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Friday, June 10, 2016

Trump, the Goldwater Rule, and Trading on Authority

It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.

Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.

It's an entirely reasonable professional rule, calling to mind, for instance, Senator Frist's silly long-distance diagnosis of Terri Schiavo. Similar strictures cover dues-paying psychologists. It has always drawn criticism and the Trump candidacy is re-raising the issue, as in this article in FiveThirtyEight. (And here is an earlier, non-Trump-related defense of the rule.) As the article notes, a recent paper in the Journal of the American Academy of Psychiatry and the Law Online criticizes the rule, arguing that it "is not only unnecessary but distracts from the deeper dictates of ethics and professionalism." In part, the authors argue that the rule protects the interests of the profession over the psychiatrist's own moral commitments, and that "psychiatrists have a positive obligation to speak publicly in many circumstances, and the right to speak out in others." The writer of the FiveThirtyEight piece interviewed the author and summarizes it in part like this:

Kroll and his co-author, independent clinical psychiatrist Claire Pouncey, object to the way the rule stifles a psychiatrist’s ability to speak his or her mind. Certainly, Pouncey told me, psychiatrists shouldn’t run around shooting their mouths off about things they haven’t deeply studied. But it’s impossible, she said, to distinguish between the psychiatrist as a professional and the psychiatrist as a person — and that person might feel a very real ethical obligation to talk about their perspective on the mental health of a public figure angling for a position of power over the whole country. “We don’t dispute the spirit of the law,” she said. “But it’s not a real distinction and it shouldn’t be upheld by a professional body.” 

Both articles make some interesting points, especially about the non-enforcement of the rule, which with the rise of Trump's candidacy is going to be violated with increasing alacrity. But--without wanting to exceed my own expertise--it seems like a pretty sound rule to me. I suspect that one should always be suspicious whenever a professional talks about "the deeper dictates of ethics and professionalism." I also think Dr. Richard Friedman, in the Times piece I link to above defending the rule, is right to say that engaging in this kind of long-distance, drive-by diagnosis risks intellectual dishonesty.

The commentaries note that a psychiatrist or psychologist is still free to say certain things publicly, short of offering an individual diagnosis. Perhaps that's a mistake and the rule should be stricter. But at the least it means the rule's bite is not that great. And it does not appear to prevent a mental health professional from "speak[ing] his or her mind." They can do so as citizens; they simply can't do so as professionals, in a way that specifically invokes their supposed expertise to buttress their opinions and phrases it as a genuine diagnosis of an individual. The argument ad Hitlerum, which often is so unhelpful, seems useful here in judging how necessary it is to get rid of the rule. Psychiatrists, psychologists, and everyone else should have spoken out or taken action against Hitler and National Socialism, and taken other actions that have nothing to do with being mental health professionals, such as running for office, protesting, taking up arms, or assassinating him. But a statement like, "If only I had been able to offer a public mental health diagnosis of Hitler, despite never having examined him, all this could have been avoided," is clearly nonsense, and one that betrays a sort of excessive professional amour-propre at that.

It seems to me, then, that what those professionals who have spoken out, either in violation of the rule or arguing for repeal of the rule, want is not to be able to speak their conscience, but to be able to speak their conscience more successfully, by trading on their supposed expertise and authority, even when that expertise is of dubious relevance. They might be able to persuade (or manipulate, or browbeat) people more effectively if they were speaking down to them as "experts," rather than speaking to them on an equal level as fellow citizens. Our society increasingly distrusts professionals, experts, and other authoritative individuals and institutions, but it is still a credentialist society in which expertise and authority carry some additional weight. At the same time, it is one in which many professionals and professional bodies increasingly argue that they should take institutional positions that are essentially political and have little to do with their expertise as such. That's a mistake, in my view, and if professional individuals or bodies are going to make it, they should at least say that they are advocating a specifically political position that has nothing to do with their profession as such or its "deeper dictates."

In any event, the urge to trade improperly and without serious foundation on authority seems endemic, in a way that speaks to the problems with a credentialist society and its abuses. It says a lot about the rather phony use of experts in the news media as a vehicle for reporters to advance some argument rather than making it themselves. It also speaks to the erroneous conviction of many professionals, and many academics, that subject-matter expertise is the same as general intelligence or wisdom, and that because they have a political conviction about some issue that can be phrased conveniently in terms of their expertise, that opinion ought to have some special weight. That is hubris. It also suggests that even professionals themselves think of their professional status as a tool to be used and misused, not as a set of strictures and responsibilities that go along with professionalism and rightly limit the actions of those who take their professional role seriously. This kind of trading on authority is likely to exacerbate rather than reduce the general public distrust of experts, authorities, and institutions, and it should. There are arguments for and against the proposition that Trump's relative success so far indicates a kind of populist or working-class pushback of elites, and I won't weigh them here; but this kind of trading on authority does seem to encapsulate the kind of elite behavior that is likely to produce just such a pushback. 

