An interesting discussion broke out in the blogosphere last week. It all started with Andrew Cohen in The Week, complaining about the legal fiction of “good faith.”
When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.
What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.
I first read those words over at a public defender where Gideon was a little surprised, not by the revelation, but by how long it took:
For Cohen, who’s been a lawyer for a long time and a distinguished legal writer, to come to this realization 25 years into his career is quite telling.
It reveals that we are all operating from the same basic assumption that the system, in the end, works: that everyone in it is doing the best they can do and that any injustices are the outliers. “The best system in the world” is the norm and the wrongful convictions and the prosecutorial misconduct are the inevitable bugs in a system manned by humans.
But if you’ve been reading this blog, or others, or have had any involvement with the system, you know that the assumption is false: it’s a fiction created to grant a sense of stability to the system.
Scott Greenfield has a problem with Andrew Cohen’s piece, and with some of the reaction to it, because apparently the presumption of good faith has a technical meaning in the arena of law. Scott’s not writing Intro to Law, so his explanation of what good faith means is a little vague, but I gather that the presumption of good faith specifies a default assumption that is supposed to be used when resolving legal disputes.
But that’s not a reason to question the good faith presumption. Missing is an understanding of what it is and why it exists. The law is replete with presumptions, the one most honored here being the presumption of innocence. It means that a person is innocent until proven guilty. It reflects a fundamental policy choice, does a criminal defendant start from a position of innocence or guilt? It proceeds to establish a baseline, where the burden of rebutting the presumption falls on the party that disagrees with it. So the prosecution has the burden of proving guilt rather than the defendant having the burden of proving innocence.
But it’s just a starting point. Without starting points, the law would require litigants to reinvent the wheel from scratch every time.
The beauty of such presumptions is that they are rebuttable. The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.
In other words, if I have this right, in the absence of evidence to the contrary, a judge is supposed to assume that public officials are acting in good faith, much as he is supposed to assume that a criminal defendant is innocent. He can’t just make up crazy ideas about why the public official is a scumbag any more than he can make up crazy ideas about why the defendant is guilty. I’ve never really thought about that before, but it seems to make sense. The basic idea seems to be that judges shouldn’t make stuff up without evidence. Hard to argue with that.
The real problem, according to Scott, is that judges aren’t taking seriously the possibility that the presumption of good faith can be rebutted.
This is the core distinction that is confused by the challenge to the presumption of good faith. The problem is not that we begin with the presumption, but that our system suffers from inherent prejudice that prevents public officials, particularly judges, from correcting the bad faith of other public officials.
The fault Cohen complains of is undoubtedly real, but the cause isn’t the presumption of good faith. The cause is the refusal of establishment stakeholders to care enough about the integrity of the system and their own self-respect to make hard decisions, to condemn wrongs of their fellow establishment stakeholders and to use their power to correct the faults.
I don’t know enough about the law to judge whether Scott is right about this, but it certainly makes sense.
Not being a lawyer, and therefore not being aware of the legal presumption of good faith, I was thinking of something else when I read Gideon’s post and Cohen’s column. Law is not the only discipline in which it makes sense to talk about a “presumption of good faith.” The question of whether public officials are acting in good faith is an important issue in analyzing public policy and the nature of government.
I’m pretty sure that Radley Balko, who is also not a lawyer, was thinking along the same lines:
We tend to assume that public employees always act in the public interest — or at least we write our laws and structure our government in a way that assumes it. But there’s nothing transformational about a government paycheck that turns the name on the “payable to:” line into an altruist. This isn’t to say that government employees are especially evil or awful or terrible, only that they’re just as human and fallible as anyone else.
Back when I was a teenager around the end of the 1970’s, I was only just becoming concerned about nature of government, but one of the things that bothered me was the problem of bad cops. It seemed to me that whenever some community activist would complain about police brutality, defenders of the police would argue that the police were there to protect us from criminals and that they deserved our respect. It seemed to me, however, that they were ignoring an important problem: Sure, most cops protected us, but given the amount of trust and power we invest in police officers, that rare bad cop could do an awful lot of harm.
As it turns out, the problem was somewhat worse than I imagined.
When economists study the market, they make some rather cynical assumptions about how people behave. In particular, it is axiomatic in economic thinking to assume that people are selfish, in the sense that, given a choice, they will always choose whatever advances their own selfish interests.
This assumption has proven useful in thinking about the behavior of the free market: Consumers want good deals, employers want hard work at a low wage, employees want light work at high wages, and investors want to make as large a profit as they can. Surprisingly, economic theory tells us that even with all this selfishness, the incentives within an ideal free market will encourage people to produce the goods and services that will most improve the lives of consumers. As Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”
You may notice that I referred to an ideal free market. The reasoning leading to the conclusion that markets optimize production and consumption only works if markets meet certain ideal criteria. (The the economics equivalent of the physics assumption that everything is spherical and frictionless.) Real markets are not ideal markets, of course, and there are complications — transaction costs, information asymmetry, monopoly power, externalities — all of which economists refer to as market failures. And in most cases of market failures, economists (and everyone else) used to assume that the government should step in to correct the problem. Exactly how the government would fix things was not explored.
