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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Justified and Unjustified Loss of Trust (in institutions)
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Thursday, July 30, 2026
Justified and Unjustified Loss of Trust (in institutions)
Stephen Griffin
You may have heard of the “Yale Report” – in April
Yale University released a thoroughly researched response to public concern
with universities. Authored by a panel
of distinguished scholars, it is titled “Report of the Yale Committee on Trust
in Higher Education.” The
Committee felt there was not much trust to report. It cited public opinion polls to the effect
that public confidence in higher education had declined twenty points over the
last ten years. The Committee usefully
defined the trust relationship by saying “[t]rust is earned by doing what you
say you’re going to do – and, ideally, doing it well.” The Yale
Report is part of an upsurge of concern with trust. In particular, it seems ever since the
beginning of Trump’s second term, we are awash with claims of a loss of trust
in institutions. Besides the Yale
Report, examples are easy to find. An
asserted loss of trust in the public health establishment because of the
Covid-19 pandemic. A loss of trust in
the federal government, including the Supreme Court. Leading media organizations like CBS news try
to ride with the times by hiring new managers who assert the need to change
because of a loss of trust. These claims
are not simply offered as observations about a lamentable state of
affairs. They are being used in a
systematic way to build a case for the reform of government and other key
institutions in American society. Like
any foray into the sphere of public argument, such assertions can be critiqued
for deficiencies of logic and factual validity.
I am in the process of writing a short paper which poses a different question: is it possible to
critique such assertions normatively?
Indeed, what would a normative critique look like? Such
questions are worth posing because assertions of a loss of trust in institutions
appear to be based on an assumption that they are like interpersonal
losses of trust. Consider that losses of
trust in individuals are plausibly seen as based on relevant personal
experience and, as such, cannot be questioned easily except perhaps on the
limited grounds of mistake or cognitive bias.
But this crucial assumption is problematic. Social and governmental institutions are
complex structures and our relationships with them do not resemble our personal
relationships. To the extent this
analogy is misguided, this undermines the basis for changing the ways of an
entire institution simply because of an asserted loss of trust. In other words, I suggest there are
conditions under which loss of public trust in institutions, no matter how
real, is nonetheless unjustified from a normative point of view. I suggest the claims of loss of trust have a common
structure meant to motivate institutional reform. It is: “We (as an institution) have lost
public trust, therefore we must do X.” I
call this the “trust critique.” The
critique certainly can be questioned on empirical and logical grounds. Empirically, we might doubt that there is
sufficient proof of a loss of public trust or, at least, a significant
loss. Alternatively, we might question
this position on the ground that the loss of public trust is not related to the
proposed remedy. What proof is there
that the remedy will restore trust?
Perhaps the remedy is simply something that officials wish to do that
was previously blocked. The assertion of
a loss of trust, considered an especially severe criticism, helps meet burdens
of argument and so unblocks the channels of change. Let’s
assume, however, that there is sufficient empirical grounding for the belief
that public trust in a given institution has declined. Further assume that there is some basis for
thinking that there is a link between the proposed reform and the restoration
of at least a modicum of public trust. I
suggest the common position is that’s all there is to it. The case is made and we should go forward to
a brighter future. A
brighter future there may be, but the common position is nonetheless ignoring
the possibility of normative criticism of the loss of trust. Such a critique would concede the loss of
trust, even a serious loss, but maintain that this does not justify change or
reform because the loss of trust is unjustified. How would such an argument work? If we proceed with the common
assumption that loss of trust in institutions works in the same way as loss of
trust in individuals, we may wonder how a normative critique would get off the
ground. Suppose a friend of yours whose
judgment you respect loses trust in you because of an action on your part and
there is no mistake or bias involved.
Wouldn’t that be devastating?
Seeking to preserve the friendship, wouldn’t you try to win back their
trust quickly? The emotional shock and
the consequences that flow from the startling realization that you are not
trusted by people you care about is, I suggest, what officials are trading on
when they treat loss of public trust as a persuasive, almost automatic
rationale for sweeping change. They are
implicitly treating the worst sort of justified losses of interpersonal trust
as exemplar cases for the loss of institutional trust. But judgments about trust and distrust of
institutions must and should proceed differently. My
discussion suggests there are two additional issues here not readily apparent
in the individual case. The first is
whether a given criticism relates to trust at all. Although criticisms of institutions are often
presented in terms of “trust,” they are actually perfectly comprehensible and
sound as stand-alone objections. As
such, they do not necessarily place the trust of the institution in question. There is
also the issue of whether we are justified in distrusting an entire institution
given the epistemic problems of understanding what is going on in the entire
institution. The epistemic problem
directly supports the point I am making about the possibility of a normative
critique. It makes it plausible that
there is the possibility of replying to the common position identified in
section 1 by arguing that although a loss of public trust did occur, it was not
justified. Why? We can start with the points just made. The public sometimes accepts stand-alone
criticisms and assumes they have something to do with “trust” without
considering whether the criticisms impeach the institution as a whole. In addition, the public often lacks evidence
that these criticisms are systematic, that they relate to key goals or the
integrity of the entire institution.
Without denying that distrust of institutions is sometimes justified,
the trust critique is unjustified if these points are correct. Crucially,
I suggest that the trust critique is made so broadly that it is in danger of
becoming a runaway, a critique without any reasonable limit. The Yale case is helpful. Like many organizations under public
scrutiny, Yale has no sophisticated survey research available to pin down the
specific reasons for the loss of public trust.
In fact, doing such research for a particular university might pose
difficult methodological issues. The
survey research cited in the Yale Report pertains to all universities, not
elite private schools like Yale.
Consequently, Yale doesn’t really know why it is distrusted. Let’s
suppose nonetheless that Yale has a public trust problem, even though how to
respond is a highly uncertain matter. I
suggest those who advance a trust critique should be able to state the
conditions under which they would again trust Yale. To support this contention, consider the
difference between criticizing Yale on specific grounds and criticizing it
because you say you no longer “trust” Yale.
Critiques on specific grounds can be argued with. If Yale doesn’t have a reasonable response or
concedes the argument to its critics, it should change its ways. But the trust critique is typically
different. It says “become trustworthy
again” and nothing about the logic of how the critique is typically made
encourages the potential trustor to say how to do this. In
addition, philosopher Onora O’Neil (in her BBC Reith Lectures) made a
valuable point about people still using institutions they purport to distrust. We might turn this into a kind of “no
free-riding” response to the trust critique.
If parents and stakeholders continue to contribute and send their kids
to Yale for what no one doubts is a valuable higher education, then why should
we pay attention to their distrust? They
are riding along with and benefiting from Yale even as they purport to condemn
it. They say they distrust Yale,
but O’Neil’s argument suggests they are really participating in an unhealthy
“culture of suspicion” that is unsupported.
Perhaps what they are after is a Yale run in accordance with their
wishes, something that is impossible.
Yale cannot serve this many masters. Without
specifying the conditions under which trust can be maintained or restored, the
effect is to take Yale University as a whole off-line until it is determined
(how?) that they once again enjoy public trust.
The trust critique implies that in this limbo anything goes. By contrast, requiring potential trustors to
state their conditions for trust promotes a healthy win-win scenario. Institutions subject to the trust critique would
know what they are supposed to do and could at least fairly evaluate how to
respond.
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