Tag: thinking

2021vii31, Saturday: Ours, theirs, and attribution.

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Our minds play tricks on us. All the time. One trick is particularly pernicious – but recognising it can change the world.

I’ve just ordered another of these, for my room in Chambers. Everyone needs reminding. Lawyers perhaps more than most. Link in the paragraph below.

I’ve long been fascinated by cognitive biases and logical fallacies: the tricks our minds play on us, driven deep within our psyches like paths trodden across hillsides over centuries of traversing feet. I have posters on my home office wall listing many of the most common ones. And when I was at StanChart, I built them into a class for new graduate trainees.

In some ways, the fallacies are more fun, not least because some of the names are evocative as hell. The no true Scotsman fallacy. (“That lad in the paper who did the murder. Must’ve been English. No Scotsman would do that.” “No – says here he was from Falkirk.” “Ah – well, no true Scotsman would do that.”) The Texas sharpshooter fallacy. (Just because some set of data makes a neat group, don’t assume a connection. It’s possible the set may have been chosen – deliberately or unconsciously – to fit the hypothesis, like someone shooting at a wall and then drawing the target in afterwards to fit the grouping.) And one that us barristers may be particularly vulnerable to, the fallacy fallacy. (Don’t dismiss a claim just because it’s been poorly argued, or because the explanation for it includes a fallacy. In other words: the best skeleton argument, the best advocacy, is sometimes going to fail if the other side’s underlying case is – well – just better. Not always, thank goodness, otherwise we’d be out of a job. But sometimes.)

But the cognitive biases are more pernicious. And one in particular has a devastating effect – not only on us as individuals, but on us as groups. It’s the attribution effect. It was identified by a man named Lee Ross, many years ago. Ross died recently, and I was reminded of this critical bias by a thoughtful and thought-provoking piece of writing about him, about the error, but mostly about just how fundamental it is to understanding where we’re going wrong – and what we can, each of us, do about it.

OK. That was a bit cheeky there, using the word “fundamental”. Because when Ross first identified this, he called it the “fundamental attribution error”. As originally formulated, it referred to our tendency to look at others’ conduct and take it as arising from their character, not their situation. “So that woman over there who didn’t let me into slow-moving traffic? She must be SO selfish. Dread to think what it’d be like to work with her.”

Yes, I know, that’s a simplistic example. But it’s enough to shine a light on what I’m talking about. How often do we look at others, see a snapshot of their behaviour, and take it as a synecdoche of who they really are? And how often do we consider that it might instead just be a moment of thoughtlessness or inattention brought on by a really bad day? A sick relative? An angry boss? An unexpected bill?

Then there’s the flip side, which we customarily apply to ourselves. So we snapped at a waiter. But that’s not us. That’s because he took too long to bring the bill. Or because we have to work this weekend. Or because of that blasted woman who made us late to the restaurant because she wouldn’t let us into traffic.

(There’s another similar bias, the self-serving bias: the tendency to see our errors as down to circumstance or dumb mischance and our successes as entirely down to our own greatness and hard work. I’m sure none of us recognise that one. No. Of course not…)

In psychological terms, this is the difference between dispositional attribution – something that arises from who we are – and situational attribution, which is driven by external circumstance.

I imagine we all recognise it now. It probably feels like just one of those things that make us human. So why am I saying it’s so important, and so pernicious?

Because in a world which seems more and more divided into us and them, in-group and out-group (for me, this will always be the Japanese terms “uchi” and “soto”, which carry huge emotional resonance for any Japanophile), attribution is deadly. We see it all the time: the easy justification of what “our” people do as necessary, external forced upon us by the times, by the circumstances… or of by course the other lot. Whose actions are driven by malice, or by political beliefs which are selfish or evil or at best just plain incomprehensible to real people (however defined). Real people like us.

Meaning that whatever we do, we do reluctantly and in good faith, and with the best of intentions. And whatever they do, they do because they’re just that kind of awful people.

Tell me you don’t see it. Every day. Now tell me you don’t do it. I wish I could. I can’t.

For students of cognitive bias, there are some clear crossovers here, indicating that an uchi/soto split seems to drive large chunks of our psychic plumbing. There’s the halo and horns effect, which means things done by those who’ve made a good impression on you in the past will seem good, whereas things done by those you’ve had reason (perhaps?) to despise will seem bad – irrespective of what either is actually doing. There’s the availability heuristic, where things that are recent, close or present seem more relevant to decision-making, more prevalent, than more distant things – and, of course, those in your immediate group as as close as it gets. And then there’s the old favourite, confirmation bias, where you overweight evidence that confirms your existing beliefs and downgrade evidence that opposes it.

So maybe we’re hardwired to attribution when it comes to our group and theirs. Not surprising, perhaps. But as the writer of the piece I linked to points out, as we atomise more and more, this tendency will burrow deep and destroy us – unless, as with all cognitive biases, we do our best to see it happening in ourselves, rather than just letting it rip.

