natural selection.

This argument is weak, but better than the fallacy alone. Argumentum ad hominem argument directed at the person. This is the error of attacking the character or motives of a person who has stated an idea, rather than the idea itself. The most obvious example of this fallacy is when one debater maligns the character of another debater e.

A more typical manifestation of argumentum ad hominem is attacking a source of information -- for example, responding to a quotation from Richard Nixon on the subject of free trade with China by saying, "We all know Nixon was a liar and a cheat, so why should we believe anything he says? In all of these cases, the relevant question is not who makes the argument, but whether the argument is valid. It is always bad form to use the fallacy of argumentum ad hominem.

But there are some cases when it is not really a fallacy, such as when one needs to evaluate the truth of factual statements as opposed to lines of argument or statements of value made by interested parties. If someone has an incentive to lie about something, then it would be naive to accept his statements about that subject without question. It is also possible to restate many ad hominem arguments so as to redirect them toward ideas rather than people, such as by replacing "My opponents are fascists" with "My opponents' arguments are fascist.

Argumentum ad ignorantiam argument to ignorance. This is the fallacy of assuming something is true simply because it hasn't been proven false. For example, someone might argue that global warming is certainly occurring because nobody has demonstrated conclusively that it is not. But failing to prove the global warming theory false is not the same as proving it true. Whether or not an argumentum ad ignorantiam is really fallacious depends crucially upon the burden of proof.

In an American courtroom, where the burden of proof rests with the prosecution, it would be fallacious for the prosecution to argue, "The defendant has no alibi, therefore he must have committed the crime.


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In debate, the proposing team in a debate round is usually but not always assumed to have the burden of proof, which means that if the team fails to prove the proposition to the satisfaction of the judge, the opposition wins. In a sense, the opposition team's case is assumed true until proven false. But the burden of proof can sometimes be shifted; for example, in some forms of debate, the proposing team can shift the burden of proof to the opposing team by presenting a prima facie case that would, in the absence of refutation, be sufficient to affirm the proposition.

Still, the higher burden generally rests with the proposing team, which means that only the opposition is in a position to make an accusation of argumentum ad ignorantiam with respect to proving the proposition. Argumentum ad logicam argument to logic. This is the fallacy of assuming that something is false simply because a proof or argument that someone has offered for it is invalid; this reasoning is fallacious because there may be another proof or argument that successfully supports the proposition.

This fallacy often appears in the context of a straw man argument. This is another case in which the burden of proof determines whether it is actually a fallacy or not. If a proposing team fails to provide sufficient support for its case, the burden of proof dictates they should lose the debate, even if there exist other arguments not presented by the proposing team that could have supported the case successfully.

Moreover, it is common practice in debate for judges to give no weight to a point supported by an argument that has been proven invalid by the other team, even if there might be a valid argument the team failed to make that would have supported the same point; this is because the implicit burden of proof rests with the team that brought up the argument. For further commentary on burdens of proof, see argumentum ad ignorantiam , above. Argumentum ad misericordiam argument or appeal to pity. The English translation pretty much says it all. Example: "Think of all the poor, starving Ethiopian children!

How could we be so cruel as not to help them? It is, of course, perfectly legitimate to point out the severity of a problem as part of the justification for adopting a proposed solution. The fallacy comes in when other aspects of the proposed solution such as whether it is possible, how much it costs, who else might be harmed by adopting the policy are ignored or responded to only with more impassioned pleas. You should not call your opposition down for committing this fallacy unless they rely on appeals to pity to the exclusion of the other necessary arguments.

It is perfectly acceptable to use appeal to pity in order to argue that the benefits of the proposed policy are greater than they might at first appear and hence capable of justifying larger costs. Argumentum ad nauseam argument to the point of disgust; i.

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This is the fallacy of trying to prove something by saying it again and again. But no matter how many times you repeat something, it will not become any more or less true than it was in the first place. Of course, it is not a fallacy to state the truth again and again; what is fallacious is to expect the repitition alone to substitute for real arguments. Nonetheless, this is a very popular fallacy in debate, and with good reason: the more times you say something, the more likely it is that the judge will remember it. The first thing they'll teach you in any public speaking course is that you should "Tell 'em what you're gonna tell 'em, then tell 'em, and then tell 'em what you told 'em.

The appropriate time to mention argumentum ad nauseam in a debate round is when the other team has made some assertion, failed to justify it, and then stated it again and again. The Latin wording is particularly nice here, since it is evocative of what the opposition's assertions make you want to do: retch.

But this argumentum ad nauseam can't and won't win this debate for them, because they've given us no justification for their bald assertions! Argumentum ad numerum argument or appeal to numbers. This fallacy is the attempt to prove something by showing how many people think that it's true.

