Conceiving Due Process

essence of the duty to take care, but by trying to understand what taking care means in particular settings. 3 27 When we contemplate the multiplicity of government-citizen interactions, we would not see chaos threatening to overwhelm legal order and stability unless reduced to a finite and predictable set of categories. Instead, we would see in each situation an opportunity to observe, and to integrate our observations, and to develop practices of responsible care-taking, and improve our practices. We would recognize the challenge of the undertaking, but we would not fear that we could not tell a person from a paper clip.3 2 And if the solutions we devise turn out to be underprotective or overintrusive, we would not condemn the enterprise on grounds that the welfare state is fundamentally irredeemable, or the activity of constitutional adjudication necessarily limited, or human nature essentially unchangeable. Skeptical of the existence of absolute truths (or at least of our ability to 326. Minow, supra note 298, at 1876. 327. A standard practice is to begin with concrete experiences, integrate these experiences into theory, and rely on theory for a deeper understanding of the experiences .. . .Rather than working deductively from abstract principles and overarching conceptual schemes, such analysis builds from the ground up. Rhode, supra note 254, at 621 (citations omitted). 328. See supra note 325. One could perhaps hypothesize a situation in which a contract to sell government some commodity might be so critical, not simply in economic but in psychological terms, to a person's sense of self that we would think of its termination as if it were his job directly on the line. But even in the enterprise of imagining this unusual and fact-specific case, we demonstrate our ability to distinguish it from the garden variety contract to supply paper clips. Only the strength of the liberal-legalist mindset makes us feel defensive about insisting that we know the difference. 1991] Yale Journal of Law and Feminism recognize them),29 we would recognize the difference between what cannot be accomplished, and what we have not managed to accomplish-yet. The transformations, radical and subtle, within the doctrine that would follow such a reconception of the goals and nature of due process jurisprudence are hard to imagine. But some things seem apparent. Our thinking about what interests "trigger" due process would not be caught in the positivist trap, for we would neither fear the perils nor yearn for the solutions that made the trap so fatally seductive for liberal legalism. For one thing, positive law would no longer appear the safe haven of judicial legitimacy. Once we abandon, as undesirable as well as impossible, the picture of adjudication as a value-neutral exercise in detached ratiocination, we will measure the legitimacy of judicial action not by whether it furthers some particular set of values, but rather by which values it furthers. In searching for the values that will foster human flourishing, we would understand that a positive law pedigree can provide no imprimatur. Consent is too surely contingent and too often compromised and is, in any event, not the sole touchstone of civic responsibility. In locating the meaning of government's duty of care, we would recognize that the outcome of the political processes can be but one source to consult. 3 ° In addition, the shadow of Lochner would recede as we accept the possibility that procedural due process implicates different interests than those which trigger substantive due process and takings analysis. Thus far, we have been confounded by the riddle of how the Constitution could intervene to mandate procedural protection for deprivation of an interest it did not require government to provide in the first place. Now, however, we would see the animating concern of procedural due process to be how government treats its people; what it is taking from them is significant only indirectly. To be sure, the importance of the benefit or burden at stake would be relevant in specifying responsible official behavior. Some interactions between government and citizen would doubtless involve sufficiently inconsequential harm as to fall below some minimal standing threshold. 33' And in thinking about what practices constitute the taking of care, we could not ignore the interplay of substance and procedure.332 We would, however, understand that the protection 329. Bartlett, supra note 297, at 885. 330. Hence we would reach a doctrinal point that has long seemed to us essential-that due process protection does not depend upon the terms of simple-majoritarian law-but by a very different route than any that liberal legalism could imagine. 331. Another sort of harm that might not be met with process (or, at least, with individualized process) is harm that is shared in kind by a large, indefinite group of persons. We might well maintain the presumption, established at the turn of the century by the Londoner and Bimetallic cases, see supra note 53, that individualized process is needed when government singles out a citizen for harm based on her particular circumstances, but that only "legislative" process is due when the harm falls comparably upon many citizens-especially if our notion of due process of law/rule-making were enriched (to attempt to address failures in the legislative process) by something like Laurence Tribe's concept of "structural justice." L. TRIBE, supra note 50, at 1673-1687. See also Tribe, supra note 86. 