• Published Opinion: The Tyranny of False Proxies

    Numbers can lie. We all know this, but misleading numbers are in the middle of many of our struggles in the law and legal education.

    The problem is false proxies – a quantitative, seemingly objective, measure that inaccurately reflects the truth and sends our efforts in the wrong direction. For example, and perhaps most importantly, money often serves as a false proxy – as a misleading guide to which job or house or trip is the “best.”

    In my own field of criminal law, false proxies have led us far astray in many respects. For example, we use the weight of narcotics possessed as a proxy for the culpability of someone involved in drug trafficking. If you are holding a lot of drugs, you get a long sentence. However, this is a stunningly misleading indicator of the person’s role in the offense. It is the people who are least culpable – the mules who transport drugs for relatively low pay and insignificant street dealers and middle men – who are usually caught with large amounts of drugs, and who fill our prisons. Predictably, these mules, street dealers, and middle men are also the people who are most easily replaced, and they are, as the trafficking network continues unabated, run by sophisticated international players who know better than to drive a truck full of cocaine. By this false proxy we fill our prisons while failing to solve any problem.

    A second false proxy is something we see clearly within the law school – the use of salary as a proxy for worthwhile employment. I worked at Baylor Law School for 10 years before coming to St. Thomas, and I still regularly hear from my students there. Often, it is the same refrain: The student is miserable in their high-paying job at a Houston or Dallas firm, and wants to switch to a more meaningful career in criminal law. Some of these students took the high-paying job out of necessity, to pay off loans. Others, however, took the job because of the status and prestige that went with that kind of position and the salary it brought. Two or three years of laboring more than 60 hours a week and having little to no agency over their work brought them to a rethinking.

    Finally, St. Thomas School of Law itself struggles with a false proxy – the U.S. News rankings. As a newer school we face a special challenge, but the poor fit between those rankings and our mission strikes deeper than that. The commitment of our faculty, administration and students to making this school different in a way that is good for our students and good for the world, and the very positive results we have achieved, simply do not have a place in the rigid formula used by U.S. News to rank-order schools in terms of“quality.”

    We can’t deny that these false proxies matter. As a prosecutor, it was very effective to stack up bricks of cocaine in the trial of a defendant – even if that defendant only earned $300 to drive that cocaine across town. As a law student, it is hard to escape the notion that a high-paying, big firm job is inherently attractive. As a law school, regardless of what we know ourselves to be, we instinctively want our school to be high-ranked.

    Why are we programmed that way? It could be because raw numbers – kilos of marijuana, dollars per year, or a top-tier ranking – seem so objective, and therefore more “true.” It is alluring and easy to accept as normative a system in which one case or job or school is stacked above another.

    However, what is good and meaningful and real is rarely found in what is alluring and easy. To reject false proxies means engaging in a deeper search for valuation – something that cannot be so easily reduced to a number.

    As faculty at St. Thomas, we are in a wonderful position to challenge ourselves and our students to reject and re-examine false proxies – including those in their work (like drug weights), in their choice of vocation (salaries), and in the way they view our school (wherever it is ranked). It may be fighting upstream, but … we’ve become good at that.

    Author: Mark Osler is a professor of law at St. Thomas. A graduate of William and Mary and Yale Law School, he is a former federal prosecutor who focuses his scholarship and advocacy in the field of criminal sentencing.

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