Defending the Indefensible

Introduction
Advocacy and science
The adversary system and so-called “think tanks”
Conclusion: the rise of ideology

Introduction

There are reasons why I retired from teaching law “early,” at 66. Some were personal. I had health issues that modern medicine subsequently managed to fix. But there were professional reasons, too. I was beginning to see my chosen profession—the most recent of three—as part of our nation’s fundamental structural defects.

The foundation of Anglo-American law and our legal structure is the adversary system. The abstract idea is simple. Two zealous advocates make the best possible arguments for each of two sides. Then a smart, well-trained, impartial and independent judge evaluates their arguments and makes a decision.

The truth—or the closest approximation to it of which humans are capable—will emerge from the neutral judge’s observation of this verbal gladatorial combat. So the widely accepted notion goes.

From the moment a student enters law school until he or she graduates, praise for the adversary system resounds in his or her ears. There is virtually no critical analysis. There is no exploration of deficiencies or limits. In law school the adversary system is like God to believers. It’s much like the alleged self-curative powers of markets before Alan Greenspan’s public recantation.

The vast majority of our political leaders underwent just this sort of indoctrination. After all, they were trained as lawyers. Many of them entered public service through lawyering, often as prosecutors, public defenders, or private advocates. Even one of our key (but less celebrated) Founders was John Adams, a consummate advocate who cut his legal teeth defending the British soldiers accused in the Boston Massacre.

So bit by bit, willy nilly, the adversary system has crept out of the courtroom and permeated our entire culture. It has captured our politics, in which so-called “think tanks” don’t think at all. Instead, they zealously advocate for predetermined ideological positions. It has co-opted business, for which zealous advocates in “public relations” vie for favorable customer and public opinion, and zealous legislative and regulatory advocates vie for governmental favors in lobbying.

Finally—and most tellingly—our adversary system has subverted science. Today, advocates for this or that scientific “truth” vie for influence on legislative and regulatory bodies and public opinion. So the health effects of various artificial substances and environmental issues like global warming have become less subjects of observation and experiment and more matters of public advocacy. In practical effect, what scientists say, calculate and think doesn’t matter as much as what zealous advocates say, and in what forum.

The adversary system’s reductio ad absurdum is Citizens United. That supremely misguided decision has replaced our representative democracy with a bizarre form of adversary system. Rich people and their political minions commission propaganda from hired guns (the zealous advocates), who then present the propaganda to the people and their elected representatives for judgment, mostly on TV, but now also over the Internet. May the best propagandist win!

Don’t get me wrong. The adversary system is a powerful one within its proper realm. When two contrary subjective views of a specific point of evidence collide, it can help reveal which is more credible. When two witnesses offer contradictory testimony, cross-examination can help discern who is lying or mistaken. As a modern expert on legal evidence somewhat immodestly pontificated, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth[.]” (Emphasis added).

But do these uncritical paeans to the adversary system hold true outside the courtroom? What if the evidence is objective, as well as subjective? What if there are more than two sides to a story? What if both are wrong, or simply incomplete? What if the issue is not which witness is more truthful or credible, whether plaintiff or defendant should win, or whether a jury should convict a criminal defendant, but which of several paths a whole society should take to solve a very pressing practical problem? What if the issue is the direction of an entire society’s culture?

This essay attempts to answer these questions. It does so against the background of the adversary system’s worst recent abuses. It concludes, not surprisingly, that we Yanks have applied the adversary system so far beyond its proper competence that it has become a structural defect of our American culture and political life.

Advocacy and science

Perhaps the most egregious example of the adversary system’s expanding beyond its Peter Principle is its misapplication to science. That’s not surprising, for science proceeds from entirely different basic postulates than does law or any courtroom.

In a legal trial, there are two opposing parties and opposing witnesses. The job of the truth finder—jury or judge—is to determine which of them is more honest and whose perception is more reliable and, in criminal trials, whether the difference lies “beyond a reasonable doubt.”