332. We could not, for example, simply ignore the impact of procedural costs. Care-taking practices are ones which attempt to accommodate responsibilities to all who are dependent, including other present [Vol. 3: 189 Conceiving Due Process of relationship is different than the protection of things. We would recognize that we do not have to think about a claim that government must take care in distributing benefits or imposing burdens as if it were a claim that government must distribute benefits or may not impose burdens. In this sense, we would pursue the important insight of dignitary theorists that the primary focus of procedural due process should be on the quality of the interaction between government and citizen. However, because we would understand the nature and implications of that interaction very differently, we could avoid the pitfalls that condemned those theorists, within their liberallegalist framework, to failure. For one thing, if we concluded that, in a particular regulatory context, practices of care required the opportunity for revelation and participation, we would not be stymied by the "use as means" dilemma. Understanding personhood as a continually and necessarily interactive process rather than as a static and self-sufficient state, and viewing interchange with others as the way in which knowledge, desires and values are created rather than as a mutually exploitative confrontation, we would not regard the responsibility to communicate with another as a reduction to mere means. Indeed, affirming such a responsibility would be one of the clearest commitments to nurturing the personhood of both citizen and government official. Each participant in the dialogue is understood as helpful, and indeed necessary, to the fulfillment of the other. We have always assumed that the official has information which could help the citizen better order her life, presently and in the future; we would now affirm, as equally important, that the citizen has information which could help the official better do her job, presently and in the future. If knowledge is situated in context and contingent upon perspective, then a decisionmaker cannot learn to use her power wisely unless she listens to those who are affected by her decisions. Perhaps more important, in the act of interchange itself we create at least the potential for citizen and official to discover their commonality. If the responsible and careful use of power is rooted in the and future beneficiaries. Cf Whitbeck, supra note 298, at 56 (moral theory must take as important problem "how to elaborate ways of resolving conflicting responsibilities to dependent particular others"); Henderson, supra note 298, at 1584 ("[lI]t is not impossible both to empathize with the suffering that often produces the sociopath and to accept the necessity of removing him or her from society."). At the same time, "substantive" programmatic rules could not be categorically off-limits. For instance, AFDC regulations that impose federal penalties on states for wrongly providing benefits but not for wrongly denying them, see White, supra note 229, at 25 n.85, would be a prime suspect in any real assessment of care-taking administration. See also Nedelsky, supra note 254, at 32-34 (suggesting that AFDC practice of unannounced home searches is inherently incompatible with autonomy of recipient). Moreover, it may be impossible to create an environment in which government officials are able to respond with compassionate professionalism if they do not have minimally adequate programmatic and support resources to do their job. See supra note 303 (perceived inability to help can lead to defense of indifference or blaming person in need). Of course this means that, at some point, funding may be directly implicated, and with that the "substantive" due process questions of constitutionally-mandated redistribution. I am not suggesting that our reconception of the relationship between citizen and government in the regulatory state can ultimately avoid those questions. They are a crucial part of the task of value-definition that feminist theory realizes the need to undertake. See supra text accompanying notes 307-10. 1 am suggesting that there is much we can do in procedural due process short of having fully resolved them. 1991] Yale Journal of Law and Feminism recognition of connection, then both participants have a stake in practices that facilitate this recognition. We have long believed that the citizen's personhood is diminished when an official of her government treats her with careless indifference or contempt; we would now affirm, as equally important, that the personhood of the official is also imperilled when she is encouraged to think of others as unimportant or contemptible. 