My job takes me all around the world, which — even after all these years — is simultaneously exhausting and energizing. Climbing into a small metal tube, sitting for 8-10 hours, and emerging in an entirely different culture is an experience akin to magic. It would have seemed like science fiction to any of my ancestors who lived between 1 A.D. and 1900 A.D. Every time it happens, I feel a measure of the wonder anew.
But part of the traveling experience is vulnerability. Once I leave my home country, I am by default dependent on the hospitality of others. When I walk off the plane I am a stranger, unable to speak the local language and unfamiliar with local rules. If an officer were to ask me questions about my intentions I could only gesture helplessly. If no one helps me, I’m in big trouble.
For some, that vulnerability might provoke a sense of unease. On my first international trips, I certainly felt that way. But over the years I have learned that worry is almost always unfounded. Esentially everywhere I have traveled I have been met by warm and welcoming people who were ready to extend a helpful hand of friendship. I have discovered that value of hospitality, of welcoming the stranger, to be a nearly universal value around the globe. (I even recall looking up in an airport in India to a saying painted on the wall: “the guest is God.”)
Which brings me to my experience flying into the international terminal at SFO a few weeks ago. As I and my fellow passengers came off the plane from Japan, bleary from the overnight flight, there was a backup of people near the exit from our gate. In rounding the corner, I saw a crowded queue of people all the way up the hallway toward customs. I could see up ahead that everyone was filing to the left, into the foreign visitors line. The lane for US citizens — especially Global Entry members — was empty. So I moved into the open lane, passing Customs agents informing foreign visitors that there was a 3 hour wait, up to the row of machines ready to give me nearly instant access to the baggage claim after I scanned my fingerprints.
I stopped and took the picture above of the 3 hour backlog. A customs agent immediately came over and instructed me not to take pictures, so I put the phone down. But as I looked at my fellow travelers standing in that line, I felt a sense of shame. Shame that the hospitality I had been shown so many times before was not being returned. Shame that somehow this was being done in my name. Shame at where we have come as a country.
Many are familiar with the Golden Rule, stated in the Bible as: “treat people the same way you want them to treat you” (Matthew 7:12). But this sentiment is not unique to Christianity. Hillel the Elder said, before the birth of Christ, “What is hateful to you, do not do to your neighbor. That is the whole Torah, while the rest is the commentary on it.” (b.Shabbat 31a).
The sentiments reverberate throughout history. The ancient Egyptian goddess Ma’at expressed the sentiment a thousand years before Hillel. Similar statements appear in Sanskrit and Tamil, or in writings from Greece, Persia, and Rome. Muhammad said, “As you would have people do to you, do to them; and what you dislike to be done to you, don’t do to them.” Hinduism says “treat others as you treat yourself.” Buddism says “Hurt not others in ways that you yourself would find hurtful.” (Wikipedia, predictably, has all the sources, and many more. But the less-oft-cited Harry Hiker has compiled a useful background with a timeline as well.)
Interestingly, as some humanist scholars have noted, this sentiment says nothing about God. Belief in God is not necessary to understand the logic of the Golden Rule. Many religions make the Golden Rule a central tenet of belief, but it’s easy to comprehend and accept the value of the Golden Rule from a purely rational, experiential basis. Humans may be selfish, but if we treat others the way we ourselves would like to be treated, we can get along with each other. Indeed, this understanding may be hard wired into our genes — and in fact, animals have shown the same inclinations.
Which brings me back to that airport queue at US customs. And not only to the queue, but the thinking behind it. There are few clearer examples of the Golden Rule than the treatment at international customs. Every day U.S. citizens travel to hundreds of destinations around the world, and every day citizens from hundreds of destinations travel from around the world to visit the United States. Seems like an ideal place to demonstrate the reciprocity that undergirds the Golden Rule. Standing there at SFO I was seeing my country fall short.
I recall once having to get a visa to travel to Brazil on short notice. A good friend was getting married outside of Florianopolis, and I decided at the last moment than I wanted to be there. The only option was to visit the Brazilian consulate in San Francisco and plead my case. I had to drive up three times before I finally got a chance to make my pitch (“I am only going to be in the country for 48 hours!” “It’s for a wedding!”) and they really put me through the wringer, with documentation and repeated re-starts on the queue (partially my fault for not understanding the rules, I admit). Finally they relented, and with the visa in hand, I asked them why the process had been so onerous — especially seeing that every Brazilian I knew was so laid back and easygoing. The consulate official explained that this was a special process only for U.S. citizens, and it was designed to mirror exactly the process that the U.S. requires of Brazilians. The rationale was that U.S. citizens can never understand the struggles of foreigners coming into the U.S. until they experienced it themselves. So now I understood. (Important note: Brazil has since implemented an easy online visa purchase process with just a few days turnaround, so don’t let this story dissuade you from visiting.)
The principle of the Golden Rule is as close to a foundation for cross-cultural human interaction as we’re likely to get. The “otherization” currently popular in the U.S., favoring members of an in-group over the members of an out-group, rarely takes humanity anywhere positive. History is littered with examples of these choices and the sad ends to which they have led. Tribalism leads to scapegoating, scapegoating leads to callousness, and callousness to cruelty. The only antidote to this trend is empathy and kindness — and, most important, love. Let’s hope we can find our way back from the precipice.
