Storytelling, a follow-up -Reply

[Eugene Volokh]

    It seems to me that a real incident can be used as support for
two claims:  (1) These things happen, or (2) These things are the
norm (or are very common or happen more often than X times/year or
what have you).

    Using the incident for purpose 1 is quite logically sound.  Thus,
for instance, when I send out my little messages about the excesses
of harassment law, I claim only that these incidents happen.  This
modest claim is useful to me because it then lets me ask people:  "How
would your theory of free speech and workplace harassment respond to
this?"  I don't need to show that they happen, say, more often than
genuinely bad incidents of harassment that deserve to be punished;
I'm not arguing that harassment law is on the whole bad, only that it
needs to be trimmed down to accommodate these examples, even if there
are only relatively few.  (Of course, if I could show the magnitude
of the problem, I might persuade people that the matter is more
urgent, but I'm not sure I can do that.)

    Similarly, I was careful in my story about the story to say that
I was giving this as a cautionary tale, not a claim about typicality.
I thought the Chavis incident would be a good example for reminding
people about the pitfalls of relying on logically unsound stories.

    My reservations about the uses of the original Chavis-is-good
story -- and some possible future uses of the Chavis-is-bad story --
rest from the sense that people want to use it for purpose 2.  If one
simply wanted to say "Some people who are let in under race-based
affirmative action do more good for society than others who are
excluded because of race-based affirmative action," then the Chavis-
is-good story would be valid support.  Likewise, if one simply wanted
to say "Some people who are let in under race-based affirmative
action end up being incompetent," then the Chavis-is-bad story would
be valid support.  But my guess is that few people want to make these
points, because the points are so banal and rhetorically useless.

    Rather, as I read the St. Louis Post-Dispatch editorial and the
Rice & Hayden articles, they were making broader claims:  "This
example is typical of race-based affirmative action; people who are
let in under race-based affirmative action typically end up serving
poor black communities, while people who are excluded under race-
based affirmative action typically end up being in it just for bucks."
Or at least the claim has to be that people who are let in under race-
based affirmative action tend to do much more social good than people
who are excluded under it.

    Such claims -- and any possible reverse claims based on the
Chavis-is-bad story -- strike me as entirely unsound, no matter how
many people make them.  The claim that's being made, as I read it,
isn't just that (in Jack's words) "evidence of one example of a
sequence leads us to believe that it is an example of a larger pattern
of related sequences of events."  Even if the Chavis/Bakke comparison
shows us that there are several Chavis-like-people and several Bakke-
like-people (which is of course quite true, since there are several
people that fit any of these broad molds), that's useless for
reasoned debate about affirmative action.  What we want to know is
*how* many there are of each.  The example, if it persuades, must
persuade because it suggests that there are more good Chavises than
good Bakkes, or more bad Bakkes than bad Chavises.  And the example
is simply not logical support for such an assertion.

---------------------------------------------------------------------
"irregardless of the type of insurance coverage,    Eugene Volokh
 the limits of liability . . . shall be governed    UCLA Law School
 by the amounts specified in subsection A . . ."    405 Hilgard Ave.
 36 Okla. St. Ann. 6414 (enacted 1986).             L.A., CA 90095