333 In addition, we would no longer be mesmerized by the shining coils of consent. That a citizen "chose" to enter a regulatory program or other relationship with government in the face of meager statutory procedures would become, for several reasons, a far less significant factor in the inquiry. Appreciating the complex dynamics of choice, we would beware the false equality that would treat an individual "choosing" to apply for social welfare benefits like a corporation entering into a defense contract, or a file clerk "choosing" to take a public sector job at minimum wage like a highly-compensated scientific consultant. Moreover, no longer conceiving individual existence as the single-minded pursuit of preexisting preferences, we would no longer equate individual moral responsibility with the tight-lipped endurance of the choices one has made. Perhaps most importantly, believing that our identity as persons and as a people depends in significant ways upon the quality of our public activities, we would find incomprehensible the notion that forms of interaction which encourage officials to experience public power as an occasion for hard bargains or easy conquests could be deemed acceptable so long as citizens "have a choice" about enduring them. This consciousness that the manner in which our government wields its power shapes, for good or ill, our public and private character would similarly minimize concern about what procedures government, or its officials, had "consented" to provide. As I have just suggested, we would not conceptualize a duty to engage in dialogue about the reasons for official action as a "use" of the government decisionmaker which could be legitimate only if consensual. But even apart from this, we would be prepared to recognize obligations of care that are rooted in a person's status as a public official and in the fact of her possession of public power upon which citizens are dependent.334 So long as we were caught in the liberal-legalist obsession with consent-whether of the citizen-individual, the official-individual, or the majority-we invited decisions (like Meachum) that public officials could inflict harm for reasons 333. Cf Henderson, supra note 298, at 1586 (citing studies showing that people's empathic response will be reduced if they are instructed to view victim in detached way); Mashaw, supra note 224, at 43 & n.55 (citing three Social Security Administration studies confirming that face-to-face encounters with claimant have substantial positive correlation with acceptance of claim). See generally KATHY FERGUSON, THE FEMINIST CASE AGAINST BUREAUCRACY 83-153 (1984) (discussing dynamics of bureaucratic organizations that dehumanize both employees and clients). 334. In conceiving public office-holding as a relationship with citizens, we would reject the liberallegalist view of the administrator as an individual who happens to possess public power. "The concept of a relationship. . . contrasts with the notion of a role as something that a person can take on and later reject and be no more affected by than the clothing one has temporarily worn." Whitbeck, supra note 298, at 77. [Vol. 3: 189 Conceiving Due Process they took no care in establishing because no one ever said they would act for reasons, and arguments (like that of monopoly theorists) that government is presumptively entitled to be as arbitrary in dealing with persons as any other actor in the market, and wistful statements (sprinkled in the commentary) that it would be nice if government wouldn't strike hard bargains with citizens but it isn't "law." Now, however, we would respond, "Why shouldn't it be law?" The conviction that the exercise of public power entails duties of care and responsibleness is central to our collective understanding that our government aspires to be limited, democratic and public-regarding. This conviction has impelled us to struggle against the image of largess and the right/privilege distinction even as we were helpless (within liberal legalism) to avoid them. That we can not spell out, in advance and as a series of self-executing principles, the particular care-taking practices required in the range of government activities does not make the conviction less real, or less important to our image of ourselves. Once we cease to regard consent as the alpha and omega of responsibility, and neutral determinacy as the desideratum of constitutional principle, we can begin to insist, directly and straightforwardly, that government and each of its officials always have a duty to treat citizens responsibly and with concern and respect. The doctrine through which we implement this insistence would never contain the standards requirement.335 As official discretion increases, so does the need for inquiry into the carefulness with which power is exercised. Although we have always realized this, until now there was little we could do about it. Limited (at least for purposes of crafting legal rules) to modeling human interaction as egocentric, self-serving and opportunistic, we could imagine only process that was designed to compel those with power to yield. Limited to regarding process as compulsion, we had to provide for the possibility of outside (i.e., judicial) policing. And limited to accepting judicial activity as legitimate only when it neutrally enforces values generated by the political process, we could authorize courts to intervene only where there were "judicially manageable" (i.e., mandatory, explicit, substantive) standards. Now, however, no longer limited to these assumptions about human response to power, the purpose of process, or the criteria of legitimate adjudication, we could openly acknowledge here-as we do everywhere else in administrative law 336-that official discretion is inescapable. And our due process jurisprudence could then begin to try to discover practices that induce officials to use this inevitable power with wisdom and compassion, for we would recognize that discretion (like dependence) represents far greater capacity for good, and for evil, than liberal legalism ever acknowledged. 