It’s all relative. The parties and their opposing witnesses are the entire “universe” of truth. All the judge or jury has to do is decide which side is more credible. Then the job is done.

Science is entirely different. It’s wholly based on a fundamental assumption: that an external, objective reality exists, apart from any of us and our perceptions. That reality is distinct from Mind, consciousness, personality, society and culture. In fact, it subsumes all those things. It goes without saying that such an assumed reality is distinct from, and subsists beyond, any witness’ testimony, or indeed any one person’s views.

The assumption of such a reality has a corollary. We humans can approach knowing it through careful observation and experiment. But we can never get there. We can never know or understand external reality fully because our brains are too small. (Can a brain the size of a grapefruit comprehend the Universe, or even our own planet, which is inestimably bigger?)

Like the existence or nonexistence of God, this assumption of an external, objective reality, apart from Mind, must be taken on faith. No one can prove or disprove it. At least Kant couldn’t.

Although unproved, the assumption of an external reality has been very useful indeed. Since the time of Galileo, when we humans made it, we have become infinitely greater masters of our environment and our world, including ourselves. Now we can cure or prevent most diseases, fly though the air, go to the Moon, and communicate nearly instantaneously around the globe. We can even extinguish ourselves with nuclear fire, as we almost did in 1962. We could do none of these things in Galieo’s day, a mere four centuries ago.

This big assumption, and the science it spawned, has worked wonders in the meantime. It has made us, as a species, more powerful than we have ever been in all the hundreds of thousands of previous years of our biological evolution, and in all the 10,000 pervious years of our recorded history.

But today, in America, science has met its match and its Nemesis in the adversary system. It’s simply a matter of numbers.

In order to approach knowing an assumed external reality, you have to make observations and do experiments. Or you have to have read about and understood them. Doing either takes a lot of specialized education and training. In many cases, it takes a Ph.D.

And that’s not all. Science today is highly specialized. Generally speaking, someone with a Ph.D. in physics is no more an expert in endocrine physiology than is the average non-scientist. So the number of specialists able to speak authoritatively in any specialized field of science is minuscule compared to our species’ now seven billion population.

Even so-called “climate scientists,” in all their myriad actual scientific specialties, number no more than 5,000 worldwide. That’s 0.0000007% of our global population. Convince just 10,000 ordinary folk that the scientists are crazy, and you’ve got them on the run.

Unfortunately, that’s all too easy to do. Scientists sometimes tell us things we don’t want to hear. They tell people addicted to nicotine that smoking is bad not only for them, but for their loved ones, too. They tell us that the fossil fuels to which our entire energy infrastructure is addicted are irrevocably (and rapidly) changing our climate and also running out . They tell us that an ingredient used in food cans’ liners, called biphenyl A, is an endocrine disruptor that is changing and likely harming our children’s sexual development.

These are things ordinary people don’t want to hear. So it’s easy for people who profit and live off the status quo to turn ordinary people against scientists.

Machiavelli wouldn’t even work up a sweat. With modern propagandists (ad-making and PR folk) shilling for him, he wouldn’t have to do much himself, just direct and supervise the propaganda.

I don’t mean to make light of the problem. There is a serious, intrinsic conflict between democracy and science. In science, not everyone gets to vote. You have to know something.

Most scientists don’t mind this because they recognize others’ good work. They also can see and admit when other people are smarter than they are or know more than they do. Very few, if any, lawyers or pols do that. I guess you might say that, as a professional class, scientists share Pope Francis’ humility.

In the best of all possible worlds, only the scientists who actually made—or tried to duplicate or refute—the relevant experiments or observations, or who developed useful and relevant predictive theories, would get to vote. In a democracy, everyone gets a vote, no matter how uneducated or ignorant. No specialized training or acquaintance with that assumed external reality is required. Hence widespread denial of global warming.

I’ve been writing a book on this key difference between science and democracy for nine years. So far, I’ve found no general solution, only a few practical ways to make democracies work better with science.

