Security Vs. Liberty: An Imbalanced Balancing

25 Pages Posted: 11 Sep 2009

See all articles by Oren Gross

Oren Gross

University of Minnesota Law School

Date Written: September 10, 2009

Abstract

The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. Since the terrorist attacks of September 11, 2001, that metaphor has been invoked regularly to explain the need for a trade-off between liberty and security. This Article focuses on challenges to balancing that are either unique or somehow exacerbated in the context of responding to violent crises. Drawing on cognitive theory of decision-making under conditions of uncertainty it suggests that balancing processes, in general, and those seeking to balance such interests as liberty and security, in particular, are likely to suffer from identifiable biases. This indicates that the outcomes of such delicate and complex balancing acts are likely to be distorted and thus sub-optimal. While the theory does not, necessarily, make claims as to what the equilibrium between the competing interests ought to be at any given context - for example, it does not seek to determine what an acceptable level of risk from terrorist attacks ought to be - it does suggest that once such a decision is made, the analysis that decision-makers perform in particular cases and in adopting specific counter-measures is likely to be significantly flawed. Perhaps even more importantly, it suggests that such flaws are systematic and that they are going to be tilted in one direction - i.e., towards more security - than the other, i.e., more liberty. The systematic nature of the biases that are identified suggests that failure to address them may turn the mistakes and errors that are discussed in the paper into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.

Keywords: balancing tests, cognitive theory, Heuristics, national security

Suggested Citation

Gross, Oren, Security Vs. Liberty: An Imbalanced Balancing (September 10, 2009). Minnesota Legal Studies Research Paper No. 09-42. Available at SSRN: https://ssrn.com/abstract=1471634 or http://dx.doi.org/10.2139/ssrn.1471634

Oren Gross (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South, #430
Minneapolis, MN 55455
United States
612-624-7521 (Phone)
612-625-2011 (Fax)

HOME PAGE: http://www.tc.umn.edu/~gross084

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