335. That is, the present doctrinal insistence on explicit, mandatory, substantive standards meaningfully constraining official discretion. 336. See, e.g., Rakoff, supra note 49, at 174-75 (administrative law "consideris] the control of discretionary power as its raison d'etre"). 1991] Yale Journal of Law and Feminism In this search for practices that foster the benign use of discretion, we would be both inspired and compelled to push our thinking beyond the narrow limits of adversary trial procedures. We would be inspired by our more hopeful view of human nature. Knowing that people are capable of using power responsibly and regardfully, we would realize that such capacity is not nurtured by encouraging official and citizen to regard each other as combatants, or by framing their interactions on the assumption that each will take advantage of the other whenever possible. For our litigation-bound legal consciousness, imagining alternative ways of proceeding that facilitate empathetic and nonadversarial decisionmaking is not easy, but there are signs that it is possible. With our rising interest in alternative dispute resolution techniques, we are slowly reaching out to other disciplines-psychology, sociology, anthropology-to broaden our conception of problem-solving methods.337 Specifically within regulatory programs, the work of William Simon, Joel Handler and others reveals the possibilities and incidents of more humane practices of public administration.33 And if, discouraged by the difficulty of unfamiliar terrain and the intransigence of bureaucracy, our inspiration to search for these alternative practices wanes, we would nonetheless be compelled to continue by our recognition that adversary process in the administrative state rarely secures even the limited goals liberal legalism had set it. A feminist due process jurisprudence might not abandon the concepts of rights-as-swords-and-shields and process as battle, but it would not ignore how frail these concepts become when invoked in the real world of regulatory power. Through the work of Lucie White, William Simon, Austin Sarat and others, we have discovered how little security, autonomy and protection from arbitrariness citizens obtain from even the plenary "fair hearing" Goldberg provided in the welfare context.339 In part, this is because process crafted for the strong, articulate and self-sufficient does not meet the needs of the downtrodden, silenced, and subordinate. But the disjunction between the ideal liberal-legalist protagonist and the real citizen337. To be sure, we have discovered that such processes do not always succeed, and indeed have sometimes reinforced existing patterns of exploitation. See, e.g., Lisa Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN'S L.J. 57 (1984); Janet Rifkin, Mediation from a Feminist Perspective: Promise and Problems, 2 J. LAW & INEQ. 21 (1984); Minow, Interpreting Rights: An Essay for Robert Cover, supra note 298, at 1907 n. 193; Rhode, supra note 254, at 632 & n.54 (collecting sources). Perhaps this discovery is simply a reminder that alternative forms of process (no more than traditional forms) cannot be imposed without reference to context, or expected to "work" immediately and without adjustment. 338. See, e.g., Simon, Invention and Reinvention, supra note 229 (describing Social Work Jurisprudence); JOEL HANDLER, THE CONDITIONS OF DISCRETION: AUTONOMY, COMMUNITY, BUREAUCRACY 79-120 (1986) (describing one school system's cooperative approach to special education rights); J. MASHAW, supra note 43, at 264-67 (describing Veterans Administration). 339. See, e.g., White, supra note 228; Simon, Legality, Bureaucracy, and Class, supra note 229; Austin Sarat, ". . . The Law Is All Over": Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 YALE J.L. & HUMAN. 343 (1990); Robert Scott, The Reality of Procedural Due Process-A Study of the Implementation of Fair Hearing Requirements by the Welfare Caseworker, 13 WM. & MARY L. REV. 725 (1972). [Vol. 3: 189 Conceiving Due Process seeking-government-services is not the only reason why adversary process fails. As even the most resourceful lawyer working for the most sophisticated and affluent client well knows, formal procedural weapons-no matter how skillfully wielded-provide only a limited defense against hostile or irresponsible officials. If the administrative state is a state of war, then victory will always go, in the end, to the one who is at home in the regulatory jungle. The only sane solution, in the long run, is to recast the activity as peace, and to fashion administrative environments that concentrate on inducing officials to be their best, rather than on trying to block them from being their worst. Hence, if we do resort to patterns of adversarial process, we would be mindful of their decidedly second-best quality and their limited utility. We would -recognize that, to be even minimally useful to the citizens they are supposed to protect, they often require far more supporting services than we have been accustomed to provide.3" In the end we would, perhaps, be most comfortable regarding them as transitional devices, imperfect stopgaps awaiting our discovery of a way to heal a particularly unhealthy regulatory interaction. 