Recent reading

Dan M. Kahan, David A. Hoffman, & Donald Braman, Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism:

This paper, which includes a great survey of perceptions of the reasonableness of a high-speed police chase based on watching video of the chase, really made me think. Not only does the paper have a lot to say about the use of evidence that “speaks for itself,” it challenges the fact/value divide in a way that I find quite useful, given how false advertising law constantly slips between the two while maintaining the fiction that it’s all about facts:

What’s not nearly so well understood [as the problem of competing values] is the threat that competing understandings of fact pose to a liberal society. Indeed, forms of advocacy that feature seemingly neutral factual claims about how to promote societal welfare (“optimal deterrence,” “cost-benefit analysis,” “contingent valuation” and the like) are thought to be among the practices that dissipate illiberal conflict by avoiding reference to more contentious judgments of value. It might seem natural to see judicial idioms that focus on “facts” as conflict avoiding for the same reason. But because we inevitably recur to our cultural values to evaluate empirical claims about what conditions threaten our welfare and what policies promote it, a policy idiom of facts can polarize us every bit as much as one that deals with differences of value in a transparent way.

This discussion is obviously relevant to David McGowan’s claims that copyright should have more factual tests.

The footnotes discuss puffery as one relevant doctrine for deciding when facts (or non-facts) are so obvious that no reasonable person could disagree, though the authors are relatively sanguine about judicial use of the puffery doctrine to avoid jury resolution of factual disputes. With respect to advertising, however, I think conclusions about what counts as a material, factual claim are likely to vary with people’s individualist/communitarian and hierarchical/egalitarian orientations, which is the kind of variance that elsewhere the authors suggest should be of particular concern to judges inclined to rule that “no reasonable jury” could find other than how the judge does.

For earlier discussion of Scott v. Harris, see here.