This is one reason I have so little patience with dog-whistle labels and straw-manning, from whichever side of the political spectrum they arise. The label triggers the attribution: I can stop thinking about that lot, it says, seductively. I know their sort. And I know their motives. Not like us righteous types over here.

Can we stop ourselves doing this? Of course we can’t. Can we strive to mitigate it? Yes. Should we? You’ll need your own answer to that. I know mine.

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2021vii26, Monday: now read this.

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Not my stuff, obviously. But the piece I’m linking to – entitled “I just learned I only have months to live. This is what I want to say” – is breathtaking. Do yourself a favour. Please.

Someone is so, so right on the internet: Another short one. I’d say I’m making up for lost time, but that would sound – given the content of this scribble – as though I was trying to be ironic. And I’m really not.

Someone I love has recently had the kind of diagnosis which can fill you with despair. Make you scream at the universe for its uncaring cruelty. Stage 4 cancer. Damnation.

And yet, I won’t scream or gesticulate. I refuse to. Because they’re not. They’re marvelling at the blessing of a life well lived, that they’re still living well, and refusing to take this as anything but a thing that happens.

It helps that they have faith. That they’re sure, quietly but firmly, that it’s not the end of the road. Only the end of this one.

But that aside, the resolute acceptance, and the ongoing love for all those around them, is an example before which I’m humbled. I’ll honour it by reflecting it as best I can.

I mention this not for sympathy (I don’t need it, since this person doesn’t), but as a lead-in to a truly breathtaking piece of journalism to which John Naughton (bless the man) linked in his daily newsletter this morning. (He got it via Helen Lewis, whose newsletter is also a blessing.)

John called it his “Long Read, not just of the Day, or even the Year, but perhaps of a lifetime”.

I might not go that far. But I’m close. It’s stellar.

And it’s strange. I was sure I cleaned my glasses last night. Yet they’re all misty again.

Update: Nigel Morris-Cotterill, one of the foremost experts around on money laundering, shared his experiences with losing his father on LinkedIn after reading this. He wrote a book after his father’s death, entitled “Ten Things You Need to Know about Dealing with Death” (Amazon page here; Nigel’s piece on LinkedIn about it here). I’ve only skimmed the list of the ten things, rather than the book itself, but I agree with them all. 

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2021vi4, Friday: People ≠ things.

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What happens when you thingify people? Nothing good.

Apologies. As I mentioned, this week has been vacation, and has been busy with family matters. Without breaking anyone else’s confidentiality, suffice it to say that there’s a lot of complicated and slightly scary stuff happening to people I love. I’ll try to stick to three posts a week, but it may be two for the next little while. Please forgive.

Short thought: Evil begins, to paraphrase that great sage of our times Terry Pratchett, when you start treating people as things.

A bit trite, you might say. How can you run any society, any organisation with more than a handful of souls, without doing precisely that? Which, of course, is true. You have to abstract. You have to say: this many people take this much resource. This many people = this many sales, or (in the public sector) this much tax. Subtract one from the other: sustainable or not?

But this comes back to the heart of thingification. Do you do this as a planning tool, as a calculation shortcut? Or do you start to see the abstract instead of the people who comprise it? Do you somehow start to see some, if not all, people as worth less than others? Or, in the worst-case scenario, as simply pieces on the board?

Because that, I think, is what Pratchett was talking about. Particularly in ethics and politics, there’s a clanging alarm bell that I always look out for. Just as certainty warns of a closed mind, this is an indicator that people are being thingified – and evil is lurking.

And it’s terrifyingly common. It’s that easy tendency to build a community – political, religious, otherwise – around who you blame. Who you hate. Who you see as different. Who you treat as “other”.

In other words: who isn’t as truly human as you are.

It’s the thing I can’t trust. The thing that will, inexorably, drive me away from any group that manifests it, from any leadership which relies on it. 

It doesn’t matter if it’s a convenient means to an end which is claimed to be laudable. Or if it’s a nod and a wink – “people will understand I don’t really mean it”.

Because it never stops there. This is the genie that never goes back in the bottle. We humans always find it fatally easy to put people in a box marked “not quite like us” – and then treat that box as a thing, with all the negative consequences. Every time we encourage that, we normalise this human tendency. So anyone who does so is, in my world, simply beyond the pale.

Back to Sir Terry. In one of his later books, he deals with the imminent explosion into hot war of a centuries-long enmity, as one side’s rhetoric turns vicious. Changing the wording a bit to minimise spoilers, someone finds the following on an old recording:

“The enemy is not one side nor the other. It is the baleful, the malign, the cowardly, the vessels of hatred, those who do a bad thing and call it good. Those we fought today, but the wilful fool is eternal and will say…”

“This is just a trick!” one of those present shouts. 

“…say this is a trick,” the recording concludes. 

Hatred is comforting. Nationalism or any other belief that defines itself by hatred, or against another, instead of seeking worth on its own terms, is comforting. But it’s deadly. It’s poison. It’s a parasite that not only destroys its host on its way to other minds, but pollutes the sea in which that host swims.

