������Ƶ

As young students, we are taught about simile, metaphor and analogy. This is an important part of schooling, but the only folks who go on to study analogies in earnest are lawyers.

Why is this so? Because a big part of presenting a case to a court involves comparing it to prior cases with similar facts. This matters because of the doctrine of stare decisis under which court precedent can impact current judicial decisions. Most people aren’t specifically trained in using analogies and this has had adverse consequences for our public discourse. Let’s try some examples.

Some tell us that the rail project is like H-3. No, it isn’t.

H-3 was a highway/freeway, which is the kind of standard infrastructure that existing government agencies build.

Hawaii has never done a big rail project and created a new entity to run things, which in itself was part of the problem. Weak analogy.

Some tell us that the part of the marvel of the Hawaiian culture was that it did not have private property rights for individuals, which is what destroys the environment because of the profit motive. We are told that real estate development is just like when a big, stinky oil company comes to town and dumps toxic effluent into a river. No, it isn’t.

The problem with the river is that water gets carried downstream to others and the problems associated with the toxic effluent are exported to third parties (an externality, an economist would say). Common ownership without a strong sense of kuleana or noblesse oblige can be disastrous.

Consider the decimation of fishes in waters around our islands. Those waters are jointly “owned” by all of us. This is an example of the tragedy of the commons, not of the evils of private property. The trick is to get folks to take care of the land, and while Hawaiian culture had a social structure and culture that did that, private property rights can also.

Example: One of the modern solutions to the loss of endangered species is to make a business out of selling the right to hunt them in a controlled way. The owner conserves because it is profitable to do so.

Some tell us that we must cut business regulations across the board for the economy to flourish. But cutting regulations on an oil company is not the same thing as cutting regulations on a company that makes cherry pies in terms of the risk to the environment.

We might want heavy regulations on a bank, given its importance to the economy and the fact that it plays with other people’s money and uses fractional reserve lending, even if we don’t want heavy regulations on the mom and pop florist on the street corner. Not everything is the same thing.

Some tell us that tax cuts will pay for themselves because of the Laffer Curve. Well, that depends where on the curve you are.

Watergate Is Not Russia-gate

If you are in a world just prior to the JFK tax cuts, where some had a tax rate of 90%, it is not surprising that a reduction in the tax rate stimulates the economy enough to produce extra tax revenues that pay for the tax cut. But if you have already been through tax cuts from JFK to Ronald Reagan, to Bush 43 to Barack Obama to President Donald Trump, and you are still calling for tax cuts that will pay for themselves, you’re missing something. Like maybe giant public deficits and debt. Weak analogy.

Some like to compare President Trump to former President Richard Nixon. Weak analogy. The Watergate burglary happened during Nixon’s re-election campaign, while he was a sitting President; the alleged Russia collusion events happened prior to President Trump taking the oath of office.

Richard Nixon came from a small town in California and his parents were part of the lower middle class. He went to Duke Law School on full scholarship and graduated third in his class, then later served as a naval officer during World War II.

“The world is complex and dynamic. Look to the specific facts of the situation and work out from there.”

Nixon was a foreign policy expert who began our relationship with China, despite being a staunch anti-communist, and presided over such frighteningly conservative events as the enactment of the EPA, OSHA and the Clean Air Act and the Water Pollution Control Act.

Analogies are tricky because the closer you look, the more the analogy tends to fall apart. They are useful as rhetoric, but risky as an analytical tool. They tend to be attractive to people with lazy minds. Lawyers must use analogies in their profession, but non-lawyers should be mindful of the perils.

The world is complex and dynamic. Look to the specific facts of the situation and work out from there.

Or maybe a simple illustration will be more effective. Have you ever gone on a date and said to the person across the table: “You remind me of such and such actress (or actor)?”

Did it go over big? Or was that pretty much the end of the evening?

Not everything is the same thing. Can we stipulate to that, please?