4' We frequently have been told that the goal of making public administration careful, compassionate, and courteous is utterly beyond the power of constitutional law. Until now, this was surely so. So long as human nature is modelled as fixed and the proper role of judges is prescribed as merely ending particular disputes through disinterested application of preexisting neutral rules, it is nonsensical (even threatening) to speak of the symbolic and transformative potential of constitutional adjudication. So long as courts preside over a ritualized form of combat in which truth emerges victorious from confrontation, it is ludicrous to think that the loser can be ordered to love one who has been cast, from the outset, as his enemy. If, however, we understood our individual and collective identity as a constantly evolving, interactive process as much shaped by, as shaping, such culturally important activities as constitutional adjudication, then we would realize the self-fulfilling quality of predictions about what those activities can accomplish. We are a society in which judgments about the constitutionality of specific practices are frequently taken as judgments about the morality and appropriateness of those practices. 34 2 340. This means, at a minimum, the provision of skilled advocates for many claimants in social welfare programs. See Simon, Legality, Bureaucracy and Class, supra note 229; White, supra note 228, at 53-54. Lucie White hypothesizes a variety of more extensive supports, including the provision of linguistic and anthropological experts who could interpret and explain to decisionmakers the speech and behavior patterns of powerless people. White, Id. at 55-56. 341. From our very different set of starting points, we would have a very different expectation of what .normal," "healthy" interactions look like. "Instead of community and cooperation being taken as phenomena whose existence and even possibility is puzzling, and sometimes even regarded as impossible, the existence of egoism, competitiveness and conflict, phenomena which liberalism regards as endemic to the human condition, would themselves become puzzling and problematic." A. JAGGAR, supra note 254, at 41. 342. See generally Robin West, Progressive and Conservative Constitutionalism, 88 MICH. L. REV. 641 (1990). 1991] Yale Journal of Law and Feminism For almost twenty years, due process adjudication has told administrators either that their "clients" have no right to complain about how they have been treated ("no standards, no obligations") or that they themselves can't be trusted to do their job right ("courts decide what process yields accurate decisions"). When these are the messages it has been sending, is it any wonder that contemporary procedural due process jurisprudence has not contributed to-and may indeed have undermined-the emergence of a responsible, committed and humane public administration?343 How do we know what might be possible if procedural due process adjudication became a self-consciously value-generating activity in which all participants come together to discover what is right, rather than a battle in which wrongdoers are unmasked and forced to yield? Hard as it is for us to think about litigation in this way,3" there are even in our present world faint glimmers of hope that such an alteration is possible. Sometimes, in institutional and other complex litigation, trial judges (or their masters) find ways to refocus the adversarial, blame-inflicting tendencies of litigants and emphasize forwardlooking, collaborative approaches to finding solutions. Working from a set of feminist understandings and methods, we might actually achieve the transformation of adjudication that could, in turn, transform what procedural due 343. It seems possible that the tendency to conflate judgments about constitutionality with ones about wisdom, morality or appropriateness is especially great in an area like procedural due process. When private parties leave the courtroom with a declaration of their legal duties to one another, they reenter a world of family, business, religious, and social networks which contain their own norms of acceptable behavior. The literature on relational contracts, for example, emphasizes the existence of incentives to fulfillment of contractual expectations that operate independent of legal enforceability. See, e.g., IAN MACNEIL, THE NEW SOCIAL CONTRACT: AN INQUIRY INTO MODERN CONTRACTUAL RELATIONS (1980); Symposium: Law, Private Governance and Continuing Relationships, 1985 Wisc. L. REV. 461. See also Melvin Eisenberg, Donative Promises, 47 U. CHI. L. REV. 1, 2 (1979) ("Withholding legal enforcement from a promise does not license its breach. A promise-breaker may lose business, friends, or self-respect and the prospect of such losses may be more of an impetus to performance than the prospect of money damages."). It is not so clear that social, economic, moral or religious forces operate in the same ways to constrain the "business" conduct of government officials-particularly if the official is part of a large bureaucracy insulated from the local community by its "federal" character. Drawing on social science as well as on history, Robert Cover reminded us, "Persons who act within social organizations that exercise authority act violently without experiencing the normal inhibitions or normal degree of inhibition which regulates the behavior of those who act autonomously." Cover, Violence and the Word, supra note 271, at 1615. Indeed, bureaucracies may deliberately condition their component members to leave personal values at the door when they enter: Administrative man accepts the organization goals as the value premises of