The Problem of Risk-Averse Spies

-- By SidneyChiang - 31 Mar 2016

The idea of a spy seems to evoke two archetypes in popular culture. On the one hand, espionage seems to connote the gathering of information. On the other, the notion of a sleeper agent seems to rest on the idea that the agent can break his cover to engage in proactive action (e.g. assassination with a poison-tipped umbrella).

Of course, these distinctions are at best artificial categorizations that set up false dichotomies, and one must understand someone like Snowden as both intelligence gatherer and activist. Still, most would suggest that we do not either celebrate or condemn Snowden purely as an intelligence gatherer, but rather for what he does with the information. As such, the key question seems to be whether each skill has value in itself.

It seems that our discussions have revolved around people and characters who, if forced into this dichotomy, are more akin to the latter than the former. In other words, based on our discussions, we understandably do, or perhaps should, make value judgments based on action rather than passivity.

This harkens back to our comparison of John Brown as distinguished from Washington freeing his slaves after his death. Although Brown as a sleeper agent waiting to break his cover is of course an inaccurate depiction, he and his decisions seem to contrast to the myth of our Revolutionary leaders, the best of whom did little before his death to abolish slavery. In this context, the heroism of Brown lies essentially in his taking a risk to advance his views, as opposed to the much more risk-averse choice for Washington to avoid potential damage to reputation and a more difficult livelihood by freeing his slaves while he was still alive.

The threshold question for us, as people who are as of yet unlikely to risk our licenses, much less our livelihoods, is whether there is a place for a form of passiveness that might be akin to the information-gathering archetype. That is, to what extent is recognizing problems in the world in itself valuable, even before taking the risky but necessary actions to try and combat them.

We recently have been discussing the employment context, and we seemed to suggest that there is value in participating and observing to learn what we can do better. This in itself may be less admirable than taking actions that might be necessary to change the firm or the greater system of "top-law-school-to-big-law-firm" trajectory. This runs us up against the problems of seeing the problems in society today -- for example, the big law firms and their corporate clients taking advantage of people -- and perhaps leads to us accepting them even if we could potentially help fight against these issues.

Certainly, I have heard in the past the claim that lawyers, in general, tend to be more risk-averse than most. To use a different popular culture example, I would posit that law students are more likely to associate with Ravenclaw (valuing intelligence and knowledge) or Slytherin (valuing ambition and cunning) rather than the presumptive heroes in the Harry Potter series, the Gryffindors (valuing courage).

At the same time (writing with my personal biases), to me it also seems that the calculus is affected by whether one is taking action and taking risks for risk's own sake, or whether one can do good over a longer timeframe, even if accepting smaller gains.

A similar argument in a different context may be the notion of David and Goliath strategies, where underdogs may benefit from choosing higher variance strategies. With a higher variance, there are more beneficial outcomes in a world where losing by a little and losing by a lot may not be significantly different (as in the world of sports). In this case, though, high variance is not necessarily a good unto itself -- Goliaths may not be benefitted by pursuing such strategies (precisely because they lead to more outcomes where Goliaths lose).

We are, now, indisputably the Goliaths of the world. This is only going to get more obvious as we enter the world of Big Law. We have clear self-interested reasons in not disturbing the status quo (see, e.g., first-year associate salaries).

The next question then is why a different understanding of risk does not better apply to us, who have tremendous opportunities to do good in the world: perhaps the expected gains are higher if we are willing to take risk. Maybe, in fighting slavery, the arch of the moral universe bends towards justice.

At the same time, I do not doubt that many of us will have comparative advantages in providing certain kinds of services that may not be obviously good. In our discussions, I struggle with whether it is sufficient to do well based on some notion of what we are best at, and then essentially buy myself a clean conscience under a principle of efficiency.

This attempts to justify, over the long-term, getting paid money to sustain evil but using it in almost subversive ways. In other words, it seems to suggest a kind of double-agent espionage, where a spy may have to feed a sufficient amount of accurate low-value information to not be considered suspect, but allowing the agent to provide information or misdirection over the long run.

In the end, I do not mean to suggest that I can be some kind of hero or a spy; the lure of the Dark Side is strong. I have been intrigued by the arms of Stephen Dedalus (silence, exile, and cunning). But, if anything, relative to the start of the year, I have become substantially more troubled by the notion that I cannot be sure that I will either encounter the reality of experience or that I will value forging the uncreated conscience of my race.