We’ll never win the fight against turning people into things. Not permanently. It’s too easy a trick to exploit, to abuse, to weaponise. 

But that only means we shouldn’t stop trying.

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2021v24, Monday: Reified abstracts.

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More on thingification. This time with reference to the Big C. And something truly magical for watch wearers.

https://xkcd.com/881/

Short thought: A little over eight years ago, when I found out my dad had bladder cancer, it wasn’t God I turned to first. It was Gould.

Stephen Jay Gould, that is. Specifically a beautiful, life-affirming book of his that – in fact! – my dad had given me many years earlier, called Life’s Grandeur. In it, amongst stories on baseball and a number of other things, he described the shock of being diagnosed with a rare and aggressive cancer at the age of 40: one with a median mortality of just eight months.

Eight months! A death sentence, surely. But Gould being the statistician and evolutionary biologist that he was, he dug below the numbers – and realised that this single number hid, of course, a huge variation in actual outcomes.

A median, after all, is only a species of average: the precise middle of a distribution, with half the cases lower and half the cases higher. So in fact, almost 50% of sufferers lived longer than eight months – and, inevitably given that one end of the distribution (the short end) had a tragically hard limit, the other end was likely to have a long tail. Looking into what factors seemed to predominate in the longer-lived, he was able to emulate them – and in fact lived 20 years beyond the diagnosis, dying at the age of 60 in 2002.

Why do I mention this? Why drag myself back to a tough time (my father lived less than two years after his diagnosis, leaving us in September 2014)?

Because this is one example of thingification, and a really important one at that. That eight-month figure is an abstract. A simplification of reality, to aid us in understanding it.

It’s not a thing in itself. Yet, in something some call reification and Gould referred to as “the fallacy of the reified abstract”, how many times have you come across people talking of averages – particularly, perhaps, means, which are the total of all values in a set divided by the number of items in the set – as though they have some independent, normative life of their own? Almost as if a divergence from the mean is wrong, bad, improper? 

Or – still worse – someone getting the same figures as Gould got, but without the advantage of his background; and reading them with despair?

As Gould found, if one can approach a situation like his with a positive, can-do attitude, there’s a real and measurable improvement in the odds (although, as he pointed out, there was an “unintended cruelty of the ‘positive attitude’ movement – insidious slippage into a rhetoric of blame for those who cannot overcome their personal despair and call up positivity from some internal depth”). Leaving someone without the tools to interpret a number like a median mortality rate can, in a genuine sense, make their nightmares come true.

Even for those of us who love numbers, and particularly probability, this kind of thing scares us witless, as the peerless Randall Munroe expressed better than I’ve ever seen in an XKCD cartoon which still makes me cry more than a decade after I first saw it.

The good news is, Randall’s then-partner, later wife, is still with us.

Hope exists. Probabilities are just that. Odds aren’t pre-ordained. Thank goodness.

Someone is right on the internet: Wow. Just wow.

I know I’m a bit of an Apple fanboi. Have been for years. And I’m sure someone will tell me that this is in fact old news, that Android or Windows had it years ago or some such.

But seriously. Just watch the video embedded in this press announcement. Controlling your watch with hand movements, rather than having to touch the screen. Yes, it’s principally for folks whose upper limbs aren’t optimised for prodding at a tiny screen on their wrist – and it’s a fabulous and necessary idea as a result. But it promises to be good for us all. Answering a phone simply by clenching your fist twice? Good lord. Magic at work.

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2021v19, Wednesday: Thingification.

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The first of a series about what happens when we make things out of stuff (and ideas) that we shouldn’t. And: why grift isn’t good.

Short thought: I’m not always a fan of neologising. (Is there a word, akin to onomatopoeia, for “doing the thing you’re just criticising”, since I’m not convinced that there’s actually a verb that derives from the noun “neologism”? Oh. Yeah. Hypocrisy. Oops.) 

But a pair of posts (first one here, second one here) – neither terribly new, but fascinating – do the job beautifully. 

The word? “Thingifying”. 

They’re all about the process by which we tend, as humans, to treat all that we see and experience as objects: specific, manipulable, concrete. How that obscures ideas and concepts. How it shrinks actions and processes to snapshots.

And perhaps most importantly, how it can obscure – often deliberately – agency.

The example in the second of the two pieces, which I won’t spoil more than this sentence, is “umbrellas are non-refundable” – as if this is not so much a choice, albeit probably an entirely fair and sensible one, by a store-owner faced with people returning umbrellas once it stops raining as though they were just for rental, but instead some intrinsic quality of umbrella-ness.

But think beyond this. “The situation is regrettable.” By whom? Why? Is that just how it is, or has someone done something dumb, damaging or malicious to bring the situation into being? Echoes there of “mistakes were made”, or “unfortunate circumstances”. Ouch.

