Bad Facts

In law, we have an expression which goes: bad facts make bad law. The expression refers to a problem, wherein the law is often developed and interpreted through litigation, but sometimes the facts of a case are so extreme that a loyal interpretation of the law would have disproportionately unfair consequences. And what sometimes ends up happening is that a Judge will interpret the law in a way which is objectively absurd but which produces “justice” in that particular case. Unfortunately, those decisions create precedents which will be used going forward in the further interpretation and implementation of the law, and thereby pervert the course of justice.

And I see the same phenomenon occurring all the time in politics. Whereby a politician finds someone to make an ad for them or to speak at their rally about how a law affected their family, and often that family’s experience is highly exceptional. Unfortunately, a more representative example of how the law is applied will likely be far less sensational. Usually, a handful of people get totally screwed, possibly because they had been disproportionately benefiting from the status quo, and while nobody wins the lottery almost everyone experiences a small benefit. Maybe so small that they don’t associate it with the policy. And that’s why it’s often a lot easier to mount compelling opposition campaigns to policies than it is to mount campaigns to support those policies. And so we end up legislating for the minority.

The most egregious examples of this that I see are in the context of free trade. It always reminds me of an episode of West Wing wherein a very sympathetic group of blue collar workers are speaking with a Presidential Advisor about their proposed tech trade legislation. The Advisor tells them that the government will be sponsoring job retraining, and the blue collar worker retorts that he’s already been forced to change careers once, and he’s too old to be retrained again. Or something like that. Anyway, he wants to keep his job. It’s a job that he’s proud of and which puts food on the table for his family, and he wants to keep it. A lot of politicians, liberal and conservative alike, oppose trade deals like the TPP because those kinds of personal appeals are hard to message against. But that doesn’t mean that there’s not a good argument against them. The good arguments are just felt less acutely to the individual in the immediate term. It’s hard to make someone feel a relative slowing in China’s competitive advantage or to ask a person to pay with their job so that their great grandchildren will be less likely to get conscripted into a global conflict. Progress is sometimes painful, and that pain won’t always be allocated evenly, but it is progress nonetheless and often the status quo would eventuate existential death.

I experienced this problem when I worked for a while in class actions, and one of my jobs was to talk to class members about their settlement concerns. I never once encountered a person for whom the proposed settlement was not a great result, and I was pretty successful at addressing people’s concerns and objectively explaining how the proposed settlement would benefit them. But I always started by explaining to them that class actions assume that the people being represented have all experienced approximately the same problem, and our job is to produce the best result assuming those facts. That means, however, that there would theoretically be instances wherein the facts of an individual’s case were so exceptional that their best option might actually be to opt out of the class and pursue their own individual action. And while that would likely seem unfair to the person who has to contemplate advancing their own action, that doesn’t negate the value of the class action to the hundreds or thousands of people who were spared the inconvenience of having to advance their own actions. Yet I can imagine a politician publishing an ad in which that one highly exceptional person is featured saying something along the lines of: “Class Actions are bad, because they don’t help the people who have been hurt the most”. While it is theoretically possible that, for example, a compensation matrix might not fully account for the most extreme claims, that doesn’t at all mean that class action legislation is bad or even flawed.

If a lay person were to use a gun to stop a mass shooter, that wouldn’t necessarily make it good policy to encourage more gun ownership. Just because a police officer took down a mass murderer without using a gun wouldn’t necessarily make it good policy to take guns away from police officers. If someone used sex an drugs to feel better, it doesn’t necessarily follow that sex and drugs always help. Just because something’s possible, doesn’t make it likely. Just because something is good for me, doesn’t mean that it will be good for you. We need to stop making decisions by anecdote.

Posted in: Progress

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