Journal 15,1

THE NORTH CAROLINA STATE BAR SPRING JOURNALJOURNAL2010 IN THIS ISSUE Diversity Revisited and the Wisdom of Crowds page 10 Judicial Selection—The Elon Debate page 12 Legal Hiring in Today's Economy page 18 Diversity Revisited and the Wisdom of Crowds B Y T HE H ONORABLE A LLYSON K. DUNCAN The following remarks were made in October 2009 at the North Carolina State Bar's Annual Meeting. hank you for inviting me to participate in your annual meeting, and to witness the swearing in of your impressive new slate of officers. I am delighted to be a Tpart of the installation of Bonnie Weyher as your second woman president. I know firsthand the level of commitment that bar leadership demands, and I am confident that she will handle it with the talent, grace, and humor that she brings to every endeavor. Bonnie asked me to talk about the it is a proclivity that importance of diversity in bar leadership. has only been exacer- Unfortunately, we judges are notoriously bad bated by having life Dave Cutler/Images.com at taking directions. It is not that I am going tenure. Second, as to be completely disobedient: I applaud and one of probably no support her interest in making the State Bar more than three black female Republican so much that I wonder whether we tend to as broadly representative of the strengths of Catholics south of the Mason Dixon line, I lose sight of why it matters. Being "diverse" is our profession as possible. But I would like feel that I do considerable justice to the sub- rather like being "green:" we all know it's to approach the subject a little differently. ject of diversity simply by showing up. And good. But there is far less consensus about the I am declining to strictly follow President third, I feel it worthwhile to take a step back difference it makes. I fear that if we view Weyher's orders for several reasons. First of and a fresh look. diversity as a social justice goal—one that only all, disobedience comes naturally to me, and Diversity is something that we talk about benefits minorities and that we can abandon 10 SPRING 2010 once we get the numbers right—we are miss- four criteria that characterize "wise" crowds: them is that I have zero tolerance for blind ing the larger point and the stronger argu- 1. diversity (a broad spectrum of individ- deference to my point of view. It may be flat- ment. Diversity, in my view, is not just some- ual views are represented); tering but is scarcely productive to be sur- thing we do; it is integral to the best of what 2. independence (those views are not rounded by four people who agree with me. we are. And so I take as the text of my brief affected by the opinions of others); What I need and expect is to have intelligent remarks this evening the topic, "Diversity 3. decentralization (individuals can draw minds who challenge my assumptions and Revisited and The Wisdom of Crowds." on local knowledge); and force me to reckon with my blind spots. I You may recognize the title of a book, The 4. aggregation (some method exists for want people whose perspectives expand, not Wisdom of Crowds, by James Surowiecki. It turning private judgments into collective mirror, my own. was the subject of an episode of one of my action). And that, for better or worse, (but I sus- favorite television programs, "House." It is the The author informs me—and if you know pect for better) is exactly what I have. Two of current selection of my book club. And its me you know that I must take anything my clerks are naturalized citizens. One is a thesis is that the collective judgment of diverse involving mathematics on faith—that the young woman from Argentina with a talent groups is likely to be consistently superior to accuracy of group judgment rests on a math- for art and an interest in political science. I that of almost all its individual members. ematical truism. If you ask a large enough have my first married couple, seated as far Mr. Surowiecki gives a graphic illustration group of diverse, independent people to make apart as the office will allow, from Harvard. of this phenomenon: an educated guess and then average the The wife is a young woman from Mexico who At 11:38 AM on January 28, 1986, the results, the errors each person makes in guess- dabbled in investment banking. The husband space shuttle Challenger lifted off from its ing will cancel each other out. In other words, hails from Greenville, South Carolina, has a launch pad at Cape Canaveral. Seventy- each guess has two components—informa- background in philosophy, and was greeted four seconds later, [when] it was ten miles tion and error. Once you cancel out the error with intellectual skepticism in the Ivy League high and rising . it blew up. Eight min- component, only the information remains. because of his