A couple years ago, my son’s cell phone stopped turning on. Of course, this immediately became a major crisis in our family (I was repeatedly and emphatically informed that long snapchat response chains were at risk), so as the family nerd, I was put on the case. Some quick diagnosis made clear that it wasn’t a fixable issue on my end (it may or may not have gotten wet in the rain once or twice, the facts were fuzzy), so I had to reach out to the manufacturer to explore what solutions might be in the realm of the possible.
Of course, the phone had gone out of warranty just a few weeks before it died. I dialed the customer service line to plead my case. After making my way through a maze of voice prompts, I reached an agent who, after hearing my sob story (we’re so close to the expiration date!) was kind enough to green light my request. We began the surprisingly in-depth process of getting a replacement. I had to fill out forms detailing the issues experienced, send in purchase receipts, as well as take photos of the phone from all sides. It took a couple calls, but I had the direct number for the agent in question, and he was very helpful in getting me through the steps. Finally, he gave me word that everything was in order, and a new phone should be sent out in a week or two.
I took the victory lap with my wife. I took the victory lap with my son. I recall them toasting me at dinner. I beamed with nerd pride.
However, a week passed and no phone came in the mail. Then another week passed. I dreaded re-opening the negotiation, but it was unvoidable. I called the direct number for the friendly agent I had worked with, and this time it went to a general intake queue — not a good sign. Eventually I reached a new agent and made my case. She said she couldn’t find any record of my submission. My heart fell. I asked for a supervisor. When she came on, I walked through my story from the beginning. I got her to admit that there was a record of my submission — I hadn’t dreamed the prior conversations and the photos of the phone I had sent in — but, she said, the original agent hadn’t had the authority to green light my request for a new phone. So sadly, I was out of luck.
The crow I had to eat with my family was bad enough, but it was compounded by the frustration around the time I had wasted. I thought I’d achieved a good resolution, but it turns out I was working with the wrong negotiating partner, because they didn’t have the authority to deliver.
This is the challenge of negotiating with agents. As two of the founders of the Program on Negotiation at Harvard Law School, Frank Sander and Jeffrey Rubin, put it in 1988: “The most obvious effect of using agents… is a complication of the transaction. If we begin with a straightforward negotiation between two individuals, then the addition of two agents transforms the simple one-on-one deal into a complex matrix involving at least four primary negotiations, as well as two subsidiary ones… [this] structural complexity has implications — both positive and negative — for representative negotiation in general.”
In dispute resolution, we usually recommend that the participants in a resolution process have direct authority to make the final decision. If the participants don’t have that authority, then you risk a situation like mine: agreement achieved, but not worth the paper it’s written on, because the real decision maker wasn’t bought in.
The use of agents is often tactical. Sometimes a low power representative is sent to the negotiating table just so the high power player behind the scenes can gather information without making any direct commitments. Or sometimes an agent is sent to a negotiation entirely to stonewall or obfuscate, assisted in that effort by their remove from the details of the case (as in, “I don’t know anything about this matter — all I know is that I don’t have the authority to agree to any of your demands.”)
The most common kind of negotiation agent is a lawyer. Sometimes lawyers can help with resolutions, because their expertise and emotional remove can focus the discussion squarely on the issues to be addressed. But lawyers can also complicate negotiations, because a) they have their own interests (e.g. getting the win, billable hours) and b) they may have a deep toolbox of techniques for confusing, extending, and obfuscating negotiations that they can call upon if they see such strategies as being in their client’s interest.
Representatives may sometimes be more inflexible than the stakeholders they represent. Imagine, for example, a representative of a labor group who refuses to budge an inch in a salary negotiation because he’s worried that when he brings the deal back to his membership that they’ll accuse him of selling them out. Or the opposite may be true: a representative is easy to work with and overeager to reach a mutually agreed upon solution, but they don’t have the credibility required to sell it to the group they represent, so it’s likely to fall apart later (such as Arafat’s inability to get agreement from the various Palestinian factions in his negotiations with Israel).
Agents can also have their own agendas as well. It’s important to pick your representatives carefully, because they may look after their own interests instead of yours once they are shrouded in the privacy of the negotiation process.
Which brings us to the negotiations in Helsinki. We Americans picked our agent through the process outlined in the Constitution, and now that agent is representing us on the world stage — but questions are being raised about whose interests he is really representing. Now these negotiations have started to happen in private, so we don’t know what commitments are being made on our behalf.
As a result, this is a delicate time. We need more information about what has happened so far, as well as what plans are being made for the future. That will require some patience as the investigators carefully do their thing. But if our chosen representative loses the confidence of the people he represents, then he won’t be our agent for very long — and the commitments he’s making may not be worth the paper they’re written on either.
I remember encountering The Morton Downey Jr. Show for the first time when I was finishing high school. The syndicated television program centered around an irate, chain-smoking host (Downey) in a cheap looking television studio screaming at his audience and guests, generally working himself into a frenzy of anger about whatever outrage or hypocrisy was the chosen topic of the day. Downey would stalk the stage, tapping his ashes into a large silver ashtray, occasionally blowing smoke into the face of one of his guests in order to rile them up. He’d accuse anyone who made the slightest progressive argument of being a “pablum puking liberal,” and would frequently interrupt others mid-sentence by shouting “ZIP IT!” into their faces from inches away. Often he’d urge his guests to fight with each other on stage, even goading them on several occasions to come to blows (such as one famous episode in 1988 at the Apollo Theater involving involving Al Sharpton and CORE National Chairman Roy Innis.)
