{"id":50776,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/can-stereotyping-and-profiling-ever-be-good-things.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"can-stereotyping-and-profiling-ever-be-good-things","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/can-stereotyping-and-profiling-ever-be-good-things.html","title":{"rendered":"Can Stereotyping, and Profiling, Ever Be Good Things?"},"content":{"rendered":"\n
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Can Stereotyping, and Profiling, Ever Be Good Things?<\/h1><\/span>
A Review of Frederick Schauer’s New Book on the Virtues of Generalization <\/span>
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By MATT HERRINGTON <\/h2>
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Friday, Apr. 02, 2004
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\tBlake said that to generalize is to be an idiot. But Burke defended stereotypes as the wisdom of the ages. <\/p>

Harvard’s Frederick Schauer, author of Profiles, Probabilities and Stereotypes<\/u>, sides with Burke and is the champion of, as he puts it, painting with a broad brush. <\/p>

I am generally against the wittingly iconoclastic, so I came to this book with some considerable skepticism. But Schauer is the real deal. This is a very provocative and interesting book. It is ideal book club material.<\/p> <\/b>

Framing the Philosophical Issues Schauer Discusses<\/p>

\tBurke and Blake were relative latecomers to the debate between particularism and generalizations. It was actually Aristotle and Plato who first framed the two issues that animate Schauer’s book. <\/p>

Let’s say our goal in arranging our society’s affairs is complete (or, as one sometimes reads, thick) justice. It would be nice to have a perfectly just philosopher king (or queen) who would resolve every tough question that arose with incisive and thoughtful analysis. But such people are hard to find, and the transaction costs of such individuated decision making are considerable, and there is a lot to be said for knowing in advance how things will work out. <\/p>

Thus, humans have tended to adopt rules – and a rule is just one name to give to a generalization. But it is in the nature of rules that there will be circumstances where the rule produces a suboptimal, or even unjust, result. <\/p>

Thus, as Aristotle would have it, if we really want justice, there must be not only rules, but also a discretion-based system to correct for the inevitable errors that the strict application of the rules will produce. <\/p> <\/b>

Rule-Based Versus Discretion-Based Systems: A Tug-of-War<\/p>

\n\nIndeed, the course of history can be written as a tug of war between rule-based and discretion-based methods of organizing and controlling human behavior. Lately, rules are crowding out discretion, and Schauer is all in favor of that. <\/p>

As Schauer writes, there was once a time when the courts of law, on the one hand, and the courts of equity, on the other, were together a perfect embodiment of the Aristotelian conception of how rules should work. Law courts enforced the laws as written, while equity courts had general and broad-ranging powers to exercise the king’s discretion. Thus, when the law was an ass, as the saying goes, one could appeal to the chancellor sitting in equity to set things right. <\/p>

This model has not flourished, to say the least. In America — notably, in Delaware — there are still jurists who call themselves chancellor. But at this stage, the law-equity distinction is nothing more than a vestigial rhetorical flourish. <\/p>

For Schauer, that’s just as it should be — for law is, in his view, virtually always preferable to discretion. And similarly, strictly-enforced generalized rules are, in his view, virtually always preferable to discretionarily-granted exemptions. <\/p> <\/b>

Legal Generalizations: Are They an Evil, Or Just Not Transparent Enough?<\/p>

Schauer’s core argument in defense of his position is this: We all use generalizations all the time, whether we acknowledge them or not. So we will all be better off if we are honest about the generalizations we are using, and if we give close consideration to the propriety of the constituent elements of the analytical shortcuts we have created for ourselves. <\/p>

The much-maligned profiler is the perfect illustration of this point. People, and some courts, have a very negative reaction to “profiling” — selecting people for additional scrutiny based on a checklist of pre-determined characteristics. After all, it is part of the American ethic that the government should generally keep its mitts off unless you have actually done something – merely looking like you might<\/u> do something is not enough. <\/p>

But the reality is that in any law enforcement environment — whether we are talking taxes, immigration, or terrorism — some sampling technique is going to have to be used. <\/p>

If you bite into every<\/u> brownie to make sure it tastes right, you end up with no brownies to bring for snack, as I discovered on the way to my 3 year old’s school one day. Just the same, every person crossing an international border cannot be thoroughly scrutinized and every tax return cannot be audited; but some subset must be. <\/p> <\/b>

Profiling Made Public: Is Profiling Less Objectionable If the Rules Are Clear and General?<\/p>

So how do we decide – or how do we empower law enforcement to decide – what tax returns to audit, and what travelers to question? <\/p>

The choice is really the same as law versus equity: you can have a rule-based system of channeled discretion, or you can have a highly-empowered individual making gut calls. <\/p>

Here is the important point: Back before the profile was written down, the Customs officials at the borders were already<\/u> employing rules of thumbs and generalizations. <\/p>

The only thing that has changed is that there is now transparency in the process. And that is a good thing.<\/p> <\/b>

If Transparent Profiling Is Desirable, Can One of the Factors Be Racial?<\/p>

\tOnce the factors used are made explicit, they can be examined: Do people up to no good disproportionately travel on one-way tickets? The answer is yes. <\/p>

Do they disproportionately buy those tickets with cash? Yes again. <\/p>

Are they disproportionately young men? For sure. <\/p>

Are they disproportionately minorities? That one is not so clear, but let’s assume the answer — empirically, as a matter of research — is yes. <\/p>

We can then say these four factors have an empirical basis for being in our profile.<\/p>

Schauer’s next step is to ask whether they should<\/u> be included, and on race, he essentially fudges, which is probably the right thing to do. <\/p>

There may be a solid empirical argument that including race as a factor is not a good idea because it tends to crowd out the other factors. And of course, there are several different non-empirical arguments to be made on this point — arguments about the pernicious effects of choosing people for special scrutiny based on race. <\/p> <\/b>

Schauer’s Point: Transparency Allows Conscious<\/u> Choice Among Profiling Systems<\/p>

The important thing for Schauer is not that we decide the racial profiling question one way or another, but simply that we ask that tough question and answer it as a society. <\/p>

Romanticizing the cop on the beat and pretending that his “sixth sense” was anything but a non-explicit profile is just sticking our head in the sand. Equally important for Schauer is that consideration must be given to what the trade-off is. Whose ox is being gored?<\/p>

When we profile by race, the burden falls disproportionately on the minority population being singled out. But what is the alternative? <\/p>

Is it crime (bad guys get away) or is it merely increased transaction costs (all people have to go through metal detectors)? <\/p>

While it may be necessary to trade some measure of equality for security; should any measure of equality be traded for mere convenience? <\/p>

These are the right questions, and they are tough questions, especially in the current security environment.<\/p> \n\n\n\n\n\n<\/span>\n\n\n\n\n

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\n\n\n\n\n\n<\/a>\n\nMatt Herrington, a frequent FindLaw book reviewer, is an attorney in Washington, D.C.\n\n

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