Naive Realism and the Legal Profession

By MIKE MAGEE

In 2002, psychologist Emily Pronin and her co-authors, in an article titled, You Don’t Know Me, But I Know You: The Illusion of Asymmetric Insight laid out the concept of “Naive Realism.”

As she explained, “We insist that our ‘outsider perspective’ affords us insights about our peers that they are denied by their defensiveness, egocentricity, or other sources of bias. By contrast, we rarely entertain the notion that others are seeing us more clearly and objectively than we see ourselves. (We) talk when we would do well to listen…” Point well taken, but these (most would agree) are trying times.

The problem of our divisions is certainly worse now, two decades later, than when it was first labeled. 2023 headlines speak to “political polarization,” “division,” “factual inaccuracy,” and “loss of civility.” And yet, we hold tight to the “rightness”of justice under the law, and set out to demonstrate with extreme confidence that our democratic institutions, under assault, have mostly held.

Madison was well aware of extreme labeling of opponents as “unreasonable, biased, or ill-motivated.” He warned on February 8, 1788 in Federalist 51 that “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.” His solution? Our legal system, and checks and balances.

Hamilton, in the first paragraph of Federalist 1, tees up the same issue, in the form of an unsettling warning. He writes, “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The “force” on January 6 was no accident. Hours before the armed insurrection of Congressthat morning, USA Today published “By the numbers: President Trump’s failed efforts to overturn the election.” The article led with, “Trump and allies filed scores of lawsuits, tried to convince state legislatures to take action, organized protests and held hearings. None of it worked…Out of the 62 lawsuits filed challenging the presidential election (in state and federal courts), 61 have failed…Some cases were dismissed for lack of standing and others based on the merits of the voter fraud allegations. The decisions have came from both Democratic-appointed and Republican-appointed judges – including federal judges appointed by Trump.”

By all accounts, our nation and her citizens, owe our Judicial branch (its judges, lawyers, and legal guideposts) a debt of gratitude.

Without hyperbole, now understanding Trump for who and what he is, our Judiciary saved our democracy – for the moment. Literally thousands of lawyers were engaged, heard rational and irrational arguments from multiple sides, considered evidence and facts (or their absence), and decided these cases under urgent conditions on their merits.

Much of the credit goes to attorney Marc Elias (Duke Law School/1993), a voting rights expert, who headed the team that resisted the “Elite Strike Force Legal Team” in the 62 cases above. The six Trump co-conspirators who led the Strike Force were long on credentials and short on ethics and values. They included Rudy Guiliani (NYU/1968), John Eastman (U. Chicago/1995), Sidney Powell (UNC/1978), Jeffrey Clark (Georgetown/1995), Kenneth Chesebro (Harvard/1986), and Boris Epshteyn, alleged #6 (Georgetown/2007.)

As Attorney Elias reminds us, “In the intervening years since the 2020 election, many of these lawyers have become objects of ridicule, the punchline in jokes. But mocking the lawyers who facilitated Trump’s criminal conduct risks minimizing their culpability. More importantly, it obscures the deep and problematic culture that appears to pervade the ranks of the Republican legal establishment…The indictment makes clear that this was not a conspiracy of sleazy political operatives or even violent insurrectionists. Instead, the indictment reveals that this attack on democracy was effectuated by lawyers using bad faith legal maneuvers and intentional acts…Over and over, the indictment alleges that these lawyers enabled and carried out a criminal conspiracy against democracy in an attempt to “disenfranchise millions of voters.” Trump may have been the ringleader, but he alone could not have filed frivolous lawsuits, enticed fake electors with concocted legal theories or used the law to try to pressure the vice president.”

If “societies of men are really capable… of establishing good government from reflection and choice,” we need a Judiciary steeped in values and the law, people like Marx Elias. As well, we need to hold lawyers who have disgraced their alma maters and dishonored their profession to be brought to justice. The place for that is not the public square where “asymmetric insights” might be questioned or challenged as concocted or biased. Rather, it is in a court of law, with camera and lights, where Guiliani, Eastman, Powell, Clark, Chesebro and Epshteyn (alleged), may be afforded the very rights they worked so diligently to undermine.

In a 2021 discussion of the role of lawyers and law schools in fostering civil public debate, Jennifer Robbennolt and Vikram Omar write, “Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict.”

Mike Magee MD is a Medical Historian and regular contributor to THCB. He is the author of CODE BLUE: Inside the Medical Industrial Complex