But no matter how many people believe something, that doesn't necessarily make it true or right. This fallacy is very similar to argumentum ad populum , the appeal to the people or to popularity. When a distinction is made between the two, ad populum is construed narrowly to designate an appeal to the opinions of people in the immediate vicinity, perhaps in hope of getting others such as judges to jump on the bandwagon, whereas ad numerum is used to designate appeals based purely on the number of people who hold a particular belief. The distinction is a fine one, and in general the terms can be used interchangeably in debate rounds.

I've found that ad populum has better rhetorical effect. Argumentum ad populum argument or appeal to the public. This is the fallacy of trying to prove something by showing that the public agrees with you. For an example, see above. This fallacy is nearly identical to argumentum ad numerum , which you should see for more details. Argumentum ad verecundiam argument or appeal to authority. This fallacy occurs when someone tries to demonstrate the truth of a proposition by citing some person who agrees, even though that person may have no expertise in the given area.

For instance, some people like to quote Einstein's opinions about politics he tended to have fairly left-wing views , as though Einstein were a political philosopher rather than a physicist. Of course, it is not a fallacy at all to rely on authorities whose expertise relates to the question at hand, especially with regard to questions of fact that could not easily be answered by a layman -- for instance, it makes perfect sense to quote Stephen Hawking on the subject of black holes.

At least in some forms of debate, quoting various sources to support one's position is not just acceptable but mandatory. In general, there is nothing wrong with doing so. Even if the person quoted has no particular expertise in the area, he may have had a particularly eloquent way of saying something that makes for a more persuasive speech. In general, debaters should be called down for committing argumentum ad verecundiam only when a they rely on an unqualified source for information about facts without other qualified sources of verification, or b they imply that some policy must be right simply because so-and-so thought so.

Circulus in demonstrando circular argument.


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Circular argumentation occurs when someone uses what they are trying to prove as part of the proof of that thing. Here is one of my favorite examples in pared down form : "Marijuana is illegal in every state in the nation. And we all know that you shouldn't violate the law. Since smoking pot is illegal, you shouldn't smoke pot. And since you shouldn't smoke pot, it is the duty of the government to stop people from smoking it, which is why marijuana is illegal!

Circular arguments appear a lot in debate, but they are not always so easy to spot as the example above. They are always illegitimate, though, and pointing them out in a debate round looks really good if you can do it. The best strategy for pointing out a circular argument is to make sure you can state clearly the proposition being proven, and then pinpoint where that proposition appears in the proof. A good summing up statement is, "In other words, they are trying to tell us that X is true because X is true!

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But they have yet to tell us why it's true. Complex question. A complex question is a question that implicitly assumes something to be true by its construction, such as "Have you stopped beating your wife? Complex questions are a well established and time-honored practice in debate, although they are rarely so bald-faced as the example just given. Complex questions usually appear in cross-examination or points of information when the questioner wants the questionee to inadvertently admit something that she might not admit if asked directly.

For instance, one might say, "Inasmuch as the majority of black Americans live in poverty, do you really think that self-help within the black community is sufficient to address their problems? This is a sneaky tactic, but debate is sometimes a sneaky business. You wouldn't want to put a question like that in your master's thesis, but it might work in a debate. But be careful -- if you try to pull a fast one on someone who is alert enough to catch you, you'll look stupid.

The majority of blacks do not live in poverty. Get your facts straight before you interrupt me again! Cum hoc ergo propter hoc with this, therefore because of this. This is the familiar fallacy of mistaking correlation for causation -- i.

A popular example of this fallacy is the argument that "President Clinton has great economic policies; just look at how well the economy is doing while he's in office! It is always fallacious to suppose that there is a causative link between two things simply because they coexist.

But a correlation is usually considered acceptable supporting evidence for theories that argue for a causative link between two things. For instance, some economic theories suggest that substantially reducing the federal budget deficit should cause the economy to do better loosely speaking , so the coincidence of deficit reductions under Clinton and the economy's relative health might be taken as evidence in favor of those economic theories.

In debate rounds, what this means is that it is acceptable to demonstrate a correlation between two phenomenon and to say one caused the other if you can also come up with convincing reasons why the correlation is no accident.

THE DECISIVE TREATISE, DETERMINING THE NATURE OF THE CONNECTION BETWEEN RELIGION AND PHILOSOPHY

Cum hoc ergo propter hoc is very similar to post hoc ergo propter hoc , below. The two terms can be used almost interchangeably, post hoc as it is affectionately called being the preferred term. Dicto simpliciter spoken simply, i. This is the fallacy of making a sweeping statement and expecting it to be true of every specific case -- in other words, stereotyping.