But one thing is clear: the adversary system is no way to resolve issues of scientific fact. Only the scientific community itself can do that. And if observation, experiment or useful theory is absent or inadequate, you just have to be patient and let them grow. If you make a decision based on incomplete knowledge and evidence, as both civil and criminal trials often do, you will just be rolling the dice.

In addressing scientific issues, the adversary system has two fundamental and fatal deficiencies. First, it often assumes a controversy where none exists. More than any other human institution, science works by consensus. It achieves that consensus rapidly, especially as compared to law or politics. Where consensus is absent, there is usually no controversy, but rather a low-key understanding that “we just don’t know yet.”

For example, there is no controversy within the scientific community about global warming or its anthropogenic origin. In the United States, there hasn’t been since 2007, when our National Academies (plural) of Science issued a joint statement on the subject . Subsequent promulgations of various Intergovernmental Panels on Climate Change have made clear that the consensus is global and has been for years.

The second flaw of the adversary system is largely the fault of our media. They look for controversy to sell “news.” In looking for controversy where none exists, at least within science, they aggrandize the value of non-scientific opinions and devalue the hard work and lengthy training of scientists. When a news organization sits a corporate shill (usually a lawyer) or untutored ideologue next to a Nobel Prize winner in the relevant scientific specialty and has a “discussion,” it’s not just promoting the adversary system far beyond its Peter Principle. It’s also promoting caprice and irrationality in public policy.

This is a common practice, especially on TV. Far from “objectivity” in journalism, it’s an assault on reason. Some “controversies” don’t really have two sides: there are right and wrong answers. Two plus two really does equal four. And the Earth really does orbit the Sun, despite persistent surveys suggesting that significant fractions of Americans don’t know or understand that basic fact of astronomy.

You wouldn’t have someone without medical or surgical training take out your inflamed appendix, would you? Nor would you have someone with no flight training pilot the Dreamliner you fly in. So why credit someone with no scientific training or relevant expertise on matters of science?

Yet that’s what many pols and our media try to get us to do every day, in service of a gross misapplication of adversarial principles and reason. That’s why, for just one example, Senator Inhofe (R., OK), whose highest academic attainment was a 1944 undergraduate degree in economics from the University of Tulsa, should keep his mouth shut on matters of global warming, and snowballs on the playground where apparently he belongs.

The adversary system and so-called “think tanks”

The adversary system has perhaps its most pernicious effect where it interacts with ideology. Unfortunately, that is where it has its widest application today.

Once upon a time, so-called “think tanks” actually deserved that name. They were groups of very smart, well-educated people, assembled to tackle difficult problems and recommend intelligent, well-considered solutions to leaders. Like scientists (which some of them were), they tried hard not to go beyond their proven and recognized expertise.

Today, think tanks are quite different. How do you know? Because each is identified with a particular political ideology. Their job is not to solve problems, but to promote their respective ideologies.

That, in itself, is a bad thing, for reasons that we’ll explore further below. But it gets worse. When you espouse and defend a particular ideology, you have to be reactionary. When a rival think tank—or anyone—comes out with a report or study that affects your fixed ideological position, you must respond.

So it was with Thomas Piketty’s pathbreaking, multi-year study of economic inequality in America and other advanced nations, entitled Capital in the Twenty-First Century. Within weeks of its publication, the Heritage Foundation (a so-called “conservative think tank”) had come out with a paper purporting to “refute” the book’s basic conclusion—that inequality is severe and getting worse in advanced capitalist nations.

Never mind that it’s hard (to say the least) to match in a few weeks a multi-year exercise in collecting and analyzing real data globally. Never mind that the refuting “study” collected no data of its own, but just tried to poke holes in Piketty’s data and reasoning. That was in fact its purpose: providing talking points for ideological advocates to counter the import and political effect of Piketty’s study. It was an exercise in public relations and political propaganda, not independent research or thinking. Some “think tank”!

