When making critical legal decisions for an organization, two major pitfalls to be especially aware of are the concepts of “intentional ignorance” and “practical drift”.
Generally speaking, “intentional ignorance” [originally referenced as “willful ignorance” by Noam Chomsky] is the theory of “truth shrouding” or myth-making. The unwillingness, in an organizational setting, to address an organizations senior level knowledge gap over time can have serious consequences. Running contrary to the model of “life long learning”, intentional ignorance can often simply start with the inability or unwillingness to ask strategic questions on long term goals. A simple example we are all familiar with, when confronted with a new idea or construct, is when someone responds with the time honored rejection by simply saying “but that’s not the way we have always done it”. They then use that way of thinking to not pivot towards a better understanding of the current facts and circumstances in order to reconsider the situation. It is also referred to as “informational denial”. By analogy in policy matters, in the FOREIGN AFFAIRS article [March/April 2017] entitled “How America Lost Faith in Expertise”, Professor Tom Nichols of the U.S. Naval College wrote that the lack of “metacognition” [i.e. the ability to think about the way you think] results in “ignorance – at least regarding what is generally considered established knowledge in public policy – is seen as a virtue”.
On the other hand, “practical drift”, was a theory originally coined by Lt. Colonel S.A. Snook in his seminal book “Friendly Fire – The Accidental Shootdown of U.S. Black Hawks over Northern Iraq”, to describe the gradual decoupling of practice from written protocols and procedures that can result in catastrophic disaster in a military setting and other complex environments. Simply put, over time an organization’s actual practices begin to “drift” from its written procedures. When reviewing the root cause of the drift, it is too often discovered that, what some in the organization have considered an “efficient adaptation”, or a pragmatic fix, too often is simply an oversimplified adaptation of a standard protocol, based on a misunderstanding of how one’s actions impact other units.
From a legal strategic perspective, an unwillingness to learn new legal compliance requirements, or creating short-cuts to existing legal compliance procedures, may appear to be “efficient” in getting a project done short term, but it is ultimately “ineffective” or even disastrous long term. As we all witnessed in the Deepwater Horizon drilling rig explosion in 2010, poor decision-making comes about in many ways, including intentional ignorance and practical drift. An organizational meta-dialogue on both theories, and how they impact your company, is important to avoid the catastrophic results of such decision-making errors. Are you drifting, or simply ignoring new data points? Good corporate governance requires addressing both these important decision-making constructs. As a member of a company’s outside team of professional advisors, we are both willing and able to help you navigate these risk matters.