faute de mieux
In his online column at the New York Times, Stanley Fish distinguishes between what’s right and what’s true. Procedures yield the former by bracketing the latter. This often leaves us unsatisfied. Sometimes it also leads to absurdity:
[L]ast year I found myself talking to an insurance company about a claim I was making. The person on the other end asked me a series of questions (like when did the damage occur) and I answered them truthfully. She took pity on me and told me that those were not the answers I should be giving. I escaped from the conversation and called a private adjuster, someone who represents claimants and knows exactly what the right answers are. He told me that I should never speak to “my” insurance company, but instead refer everything to him. He was afraid I might say something true.
The right answer is the answer a system invested in its own machinery will recognize no matter what the true facts may be.[...]
This is almost always the case in the law, especially in a legal system like ours that privileges procedure over substance. Lawyers know that what they have to do is find the legal rubric that will allow them to frame an issue in such a way that when the system’s questions are posed, the right answer, not the true answer, will be generated. Courts sometimes explicitly announce that the procedurally correct answer is preferable to the true answer, which is, legally, of no interest at all.
And sometimes the consequences are much worse than absurd. Fish cites Herrera v. Collins, a Supreme Court case in which a man found guilty of murder argued that his conviction ought to be overturned because of new evidence that proved his innocence. Writing for the majority, Chief Justice William Rehnquist claimed that it was the Court’s job to decide not whether Herrera was guilty, but only whether his original trial had been a fair one — that is, procedurally correct. The Supreme Court ruled that it had been, and Herrera was executed. (Just like Fish, by the way, to put this last fact between parentheses. He is a prose proceduralist.) This is the kind of absurdity most people would call an outrage, but it isn’t as easy to avoid as most people might suppose. Fish writes:
Is this bad? Should we go off the right standard and return to the true standard? A nice idea, but one that imagines a world where the judgments reached by systems are tested against a truth that is independent of any system. Where would that truth come from, how would it be identified and how could the endless disputes about what it is be resolved? (The law’s project is to hold such disputes at bay.) It is because there are no answers to these questions that we will have to settle for the truths that systems create, deliver and validate in a sequence that may be reassuring but is finally without a foundation.
By “without a foundation,” Fish means: without a foundation that can be demonstrated to everyone’s satisfaction. Is this the only kind worthy of the name?
Incredibly shallow column.
he should have taken his own advice–”At the beginning of the new year I resolved to leave off writing “old grouch” columns, columns that chronicle my inability to negotiate modern life”–and stopped there.
First, he equivocates on the definition “right” which he uses in a number of different ways. Next, he admits to tax fraud and insurance fraud because in his mind he can’t tell the difference between a “right” answer defined as one designed to get a result favorable to him and a truthful answer that may or may not be favorable to him.
He then extrapolates to the court system. Appellate courts such as the Supreme Court don’t serve as “do overs” for trial courts. All they determine, subject to only a few exceptions, is whether the trial courts procedure was correct.
In the legals system there is a value, even in criminal cases, of finality. Otherwise people unsatisfied with results and money to burn can litigate literally forever. Finality is balanced” against an assurance of 100 percent accuracy.
Joe, you have a great point about finality. But that does not mean it should apply to all cases. For the most part the legal system favors those who can afford it. Those without resources must make a deal. This is how organized crime got started. People who had no say in the courts decided to form their own. Eventually they raised enough money to buy the courts. This was the Rev. Lou Gigante’s point when he compared his mafia brother to CEOS who plundered through manipulation of the courts and political system.
In this Great Recession, the strong or unprincipled are surviving because they have the muscle and political influence. Goldman Sachs does not view its shameful behavior as such but as a public relations problem. General Contractors and developers are squeezing small contractors beyond belief and are even refusing to pay them. The weaker players do not have the resources to seek relief in court so money talks.
Perhaps this is why many hate lawyers. Too many times they have nothing to do with justice. This may be more significant now when so many small people are hurting while Goldman explains the legality of recommending a product and then trading against it.
Well we might say it is up to the churches to seek justice. But as they say in Italian: “Canta tu” or keep singing. After all who is paying for those hundred million dollar cathedrals?
If it is any consolation Matthew – I loved your post. Thanks for sharing.
That this man is a law professor is astonishing.
