Bradley Berklich '27
Staff Editor
This past Thursday, October 3, Professors Ashley Deeks and Kristen Eichensehr presented on their forthcoming Virginia Law Review article, Frictionless Government and Foreign Relations. The presentation was the first of the 2024/2025 Virginia Law Review Speaker Series, and it was chaired by Andrew White ’25, Articles Editor for the Law Review, who managed the editing of the piece to prepare it for publication.
Deeks and Eichensehr opened their presentation with an explanation of their thesis and a definition of “frictionless government” as a “bipartisan and bicameral consensus,” meaning instances of lawmaking where both Republicans and Democrats agree, and the House, Senate, and president agree (“overwhelming bipartisan and interbranch support for a policy”).[1] Deeks and Eichensehr assert that during instances of perceived external threats, the government can join in lockstep and make foreign policy decisions with near-universal, frictionless agreement between the parties, houses of Congress, and the branches of government.
Though it is possible to make good policy while operating in a frictionless situation, Deeks and Eichensehr explain that this overwhelming consensus can lead to cognitive biases as a result of diminished checks and balances between agencies, parties, branches, and levels of government. These biases include groupthink, optimism bias, and confirmation bias. Three more, illusion of transparency (thinking your enemies know more than they do), fundamental attribution errors (thinking your enemies are acting based on ill motives rather than situational factors), and the secrecy heuristic (thinking secret information is more valuable and accurate than public information) seem to function with groupthink as a sort of state-level paranoia. Eichensehr said it was “a little ironic” to be “sounding the alarm” on instances where the government actually agrees among itself, especially in these polarized times.
The professors draw upon history for examples of frictionless government creating bad results, namely the internment of Japanese Americans, the waging of the Vietnam War, and some of the counter-terrorism policies that the United States pursued after the September 11 attacks. During each, mass support was galvanized after a focusing event: the attack on Pearl Harbor, the Gulf of Tonkin incident, and the September 11 attacks themselves. Also during each, parties, Congress, and the executive reached a consensus about an aggressive policy prompted by a perceived foreign threat, although that policy was later regarded as misguided.
The modern-day instance of frictionless government the professors were most worried about—and the genesis of the article—is United States conduct toward China, including restrictions on investment and technology transfers. If China cannot access chips made by the U.S. and its allies, it and similarly situated nations are far more likely to develop equivalent indigenous technology faster than they otherwise would and to divest from U.S. financial systems. In addition, the high level of consensus around these decisions may lead policymakers into a vicious spiral of tit-for-tat escalation, arising out of the cognitive biases that come with frictionless governance.
The re-introduction of productive frictions is the Professors’ grand plan to save U.S. foreign policy decision-making. Productive frictions are divided into two types by Professors Deeks and Eichensehr: internal and external. Internal frictions are those which the federal government can impose on itself, including forced dissent (institutionalized “red teaming” or devil’s advocates), mandated reason-giving (institutionalized sharing of reasoning, such as Congress forcing the president to create, explain, and justify a particular national security policy), and policy off-ramps (such as periodic sunset clauses, which force Congress to affirmatively vote to continue a policy, as was included in the Patriot Act). External frictions are those imposed by outside forces. These are more emergent and “stochastic,” said Eichensehr, likely to pop up when push-comes-to-shove on the external forces themselves, namely individual states, corporations, and foreign nations. External entities’ methods of influence include litigation, policy, and lobbying. With these internal and external factors in tandem, the authors hope that competition of ideas can be reintroduced to the national security space.
The role of U.S. states in spurring this frictionless moment with respect to foreign policy on China is the topic of a second paper, still in the works, by Professors Deeks and Eichensehr, tentatively titled “States and the New National Security.” They gave the attendees a preview of their arguments.
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jqr9gh@virginia.edu
[1] Ashley Deeks & Kristen E. Eichensehr, Frictionless Government and Foreign Relations, 110 Va. L. Rev. at *7 (forthcoming 2024). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4727989.