Despite its low budget and poor production quality, the show made an impact in its brief cultural moment. Though Downey was occasionally caught off camera beating people up, using racial and sexist epithets, and getting into fights, he became a quite prominent media figure, eventually making guest appearances on Saturday Night Live, featuring in a few movies, and even recording a record of hokey songs inspired by his show. His influence was apparent in the other talk shows of the era, like Jerry Springer, Geraldo, and even Rikki Lake. For a moment there, he captured the zeitgeist.
But the aspect of the show that really made an impression on me was the audience. His die hard fans referred to themselves as “Loudmouths.” They loved everything about Downey’s act. They’d bring home-made signs to his shows urging Downey on, or signs intended to draw Downey’s ire onto them so he could deliver them a personal dressing-down. They’d wear shirts with Downey’s big mouth logo (see above), and they’d drive in from great distances to be in the audience. When Downey would go on a rant they’d stand up and cheer — almost like a professional wrestling match. The camera would pan the faces of the smiling and elated audience members, often young, white men, as Downey’s rants escalated and the veins popped out of his forehead. They knew it was all staged (they must have known) but they clearly loved it. In interviews, they’d explain that they loved “The Mouth” because “he’s not afraid to open his mouth… he’s not afraid of anybody.”
For some reason, Downey’s popularity profoundly disturbed me. I couldn’t take more than ten or fifteen minutes of the show before I was extremely disquieted. But I would flip over to it on occasion, because it fascinated and horrified me in equal measure. What did it say about human nature that this man had such an audience? What was it about his absurd ranting that commanded such attention? In my Senior Will (a tradition at my high school were we published a short will and testament leaving things to others in our final yearbook) I wished for myself in 30 years: “A cool wife, neat kids… a book in the works, and Morton Downey Jr. far, far away from positions of power.”
Well, that was when I was 18, and this year I turn 48. We’re right on the 30th anniversary. And I got everything but the last item.
Because of the controversial nature of the show, it was moved later and later in my region (North Texas), bracketed by disclaimers before and after the broadcast, and eventually it disappeared. Downey made a few other pitiful plays for attention (such as faking an assault from a white nationalist in an airport bathroom) to reclaim the nation’s attention, but it was too late. By late 1989 the show was cancelled, and Downey filed for bankruptcy a year later. I was optimistic, at the time, that his moment had passed.
A documentary about the show appeared a few years ago, called Evocateur, which processed Downey’s legacy. Most of the commentators focused on how Downey opened the door to reality TV, and changed the culture to be more open to provocative, angry television. In retrospect, it’s obvious that Downey opened a window — a window we’ve had a hard time closing. As Downey puts it in the documentary, in a prescient act of foreshadowing: “I never apologize for anything.” Others, since, have learned that tactic as well.
Downey had been an unrepentant smoker for most of his life, even publicizing his membership in the National Smokers Alliance. He said, “I had spawned a generation of kids to think it was cool to smoke a cigarette. Kids walked up to me until a matter of weeks ago, they’d have a cigarette in their hand and they’d say, ‘Hey, Mort,’ or, ‘Hey, Mouth, autograph my cigarette.’ And I’d do it.” But once he received a diagnosis of lung cancer, he became a staunch anti-smoking activist. He had one of his lungs removed in 1996, and he died of lung cancer and pneumonia in 2001.
Sometimes life gives you metaphors that are so on-the-nose that you couldn’t use them in a work of fiction because they’d be too obvious. Downey was an unrepentant smoker throughout his life, because it felt good. It felt like freedom, and sticking a thumb into the eye of the P.C. police who told him that smoking was bad for him. He even proudly signed the cigarettes of kids. Only later, when he realized the consequences of his smoking, did he change his tune – but by then it was too late. Perhaps in retrospect he felt the same way about his years stoking anger and hatred. It felt like freedom at the time, sticking a thumb into the eye of the P.C. mainstream — but once he realized the consequences, perhaps he wished he’d chosen a different path. By then, it was too late for him. But my hope is that it’s not too late for us.
In prior posts I’ve outlined a few of the maladies affecting our current civic dialogue. Cable news, blogs, newspapers, and talk radio are filled with examples of whataboutism, negative reframing, implicit bias, and truthiness. Much like the algorithms driving Facebook, these media channels crave attention – and conflict, anger, and outrage draw in the greatest number of eyeballs. The focus on profit means these businesses are highly motivated to serve up as many ads as possible. But like my uncle posited three decades ago, the news business is not the same as the entertainment business. It’s fine to create entertainment based on the news (e.g. comedy and talk shows), but journalism — as a public trust — has to be held to a different standard.
What would a better system look like? How could we design fora for discussing the great debates of our era without constantly being pulled into the pathologies I’ve previously described?
I’ve thought about this a lot, and the conclusion I’ve come to is that what we need are better referees. As a nation, many of us are consumed by the drama of sports, be it soccer, basketball, baseball, or football. But none of those sports would work without a referee. The ref is never the hero, and in many cases is made out to be the enemy. But if the combatants on the field want give the game their all, they must have a ref to keep the game fair.