First, his insurance example is silly. Getting the result you want isn’t the same thing as getting an accurate or “true” result. If his truthful answers to the insurance company don’t get the result he wants that’s only a problem if the result is the one that ought to happen under the terms of his insurance agreement. If that’s the case, there a problem with the questions and/or the process.
Truth is not divorced from the legal system, it is simply that the truth isn’t the only value the system is designed to address – and we wouldn’t want it to be.
Joe is right – shallow and frivolous.
Without understanding all of the details of Fish’s insurance claim experience, it seems that he experienced some sort of property damage that wasn’t covered by his policy, perhaps because it occured before the policy was in force, or in some other way was outside the boundaries of what is covered under his policy.
The parallel with private health care insurance is irresistable, so I won’t resist it. If I purchase a health insurance policy that excludes pre-existing conditions, and I am an adult of sound mind, then it seems that I shouldn’t reasonably expect the insurance company to pay for my care for a pre-existing condition. I made the agreement with the insurance company – I signed the contract – and I should be expected to abide by it.
And yet we’ve witnessed considerable outrage over the last year, including in this forum, that health insurance companies won’t pay to treat pre-existing conditions, and will cancel the policies of customers who fraudulently file claims for pre-existing conditions.
It’s difficult to tell whether Fish believes that the insurance company, in justice, should pay for his damages regardless of what the policy says. But we know that many people believe that health insurance companies should pay for all health claims, regardless of what the policy says. What is the root of this belief? Doesn’t it illustrate that Fish is on to something?
it seems to me that the moral problem lies not in the relation between truth and right but, rather, itlies in the relation between means and end. To place legal proceedures, a means, on the same ontological level as a just legal decision is to overvalue the means, and in this case to vslue the means even more than its end, a just decision.
This case is similar to the problem with Humana Vitae where the means to human reproducttion, a means, is said to be morally intamperable because the means are given an absolute value equal to the value of the end. Morally these cases embody a vicious sort of absolutizing of means. (And I think it’s present in the gay marriage debate as well.)
The recent Blackwater case dismissal is another example of what Fish talks about.
If one starts with the imperfevction of the adversarial system to arrive at “truth”, of course the average person will become enraged at technecalities overturning obvious injustices.
Should that be the case?
Sometime back, as i recall, the Hon. Harold Rothwax in his excellent book, “Guilty” argued the appelate Courts were destroying the important tissues of justice by overstressing technechalitries.
What our Courts produce is a attempt at justice – how well they succeed strikes me as needing to be measured against the yardstick of facts and equity.
And yet we’ve witnessed considerable outrage over the last year, including in this forum, that health insurance companies won’t pay to treat pre-existing conditions, and will cancel the policies of customers who fraudulently file claims for pre-existing conditions.
Why give the insurance companies the presumption of innocence here? The belief that they never game the system to get the result *they* want is equally specious. But then the benefit of the doubt is always given to institutional power.
Just speaking for myself – I think all parties are perfectly capable of trying to “game the system”. Hence contracts and a legal system.
Here is another example of what Fish is discussing as it pertains to what is right and what is true.
I chaired a local social justice grass roots groups whose aim was to address the rates of Ontario Works (General Welfare) and ODSP (provincial disability payments) as well as other systemic issues facing lower income people. It was formed of community groups and lower income people. In my community people on low income represent 14 % of the population.
In 1995 during the whole welfare “reform” craze, benefits for people on social assistance was cut by 22%. The Liberal government criticized the Tories for this and PLEDGED to increase the rates when they were elected. Today social assistance recipients receive less now than they did before the rate cuts in real dollars. The last increase of 3% and proposed increase of a meager 2% this November are a pittance compared to the 22% cut of 1995 which is now estimated to be equal to a 40% reduction, taking into account the increase in the cost of living. A single family with one child on Ontario Works receives $987 a month but the average rent in Ontario for a two bedroom apartment is $903 a month, leaving just $84 for two people to live on.
My participation with the group was totally voluntary but we worked closely with the local legal clinic. We applied for a grant to support the work. Incidentally our group was supported by both provincial members of parliament and local political leaders. We were hoping to hire a lower income person for the position. However, there is no funding for political lobbying. Further, there are strict rules against grants to support groups who lobby. So in order to find the “right” answer we tried to bend and massage the language of our activities into “education” or some other category and reframe what we did to fit into the funding box and give the right answer but not the true one.
