audentes Fortuna iuvat.
—The Aeneid. Book X, line 284.
American prosecutors in the last few decades have—Patrick Keefe recently noted in The New Yorker—come to use more and more “a type of deal, known as a deferred-prosecution agreement, in which the company would acknowledge wrongdoing, pay a fine, and pledge to improve its corporate culture,” rather than prosecuting either the company officers or the company itself for criminal acts. According to prosecutors, it seems, this is because “the problem with convicting a company was that it could have ‘collateral consequences’ that would be borne by employees, shareholders, and other innocent parties.” In other words, taking action against a corporation could put it out of business. Yet, declining to prosecute because of the possible consequences is an odd position for a prosecutor to take: “Normally a grand jury will indict a ham sandwich if a prosecutor asks it to,” former Virginia governor Chuck Robb, once a prosecutor himself, famously remarked. Prosecutors, in other words, aren’t usually known for their sensitivity to circumstance—so why the change in recent decades? The answer may lie, perhaps, in a knowledge of child-raising practices of the ancient European nobility—and the life of Galileo Galilei.
“In those days,” begins one of the stories described by Nicola Clarke in The Muslim Conquest of Iberia: Medieval Arabic Narratives, “the custom existed amongst the Goths that the sons and daughters of the nobles were brought up in the king’s palace.” Clarke is describing the tradition of “fosterage”: the custom, among the medieval aristocracy, of sending one’s children to be raised by another noble family while raising another such family’s children in turn. “It is not clear what … was the motive” for fostering children, according to Laurence Ginnell’s The Brehon Laws (from 1894), “but its practice, whether designed for that end or not, helped materially to strengthen the natural ties of kinship and sympathy which bound the chief and clan or the flaith and sept together.” In Ginnell’s telling, “a stronger affection oftentimes sprang up between persons standing in those relations than that between immediate relatives by birth.” One of the purposes of fostering, in other words, was to decrease the risk of conflict by ensuring that members of the ruling classes grew up together: it’s a lot harder to go to war, the thinking apparently went, when you are thinking of your potential opponent as the kid who skinned his knee that one time, instead of the fearsome leader of a gang of killers.
Perhaps one explanation for why prosecutors appear to be willing to go easier on corporate criminals these days than in the past might be because they share “natural ties”: they attended the same schools as those they are authorized to prosecute. Although statistics on the matter appear lacking, there’s reason to think that future white collar criminals and their (potential) prosecutors share the same “old school” ties more and more these days: there’s reason to think, in other words, that just as American law schools have seized a monopoly on the production of lawyers—Robert H. Jackson, who served from 1941 to 1954, was the last American Supreme Court Justice without a law degree—so too have America’s “selective” colleges seized a monopoly on the production of CEOs. “Just over 10% of the highest paid CEOs in America came from the Ivy League plus MIT and Stanford,” a Forbes article noted in 2012—a percentage higher than at any previous moment in American history. In other words, just as lawyers all come from the same schools these days, so too does upper management—producing the sorts of “natural ties” that not only lead to rethinking that cattle raid on your neighbor’s castle, but perhaps also any thoughts of subjecting Jaime Dimon to a “perp walk.” Yet as plausible an explanation as that might seem, it’s even more satisfying when it is combined with an incident in the life of the great astronomer.
In 1621, a Catholic priest named Scipio Chiaramonti published a book about a supernova that had occurred in 1572; the exploded star (as we now know it to have been) had been visible during daylight for several weeks in that year. The question for astronomers in that pre-Copernican time was whether the star had been one of the “fixed stars,” and thus existed beyond the moon, or whether it was closer to the earth than the moon: since—as James Franklin, from whose The Science of Conjecture: Evidence and Probability Before Pascal I take this account, notes—it was “the doctrine of the Aristotelians that there could be no change beyond the sphere of the moon,” a nova that far away would refute their theory. Chiaramonti’s book claimed that the measurements of 12 astronomers showed that the object was not as far as the moon—but Galileo pointed out that Chiaramonti’s work had, in effect, “cherrypicked”: he did not use all the data actually available, but merely used that which supported his thesis. Galileo’s argument, oddly enough, can also be applied to why American prosecutors aren’t pursuing financial crimes.