In the conflict resolution field we have a concept called the third party. If you imagine that party one and party two are the disputants, the third party is the neutral – maybe a mediator, maybe an arbitrator, maybe just a trusted expert willing to share their thoughts and advice. The disputing parties may be unable to preserve trust between themselves as a consequence of their passion or their sense of justice. The third party has a trusted role to play because they don’t have a stake in the outcome. The referee is perfect example of a third party.
The ref isn’t playing the game; the ref is running the game. The ref has no stake in the outcome; the ref administers the rules. The ref calls the balls and strikes. The ref hands out the red and yellow cards – but the ref also decides when the ball makes it into the end zone, or when the shot is from beyond the three point line.
The ref isn’t Michael Jordan. The ref isn’t Venus Williams. The ref isn’t Tom Brady. After the time has expired and everyone has gone home, no one remembers the ref. But none of those sports heroes would be a household name without the services of a many refs over the course of their career.
We have to trust our referees if they are to be effective. Everyone is going to try to play the ref, whether it’s Neymar writhing on the ground in fake pain, or LeBron’s incredulous gestures after he’s called for a blocking foul (or Giuliani trashing the Mueller team for bias). Refs have to work hard to see through these attempted manipulations. Referees are literally the personifications of trust. And that makes their job very hard.
We’re comfortable with the concept of refs in sports. You may have an umpire behind home plate, a line judge at Wimbledon, or an instant replay booth filled with refs monitoring catches in the Super Bowl. But the idea of a ref for a political discussion is a little less familiar. I think there are several kinds of referees we need to improve our civic dialogues. They include:
- The truth ref. Once we lose the touchstone of facts, all the other pathologies are enabled. Those who look to undermine our civic dialogue begin their assault with an attack on the very idea of facts. Truth requires credibility. This means that the truth refs do not have the luxury of expressing their opinions. True, no one is free from having an opinion. But having an opinion does not mean that one is incapable of focusing purely on the facts.
- The focus ref. It is not an easy thing to stay focused on a single topic. Many debate strategies are based around sleight-of-hand reframing (e.g. whataboutism) and changes of subject. Focus refs facilitate discussions and combat these approaches. Focus refs aren’t responsible for pointing out what’s true and what’s false – that’s the job of the truth ref. But focus refs also need to be neutral. By facilitating the discussion and keeping it on track, they become advocates of good process, which enables them to enforce the agreed-upon rules. No over-talking, no name calling, no obfuscation.
- The outcome ref. It’s easy to talk, it’s harder to act. When words have no consequences, and commitments have no follow through, there’s no reason to be careful in what you say. The outcome ref holds people accountable for their words. We can have a dialogue about anything, and in most dialogues there’s no expected output. In contrast, deliberative dialogue is aimed at making decisions and getting to the bottom of difficult subjects. Outcome refs audit discussions and monitor the performance of participants. Outcome refs also call out hypocrisy, and track the behavior of individuals across different dialogues.
Imagine a cable news show that, instead of teasing “Breaking News” and then throwing the latest controversy to a panel of talking heads who shout over each other, we have a discussion format the focuses on a particular topic, educates viewers and participants about the relevant facts (which have been audited by truth refs), gives each participant an opportunity to share their perspective (drawing on the facts presented) – perhaps asynchronously, so there’s time for the best argument to be put forward.
Each participant would have an opportunity to explain their perspective, listen to the other perspectives, and then provide additional thoughts (with a process facilitated by focus refs). Perhaps participants would even be asked to summarize the perspectives of other participants to ensure they heard and understood the points made. And the discussion would be driven by the facilitators toward possible areas of common ground and agreement. Once over, the dialogue output would be tracked, and revisited over time to measure progress (by outcome refs).
That’s a vision for a new kind of deliberative dialogue that could steer us away from the broken systems we’re using today. It would feel weird at first, because we’re used to the bare knuckles, no-rules brawls that pass for discourse these days. But people are tired of the shouting and the obfuscation. I believe this new approach could be refreshing, particularly if it is packaged in an entertaining way — and it might make the old style seem like a relic of a bygone era.
One of the core skills in the mediator’s tool box is a technique called reframing. The famed psychiatrist Milton Erickson described reframing as a technique “…to change the conceptual and/or emotional setting or viewpoint in relation to which a situation is experienced and to place it in another frame which fits the ‘facts’ of the same concrete situation equally well, or even better, and thereby changes its entire meaning.” Put more simply, reframing helps people see something from a different perspective.
For example, imagine you’re mediating a dispute between neighbors over a dog who is constantly digging up a neighbor’s garden. One neighbor (Bob) might say, “Frank, with God as my witness, if your dog comes over to my yard and digs up my tulip bulbs again — the Fosteriana Tulips I shipped over here from Europe, that I spent all weekend planting in a perfectly spaced semicircle — I will sue you for everything you’re worth.” As a mediator, you might reframe that as, “Bob, what I hear you saying is that when Frank’s dog comes over to your yard and digs up the planting that you’d worked so hard on, you get frustrated and annoyed, and you want to find a solution.” The mediator is not saying anything substantively different from what the neighbor is saying (although he or she may leave out the part about the lawsuit for now.) But by reframing the comment with an eye toward finding a resolution to the problem (e.g. fix the fence to keep the dog in its own yard, or train the dog not to dig up the tulips) the mediator can help the parties move in the right direction.