Just reading these two pieces has sparked half a dozen lines of thought into thingification – some arising from my own experience, some from things I’ve read, and one or two which even relate to law and advocacy (honest). Over the next few pieces, I’ll try to break it down a bit. 

If this sounds turgid beyond belief, I’m genuinely sorry. (This is not a non-apology “sorry if you’re thin-skinned enough to feel offended” quasi-insult; honestly, I apologise that the next few pieces might not work for you, but this is an itch I feel really compelled to scratch, and I’ll try to spread the net wide enough so there’s something for everyone.)

I genuinely think there’s something interesting going on here, with significant ramifications. Stay with me. Let’s see where it goes.

Someone is right on the internet: While we’re mulling that one, as usual (this one’s a sorry-not-sorry, I have to admit) my thoughts stray to fraud.

Or rather to grift. An excellent piece of writing by Can Duruk highlights the key distinction between fraud and grift. And there are interesting and uncomfortable parallels to the distinction between lies and bullshit. Can points out that a true modern grift…

…is not run behind closed doors. Instead, you do it fully out in the open, screaming about it from the mountaintops. While greed is about focus, grift is about shamelessness. With greed, the game is to find the path between the rules with the most profit. Grift, on the other hand, ignores the rules altogether, armed with the knowledge that with shamelessness comes zero social costs, and with absent enforcement, no real legal risk.

One of his examples is Elon Musk, in which context he points to what amounts to a pump-and-dump scheme of publicly backing Bitcoin, riding the resulting surge as a bunch of techbros who hang on his every word jump aboard the HODL train, then selling a chunk of Tesla’s BTC holding before declaring that oh, yes, actually it’s an environmental nightmare not entirely in keeping with the noble business of making electric cars. Nice.

Or, as Can puts it:

Look, I am struggling to string together words into legible sentences here. Just like there’s no real person that thinks Bannon deserves his accolades as a wellness warrior, no one who doesn’t put laser eyes in Twitter bio thinks that Elon Musk didn’t know about the environmental horrors of Bitcoin. Or that he could not get away with a pump and dump scheme as blatantly run as this one. I know we are all amused by his antics, and as a car-guy who doesn’t even drive, I have somewhat of a soft spot in my heart for the Model S. But the grift here is so, so obvious and run so transparently that it becomes borderline paralyzing. I do wonder if I am not getting something here?

This also sparks thoughts about the Online Harms bill which the UK government published last week. In amongst the publicity was a comment that the bill would include: 

Further provisions to tackle prolific online scams such as romance fraud, which have seen people manipulated into sending money to fake identities on dating apps.

Well, lovely. Three big problems, though:

  1. The bill only deals with user-generated content. So anyone running a scam and willing to pay for it to be advertised is just fine. Rather missing the point, therefore.
  2. I’ve been through the bill, and I can see precisely nothing that deals expressly with any kind of fraud or scam. At best, it might be in clause 41, which defines “illegal content” to include content amounting to a “relevant offence” – further defining that as either an offence whose intended victim is an individual (although not one which concerns “the performance of a service by a person not qualified to perform it”) or one which is defined in further regulation. Honestly, I’m baffled. What have I missed?

That’s only two problems. The third is too big for a numbered paragraph. And it’s the old favourite: fraud is a huge problem. It hurts huge numbers of people, terribly. And yet, as always, no-one’s actually coughing up to resource dealing with it properly. 

To be fair, the Online Harms publicity does promise a “Fraud Action plan after the 2021 spending review”. And apparently the DDCMS is going to consult on “online advertising, including the role it can play in enabling online fraud, later this year”.

Reassured? Me neither.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021iv19, Monday: Privacy and the Supremes.

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One of the most consequential cases on the law and privacy makes it to the Supreme Court next week. I’ll be watching. And some great stuff on gaming and moral panics.

Short thought: There’s no doubt that arguments about privacy are going to grow, and multiply, for years to come. On so many fronts, the question of what companies and governments can do with data about us affects us – literally – intimately. It’s going to be a central focus for so many areas of law – be it regulatory, public, commercial or otherwise – and we lawyers can’t and shouldn’t ignore it.

Which is why I’m blocking out next Wednesday and Thursday (28th and 29th) in the diary – at least as far as work will allow. Those are the days on which the Supreme Court will be hearing Lloyd v Google, probably the most important data protection and privacy case to make it all the way to the UK’s court of final appeal to date. 

As I’ve written before, the Court of Appeal fundamentally changed the landscape in 2019 when they decided that Richard Lloyd, a privacy campaigner, could issue proceedings against Google in relation to its workaround for Apple’s privacy protections. It’s no surprise that Google took the appeal all the way, since the CoA said (in very, very short) that a person’s control over one’s personal data had value in itself, and that no further harm – not even distress – need be proved for loss to exist. (There are other grounds of appeal too, but this to me is the most fascinating, and wide-ranging in potential effect.)

Next week is only the arguments, of course. Judgment will come – well, no idea. But Lord Leggatt is on the panel. I can’t wait to read what he has to say.

