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Democracy and the Death of Knowledge Suzanna Sherry

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Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2007 Democracy and the Death of Knowledge Suzanna Sherry Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Suzanna Sherry, Democracy and the Death of Knowledge, 75 University of Cincinnati Law Review. 1053 (2007) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/307 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. DEMOCRACY AND THE DEATH OF KNOWLEDGE Suzanna Sherry* Judges are under unprecedented attack in the United States. As former Justice Sandra Day O'Connor wrote in the Wall Street Journal last month, "while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history."' Popular unhappiness with particular decisions-which began even before the Constitution and has occurred continuously since then-has turned into something deeper: a rejection of judicial review itself and a belief that judges should bow to the wishes of the popular majority. A few years ago, I diagnosed this phenomenon as the result of a misconception that all law is politics. I suggested that it was now conventional wisdom to believe that "constitutional adjudication is simply politics by another name.",2 And because politics is the province of the people and their representatives, judges should stay out of it. According to this conventional wisdom, judicial review is democratically illegitimate. I was wrong-not about the problem, but about its source. The explanation for the attack on the judiciary runs much deeper than a failure to separate politics from law. It is part of a larger phenomenon: We have begun to conflate politics and knowledge. In the name of democracy, we have jettisoned the role of experts and expertise. The problem takes a variety of different forms. First, there are claims that knowledge ought to be democratically created: What a majority of people believe is true ought to be considered true, regardless of the validity of the belief under scientific, empirical, historical, or other principles. Here, manufactured knowledge bubbles up from the democratic base and actual knowledge withers. Second, people may have an illusion of their own expertise where it does not exist, and make faulty decisions for that reason. This is a substitution of ill-informed popular opinion for expertise, related to but different from the direct * Herman 0. Loewenstein Professor of Law, Vanderbilt University. I thank Lisa Bressman, Paul Edelman, Chris Guthrie, and Owen Jones for helpful comments on earlier drafts of this essay. Sara Broach provided excellent research assistance. This paper was presented as the Fall Semester 2006 William Howard Taft Lecture at the University of Cincinnati College of Law on November 9, 2006. 1. Sandra Day O'Connor, The Threat to Judicial Independence, WALL ST. J., Sept. 27, 2006, at A 18, available at http://www.opinionjoumal.com/extra/?id=l 10009019. 2. Suzanna Sherry, Politics and Judgment, 70 Mo. L. REV. 973, 975 (2005). 1053 HeinOnline -- 75 U. Cin. L. Rev. 1053 2006-2007 1054 UNIVERSITY OF CINCINNATI LAW REVIEW [Vol.75 democratic creation of knowledge. Third, actual knowledge may become irrelevant to decision-making, so that only politics matters. Knowledge dies because it is entirely displaced. All three of these phenomena are part of what I am calling the flight from expertise and the democratization of knowledge. They share a common irony and a common consequence. The irony is that it is paradoxical to be fleeing expertise at precisely the time that expertise (especially scientific expertise) is the deepest and most specialized that it has ever been. It is thus more difficult than ever for most of the population to acquire sufficient knowledge to make informed decisions on a broad range of questions. But-and here is the common consequence-if the knowledge of experts is no more valid than the beliefs of the populace, then expertise cannot serve as a legitimate reason for placing some types of decisions in the hands of experts rather than the general public. We therefore see an increased demand for popular decision-making in contexts that we previously left to experts. My goal in this lecture is to catalogue this blurring of the line between knowledge and democratic politics, to explore its possible origins, and to explain why I believe that it is pernicious. Before I turn to some legal illustrations of the democratization of knowledge, let me begin with two paradigmatic examples from popular culture. First, consider Wikipedia. (For those of you who are dinosaurs like me-and do not have teenage children to keep you informed of such things-Wikipedia is an