A very experienced mediator told me once that mediation is “benevolent manipulation,” and that is kind of what reframing is: it’s urging the parties toward a particular perspective that makes a mutually agreed upon solution possible. Mediators are trained to use something called positive reframing, helping the parties envision and develop mutually acceptable solutions. Once you know what reframing is, you see it everywhere.
But not all reframing is positive. Unfortunately, most of the reframing I see in the media is negative reframing. Media figures can use reframing to make their opponents look silly or insensitive. Often a more complex argument is reframed into a simpler proposition which is easily rebutted or delegitimized. Any cursory look at our media will find this technique depressingly commonplace.
For instance, consider a sensitive discussion about why there are fewer female than male computer science Ph.D. students in the United States. One person might say, “The reasons for this disparity may be a lack of role models for girls in computer science, or unavailability of effective mentorship at key phases in their education, or bias girls confront from incumbent players already in computer science. And there may be biological factors as well.” A negative reframing for this argument might be, “So you’re saying that you think boys are smarter than girls. That’s sexist.”
Actually listening to someone you disagree with is hard — it’s much easier to mis-hear them and then argue with that straw man instead. Calling the other side biased is a common strategy in doing this negative reframing. If someone makes a nuanced point on cultural differences in the workplace, and the response is to (inaccurately) frame the point as racially insensitive, then the discussion immediately runs aground. Once the discussion is framed in that way (i.e. “you are a racist”), agreement is extremely unlikely.
David Brooks, a conservative, once said about Barack Obama, “…what he’s offering is the ability to see all sides of an issue — and I disagree with him. And we’ve had many conversations, and he sees the best side of my argument and then he reflects it back.” This is the kind of positive reframing we need more of, both on the right and on the left. A knee-jerk accentuation of the most inflammatory component of a counterpart’s argument may make it easier for your side to “win,” but a deliberate attempt to understand and engage with the strongest part of your counterpart’s argument will bring us closer to true deliberative dialogue.
Utilizing positive reframing in your political conversations — e.g. demonstrating that you have really heard the core contentions of the other side, and that you are willing to engage with the strongest part of their argument — is unusual these days. But in my experience, when you do it, the response from the other side is usually surprise, gratitude, and a more open mind.
I am a descendant of Supreme Court Justice Oliver Wendell Holmes Jr., a point of great pride in my family. However, a little research shows the path is somewhat less than direct: Justice Holmes had no children, and his Father (the poet and Harvard professor Oliver Wendell Holmes Sr.) also had his line die out — but I am in a direct line from his father, through my father’s mother, so I suppose I’m as direct as anyone can be.
Holmes was an interesting character. He was on the Supreme Court for thirty years, and over that time there was quite a bit of myth making about his intelligence and influence. He never served as Chief Justice, but his ability to write compelling prose (along with his “distinctive personality“) made him one of the most famous judges in history. The Journal of Legal Studies identifies Holmes as the third most cited American legal scholar of the 20th century.
There’s much that can be said about Holmes as related to the focus of this blog, as his writing is voluminous. The internet is littered with his pithy quotes: “Taxes are the price we pay for civilized society.” “Even a dog distinguishes between being stumbled over and being kicked.” “A child’s education should begin at least 100 years before he was born.” And the classic: “Lawyers spend much of their time shoveling smoke.” But in this post, I want to talk about what Holmes said about the concept of justice.
There is a story about Holmes and Judge Learned Hand, in which they had lunch together and afterward, as Holmes headed off in his carriage, Hand spontaneously ran after him and yelled, “Do justice, sir, do justice!” Holmes instructed the driver to stop the carriage, and he turned back to Hand and said: “That is not my job. It is my job to apply the law.”
This was not a one-off sentiment. In a letter to John Wu, Holmes wrote: “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” (When pressed later on this statement, Holmes clarified that not only did he hate justice, he also hated facts.)
As a non-lawyer who teaches in law schools, I have been brought into the “justice” conversation many times. I am asked: How can you be sure your online systems will deliver justice? Whenever I enter into this discussion, I recall my ancestor’s observations.
What is justice? To me, the debates around justice can feel more philosophical than practical. There are many possible types of definitions (h/t to my friend Jan for these):
- Outcome focused (e.g. Substantive, Distributive, Utilitarian, & Social Justice)
- Process focused (e.g. Procedural Justice)
- Organization focused (e.g. Interactional, Informational, & Interpersonal Justice)
- Community focused (e.g. Corrective, Retributive, Deterrent, Restorative Justice)
Is it just that I get the last donut and you don’t? Is it just that it rains on my wedding day and not on yours? Is it just that our society is riddled with race, gender, class, and appearance bias? Is it just that the refs called Steph for a blocking foul when LeBron did the same thing three minutes ago and no foul was called?
When I try to help parties resolve disputes, I get concerned when the talk starts to focus on justice. Justice is very much in the eye of the beholder. One’s concept of justice is shaped by one’s self-interest. As Mel Brooks puts it, “Tragedy is when I cut my finger; comedy is when you fall into an open manhole and die.” Parties may think to themselves: justice is when I get what I want. So if I don’t get what I want, there isn’t justice.
