Sorites Postscript

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From the annals of great-minds-thinking-alike: Erstwhile roomie Glen Whitman emails to point out that he and NYU's Mario Rizzo wrote a paper on slippery slopes in which they make much the same point about precedent and sorites that I did in my Web piece Thursday. Except Glen and Rizzo add the excellent point that the process is highly path dependent. That is (read the column or this won't make sense) whether granular logic leads you to conclude that everything's a heap or that nothing is depends on which end you start from.

When it comes to precedent, that means that, for example, if there had been a spate of early cases where the fact pattern was like Kelo's—takings to hand over to a private developer with "economic growth" as the "public use" rationale—there might well have been an initial body of case law setting out precisely what wasn't good enough to count as a "public use." Perhaps then later cases involving takings to ameliorate urban blight would have been assimilated to that paradigm, leading to the construction of a "heap" in the other direction, in favor of a far narrower takings power.

The problem, of course, is that the government controls the starting-point. They don't start out with attempts at massive overreach that will build limiting precedent. They start with actions that are relatively clearly within the scope of federal power, and then gradually push out from that core. (Of course, one can think of exceptions: the Alien and Sedition acts, say.) There's reason, then, to expect the sorites problem to tend to work in favor of expanded government power, rather than against it. (One can imagine an Epstein-style sorites logic working that way: It's a taking if the government seizes your whole house. Well, what if they only seize 98 percent of the ownership rights? 95 percent? And so on.)

NEXT: The Face of Terror

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  1. I was going to make a “clever” joke/pun on soros/sorites, but then I checked out the explanation. How embarrassed I’d have been.

    Two observations, nonetheless.

    1. Abortion arguments are usually of this sort. “When is a human being a human being?”

    2.

    …the process is highly path dependent. That is … whether granular logic leads you to conclude that everything’s a heap or that nothing is depends on which end you start from.

    Actually, it’s first and foremost _definition_ dependent.

    A “heap”, like a “human being” or “public use”, is whatever you want it to be.

    Much of language (and therefore argument) is like that. We use words in ways that are convenient to us at the moment, and very few things actually mean what they mean. It’s all very alice-in-wonderland-ish.

    When you come right down to it, the Supreme Court is sort of an Acad?mie am?ricaine, whose job it is to define the vocabulary of the Constitution and federal laws.

    Maybe it should be made up of linguists rather than jurists.

  2. I think Eldered v Ashcroft is an example of this path dependent slippery slope thing.

    Specifically, copyright terms must be “limited” in time under the US Constitution. However, Congress keeps incrementally extending the term. The Eldred case says that these incremental extensions of the term are fine (that is, “limited”) basically because the copyright term is being extended by creep rather than quantum expansions.

    You could easily imagine thios process going the opposite way, if an early court decision had found that Congress had passed a copyright term too long to be considered as limited. However, Congress did things the opposite way, starting with short terms and gradually expanding to the century long copyright terms the US now enjoys.

  3. I think Eldered v Ashcroft is an example of this path dependent slippery slope thing.

    You go, boy!

    /Wish this site had “I agree” flags like my favorite sports boards.

    //Eldred was right.

    ///Lessig has gone Hollywood.

  4. I was going to make a “clever” joke/pun on soros/sorites, but then I checked out the explanation. How embarrassed I’d have been.

    I was going to say, “It seems awful sexist to talk about the problems of sorites, and not say a word about the behavior of fratertes. Like with all their hazing and stuff.”

    But maybe that’s just stupid. It’s 2:48 a.m. here, I can’t tell anymore.

  5. But maybe that’s just stupid.

    Yeah, pretty much.

    (I would _never_ make a greek-latin pun. It’s such a bastardly thing to do.)

    “Slippery slope of sorites”. Sounds like Agnew. Another Greek.

  6. How about “the heartbreak of sorites”?

    (You have to be of a certain age, and have watched American television, to get that one.)

  7. `S Awright!

  8. As I understand the problem, we cannot assign sufficient conditions for what constitutes a ‘heap’–hence it being labelled a ‘vague’ term. However, ‘public use’ seems just as apt for rigorous definition as ‘intent’ or ‘dwelling’ (and other SEEMINGLY fuzzy terms used in law).

    Of course, there will always be little loopholes but clearly most people have intuitions as to what ‘public use’ means and can come up with some sort of sharp cut-off for instances which fail to satisfy conditions thereof.

    Side note: for another very interesting and insightful take on the ruling, see Gary Becker and Judge Posner’s blog:
    http://www.becker-posner-blog.com/ where they look at eminent domain from an economic perspective.

  9. Jon,

    Once something is a heap, there no trouble identifying it. It’s trying to figure out which grain caused the transition from a few grains to a heap that’s problematic.

  10. Sadly, the sorites exercise is precisely the kind of jurisprudential thinking that results in four/five/six/more-part “balancing tests” that some members of the Court (*cough* Breyer *cough*) fancy. The problem with that is it easily converts relatively cut-and-dried constitutional dictates into balancing tests — and of course how things balance out is wholly up to the individual eyeballing of each Justice.

    Yes, some areas of the Constitution are vague — intentionally vague, in fact. But you also have to be careful about what you wish for.

  11. Maybe it [SCOTUS] should be made up of linguists rather than jurists.

    This is somewhat OT, but that’s precisely why I always thought I’d make a great judge. I’m very, very particular about the use of words and their meaning. I think when it comes to legality, it pays to be a nitpicker. Interpretation is everything, and it’s important to really understand the instances of language that are laid down as law. And now back to your previously scheduled programming…

  12. Maybe it should be made up of linguists rather than jurists.

    Only if they were very, very cunning. Linguists.

  13. How can something so wrong feel sorite?

  14. You can’t say that. First, that word doesn’t exist. And secondly, it’s not pronounced that way. And third… There is no third.

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