Systemic lying.

• Author: Simon-Kerr, Julia
• Position: Deception in the legal system - II. Toward a Theory of Systemic Lying through Conclusion, with footnotes, p. 2208-2233

2. TOWARD A THEORY OF SYSTEMIC LYING

The four case studies in this Article arose in different time periods, social milieus, and moments in legal history; were motivated by distinct sentiments and contexts; and were resolved in differing ways. This diversity of particulars provides both a factual basis and a justification for articulating a broader theory of systemic lying. It is precisely because the practice of systemic lying has recurred over time and in different contexts, yet has significant common features, that it deserves theoretical attention. This Part focuses on the linkages between disparate episodes that have until now been treated as unrelated to offer an explanation for systemic lying's multiple appearances in the legal system. It posits that systemic lying arises in response to stark disconnects between the moral beliefs of the actors in the legal system and the outcomes that would come from adherence to formal legal imperatives. Systemic lying gains purchase in the system only when moral beliefs are both shared and powerful enough that they cause a breakdown of obedience to a central and unambiguous procedural tenet of our justice system--the requirement of truthfulness in the courtroom.

As a mechanism for reducing the dissonance between formal legal outcomes and moral beliefs, it is tempting to seek a way to typologize systemic lying into desirable and undesirable categories. Indeed, many other mechanisms by which legal actors achieve change through extralegal means have been lauded for their ability to produce normatively desirable ends. This Part explores and ultimately rejects the possibility of a typology of systemic lying that does not hinge on a set of moral or normative priors. It argues instead that there is one clear shared benefit of systemic lying: its ability to signal that there is an important dissonance between law and moral beliefs. Finally, this Part suggests that we should not be complacent in the face of systemic lying. Whether we like or dislike the substantive outcomes systemic lying produces, reducing the dissonance between legal and moral norms through disregard of the courtroom oath poses real dangers for the system. It threatens the truth imperative in the courtroom by suggesting that compliance is optional and will be enforced selectively. More broadly, systemic lying represents an affront to procedural justice that has the potential to undermine legitimacy.

1. Systemic Lying as a Response to Moral-Formal Conflict

   Systemic lying arises in response to severe disconnects between a community's beliefs about what is just in a particular case and the outcomes that a strict adherence to the law would produce. Conceptualized another way, systemic lying is a result of misalignments between strongly held community norms and the normative force of the law. Multiple actors within the legal system experience what Leon Festinger first labeled "cognitive dissonance." (174) In the legal context, Robert Cover articulated this phenomenon as the need to confront "inconsistency among consciously held and articulated principles." (175) The actors in the legal system confront a "moral-formal" dilemma. (176) Here, the systemic liars' understanding of what would be just in a particular case conflicts with the mandate that they uphold the law in court. Their "fidelity to the formal system" would "block direct application of the moral or natural law proposition." (177)

   Under Cover's framework, dissonance-reducing behaviors are likely to arise in situations in which actors "must choose among closely balanced, inconsistent alternatives." (178) The actors have strong reasons to choose formal compliance with the law, and equally strong reasons to refuse to comply in order to achieve a just outcome. (179) Cover addresses the dilemma that antislavery judges faced when asked to enforce fugitive slave laws. (180) He explains that judges experienced a conflict between their obligation to "apply[] legal rules impersonally" and their self-image as "moral human being[s]." (181) When confronted with an ordinary case involving some cognitive dissonance, the judge might, without too much trouble, choose "role fidelity" and uphold the law. (182) Fugitive slave cases, however, generated "a more particular dissonance between antipathy to a result that would condemn a man, fundamentally innocent, to undeserved slavery and the knowledge or belief that such an action was required by fidelity to role expectations and rules." (183) The "dissonance reducing" behaviors Cover identifies consist of rhetorical strategies used by the antislavery judges, among them increased reliance on formalism, to reduce the dissonance between their moral beliefs and results required by law. (184)

