What We’re Vacillatin’ Be-tweeeeen

Getting a good handle on the available options.

The New York Times once again revived the canard last month that Ronald Reagan won the presidency in 1980 by conspiring to prolong the Iran hostage crisis, touting the revelation of a “four-decade secret” about a trip with a “clandestine agenda.” It’s abject, conspiracist nonsense.

We are equal-opportunity fabulists and conspiracists, irrespective of politics, social standing, education, or status.

Today’s polarized reality, with media subscribers demanding what they want to read, see, and hear (Fox: “We report what you decide”), makes getting to the best possible approximation of the truth an increasingly aspirational endeavor.

The best thing I read this week (see below) discussed that issue. This week’s TBL comes at the general problem from a different angle.

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“Advances are made by answering questions. Discoveries are made by questioning answers.”

~ Astrophysicist Bernard Haisch

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What We’re Vacillatin’ Be-tweeeeen

When I was a first-year law student at Duke (an astonishing – to me, at least – 45 years ago), my Civil Procedure professor was the delightfully named J. Francis Paschal. Professor Paschal seemed to like to portray himself as a bit of a good ol’ boy, with a protruding gut, truly dreadful, wild sports jackets and ties, hair slicked and parted just off-center, and a drawl as thick as molasses on a cold day (if not nearly so sweet). That image could not mask a keen mind and a sharp wit. Nor did it hide his erudition – in addition to his credentials in the law, Professor Paschal had a Princeton Ph.D. in the classics.

The good professor led his classes using the Socratic conventions of the day. A student was called upon to answer a series of penetrating and perplexing questions supposedly designed to ferret out the nuances of some legal principle or another but which, in truth, served to demonstrate to a class full of bright and full-of-themselves college graduates that they were out of the minors and into the intellectual big leagues. If we were going to compete at that level, we needed to up our collective game considerably.

One day, fairly early in the first semester, Professor Paschal called on a woman in the row ahead of me (who I shall kindly refer to – using a pseudonym since she became a prominent government attorney – as “Rhoda Clancy”) and asked her a typically impossible question. Since Rhoda was a friend, I happened to know that her extremely difficult predicament was truly and utterly impossible because she was not prepared for class. In fact, it wasn’t just that she wasn’t fully prepared (meaning that she had read the required case, all the cases cited therein, the case comments, casebook notes and citations, relevant hornbook and law review materials, and anything else we could think of that might be relevant). She wasn’t prepared at all. She hadn’t even read the case at issue.

This was not likely to turn out well.

After Professor Paschal had posed his complex interrogatory, as was his wont, he leaned into his lectern, smiled grimly, and peered at Rhoda with a look that seemed a mixture of bemusement and contempt. The pause was as deafening as it was long. Finally, Rhoda stammered out a sort-of reply.

“I-I-I’m n-not sure.”

The following pause was longer still. Professor Paschal leaned further into the lectern (if that was possible) and placed his right elbow thereon while resting his chin on his hand, head cocked to one side. A thin smile insinuated itself into at least one corner of his mouth.

“Weeell, Miss Clancy,” he bellowed, “you might begin by tellin’ us jus’ what it is you’re vacillatin’ be-tweeeeen.”

Professor Paschal was a brilliant troll, although the term wasn’t invented yet, and he was merely twisting his knife into the intellectual self-importance of his youthful victim. It was a game, after all. A challenging and perhaps beneficial game, but a game nonetheless.

He also had a point.

Good lawyers must be able to argue both sides of any case. Identifying the strengths and weakness of the matters at issues allow for a better understanding and for the preparation of countermeasures.

We would all do well to understand and give a fair hearing to a variety of ideas and viewpoints in all matters of significance. We should carefully consider all reasonable possibilities and adjust our thinking as appropriate.

As if.

Historically, fundamentalism was an ecumenical Christian movement in North America premised upon certain basic truths all orthodox Christians shared. It was outlined in a series of tracts written more than a century ago called The Fundamentals. Over time, the idea evolved and developed generally to denote strict adherence to any set of basic ideas or principles or, in the words of the American Heritage Dictionary, “a usually religious movement or point of view characterized by a return to fundamental principles, by rigid adherence to those principles, and often by intolerance of other views and opposition to secularism.”

In my view, all fundamentalisms share a very narrow epistemology. Christian fundamentalism is based upon the idea that the Bible + common sense = readily ascertainable truth. Other fundamentalisms, religious and secular, share similarly narrow epistemologies. In each case, the emphasis is on the readily ascertainable part, with the capital-T Truth deemed so obvious that those who disagree aren’t just in error, they’re evil, or damned, or irrational, or delusional, or mentally ill or, or, or.

