Law in Contemporary Society

A Career Of Blissful Ignorance

-- By KirillLevashov

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, 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.

Not quite. The many analytical lapses in the essay begin here, with a slight but central misunderstanding of Holmes. He has two things to say: (1) one must learn the law realistically, by understanding the consequences of rules rather than the rationalizations adduced in their support; and (2) the dialogue among judges and advocates would proceed more productively if it were about the consequences sought to be obtained through the rendering of judgments. Neither of these is so fundamental as the simple definition that "the prediction of what courts will do in fact" is what we mean by law. Other writers, notably Jerome Frank and Felix Cohen, became interested in the issue of predicting the judge, though neither thought it either central to law practice or even consistently possible. Holmes, as you will see if you look back on the essay, is not interested at all. Confusing his definition with his larger intended points does you no good in understanding him, and throws off kilter the entire remainder of your argument.

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.

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.

I think you mean their patent inability to model human behavior completely. This is particularly problematic, I suppose, if one thinks in terms of modeling. So that's probably not the best way to think about them.

Your logic here, as well as your apparent sense of the purpose for which we learn about human personality, doesn't work very well. Although in "easy cases" it may be possible to have high confidence in the overall resolution of the matter (to be sure of the law, in Holmes' sense), what lawyers and other people trying to make things happen in society using words usually aspire to is not complete certainty. Figuring out what could "happen next," assigning probabilities to various outcomes, preparing for the eventualities using the resources available allocated according to the importance of various objectives and the probability of various contingencies, is done all the time by social strategists of every kind, including lawyers. From your point of view, strategy is an art drawing upon the knowledge of various sciences. The presence or absence of perfect predictability in those various modes of organized knowing is quite irrelevant. I don't read social psychology, or anthropology, or history, because they predict anybody's future behavior. I read in those and other disciplines because a lifetime of learning about human social process helps me to make my own predictions, which are crucial to my success or failure as a strategist. You haven't said anything about the world in which I live, because you've got all the elements jumbled up in an illogical organization that doesn't reflect the world, but does reflect your emotional requirement, to turn away from learning out of fear that you won't be successful.

The Unstructured Reality

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.

Maybe you do. Realistic lawyers don't. We understand that there's no requirement for perfect order in social process for us to be able to achieve results using words. We understand that power is found in the mastery of contingencies that result from the uncertainties of social life. We don't like learning to be helpless, or giving ourselves over to other-directed activity, because we like being free people with our own social purposes.

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.

You don't understand in what respects Carl Wylie is a creative lawyer, or how his creative process works. You might try reading the poem again with the specific purpose of gaining insight into his skills.

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.

Robinson is a litigator, and the subset of litigation in which he engages is criminal defense. Obviously not all lawyers want his kind of practice. So what?

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.

This suggests that you aren't very clear about what happens in corporate mergers. As I said, you should try to understand Carl Wylie a little better.

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.

This is not an alternate route. This is a fact. Denial is not a life alternative.

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.

This is not an argument, it's a metaphor reflecting an emotion. There's no drowning involved in being immersed in human social life. Human beings are social animals, and we are saved by, not drowned by, one another.

Taken biologically, humans are a neotenic species, born prematurely with largely unformed brains, helpless. We have almost no pre-wired behavioral patterns, compared to all our near kin, which is why we are decreasingly but fundamentally helpless through our very extended childhood, and profoundly, unpredictably various in our behavior through adulthood.

Taken anthropologically, the post-neural complexity of human behavior, and its uniquely symbolic modes of expression that we call culture, represents material to be interpreted, not predicted.

Taken actively, as lawyers do, the complexity and variability of human behavior is the material of construction, carefully planned in some respects and improvised in others. You can't drown in it anymore than fish can drown in the ocean.

Is It Worth It?

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.

This is a monument to the process of learned helplessness. It's not reasoned argument, and it eschews introspection. It doesn't reach a conclusion from factual learning and painstaking interpretation; it doesn't report its terror and self-reproach either. It's a self-sentence to the gulag. The way to fix it is to outgrow it.

(Word Count: 963)


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r6 - 22 Jan 2013 - 20:10:02 - IanSullivan
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