A central idea of creative lawyering is the taking of the decision-making process out of a rule-based legal framework. According to Holmes, most of the rules of law we get through the courts are rationalizations—backward-looking explications of decisions made in other ways—and are thus hollow predictors of the court’s future behavior. Judicial theories generally reflect instinctive mental feelings. To fill them in, we must add layers of analysis from more human fields: sociology, economics, psychology, and the like.

Would You Sign Up For A Career Of Blissful Ignorance?

-- By KirillLevashov - 26 Apr 2012

Lawyering Outside the Law

A central idea of creative lawyering is the taking of the decision-making process out of a rule-based legal framework. According to Holmes, most of the rules of law we get through the courts are rationalizations—backward-looking explications of decisions made in other ways—and are thus are hollow predictors of the court’s future behavior. Judicial theories generally reflect instinctive mental feelings. To fill them in, we must add layers of analysis from more human fields: sociology, economics, psychology, and the like.

Of the fields that we use to make our prediction of a court’s ruling robust, few possess verifiable, unflappable truths. Certainly, it seems unlikely that we will circumvent the biological drive to organize into families and societies, and maintain those structures. Economics, however, is a field that can fluctuate between generations. In the last century, it has been shown that the environmental costs of industry, once considered to be negligible, are very real and potentially catastrophic. Environmental sustainability was internalized, and such costs entered the economic analysis of legal decision-making. Battles over the “right” economic balance rage with no end in sight: morality vs. utilitarianism, Keynes vs. Hayek. Even economic predictors, the quantitative markers that help point policy decisions, are only correct “whenever economists transition between too optimistic and too pessimistic for the forecasts.” The field of social psychology fares no better, limited by shifting social norms, methodological inabilities to isolate causation, and participant attrition; this makes it difficult to be certain of the degree of truth in any principle that one attempts to apply to a legal situation.

I do not mean to imply that these fields are not useful in resolving legal issues. Personality psychology as we currently know it plays a key role in destabilizing a person’s surroundings and facilitating the process of getting them to accept a sale, whether of a product or of a plea bargain. Social psychology, properly implemented, can be used to create a mutual need and connection between people. An economic analysis, if not overused, can help a decision-maker quantify variables that are otherwise objectively incomparable, and can nudge him to acknowledge factors that he would have otherwise brushed off as externalities. However, these fields suffer from a common deficiency: their patent softness.

The Unstructured Reality

By virtue of modeling human behavior, tools like economics, psychology, and sociology suffer in their precision because they are unable to envelop every quirk, characteristic, and idiosyncrasy of the chaotic human state. Thus, we must often accept simplifying (but patently untrue) assumptions, like perfect information and actors’ rationality. If we acknowledge that these imprecise sciences have significant determinative effects on legal decision-making, we must acknowledge that there can be no unified, imperturbable principles on which to build a predictive structure, and that there will be an inherent level of disorder and unpredictability in the legal system. But this sort of disorder is disturbing, and we seek to mitigate it by resorting to selective blindness and legal magic.

Robinson and Wiley both describe their practices with reference to solid, dependable things: the certain hit of caffeine, the precise cycle of drugs, or the everlasting quest to get close to the “thang.” A difference sprouts between them when Robinson acknowledges that the careful manipulation of time is integral to achieving justice through the legal process. In this distinction, Robinson shows himself to be a creative lawyer, contrasted against Wiley and the drug-fueled paper push. But in exchange for this, Robinson must live with the awareness of the shadowy ‘legal magic’ which the court will claim was the foundation of its reasoning. He is forced to acknowledge that the supposedly scientifically deduced facts are made up, guessed, and artistically summoned; this is not a burden every lawyer can bear.

There is comfort in structure. If we can maintain the illusion that courts decide cases based on the rules, we can imagine a structure of rigid principles and four part-tests in which lawyers can find comfort and safety: duty, breach, causation, damages. We can build up an integrated system of virtual truths and stand atop the heap, feeling secure in being able to recite the Securities Exchange Act of 1934. It is certainly possible to survive there for a time, to collect a paycheck and move on to the next corporate merger. To take the Robinson route would be to acknowledge something terrifying: the legal system is a human thing, and it embodies all the chaos that the human condition does. The lofty legal terms of art, though they may present a loquacious veil, can be stripped down to instinctive, unconscious decision-making processes. If we choose to acknowledge this, the structure of falsehoods beneath our feet shudders and splinters, leaving its devotees with no sense of security.

Is It Worth It?

For law students, the comfort and illusory certainty of embracing a superficial view of the legal system make the large pawnshops an appealing option. Though they may not be able to offer job security, then offer an uncomplicated way to cover student loans, and provide a curtain behind which document review and endless discovery cover the frightening uncertainty and unbearable humanity of the legal system. It is not an unreasonable trade-off for those who would prefer not to have to swim in uncertainty. Of course we would like to believe that we are strong enough to leap into the fray and face the initial helplessness of not knowing what to do without a structure atop which to stand. Yet, statistically, well over half of us will end up pawning our licenses without a second thought. I have yet to make a choice, but saying no to hiding has never been so tempting.

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