   Cover's cognitive dissonance study reveals not "judicial civil disobedience," (185) as he had advocated in previous work, but its opposite, judicial formalism accompanied by rhetoric that increased the "moral comfort" of the judges. (186) When Cover's framework is applied to systemic lying, the practice emerges as a dissonance-reducing behavior that falls between strict obedience to the law and overt civil disobedience. The actors pay lip service to the law, as did Cover's judges. But unlike the antislavery judges who ultimately followed the law, systemic lying allows actors to thwart the formal law even as they purport to apply or follow it. The practice of systemic lying thus emerges as a way for legal actors to ameliorate dissonance while maintaining the charade of compliance with the letter of the law. Rather than resort to "naked acts of power" or highlight the "moral reasons for the decision," (187) systemic lying reduces dissonance between legal and moral norms through the more subtle, yet more compromising, act of falsehood.

   Before turning to the problems with resolving dissonance through falsehood, it is worth unraveling more fully how the "moral-formal" (188) dilemmas described in the case studies are ameliorated through systemic lying. Although systemic lying is a product of cognitive dissonance, it differs from the fugitive slave example, in which judges were the primary actors, (189) because it is by definition collective. For systemic lying to take hold, it is not enough for a marginalized or even powerful but discrete group, such as judges, to believe that injustice will result from a strict application of the law. Instead, systemic lying arises only when moral beliefs are both shared and powerful enough that they cause a breakdown of obedience to a central and unambiguous procedural tenet of our justice system--the requirement of truthfulness in the courtroom. Judges, attorneys, and often jury members must all decide that justice demands different outcomes from those that would be produced by fidelity to the facts and the law, and that achieving those outcomes is worth sacrificing the courtroom demand for truthful testimony.

   The fact that systemic lying is a collective enterprise is also an important key to its staying power and functionality. Whereas antislavery judges reinforced their own determination to apply a distasteful law by "ascri[bing] ... responsibility elsewhere," (190) systemic liars gain reinforcement from the perception that shared social norms favor the lie over strict adherence to the law. As a collective enterprise, systemic lying offers a veneer of legitimacy that eases the moral burden of each individual's participation in the practice in multiple ways. Rather than seek justifications for their decisions in formal law, systemic liars have the perceived wisdom of the crowd to push them in the direction of the systemic lie over an adherence to the formal demands of truthfulness. (191) Just how that collectivism works to reinforce the practice is complex, but the knowledge that others have made the same determination offers a degree of "moral comfort" to the systemic liar that must be acknowledged in an account of the endurance and expansion of systemic lying. The rhetoric employed by attorneys in pious perjury cases supports this notion. As the Scottish barrister described above argued to his jury, they could take comfort in knowing the practice was "quite familiar, done daily with the acquiescence of courts, and neither entailing reproach on juries among their neighbours, nor exposing them to the censure of their legal superiors." (192)

   Even as it suggests a forceful moral consensus, the group dynamic of systemic lying may also allow the practice to detach itself from its moral groundings. Cass Sunstein and others have suggested that in situations in which group members follow practices established previously within a group, the group mentality can take on its own force to the exclusion of individual members' beliefs. (193) Thus, the collective nature of systemic lying may at some point strip participants of their own moral agency, impelling them to comply with a specific systemic lying norm based on their group membership rather than on any judgment about the substance of the practice. Sunstein argues that this phenomenon is an important caveat to the idea that there is invariably wisdom in crowd decision making; crowds can move in perverse directions because of their inclination to follow the leader. (194) Although any given instance of systemic lying reflects a group reaction to dissonance between legal norms and moral norms, there may be a diminution in the degree to which subsequent actors engage in the moral calculation involved in choosing the lie over imperatives of truth in the courtroom.

   Systemic lying is therefore a more complicated phenomenon than the response of one actor to a "moral-formal" conflict. The case studies suggest that, at a minimum, systemic lying may arise when the law has lagged behind evolving moral beliefs, when the law changes ahead of those beliefs, when the system confronts a particularly difficult question--such as a so-called "Dirty Harry problem"--or when...