Risk vs. Uncertainty: Advising and Advocating in the New Paradigm

While listening to a Freakonomics podcast recently focusing on John Urschel’s abrupt decision to retire from the NFL., I was intrigued by the discussion of how we make decisions in the face of risk versus uncertainty. By way of explanation, the introduction to the piece asks how it is possible we have billionaires, especially given that markets are usually reasonably competitive – which would mean no one person could make billions and billions of dollars. Originally, economists surmised that the answer to this conundrum was that captains of industry, such as the Andrew Mellons of yore, were smart calculators and took big risks.

A detailed explanation followed regarding the differences between “risk” and “uncertainty.” Risk involves knowing all the factors and being able to make a mathematical calculation based on that knowledge, even if you cannot precisely predict the ultimate outcome, but rather only your odds. Whereas uncertainty means we do not know all the data because there is insufficient information. Therefore, we must make decisions on how to move forward with no solid basis for supporting those decisions besides a strong feeling that those decisions will lead to the desired outcome. One example is Bill Gates – he took on uncertainty, rather than calculating a risk, and his innovation filled a void with the creation of Microsoft.

As we all reel from the decision to rescind DACA, it becomes more and more difficult to feel confident advising our clients given the shift from risk-based assessments (based on our knowledge of all the factors and historical precedent) to the pure uncertainty immigration policy faces. This uncertainty has hung like a thick fog, penetrating every aspect of our practices. Broad-brush pronouncements from the new administration in the form of executive orders that announce policy changes with no guidance on implementation have us wondering how to advise our clients – companies, individuals, groups – regarding the future of the status quo.

The travel and refugee ban left everyone in complete chaos as multiple branches of the government scrambled to implement it in a vacuum, and the fallout severely impacted individuals. “Buy American, Hire American” has companies wondering if or when the H-1B program will be dismantled, or perhaps changed so completely that it will upend all the carefully laid plans by the individuals and their employers.  Daily, our vulnerable community members and neighbors live in fear of answering the door, failing to signal properly while driving, or showing up at work due to shifting prioritizations in removal.

Sitting across from clients at a free immigration consultation clinic over the weekend, I was unsure how to advise the El Salvadoran nationals, faithfully renewing their TPS and EADs every 18 months since 2001. The decision on DACA has shaken them, as it becomes increasingly apparent that they may not only lose any chance at the dream of permanent legal status, but also may no longer be able to remain in the country.

Do I explain to them that the government phased out TPS for Haitians, despite bipartisan pleas from multiple influential congresspersons and plenty of evidence based on continued country conditions that the decision to discontinue is contrary to the spirit of the program? Do the recent decisions on DACA and Haitians allow me to calculate risk for them? Or rather, are we in wholly uncertain territory where the whim of the administration spares them now, but keeps them on edge for the following 18 months? How do we take on uncertainty and forge plans that will guide our clients given we have no ability to calculate risks?

Taking on uncertainty means we need to be nimble and creative in our advice. It also means innovating and finding solutions that we have either never considered, or rarely had to use. Our superhero litigator teammates, and some spectacular judges, are proving our judicial branch is more important than ever. Among many examples of the rise in divergent thinking as we face these new challenges are the recent lawsuits filed by both the University of California, and New York and 14 other states plus D.C. Our tireless colleagues’ constant brainstorming and expert analysis of the current law and its applications in the face of policy announcements, denial trends and other unjust practices creeping into the current framework are working to hold uncertainty at bay.

Inspired by these actions, we must be creative in our thinking and planning, and ready to start from scratch. We also have an obligation to continue to support, advocate and demand humane and reasonable changes through legislation. In the face of uncertainty, we can and must persevere.

by Diana Bauerle