And so it goes. For decades, we had fringe doctors, paid by tobacco companies, producing studies suggesting that smoking is not harmful to your health. All the while, secret reports in the companies’ own files not only suggested the contrary, but sought ways to mitigate the harm. Then we saw the CEOs of five big tobacco companies, standing in a line before a committee of Congress, all testifying that nicotine is not addictive.

For about two decades, we have had “studies” casting doubt and confusion on the near-universal scientific consensus that global warming is real and caused by burning fossil fuels. Now, unsurprisingly, we have “think tank” propaganda purporting to “refute” the vast and growing gulf of economic inequality that we can see all around us just by reading newspapers.

Denying reality is never a good survival strategy, whether for organisms or for nations. As a nation, we Yanks didn’t use to do that. Instead, we took reality as it came and tried to work with it, albeit perhaps from different perspectives. Denial was not our first approach to policy. Yet today, denial is what many of our so-called “think tanks” now spend their time doing, at least if reality seems to favor an opposing ideological view.

To understand what real think tanks used to do, you have to go back a few decades. Then, one of the best was Rand Corp., based in Santa Monica, California.

You can tell just by its name that it tried to be an honest, independent thinker. It’s named for a founder, not a particularly ideology.

But there’s much more than that. I recently spent a long lunch with a very old acquaintance, now retired, who had worked for Rand Corp. and a spinoff for most of his career. The subject of much of our lunch was the President’s putative nuclear deal with Iran.

For a while, we discussed technical issues within the core of my friend’s scientific expertise: how to verify Iran’s compliance with the agreement, and how hard it might be for Iran to circumvent it. My friend pointed out that no agreement of that kind can be absolutely uncircumventable, and he noted some ways Iran might get around it.

But then he surprised me. After a long discussion of technical/strategic issues, I asked him whether he supported the President’s deal. He said he was agnostic. He recognized that technical issues and theoretical means of circumvention weren’t the only issues, or perhaps even the most important ones. Like any broad thinker, he recognized that Iran’s intentions, its prospects for future development and diplomacy, possible alternatives to the deal (including war), geopolitics, domestic politics and even Israeli politics also matter.

That’s what real think tanks do. They think deeply and comprehensively about issues within the core of their expertise, using highly educated and well-trained experts. Then they look broadly at all the other considerations that might affect the solution or an outcome. They don’t, like most think tanks today, start with a predetermined ideological conclusion and justify it. Nor do they serve primarily to provide talking points for ideologues or media pundits. Like a good advisor to a CEO or the nation’s president, they lay out all options and their probable consequences as fully and honestly as they can, without bias or preconception.

Conclusion: the rise of ideology

Many things are structurally wrong with our nation and our culture. Our infrastructure is decaying rapidly and drastically, but no one, least of all the GOP, wants to pay to repair it. Our private bankers have far too much power over our economy and take far too much unsupervised risk with it. Our Senate is grossly malapportioned and will only get more so as time goes on. Our filibusters, Senate holds and our “Hastert Rule” in the House give us permanent minority rule, or at least an unconstitutional minority veto over legislation and Executive appointments. Our police, virtually nationwide, are over-militarized and under-communitized; they have a siege mentality and are far too prone to abuse minorities. And last but not least, gross and growing economic inequality is destroying our optimistic culture, our social cohesion and our “American Dream.”

Expansion of our adversary system well beyond its Peter Principle is not responsible for our decaying infrastructure. But its relates to our other structural flaws as both cause and effect.

Our political adversary system creates rage and polarization by defending the indefensible. One example is our bankers. They set up the greed stampede that led to the fear stampede of the Crash of 2008. They did it by massively violating their own written credit standards to issue liars’ loans. Then they packaged the liars’ loans as securities and sold them to unsuspecting rubes and each other. Their excuse for the disastrous result? The government did it, by encouraging home ownership and failing to supervise them. Isn’t that like a murderer blaming police for failing to stop him from killing?