Example: "Women are on average not as strong as men and less able to carry a gun. Therefore women can't pull their weight in a military unit. As the example indicates, dicto simpliciter is fairly common in debate rounds. Most of the time, it is not necessary to call an opposing debater down for making this fallacy -- it is enough to point out why the sweeping generalization they have made fails to prove their point. Since everybody knows what a sweeping generalization is, using the Latin in this case will usually sound condescending.

It is also important to note that some generalizations are perfectly valid and apply directly to all individual cases, and therefore do not commit the fallacy of dicto simpliciter for example, "All human males have a Y chromosome" is, to my knowledge, absolutely correct.

Nature, appeal to. This is the fallacy of assuming that whatever is "natural" or consistent with "nature" somehow defined is good, or that whatever conflicts with nature is bad. For example, "Sodomy is unnatural; anal sex is not the evolutionary function of a penis or an anus. Therefore sodomy is wrong. A reality-based approach to statutory interpretation seeks to answer the question what the legislature would want the court to do in the case at hand. Answering that question requires careful study of the consequences of any particular interpretation, and study of the legislature to determine how the legislature would feel — a word used here advisedly — about the outcome.

What legislators happened to say during debates over passage of the law is only one datum among many that are relevant to a realistic statutory interpretation. Statutory interpretation today, however, does something quite different: it simply treats records of legislative debates as authoritative texts. The detachment of this current approach from reality is evident in the fact that no court appears ever to have mentioned the offices of legislative counsel of the House and Senate of the U.

Congress, which employ dozens of lawyers who draft the actual texts of the bills proposed by federal legislators. It seems reasonable to suppose that those who actually wrote the language of the laws on the books might be able to explain the intent behind key words. The fact that no court has ever seen fit to ask these bill drafters what their words were meant to convey reflects the Renaissance orientation of statutory interpretation toward texts rather than reality. A focus on cases creates only the semblance of empiricism, however, so long as that focus is mediated by analogical reasoning from precedent.

The bachelor of law was the main degree awarded by law schools at the time. See J. Legal Hist. PR Co. Minnesota, U. Illinois, 94 U. Hope Gas Co. See Richard A. Wade, U. For an example of a contemporary opinion in the legal reasoning mold, see supra note Judges certainly must consider consequences in order to apply these tests properly, but the persistence of the practice of analogizing from precedents usually prevents judges from properly applying the tests.

Instead of considering consequences in weighing factors, judges analogize to past applications of the factors. All else equal, a truly realist approach would give zero weight to the fact that similar cases were decided in a particular way.

Essays by Michael Madison, Professor of Law at the University of Pittsburgh

The popularity of factor tests does not represent the triumph of realism in adjudication. For the definition of easements, see Jesse Dukeminier et al. See id. Trademark has traditionally been tied not to goodwill in particular, however, but to the business, or more specifically to the assets that generate the product that is associated with the mark in the minds of consumers. See Robert P. Merges et al.

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This response essay will proceed as if Mossoff had made the more accurate claim of a link to the business, rather than to goodwill. See Dukeminier et al. Transfer , —76 discussing the consequences of brand loyalty in the first-mover advantage context. See Kennedy, supra note 45, at — See Fried, supra note 13, at 53— Nineteenth century courts tried to maintain that property rights are a purely private affair, distinct from government exercise of coercive power.

For these courts, property involved a relationship between a person and the owned thing, and nothing more. Owning land implies a right to keep others off the land, at least at some times for some reasons. It follows that state guarantees of property rights amount to the use of coercive government power against some people the non-owners in favor of the owners.

Property is therefore just as much a matter of government regulation as are the administrative agencies favored by the realists, and the courts therefore cannot cast their resistance to the regulatory state as a struggle between private property and government. Private property is government too. Because their antagonists considered property to be absolute dominion, realists argued that property amounts to a right to exclude everyone without limitation.

But that does not mean that realists think that the right to exclude granted by property must always be total.

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Realists are just as happy viewing limited rights, such as trademark rights, as rights to exclude. Their position is that all rights are rights to exclude to a greater or lesser extent. For a discussion of realist approaches in a leading casebook, see Merges et al. Legal Reasoning as a Renaissance Habit of Mind The great evolutionary biologist Stephen Jay Gould devoted his last book to the relationship between science and the humanities. Legal Realism as Policymaking For at least a hundred years now, the legal realist movement has contested the Renaissance approach to the law by insisting that legal argumentation always be reality-based.

Mossoff on Trademark A. Confusion about Realism Mossoff mistakenly associates the textbook case against trademark as property — the specious argument that because trademark does not resemble other property rights it cannot itself be a property right — with legal realism. Conclusion Mossoff can be forgiven for confusing the textbook case against trademark as property for realism because today many scholars take for granted that realism dominates scholarship.

Tags: kljo , legal realism , Mossoff , ramsi woodcock , response piece , trademark , unfinished business , volume