In the latter half of the last century, however, economists began examining the behavior of government using the same analytical tools that they used for the market. In particular, they assumed that the people making up the government were no less selfish than the people who made up the free market. So instead of assuming that the government would just fix problems, they assumed that everyone involved — voters, elected officials, bureaucrats, and special interests — would selfishly look out for themselves. This was called public choice theory.
People seem to have a hard time thinking this way. Even after years of skepticism about the wonders of government, I still catch myself trusting it too much.
Take net neutrality, the concept that internet service providers should carry all kinds of content at the same speed for the same price, as opposed to offering to carry some content under better terms in return for payments. Advocates for net neutrality, such as the Save the Internet Campaign, believe that this would be disastrous because it would allow internet companies to discriminate against certain sites or content, it would raise costs, and it would stifle innovation. Simplifying a bit, phone and cable companies would act in their own interest, and not in the interests of internet consumers. The market would have failed.
That may be. But if you click through to the “Take Action” page, the very first recommendation is to contact the FCC:
Net Neutrality is on life support. To save it we need to turn up the heat on the Federal Communications Commission and Chairman Tom Wheeler. We must stop the FCC from passing rules that would break the Internet and allow discrimination online. The agency needs to reclassify broadband Internet access as a telecommunications service, which would pave the way to long-lasting Net Neutrality rules.
Save the Internet doesn’t want phone and cable companies to control their own pricing policies because they think the folks who run phone and cable companies are scumbags. So they want the FCC to control internet service pricing policies. But here’s the thing: What is their reason for assuming that the folks who run the FCC aren’t also scumbags? Why do they believe that Comcast and AT&T will selfishly advance their own prosperity, but the FCC will benevolently protect the interests of ordinary people?
We know how government appointments are filled, and the process is not reassuring. Current FCC Chairman Tom Wheeler was a lobbyist for the cable television and internet industry and he appears to have been appointed in part because of his fundraising efforts on behalf of President Obama’s election campaign. That’s not a selection process that seems particularly designed to choose administrators based on their honesty, altruism, or appreciation for the needs of the citizens.
This is a problem that people on the political left tend to overlook as they continue to recommend more and more government intervention to combat the inequities of the free market in pursuit of social justice. People on the political right, on the other hand, are inherently skeptical of attempts to solve the world’s problems with “big government.”
Except when they aren’t. Which is to say that conservatives seem to forget all about these problems when it comes to the military and law enforcement.
There are some bad people in our society, bad actors, who lie, cheat, rob, rape, and kill, and we need to protect our society from them. So we create a system of justice, with police departments and prosecutors and courts and prisons, and we give it money and special powers to investigate crimes and punish offenders. But there’s a problem — one that I’ve started to think of as the fundamental problem of policing — which is that the people to whom we give this power are chosen from the same pool of humanity which produces the criminals. We thus face the challenge of designing a system of justice that will protect us from bad people even though parts of it will, at times, be run by bad people.
It’s not just the very bad people, however. The theory tends to assume that most people will behave selfishly most of the time, and there isn’t a whole lot of evidence that it’s wrong. This points to what I guess could be called the fundamental problem of government: What’s the best way to build a government given that its officials and functionaries are drawn from the same pool of humanity they are governing? I don’t have a precise answer, but I’m pretty sure that giving them gobs of power with little accountability is a bad idea.
That’s what I was thinking when I read Andrew Cohen’s column — that this was about policy and trust, not a formal legal presumption — and I’m pretty sure it was what Radley Balko had in mind as well. I thought that’s what Cohen and Gideon had in mind too, but now that I’ve read Scott’s post, I’m not so sure.
Frankly though, I’m not so sure what Scott has in mind either, because bits like this don’t sound like he’s talking solely about the legal issues:
We tend to favor survival, and that relies on bridges not falling down and traffic signals that prevent the selfish jerk in the Esplanade from t-boning the Prius. We go to sleep at night because we believe the police are out there preventing some really bad dude from breaking into our homes and slitting our throats.
Trust is a valuable thing to have, because it saves us a lot of trouble. You only have to look at a few broken-down third world countries to see what happens when nobody can really trust anyone else. But it’s something that has to be built up and maintained. You can’t just make policy founded on the hope that everyone can be trusted to act in good faith.
There is nothing wrong with the presumption of good faith, and our nation would cease to function without it. What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society.
In other words, we’re trusting too much that those who are “empowered to decide” will act in good faith.