Whenever people talk to me about the concept of justice, in my mind I start to substitute in the concept of fairness. Our parents never say to us that life is not just, but they do tell us from an early age that life isn’t always fair. It’s almost like the concept of neutrality, which I think is another impossible ideal — we might never be neutral, but we can try to be impartial. True justice may also be an impossible ideal. And if we can’t achieve it, maybe we can aim to be fair instead.
There’s a bumper sticker on the wall of many a college dorm room that proclaims, “No Justice, No Peace.” This is the kind of motto that works well in one’s twenties but may generate a moment of pause for those of deeper vintage. When I contemplate the injustices of our age (which are legion) I worry that this type of bumper sticker sentiment will dominate our response. I suspect a focus on fairness may be more attainable, and will give us more space to find common ground.
Another Holmes quote (oft attributed to the Jr. but in fact from the Sr.) is “The young man knows the rules, but the old man knows the exceptions.” There’s a difference between knowledge and wisdom. If we’re to start fixing what’s broken, we need to keep that difference in mind.
My great uncle, Gordon Wade Rule, was the Chief Contractor for the U.S. Navy for more than twenty years in the 1960s and 70s. He did a lot of high stakes negotiating during that period, from aircraft carriers to Trident submarines. His stakeholders ranged from Senators to Admirals (Rickover was one of his trickiest adversaries) to massive defense contractors. He consolidated his decades of experience into a short book called The Art of Negotiation, which he donated to his country. While some of his recommendations may seem a little dated when held up to modern negotiation theory, the heart of his argument is dead on: do your homework, be committed to the truth, build trust with the other side, and only make good agreements (e.g. agreements that work for both sides).
If you were to take a negotiation training at the Program on Negotiation at Harvard, those points would fit right into the curriculum. In fact, the tips you get from many negotiation and conflict resolution professionals may seem somewhat obvious: focus your energy on the problem to be solved, not on criticizing the people you’re negotiating against. Listen closely to the other side, both to what they’re saying and what they’re not saying. Look for areas where there is mutual benefit, and build a path to agreement. Start with small successes/agreements and then work up to the harder ones. I’ve had people say to me, isn’t that all just common sense?
Well, sure. All of that advice can seem pretty straightforward to someone looking into a dispute from the outside. But when you’re inside a dispute, that advice can be extremely hard to put into practice. When we feel we’ve been wronged, a different set of ideas pop into our head: be aggressive. Push the other side to bend to our will. Threaten and sabre rattle. Take stands on principle and refuse to back down, so as to get much value as possible. Be inflexible to force the other side to agree to your terms.
Research shows these approaches are not very effective. Bullheadedness on one side creates bullheadedness on the other side. The best negotiations build trust over time and create value for both sides. But the aggressive, fixed-pie, take-no-prisoners approach has a long history, and it’s remarkably resistant to evidence-based criticism. As the current occupant of the White House demonstrates, people observing this distributive approach seem to feel it represents strength and power — even though the results are demonstrably inferior to integrative techniques.
The challenge comes when you want to negotiate in a value-creating, integrative way, but the other side wants to bully and posture to force you to bend to their will. As we discussed before, no one wants to bring a knife to a gun fight. There can be a race to the bottom when one or the other side demonstrates a willingness to go low. Tit-for-tat says if the other side betrays you, you should betray them back — but proportionally. If no one is willing to take a risk and try trust, that can lead to repeated betrayals, and the negotiation won’t go anywhere (and it will almost certainly end the relationship).
Negotiating with a bully who wants to push you to bend to their will can make you frustrated and angry — and getting you angry is part of why their strategy can work. Once you get angry, you may make unwise decisions motivated by emotion. If a bully gets you emotional through threats and insults, you may start to sling some threats and insults of your own, which gives the bully more fodder to criticize your intentions and wind you up further. They can also use your behavior to justify their aggressive approach to outsiders, saying: “See, we can’t negotiate with this person. They’re participating in bad faith — look at these threats and insults. We’ve got to force them to do what we want, no compromise.”
Hence our current moment. It’s true that many people are frustrated and angry, and that anger makes them want to lash out. Maybe it’s shouting down administration officials at a movie theater, or refusing to serve them at a restaurant, or yelling expletives on TV or at an awards show. But the question must be: what outcome do we want to achieve? And do these behaviors help or hinder our efforts to achieve that outcome? And are they making the problem worse?
It can feel good to see people expressing frustration that you yourself feel. But in many cases, those cri de cœur play right into the hand of the other side. Meeting anger and bullying with more anger and bullying digs the hole deeper. It’s not easy to confront bad behavior with restraint, but it’s vital if we’re going to try to rebuild some of the trust that we’ve lost in our society. We can have our “at long last, have you no sense of decency” moment without resorting to profanity, threats, and insults. They say what you fear you become, and that is what the anger trap can do to you. The only way to win is not to play.
One of my heroes is Howard Raiffa, a pioneer in decision science and game theory. Before he passed away in 2016, Professor Raiffa held a joint chair at Harvard Business School and the Kennedy School of Government. His expertise spanned statistical decision theory, game theory, behavioral decision theory, risk analysis, and (of particular interest to me) negotiation analysis. His seminal book The Art and Science of Negotiation is a classic text in the field of conflict resolution. It is a foundational text that integrates the fields of game theory and negotiation in innovative ways.
