13 October 2014

When Should Lying Be Legal?

Via Legal Theory Blog: Ariel Porat and Omri Yadlin (Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law) have posted Valuable Lies on SSRN. Here is the abstract:
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information. 
This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling valuable lies in well-defined categories of cases.
There are a number of circumstances where the law authorizes, or at least does not punish, lying:

1.  Lies by law enforcement (but not prosecuting attorneys) in interrogating criminal suspects.  See Oregon v. Mathiason, 429 U.S. 492 (1977) (confession obtained through false statement that fingerprint evidence linked suspect to crime) and Michigan v. Mosley, 423 U.S. 96 (1975) (confession obtained through false statement that co-defendant had confessed).  See also Moran v. Burbine, 475 U.S. 412 (1986) (allowing confession to be admitted despite lie of police to attorney obtained by a suspect's sister to represent the sister to the effect that the suspect was not being questioned when he was being questioned, after suspect waived Miranda rights not knowing that attorney was available).
2.  Lies in connection with a covert intelligence or undercover law enforcement operation to targets of the operation, and in general, to sustain an officially sanctioned "cover identity" such as those in witness protection programs. See, e.g., Hoffa v. United States, 385 U.S. 293 (1966) (undercover agent in non-custodial environment) and Illinois v. Perkins, 496 U.S. 292 (1990) (undercover agent in jail).

3   Lies in the course of political debates and campaigns about policy issues.
4.  Lies about receiving military honors (in some circumstances) despite the Stolen Valor Act.

5.  Lies about your "bottom line" in negotiations.
6.  Lies that are not relied upon by the person hearing them.
7.  Lies about immaterial matters.
8.  Lies that do not lead to economic harm and don't violate other criminal statutes.

9.  Lies told in order to secure sex ("rape by deception" or "rape by fraud") (but some lies to secure a marriage about matters that are deemed to be material as a matter of law, may give rise to an action to annul a marriage).

Categories 1 and 2, as well as a doctor's lies, are true cases of alleged superseding justification.

Categories 3 and 4 are motivated by First Amendment concerns and about courts acting as arbiters of what is true, although I personally feel that 4 was wrongly decided as the usual First Amendment concerns about who decides what is true aren't applicable in any meaningful way.

Categories 5, 6, 7 and 8 are basically variations of the "no harm, no foul" rule together with a codification of what can and cannot be reasonably relied upon.  These are derived from the common law of fraud and misrepresentation.

Category 9 is also troublesome.  On one hand, there are often serious issues of proof, questions about what is material, and longstanding judicial distaste for interjecting itself into the dialog that leads to sex.  On the other hand, there are many cases where those concerns do not clearly apply.  There is also in category 5 a skepticism over how many lies as opposed to what amount to broken promises (express or implied, even if in the form of representation of fact) lead to sex.

In general, I don't favor broadening the scope of lies that are not sanctionable, except in "self-help" situations such as the lie about one's religious affiliation made to avoid unlawful discrimination, which in some sense is a generalization of the lack of legal sanction for lies about immaterial matters.  Indeed, there is a good argument that some of the above categories of authorized lies should be narrowed.

The lie in the abstract example about mineral potential is deeply problematic, because a whole framework of commercial practice and due diligence burdens is predicated on the inability to make material misstatements of fact about such matters, which is as much as rule of the road as it is anything else.  It would be deeply disruptive to commercial practice to change this rule.

Doctors have a very utilitiarian and paternalistic set of ethics and frequently feel that they have the right to lie for the greater good in all sorts of circumstances where it would never be tolerated from lawyers.

A more common a problem than the vaccination issue, which actually is very rarely the case, is the circumstance where prognosis information is withheld from terminally ill people or expressed in an unduly optimistic way, on the theory that a belief in a better prognosis will make it a better outcome more likely through a sort of placebo effect (with the placebo effect itself being the classic physician lie for the patient's well being).

Law enforcement officers and doctors, already conditioned to believe that it is ethically permissible to lie under some circumstances are also particularly prone to also lie for the impermissible purposes of covering up their own mistakes and the mistakes of their peers.

Another area where there is a distinction between non-disclosure and false affirmative disclosure that is, I would argue, morally relevant, is between anonymous or clearly pseudonymous writing in which there is clear non-disclosure of authorship, and sock puppetry, in which there is affirmative deception concerning authorship.

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