As discussed, in honour of Ms.Conway's contribution to the advancement of epistemology in all fields of the humanities but particularly law and philosophy, and given that she is American, I suggest that you, and
the other Restatement reporters responsible for reporting on developments in factual causation consider proposing that, in the United States, the traditional version of the but-for test be renamed the "Kellyanne Conway Fantastic Causation But-For Test". For
convenience, that mouthful of a name and acronym (KCFCBFT) could be shortened to the KFC or CFC test. Given the other meanings of CFC and KFC, I suggest KFC is be the better choice, subject of course to obtaining the consent of the appropriate people and responding
to accusations of chickening out. You could, of course, point out that the "C" in the acronym doesn't stand for any form of remote ancestor of a dinosaur, except metaphorically and seemingly ethically.
As you know, Ms. Conway recently suggested that the world in which she and Donald Trump live - indeed, reality as he, she, and Mr. Trump's supporters see it - includes not only the reality that you and I, and most
ODG readers know (I make what I believe to be an assumption that is true to at least an Ivory Snow level of accuracy, perhaps even as close to 1 as an early Pentium chip was sometimes able to get to 2 when asked to add 1 plus 1) but an alternate reality which
is inconsistent with, even contrary to, the real world because events that occur in this alternative reality are or are based on one or more false alternative facts.
I believe you will agree with me that this description of an alternative reality essentially summarizes the core of the traditional, and recent more refined, but-for analyses: the assumption of a a false counterfactual
world that is contrary to the actual world that exists.
Another aspect of this false counterfactual is the concept of "Truthiness", a term coined and explained a few years ago by the great American satirist Stephen Colbert. 'Truthiness is a quality characterizing a "truth"
that a person making an argument or assertion claims to know intuitively "from the gut" or because it "feels right" without regard to evidence, logic, intellectual examination, or facts.' See https://en.wikipedia.org/wiki/Truthiness https://en.wikipedia.org/wiki/Truthiness.
This is a perfect definition for the value of truth in Conway's Alternative Facts universe.
Also, our good friend Russ Brown (now Mr. Justice Russell S. Brown of the Supreme Court of Canada) referred to "truthiness" in his required reading (especially for Canadian
judges, too - well, it should be, and I'm fairly sure some did, recently, even if they didn't admit it) "Inference Causation" so there is, now, the needed gravitas
to justify the proposal I've made in the first paragraph of this letter.
As this is an open letter, and for the assistance of those readers who might be unfamiliar with the article, or who have forgotten in the passage of time - in set out below relevant, explanatory passages from "Inference
Causation." I apologize for this making the letter longer than it otherwise would be. I of course would have made it shorter if I had more time.
Russell Brown, ‘The Possibility Of “Inference Causation”: Inferring Cause-In-fact
And The Nature Of Legal Fact-Finding (2010) 55 McGill L.J. 1
"(n 41 at p. 10) Veritism is the law’s concern for evaluating a factual proposition by reference to its conformance to absolute truth. This term is devised from the work of Alvin Goldman, who specified that our drive to know presupposes
a desire for truth (or at least for the closest approximation of truth)—a desire he labelled “veritistic”. “Veritistic epistemology is such a special field, where the selected good is knowledge and the selected bad are error and ignorance”: Alvin I. Goldman, Knowledge
in a Social World (New York: Oxford University Press, 1999) at 6."
"(pp 14-15) Such minimization of veritism is troubling, as truth-seeking is an elemental aspiration of our legal order. Accurate fact-finding is essential, particularly if we understand the rule of law as a substantive limitation
on the state’s ability to manipulate facts to its own ends, even where that manipulation is for the ostensibly benevolent purpose of compensating injured plaintiffs. n56 Within the framework of a tort action, then, the law insists on linking a finding of actual
wrongdoing by the defendant to the plaintiff’s suffering. This linkage “supplies the particular feature about the defendant that singles him out from the generality of those available for the shifting of the plaintiff’s loss.”n57 A serious account of inference
causation must therefore distinguish its underlying epistemic processes from emotivism or any similarly non-cognitive, meta-ethical point of view such as the popular concept of “truthiness”, n58 or the “benevolent principle” that Lord Nourse discerned in
Fitzgerald v. Lane—a concept that “smiles on ... factual uncertainties and melts them all away.”n59 In such a mindset, where “all evaluative judgments ... are
nothing but expressions of prefer- ence, expressions of attitude or feeling,”n60 there is no difference between stating that the defendant acted wrongly by causing the plaintiff’s
injury and claiming that I like the plaintiff more than I like the defendant."
