Burden of Rebuttal: Get Ready to Rumble

Once one arguer satisfies the burden of proof, the other party is obliged to respond. This is known as the burden of rebuttal (sometimes referred to as the burden of clash or burden of rejoinder). Suppose a high school principal summons Jeter, a freshman, to her office. The principal declares “Drugs were found in your backpack. What have you got to say for yourself?” As you might imagine, the manner of rebuttal can take many forms. Jeter might say “That isn’t my backpack,” “Someone else planted the drugs there,” or “Those medications are prescribed by my doctor.” If Jeter could supply proof for any of these defenses, the burden of proof would revert back to the principal, then to Jeter, and so on.

In this way, an argument is like a tennis match, but with less grunting. One side serves the argumentative ball by meeting his or her burden of proof. The other side returns serve by rebutting the argument in play. The server is then obligated to clash with the rebuttal or lose the argumentative volley. As in tennis, arguers sometimes “whiff’ the argumentative ball by completely missing the other side’s argument.

Arguing about Arguing

A final point regarding argumentative burdens is worth noting. Arguing is an activity in which the rules themselves are subject to dispute, including who has the burden of proof and who has presumption. In an argument over the topic of abortion, for example, one party may claim presumption that human life begins at the moment of conception and a fetus is therefore a person. According to this view, the burden of proof would fall on a pro-choice advocate who favored “killing” an unborn “child.” The other party, however, might claim that presumption favors a woman’s reproductive freedom and that a fetus is not a person until it is viable, e.g., capable of surviving outside the womb. According to this view, the burden of proof would rest with the pro-life proponent who sought to deny a woman her reproductive rights. In Box 12.2, who do you think should be assigned the burden of proof in each controversy?

Box 12.2 In Each Scenario Below, Which Party Should Shoulder the Burden of Proof?

• • A theist claims that God exists, while an atheist says there is no God. Who should have the burden of proof? What if one is an agnostic?
• • As Trudy is about to leave a party, Mona warns her “You shouldn’t be driving. You’ve had a lot to drink.” Trudy says, “I’m fine.” Does Mona have to prove Trudy is drunk, or does Trudy have to prove she is sober?
• • A traveler has just returned from a country experiencing a disease outbreak. The traveler is asymptomatic, but government officials want to quarantine him or her out of “an abundance of caution.” Does the government have to prove there is a risk of infection, or does the traveler have to prove she or he poses no risk?

A female employee complains to the human resources director that a male colleague is constantly ogling her, leering at her, and mentally undressing her with his eyes. When asked about this, the male employee says that he never looks at her in a sexualized way and that simply looking at someone doesn’t constitute sexual harassment. Which employee should have the burden of proof?

Case Building: On Solid Ground

Once argumentative burdens have been established, it’s time to make your case. But how do you know which arguments to make? Building and advancing a cogent well-reasoned case requires that you discover the best arguments and evidence available and that you match them to the type of claim, a topic we turn to next.

Invention: Discovering the Issues

The process of discovering arguments, known as invention, requires investigating a topic thoroughly. The term invention, however, is somewhat misleading. Ethical advocates don’t “invent” their arguments out of thin air. Instead, invention refers to the careful systematic discovery of key issues, arguments, and evidence surrounding a controversy. In other words, invention requires more than simply using Google or Wikipedia. Discovering what arguments and evidence to present requires research using scholarly, scientific, or professional publications that are dependable, timely, and reliable. Invention also involves identifying credible sources with expertise on the subject. What’s more, key arguments are always specific to a topic or issue and must take the audience into account. Arguments for or against a moratorium on capital punishment, for example, would probably resonate differently with members of Amnesty International than with supporters of Justice For All.

The key arguments that help build a case are always specific to a particular topic or issue. For example, the central issues involved in a debate over whether capital punishment should be abolished (e.g., deterrent effect, racial bias, cruel and unusual punishment) are not the same as the issues in deciding which car to buy (e.g., safety, reliability, mileage). The concerns surrounding a decision to send an aging parent to an assisted living facility are not the same as the concerns surrounding a new phone plan.

Stock Issues: Touching All the Bases

Considering that there are more controversial topics than pages in this book, we obviously cannot tell you all the relevant arguments on every controversial topic or issue. We can, however, suggest some common templates or stock issues that you can use for building a case. These stock issues are recurring and are based on the type of claim being made. In other words, they are featured explicitly or implicitly any time a claim of that type is advanced. In Chapter 5, we identified four types of claims: fact, value/judgment, policy, and definition. How you build your case depends on which type of claim you are making. With that in mind, let’s examine each of these claims and their accompanying stock issues.