This fundamentalist mindset isn’t at all humble and rejects the idea that being wrong is even a remote possibility. Moreover, and most (a-hem) fundamentally, those who disagree are deemed inferior – and that idea is incredibly dangerous and not terribly constructive, as history makes ever so clear.

This sort of fundamentalist rarely sees difficult questions. And today’s world seems chock-full of fundamentalists.

On the other hand,…

…I see the evidence as demonstrating that there are many, many exceedingly difficult questions, personal, moral, ethical, religious, economic, political, and otherwise. Many are indeed fundamental.

Who should I vote for? Where should I go to school? What career should I undertake? Who should I marry? What kind of parent should I be? Should I change jobs? Can we cure cancer? Poverty? Drug addiction? General sadness? Should I buy a house? This house? Will the study replicate? Are my Padres ever going to hit?

Should I stay or should I go?

Many situations and problems call for careful study and analysis, and sometimes what the 16th-century Spanish mystic and poet St. John of the Cross called a “dark night of the soul.”

But that’s not what usually happens. We’re more likely to fire up the Google machine and glom onto the first (algorithmically determined) answer that confirms what we already think.

Unless we just “know” and don’t need to consult the authorities.

We don’t bother to hear, study, or consider opposing views often enough or well enough. Instead, we often stay hunkered down in our echo chambers, with social media algorithms helping to guide us there and keep us there via filter bubbles.¹

The “filter bubble” concept was coined by internet activist Eli Pariser, who wrote a book with that title in 2011 to argue that “democracy works only if we citizens are capable of thinking beyond our narrow self-interest. But to do so, we need a shared view of the world we coinhabit. The filter bubble pushes us in the opposite direction – it creates the impression that our narrow self-interest is all that exists.”

Research by Eduardo Graells-Garrido (Universitat Pompeu Fabra in Barcelona), Mounia Lalmas, and Daniele Quercia (both of Yahoo Labs) suggests that it may be possible to counteract it. They built a recommendation engine that pointed people with opposing views on sensitive subjects but other common interests towards each other on social media based upon their own preferences, resulting in exposure to many more viewpoints than they would get otherwise. Because this approach is based upon their own interests, users even end up being satisfied with the results. Other research has found similar possibilities.

This research, together with practical reality, has caused many institutions and organizations to push and proudly proclaim that they encourage good faith inquiry, discussion, and dissent as part of their decision-making processes and workplace. For example, as Pro Publica and This American Life reported at the time, after the 2008-2009 financial crisis, the New York Fed commissioned a study of itself and its processes to try to understand why it hadn’t spotted the behavior of the big banks that led to the crisis. The key conclusion was that its “company” culture was at fault.

The study asserted that, over time, the Fed had become too risk-averse and deferential to the banks it supervised (shocking, I know). Even worse, its examiners feared contradicting their bosses, who too often forced their findings into an institutional consensus that watered down much of what the “boots on the ground” regulators did, perhaps because they wanted to land a cushy banking job in the private sector when their “public service” was complete.

Instead, the study called for the Fed to hire “‘out-of-the-box thinkers,’ even at the risk of getting ‘disruptive personalities.’” It called for expert examiners who would be contrarian, ask difficult questions, and challenge the prevailing orthodoxy. Managers should add categories like ‘willingness to speak up’ and ‘willingness to contradict me’ to annual employee evaluations. And senior Fed managers had to take the lead.”

Congress soon gave the Federal Reserve even more oversight authority and the New York Fed began hiring specialized examiners to embed within the too-big-to fail banking institutions, those that posed the most risk to the financial system.

One of the expert examiners it brought in was Carmen Segarra (more here and in her book, Noncompliant).

Segarra appeared to be exactly what the supposed new culture required. She was an aggressive attorney with impeccable academic credentials and much experience in compliance. The New York Fed embedded her at Goldman Sachs.

She was fired within seven months, after she refused to ignore Goldman’s lack of a mandated conflict-of-interest policy, despite her bosses insisting that she should. She sued for damages and to get her job back. A federal judge threw out the case without ruling on the merits, a decision that was affirmed on appeal, because, while the Fed had issued an advisory letter requiring such a policy, that letter was determined not to have the force of law, as the whistle-blower statute required.

Notwithstanding Segarra’s inability to secure a legal remedy, one of the case documents disclosed a stunning fact, one that documented some stunning revelations: She had made a series of secret audio recordings on the job. Worried about what was going on, Segarra wanted a record in case Goldman or her bosses disputed what had happened. She purchased a tiny (for the time) recorder at the prosaically named Spy Store and began capturing audio of what took place.

