How to start a race to the bottom

Did you hear the latest news from the courts? They’re overhauling the rules for legal arguments in front of a jury. The rules for lawyers will be much looser. Want to ask a witness an irrelevant question? One that lacks foundation? One that the witness has already answered, but you didn’t like the answer? Want to skip the questions and just testify to the courtroom on behalf of your side? Go right ahead!

The other side can object, of course, and the objections will be noted for the record. But then the questioning, or testifying, can go on as if nothing happened.

Badgering the witness? Go for it! Hearsay? No problem! Lay witness testifying about a subject he has no expertise in? Let the jury beware!

Expert witnesses also need no particular qualifications any more. If the witnesses are good enough for one side, they’re good enough for the court. It’s strictly He said, She said, from here on out. The court will not attempt to instruct the jurors regarding which witnesses are credible or have genuine expertise. Jurors will be on their own regarding whom to believe.

OK, relax. I’m just kidding. This isn’t going to happen. But if it did, it would be a disaster. Lawyers would race to the bottom to use underhanded tricks to con jurors onto their side. Truth and evidence would largely go out the window. It’s widely known that the legal rules of evidence and argument are there to prevent just such a disaster, and there is no massive wrecking ball on the horizon headed toward destroying these rules.

OK, don’t relax. Indeed, low-grade panic would be appropriate. This isn’t going to happen to the courts, but it has already happened to the press. The mainstream US print, radio, and TV media, with the exception of a few open partisans, treat “objectivity” as if it demanded a courtroom without any rules. More precisely, with only one rule: that “both sides” will get a chance to speak. And never mind how the number of sides gets magically reduced to two. Journalists have become stenographers or videographers. Fact checking is relegated to a special segment, if it exists at all. And news outlets are embarrassed if some important figures are found to be stating falsehoods on a regular basis, especially if that looks “unbalanced”.

In recent years there has been a lot of well justified hand-wringing about our post-truth society. “How did we get here?” authors ask. To me the mystery is rather: why did it take so long?

(Hat tip: Brian Leiter for the courts analogy.)

4 responses to “How to start a race to the bottom

  1. “Lawyers would race to the bottom to use underhanded tricks to con jurors onto their side. Truth and evidence would largely go out the window.”

    Kind of already the case. I’ve been railing against anti-intellectualism for over 40 years. The chickens have come home to roost.

    I just read an article where the author suggested that America, not only doesn’t have, but never developed, a culture of intellectual rigor. The author attributed it to capitalism, which requires a buying market that doesn’t think too much about stuff. Not sure about the capitalism link, necessarily, but it’s been on my mind that America never developed a culture of intellectual rigor (or appreciation of fine arts, which I feel is related).

    Liked by 2 people

  2. Ooooohhh, the press…don’t get me started…I can’t even stand PBS anymore. It’s so blatantly biased it makes me mad, even if I do generally agree with its biases.

    One time while I was on a road trip heading back home, I decided to stop in Eldorado TX to see in person what was going on with a news story I’d been following about the FLDS. At that time the local TX authorities had just taken all the children off the FLDS compound into state custody, and since the group is polygamist, the children’s birth parents had to be sorted out through genetic testing. When I saw a cluster of reporters standing around by a courthouse, I got out of the car and pulled out the video camera, which I happened to have with me, and claimed to be “independent press”.

    Pretty interesting to see how reporters operate. They knew less about the situation than I did, but they were super friendly and supportive of each other…which you kind of have to be if you’re lazy as hell. I ended up telling them things they had no idea of, things you can find out through a quick Google search. Like the fact that the phone call to the police claiming the children on the compound were being abused came from a prankster in Colorado,—not Texas!—apparently a mentally unstable woman who had done this sort of thing before. These journalists had never thought to look at the local sheriff’s website either, because if they had, they would’ve known he, a fundamentalist Christian, had been out to get the FLDS for a long time. Instead the journalists went with the story that the FLDS were a bunch of weirdos/abusers who had it coming…maybe they are, maybe not. At any rate, I found their laziness astonishing. And why in the hell were they listening to ME? They were gathering around me and taking notes as if I were a reputable source!

    Anyway, the whole thing’s so sad. What’s sadder is, we—the audience, I mean—are in great measure to blame.

    Liked by 1 person

    • That’s another failure mode that I neglected. That one’s going to get worse as more news moves online and news organizations cut back on expensive actual reporting in favor of cheap copying of other cats. Of course copycatting has always been cheap, but now it’s quicker and more thorough.

      Liked by 2 people

  3. Pingback: Who will count the votes | No ghost, no machine, only human

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