Legal Commentary

The Limits of Caution, Judgment, and Tact as Protection

By Eugene Volokh

I much appreciated Orin?s post about the value of caution, judgment, and tact in dealing with certain questions. These qualities surely are essential in such discussions ? not just about race, but also about religion, sex, sexual orientation, and a wide range of other things. And they are of course valuable, though not as necessary, in discussions on less incendiary topics.

But while this is excellent advice, I think it?s important to realize two limits of caution, judgment, and tact. First, I?m not sure that ? especially on this topic ? they will give the speaker that much protection. Maybe I?m mistaken, but my sense of some of the reaction is that even the most carefully (but honestly) expressed suggestion that one is open to the possibility of genetic race-based differences in intelligence would be very risky to one?s career. And that is even more so if one actually wants to explain why one thinks ? whether or not such thoughts ultimately prove correct ? that there is evidence supporting that position.

Second, and as important, this incident suggests that Orin?s advice, to be effective, requires a level of constant watchfulness that many people might find hard to muster. It?s one thing to generally be tactful, cautious, and full of good-faith-establishing caveats. 

It?s another to be so all the time that is one talking about a subject: In every e-mail that forms a part of a broader conversation (whether or not you?ve already given the caveats in that other conversation). In every unscripted comment, for instance if someone is insisting that racial disparities must be evidence of societal discrimination, and the speaker wants to suggest that such insistence relies on the unproven assumption of the absence of genetic racial differences in intelligence. In every argument, even when one is annoyed or in a hurry. 

To be sure, this controversy is not about an unscripted comment, but I take it that Orin?s advice is meant to apply to more than the one particular scenario in this controversy. And while I appreciate Orin?s point that one should avoid judging people based on a single forwarded personal e-mail, and think that if everyone followed that advice of Orin?s, the problem I point to would be less severe, it?s pretty clear that many people aren?t actually following Orin?s advice.

Now Orin is a man of exceptional tact, caution, and good judgment. He might have been this way even when he was 24, without the years of experience that he has had since. But many people, even those who aspire to such qualities, can?t sustain them all the time. They may generally be pretty good about it. They may carefully tailor and edit what they deliberately say in print, or on the Web. They may mention the caveats at the start of a conversation. But when they?re sending a follow-up e-mail, to a few people who they saw as friends, and who they have no reason to think will be offended by blunt, caveat-free talk, they might slip.

Of course if the consequences of an occasional slip were an occasional raised eyebrow, or quiet reprimand, or personal insult that requires a personal apology ? as they generally are with most occasional departures from tact, caution, and good judgment ? there would be little to say about that. But when the consequences of one little slip are an institution-wide airing of the slip, a public condemnation from the Dean, a national news story, the danger of possible lost jobs for years to come, would a sensible person really say

[I should] make the argument, or ask the questions .... But [I] recognize that the history of that particular issue will create a lot of suspicions about [my] motives[, so I will always] make a clear and sustained effort to show others that you recognize that history and condemn it. It?s not easy .... It requires [constant, unflagging] judgment and tact [even in personal e-mails, representing only small portions of a conversation, to a few people who I thought did not require the caveats]. But [I?m] going to be a Harvard Law student, and I?m sure [I?m] up to it.

Or would the sensible person realize that the risk of inadvertent error on this subject ? and perhaps other similarly dangerous subjects, bearing on race, religion gender, sexual orientation, and the like ? is so great that it?s better just to avoid the matter when possible, and (if the issue does come up) to pretend to embrace the safe position regardless of whether one has doubts about that position?

Full post as published by The Volokh Conspiracy on May 03, 2010 (boomark / email).