Visibility, accountability and discourse as essential to democracy: the underlying theme of Alan Dershowitz's writing and teaching

Albany Law Review, Summer, 2008 by Alan M. Dershowitz

The subtext that runs through all of my writing and teaching is the need in a democracy for openly articulated criteria and standards whenever states (or state-like institutions) take actions that affect the rights of individuals. This need may seem obvious, since democracy cannot operate in the absence of visibility and accountability. Yet, in virtually all of the areas about which I have chosen to write and teach, the criteria and standards for government action have been unarticulated or hidden from public view. Moreover, there have been some who have argued that it is wiser, even in a democracy, to sometimes hide from public view (and hence public scrutiny) what the government is doing. (8)

It cannot reasonably be disputed that some governmental decisions and actions must be kept secret, at least for a time. Espionage activities, weapon development, military planning and the like must, by their very nature, be kept under wraps if they are to succeed. But broad policy decisions should, in a democracy, be subjected to the checks and balances not only of the other branches of government but of non-governmental organizations such as the media, the academy, and, most importantly, the citizenry. As I wrote in Rights from Wrongs:

   This balance is part of our dynamic system of governing, which
   eschews too much concentration of power. American sovereignty,
   unlike that of most other Western democracies, does not reside in
   one branch of government or even in the majority of the people. Our
   sovereignty is a process, reflected in governmental concepts such
   as checks and balances, separation of powers, and judicial review.
   More broadly, it is reflected in freedom of the press, separation
   of church from state, academic freedom, the free-market economy,
   antitrust laws, and other structural and judicial mechanisms that
   make concentration of power difficult. (9)

These checks on abuse cannot operate effectively in the absence of visibility, accountability, and public discourse. What is needed, and what is sorely lacking, is a theory of when governmental actions may appropriately be kept secret (and for how long) and when they must be subject to open debate and accountability. I have been seeking to contribute to the development and articulation of that theory by writing and teaching about areas of law in which the criteria and standards for state action are either hidden from public view or so vague that they invite the exercise of untrammeled discretion not subject to the rule of law.

Perhaps it is my interest in this issue of standards and accountability that is one of the reasons why I chose to focus my academic career around areas such as the prediction and prevention of harmful conduct, where there are few articulated standards and little public accountability. Or perhaps it was my focus on prediction and prevention that sensitized me to the more subtle issue of lack of visible standards and criteria. Whichever was the chicken and whichever the egg, these two paramount areas of my interest have worked symbiotically to generate my body of scholarship.