Saturday, January 28, 2012


Ryan Lizza's article, "The Obama Memos," in this week's New Yorker, contains some inside information explaining how candidate Obama's promises to usher in a new style of politics, ran into the realities of a Congress that is more partisan than ever before. Commentators like Paul Krugman have jumped on the bandwagon, chiding President Obama for being so naive in thinking he could "transcend partisanship." Now conventional wisdom seems to suggest that President Obama has abandoned any efforts at bi-partisanship, and is going to come out swinging at Congress and the Republican opposition during this election year. The headline in the LA Times, for example, called this week's State of the Union speech a "confrontational" address. All of this feeds into a comfortable narrative proving that those who attempt to resolve conflicts by negotiation and compromise are doomed to fail. See, the "realists" say, eventually the idealists must wake up to the cold, hard truth that politics, and life, are nothing but a series of contests that you must fight to win.

But I did not hear President Obama giving up on the possibility of working together with the opposition. Instead, his State of the Union message started and ended with descriptions off how members of the military are able to transcend their differences, focus on the mission, and work as a team. The president made a renewed call for members of Congress to put aside partisan differences and work toward achieving consensus of a range of issues that need to be addressed.

Because, really, what is the alternative? The "realists" like Lizza and Krugman argue that getting anything done in Washington always has been and always will be a numbers game. If the president's team has the votes, they can get their program through Congress. If they don't, they can't. They are foolish to think they can ever achieve anything by trying to persuade the opposition to work with them. If we accept that view, however, that means we must view Congress as either a brick wall or a steamroller. We must accept gridlock whenever we have divided government, which we seem to have most of the time. And when one party or the other has the votes, we must let them roll over the opposition and implement a program that is going to be unpalatable to a substantial minority.

I once heard Taylor Branch, who wrote a three volume history of the years of Martin Luther King, Jr., talk about how many veterans of the civil rights movement view the early, non-violent years of the struggle as a naive, child-like phase that the movement had to pass through before reaching its more mature, confrontational style in the late 1960's. The lesson we have failed to learn from King, said Branch, was that the methods of non-violent conflict resolution King espoused may be his more lasting, and more universally-applicable legacy, not merely the achievement of civil rights for black people. (I don't mean to diminish that achievement at all, of course.)  Just in terms of sheer effectiveness, compare what was accomplished by the years of non-violent protests--the 1964 Civil Rights Act and the 1965 Voting Rights Act--to the results of those later, more violent tactics, which led to a massive backlash, and decades of the politics of resentment and divisiveness?

I recognize that in politics, as in every other type of conflict, there are times when you must fight to win. Most of the time, however, that approach is not going to provide a better outcome. Those who counsel giving up on negotiations because that way is too "soft" or "naive" or requires too much compromise, are really saying that it is better to get nothing done at all, or to lose to the other side half the time, than to satisfy at least some of your objectives. They are saying it is better to maintain the purity of your ideological principles, even if you accomplish less by doing that. 

I did not hear President Obama suggest that we should accept that reality. I heard him offer a vision  of putting aside partisan differences to work together on a common mission, just as the military does. But even as a practical matter, the president is smart to stick with this approach. He knows he still has a hostile Congress to work with this year. And even after the election, he is probably not going to regain the large Democratic majorities he enjoyed during the first two years. That means he must appeal to Congress's better nature, or threaten Congress, or shame Congress, or whatever he can do in an effort to persuade Congress to work with him this year and in his second term, if he is to get anything done.

When I heard the president talk near the end of his speech, about lowering the temperature in Washington, and trying to achieve consensus, that did not sound to me as if he were giving up on the idea of post-partisanship. Far from it. I see continuity from the candidate Obama's original message beginning back in 2004 that we must move beyond the traditional antagonistic red state/blue state, Republican vs. Democratic type of politics to a more constructive approach. We may never achieve that dream, but we should not give up on it either.

(adapted from a post on my political blog)

Tuesday, January 24, 2012

The Supreme Court and Arbitration

When we use a phrase like "alternative dispute resolution," we are usually referring to alternatives to bringing a lawsuit. Those who practice in the ADR field are often trying to persuade litigants to give up the right to sue, on the ground that the alternatives to court are better, cheaper or faster. Should ADR advocates be concerned when parties are compelled to give up their right to go to court even before a dispute arises? My answer would be yes, because I think arbitration or mediation should be freely chosen by the parties, not forced on them. And also because the word "alternative" loses all meaning if it is the only alternative. The right to jury trial should remain available if settlement negotiations fail. Maintaining the right to jury trial also provides parties with a powerful incentive to resolve their dispute before they have to let the court resolve it for them.

