How to beat back Trump’s divide & conquer strategy

We must address the collective action problem

Rachel Cohen is the young lawyer who organized a letter of protest against Donald Trump’s unconscionable attacks on lawyers and law firms, and who subsequently resigned from her job at Skadden, Arps. When I interviewed her on Sunday, she identified a major problem for the pro-democracy movement.

“Big law has a huge collective action problem,” she said. “[I]t's because we are so risk averse. That's how you become these kinds of deeply institutional and important corporate law firms that have existed for, now, generations.”

In other words, the aversion to going it alone or flouting convention that might jeopardize one’s standing in the legal community “makes people believe that it is always bad to be a first-mover,” as Cohen put it.

In a real sense, the collective action problem—no one stands up to the MAGA onslaught because no one else is doing it—now permeates much of civil society (including the press, law firms, and universities). Tech barons feel compelled to cough up $1M for Trump’s inauguration because they don’t want to risk being left off the podium. Paul Weiss capitulates for fear other firms will do the same. Faced with oppressive, powerful forces, it is much easier to go along to get along, keep your head down, and not call attention to oneself. (Hence, the entire Republican Party capitulating to Trump.)

“[I]n the main, professional leaders in journalism, higher education, the military, and the legal profession have been mostly silent. And so these conversations—will the administration come after [members of my profession]? will our leaders defend [my profession] if they come after our own institution—continue quietly, privately, at the dinner table, in the group chat, with the doors closed and the phones off,” Cornell professor Thomas Pepinsky wrote recently.

When people are constantly measuring themselves in comparison to others’ wealth, status, and influence, the fear of losing something (e.g., access to a politician, research grants, social status, blue ribbon clients) can become paralyzing. It is called a collective action problem for a reason—it is hard to break the passivity cycle. But that does not mean it is impossible.

For starters, activists must direct much more attention to intermediary institutions and individuals. If Paul Weiss is ostracized by associates, and Columbia University is shunned by students, faculty, and alumni, then other actors will think twice before capitulating. Conversely, when courageous actors (e.g. Perkins & Coie) do the right thing, they can be bolstered with expressions of solidarity and admiration (as Judge Beryl Howell for the District of Columbia was in Perkins’s court appearance). Once there is a risk/downside for doing the wrong thing, entities might be more inclined to stand their ground and fight.

Second, opportunities to influence wary law firms, universities, and other civil society actors abound. Last weekend, angry faculty confronted and protested against Columbia’s capitulation to Trump’s bullying. The university’s interim president tried to downplay the changes forced upon the university. The Wall Street Journal reported: “Several faculty complained the administration was engaged in strategic ambiguity by sending mixed signals to different constituencies—one for the public and one for faculty.” Keeping up the drumbeat lets Columbia (and similar institutions that may soon be attacked) know this move has consequences that put its reputation at risk.

Also, it is worth noting—at high volume—that Columbia’s surrender (predictably) did not result in reinstatement of the monies. Accordingly, “Two groups representing Columbia University faculty members on Tuesday sued the Trump administration over $400 million in federal funding cuts and demands that the school make dramatic changes to student discipline and admissions policies,” the New York Times reported. “The plaintiffs, the American Association of University Professors and the American Federation of Teachers, asked a Manhattan federal court to restore the funding and argued that the cuts were unconstitutional.” If the plaintiffs obtain the return of the money (i.e. take legal action based on Columbia not having the spine to initiate itself), it will presumably be made plain that there was no basis for the restrictions imposed on Columbia’s operations.

Meanwhile, other universities can eschew the ground of least resistance. They can pledge to reject attacks on academic freedom. If and when even one prestigious university lays down such a marker, it will cement its own status as a prominent academic institution; that leads with integrity. (Also, one or more schools can offer Columbia students the opportunity to transfer, or could agree to hire researchers whose grants were cut. The loss of prestige, students, and top-notch faculty can be a disincentive to cave.)

Likewise, professional organizations and accreditation authorities can demand better behavior. State bar associations can sanction law firms that give up confidential information or agree to let politicians pick their clients. In a similar vein, the college accreditation authorities that bestow legitimacy on higher education institutions could threaten to pull accreditation from any institution that fails to defend academic freedom.

The Association of American Law Schools took a gentler approach in publishing a blistering letter denouncing the “unprecedented and escalating ways legal and educational institutions that are at the heart of our profession.” The letter continued: “Taken together these actions seek to chill criticism, silence those who may seek to hold the executive branch accountable and intimidate lawyers…. The independence of our universities and judiciary, and the ability of lawyers to fully represent their clients, are at the core of our democracy and have long been supported by all Americans, regardless of political party.”

The letter called for efforts to push back against the Trump bullies, including coordination with alumni, judges, local bar associations, and other schools—as well as encouraging public and private demonstrations of support for those Trump targets. Increasing solidarity is, of course, the first and essential step in addressing the collective action problem.

Finally, the American people can make a difference. You have already set an example. In mass demonstrations that far outpace the number seen in Trump 1.0, ordinary Americans have proven that they are the least afflicted by the collective action problem. The willingness of thousands of Americans to speak out and show up should encourage fellow Americans to protest these efforts to divide and conquer law firms, universities, and other aspects of civil society. To sustain that movement, every individual can join, support, or initiate some type of peaceful protest. Ordinary people can also use their purchasing power (and choice of university) to make value-based decisions.

If democracy advocates can change the incentive structure, perhaps we will see fewer examples of the kind of cowardice displayed by Paul Weiss-type law firms and Columbia University-style universities. That means those who have relationships (e.g., clients, employees, associations) and the public at large can use carrots and sticks to influence craven and fearful institutions. If that occurs, then we might stand a fighting chance against the forces of authoritarianism.

Courage is contagious. Spread it.