• Here too you took the editorial course of playing it as safe as possible. You tried, as you should, to keep what was strong, and to address the weak places. But you mostly tried to smooth over the problems, giving an appearance of solving what was merely postponed or made a little more obscure. In the process, you softened the language to the point of loss of contour. The final graf even achieves a bureaucratic linguistic approach to "narrative," which is usually assumed to be a pre-bureaucratic structure. This is not particularly desirable in an edit. I think I'd make another attempt at this, were I you, to see if you can manage to put both the ideas and the language on a higher-energy diet.

Narrative in Legal Institutions

Self-narrative as a component of mental and emotional wellness.

When people are asked to write seriously about an extremely important emotional issue that has affected their lives, they often find it upsetting at first. As time goes by, however, they experience remarkable benefits from the exercise, Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to help people make sense of a negative event by constructing a meaningful narrative to explain it to themselves. Id.

In contrast, ruminating on past events, without putting them in an explanatory narrative, tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation. Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” Id. at 175. Suppression of the repetitive thoughts rarely works. It can even backfire, leading to more rumination.

Construction of a meaningful narrative provides some objective distance from the subject, while providing some explanatory power that helps to short-circuit rumination. Providing a coherent picture of the events allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

Transcendental Nonsense and Modern Legal Magic As Legal Narratives

People benefit immensely from narratives that explain and justify the external world, which would otherwise be seen as overwhelmingly uncertain, complex, and purposeless. We try to construct narratives that likewise explain our social practices, including legal practices, in ways that make them appear more predictable and rational; we also construct those practices in ways that have some predictability and internal rationality. If we believed that our legal system was totally capricious, and that the decisions to prosecute and incarcerate were made completely at whim, feelings of powerlessness would inevitably follow. Such powerlessness can easily morph into resentment, depression, or another similarly negative emotional outlook. The inventions of legal logic and legal magic are explanatory narratives designed to make sense of legal practice, so that it appears rational.

The narrative of legal logic gives judicial decision-making an aura of inevitability. Though that feeling of inevitability can be comforting, because it makes law appear to be the product of a rational and consistent process, it also masks the role that the person of the judge has making the decisions which shape the lives of the people in front of her.

Likewise, if decisions are to be made on the basis of some plausible connection to facts in the world, some structure is required for dealing with the complexity and uncertainty that is so characteristic of our epistemological relationship with reality. It is also no surprise that a narrative has been invented which makes it appear as if the rules of evidence serves this function in a predictable, accurate, and fair way. The narrative surrounding the rules create an aura of objectivity that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

Revising Legal Narratives and Practice

People come up with many different, sometimes conflicting narratives to explain different aspects of themselves. Some of these narratives are more accurate than others; some are more adaptive than others. In any event, the process of constructing narratives is an integral part of the human condition.

When looking to narratives that explain and justify social practices like the law, the narrative itself can sometimes yield important social benefits. Nor is it likely that we could completely do without narratives, given the limitations of being human. We should be conscious of the narratives we do use, however, and continually assess whether the underlying social practices actually fit the narratives we tell. Being conscious of the role of narratives the behavior of social institutions is critical for appraising the effectiveness of the underlying institution.

Self-Narrative and Legal Narrative

I. The need for explanation is kin to the need for a convincing self-narrative.

• Here's something to be on the alert about. You didn't use the first paragraph of the essay to explain what your thesis is, the idea you are trying to express and then employ. You stated a theme at the start of the second paragraph, but it's a "false theme," wrapping paper rather than the real idea. If you remove the word "practical" from the first sentence, you have a platitude. So what did "practical" mean? At the end of the paragraph, then, we come at last to the essay's claim: that one use of explanatory narrative is similar to another use of explanatory narrative.

• No wonder you buried the lead. From the editor's point of view, you didn't have a lead. You assert A is similar to another instance of A, called B. You then explain B, in its particular context, and by golly, it is indeed similar to A. Resolve, fade to black.

• Of course, the situation isn't that dire: you actually do have a theme for the essay. But it's sort of gotten twisted in with this artifact that came from not figuring out at the outline stage what it was you were saying and how to present it in the clearest fashion.

II. Self-narrative is an important component of mental and emotional wellness.

When people are asked to write seriously about an extremely important emotional issue that has affected their lives, they often find it upsetting in the short term to write about deeply personal experiences. As time goes by, however, people show remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to work by helping people make sense of a negative event by constructing a meaningful narrative that explains it. Id.

Ruminating on past events tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation. Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” Id. at 175. Suppression of the repetitive thoughts rarely works. It can even backfire, leading to more rumination.