Recent arbitration jurisprudence, especially in the area of consumer contracts, has tended toward making arbitration the only alternative in many disputes. Most recently, in Compucredit Corp. v. Greenwood, the Supreme Court had to interpret the meaning of a statutory mandate enacted by Congress that credit repair companies disclose that consumers maintain the right to sue the companies. The Court held, 8-1, that this requirement did not preclude the credit repair companies from mandating instead that consumers arbitrate any disputes. So consumers are being told by these companies, yes you have the right to sue us, but sorry, you have to give up that right if you want to do business with us in the first place.

As a matter of statutory interpretation, the result is understandable. That it was decided by an 8-1 vote shows that it was not difficult for most of these Justices to wrap their heads around the concept that consumers are entitled to waive even fundamental rights. That is the whole point of the Federal Arbitration Act of 1925. We have the right to sue in many other circumstances, but we waive that right all the time. And if Congress had wanted to bar credit repair companies from requiring consumers to sign arbitration agreements, there were much more direct ways of accomplishing that than simply mandating disclosure of the right to sue. One could also interpret the "right to sue" as including the right to pursue claims in arbitration, although that may be a stretch.

On the other hand, you have to sympathize with the consumer's situation in being handed a contract with a credit repair company that on the one hand clearly guarantees the right to sue the company if the consumer is dissatisfied, and on the other hand, clearly requires that he or she waive that right. I believe the legal term for such a clause is "Catch-22."  Yet another example of how queasy we should feel in enforcing pre-dispute mandatory arbitration clauses that are contained in take it or leave it contracts that people are required to sign to engage in an increasing number of ordinary business transactions.

Thursday, January 19, 2012


As anyone who has made it through my four part series of posts on Aeschylus already knows, I've spent a little time thinking about the evolution of our legal system from earliest times. One can trace the history of our system of justice from a cycle of revenge killings, to a divinely-inspired system of earthly justice, to the beginnings of a third stage, interest-based approach represented by the growth of alternative dispute resolution. An article in this month's Atlantic magazine by Cullen Murphy, adapted from his new book on the Inquisition, makes some interesting points about the place of torture in this history, and our continuing connections to the methods developed during the Inquisition.

Although we think of torture as something backwards and barbaric, in some respects the legal debate over torture, which took place somewhere in the middle of the middle ages, can be seen as an advance in legal thinking. Those Medieval legal scholars probably recognized that torture was painful, but they also knew that the system that torture replaced was equally if not more painful. Torture represented an advance in the sense that it was a way of taking the administration of justice out of God's hands, and placing it in human hands. As Murphy explains:
Torture as a tool of jurisprudence was little known in the darkest part of the Dark Ages. The ability of human beings to discover the truth was thought to be limited. Thus the reliance not on judges or juries but on iudicium Dei—the judgment of an all-knowing God—to determine guilt or innocence. This often took the form of trial by ordeal. The accused would be submerged in water, or made to walk on red-hot coals, or forced to plunge an arm into boiling water. If he or she suffered no harm, or if the wounds healed sufficiently within a certain period of time, then it was the judgment of God that the accused was innocent. This regime was common in Europe for many centuries. It was unquestionably primitive and certainly barbaric. In its favor, it was devoid of hubris about what mere mortals can ever really know.
Maybe the people who devised these ordeals lacked hubris about their own ability to determine the truth, but at some point they might have realized that it takes a bit of hubris to imagine that God will step in and cure people whose limbs we place in boiling water, just to prove to us that the victim is innocent. The use of torture can be seen as an advance in legal thinking because it proposed that people could actually ascertain the truth without God's help, by various familiar methods of obtaining a confession from the accused. What is striking in Murphy's article is  how similar are the descriptions, and the justifications, for using torture during the Inquisition, to our recent unfortunate resort to these unsavory methods during the so-called war on terror.

It seems that our methods of extracting information have not progressed much since the Inquisition. And even putting aside the most physically abusive forms of torture, which are generally forbidden in most places in the world, though of course they still occur, we can describe our ordinary court system as heavily reliant on various "enhanced" forms of interrogation. (Think for example of our reliance on imprisoning witnesses for contempt, or prosecuting them for perjury, as forms of coerced interrogation.) Anyone who thinks that sitting for a deposition in a civil case is not akin to torture either hasn't participated in enough depositions, or is merely quibbling about definitions. The ultimate purpose--forcing information from the subjects in an effort to ascertain truth--has not changed all that much since the Inquisition, and our methods of extracting such information are only slightly more civilized.

Murphy's conclusion is also striking: he suggests that the use of torture proceeds from a "sense of moral certainty."  This way of thinking also leads governments to imprison or kill political enemies, and to impose particular values or rules on the population. The antidote to that way of thinking is represented by liberal thinkers such as John Locke, who believed that we can never be too sure of ultimate truths, and therefore advocated tolerance and free expression.

