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< | Would You Sign Up For A Career Of Blissful Ignorance? | >
> | A Career Of Blissful Ignorance | | | | |
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< | -- By KirillLevashov - 26 Apr 2012 | >
> | -- By KirillLevashov | | | Lawyering Outside the Law | |
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< | 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 in the predictors, we must add layers of analysis from more human fields: sociology, economics, psychology, and their influence on the decision-maker. | >
> | A central idea of creative lawyering is the taking of the decision-making process out of a rule-based legal framework. According to Holmes, 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 instinct, so more accurate predictive frameworks should evaluate the dynamics of human fields—biology, economics, psychology, and the like—and their influence on the decision-maker. | | | | |
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< | Of the fields that we use to make our prediction of a court’s ruling robust, few possess verifiable, unflappable truths. Certainly, biology has some axiomatic principles that we will not likely overturn, like the instinct to create and maintain societal bonds. Economics, however, is a field in which assumptions shift between generations. In the last century, it has been shown that the environmental costs of our existence, 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 truth of any principle that one attempts to apply to a legal situation, and correspondingly difficult to know whether justice--operationally defined--has been achieved. | >
> | Of the fields that could be used to make meaningful predictions of a court’s decision, few possess verifiable, unflappable truths. Certainly, biology has some axiomatic principles, like the instinct to create and maintain societal bonds (possibly a reason why extensive isolation is considered cruel and unusual punishment). Economics, however, is a field in which assumptions shift between generations. Environmental costs of uncurbed civilization, a century ago considered to be negligible, are now believed to be formidable. This belief was internalized, and such costs became a potential factor in legal decision-making. Even predictors, the quantitative markers that drive policy decisions, are derided as 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 truth of any principle that one attempts to apply to a legal situation, and correspondingly difficult to know whether justice--operationally defined--has been achieved. | | | | |
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< | It is not 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 inability to model human behavior. | >
> | It is not that these fields are not useful in resolving legal issues. Personality psychology (as we currently know it) can destabilize a person’s surroundings and facilitate the process of getting them to accept a sale, swindle, or plea bargain. Social psychology, properly implemented, can be used to create a mutual need between people that will drive the docket. 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 inability to model human behavior. | | | The Unstructured Reality | |
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< | 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. | >
> | In 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 human state. Thus, we must often accept simplifying (but untrue) assumptions, like perfect information and human rationality. If we acknowledge that these imprecise sciences have determinative effects on legal decision-making, we must acknowledge that due to lack of imperturbable principles on which to build a predictive structure, 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. | | | | |
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< | 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 persistent quest to get close to the “thang.” A difference sprouts between the characters 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 as a corollary to this creative ability, Robinson must live with the awareness of the shadowy ‘legal magic’ which the court will claim was the foundation of its reasoning. His legal tools include subtle threats and the nebulously successful manipulation of time; this is not a burden every lawyer can bear. | >
> | 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 persistent quest to get close to the “thang.” A difference sprouts between the characters 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 the creative lawyer, in contrast to Wiley and the drug-fueled paper push. But as a corollary to this creative ability, Robinson must live with the awareness of the shadowy ‘legal magic’ in which the court engages in reaching its conclusions. His legal tools include subtle threats and the nebulously successful manipulation of time; this is perhaps not a burden every lawyer can bear. | | | | |
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< | 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. | >
> | 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 to build a superficial comfort and safety (duty, breach, causation, damage). We can build up an integrated system of virtual truths and survey the law from its peak, separated from what it does, but fully secure in knowing what it is called. 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 alternate 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 be an effective veil, bear little intrinsic value in a system that is based on, and modified by, achieving nebulous justice. If we choose to acknowledge this, the structure of false certainties beneath our feet shudders and splinters, leaving its devotees with no sense of security. Eventually, the termites of psychology, sociology, and anthropology will destroy the structure, plunging the architect into a sea of uncertainty. There, he will have to decide whether to drown the lifeguard in his pursuit of safety. | | | Is It Worth It? | |
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< | 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, they offer an uncomplicated (though costly) 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 may not be 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. | >
> | The comfort and illusory certainty of the superficial view of the legal system can make pawnshops an appealing option. They seem to offer an uncomplicated (though costly) way to cover student loans, and provide a curtain behind which document review and endless discovery cover the unbearable humanity of the legal chaos. It may not be an unreasonable trade-off for those who would prefer not to have to swim in uncertainty. It is uncomfortable to acknowledge that we are the ones who shape, guide, and modify the system within the bounds of which we are supposed to work. 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 structure. Yet, statistically, well over half of us will end up pawning our licenses. | | | I have yet to make a choice, but the temptation to hide is strong. |
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