Dershowitz on Wrongness, Law, Truth and Goldman Sachs
If you haven't read Kathryn Schulz's interview with Alan Dershowitz at Slate, you should. It's the first in a series of interviews about "wrongness," which is the subject of Schulz's book, "Being Wrong: Adventures in the Margin of Error."
(The interview is actually posted in two parts, and I've linked to the second, which deals more directly with error and its effect on law. Here's a link to part one.)
In the interview, Dershowitz, not known for being shy, states unequivocally that the law ain't necessarily designed to figure out the truth:
The law is agnostic about truth. It's very skeptical of ultimate truth.
That's why freedom of speech permits lies to be told. Most liberal
democracies don't try to figure out what the truth is. I would be very
upset if my country, like Hobbes, decided there was truth. Hobbes said
that one of the obligations of those who govern is to censor lies,
because those who govern have unique access to the truth. That's not the
As a timely example of the law being shaped by wrongs, Dershowitz cites the Goldman Sachs case:
So Goldman Sachs does something terrible. They get a man who was betting
against certain bonds to pick the bonds for a fund that's betting in
favor of those bonds. There's one problem: Although we know it's
terrible and it doesn't pass the smell test, it happens not to be
against the existing law, because it's such a clever technique that no
one else thought of it. You can't anticipate all possible mistakes or
evildoing that people can come up with. So in the end we may have to
give Goldman Sachs a pass on this one and use their terrible mistakes as
a basis for passing new legislation.
Once we modify the law to bring it even with our sense of what's right, though, those intent on doing wrong will just evolve further:
And then people like [hedge-fund manager John] Paulson will figure out
ways of evading the new legislation, because the bad guys are always a
step ahead of the good guys. They're always cleverer; they have a
Dershowitz also says that if a criminal defense lawyer ever becomes comfortable with his work, he should get out of the business, and shares his nightmares about getting a client acquitted only to have him "do it again."
It's a good read. And come on, it's Friday. Take some early weekend time for yourself.
Posted by Eric Lipman on May 14, 2010 at 02:45 PM | Permalink
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