Knowledge And Decisions

Repudiation of the economic version of substantive due process meant allowing politically liberal legislation and administrative agencies a free hand to control businessmen with little judicial scrutiny of constitutional issues, such as confiscation of property. Relaxed standards of proof — including de facto burdens of proof on the accused — facilitated the same policy at the expense of the same social group, with judicial “deference” to the “expert” findings of administrative agencies in issues from antitrust to “affirmative action.” The findings of trial courts of judges and jurors selected for impartiality were given no such deference as the findings of administrative agencies staffed by personnel selected for their zeal on one side of an issue. Even proof of a criminal defendant’s guilt in court was not enough to sustain a conviction at the appellate level if any of a number of newly created and sometimes retroactive technicalities were not observed — even though the technicalities might be a matter of close dispute among expert appellate judges,⁴⁰⁵ and therefore far from obvious to policemen on the street.

The problem with social partisanship is not simply the particular selection of groups to be favored or disfavored, but (1) its general inappropriateness in a system of law, (2) the duplicity necessary to sustain it in the guise of legal principles which appear and disappear rapidly and unpredictably, (3) uncertainty and demoralization where the legal system provides, not a framework within which to place and utilize knowledge best known to those involved, but instead a continual threat of second guessing which may cause decision makers to act in ways most likely to appear plausible to outsiders, rather than in ways judged best by those who actually know. Even those groups supposedly favored by the social partisanship of the courts lose as members of the general society, so that what is involved is not simply a judicial transfer of benefits but a set of policies which can become so counterproductive that everyone loses. It is perhaps indicative when polls show blacks opposed to busing or to “preferential” treatment (quotas), and declaring that the law is too “lenient” with criminals.⁴⁰⁶

Despite the tendency of intellectuals, “experts,” and policy makers to view the functioning of society as a series of issues and problems to be directly “solved” from an implicitly unitary viewpoint, the real problem is to locate decision-making discretion in the respective social processes most able to resolve the particular considerations arising in different areas of human life. The same diversity of values which makes this desirable also makes it difficult to achieve. Those in the higher, more powerful, and more remote institutions face the constant temptation to prescribe results rather than define the boundaries of other institutions’ discretion. Nothing is easier than to confuse broader powers with deeper insight. But, almost by definition, those with the broadest powers are the most remote from the specific knowledge needed for either deciding or for knowing the actual consequences of their decisions.

Various feedback mechanisms serve to limit the impact of errors, moderate the presumptions of the powerful, and remedy the essential ignorance of social “expertise.” These feedback mechanisms may be formal or informal, and social, economic, or political. Their effectiveness varies with the extent to which they convey not only information, but also a degree of persuasion or coercion which cannot be ignored by those whose decisions must be reconsidered. In the intimacy of the family, or in other important informal relationships, the value of the relationship itself forces some mutual accommodation. In economic organizations, the life-and-death power diffused among customers makes ignoring their preferences a folly in which few can indulge, and which even fewer can survive. Political organizations are constrained by elections, but the courts — which is to say, ultimately, the Supreme Court — are constrained only by history and by “a decent respect for the opinions of mankind.”

Because history is by definition tardy, and the opinions that matter to judges may be far more restricted than those of mankind, courts are especially inappropriate for making “results”-oriented decisions, as distinguished from decisions of principle or decisions which demarcate the boundaries of other institutions’ discretion. The relative lack of flexibility of courts is an asset for decision making in those areas where we want very little flexibility — i.e., in areas dealing with the security of our persons, possessions, and freedom. In venturing beyond such areas, courts are venturing beyond their institutional advantages.