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.