Legal Fictions

-- By ElizabethHayden - 01 Mar 2018

Effect vs. Intention

When we study the law in law school, we look at how we think the law should work. We read opinions where a judge rules one way or another because they believe that their decision will cause people to behave in a desired way. Judges battle back and forth, arguing about what they think the best policy decision is, far too often not attempting to learn the actual effects of different policies on human behavior. Where does behavioral psychology come into a judge’s decision making process? Are you really telling me expert testimonies are a reasonable substitute? In law school we talk about how liability acts as an incentive to change behavior but we don’t look at data to prove this. We’re taught to apply an economic approach to making predictions about how things will play out, assuming that everyone is a rational actor, when we know that this is far from the case. In doing so we make arbitrary decisions about the state of the world from our own biased perspectives and act as if this is fact. They call these legal fictions, which feels to me like a contradiction.

Law school attempts to teach us to view legal problems from different perspectives. Admissions offices carefully curate each class to try to provide what they think is a diverse set of viewpoints. Does this give us a false sense of security that we understand the policy implications of the decisions we are going to make? Really listen to the stories people tell in class and think about all of the stories that are missing from the conversation. Where do the perspectives that are not present in a law school classroom or in a judge’s chambers come into play? How can a judge that is white, male, and grew up in a well-to-do family make decisions that take into account the interests of a black women who lives paycheck to paycheck? How can we design drug laws to curb addiction if we refuse to understand why people use drugs? How can we create laws that promote social equality if we don’t actually understand how law affects inequality? Aren’t we just guessing? Should we really be guessing when we’re dealing with something so important?

Design Thinking

I came to law school with a background in software, where everyone knows that guessing doesn’t work. There are two tools that software developers use that would be incredibly useful to help solve legal problems and make the law run in a more efficient and effective way: design thinking and the use of empirical evidence. Design thinking is a way of using a continuous process of designing, implementing, and getting feedback to channel the design process in the right direction. That means focusing on the consumer and how they interact with the design and approaching each new iteration by responding to how real-world factors affect the outcome. Using data to anticipate what consumers might do and then testing to find out what they actually do is invaluable to designers, and allows them to focus their time and energy where it’s needed while gaining insight into their customers.

Lawyers don’t tend to think of themselves as designers, but it’s hard to think of lawyers as anything but. Advocates craft legal arguments to force the outcome their client desires, judges make crucial decisions that have downstream effects on the world around us, and as a whole the decisions that lawyers make can have a tremendous impact both on the customers they serve and on the general public. Lawyers may not be designing a thing that they can hold in their hand and marvel at, but it’s not any less of a design problem. It’s important that we recognize that design is part of the process so that decision makers in the law will start to take some responsibility for what they lend a hand in creating.

Testing to Close the Gap

Like in law, programmers write special “magic words” in an attempt to make those words do something. The biggest difference is the speed at which they can figure out if they got it right. The first thing you do when you write a program is write tests for it. Just like in law, badly designed programs can often create far more problems than they solve, adding further complexity to an already tangled web. A designer has to envision in precise detail exactly what a perfect solution would look like, because it’s impossible to know the best way to get somewhere without knowing exactly where you’re going and how to know when you’ve made it there. In law we tend to rest on our laurels, preferring to reason through precedent rather than attempting to figure out how our intentions line up with the actual effects of what we’re doing. Judges don’t generally conduct empirical studies to understand the effects of each and every ruling so that they can adjust their approach with the next case. Should they? What’s more important, putting out fires or taking a purposeful approach to bring about positive change in the long run?

The Need for Innovation in the Law

The legal profession moves forward at a snails pace compared to other industries where innovation is a part of everyday life. When I worked in software, “innovation” was part of my job title. As a service that is costly and necessary for the general public to be able to receive, it is imperative that lawyers start thinking about ways they can design the services they provide to be more efficient and better solve the needs of their customers. Innovation can be useful for every aspect of law, from legal reasoning to parsing documents. The legal profession may be forced to move much more slowly than other industries like software, but there’s still so much room for innovation. Maybe we can stop when our intentions finally match up with what’s actually happening.

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