(I’ve had a piece on privacy brewing for some time. I just haven’t had the brainspace to let it out. Perhaps next week. I’ll try.)

Now hear this: I’ve always been rather allergic to team sports. Martial arts, on the other hand, have long been my thing. While I’ve dropped in and out, depending on levels of fitness and family commitments, there’s always been one at least at any given time which has given my joy like no other form of physical activity.

If one nosy trouble-maker had had their way, this would have been nipped in the bud. When I was doing karate in my teens, one clown wrote to my dad – then a canon at St Albans Abbey – claiming that my indulgence in this was Satanic and should stop immediately.

No, I don’t get the reasoning either. Needless to say, my dad treated it with the respect it deserved, and lobbed it into the wastebasket. And on I went, via aikido, tae kwon do and (these days) capoeira. No doubt this last, which I hope to keep doing with my current escola in Southend for as long as my ageing limbs can manage it, would have given the writer even greater conniptions, given that the music often name-checks saints and is thought in some quarters to have connections to candomblé.

But I think the writer missed a trick. Because back then, in the 80s, if he’d known I was a role-playing gamer he’d have been tapping totally into the zeitgeist.

By RPG I’m talking about pen and paper, not gaming. I loved these games; via an initial and very brief encounter with Dungeons & Dragons (2nd edition, for the cognoscenti – it was never really my thing), I found Traveller and Paranoia, and never looked back. It’s been a long while since I played, but my love of them, and conviction that they’re good and valuable, hasn’t dimmed.

These days, these games are pretty mainstream. But in the 80s, particularly in the US, they were the subject of significant, if now in retrospect batshit insane, panic. This panic is beautifully explored by Tim Harford in his podcast, Cautionary Tales. I warmly recommend it. You don’t have to know or care about the games themselves for the story to be engaging and fascinating, as an analysis of how societal panics can grow and evolve into something wholly unmoored from reality from even the most unpromising foundations. And yes, the irony there is palpable. 

(Tim’s a gamer himself of no little repute; I imagine a game GMed by him would be wonderful. But he’s fair on this, I think.)

The whole series is great (the one on Dunning-Kruger is particularly brilliant). Tim’s previous podcasts, in particular 50 Things that Made the Modern Economy, are just as good. And he always makes them relatively short, and scripts them properly. Not for him the 90-minute frustrating meander. Thank goodness.

Warmly recommended.

As an aside: A recent FT piece of Tim’s has just appeared on his own website (as usual, a month after FT publication). It’s superb. Lots of people have linked to it, but it’s good enough to do so again. 

It’s entitled: “What have we learnt from a year of Covid?” His last sentence is one with which I utterly concur:

I’ll remember to trust the competence of the government a little less, to trust mathematical models a little more and to have some respect for the decency of ordinary people.

Read the whole thing.

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2021iii12, Friday: We just don’t get it. And most of us simply can’t.

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“My life has been one long risk assessment.” For most of us men, ours hasn’t, and we need to recognise what that means.

Short thought: I remember a time – I was about 12 – when a couple of older boys strolled past me in the street, saying something rude (I was a nerdy, skinny kid). I kept walking, kept my head down. Then I heard them turn and start following me. I sped up a bit. So did they. I heard them catching up.

So I started running. So did they. I wasn’t a good runner, but I poured every gramme of energy into my legs. They were right behind me. I was terrified. I realised a friend’s house was only a few dozen steps away. I made it to the open gate, ran through to ring the bell, and heard them slow and walk past just as the door opened.

To this day, I’ve no idea what prompted the incident. I’ve rarely been more scared.

And even in the light of that, I will never, ever truly be able to understand what many if not most women go through, day after day after day. The intrusion. The unwelcome attention. The fear, the foreboding, the painful and exhausting need for constant awareness of all that’s around you.

Most of us men don’t get it. And most of us, however hard we try, simply can’t. As one woman on Twitter put it recently:

This was in answer to a thread that I imagine many if not most women will relate to, describing repeated and utterly inexplicable (at least for any reasonable reason) levels of unwanted attention and intrusion from men of every age and position. For no other reason than that they were men and the object of their attention was a woman; and that, to them, gave them licence.

Some of the male responses, of course, were predictably disastrous: be more careful; teach your daughters how to stay unobtrusive. Others sought to be helpful, talking about learning to “own your space”. Missing the point, gents: some of us, too many of us, create a threat environment that makes it simply unsafe for women to ignore male presence in many spaces.

My recognition of this reality for women means I absolutely support the existence of women-only spaces. It’s not discriminatory for women to want places where people like me don’t belong. It’s simply safety. The chance to let the guard down. To relax. To not be exhausted. At least for a while.

And – while I know I’m entering a minefield here – it also means that while I’m just as much for trans people’s rights as I am for anyone else’s, I don’t see as inherently discriminatory the idea that women born as women might need, still, to carve out corners of the world which are theirs alone. If you’ve grown up as a child, a teenager, a woman with this as your lived experience, what right do I have, knowing nothing of how that constant risk assessment will grind at your soul, to deny you a place where the shoulders can drop, the breath be released and the walls come down?

