A few weeks ago, several prominent American universities and law firms found themselves in what seemed to be a classic prisoner’s dilemma, courtesy of President Trump.
His campaign of retribution against law firms that represented or hired his political opponents, and against universities that engaged in “woke” policies or purportedly fostered antisemitism, was forcing them to make an unappealing choice.
Those who capitulated and struck an early deal with the White House, it seemed, might be spared the worst of Mr. Trump’s wrath, but at the cost of jeopardizing their independence. Standing up to the president risked even harsher punishment, particularly if other institutions stayed silent.
Columbia University made a deal with the administration. So did some of the largest law firms in the country. Recent changes, however, suggest that the dilemma is starting to look very different.
Last month, Harvard became the first university to announce that it would not comply with the administration’s demands, which it called “illegal.” Other universities moved from collective silence to unified opposition: “We speak with one voice against the unprecedented government overreach and political interference now endangering American higher education,” more than 400 university leaders said in a statement.
Several large law firms sued to block the executive orders targeting them, winning temporary injunctions. Hundreds of other firms signed on in support of the effort. And on Thursday, Microsoft dropped a law firm that cut a deal with the White House, and hired one of dissenting firms to represent it in a high-profile case.
The previous dynamics are no longer holding true. So what changed?
“We had been thinking about this as the prisoners’ dilemma, but we were wrong,” said Tom Pepinsky, a political scientist at Cornell University.
An untrustworthy jailer
In the famous prisoner’s dilemma thought experiment, two “prisoner” players — unable to communicate with each other — must decide whether to cooperate for mutual benefit, or betray each other for individual gain. If neither confesses to a crime, both go free. If one confesses, that prisoner gets a reduced sentence while the other gets a long one. And if both confess, then both serve mid-length sentences.
Even though cooperation with each other — silence rather than confession — leads to the greatest potential benefits, the most rational individual decision is to take the jailer’s offer, and confess.
But crucially, one assumption in the prisoner’s dilemma is that the jailer is trustworthy. There is an explicit promise that confessing will allow prisoners to avoid the longest sentence.
In the real world, however, instead of rewarding those who capitulated early, the Trump administration pressured them even more.
Columbia University, for example, agreed to concessions that included imposing new oversight over its Middle Eastern studies department and creating a security force empowered to make arrests. But that was not enough to restore the more than $400 million in grants that the Trump administration had canceled, or to prevent the administration from making even more demands.
Law firms like Paul Weiss, which thought they had escaped punishment by agreeing to do pro bono work for uncontroversial causes, discovered that Mr. Trump saw their agreements as a blank check for them to do his bidding.
As my colleagues have reported, the law firms discovered that they had agreed to deals that “did little to insulate them from his whims.” One expert at Yale Law School said the “administration seems to think that they have subjected these firms to indentured servitude.”
Elizabeth Saunders, a political science professor at Columbia, likened the Trump administration’s stance to a famous line from Darth Vader in “The Empire Strikes Back”: “I am altering the deal. Pray I do not alter it any further.”
“Capitulation has a track record,” said Ms. Saunders, “and it’s not pretty.”
The expectations game
History shows that when the risk-benefit calculus of collective action changes, the consequences can be seismic.
In the famous academic paper “Now out of Never,” Timur Kuran, a political scientist and economist at Duke University, asked how the 1989 revolutions that brought down communist regimes in Eastern Europe managed to take nearly everyone, including the revolutionaries themselves, by surprise.
The answer, he argued, was that the revolutions were the result of the governments themselves behaving unexpectedly. Their response to protesters was less harsh than had been anticipated and feared, which caused people to reassess the costs of participating in the opposition. And because there was already a large reservoir of silent discontent with the status quo, uprisings grew very rapidly when people stopped hiding their true feelings.
Similarly, when the “deal” on offer in exchange for capitulating to authority becomes substantially worse, collective action starts to look like a better option.
In Poland, the pro-democracy movement and the Catholic Church made an implicit bargain: The church would support the movement, in exchange for women giving up some of the reproductive freedoms they had under communism. But years later, when the far-right Law and Justice government came in, it changed the deal, rolling back democracy and also ramping up restrictions on abortion to a near-total ban.
As a result, people who might once have grudgingly tolerated the government poured into the streets in protest, in the largest demonstrations in Poland since the fall of communism.
Lawyers in the streets
Some law firms and universities appeared to be making a similarly rapid shift in their risk-reward calculus in recent weeks.
On May 1, about 1,500 demonstrators, many of them lawyers in business attire, protested outside Manhattan’s federal courthouse as part of the National Law Day of Action — one of around 50 similar actions around the nation.
The costs of staying silent in the hope of avoiding the administration’s ire may also have been growing. In “Now out of Never,” Kuran wrote about the personal cost of what he calls “preference falsification” — suppressing what one truly believes or wants for reasons of self-interest or self-preservation.
“The suppression of one’s wants entails a loss of personal autonomy, a sacrifice of personal integrity,” he wrote. “It thus generates lasting discomfort, the more so the greater the lie.”
Lynn Pasquerella, the president of the American Association of Colleges and Universities, said she has observed “burgeoning moral distress” among her membership in recent months. “Campus leaders feel like they’re being coerced into making decisions they believe are unethical, but they feel they have no choice,” she said. “In many instances, that moral distress has morphed into a moral injury that results from the continual erosion of a moral compass.”
And at the same time, the rewards of opposition have become clearer.
“Harvard’s brand has never been stronger in the 25 years I’ve been here than it is right now,” said Steven Levitsky, a Harvard political scientist who coauthored an op-ed in March calling on Harvard and other universities to publicly defend democratic freedoms.
“They worried that their brand was in so much trouble that if they spoke out, Trump would win the battle politically,” he added. “But it’s been the opposite.”
Thank you for being a subscriber
Read past editions of the newsletter here.
If you’re enjoying what you’re reading, please consider recommending it to others. They can sign up here. Browse all of our subscriber-only newsletters here.
I’d love your feedback on this newsletter. Please email thoughts and suggestions to [email protected]. You can also follow me on Twitter.
Amanda Taub writes the Interpreter, an explanatory column and newsletter about world events. She is based in London.
The post What Happened When Trump Altered the Deal With Law Firms and Universities appeared first on New York Times.