his decisions .... What is perhaps most remarkable and unique about administrative man is that the organizational influences do not merely cause him to do certain specific things (e.g., putting out a forest fire, if that is his job), but induce in him a habit pattern of doing whatever things are appropriate to carry out in cooperation with others the organization goals. Robert Denhardt & Jan Perkins, The Coming Death of Administrative Man, PUBLIC ADMIN. REV. 379 (July/Aug. 1976) (quoting organization theorist Herbert Simon) (emphasis in original). See also K. FERGUSON, supra note 333. Hence, it may be that decisions about legal, and particularly constitutional, obligations readily become the sum and substance of administrative morality-particularly in underfunded programs in which workers, overwhelmed by unmeetable need for services, may cling to any justification for neglectful behavior. 344. See, e.g., Ruth Colker, Feminist Litigatioh: An Oxymoron? A Study of the Briefs Filed in William L. Webster v. Reproductive Health Services, 13 HARV. WOMEN'S L.J. 137 (1990). [Vol. 3: 189 Conceiving Due Process process jurisprudence can accomplish. From our understanding of the nature and sources of knowledge, we would recognize the importance of a judicial approach that actively seeks out the perspectives of those who live and shape the particular regulatory situation. We would not minimize the challenge of comprehending and appropriately integrating the experience of the welfare recipient or the front-line agency worker. But we would recognize that listening to these voices in addition to the voices of agency administrators and lawyers is not a matter of pluralism or equal time or simple courtesy. It is an epistemological and remedial imperative. We would realize that sound solutions can not be developed, let alone successfully implemented, through a process in which isolated judges formulate and deliver answers from on high. 45 What we would learn from this commitment to broadened participation in the discovery of due process answers might at times be difficult for us to accept. Perhaps, for example, we would be forced to acknowledge that the process patterns of revelation and participation, which have had a remarkable currency across political and philosophical camps, are the process ideals of an elite-we lawyers, scholars, and judges for whom words are powerful instruments and comfortable extensions of self. We would constantly be required to reassess our expectations not simply of what sort of process is good (is the interjection of lawyers anything other than the interjection of adversarialness?), but even of what sort of process is possible (what if a panel of welfare recipients from the community helped make continued eligibility determinations?). And this continual reminder of the limits of our understanding of a complex world would further transform procedural due process jurisprudence, as we openly admit to the provisional, modifiable, even experimental character of the answers that emerge. The concept of solutions that depend upon context, and are modifiable with new information and circumstance, has never been completely alien to adjudication. Equity practice, particularly the injunction, has long included a self-conscious commitment to flexibility and adaptability.3" However, so long as liberal legalism modelled law as the marking of 345. Because I have been focusing on procedural due process as legal doctrine, the discussion has largely proceeded from the perspective of the judiciary. But the rejection of "top down" solutions necessarily implies that ways of thinking about process and about the "ethic" of government power must change within agencies themselves. On this point, such work as William Simon's retrieval of the professional belief system of Progressive Social Work becomes enormously valuable. As Simon's work also shows us, however, the evolution of an agency's character can be affected by the course of procedural due process adjudication. Suppose, for example, that courts explicitly said (and really meant) that they would show deference to agency-crafted procedures if, but only if, the agency had arrived at those procedures after deliberate study of how the needs and abilities of its client population could be accommodated, responsibly and respectfully, in light of its programmatic goals and resources. Suppose also that, if the agency had not previously engaged in this sort of professional self-evaluation, courts responded, at least in the first instance, by encouraging the parties to undertake it cooperatively under the auspices of some courtappointed facilitator. 346. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs .... Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). 1991] Yale Journal of Law and Feminism boundaries between opposing camps and adjudication as the public declaration of right-holder and wrongdoer, it was almost impossible for courts to avoid pronouncing absolute, timeless truth that could be altered only by a systemwrenching confession of error. Now, however, we would recognize that being "correct" in due process adjudication-as in any of the other practices by which we seek to understand and enrich our lives-is a matter of being situated in particular perspectives upon which we are obligated, always, to try to improve ." And we would come to see in the continual, contextual reexamination of the practices we devise not the sign of failure, but rather the promise