Wednesday, September 24, 2008
There seems to be a gulf, says Suffolk’s Jeff Lipshaw, between practicing lawyers and the professors who taught them. There is another gulf between the practicing lawyers and their clients. In a new "thought piece," Law's Illusion: Scientific Jurisprudence and the Struggle with Judgment, Lipshaw argues that it may be that single thing most important to a lawyer who can solve a client’s problem is something that just can’t be taught: judgment. Here’s the abstract:
Why are there two fairly clear chasms that affect practicing lawyers - one between themselves and their clients, and one between themselves and their professors? Both have to do with the irreducibility of judgment - perceiving regularities, applying rules to new situations, and deciding in advance what to do. I suspect Kant was right over two centuries ago, and there has not been much progress theorizing about it since then (even after the behavioral theorists like Tversky and Kahnemann and popular expositors like Malcolm Gladwell); judgment, either the inductive inferences from what we observe to what we generalize, or the leap from what we generalize to what to do next, is not teachable, but only achievable through practice. Practicing lawyers are reductivists in comparison to their clients - reducing the complex world through the science of law to a model; professors are reductivists in comparison to their students - either reducing the practice to a rational science, or avoiding the question of judgment at all.