One Day U Note:
Insiders & Outsiders
The second of the lectures at the 19 July session of One Day University here in New York, delivered by Stephanos Bibas, a professor of law at the University of Pennsylvania Law School, did not promise to teach me anything that I hadn’t learned in Criminal Procedure, the first-year law course that Mr Bibas teaches now. But “Law and Justice in America — A 250 Year History” had nothing to do with the intricate pleasures of law school. If anything, it was a presentation befitting a courtroom — not surprising, perhaps, given the Mr Bibas’s experience as a federal prosecutor. “When ninety-five percent of criminal charges are disposed of by plea bargains,” he intoned, “the criminal justice system is broken.”
That may sound like a vaguely interesting topic to you, but Mr Bibas placed it within such a soundly-based historical context that he wound up explaining a great deal more than what’s wrong with criminal justice in America.
Briefly, his talk traced the development of American justice from a rough-and-ready amateurs-only affair into the ultra-professional system, both alienated and alienating, that we have today. Colonial justice could not afford to be alienating: most defendants were sources of necessary muscle-power, who needed to be punished quickly and restored to the community. We could probably devise no more eloquent mode of informing our prison population of its superfluity than by means of the penal system already in place. And almost everything that we know about prisons underlines their pointlessness as punishment: while nobody wants to have spent a week in jail, five years is very different story. Aftger five years, you come out a man who can take anything.
But the tug of war between laymen and professionals was Mr Bibas’s central theme. Laymen want to see justice done, and laymen who are not invested in the system tend to think only of justice, and never of mercy. Professionals, in contrast, want to keep the system working. They want to process a workload that is not, after all, their doing.* The laymen of Colonial America were rightly unaware of a system in the first place; they participated in the handful of cases (at most) to which they were parties or for which they were witnesses. They neither knew nor needed to know case law. The development of a legal profession in the United States was the inevitable consequence of independence, as hitherto “big” cases could no longer be deferred to Westminster. But our nineteenth-century forebears seem to have been enthusiastic about clearing crime and its punishment from public view. It was only in the wake of the civil rights revolution of the 1960s that Americans openly wondered whether the justice system was doing its job — that is, meting out popular justice. Evidence suggested that it was not. White Americans perceived a system skewed to protect the interests of blacks and other minorities. Crimes that were forgivable in their own kind were little less than damnable when committed by others. They have attempted to strike back, or at least to re-establish their standards of justice, with such ultimately wrong-headed legislation as the “Rockefeller” drug laws, “three strikes and you’re out,” and “Megan’s law.”
I have already, in the last paragraph, wandered from Professor Bibas’s lecture. I don’t think that he would disagree with what I’ve said, but the fact is that he did not attibute changes in lay attitudes toward legal professionals as I have done. And that is my point. It was an extremely fertile lecture, and, with me, it has not stopped growing, or even slowed down. Nearly a month later, I see that it may have handed me the key to the thorniest conundrum that I’ve tried to solve: the nature and role of élites in America.
Professional insiders — lawyers, doctors, lawmakers, educators — are the core of the American élite. In a broader, vernacular sense, the élite comprises the rich people who are the professionals’ best clients, together with the families of the rich and the professionals; but it is the professionals who keep the system running, and who seem, in this country at least, to be all but professionally blind to the discontent of laymen. This blindness is the problem of élitism in America. Élitism itself is not, and cannot be, a problem; professional élites are an inevitable and invaluable consequence of human specialization. Here we may cite the frequently mentioned example of aircraft engineers, who form an élite that, it is often said, no sane passenger wants to replace. But if laymen submitted to the myriad indignities of air travel today don’t curse the engineers who designed their iron maidens, that may be because they have plenty of other professionals to be angry with, to wit the phalanx of flight crews and ground controllers who would sooner die than speak candidly about a snafu. Professional engineers would probably be just as maddeningly reticent about the structural integrity of their designs, if the lay public had any contact with them.
If this were a piece of conventional journalism, I would insert at this point several well-polished anecdotes illustrative of the proposition that, while professionals in one field may resent incoveniences encountered in another field just as much as any laymen, they resent them differently, as if from the inside. “Lay” professionals — doctors in court, lawyers on holiday, lawmakers at the dentist’s — have a fairly good idea of what professionals-in-charge are up against (or they think that they do), and the most effective way to salve their grievance is to let them in on a professional-sounding explanation for the problem. They won’t ask to know the details; they’ll just want assurance that the matter is being dealt with “professionally.” And they’ll be able to tell when they’re being gulled. In a population of professionals, not only would be explanations be more readily forthcoming, but professionals-in-charge would feel a much stronger pressure to be accountable. In short, we would enter that paradise of “transparency” that is today’s Beulah Land.
The point on which “lay” professionals and professionals-in-charge will agree most fevently is that plain laymen — people with no professional training in any field — cannot be made party to professional explanations. “They won’t understand.” And that is probably true, insofar as we’re talking about the kind of shorthand in which professional explanations are likely to be made. Laymen who have fallen into the margin of error will certainly balk at professional tolerances. But, as Mr Bibas’s presentation of the tug of war between insiders and outsiders made clear to me, professionals in a democracy must do a better job of rendering their codes of practice and conduct intelligible to laymen. That obligation is clearly non-negotiable.
It is at this point that my response to Stephanos Bibas’s One Day University lecture on justice in America takes flight, borne on the wings of a strange new book, Richard Sennett’s The Craftsman. I call the book strange now, hoping that it won’t be strange for long but mindful of the difficulty of digesting Mr Sennett’s very brief, somewhat unexpected, and occasionally impressionistic study of the difference between labor and craft and the similarity between craft and art. The danger of books such as Mr Sennett’s is that they raise so many ideas and suggest so many connections that a reader is bound to be tempted into incoherence, but I think that an extract from The Craftsman will set things straight.
In sum, there are sociable ways and antisocial ways of being an expert. Sociable expertise addresses other people in their unfolding prospects just as the artisan explores material change; one’s skill at repair is exercised as a mentor; one’s guiding standards are transparent, that is, comprehensible to nonexperts. Antisocial expertise shames others, embattles or isolates the expert. Invidious comparison can result in losing of the content of quality. Of course, inequality is built into all expertise, in carpentry and in cooking as much as in science. The question is what to make of that difference. Whereas invidious comparison has a strongly personal character, the sociable expert is less obsessed with vindicating himself or herself.
Perhaps I spoke rashly: a good deal in this passage (such as the reference to repair) refers to extended discussions earlier in the book, in which this extract comes near the end. (And I am not sure that there is not a typo of some sort in “losing of the content” But Mr Sennett makes a clear and very useful distinction between the expert who wishes to make himself understood and the expert who doesn’t. And he has no difficulty showing that the sociable expert is the better for his transparency, not just because transparency is a good thing but because it works both ways.
At the bottom of The Craftsman is a repudiation of the idea that insiders have nothing to learn from outsiders. Mr Sennett’s terms are different, but they function in the same relationship. Professionals — élites — need to overcome the notion that they know best, when in fact they only know better — on a continuum with the layman’s knowledge, not in an unbridgeably superior way. I don’t think that it would take Stephanos Bibas to concur wholeheartedly.
If nothing else, you’ll gather from this, I hope, that I “got something” out of One Day U!
Although prosecutes enjoy great discretion in deciding whether to bring criminal charges, they cannot decline altogether to bring them.