Lies and B.S.

Several reviews, including articles in the New York Times and Slate Magazine, note the re-publication of philosopher Harry Frankfurt’s essay "On Bullshit" as a stand-alone book.  (Interestingly, the Times’s standards of decency prohibit them from using the word bullshit in print.  I assume readers of a blog about lawyers have less delicate sensitivities.)  According to Frankfurt, bullshit differs from lying because it is entirely unconcerned with the truth.  A liar knows the truth and is trying to create a belief in another person at variance with the liar’s own belief.  A bullshitter, by contrast, is completely indifferent to the truth.  This makes bullshit systematically more dangerous than lies, because liars are at least concerned with perceiving the truth accurately so they can mislead others.  The enterprise of bullshitting, characterized by its blithe disinterest in even investigating the truth, is thus more corrosive of respect for the truth than lying.

Reviewers have tended to focus on the implications of Frankfurt’s essay for public discourse, for example noting the Bush administration’s disdain for the "reality-based" community.  But I predict the lie/bullshit distinction will start to get a lot of play in scholarship on legal ethics.  Of course, there is a lively debate over whether lawyers lie, deceive, or simply put the state to its proof.  As Steve Lubet puts it, trial lawyers don’t, can’t, and shouldn’t have to tell the whole truth.  Interestingly, trial lawyers are quite concerned with the truth, and are not bullshitters in Frankfurt’s sense.  They investigate the facts of a case painstakingly in order to construct a plausible narrative, or trial theory, that strikes the jury as true.  There are fascinating questions about what it means for a story to "ring true" for a jury, particularly where there are multiple narratives consistent with different kinds of truth.  For example, a story about corruption and racism in a police department may be true, but inconsistent with the truth of a defendant having actually committed a particular crime.  But truth is always part of the analysis, so trial lawyers aren't bullshitters.

Although I first read Frankfurt’s essay in graduate school, as part of his excellent book, "The Importance of What We Care About," and have thought about the question of whether lawyers are liars, I haven’t really given any attention to the question of whether lawyers are bullshitters.  The question isn't limited to trial lawyers, but can be asked of lawyers in negotiations, in their relationship with clients, etc.  What do readers think?

Comments

[Dennis Tuchler]

I suppose, then, that the criminal defense attorney who wants to limit what she knows about the crime so that she can put the client and other witnesses on the stand without worrying about violating the rule against putting on perjured testimony is a bullshitter and hence more condemnable on moral grounds than is the person who would put on a defense witness knowing that the latter will lie?

Pardon the long, Geremanic sentence.

dennis

[John Steele]

Dennis:

Some of my favorite Mark Twain quotes come to mind:

"Whenever the literary German dives into a sentence, that is the last you are going to see of him till he emerges on the other side of his Atlantic with his verb in his mouth."

"The Germans have an inhuman way of cutting up their verbs. Now a verb has a hard time enough of it in this world when it's all together. It's downright inhuman to split it up. But that's just what those Germans do. They take part of a verb and put it down here, like a stake, and they take the other part of it and put it away over yonder like another stake, and between these two limits they just shovel in German."

[Raul]

Why isn't there any information on the bloggers who create this site. Do I really have to go look for you on the school website? Do you realize that you don't even say which one of you is at which school? How much initiative do you think I have?

[John Steele]

Raul:

Obviously, we are newbies. Our apologies. Here is the contents of our Februay 17th entry, "Welcome to Legal Ethics Forum."

Welcome to the Legal Ethics Forum. The three authors want to create this comments-enabled site for a discusison of legal ethics, the legal profession, lawyers, and clients.

John Dzienkowski is the John S. Redditt Professor of Law at the University of Texas Law School. Brad Wendel is a professor at Cornell Law School. John Steele is a practicing lawyer who teaches most semesters as a Lecturer at UC-Berkeley School of Law (Boalt Hall). (Please forgive us for adding that nothing we say here should be construed as legal advice or as the opinion of any institution with which we are respectively associated.)

[David Giacalone]

John, I did your work for you in a post at my weblog, with a link to a web bio for each of you http://blogs.law.harvard.edu/ethicalesq/2005/02/26#a3339.

As for B.S. and JD: I am not at all convinced that bullshitting is more corrosive than outright lying -- nor that attempting to distinguish the two has much to do with ethics in a profession that is more concerned with getting the finder of fact to believe a particular tale than with telling the trier of fact the truth.

[Brad Wendel]

I actually had been meaning to post a somewhat longer intro, but figured no one really cared about my biographical information, as long as the posts were interesting. But since you asked, I'm an associate professor at Cornell. I joined the faculty here after 5 years at Washington and Lee. Before becoming a professor, I did defense-side product liability work at a big firm in Seattle, clerked for an excellent judge on the 9th Circuit, and completed a doctorate (JSD) at Columbia in legal philosophy. I have a B.A. from Rice in philosophy and a J.D. from Duke, which is the reason all my exams are set in the fictional jurisdiction of Krzyzewski. I teach the law governing lawyers, have written a textbook on the subject for Aspen, and concentrate my research in applied moral and political philosophy. Lately I've been thinking a lot about the relationship between theories of legal authority and the role of lawyers -- see, e.g., Civil Obedience, 104 Colum. L. Rev. 363 (2004).