Nowadays, we are filled with skepticism about our justice system's ability to ascertain truth. Judges are known to be fallible. Studies have cast substantial doubt on the reliability of eyewitness testimony, which our legal system nevertheless treats as the most reliable form of evidence. Experts are often seen as paid advocates for each side. And our understanding of human psychology has progressed to the point where we know that juries can also be fooled. And even when we can be fairly confident in ascertaining the facts, we often don't agree on what rules to apply. On issues ranging from abortion, to drug use, to the rules of copyright protection, and even to the enforcement of debts, our society is deeply divided on deciding what those rules should be, and how to apply them.

If our sense of moral certainty is leaving us, how do we administer justice? We're not about to turn the job back over to God. What we seem to be reaching for is an alternative to using the standards of truth and moral certainty. That means that we are increasingly resolving conflicts by trying to ascertain and satisfy the various interests held by the parties. We're willing to admit that truth may be impossible to ascertain. And we're willing to leave decisions about justice and morality to the parties involved. Murphy's article says this about John Locke:
He made the case for freedom of thought and expression—and a certain humility regarding one’s own cherished beliefs—on the grounds that, no matter how much certainty is in our hearts, human beings cannot know for sure which truths are true, and that believing we can leads us down a terrible path.
We can make the case for mediation and other forms of alternative dispute resolution, based on the same kind of acknowledgement of our limited ability to ascertain and apply ultimate truths. Our justice system may need to recover that sense of humility about our ability to ascertain the truth, a sense that we lost when we moved from ordeal to torture. If we admit that our system has limited ability to find truth and administer justice, we are more likely to accept the legitimacy of resolving conflict by negotiated agreement.

Monday, January 16, 2012

Our Two Selves

Daniel Kahneman's book Thinking, Fast and Slow concludes with a discussion of the difference between the experiencing self and the remembering self. It seems logical to Kahneman that people should care more about the quality and quantity of time they are spending engaging in pleasant or unpleasant activities, than they care about how they remember these activities. We should want to enjoy our vacations, rather than worry about the pictures we are taking while on vacation. Picture-taking might even diminish the actual experience, but we are willing to sacrifice some of the quality time spent on vacation in order to create memories. The way that an experience ends also strongly affects our perception of it. Someone told Kahneman that their experience of listening to a recording of a symphony was ruined, because there was a horrible scratch at the end of the record. He wonders how that could ruin the whole experience, when the actual experiencing self, while enjoying almost the entirety of the record, was unaffected by the ending.

Experiments described in the book prove that the remembering self is much more important to us than the experiencing self. Kahneman set up an elaborate experiment in which he asked subjects to immerse one hand in painfully cold water for 60 seconds. Then he had them do it again, this time for a total of 90 seconds, the other difference being that after the first 60 seconds was up, he added some slightly warmer water to the mix, so the subjects felt some lessening of the pain. Finally, he asked people which of these two experiences they would rather repeat. Logic tells us that the second experience must be worse, since it not only repeats the exact same 60 seconds of pain of the first method, but adds another 30 seconds of only slightly less unpleasant pain. But the vast majority of people said they would prefer to repeat the second test!

This is because two things are important to the remembering self. One is the intensity of the experience (positive or negative). The second is the way that it ended. If a painful experience ends in a less painful way, we are likely to think more highly of it, and are less afraid to repeat it. The duration of the experience, which matters only to the experiencing self, is less important.  (Here I could also go into Kahneman's discussion of colonoscopies, but I think readers can get the idea.)

As with almost everything else in this interesting book, I can see an analogy to conflict resolution. Most people find conflict to be an unpleasant experience. (There are some of us who thrive on it, but I'll just stick to talking about the majority, who dislike the experience of conflict.) Conflict starts off in a negative way, when someone else disputes your position, or prevents you from obtaining something you believe you are entitled to. When people attempt to resolve the conflict through litigation, it usually only gets more unpleasant, as the parties throw new roadblocks in each others' paths, and find new issues to disagree about. The courts encourage most disputes to end by negotiated resolution, perhaps for one reason because they know that for most litigants, settlement is going to provide a more satisfactory ending to an unpleasant experience than continued litigation. And that is crucial to the remembering self, as a mutually agreeable outcome may offset to some extent the bad memory of the unpleasant conflict. Even for parties who hate the idea of settlement, a negotiated resolution will probably provide a better ending than most of them would have obtained in court.

These insights might also provide some guidance as to how we conduct mediations. If mediators can teach participants in a dispute how to handle their disagreements in a more civil manner, we are going to provide a more pleasant ending to an unpleasant experience. If we can get participants to reconcile to some extent (for some mediators, the ultimate goal of mediation), we can change the whole experience of the conflict, since only the experiencing self participated in all the prior unpleasantness, while the remembering self will be left most strongly with the positive memory of reconciliation. That memory to some extent will erase whatever happened to the experiencing self. This theory would also seem to provide some support for the idea that we should not rush mediation sessions just to obtain what objectively appears to be a reasonable outcome for both sides. Because the outcome is not the only thing that is important. How we get there is important. How painfully we reach a conclusion is also important. And whether we end the mediation on a good note or a bad note is also important.

(Photo from Home Based)