Construction of a meaningful self-narrative provides some objective distance from the subject, while providing some explanatory power that helps to short circuit rumination. Providing a coherent picture of the events allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

• What did the modifier "self-" add to the word "narrative" in that paragraph? If it did not add anything in that paragraph, I do not think it gained any meaning from any other sentence. This, if true, would allow the reduction of "self-narrative" to "narrative" throughout the essay. That in turn would allow the reduction of "explanatory narrative" to "narrative," which I think might make the thesis of the paper clear and a line of development possible.

III. Transcendental Nonsense and Modern Legal Magic are convincing narratives about the uncertainty in the outside world and our role in it.

Given the uncertainty of the external world, it benefits people collectively to create meaningful narratives about the way they and their institutions act. It would not be comforting or productive to see chaos in the surrounding world and respond in kind. One of the most highly esteemed values in any legal system is predictability. Being able to predict when and to what extent one will be subject to penalty is one of, if not the, most important attributes of an ideal system. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow. Such powerlessness can easily morph into resentment, depression, or another similarly negative emotional outlook. The inventions of legal logic and legal magic are explanatory narratives designed to make sense of the external world.

• The choppiness of this graf is a signal of trouble. The second sentence tells us something has gone awry; the least of its troubles is the careless conflation of uncertainty with chaos. From there to the third sentence, as from the penultimate to the last, is a pretty jolting transition. The prevailing impression one gets is that the paragraph can be reduced to its first sentence without making the following paragraph in any way harder to understand.

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. While debate certainly centers on invented concepts, like the personhood of corporations, the concepts go a long way towards providing a concrete, relatively smooth ground for navigating the complexities of real-world cases. It is important to have such concepts in order to reduce the role the judge has on deciding the law in the eyes of the public. The caprice of the judge is minimized, while abstract, just legal principles do the work of resolving the dispute.

• That they are abstract is part of the definition. That they are just is not proved, since the debate about them centers entirely on invented concepts, and is therefore incapable, from a realist point of view, from ever even making a statement about justice.

• And since when, the realist wants to know, did we ever have this crazy theory that judges weren't supposed to make wise decisions in difficult cases, but instead to be guided only by abstract principles of automatic application? The Western traditions all acquired from Aristotle the recognition of "equity," that achieves justice in the particular cases where every general rule inevitably works unforeseen and unintended injustice. And the public of our society, like the public of pretty much every human society, defers to "wisdom," usually associated (for reasons reaching all the way down to the biological stratum of social action theories) with the experience, gravity and deportment of advancing age. To say that the public doesn't want judges to make judgments conflicts with everything we see around us.

Setting up rules for evidence that gloss over the complexities and uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases. Given the immense difficulty of finding facts reasonably reliably, when they can be found at all, it is no surprise that a narrative structure has been invented that allows for courts to decide cases by applying law to some set of facts that were decided in a seemingly predictable and fair way. The rules create an aura of objectiveness that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

• That isn't a word. You meant "objectivity." Proofreading is not an optional activity. What you say you have to get into the habit of checking.

• This graf might be an explanation of why there is such a concept as evidence at all: it says that, given how hard it is to find facts reliably, there are going to be rules. But it doesn't explain the content of any particular rule, or define in any way what sort of rules those are going to be. So I think the graf amounts to the proposition just stated and no more. Taken with the predecessor graf, this section establishes that formalisms make it easier to "navigate" complex cases and that there will be rules of evidence.

IV. Just as some self-narratives are better than others, we should strive to find legal narratives that comport with the available evidence while still being helpful.

There can be many and varied narratives explaining different aspects of a person’s self. Just as some can be more or less adaptive, in the sense that they correspond more or less to external actions and others’ narratives about someone, some general narratives about an institution can be more or less adaptive. Cohen’s and Frank’s critical analyses of legal narratives illustrate their respective shortcomings. When legal logic becomes a crutch upon which to base decisions rather an aid, it creates meaningless debate that obscures the real reasons that cases come out one way rather than another. When a premium is put on evidence entered by witness testimony, the very real problem of human bias and subjective observation can create injustice. Given the limitations of being human, it does not seem that narratives can be totally done away with. An appropriate response to Cohen’s and Frank’s criticisms would be to try and construct new narratives, that are more adaptive; narratives that produce better outcomes. Being conscious of such narratives and the role they play in human and human institutions’ behavior is critical for appraising the effectiveness of different explanations.

• Here we have the same choppy sequencing that we saw at the conclusion of the last section. The transition from sentence two to three is obscure. Six is altogether a mystery. Seven seems to mean that Cohen and Frank would be satisfied if there were more justice. But how does that lead to eight, and why is that proposition the conclusion of the essay?

• I think, as I said at the top, there was a simple and effective theme here, and that the need was for careful outlining to hold the surrounding tendency to complexity at bay. The editorial inquiry that was helpful at each turn was, could this be put more simply? I think that's the principal that should guide revision.

• Did you mean principle? I cannot figure out what the word, objectiveness, means. But no wonder it wasn't caught by the spellchecker.

