Thursday, October 5, 2006

Straddling the Fence: Solum on Specialization Redux

Posted by Jeff Lipshaw

If you follow the link over to Larry Solum's latest you will get to most of the blog discussion around specialization.  That discussion more than thoroughly covers the academic and scholarship ground, and is far more articulate than I could be.

My take on all this goes to the teaching of the overwhelming percentage of our students who will not be law professors.  Even if they specialize in ERISA, or criminal law, or employment discrimination, it's a wholistic world out there in which the appropriate response to a moral position may be an economic one, or vice versa.  The answer may lie within the specialty, or without.  The litigator needs to know some corporate, the corporate lawyer some ERISA, the ERISA lawyer some tort law.  Indeed, it may be helpful to understand some high legal theory that is common to all of them.

One of the canons of the business world is The Machine that Changed the World, a study of the organizational design of companies in the automobile industry - primarily contrasting the mass production methods of Henry Ford and Alfred Sloan against the lean production methods of Messrs. Toyoda and Ohno.  The authors of that study later wrote an HBR article entitled "The Myth of the Horizontal Organization."  The thesis was so-called "flat organizations" - highly decentralized and specialized businesses -  had the value of being highly responsive to market trends because there were so few layers between the cerebral cortex of the organization and the plant floor.  The downside was that each business was so specialized nobody saw the opportunities in the spaces between them.  I think there's an analog here.

I'm not saying what follows is right, but here's an example of cross-fertilization.  One of our professors gave a brown bag talk yesterday on a paper idea in the fair housing area.  I was teaching Secured Transactions this morning.  What struck me was the commonality between the two areas of the issues of statutory intent, statutory effect, and interpretation.  I ended up doing a short riff on the relationship of intent and effect (in housing, employment, and antitrust), with a particular view to how Article 9 tries to slice (very finely, I might add, not only on an effects rather than intent basis, but using rules rather than a standard) between a transaction that is a lease and a transaction that is a sale with a security interest.  (See UCC 1-203: in this case, to arrive at the result a lease is a transaction in which the lessor retains a meaningful residual interest without having ever mentioned "meaningful residual interest".)  The theoretical and pedagogical point was that we understand and, more importantly, are better positioned to argue the application of those rules if we see them as looking at the effect side of what otherwise would have been an intent inquiry.  The rule standing alone is, in some respects, nonsensical.  It only takes on coherent meaning if you understand its point. (This by the way is my dumbed-down version of Dennis Patterson's thesis on interpretation in law.)

The point can be moral or economic or social policy based.  Not having some grounding in those "disciplines," like being overspecialized in business, likely causes us to miss opportunities for learning or advocacy or growth that lie in the cracks.

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