Fight the hypo: fake arguments, trolleyology, and the limits of hypotheticals

The hypothetical is the staple of the law school classroom and useful in most intellectual endeavors. But, this inaugural lecture argues, interlocutors frequently misuse and misinterpret responses to hypotheticals because they demand that their respondents accept the “facts” embedded within. This form of argument, dubbed “FAKE” (for “Facts Are Known Exactly”), poses “facts” that are either impossible to accept or highly improbable and that would provoke counterarguments but for the command to accept the facts as hypothesized. The author presents his thesis in part through the lens of recent literature on the ethics of runaway trolley cars (these cases constitute a field of study known as “trolleyology”) and questions whether the answers we give and the preconceptions we seem to have about the morality of saving many at the expense of one can be explained by examining responses to the hypotheticals provided. The paper also examines the FAKE argument as used to justify assisted suicide, the right to harshly cross-examine the truth-telling but infirm witness, and upholding the law by violating it.