on-line encyclopedia, but with a twist: Anyone can add to or change the information contained in an entry. If disputes arise, there are various ways to resolve them. Most of the dispute- resolution methods are more or less democratic, and although a few of the methods involve designated decision-makers, none seem to rely on the opinions of recognized experts.3) Wikipedia illustrates two different aspects of the relationship between democracy and knowledge. Because it is freely available over the Internet, Wikipedia is an example of the democratic availability of knowledge: Everyone can easily obtain information on a broad variety of subjects. This is what is sometimes meant by the democratization of knowledge, and it is undeniably beneficial. A little knowledge may be a dangerous thing, but we should applaud any innovation that allows more people access to knowledge. 3. Wikipedia says that it "works by building consensus," and that "[t]o develop a consensus on a disputed topic, you may need to expose the issue to a larger audience." Wikipedia: Resolving Disputes, http://en.wikipedia.org/wiki/Wikipedia:Resolvingdisputes, http://en.wikipedia.org/wiki/ WP:Resolvingdisputes (last visited Nov. 3, 2006). HeinOnline -- 75 U. Cin. L. Rev. 1054 2006-2007 2007] THE DEATH OFKNO WLEDGE 1055 But Wikipedia-and its democratization of knowledge-has a dark side as well. With the general public rather than experts as the source of (and primary check on) Wikipedia's content, misinformation is bound to creep in. Often, the misinformation is deliberate. Political satirist Stephen Colbert, for example, urged viewers of his television show, The Colbert Report, to edit the Wikipedia entry on elephants to state that the elephant population has tripled in the last six months. As he jokingly described Wikipedia's democratic process, "all we need to do is convince a majority of people that some factoid is true. 'A That is, in fact, a reasonably accurate description of both Wikipedia and the phenomenon that I am discussing. If the democratic creation of knowledge can be amusing, however, it can also be chilling. John Seigenthaler Sr. is a respected journalist, a former newspaper editor, a friend of and pallbearer for Robert F. Kennedy, and the founder of the First Amendment Center, a think tank for the study of free speech. (He is also the father of NBC news anchor John Seigenthaler.) For four months, Seigenthaler's biography on Wikipedia also included statements that he had lived in the Soviet Union from 1971 to 1984, and that "he 'was thought to have been directly involved in the Kennedy assassinations of both John and his brother Bobby." 5 Needless to say, neither of these last two statements is true. They were posted by an anonymous contributor, and were not removed until Seigenthaler himself complained directly to the operator of the web site.6 One of Wikipedia's volunteer editors had even edited the entry to correct a misspelling, but no one had seen fit to correct the outright falsehoods.7 Such are the consequences of replacing expertise with popular input. Lest you dismiss Wikipedia as a technoid aberration, let me suggest a more mundane example of the democratization of knowledge. Once upon a time we left medical practice to experts, including doctors. They diagnosed what was wrong with us and prescribed drugs to treat it. 4. The video clip was available at Youtube.com, http://www.youtube.com/watch?v= zmHm0rGns41 (last visited Oct. 5, 2006). It has since been removed to avoid copyright problems. Of course, since he suggested this on national television, Wikipedia blocked these particular edits. 5. See Katharine Q. Seelye, Rewriting History; Snared in the Web of a Wikipedia Liar, N.Y. TIMES, Dec. 4, 2005, at 41; John Seigenthaler, A False Wikipedia "Biography,'" USA TODAY, Nov. 30, 2005, at I IA; John Seigenthaler, Truth Can be at Risk in the World of the Web, TENNESSEAN, Dec. 4, 2005, at 15A (clarification added Dec. 7 on p. 2A). 6. The contributor later came forward and apologized to Seigenthaler. See Katharine Q. Seelye, A Little Sleuthing Unmasks Writer of Wikipedia Prank, N.Y. TIMES, Dec. 11, 2005, at 151. Seigenthaler had tried to discover the identity of the contributor but had been stymied by federal privacy laws. See Seigenthaler, Truth Can be at Risk, supra note 5. 7. See Seigenthaler, Truth Can be at Risk, supra note 5. HeinOnline -- 75 U. Cin. L. Rev. 1055 2006-2007 1056 UNIVERSITY OF CINCINNA TI LAWREVIEW [Vol.75 Medical professionals were-and still are-the only ones with the power to authorize the use of prescription drugs. But the diagnosis of illness and the preliminary determination of appropriate treatment have been democratized.
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