(n 58 at p. 14)“Truthiness” is a term coined in 2005 by political satirist Stephen Colbert that refers to “the quality of stating concepts or facts one wishes or believes to be true, rather than concepts or facts known to be
true”: Stephen Colbert, “The Word-Truthiness”, The Colbert Report
(17 October 2005), online: Colbert Nation <http://colbertnation.com/thecolbert- report-videos>. See also Stephen Colbert, “Colbert Roasts Bush” (Talk presented at the White House Correspondents’ Dinner, Washington, D.C.,
29 April 2006), online: YouTube <http://www.youtube.com>. As Colbert put it: We’re not some brainiacs on the nerd patrol. We’re not members of the factinista. We go straight from the gut. ... That’s where the truth lies, right down here in the gut. Do you
know you have more nerve endings in your gut than you have in your head? You can look it up. Now I know some of you are going to say, “I did look it up, and that’s not true.” That’s because you looked it up in a book. Next time look it up in your gut. ...
I call it the “no-fact-zone” [transcribed by author (Brown0].
I have added the bold emphasis. I omitted the text of the notes other than n58.
I suppose that I need to add, for Ms. Conway's case and seemingly for President Trump's, that it is sometimes not clear
whether they either know or care about the truth of the concepts or facts in issue.
Apart from this, "KellyAnne Conway Causation" - I've capitalised the "A" intentionally - is alliterative and much more euphonic that but-for
causation. I appreciate there might be some issues to chew on relating to the use of the KFC acronym and KACC invites the addition of an "A" to become KACCA. (Use the "K" pronunciation for "c".) The neologism adjectival
version of "KellyAnneConway" would become a verb. It would mean some event occurred that was a part of a cause of a subsequent event. In pedestrian-vehicle accident: the pedestrian was carefully, legally, properly, etc. crossing the street when suddenly he
or she was kellyanneconwayed by a vehicle that ...
There's probably more but my inclination is to save some of this for my ODG talk on 21 Feb where my handout will have a subtitle that uses something of what we discussed but not the deconstruction line. It will probably be something like
"Black Swan Causation and the Ineffable Truthiness of KellyAnneConway" or "Black Swans, White Swans, and the Ineffable Blondeness of Kellyanne Conway". Or "Unbearable Brightness of ... " not only because of the irony and alliteration and the pun in "Brightness".
Sorry about that. Your turn to make one on my surname. I'll allow violin references.
I was looking for a title Pierre Schlag would be happy to use, not merely be content with. I think I've strayed into his territory.
I should add a bit more. As I see it, Ms Conway has finally given us proper labels for the different nature of the facts in the real world and the counterfactual world.
As I've mentioned to you, before, one of my not-entirely-a-joke working titles for my various causation papers - remarkably, my editor continuously displayed the good sense to never let me use any version - has always been "the search for
the 'f' in actual cause", punning on the use of actual and factual as synonyms. Thanks to Ms Conway we now have:
Instantiated (real) world: Actual (or factual) facts meaning true facts.
Counterfactual world: Alternative facts meaning false facts.
Hence (using the transitive property):
A factual fact is an actual fact is something that happened. Something true.
An alternative fact is something that did not happen. Something false.
So, my search for the "f" in actual cause has been about the search for the factual facts. The truth. The actual facts of what happened.
The but-for test's counterfactual is an alternative fact construction containing at least one fact we know is false. (We have always known that.) As I mentioned to you before, what could be any more metaphysical than basing
an analysis and conclusion on assumptions about what might happen in a world that does not exist, did not exist, will never exist, and we were never part of?
I could then, argue that we have to reject the but-for test for the same reason we reject the alternative fact theories but I'll be told (by some) that that is a red herring. And a non sequitur. (We agree it's not.) But then who'd notice
that argument except for us academic types, philosophers or otherwise?
You are, no doubt, wondering about the genesis of this proposal. I had time on my hands Friday night while I attending and listening to a beautiful concert (in the auditorium of the wonderful Jacqueline du Pres Building,
St. Hilda's College, Oxford) of Shakespearean music with a countertenor whose falsetto-equivalent - I understand that his range is not properly called falsetto - tonal purity and octave range is is something that Frank Valli would have given at least his left
nut, and probably both, to have. While listening I though of things I might say on Tuesday that might make the talk interesting.
The unfortunately no-so-silly silliness is endless. Still, I get titles for my next causation pieces. And the non-blonde/blond world gets to make snide blonde
references" The Ineffable Blondeness of Being ... " etc. All of this without taking up the deconstruction setup.
One more alliterative "joke", if I might, but this one is in the ear not the eye unless I change the first letter of the last two words in the phrase "Kellyanne Conway Causation". I've put quotation marks" around
joke because this one is certainly on the mean side. The aural alliteration become worse if you stick my surname in front of the phrase, given how I pronounce the "Ch": Cheifetz's K ... C ... C ... theory.
Looking forward to Vancouver.
Best wishes,
David
----------
David Cheifetz
MSt Candidate
University of Oxford, Faculty of Law
(neither of whom is in any way responsible for anything I've written beyond the obvious but-for observation that I'd not be here, exactly as I aim, to write this if both hadn't agreed to allow me to enroll so, Q.E.D., they
are responsible - depending on what one means by "responsible", of course - so does that make them: conditions? conditions with some type and level of causal involvement? entities wishing they had plausible deniability?)
Oxford, England
david.cheifetz@law.ox.ac.uk