The point is supplied, Keefe tells us, by James Comey: the recent head of the FBI fired by President Trump. Before moving to Washington Comey was U.S. Attorney for the Southern District of New York, in which position he once called—Keefe informs us—some of the attorneys working for the Justice Department members of “the Chickenshit Club.” Comey’s point was that while a “perfect record of convictions and guilty pleas might signal simply that you’re a crackerjack attorney,” it might instead “mean that you’re taking only those cases you’re sure you’ll win.” To Comey’s mind, the marvelous winning records of those working under him was not a sign of not a guarantee of the ability of those attorneys, but instead a sign that his office was not pursuing enough cases. In other words, just as Chiaramonti chose only those data points that confirmed his thesis, the attorneys in Comey’s office were choosing only those cases they were sure they would win.
Yet, assuming that the decrease in financial prosecution is due to prosecutorial choice, why are prosecutors more likely, when it comes to financial crimes, to “cherrypick” today than they were a few decades ago? Keefe says this may be because “people who go to law school are risk-averse types”—but that begs the question of why today’s lawyers are more risk-averse than their predecessors. The answer, at least according to a former Yale professor, may be that they are more likely to cherrypick because they are the product of cherrypicking.
Such at least was the answer William Deresiewicz arrived at in 2014’s “Don’t Send Your Kid to the Ivy League”—the most downloaded article in the history of The New Republic. “Our system of elite education manufactures young people who are smart and talented and driven, yes,” Deresiewicz wrote there—but, he wrote, it also produces students that are “anxious, timid, and lost.” Such students, the Yale faculty member wrote, had “little intellectual curiosity and a stunted sense of purpose”; they are “great at what they’re doing but [have] no idea why they’re doing it.” The question Deresiewicz wanted answered was, of course, why the students he saw in New Haven were this way; the answer he hit upon was that the students he saw were themselves the product of a cherrypicking process.
“So extreme are the admissions standards now,” Deresiewicz wrote in “Don’t,” “that kids who manage to get into elite colleges have, by definition, never experienced anything but success.” The “result,” he concluded, “is a violent aversion to risk.” Deresiewicz, in other words, is thinking systematically: in other words, it isn’t so much that prosecutors and white collar criminals share the same background that has made prosecutions so much less likely, but instead the fact that prosecutors have experienced a certain kind of winnowing process in the course of achieving their positions in life.
To most people, in other words, scarcity equals value: Harvard admits very few people, therefore Harvard must provide an excellent education. But what the Chiaramonti episode brings to light is the notion that what makes Harvard so great may not be that it provides an excellent education, but instead that it admits such “excellent” people in the first place: Harvard’s notably long list of excellent alumni may not be a result of what’s happening in the classroom, but instead in the admissions office. The usual understanding of education, in other words, takes the significant action of education to be what happens inside the school—but what Galileo’s statistical perspective says, instead, is that the important play may be what happens before the students even arrive.
The question that Deresiewicz’ work suggests, in turn, is that this very process may itself have unseen effects: efforts to make Harvard (along with other schools) more “exclusive”—and thus, ostensibly, provide a better education—may actually be making students worse off than they might otherwise be. Furthermore, Keefe’s work intimates that this insidious effect might not be limited to education; it may be causing invisible ripples throughout American society—ripples that may not be limited to the criminal justice system. If the same effects Keefe says are affecting lawyers is also affecting the future CEOs the prosecutors are not prosecuting, then perhaps CEOs are becoming less likely to pursue the legitimate risks that are the economic lifeblood of the nation—and perhaps more susceptible to pursuing illegitimate risks, of the sort that once landed CEOs in non-pinstriped suits. Accordingly, perhaps that old conservative bumper sticker really does have something to teach American academics—it’s just that what both sides ought perhaps to realize is that this relationship may be, at bottom, a mathematical one. That relation, you ask?
The “land of the free” because of “the brave.”