This isn’t an “all men are awful” thing, either. It’s not a shout against all possessors of a Y chromosome. Hell, I’m one. I’m sure I’ve inadvertently made women uncomfortable at times in the past, and I’m sorry for that. But that doesn’t make me evil.

All it does do is put an obligation on me to recognise this reality. To account for it. To watch my conduct and consider how, without meaning to, I might be ringing someone’s alarm bells. And to stand up in support if I see other men behaving like this.

This isn’t “compromising my freedom”. It’s not me being woke. It isn’t PC gone mad.

It’s about me caring about other human beings. Owning my actions.

Frankly? It’s about being a man.

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2021ii24, Wednesday: freedom.

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10 days of self-isolation is over, and the seaside beckons. Also: what the Emperor’s New Clothes can tell us about whistleblowing.

The Thames Estuary. This morning. After 10 days indoors, I promise you this was like the Caribbean to me…

Short thought: My personal (and family) lockdown is lifted. My symptoms are pretty much gone. A quick drive down to the sea this morning felt simply wonderful. There’s nothing like fresh air and wide horizons when the furthest vista you’ve seen for 10 days is your own backyard fence. Joy, unconfined. Literally.

Someone is right on the internet: I’ve long had a professional interest in whistleblowing. As an investigator, a great deal of work comes from them. As a barrister whose practice includes employment, whistleblowing forms part of a surprisingly large proportion of claims. They can be tricky to bring home, since one has to prove not just detriment (or dismissal) but that the whistleblowing disclosure is the main (for dismissal) or a significant (for detriment) cause of the employer’s decision. And the larger the employer, the trickier that causation can be to show.

Obviously, every situation varies. And not all – even not most – whistleblowers are the “keep my identity secret” kind. Most disclosures are overt: employers sometimes forget that if an employee raises a concern about whether the company is acting lawfully, or safely, and does so with some belief that it’s in the public interest, that’s whistleblowing – even if all it amounts to is telling their boss to her face what the problem is because they don’t think she knows, and she should.

But in my experience there’s a constant: most whistleblowers aren’t doing it for fun. They’re doing it because they think they have to, or ought to. And no-one sues on it unless they don’t have any choice.

This is a point made by Margaret Heffernan, author of Wilful Blindness (a book I adore, and which should be on the shelf, or Kindle, of anyone interested in how cognitive bias – ours and others’ – can play hell with our decisions and lives), in a recent FT piece. (Sorry, the paywall will only allow three clicks on this. Wish it were otherwise). She notes:

While the popular image of the whistleblower is typically an eccentric loner, the truth is more prosaic: whistleblowers are likely to be loyal employees, passionate about high standards, who go outside their organisation as a last resort when nobody takes them seriously. They aren’t defiant troublemakers; they’re disappointed believers.

I agree. Which isn’t to say that some aren’t eccentric to start with, or perhaps more often driven to eccentricity, even obsession, by the whole experience. But her point is a straightforward one. Organisations are fundamentally inimical to people pointing out problems; yet without them, the organisation can’t possibly improve. As Heffernan points out, this is a “tragic waste of knowledge”: not just for the organisation, but for all its stakeholders.

It boils down to this. Everyone knows the story of the Emperor’s New Clothes. I used to use it in training sessions; the laugh, as I described the child shouting out from the crowd, “Hey mister, I can see your bum in that,” was a critical means of opening the door to a discussion of why problems needed to be shared; and acted to reinforce my promises that if it was a choice between my job and breaking a whistleblower’s confidentiality unless I was compelled by law to do so, I’d be the one taking the walk.

Sure, it’s funny. But everyone who’s ever heard that story has asked themselves what happened to the child afterwards. Did she get a cookie? A pat on the head? Or did several large soldiers pop round to have a word with her parents later, to drive home the message about it being safer if you bring up your kid to be seen and not heard?

My cynical side always suspects the latter. And certainly organisations tend in that direction: I’ve several times had senior managers tell me I had to disclose the name of a whistleblower. I never have, including the time a CEO threatened to fire me if I didn’t. But honestly, as Heffernan says, a smart company will listen first.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii12, Friday: Different ≠ worse.

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Why section 3 of the Unfair Contract Terms Act 1977 has a lesson for our polarised world. And something special about the spiritual geography of offices – those places we may miss more than we know.

Short thought: I’ve rambled before on the power of analogies for advocates. I was half-convinced anyway, before Edmund King QC (RIP) pushed me all the way. It’s a bit like when I first found out about the Dunning-Kruger effect*: its explanatory power was such that examples suddenly started popping up everywhere. 

(To be more precise: they were there anyway. I just didn’t have a name for them. Like that cognitive glitch when you think about red cars and then notice them everywhere. They were always there; your conscious mind simply had no reason to single them out before.)