Another example is the spate of abuses and murders of African-Americans by police. Sandra Bland was head slammed and died in jail after being stopped for failing to signal a lane change. Freddie Gray suffered mortal injuries in a police van after being in the wrong place at the wrong time. Eric Garner died in a choke hold after selling cigarettes without a license. And then there’s the blatant murder of the fleeing man, shot in the back on camera in South Carolina.

Of course the perpetrators of these police atrocities deserve fair trials for crimes, with a presumption of innocence, just like any accused criminal. They even deserve fair hearings for administrative and internal discipline, but without a presumption of innocence or proof beyond a reasonable doubt.

But the system is not an individual, with individual rights. It’s a self-evidently broken system that needs fixing. Blaming the victims by arguing so-called “deficiencies” in African-American culture, speech or upbringing may be zealous advocacy. But it’s defending the indefensible. Only in a police state do citizens have to accommodate to the police, rather than vice versa.

When the Gestapo, Stasi and Savak did like things, no one in America came to their defense. Nor should the police and their trade associations band together like tribal gangs, resisting trials and discipline for perpetrators, as well as systemic reform by New York Mayor Bill de Blasio and others.

The police are not all personally on trial, just the individual perpetrators. Police are the experts and the front-line troops. We all know they have hard jobs. Of all people, they should not be zealous advocates for a broken system that makes their jobs even harder. They should be on the front lines of those trying to improve it. Police who use their professional groups to argue against reform are defending the indefensible.

Besides defending the indefensible, spreading the adversary system outside the courtroom has two general pernicious effects. First, it distracts people from cooperating to solve problems and turns them into opposing and largely unthinking tribes.

That’s precisely what the “controversy” over militarized policing and excessive force has done with police and their unions. It has turned them—who have the greatest stake in popular trust and good community relations—into advocates for indefensible militarization, excessive force and even brutality.

Similarly, it has turned bankers, who once were paragons of probity and prudence, into advocates for excessive risk taking and getting rich quick. Both of these groups have intelligent, thoughtful, highly trained people. But defending themselves and the sometimes indefensible behavior of a few has turned the best of them, or at least the most prominent, into irrationally zealous advocates.

The second pernicious effect of a rampant adversary system is that it entrenches ideology. Ideology is not thinking; it’s an excuse for not thinking.

Let me give just one example, which I’ve elaborated in a previous post. Our species has tried Communism twice, on a large scale, in Russia and China. It failed both times. Our own nation tried laissez faire capitalism in the last century. It produced the First Gilded Age, the Crash of 1929, the Great Depression and (indirectly) the most horrible war in human history. Now we have suffered the Crash of 2008 and are in the midst of our Second Gilded Age, with economic inequality rampant and growing rapidly.

How often do we have to make mistakes in order to learn from them? How many times must we experience Albert Einstein’s definition of insanity: trying the same thing over and over and expecting different results?

Neither right-wing nor left-wing ideology is going to help us. Only thinking can. We need to find something to replace Henry Ford’s unprecedented (at the time) $5-a-day wage, which jump-started our Yankee consumer society, and collective bargaining, which consolidated and maintained it for half a century but is now under siege.

Raising the minimum wage can be a temporary expedient, but it’s like fixing a watch by moving the hands to show the correct time. We need new thinking and new solutions to the age-old conflict between labor, management and owners.

We don’t need more zealous advocacy for ideas and systems (Communism and laissez faire capitalism) that have twice undergone large-scale tests and have failed both times. We need to start thinking again, and to stop defending the indefensible, lest China, Germany, the rest of Europe—and maybe even the rest of the BRICs—start eating our lunch.

We Yanks have no monopoly on thinking. But at the moment, we seem to have a near-global monopoly on simplistic ideology. We also have a surfeit of zealous advocates willing to defend it, themselves and their actions, heedless of reason, consequences and often common sense. If we want to remain a global leader, or even a respected and influential once-imperial power like Britain, that must change.

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