Saturday, July 19, 2008
Posted by Jeff Lipshaw
Call me a fool, but I like to get stuff out there as early as I can short of being humiliated (I am okay with merely embarrassed). I have wrestled now for four years on the precipice either of an practitioner who thought too much like a professor (actually, that accusation goes back a long time), or a professor who was tainted by so many years of practice. I think Tevye in Fiddler on the Roof spoke to this: "a fish could marry a bird, but where would they live?"
I've posted a short and preliminary essay that reflects what I've been thinking about and reading about over the summer, and it has to do with the theory and practice of judgment - how judgment differs as between clients and practicing lawyers, and in turn, how it differs between practicing lawyers and the professors who taught them. The piece is entitled Law's Illusion: Scientific Jurisprudence and the Struggle with 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.
This is a thought piece preliminary to a more detailed treatment of the idea.
(By the way, this is the first time I've posted a new piece on SSRN in a while; the system is improved, but still capable of being screwed up. Key advice: remember to click the "save" button to the upper right when you are done with each entry.)