A fresh one popped into my head when I was prepping for yesterday’s hearing. In the end I didn’t use it: the judge found for us on another ground, and agreed with us on this point without me really having to argue it. But it set me thinking, about how easy it is to overlook how different doesn’t have to be better or worse.

The situation was this. My client had bought an expensive hospitality package for a sporting event from a vendor; the vendor didn’t come through, but offered them a different package claiming it was an “upgrade”. Among several key issues was how to make clear that something can be substantially different without having to be inferior. The point was for the sake of s3 of the Unfair Contract Terms Act 1977, which means a business offering another business a “substantially different” product from what they’d promised can only rely on a get-out clause in the contract if that clause is objectively reasonable. The point being that if (but only if) the product was substantially different, I could bring in the (genuine) unreasonableness of the clause in question.

The analogy I came up with: Imagine you’re a computer vendor. Your client wants a PC. You provide a higher-spec Mac. For many people – myself included – this is absolutely an upgrade. (Don’t flame me, people. I’ve used both platforms side-by-side for decades. I’m allowed.) But that’s irrelevant. For a PC user, the higher spec doesn’t matter. There’s a material and important difference. And any customer would reasonably be entitled to a swap or a refund.

(It works the other way round, too, of course. I realised this when I first used a PC for work, after always using Macs, and got horribly confused that there was no menu bar at the top of the screen. The lack of a Start menu must do the same for PC-to-Mac switchers. I feel the pain.)

Why did this stick in my mind? Well, with polarised politics and with-me-or-against-me thinking has come, I think, a diminution in our preparedness to consider that sometimes people just see things differently – and that sometimes, that isn’t a bad thing. When that different outlook causes real harm and power imbalances, then by all means we should act. But the starting point has to be an acceptance that everyone has the filter of their own lived experience, colouring what they see and how they understand. And many, if not most, of the distinctions will be just that. Not better. Not worse. Just different.

It’s a bit like steel-manning. Start from an assumption of good faith. Try to see and understand. Test your own assumptions. We may be stuck with polarisation for a while; it’s useful for a certain type of politician who cares more about the short-term boost than the long-term catastrophe, and sociopaths like this are sadly in the ascendant. But each of us, in our private lives, can make this work. And the smallest change can echo outwards. 

*I feel obliged to mention this recent piece seeking to debunk a chunk of what most people understand to be the Dunning-Kruger effect. I’m not wholly convinced; the effect’s application seems anecdotally to be too prevalent. But I’d be dishonest not to include it. 

Someone is right on the internet: Calling Paul Ford a writer is like calling Thelonious Monk a musician. It’s true, so far as it goes. But that’s not very far. Paul Ford is also a software designer, and much more. 

Many geeks who didn’t know of him before came to know and love him from What is Code? (on Bloomberg, so a metered paywall), a long read – in fact, at 38,000 words, practically a novella – about what coding and programming was really about, and like. It’ll take ages to read. You’ll need a cuppa, or three. But if you are even slightly interested in how the software business works, and how people write and create it – and in our world today, how could you not be? – it repays the investment several times over.

Now he’s done it again, albeit far shorter. The Secret, Essential Geography of the Office in Wired (also a metered paywall) does more to describe something essential about how workplaces function in 1,200-odd words than I’ve read in years. The geography he talks about isn’t just physical; it’s social. And it’s temporal. It’s both beautiful, and achingly painful in its sometimes uncomfortable sociological implications. 

And it’s recognisable. He mentions being told of specific spots in one workplace where you can go to cry; and I remember my time at BBC TV Centre, with its dozens of sometimes half-hidden staircases, and a spot on one – just between the fifth and sixth floors – where I went to cool off after an argument. And the joy of the balcony on the front of the building, facing east across London, where on an early shift – if you timed it right between stories – you could make it up there just in time for sunrise.

It’s different now. A Chambers is more of an interconnected set of separate worlds than a single entity. Each room is distinct; hierarchy, at least in our Chambers, is far less noticeable. (It may be different in more traditional buildings on staircases like an Oxbridge college.)

But we’ve still got a back staircase. Echoing bare stone steps, worn at the edges by generations of advocates. And amid the lockdown, having been in Chambers only four times since March last year, is it strange that I miss that staircase almost more than anything else?

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

2021ii10, Wednesday: “Conspiracy without the theory.”

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Some excellent, if depressing, writing on the modern prevalence and abuse of conspiracy theories. But also: fantastic new knowledge tools for Mac/iOS users.

Someone is right on the internet: I remember my first argument about conspiracy theories. It was decades ago: I was in India, on a gap year, in a cafe somewhere in Rajasthan. Jaisalmer I think, out in the Thar Desert. And some other Brit was expounding on some conspiracy or other. I took the other side: what I now recognise is the classic position of noting how improbable it was that everyone involved could collaborate so perfectly and secretly. I can’t remember what it was about; probably the Moon landings.

