prior probability

Mind blown! I just saw this real-life example of the Condorcet paradox on “Around the Horn” (ATH), namely the episode that aired on 26 September 2023:

To the point (pun intended), this year’s WNBA MVP award went to Breanna Stewart (who plays for the New York Liberty), even though Alyssa Thomas (Connecticut Sun) had obtained the most first-place votes and A’ja Wilson (Las Vegas Aces) had garnered the most second-place votes!

More broadly speaking, this voting paradox emerges when there is no clear, universally agreed-upon winner with three or more alternatives. By way of illustration, imagine a referendum to decide the best flavor of ice cream. For simplicity, there are only three voters (A, B, and C), and their individual preference rankings are as follows:

Person A prefers Chocolate > Vanilla > Strawberry

Person B prefers Strawberry > Chocolate > Vanilla

Person C prefers Vanilla > Strawberry > Chocolate

This set of preferences produces a Condorcet cycle because none of the options can consistently beat the other two choices in pairwise comparisons. In my simple ice cream referendum, each flavor can win against one flavor but loses to another. One way to solve this impasse is to assign weights to each rank, e.g. 10 points for first place, seven points for second place, and five points for third place (like in the WNBA vote pictured above), but in my ice cream example each flavor would end up with 22 points apiece, hence the paradox!

PS: I identified another real-life example of the Condorcet Paradox here.

Here it is. Alas, this new syllabus by Harvard law professor Stephen E. Sachs has come under fire from some academic quarters for excluding the work of feminist, queer, and minority scholars (see here, for example). Contrary to my colleague and friend Brian Leiter (here), I think the criticism is a fair one, but that said I find the omission of Lon Fuller to be the most unforgivable one!

I featured my first ChatGPT-inspired “micro essay” in a previous post. Below is a screenshot of the new “micro essay” for my module on the common law:

FYI: I will further discuss the motivation for this assignment in a future post (after my students have submitted their responses); in the meantime, I cut-and-pasted ChatGPT’s original response to my prompt below the fold:

Overall, according to this 2023 report by Al Jazeera, of the 486 attempted or successful military coups around the world since 1950, almost half of this total or 214 have occurred in our “Mother Continent”, and of those 214 African coup attempts, 106 have been successful. The map below, by contrast, shows the sundry coup d’etats that have taken place in Africa since the outbreak of the Wuhan pandemic in 2020.

My previous post mentioned that I would be speaking on the Pepsi Points case on the afternoon of 22 September. (Thanks to Professor Dan O’Gorman and 3L Joshua J. Floth for the invite.) Among other things, my presentation (see also my slide deck below) highlighted three procedural aspects of the case:

1. To begin with, the court found itself in a procedural paradox or choice-of-law Catch-22: “The choice of law question [i.e. whether to apply New York state law or Washington state law] cannot … be resolved until after the Court determines whether the [Pepsi] commercial was an offer or not.” See Leonard v. Pepsico, 88 F.Supp.2d 116 (S.D.N.Y. 1999), at p. 122. But to determine whether the Pepsi ad is a legally-enforceable reward offer or just mere puffing, don’t we need to know which State’s law to apply? (P.S.: Remember Erie v. Tompkins R.R.? There is supposed to be no federal common law! See slide #2 below.)
2. It took the court over three years to figure out that the Pepsi ad was just a bad joke: “The present motion thus follows three years of jurisdictional and procedural wrangling.” See 88 F.Supp.2d, at p. 121. (For my part, I have proposed a simplified Turing-like legal procedure to speed up civil litigation. See F. E. Guerra-Pujol, The Turing Test and the Legal Process, Information & Communications Technology Law, Vol. 21, No. 2 (2012), pp. 113-126, available here. See slide #3 below.)
3. But by far the worst aspect of the Pepsi Points case is that the court cavalierly invaded the province of the jury: “A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact, see, e.g., Hubbard v. General Motors Corp. … (advertisement describing automobile as ‘Like a Rock,’ was mere puffery, not a warranty of quality).” See 88 F.Supp.2d, at p. 128. Alas, putting aside the fact that the case cited by the court (Hubbard v. General Motors) is totally irrelevant to the Pepsi case (in Hubbard the dispute was over product quality), the bottom line is that a jury should have decided what a “reasonable viewer” would have thought because “reasonableness” presents a question of fact for the trier of fact (i.e. the jury) to weigh the evidence and judge the credibility of the witnesses. (See slide #4 below.)

I then concluded my talk with three additional observations:

1. It’s perfectly legal to buy and sell military jets. (See this FAA circular from 1996, for example, as well as slide #5 below.)
2. When this case was decided in August of 1996, Pepsico’s market capitalization was over $21 Billion (see here); a Harrier jet, by comparison, cost a mere $23 Million, or 0.00106% of Pepsi’s market cap. (See slides #6 & #7 below.)
3. Lastly, shouldn’t food and beverage companies owe a fiduciary duty to their consumers and to the public, especially when their ad campaigns are directed to young people? (There is no slide to illustrate this last point because this fiduciary-duty idea popped into my head just a few minutes before the panel was set to begin.)

Have you seen the four-part Netflix documentary Pepsi, Where’s My Jet? If you love this modern-day David versus Goliath story as much as I do and are in the Orlando area this weekend, I will be speaking on the Pepsi Points case at the Dwayne O. Andreas Law School on Friday afternoon. Details below:

Today is 21 September! More details here, via NPR (Morning Edition).