Policy Claims: Should I or Shouldn’t I?

Policy disputes center on what course of action should be taken to solve a problem. Such disputes focus on three key stock issues known as significance, or the significance of a harm, inherency, or the underlying cause of a problem, and solvency, or the solution to the problem and any accompanying advantages. These three stock issues are sometimes referred to as ill, blame, and cure.

Significance: What’s the Harm?

The stock issue of significance, or harm as it is sometimes called, focuses on negative consequences or an “ill” that needs to be cured. The emphasis is on who or what is being harmed by an existing policy or the status quo. To establish significance, a person advocating a change must prove that a problem is serious or pervasive. This could be done by demonstrating the quantity or severity of the harm. For example, an estimated 400,000 Americans die per year from preventable hospital errors (James, 2013). That is a staggering figure. As another example, the International Labor Organization (2012) estimates that “there are 20.9 million victims of human trafficking globally (para. 1).” Sheer numbers aren’t all that matters, however. If only one person were being denied his or her constitutional rights or human rights that would be significant as well. The Supreme Court often upholds or overturns laws based on a single plaintiffs rights. What’s more, the harm need not entail a human toll. Economic costs, environmental harms, and animal welfare are ills as well.

Inherency: What’s the Cause or Who Is to Blame?

The stock issue of inherency focuses on the cause(s) of a problem or the barrier(s) to its solution. Because there are various kinds of obstacles to change, there are also different ways to demonstrate the inherent nature of a problem. Let’s examine a few of these.

First, as its name implies, structural inherency refers to structural barriers that are “on the books.” Examples include collective bargaining agreements, contracts, corporate policies, legal precedents, prenuptial agreements, religious doctrines, and other codified rules. By way of illustration, multiple states have legalized recreational marijuana use. However, inmates already serving prison time for nonviolent marijuana offenses under the old laws remain incarcerated. Why? The inherent barrier to releasing them is mandatory minimum sentences. Under the old laws, judges had no discretion when sentencing a person for selling pot. Some prisoners serving time for marijuana offenses received stiffer sentences than airplane hijackers and child pornographers (Mak, 2015). A number of states have begun reforming mandatory minimum sentencing laws so they are less draconian.

Second, attitudinal inherency focuses on attitudes or mindsets that pose barriers to change. Indeed, some attitudes are more entrenched than laws. For example, women are decidedly underrepresented in senior management positions in the corporate world, an obstacle known as the “glass ceiling.” In 2018, only 24 women were CEOs of Fortune 500 companies. Laws don’t necessarily prohibit females from ascending the corporate ladder, but pernicious stereotypes do. In fact, Joan Williams and Rachel Dempsey (2014) argue that negative stereotypes about women in management positions are so ingrained that they prevent women from upward mobility in the business world.

A third means of demonstrating the source of harm is existential in nature. Specifically, existential inherency posits that the existence and persistence of a harm speaks to its inherent nature. That is, if there is a problem and it doesn’t go away, there must be a reason why. For instance, one might argue that the ongoing rash of African-American shootings by police officers demonstrates that something is wrong with police departments across the country. In Ferguson, Missouri, for example, violent protests took place after a white officer shot an unarmed black man. A Department ofjustice report (2015) found that in Ferguson, “Nearly 90% of documented force used by FPD officers was used against African Americans. In every canine bite incident for which racial information is available, the person bitten was African American” (p. 5).

Solvency: The Best Laid Plans

A final stock issue for policy propositions is solvency, which focuses on whether there is a workable solution to the problem. To illustrate, imagine that sewage has been leaking into your city’s drinking water supply for months. When you shower, wash dishes, or brush your teeth, the smell is repulsive. “Not to worry,” your mayor declares, “free cans of air freshener will be distributed to every household.” Problem solved? Of course not! The mayor’s solution treats the symptom, e.g., the smell, not the problem, which is the seepage.

As this example illustrates, an advocate for a policy change—in this case, the mayor—must propose an efficacious plan of action. You, on the other hand, could show that the plan is not workable or effective in solving the problem. Not only that, you could argue that the plan might be circumvented or thwarted by those who oppose the policy change.

COMPARATIVE ADVANTAGE: MORE PROS THAN CONS

Related to the stock issue of solvency is the concept of comparative advantages. A plan of action needn’t be perfect. It may have some flaws or drawbacks. Overall, though, the advantages of enacting the policy change must outweigh the disadvantages. A balancing test may be used to weigh the pros and cons of a proposed policy change. An opponent of change would, of course, argue that the negative effects of the plan would outweigh any good it might achieve. Using an illness metaphor, for example, an opponent might argue that the cure was worse than the disease.