One of the many depressing things about the past few years has been the proliferation (and popularisation by people you really wish knew better for selfish ends) of conspiracy thinking, to genuinely poisonous and damaging effect. This piece does an excellent job of walking through – as it puts it – their “enduring allure”, noting as they do that the USA was founded on a conspiracy theory of a sort, and that “losers” in politics often turn to conspiracy theories and paranoia to explain the outcome. (A classic piece of writing, Richard Hofstadter’s “The Paranoid Style in American Politics”, noted this tendency more than half a century ago. He’s no more wrong now than he was then; I suspect we’d see strong echoes here, too.)

But then the piece takes a darker and scarier turn, noting that the turn now is towards – as the authors put it “conspiracy without the theory”. By which they mean the old days of obsessing over bullet trajectories (Kennedy) and flag shadows (Moon landings) are gone. Who needs actual facts to analyse when instead you can disappear down a rabbit hole of assertion like QAnon – something which, as has been noted, seems almost as tailor-made to deliver addictive dopamine hits to its adherents as a computer game?

Compared with this, the innocent era of the Bush administration – when people were shocked, shocked to hear an anonymous US government source declare that they “created their own reality” in contrast to what he dismissively referred to as “the reality-based community” – seem like halcyon days.

It just works: Those who’ve been reading my stuff for a while will be aware of (and may fairly despair of) my on-off search for the right tool for taking notes and keeping records. Scrivener, Ulysses and Notion have all come in for favourable reviews – and are, without a doubt, fantastic pieces of software. For the right user, each of them is probably spot on.

But none have settled for me. Scrivener’s clunky sync was a killer. Ulysses’ clumsy search and less-than-ideal tagging frustrated me intensely. Bear – which I’ve only mentioned in passing before – is an excellent “dump stuff for later” tool with the best tag system I’ve come across, and I still use it for that purpose; but is just too “flat” for my purposes. (I need ways of keeping info about particular cases together without relying on tags or keeping everything in a single file.) Notionwowed me with its versatility, but I need reliable offline working and easy import-export, and that isn’t it.

At least I’ve realised what my priorities are by now. Not all are deal-breakers, but all are important:

  • Portability. I don’t want my stuff locked up in a format or location I don’t control. So ideally files on the desktop or in a cloud share I trust, and Markdown as the format. 
  • Easy export. I need to be able to dump stuff into a PDF or Word document easily, with minimal formatting faff. 
  • Bringing stuff together. I need to have everything about one topic easily accessible.
  • Search. There’s no excuse here. Rock-solid, no-brainer universal search is essential. If you make me work for it (Ulysses, I’m looking at you), that’s a critical fail.
  • Linking, in both directions. I’d forgotten how much I love this. Not only must I be able to embed links to other files/documents in the system into any other file; ideally I want to see what links to the thing I’m looking at now. This is backlinking; it’s a very old-school hypertext function, but now I’m using it again I’m staggered how I survived without it.
  • Multi-platform. Being limited to the desktop doesn’t work for me. Admittedly my new machine is lovely; but my workflow absolutely embraces phone and iPad. I need convincing to do anything that blocks that.
  • Multi-window. I need to see two or three things at a time. 
  • Speed. I’m lucky enough to have good kit. If the software slows it down, that’s unforgivable. I’m looking at you, Word.
  • Keyboard shortcuts. Don’t force me to use a mouse or trackpad any more than I have to.

In our new no-paper world, I’d very much recommend anyone else thinking through their own priorities. I’m very happy to discuss with mates what they need, and what might fit.

Me? Two new tools have presented themselves, both of which tick almost all these buttons. Both promise shortly to tick them all, although we’ll see what those promises are worth. 

First, there’s Obsidian. This is desktop-only, for now, which is a real pain. But it’s wonderful: in essence, a smooth, keyboard-led take on a Markdown wiki and knowledge handler with everything stored locally as individual text files, back- and forward-linked to high heaven. It’s not for everyone: it’s a kind of throwback to a primarily text-heavy world. But I just ran a 10-day hearing with everything in Obsidian: a master page for the case, with pages branching off (in separate panes) for each witness’s evidence, for my own notes, and for important background. All cross-linked and lightning-fast.

Then there’s Craft. I found this late last year, and frankly I don’t quite know how to describe it. It’s got some (though not all) of Notion’s virtues – a block-based structure where each paragraph on a “page” can easily have links, formatting and other things defined by easy keyboard shortcuts, or be turned into a link to a sub-page which in turn backlinks smoothly. It isn’t as versatile as Notion, but it’s happy offline, it’s quicker and smoother, and its exporting is excellent. Initially it was single-window, but that’s been sorted now. It’s cross-platform all the way, too. The one fly in the ointment is that right now it stores its own data; but its developers promise the ability to host data wherever you want within weeks, and their pace of evolution is excellent, so I’ve some faith they’ll manage it.

For the moment, I’m sticking with Craft. It’s smooth, it’s elegant, it’s designed by people who clearly care deeply about their users, and much as I love Obsidian (and I do), for now cross-platform ease is too important to sacrifice. I’d strongly recommend it.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)