Wednesday, May 9, 2007
Posted by Jeff Lipshaw
I have recently been dipping my toe into an area that is new to me, and a colleague who I respect as much or more than anyone in the world offered the wise and well-meaning FWIW counsel that this may be something you don't want to try at home. That may be par for the course in the funny hybrid that is legal academia, and a source of the prevalent (and by no means trivial) sense that "law and . . . " requires a deep level of expertise, if not an advanced degree, in the ". . ." In this particular case, the warning was that the specialists in the particular field believed that attempts to generalize or analogize from the specialty were usually off-base, because you had to be a specialist truly to understand the point, and most non-specialists screwed it up.
That is counsel worth taking to heart, but is it the end of the story? It certainly bespeaks caution, and in my case it was a wake-up to respect the precision of the particular specialty. But I started wondering about several things.
First, I drew on long practical experience to say "I have a natural distrust, born of many years of being a generalist dealing with specialists, of specialists telling me that only specialists can really understand the subject matter of the specialist, but being unable to tell me why because I'm not a specialist." When you are the generalist sitting "atop" an acquisition, for example, it's often the case that you compromise the optimum position in a specialist's area, whether it is real estate, or environmental, or insurance. But it's also possible really to hack up something if you don't understand it - I'm thinking in particular of transitional service agreements that are common when the buyer of a division needs the seller to provide a set of services to the business for a period after the closing. I have seen instances where the generalists did not understand, for example, how the SAP contract allocates "seats", because of insufficient specialized knowledge, with the result that the buyer either ended up paying more to resolve the issue, or simply had no support service.
Second, as to counseling businesses more generally, you can think of a Venn diagram with overlapping circles representing law and business, respectively. My position was always that the lawyers were responsible for understanding the overlap and being able to explain it to the business people. It didn't mean that a lawyer had to be an accountant or a manufacturing engineer, but it meant understanding enough of the cross-discipline to get the overlap right. (Many litigators love being litigators because they have to become "experts" capable of communicating to fact-finders the essence of something as to which they are not experts over and over again.)
Third, I have written before on a Harvard Business Review article from the early 1990s by Womack and Jones, the authors of the classic industrial organization study The Machine that Changed the World, entitled The Myth of the Horizontal Organization. As businesses within diversified corporations became more "empowered" and "decentralized" and "specialized," and the organization got "flatter," the question was who would be responsible for seeing the opportunities that lay between these specialties. By and large, it couldn't be the specialists.
Fourth, there's no question that scientific theories take on an analogized popular meaning. If you say something outside of quantum physics about the Heisenberg Uncertainty Principle, you are probably not talking about issues of particle momentum and position, but instead some kind of polarity in which being precise about one pole means that you cannot be precise about the other. I don't know how nuclear physicists feel about that. Do they just shake their heads and say - "what can you do?" Relativity and Freudian psychology have produced similar effects.
But does that mean the analogies, or the popular sense of the scientific principle, are invalid? Do you have to be an expert in both disciplines to be cross-disciplinary? Am I wrong in saying the great 20th century philosophers of science were not scientists? Do philosophers of science and scientists of philosophy (brain science?) have anything to say to each other? Perhaps a dose of pragmatism is helpful here: if the analogy is useful, regardless of its technical bona fides, then it is worth something.