Blawgletter admires the persuasive force of WSJ editorials. Just today, the Journal printed hard-hitting lamentations on private enforcement of federal securities and patent laws. The basic problem, as the editors portray it? That enforcement hurts the people it aims to protect.
If true, the point would indeed justify reform. But the editorials don’t use facts to prove the argument, don’t even try to. They instead use a potent rhetorical device — what Jay Heinrichs, in his excellent Thank You for Arguing, calls "tribal talk", whose power plays on the audience’s "us versus them" world view.
Take the WSJ item on securities law enforcement. It derides the Securities and Exchange Commission for supporting the investors’ position in a case before the U.S. Supreme Court. Factual support for the idea that increasing the investors’ recovery will injure them never appears in the editorial. But lots of tribal talk does.
"The trial bar" (interchangeable with "tort lawyers") represents the villain. It "never sleeps", pursues "antibusiness litigation" and "frivolous securities lawsuits", uses "intimidation", and wants "to establish a breathtaking new legal standard" for "soaking investors by expanding the field of rich targets" to sue.
The second editorial does much the same. Its main point concerns the wisdom of banning imports of microchips that infringe U.S. patents. The International Trade Commission, by a 4-2 vote, ordered Qualcomm to stop importing microchips that the ITC determined infringed patents belonging to Broadcom. The WSJ calls the decision "one of the dumber rulings ever" by the ITC. But the editors never show — or try to show — that Qualcomm’s microchips don’t, er, infringe the Broadcom patents.
The main bad guy here comes in the guise of the ITC itself, which the editorial tars for "muscl[ing] in" so it can "expand its own bureaucratic turf in the patent field." But it goes on to slap "the boys on Capitol Hill" and "lawyers, who no doubt assume that any big reform will require years of litigation and millions of billable hours before anyone is sure what in the name of invention it really means."
Blawgletter doesn’t mean to suggest that the editors have no point. They do — however much we may (and often do) disagree with them. No, we wish only to highlight the WSJ’s use of tribal talk to rouse emotional reactions in its readers. That, we believe, helps explain why so many come away from reading the WSJ editorial page feeling passionately about the simple "truth" it reveals.
Emotional truth — yes. Factual truth — we doubt it.
Barry Barnett
