Wednesday, November 28, 2007

Shaving South Carolina with Hanlon's razor

The ScreamAs soon as I posted my latest commentary on South Carolina's bar exam scandal (parts 1, 2, and 3), I encountered this blog post affiliated with The State Online that raises a truly demoralizing possibility that I had not considered.

As commenter Mike Cakora accurately observed in The State Online's discussion, I have written about South Carolina's bar exam scandal as yet another instance of "cronyism under cover of stupidity." There is simply no way, I've assumed, that the Justices of the South Carolina Supreme Court could be so illogical that they really would admit 20 failed candidates to the bar simply to create parity with one mistakenly admitted candidate. No one could be that stupid; that court must be hiding something. Surely something else is afoot, and the usual Southern political sin of corruption is the obvious candidate.

Hanlon's razorBut perhaps I have forgotten something fundamental: Hanlon's razor. This folk aphorism reminds us: Never attribute to malice that which can be adequately explained by stupidity. As I've acknowledged elsewhere, never assume malice when stupidity will suffice.

There is legal support for this principle. In TXO Production Corp. v. Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443 (1993), Justice Richard Neely of the West Virginia Supreme Judicial Court divided the world between "really stupid" and "really mean" actors. (Justice Neely was speaking of defendants who are assessed punitive damages, but his point has broader application.) The Supreme Court of the United States affirmed, see 509 U.S. at 465, in a manner of speaking. Hanlon's razor suggests that "really stupid" people outnumber and outweigh "really mean" people, that we should blame stupidity before malice.

I suppose I might be guilty of excessive reliance on a related principle, Clark's Law: incompetence, if sufficiently advanced, is indistinguishable from malice. But all this is to say that I haven't really given enough thought to the possibility that South Carolina's Supreme Court Justices sincerely believed that a single scrivener's error in bar exam grading warranted compounding that mistake by a factor of twenty.

Brad Warthen, a reporter for The State, has pondered this precise question. And what he finds is demoralizing in its own right, perhaps more so than everything I've contemplated:
What the court actually did was so nonsensical that I couldn't quite take it in from our news account. . . . As it turned out, it had done exactly what I had thought I'd read: It decided to give that one candidate a free pass on that section of the test, and then gave everybody a free pass on that section, boosting 20 demonstrably unqualified people to the status of attorney at law. . . .

There's no way that the court would turn 20 "fails" to "passes" because of a mistake on one. . . . [T]he court has a higher responsibility to the 4 million people of South Carolina.

This was a serious error in judgment, and to me, worse than any inherent harm based on who made a call to whom.
Lord have mercy. If indeed this wasn't cronyism under cover of stupidity, but simply stupidity in undiluted form, perhaps South Carolina is in even worse shape than any of us might have imagined. All that said, I stand by my original assessment: Whether the powerful people who perpetrated this scandal were really mean, or really stupid, or (as I continue to believe) really mean and stupid enough to believe that the public would swallow a flamboyantly ludicrous explanation, the people of South Carolina deserve far better.



Anonymous Anonymous said...

Thanks for the interesting coverage of this issue. Thanks also for putting a name to a key philosophy that I have tried to live by - assuming stupidity rather than malice in general allows for a much happier existence in the world of office politics.

11/28/2007 7:38 AM  
Anonymous shg said...

Love the razor. But are you sure about this:

boosting 20 demonstrably unqualified people to the status of attorney at law. . . .

You might be giving the bar exam more weight than it deserves.

11/29/2007 10:52 AM  
Blogger Jim Chen said...

Scott, a.k.a. SHG:

The bar exam doesn't deserve more weight. It has plenty of its own. I do think that the bar passage rules, once laid down, ought to be observed. I also think that failing the bar should carry consequences. In most circumstances besides what just happened in South Carolina, it does.

Best wishes,

11/29/2007 11:43 AM  
Anonymous Anonymous said...

I agree with shg. Whatever one thinks of the bar exam rules and whether rules in general should be followed (they should, and those 20 people shouldn't be lawyers), bar exams aren't a very good filter for the legal profession.

12/08/2007 3:15 PM  

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