Problems with trading on authority are in some ways greater, and in some ways lesser or more complex, with lawyers and legal academics. On the one hand, what they have "expertise" in is often closer in substance to politics and civic involvement, and so it's harder to frame a rule of conduct that would limit them too sharply in what they say. On the other hand, and for more or less the same reasons, they engage with great frequency in the public issuance of opinions that are dressed up in authority, yet do not draw in a serious way on any actual expertise. And, again precisely because so many political issues in the United States can be translated into legal terms, and because they are favorite go-tos for the press, they are asked to weigh in as "experts" on various issues far more often than, say, psychiatrists or engineers. Nothing stops them from asking the interviewer to omit their professional status from the description of them in the story, or to insist that the story make clear that they are speaking as citizens and not as experts, and that their opinion is not especially strongly related to their actual expertise. I suppose then they just wouldn't be quoted at all, but that's hardly a bad thing. One might say that readers already understand this and can disregard their opinions, but that just invites the question why the "experts" aren't explicit about it to avoid any misunderstanding--and the answer to that, I think, is that they want to trade on their authority, or perhaps have an overinflated sense of their actual authority and expertise. Legal academics ought to be wary and punctilious about this sort of thing. And the press ought to curb its unhealthy and lazy addiction to quoting law professors, except on questions that genuinely require expert opinion and on which the person interviewed is actually an expert. 

I have in mind as a partial and imperfect example in the legal field the Adam Liptak column last week in the Times on Trump and the rule of law. Mark Tushnet wrote about it last week, twice and in his usual enjoyable way. The story got a lot of Facebook prominence in my feed, unsurprisingly given who my friends are, and more surprisingly (in some ways and not others) got page one play. Headlined "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say," it featured quotes backing up that assertion by what it called "legal experts across the political spectrum." In reality, this meant several politically conservative (by academic standards, anyway) and/or libertarian legal scholars and advocates. With one very important exception, I don't disagree with the general conclusion. And I believe the phrase "rule of law" and "First Amendment" has somewhat more content than Mark thinks it does. He appears to think "rule of law" is an essentially vacuous phrase with "no there there," whereas I think it's a mostly windy phrase with little there there.

Even if there's more there than that there, however, the article didn't really ask difficult questions about the rule of law and, at least on the rule of law questions, didn't actually ask questions that called for any particular expertise about the rule of law beyond that possessed by an average somewhat-informed citizen. There are relevant questions that might call for more careful expert examination and benefit from more expert speculation--specifically, whether and to what extent the larger constitutional, political, and bureaucratic structure will constrain Trump's ability to act effectively in a rule-of-law-threatening manner, in the way summarized by President Truman. A Trump presidency is bound to raise like never before the question whether those who staff the administrative state are creatures of the president or their own institution. I suspect something like uncivil obedience will be a highly relevant concept to executive-branch workers if Trump wins. This question is raised in the column, sort of, but given short shrift and not much expert consideration. Leaving aside the motives and good faith of the people quoted, I think it's hard to read the column in any other way than as one that trades on authority for persuasive purposes in service of the author's goals. That reading is even harder to avoid given the pronouncement that the article is based on discussions with experts from "across the political spectrum," and the contrasting reality that it uses conservative and libertarian law professors and advocates, clearly in order to persuade conservative and libertarian readers of Liptak's column, if any such exist. The piece is essentially a persuasive exercise, and trading on authority is clearly a key part of its persuasive arsenal. 




Posted by Paul Horwitz on June 10, 2016 at 11:35 AM in Paul Horwitz | Permalink


I think there's a more fundamental reasoning issue lurking behind these kinds of restrictions. I'm probably going to fumble this a bit, but I see the distinction as being between making a public statement that is a pure argument from authority/doctrine and making a public statement that is based at least in part upon specific data and warrants drawn from profession/laboratory-standard data-gathering methods (however filtered through doctrine). In a sense, this is an attempt to pretermit Michelson-Morley-type fiascos by imposing a "professional standards" restriction on what can be argued in which forum under which contextual circumstances.

Whether this is "right" or "appropriate" is a separate question for a separate time; it is a rule intended to protect the profession from the consequences of "too many" Dr Oz-type charlatans by shutting up everyone in contexts prejudged as too dangerous. I suppose it could be considered just another "rules versus standards" situation in which a community-favoring rule was chosen; comparison to the military officer combined-rule-and-standard regarding conflicts of interest (roughly, if something appears to be/create a conflict of interest, treat it as an actual conflict of interest unless and until cleared by investigation by a trained and disinterested third party who issues a written clearance) is both instructive and — for those of us who started out as line officers before being corrupted by law school — rather disheartening.

Posted by: C.E. Petit | Jun 11, 2016 10:34:14 AM

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