FactCheck on Bush Mind-Reading Obama

I have been browsing the various ‘factcheck’ sites that analyze what politicians say.  The two largest seem to be  Politifact.com, which is a project of the Tampa Bay Times, and FactCheck.org,  which is a project of the Annenberg Public Policy Center.

FactCheck took an interesting approach with a comment made by Jeb Bush, who stated that President Obama “believes that America’s leadership and presence in the world is not a force for good.”  Googling the term reveals that this is a widely used Republican trope, as I found many Republican officials using the exact term ‘not a force for good’ and many embellishing upon it.

IMHO, this claim about Obama’s belief system is not so much a fact to be checked but a possibly fallacious argument to be evaluated. FactCheck treated it as a factual claim to be fact-checked.

I think there are two related types of fallacy at work here.  The first is ‘attacking the motive.’  Rather than focusing on the adversary’s arguments (or actions), the arguer attributes an improper motive to the adversary.  In order to attack the motive, one sometimes has to employ the  mind-reading fallacy, in which the basis for discerning the adversary’s motive was, apparently, mind-reading (see Brendhan Nyhan’s work for more on mind-reading as a rhetorical practice).

If you see the entire Bush campaign video (embedded in the article), Bush goes on to identify specific actions (i.e. protecting Christians in the Middle East and dissidents in Iran) that Obama did not take, impliedly because Obama does not believe that America is a force for good.

Similarly, when  Republican Wisconsin Senator Ron Johnson said that President Obama “doesn’t think America is a force for good in the world”   the Senator provided the basis for his opinion.  Obama shows ‘reluctance’ and revulsion’ to ‘utilizing America’s military strength.

By providing the basis for the speaker’s assertion,  the reader can evaluate the logic of the statement.  The Senator implies that if Obama showed ‘reluctance’ and ‘revulsion’ to use military force, then Obama doesn’t believe that America is a force for good in the world.  Of course the result of the ‘attacking the motive’ fallacy is to shift the discussion to a critique of Obama’s belief, away from an evaluation of how best to protect ‘Christians in the Middle East’ or ‘dissidents in Iran’ and the appropriate use of America’s military strength.

Rather than pursing this analyis, FactCheck instead critiques the statement of Obama’s mind-set as a ‘fact’ to be checked.  It identified nineteen times that Obama made public statements where he declares that America is ‘an indispensable force for good’ or ‘the greatest force for good in the world’ or the like.

FactCheck’s conclusion borders on the sarcastic:

Bush is free, of course, to make the case that Obama’s deeds have not matched his words. We don’t know what Obama “believes” (and neither does Bush), but we know what he says. And he has repeatedly said that America’s leadership and presence in the world is a “force for good.”





FactCheck: Clinton Referring to Average CEOs Rather than Top CEOs

FactCheck’s Headline is: Clinton Misuses Stat on CEO Pay.

Clinton made two statements: ““There’s something wrong when CEOs make 300 times more than the American worker”  and “The average CEO makes about 300 times what the average worker makes.”  The Washington Post, when critiquing the statement, noted that Clinton was speaking extemporaneously, but also referring to notes.

It appears that Secretary Clinton was referring to a study of the top 350 corporations by revenue, when it fact there are over 246,000 CEOs in America.

FactCheck notes that as there are 246,240 Chief Executives in America, the top 350 CEOs certainly can’t be characterized as ‘average CEOs.’  If wages of the 246k CEOs were compared to the average worker’s wage, the ration would be approximately 4 to 1 (however FactCheck acknowledged that as a CEO receives compensation apart from wages, that it is not an accurate comparison).  In any event, the ratio for the ‘average CEO’ to ‘average worker’ would be appear to be quite lower than ‘300 times.’

The post concludes that Clinton ‘could easily’ add ‘Top CEO’ as a qualifier, but she hasn’t. ‘ As an aside, when Fortune Magazine reported on the study, its headline was “Top CEOs make more than 300 times the average worker.”



Politifact: “Every signer of the Declaration of Independence had no elected office experience …”

From Politifact article on Ben Carson:

In response to the assertion that Carson has no political experience, he responded on Facebook:

‘”You are absolutely right — I have no political experience,” Carson wrote in the initial version of his post. “The current Members of Congress have a combined 8,700 years of political experience. Are we sure political experience is what we need. Every signer of the Declaration of Independence had no elected office experience. . . .’

This claim is literally false.  Many of the signers of the Declaration of Independence had been elected to their respective colonial legislatures.  And it seems that most if not all the members of the Continental Congress were elected.

Carson then amended that post to read: “every signer of the Declaration of Independence had no elected federal office experience”.

Politifact rates this claim as ‘illogical’ and ‘nonsensical’ as a federal government did not exist on the day the Declaration of Independence was signed.

One might characterize as true but misleading for that reason, given that the signers of the Declaration of Independence were in fact the most experienced elected leaders at the national level.




Prof McCarthy Thinks Not: Diverting All TM Appeals to the CAFC

J. Thomas McCarthy and Dina Roumiantseva, “Divert All Trademark Appeals to the Federal Circuit? We Think Not, 105 TMR 1276 (2015).

My favorite paragraphs:

“Has the Federal Circuit met the goal of speaking with a single voice on challenging and difficult issues of patent law? Critics argue that it has not, because disagreements among the court’s judges have replaced disagreement among the circuits on difficult issues.”

“We think the present system of Lanham Act appeals to regional circuits is preferable because it is a federal form of the proverbial ‘laboratory of the states’ metaphor envisioned by Justice Brandeis.”

“Our analysis shows that during the five-year period 2010-2015, the 9th Circuit led the nation, with 48 cases addressing Lanham Act issues, while the Fed. Cir. decided only 28 cases … [d]uring the same time frame ….the Second and Eleventh Circuits each decided 25 cases and the Sixth Circuit had 24 cases.”





TM and (c) Suit re Russian TV programming streamed in the US

Owner of trademark and copyrights in Russian TV programming sues NY-based streaming service, Actava TV, in the SDNY.



Amicus Brief re Whether 1st Amend. Protects Speaker from Rt of Pub Claim in Expressive Work (EA v Davis)

Amicus brief of 31 professors in support of Electronic Arts in EA v. Michael Davis, on petition for writ of cert:

Whether the First Amendment protects a speaker from a state-law right of publicity claim arising out of the realistic portrayal of a person in an expressive work.



CBC v Major League Baseball A.M., 505 F.3d 818 (8th Cir 2007) (Use of Names and Stats of Baseball Players)


2008 Law Review Article re Use of Names and Statistics of Professional Athletes


Washington’s Appellate Brief in the REDSKINS 4th Circuit Appeal


Text of NFL Right of Publicity Lawsuit, Garcon v. FanDuel



NFL player sues fantasy football provider FanDuel on Rights of Publicity, false association, unjust enrichment.  Competitor DraftKings, which is the target of a different type of class action along with FanDuel, has a deal with NFLPA.

FanDuel does have a deal with hometown team, the Ravens.   FanDuel has apparently previously had deals with individual players, including plaintiff, Pierre Garcon.

Text of complaint: Garcon-FanDuel-lawsuit-1