Economic Theory in the 1L Curriculum

-- By DanielMargolskee - 27 Feb 2009

Writing about the study of law, Justice Holmes predicted that, while “the blackletter man may be the man of the present, the man of the future is the man of statistics and the master of economics.” In the 1L curriculum, that prediction has proven only half-true. Formal economic analysis has come to dominate the teaching of Torts, Contracts, and Property, and yet, the curriculum falls short of Holmes’s aspirations for a “rational study of law.”

Insights from economics are part of the “rational study of law” Holmes yearned for--but only a part. In privileging the methods of axiomatic economic analysis over the methods in other disciplines, the 1L curriculum fails to confront those unanswerable questions which, despite (or because of) their indeterminacy, were of paramount concern for Holmes: How does the law actually operate? What kind of society do we want to have? How can we change the law to bring about the society we would rather live in? How can a

Economics as Part of a Rational Study of Law

Holmes thought that the tools of economics and statistics would be useful in steering lawyers and judges away from three habitual mistakes: (1) “confusion” of legal terms with moral terms; (2) uncritical mimicry of the past (“the pitfalls of antiquarianism”); and (3) the belief that legal doctrine is logically deducible from self-evident axioms (“the fallacy of logical form”). In Holmes’s framework, these three habits of thought conspire to prevent lawyers from accurately predicting the “incidence of the public force,” and prevent judges and legislators from consciously and intelligently confronting “their duty of weighing considerations of social advantage.” These conceptual mistakes lead lawyers to give wrong answers, because they lead lawyers habitually to ask the wrong questions.

Statistics and economics were to complement history and jurisprudence as part of a “rational study of law.” That study would be characterized by an “enlightened skepticism” of received wisdom and a “deliberate reconsideration of the worth of [legal] rules” from the perspective of present needs. It would be simultaneously theoretical and empirical: it would “get to the bottom of the subject itself.”

Now, Holmes simultaneously maintains that, in weighing considerations of social advantage, no resolution will be accepted always, everywhere, and by everyone. The “longing for certainty and for repose” that inheres “every human mind” is destined to go unfulfilled.

And yet, in the enigmatic closing passage to the Path of the Law, Holmes invokes the universalistic aspirations of Hegel, Kant, and Descartes to express his own longing to “catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” Further, he suggests that the “command of ideas” and the exploration of the “remoter and more general aspects of law” (and presumably of social life in general) are a mechanism for actually achieving moments of transcendence. Though there is no certainty in Holmes’ framework, there are gestures toward what Eben sometimes calls “salvation,” and that salvation is found in the rational study of social questions.

Read in light of this passage, it is possible that for Holmes, the perpetually-unsettled questions at the heart of legal decisionmaking (questions of “social advantage”) are also something inexpressibly more than, say, questions of how to minimize the “aggregate social cost” of accidents, or of how to guide society ever closer to one or another Pareto-efficient equilibrium, or, in short, of how to “satisfy[]” the “appetite.” Instead, it is a question of . . . well, of what, exactly?

Economics in the 1L Curriculum

The lawyer of the present is the master of economics, at least in the 1L classroom. Tort class is an extended meditation on Calabresi’s The Cost of Accidents (1970); Contract law is reconceived as a quest for transaction-cost minimizing default rules in the footsteps of Coase’s The Problem of Social Cost (1960); Property law is taught and learned in the shadow of Calabresi and Melamed’s Property Rules, Liability Rules and Inalienability (1970).

To be sure, there are moments of great resonance between Holmes’s Path of the Law and the law-and-economics essays on which so much of the curriculum is now based. Implicit in Holmes’s observation that “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it” is a distinction between rights enforced by liability rules and those enforced by property rules. Holmes is keenly aware that some number of accidents are too costly to avoid in modern life; that compensating injured workers can be recast as “the public … insur[ing] the safety of one whose work it uses”; even that the value, in economic terms, “of a life to the community can be estimated.”

Saying Something More

In the first incarnation of this paper, I tried to argue that the formal economic thought experiments taught in the 1L curriculum are yet more transcendental nonsense. As Eben pointed out, this is a point Arthur Leff made more than thirty years ago. And indeed, it’s a point implicit in other works we’ve read this semester: Theory of the Leisure Class posits a small set of human motivations and then tries to explain the human experience solely in terms of those motivations, in what could be read as parodying the economists mistaking, in Leff’s terms, “the light” for “the thing illuminated.”

Not only did Leff make that point, but he also showed that it’s source is in the “terrifying” message of the Realists, their “simultaneously horrifying and banal” recognition, in Holmes’s words, that“[n]o concrete proposition is self-evident, no matter how ready we may be to accept it,” that “certainty generally is an illusion and repose is not the destiny of man.”

But I find myself leaving class wanting to say something more about the world than can be said with the aid of simplifying assumptions or the inhibition that comes from radical uncertainty; what more, it’s hard to say.