The Rite of Rhetoric: Cognitive Framing in Technology Law

Abstract

This article examines the use of cognitive framing techniques in litigation in technology law. I offer a model to understand and evaluate the strength of a “framing argument” – consisting of a legal argument, a frame, and a connection between the two – and I identify and analyze framing arguments in four recent technology law cases. I contend that framing arguments play a major role in these cases because technology law is particularly susceptible to them. Ambiguities in the statutes and precedents and ambiguities in the technologies create room for judgments of equity to shape the law. Furthermore, genuine doubt concerning the correct social policies creates room for framing arguments to influence judgments of equity – and, thus, to influence the development of new law. By demonstrating the nature and significance of framing arguments, I hope to help increase judges’ awareness of them, to allow judges to gauge equities more objectively, and to help attorneys be more effective in their framing arguments to produce a greater balance in attorney skill.

Keywords: cognitive framing, blizzard, BNETD, statutory interpretation, technology law, copyright, piracy