One of the examples of this synthesis of game theory and negotiation theory discussed in Prof. Raiffa’s book is the Prisoners’ Dilemma. In case you haven’t come across the Prisoners’ Dilemma before, it’s outlined in the graphic above and in the description below (written by Albert Tucker, who gave it its name):
Two members of a criminal gang are arrested and imprisoned. Each prisoner is in solitary confinement with no means of communicating with the other. The prosecutors lack sufficient evidence to convict the pair on the principal charge, but they have enough to convict both on a lesser charge. Simultaneously, the prosecutors offer each prisoner a bargain. Each prisoner is given the opportunity either to: betray the other by testifying that the other committed the crime, or to cooperate with the other by remaining silent. The offer is:
- If A and B each betray the other, each of them serves 2 years in prison
- If A betrays B but B remains silent, A will be set free and B will serve 3 years in prison (and vice versa)
- If A and B both remain silent, both of them will only serve 1 year in prison (on the lesser charge).
This simple model is a neat representation of one of the central challenges of negotiation. If the prisoners trust each other, they’re better off overall. But if the trust is undermined, they are tempted to betray the other, and they’re potentially much worse off. Extrapolate this to any negotiation partnership and you understand the importance of trust between negotiators. Once trust is undermined, there is always a temptation to betray, which can be worse for everyone.
A later classic book in the conflict resolution field is Axelrod’s Evolution of Cooperation, which leverages the Prisoners’ Dilemma extensively. Axelrod invited game theorists to write algorithms to play the Prisoners’ Dilemma, and then to come to the University of Michigan (where Axelrod is a Professor in Political Science) to play in a Prisoners’ Dilemma tournament with multiple rounds. In a field of competing algorithms, some with very complex rules for when to betray and when to remain silent, the winning algorithm across all the matches was a simple approach titled “tit for tat.”
Tit for tat works this way: it starts out trusting on the first round, and subsequently copies the other side’s prior move. The core idea is that good behavior is rewarded by reciprocating with good behavior, but bad behavior is immediately punished. In practice, tit for tat cooperates when the other party has an immediate history of cooperating and betrays when the other party previously betrayed.
Now my goal is not not to give you a Spark Notes version of a degree in game theory and negotiation — so let me cut to the point. As Megan McArdle explained in the Washington Post last week, our nation is having a tit for tat moment. As Prof. Raiffa would have probably argued, our national nervous breakdown can be modeled in game theory, which can generate insights about how to start to recover. As Megan put it in her piece:
“…both sides think they have legitimate grievances, and both are hurting themselves as they try to punish the other. At this point, the only way out is for everyone to put themselves in timeout — to think hard about whether their behavior reflects the kind of people they want to be, or the kind of country they want to live in. And then try to find some common set of rules that will let us cooperate instead of mindlessly punishing each other.”
It’s not going to happen all at once, and there are sure to be fits and starts as we try to work our way back to cooperation. But the good news is, a) people respond to incentives, and b) tit for tat shows us it’s not really that complicated. We just have to keep our responses proportional and forgive quickly to get things back on track. But someone has to take the first step by trusting the other side.
There’s a lot of chaos in the media today about the shameful policy that requires the separation of immigrant parents and children in detention centers. And while I do have very strong opinions on that issue (hint: I’m against it) that’s not what I want to talk about in this blog, so I’m going to focus on another aspect of the debate that undercuts deliberative dialogue: a focus on anecdotes instead of data.
The immigration debate is perhaps the most prominent modern example of this trend. For political reasons, the current administration wants to make the connection that immigrants are criminals (of course, making immigration a crime by definition makes all immigrants criminals, even though immigration has happened since time immemorial, but I digress). The President began his campaign by saying many immigrants are rapists. He has continually elided immigrants (about 1m per year) and gang members, particularly MS-13 (estimated to have 8-10k members in the US). The Administration even puts out a weekly list of crimes committed by immigrants to underscore this message. Hence the use of the term “infest.”
But this connection is not backed up by data. Two large studies, one by the Libertarian Cato Institute and another in the journal Criminology, concluded the exact opposite of the administration’s assertions. The Cato study concludes “As a percentage of their respective populations, there were 56 percent fewer criminal convictions of illegal immigrants than of native-born Americans in Texas in 2015… The criminal conviction rate for legal immigrants was about 85 percent below the native-born rate.” (See the chart at the top of this post for a summary of their results.) The Criminology study found that states with more undocumented immigrants had lower crime rates than states with smaller immigrant populations: “Increases in the undocumented immigrant population within states are associated with significant decreases in the prevalence of violence,” the authors found. In fact, they conclude that the arrival of immigrants was a major factor behind the drop in crime rates in the US over the last 20 years.
So one way to maintain the position of the administration is to cloud the reality described by the data through a focus on individual stories. Many websites chronicle the tragedies of crimes committed by immigrants, and the stories shared are truly heartbreaking. But lists of crimes perpetrated by U.S. citizens would be similarly heartbreaking. And by putting all these stories in one place, and removing them from a broader context, the reader is left to reach their own conclusion: all these crimes by immigrants are proof of a trend, and we have to take action to protect ourselves.