southern roots. And the fourth utes after the explosion, the first story hit Diversity is important because the best col- is a young Jewish man from New York with a the Dow Jones News Wire. lective decisions are more likely to be a prod- previous career as a novelist, who has never The stock market did not pause to mourn. uct of the collision of widely disparate view- been south before and whom we (alright, I) Within minutes, investors started dumping points than the consequence of consensus or tease about being in North Carolina on a visa. the stocks of the four major contractors compromise. The most intelligent group does When we get together to discuss issues, who had participated in the Challenger not ask its members to modify their positions our conversations are the audio equivalent of launch—Rockwell International, which to come to a point everyone can live with—it a pinball machine. Even our tangents have built the shuttle and its main engines; does not drift, in other words, down to the tangents. During a recent interview with a Lockheed, which managed ground sup- lowest common denominator. Instead, as Mr. young woman who was applying for a clerk- port; Martin Marietta, which manufac- Surowiecki explains: ship, we got into a spirited debate about an tured the external fuel tank; and Morton [I]t figures out how to use mechanisms— issue in her writing sample. Perhaps afraid to Thiokol, which built the solid-fuel like stock markets or [bar associations]— offend, the young woman said almost noth- booster rocket. to aggregate and produce collective judg- ing, escaped with relief, and, I suspect, will be But Thiokol's fell the farthest and the ments that reflect not what any one person happier somewhere else. But the end result of fastest—so much so that a trading halt was in the group thinks, but rather, in some our collective analyses is, invariably, a product called almost immediately. By the end of the sense, what they all think. Paradoxically, that has been rigorously vetted by opposing day, Thiokol's decline had reached 12%, the best way for a group to be smart is for views. It is rare for a colleague, for example, to whereas the others had started to recoup so each person in it to be as diverse and act as question something we have not at least their total loss averaged only 3%. Almost independently as possible. talked about. immediately, then, the market had labeled Rather like appellate court panels. This bears out Mr. Surowieki's thesis— Thiokol the responsible party. Why? Otherwise, why would it take three of us to that diverse groups can make stronger deci- None of the contemporary press pointed a decide an appeal? sions than homogenous ones. Homogenous finger, and subsequent investigation revealed From this perspective, then, diversity is less groups tend to become very cohesive very no insider trading patterns that would have a social justice goal that benefits the selected quickly. The more cohesive they become, the provided a clue. It was not until July of that few than it is a mechanism for creating a more insulated they are from outside views. year that the Presidential Commission on the group dynamic that achieves better results. As a result, as cohesiveness increases, so does Challenger concluded that the O-ring seals on And that group may, or may not, derive its the group's tendency to believe that, because Thiokol's booster rocket became brittle in distinctiveness and healthy dissonance just they all agree, they must be right. You are cold weather, creating gaps that allowed the from racial or gender differences. Diversity of familiar with the term "groupthink"—the gases to leak out. It therefore took the com- background and viewpoint are also critical phenomenon in which discussions among mission six months to realize that Thiokol was value adders. like-minded people lead them to rationalize the responsible party—something the market In the small universe that is my chambers, away any possible counterarguments and "knew" within 30 minutes. I experience the value of divergent perspec- reinforce the beliefs they already hold. In a According to Mr. Surowiecki, the market tives firsthand. When the new crop of law was "smart" that day because it satisfied the clerks arrives each fall, the first thing I tell CONTINUED ON PAGE 17 THE NORTH CAROLINA STATE BAR JOURNAL 11 Judicial Selection—The Elon Debate B Y A LAN W OODLIEF, SCOTT G AYLORD, AND A NDY H AILE n Thursday, October 29, 2009, Elon University School of Law, in conjunction with the Greensboro News & Record, hosted a public debate to explore whether North OCarolina should maintain its current system of judicial elections or move to an appointive system like that used in the federal system.

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