The recordings demonstrate that the cultural obstacles the Fed said it was committed to overcoming remained almost three years after insisting that was where they were headed. They portray a New York Fed that wouldn’t push against Goldman and was struggling to define its authority while integrating Segarra and a new corps of examiners into a recently reorganized supervisory scheme.

Segarra was surely a polarizing figure, largely because she was, like many women, unfortunately, deemed too outspoken and direct about the issues at hand for both Goldman and the Fed. Some colleagues found her abrasive and complained.

Segarra’s boss repeatedly tried to persuade her to change her conclusion that Goldman was missing a conflicts policy. She offered to review the evidence with senior management and explained that she would accept being overruled once her findings were submitted, but she wouldn’t ignore the lack of a policy and wouldn’t “sweep it under the rug.” She refused to compromise on the facts.

She was fired for it.

Had the Fed wanted to fix this cultural problem, as Michael Lewis pointed out, it “would instantly have set out to hire strong-willed, independent-minded people who were willing to speak their minds, and set them loose on our financial sector.” Like Carmen Segarra.

It should have been an easy decision, especially because it’s so easy to go along to get along and so hard to counteract. However, quite apparently, the Fed didn’t do a very good job of implementing the recommended changes, if it even tried.

It made the (cosmetic?) hires but wouldn’t back the new folks up when their authority and the status quo ante were challenged.

As regular readers are well aware, there is a wide body of research on what has come to be known as motivated reasoning and its flip-side, confirmation bias. Confirmation bias is our tendency to notice and accept that which fits within our preconceived notions and beliefs, while motivated reasoning is our complementary tendency to scrutinize ideas more critically when we disagree with them than when we agree. We are similarly much more likely to recall supporting rather than opposing evidence. Upton Sinclair offered perhaps its most popular expression.

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

According to Daniel Kahneman, organizations are more likely to succeed at overcoming bias than individuals. That’s partly due to resources, and partly because self-criticism is so difficult. Perhaps the best check on bad decision-making we have is when someone (or, when possible, an empowered team) we respect sets out to show us where and how we are wrong. Within an organization, that means making sure that everyone can be challenged without fear of reprisal and that everyone (and especially anyone in charge) is accountable.

Even (especially!?) at the Fed.

But that didn’t happen at the Fed and doesn’t happen anywhere very often. Kahneman routinely asks corporate groups how committed they are to better decision-making and if they are willing to spend even one percent of their budgets on doing so. Sadly, he hasn’t had any takers yet, so far as I know. Smart companies should take him up on that challenge of course. So should the Fed.

So should we.

In addition to the challenges outlined above, individuals also face the most pernicious of the various behavioral and cognitive difficulties we all face – our tendency to think that such common foibles don’t apply to us personally. That’s why overcoming these inherent weaknesses is so beguiling.

If we are to have any chance of making better decisions, we need to have a richer and more complete understanding of the various questions, issues, and opportunities we face.

We need a fuller comprehension of jus’ what it is we’re vacillatin’ be-tweeeeen.

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Totally Worth It

Feel free to contact me via rpseawright [at] gmail [dot] com or on Twitter (@rpseawright) and let me know what you like, what you don’t like, what you’d like to see changed, and what you’d add. Praise, condemnation, and feedback are always welcome.

Of course, the easiest way to share TBL is simply to forward it to a few dozen of your closest friends.

I had the privilege of seeing the following live. Thanks to the readers who sent it to me. Brilliant.

A better way of listening to classical music.

You may hit some paywalls herein; many can be overcome here.

This is the best thing I read or saw this week. The funniest. The most absurd. The best thread. The best analysis. Decent argument. Obvi. Ahead of the curve. “Who needs a glove?” Twitter. More Twitter. Quite the Boy Scout project.

Please send me your nominations for this space to rpseawright [at] gmail [dot] com or via Twitter (@rpseawright).

In 1972, Joe Biden, then 29 years old and a local Delaware councilman, was running against incumbent Republican Sen. Cale Boggs, who was 63 years old, a former two-term governor, and the state’s senior senator. Biden attacked him for his age: “Cale doesn’t want to run, he’s lost that old twinkle in his eye he used to have,” he said of Boggs.

The TBL Spotify playlist, made up of the songs featured here, now includes over 260 songs and about 20 hours of great music. I urge you to listen in, sing along, and turn up the volume.

My ongoing thread/music and meaning project: #SongsThatMove

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Benediction

To those of us prone to wander, to those who are broken, to those who flee and fight in fear – which is every last lost one of us – there is a faith that offers hope. And may love have the last word. Now and forever.

Amen.

Thanks for reading.

Issue 151 (April 28, 2023)

1. An echo chamber is what happens when we only seek out news and views we like or agree with, potentially distorting our perception of reality. Filter bubbles are imposed upon us, as with Twitter’s feed.