It goes back to what I was discussing in an earlier post around “trusting your gut.” If you don’t like immigrants for some reason (we’ll leave the specific reasons to the side for now — but race, cultural differences, and language are three likely factors) you may be inclined to believe stories that reinforce that dislike. If someone describes several horrible crimes committed by immigrants, you may connect the dots and presume these stories represent a trend. Most people don’t put the time into learning the actual data before jumping to a conclusion, particularly if that conclusion is in line with their “gut instinct” (which introduces the previously described shortcomings).
But the focus on anecdotes over data is not isolated only to the immigration debate. Consider the opponents to the Affordable Care Act looking for stories of individuals adversely effected by the law, when in fact the data shows a huge positive trend across the general population. And this focus on stories over data is not only a conservative phenomenon. Some progressives have touted anti-vaccine conspiracy theories backed by anecdotal stories of individual children, while the data show conclusively that vaccines are safe.
This tactic works because each side can easily cite stories to bolster their argument, and the egregious details capture the imagination. The human brain is tuned to understand an individual story much more easily than to process reams of abstract facts and figures. In addition, skepticism has set in for most of the electorate as well about studies, namely that whoever sponsors the study will find a way to twist the results to bolster their perspective — so citizens learn over time to tune out anything with charts and data sets. There is also a sense that those who focus on data over individual stories are hard at heart, or cold and unfeeling. “How can you look at this murder victim and not be moved? Put your charts away.”
It’s fine to tell stories. In fact, telling stories instead of citing figures was part of what made Presidents Reagan and Clinton so effective as leaders. But decision makers need to make decisions on the basis of verified, unbiased data — not anecdotes. We need to protect policymaking from the political gamesmanship, and calling out the misleading use of anecdotes is part of that effort.
When my sons were young and I caught one of them doing something questionable (e.g. taking one more cookie than we had said he could have, or surreptitiously playing videogames on a school night) one of their go-to responses was always, “but [insert other brother name here] did [some other form of malfeasance] and you didn’t say anything when he did it!” The strategy being deployed by the son in question was obvious, but it was also effective: take the focus off of the specific transgression being discussed and raise the level of abstraction to supposed systemic injustices, with the implication that the rules were hopelessly random and unfair. The inconsistency of enforcement was presented as evidence of a clear parenting double standard.
This is understandable behavior for a four and a six year old. They came upon the strategy organically, and used it liberally. Fortunately, over time, they’ve pretty much grown out of it. But if I’m ever feeling nostalgic for the challenges of parenting kindergarteners, I can see the same strategy deployed on any cable news channel 24×7. For, my friends, we are deep in the golden age of whataboutism.
Whataboutism is the strategy of countering criticism by pointing to other actions supposedly more worthy of criticism. The Brits used to call it whataboutery, but by now the term “whataboutism” has taken over on both sides of the Atlantic. The Oxford Dictionaries define whataboutism as “the technique or practice of responding to an accusation or difficult question by making a counter-accusation or raising a different issue.” But at base, it’s a sleight of hand trick.
The fundamental element of whataboutism is avoiding a narrow criticism by escalating to a claim of hypocrisy. There is a logical fallacy known as “tu quoque” that describes the tactic of countering your opponent’s argument not with facts, but with an argument that it’s hypocritical of the opponent to make that argument in the first place. Whataboutism is the weaponization of tu quoque in the political sphere.
For example, Hillary Clinton supporters, when confronted with criticisms about Benghazi, say: What about the soldiers who died in Mali during the Trump administration? Where were the hearings on those deaths? Or, what about the soldiers who died in embassy attacks under Secretary Powell or Secretary Rice? Why weren’t those fatalities treated with the same degree of seriousness?
Or conservatives, when discussing Trump’s overtures to North Korea, say: what if Obama had met directly with Kim Jong Un during his Presidency? Progressives would be singing his praises and nominating him for the Nobel Peace Prize. Or liberals, when discussing Trump’s continuing profits from donors paying dues at Mar a Lago, say: what if Obama was in office and he tried something similar? The Republicans in Congress would insist on impeachment.
Why does whataboutism work? Well first, it takes the focus off of the specific transgression in question. The debate migrates to weighing the severity of different imagined activities, which are nearly impossible to objectively compare. Second, because it relies on imagined scenarios instead of real world events, it plays upon the implicit biases of the listeners. If you think Republicans are unreasonable, then whataboutism that invokes scenarios of Republican hypocrisy will likely be persuasive. If you think Democrats are unreasonable, then it’s likely that you’ll find imagined scenarios of Democratic hypocrisy more credible. Because these are all imagined equivalencies, untested by reality, listeners can craft their own nefarious narratives in their mind’s eye, shaped primarily by their biases. Third, it is true that examining issues in a broader historical context can be helpful — and whataboutism seems initially to be about such context, even though it’s really about fogging up the discussion.
As I said, the strategy is depressingly effective. I’d be remiss in this post if I didn’t note that Russia is the world headquarters of whataboutism. It is Putin’s favorite rhetorical technique. Once, when asked about President Bush’s criticism of Russian democracy, Putin replied, “I’ll be honest with you: we, of course, would not want to have a democracy like in Iraq.” That’s what the sleight of hand trick looks like when demonstrated by a practiced professional. Whataboutism in Russia is primarily used for propaganda purposes, bludgeoning the opposing side with a barrage of arguments possessing only the flimsiest of relationships to the original concern expressed. The Guardian has even argued that whataboutism has been elevated to the level of national ideology in Russia. Let’s hope that’s not where we’re headed.