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Scholarship

Barbara H. Fried


On Trolley Cars, Blame, and Other Diversions


Photo by Joseph Bankman

photo3The recriminations flying back and forth in the wake of the mortgage crisis were 
bugging Barbara Fried. Were the banks to blame? Were the people who took out mortgages they couldn’t afford to blame? “How about we don’t blame anyone?” she asks, discussing 
her recent Boston Review article, “Beyond Blame,” which laid out the disastrous public 
policy consequences of our fixation with assigning personal blame whenever anything goes wrong. “How about we talk instead about how to fix the problem?” • The article was a one-off piece for Fried, the William W. and Gertrude H. Saunders Professor of Law, but very much in keeping with her skeptical approach to philosophical and moral ponderings and her eagle-eyed evaluation of how general moral principles get translated into contemporary public policy decisions.

Fried studied English and American Literature at Harvard as an undergraduate and graduate student. But her heart was always in law, says Fried, a three-time recipient of Stanford Law School’s John Bingham Hurlbut Award for Excellence in Teaching.

“My literary background does poke through from time to time, however. As an undergrad, I had read Jonathan Edwards’ famous essay ‘Freedom of the Will’ and it made a deep impression on me. When I wrote the piece on blame, a natural starting point for me was the grand equivocation at the center of Edwards’ argument: Even though we could not have acted other than we did, we are nonetheless morally responsible for having done so.” She explains that the determinism that Edwards was wrestling with was hard core: the Christian doctrine of predestination. “But in my view, the same grand equivocation underlies contemporary efforts to keep the world safe for blame, in the face of mounting evidence of biological and social determinism.”

Fried began her career in 1983 after graduating from Harvard Law School, first serving as a clerk to Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit and then joining the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP as a tax attorney. She became a member of the Stanford Law faculty in 1987, choosing it because “I knew these were my people,” she says. “The Stanford faculty was unique among elite law schools back then—in its intellectual iconoclasm, openness to new institutional approaches, and utter lack of self-importance. Those traits are still deep in the Stanford DNA, making it a wonderful place to work.”

Fried’s early scholarship focused primarily on tax law, but she traces the spark for her extensive work exploring questions of distributive 
justice and moral responsibility to research for one of her first projects—a book on the battle between laissez-faire economics and constitutionalism on one side and the more progressive wing of both economics and the legal profession on the other during the period from the 1880s to the 1930s.

“That was the first time I really started to think seriously about the 
analytic underpinnings of libertarianism and laissez-faire,” she says.

After completing that book, Fried turned her attention to 
contemporary versions of libertarianism, critiquing them in a series of widely read articles.

“Libertarianism is a major force in politics these days, but plays a pretty marginal role in academic philosophy,” she says. “But I slowly came to recognize that the same problems that doom libertarianism as a guide to action also doom the left-liberal version of rights theory that has dominated academic philosophy since the publication of John Rawls’ famous A Theory 
of Justice in 1971.

“Libertarians and Rawlsians agree on very little, but they share a fundamental hostility to utilitarianism,” says Fried. She explains that the goal of utilitarianism is to maximize overall well-being for society as a whole. “The strict version of utilitarianism pursues that goal by throwing everyone’s well-being into the same hopper, aggregating all gains and losses to well-being from different policy options, and then choosing the one that offers the greatest good.”

Contemporary versions of utilitarianism typically qualify that procedure in a number of ways, says Fried, but at the heart of all of them is some form of aggregation.

“It is easy to understand why anyone would bristle at the notion that gains to you can justify losses to me—the premise that underlies aggregation,” says Fried. “As critics of utilitarianism have argued for two centuries now, it seems not to take seriously the separateness of individuals.”

But the more Fried thought about the problem, the more convinced she became that “rights theories”—whether from the libertarian right or the political left—
offered no viable alternative to 
aggregation for the vast majority of hard choices we face.

“The fundamental problem any liberal society faces is how to balance competing interests,” says Fried. “Rights theory, which starts with the prima facie assumption that the interpersonal tradeoffs entailed are morally impermissible, lacks the internal resources to solve it.”

Fried cites as one obvious example the allocation of finite material 
resources in society.

“However rich a country is and however much of its GDP it devotes to health care, at some point it will have to choose between allocating more money to, say, cancer research or early childhood prevention,” she says. “And before we have gotten to that particular set of hard choices, we will have made scores of others in deciding how much of our budget to allocate to health care to begin with, rather than, say, education, the military, Social Security, etc.”

But, Fried explains, the necessity for tradeoffs is hardly limited to material resources. “Every time you get in a car, reroof your house, or walk onto a crowded city bus, your conduct poses some risk of physical or psychological harm to others. The job of any ‘rules of the road,’ be they government regulation or moral norms, is to figure out how to balance your legitimate interests in pursuing your life projects against others’ interests in not being harmed in the process. And however we strike that balance, if different people will be affected differently, we will necessarily be trading off one group’s well-being for another’s.”

Utilitarians, says Fried, have faced that necessity head-on. “However unappealing one might find their answer, at least it is an answer. Rights theory, in contrast, has yet to provide one.”

