Lawyers call it alternative pleading:
You say my dog bit you? Well…
- I don’t own a dog.
- And he doesn’t bite.
- And you kicked him first.
If that sounds vaguely familiar, it’s because you’ve been hearing it non-stop from Washington for the last week:
- There is no massive secret NSA surveillance program.
- And everyone has known all about it for years; it’s no big deal.
- And revealing it would be a major threat to national security.
See also cognitive dissonance.
Renowned neurobiologist, primatologist, and MacArthur Fellow Robert Sapolsky believes that the ability to maintain two contradictory thoughts simultaneously is a uniquely human capacity. He argues, in fact, that it’s precisely what makes us human. On that basis, lawyers have contributed enormously to humanity. Here are three examples, the first two (probably) apocryphal, the third from today’s headlines.
Example 1, the case of the kettle. As summarized by the Manhattan Institute for Policy Research, “Readers who’ve been to law school may remember the chestnut known as the ‘Case of the Kettle’. A man is charged with borrowing a kettle and breaking it. His reply is that, first, he never borrowed it; second, it was already broken when he borrowed it; third, it was intact when he returned it.”
Example 2, the case of the dog. Paraphrasing from a 1978 Wall Street Journal article about well-known Texas defense attorney Richard “Racehorse” Haynes: You say my dog bit you, but I don’t own a dog, and he doesn’t bite, and you kicked him first.
Example 3, digital downloads. Two recent court cases hinge on how the sale of an MP3 download compares to the sale of a conventional physical recording, known as a “phonorecord” in Copyright-speak. In one case, the singer Eminem demanded that Universal Music Group calculate his royalties for downloads based on the higher rate for licensed material instead of the lower rate for phonorecord sales. UMG refused, arguing that the sale of an MP3 download was the same as a phonorecord sale. In the second case, EMI filed suit against ReDigi, a company that allows purchasers of MP3 downloads to resell those files under Copyright law’s “first sale” doctrine. EMI argued that the MP3 files were not phonorecords and thus not subject to first sale.
Putting these two arguments together, we see the music industry imagining transactions where what’s sold is a phonorecord but what’s purchased isn’t.
How very, very human!