This whole issue was discussed at several meetings and the consensus of the group was that they did not want to go into all kinds of contortions to do the “right” thing and if we were unable to get grants to continue we would just continue on a voluntary basis and do the “true” thing – namely continue to be a political voice and make noise.
Bottom line now, there is few formal lobby groups to represent the issues of lower income people. The legal workers at the legal clinic are so overwhelmed with cases that come to them around landlord/tenant issues and income issues that they do not have the time to work in community development.
But there are a lot of other “educational” groups that receive funding (won’t list them but they do not represent the issues of lower income people specifically).
PS
Welfare rates (shelter AND living allowance) for a single person is $535.00 per month. The average rent for a single apartment in my community is $525.00 per month.
So you can do the math.
Employment??? Well it would be nice if there were jobs.
“We were hoping to hire a lower income person for the position. However, there is no funding for political lobbying. Further, there are strict rules against grants to support groups who lobby. So in order to find the “right” answer we tried to bend and massage the language of our activities into “education” or some other category and reframe what we did to fit into the funding box and give the right answer but not the true one.”
George, just want to mention that the sort of thing you’re talking about here is exactly the sort of thing that showed those Acorn workers in such a bad light on those videos from earlier this year. I’m quite sympathetic to them: that sort of rule-bending is a daily fact of lfe for those who try to navigate the rules and regs of government assistance in order to get food to eat and a place to stay.
To give a much simpler and smaller-scale example of rigid rules that might also illustrate Fish’s point: our parish runs a food pantry. From time to time, we receive grocery store gift cards via a government grant. The rule is, those cards MUST be distributed in sequential order (each one has a bard-coded serial number), or we risk losing our eligibility for the funding.
George, your comment is written in past tense, so I’m not sure if your group’s efforts continue, but if it does continue, I wish you well.
“A single family with one child on Ontario Works receives $987 a month but the average rent in Ontario for a two bedroom apartment is $903 a month, leaving just $84 for two people to live on.”
Yep. So here’s what happens around here: if single mom and child can’t afford to live on government assistance, then mom needs to seek an alternative arrangement. In many cases, that means living with ne’er-do-well boyfriend/father of child, not infrequently resulting in the birth of more children into this economically unsustainable and possibly emotionally unhealthy sorta-family relationship.
I’ve observed that it’s a lot easier for the middle class to be good Christians.
Playing devils advocate here George, but why should we be looking at the average rent?
I spent an awful lot of years living in places that were below average rent and didn’t get a dime of assistance.
If the idea of public assistance is for the assisted to live an average level of comfort, then there isn’t a whole lot of incentive for at least half the population to bother working.
And James – as for the alternative arrangement – my experience (seeing such cases) hasn’t been that mom needs the boyfriend, but that the boyfriend uses the easy source of cash that the mom on AFDC is.
Sean:
Well there has to be some way to measure a fair and reasonable standard of living and average rents are one way to do it.
Obviously, the situation varies from community to community and place to place but generally people want to find safe, affordable places to live.
Besides, I have said it before, I would love for there to be political debates held in community centres in poorer areas instead of university campuses and expensive auditoriums. Let people find no parking and walk by boarded up buildings and feel a bit unsafe.
And Sean you are arguing the classic “welfare wall” argument. I will see if I can find it but we did have an entire presentation that refuted the notion that the only incentive to get people to work was by making not being employed unsustainable. Most people want to make a meaningful contribution to society. It is part of human value. I don’t buy that argument but it has been one that has been very successfully launched (with very little evidence to support it). When the economy is roaring, people do gravitate to jobs, they would prefer working.
I think that there is a growing gap between a shrinking middle class and an increasing impoverished one, I saw a documentary by Bill Moyers’ that was set in California near a beach where all the movie stars are, all the glam photo shoots, etc. Literally five blocks away unemployment was staggering, poverty was rampant. But you would not see that reflected in the movies.
George
I don’t say that welfare stood in the way of the only incentive to work, but it is clearly a negative incentive and a moral hazard.
My problem is with the idea that there is a moral imparative to ensure everyone has a standard of living that is “average.” I would love everyone to have that standard, but we need to be honest about the consequences of that choice. Look at where such things are tried?
In that vein, it is interesting that the example you cite is California. California is a test lab for the fiscal approach and almost all the policies that our current admninistration thinks will solve our problems.