Clemons and McBeth - MavDISK

64
models, expectations, and mental constructs precede and shape our selection of the data we
then process. Is the problem an economic problem, a legal problem, a political problem, or
not a problem at all? Our answer, the names or categories we apply, will affect which questions
we ask and what information we pay attention to. Box 3-2 provides further insight into
the power of ideology by examining the belief in black letter law. This is the common belief
most people have that the law is clear, direct, and free from dispute.
Box 3..i!Black--Letter'Lawr'
In Karl N. Llewellyn's famous work on the legal system, The Bramble Bush (1951), he discussed
the idea that whether or not a particular legal precedent applies is a subjective judgment
that depends on taking a strict or loose view. The "loose" view takes the previous ruling
as established law without taking into consideration the context and specific facts of the previous
case. The "strict" view would argue that very little of the previous case applies in the
here and now of these facts and this case. Llewellyn points out that some precedents are welcome,
and others unwelcome, to the various judges and lawyers involved in the current case.
Students reading Llewellyn are sometimes surprised to consider the idea that precedent (the
legal principle of stare decisis) may be just another subjective tool. Those students are often
even more disturbed by the writings of Jerome Frank.
Jerome Frank was ajudge, a lawyer, and earlier, a teacher. Consider the following points
he made in Law and the Modern Mind (1963):
As the word indicates, thejudge in reaching a decision is making ajudgmenl. Judges, despite
all their professional training, make decisions just like ordinary human beings.
Just as we do, judges come to a conclusion and then work backward to find premises that
will justify their conclusion.
Judges pick and choose which precedents to apply to legitimate their decisions.
The judgments of judges are shaped by their education, race, class, economic background,
political background, and moral prejudices.
Past experiences with "women, or blond women, or men with beards, or Southerners, or
Italians, or Englishmen, or plumbers, or ministers, or college graduates, or Democrats" can
color our judgment.
Something as minor as a smell, a cough, a yawn, or a gesture can decide what the judge
hears, remembers, and believes.
Studies show that given the same set of facts, different judges decide cases and consequences
differently.
Judges decide based on hunchesand are deceivingthemselvesif they think they can ever
escape who they are.
As Kafka's The Trial makes clear, the law is not always what it seems. Jerome Frank's words
make clear that judges are very human. Llewellyn makes clear that precedent is not something
that removes subjectivity from the legal process. More recently, Jonathan Harr's nonfiction novel
(and the movie by the same name it inspired) A Civi/Action portrayed a biased judge whose prejudices
had a huge impact on the outcome of this heart-rending case. Black letter law? Nab.
Sources: Kar] Uewellyn. 1951. The Bramble Bush. Oceana Press, as edited in Before The Law, 6th ed. 1998.
John J. Bonsignore et al. eds.; Jerome Frank. 1963. Law and rhe Modern Mind. New York: Anchor Books Edition,
as edited in Before The Law. 6th ed. 1998. John J. Bonsignore, et aI., eds.; Franz Kafka. 1998. The Trial. Transtion.lated
New by Breon York: Mitchell. Random New House. York: Schoko Books; and Jonathan Harr. 1995. A Ci,'iI Acrion. Vintage Books Edi-
PARTI . THEORY AND PRAClICE CHAPTER3 . CRfTlQUES OF THE RATIONAL ApPROACH 65
Even the decision to measure something reflects certain beliefs. If, after the appearance
of a campus newspaper article on "blow-off' courses, the university or college you attend suddenly
decides to measure how many "A" grades are ending up on the grade rosters its professors
are turning in, it suggests that a problem does exist and that the number of As is common
enough to count. Deciding only to count As also suggests that As are different enough from
B+s to count them separately. It also suggests that the grade inflation "problem" is not at the
bottom of the scale (perhaps it is even OK to give social promotions and what used to be
known as a Gentlemen's C). It may imply that there are questions about rigor in certain
departments and that grades are an accurate reflection of rigor. It implies that the result of this
count may tell us how to resolve the problem: reduce the number of As students receive.s
"Who?" also affects the data in a way perhaps best captured by the NIMBY syndrome.
NIMBY (not in my back yard) reflects the reality that costs are not diffused equally across
society,in a geographicalsense. Toxicwaste incineratorsmay seem a good idea, if they are
located in somebody else's neighborhood. The meaning of the data can even be determined
by where the who? live.
The issue of discounting (adjusting the cost-benefit analysis of a program over time to reflect
the changing value of constant dollars) is another illustration of the power of the who?
to affect data. As with decision trees, discounting plugs a subjective determination by the analyst
into a formula and creates the appearance of an objective and mathematical fact. The
cost-benefit determination is liable to be entirely different if a discount rate of 5 percent is
used rather than a discount rate of 10 percent. (In Chapter 8, "The Positivist Toolbox," we have
a much more substantial explanation of discounting.)
This relates to the last point we will make relating to who?: namely, that different individuals
shape, select, and omit the facts used to make decisions. The Urban Institute studied
welfare reform and noted that differences in how the population leaving the welfare rolls is
defined (e.g., length of time off welfare, the reason they left, if they have stayed off) and how
outcomes like employment are specifically measured, "have led to employment rate differences
of as much as 20 percentage points for the same geographic areas (Brauner and Loprest
1999, p. 3). Braybrooke and Lindblom (1970) point out that "multiple conflicting values are
championed by different participants" (p. 17). It is also worth noting that the way we dress up
our statistics, the facts we place at the top of the page, and the adverbs and adjectives we use
to qualify our findings are reflections of the ideology and interests of the analyst.
To evaluate the preceding argument, consider a pledge to increase funding by 100 percent.
Visualize graphing a 5 percent improvement in funding (from the base) over the last four years,
a total of 20 percent. We drew the first graph using 10 percent increments that go from 0 to
100 percent and that cover the past three years and the next seven years-for a total of 10yearsone
year at a time. We labeled the graph "A Troubled Decade" and wrote the following story
about the funding situation below the graph:
At the current pace of funding increases, it will take 16 more years for funding to reacl1 the target
level, and by thai time inflation will have significantly discounted the value of the funding.
Next, we used 10 percent increments thai go from 90 to 130 percent to compare funding
four years ago, two years ago, and now (it assumes the same funding increases and base). We
'Stone's (2002) chapter on numbers, pp. )63-187. provided the general basis for this example,