Fried offers the example of driving. “Every time you get behind the wheel, there is some chance you will hit a bicyclist or a pedestrian, even if you are driving within the 55 mph speed limit and complying with all other safety standards. If we lower the speed limit to 45, we will reduce that risk. Are we morally obliged to do so? If yes, how about 35 mph? Or 10 mph? And if—as is always the case—no amount of caution will eliminate the risk entirely, does that mean we should ban driving?”

The typical response of legal philosophers to such questions, explains Fried, is to say, “Of course, we shouldn’t ban driving or force people to drive 10 mph on a highway. All we demand is that when they drive, they drive non-negligently.”
But when they are asked to define “non-negligently,” she says, the answer always turns out to be some variant of cost-benefit analysis: Drive in such a manner as to minimize the potential harm to others at a tolerable cost to one’s self. “This is just the dreaded ‘throw everything into the hopper’ approach of utilitarianism, in different words.”

Fried has explored the same set of problems in the context of the famous “trolley problem” that has transfixed moral philosophers for almost 50 years. “The original version of the trolley problem goes roughly as follows: A trolley is traveling down a track, out of control. If it keeps barreling down the track it is on, it will kill five people. The driver can’t stop the trolley because its brakes have failed, but he can flip a switch to divert it onto another track, where it will kill only one person. May he flip the switch? Must he flip the switch?”

Since the hypothetical was first posed, hundreds of moral theorists have weighed in on it and variants of it. Their general conclusion, explains Fried, is that it is wrong to sacrifice one for the good of many, unless the sacrifice is very small or the good very large. In this respect, she says, they are confirming and are guided by the widespread moral intuition against utilitarianism. But, as Fried argued in “What Does Matter? The Case for 
Killing the Trolley Problem (Or Letting It Die),” 62 Philosophical Quarterly 505 (2012), whatever the merits of their conclusion, the focus on trolley problems has diverted attention from the actual hard choices we face every day.

“The implicit message of ‘trolleyology’ is that we face these sorts of tragic choices only in bizarre situations like those posed in trolley problems, and even then we can decide ‘not to play God,’ by choosing to do nothing.” But every policy decision involves such tragic choices, says Fried, whether we make them by doing “nothing” or doing something. They are just less apparent to us. “The moral lessons that philosophers have extracted from their decades-long preoccupation with trolley problems don’t tell us how to make those ubiquitous choices. They merely divert our attention from the necessity of doing so.”

While most of Fried’s writing has been addressed to an academic audience, her ultimate interest in these questions is not academic but practical.

“The view that we can somehow avoid such tragic choices if we only try harder runs deep in the American psyche,” she says. “When Republicans charged that the Affordable Care Act would institute death panels for Grandma, Obama’s people responded by saying, in a variety of ways, ‘No it won’t,’ which of course was true as far as it went. What they couldn’t say is also, and more importantly, true: Whatever we do about medical care, in one way or another we’re going to have to pull the plug on Grandma, and if not on Grandma, on her child or grandchild, because we have a finite amount to spend on health care and hard choices have to be made. Our predilection for shooting the messenger who dares to speak that truth merely drives those choices underground or, worse, leads politicians and policy wonks to make them in whatever fashion is least likely to draw public ire.”

None of this comes as news to policymakers, says Fried. “Most people working in public policy know that they are making hard tradeoffs all the time. They’re just not allowed to acknowledge it.” Fried offers the example of counterterrorism post 9/11. “All politicians know that some amount of money for counterterrorism is too much, given finite resources, and that however much we spend, and however many civil liberties we relinquish in the process, we cannot reduce the risk of another attack to zero. But they also know that if that attack happens, heads will roll, and if they are on record as opposing an appropriation or surveillance method that might have prevented it, theirs will be one of them.”

Our collective refusal to acknowledge that hard tradeoffs have to be made leaves any conscientious politician in an impossible position, says Fried. “The essential job of government is to make these difficult tradeoffs. In the end, our public officials will have to make them as best they can, but without any buy-in from their constituents, and with precious few degrees of freedom if they want to make sure their heads are not going to be the ones to roll.”

Fried’s next big project is a book, written for a wider audience, that takes up these issues in the context of contemporary public policy debates. She has other writing projects on the boards as well, for her spare time. A few years ago, on a dare, she started writing fiction and found she didn’t want to stop. She has published five short stories to date and has several others in various stages of completion.

“In my academic writing, I have been relentlessly analytical. But there are parts of life that get left out in that enterprise—parts that have always been as important to me. It is a different kind of pleasure to be able to give voice to them at long last,” says Fried. “The alert reader will probably detect my day job poking through the story now and again.” SL

Links to Fried’s fiction:
“A Song of Longing,” Guernica, http://www.guernicamag.com/fiction/barbara-fried/;
“Elegy for Daniel,” Guernica, http://www.guernicamag.com/fiction/barbara-fried/;
“The Half-Life of Nat Glickstein,” Subtropics, http://www.english.ufl.edu/subtropics/Fried_story.html;
“It Goes Without Saying,” Bellevue Literary Review, (finalist in the 2013 Fiction Contest) http://webdoc.nyumc.org/nyumc/files/blr/u7/GoesWithoutSaying.pdf;
“Really,” Word Riot, http://www.wordriot.org/archives/6007

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