Tuesday, January 30, 2007

Retail and Wholesale Philosophy

Posted by Jeff Lipshaw

Garnettr3 Rick Garnett (Notre Dame, left) has a neat post over at PrawfsBlawg reacting to a Wall Street Journal op-ed piece about the purported failures of legal education in training students to be problem-solvers.

The part to which I am most sympathetic, given my eclectic background and orientation, is Rick's reaction to the suggestion that we'd turn out better lawyers if we stopped accepting English majors, and started accepting more mathematicians and economists.  Rick has responded to this better than I could - and it would just start me another Dennis Miller-like rant anyway. 

What I liked best was Rick's epigram about lawyering being moral philosophy at the retail level.  That's absolutely the right way to look at it.  Indeed, the irony is that the legal academy has a scientific/reductionism bent, which lends itself to thinking that issues are not only problems to be solved, but that all issues are merely problems.  Some issues are in the nature of polarity or paradox, and inherent unsolvable, and only, at best, manageable.  I speak from experience when I say that those are issues that can flummox mathematicians and engineers and economists in real life:  "the function doesn't work!  the model doesn't work?  what do we do?"  The application of wisdom - which may include law, or functions, or models, or may not - to real problems is, as Rick says, moralWholesale philosophy at the retail level.

Which is consistent with another characterization - this being my own - that law professors have this wonderful license to be social philosophers, or applied philosophers.  I suppose we could say that is moral philosophy at the wholesale level, which means that we intervene between the retail stuff, and the moral philosophy at the manufacturing level, which must be all that epistemology and ontology stuff that you have to have a Ph.D. to practice.


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Interestingly, Jeff, this is precisely the impulse that is reported to have led Robert Bork into the law, on the advice of a teacher who told him that law would allow him to "take philosophy into the marketplace." (Ethan Bronner, Battle for Justice, at 61.)

As to whether moral philosophy actually works in practice, or in academe for that matter, I agree with Arthur Leff's wonderfully prescient take on it in his review of the first edition of Posner's "Law and Economics."

Leff's point, and the source of his anger, was his insight that crude utilitariansim (he called it nominalism) would sweep through law schools like wildfire precisely because it offered an alternative to endless, unproductive, and ultimately boring "debates" among moral theories.

In other words, the runaway success of law and econ largely refutes, I think, your characterization. If there were lots of yield in re-hashing Rawls vs Nozick till the cows came home, one doubts econominalism would have done as well as it has. (Perhaps opinions vary on how far it has succeeded, but in antitrust, corp fi, corporations, torts, contracts, intellectual property, and many other fields, it seems to me the dominant approach).

The core problems of utilitariansim (measurement, the core vacuousness thing, etc.) remain problems, of course, to which law and econ has few if any solutions, but the appeal of the approach is an implicit rebuke to unalloyed moralism.

Thus the caution that "wisdom" is often an adjective we apply to positions with which we agree, rather than a quality or characteristic itself. Indeed, the need to use it may signal nothing so much as that we have run out of reasons and need higher-powered rhetoric.

Unless, of course, we equate wisdom with judgment. Then we can link judgment to dynamic multi-player games......


Posted by: David McGowan | Jan 30, 2007 10:21:45 AM

David, clearly you are a person in whom passion is a slave to reason. I almost never respond to comments, but your witty, erudite, lengthy and thoughtful post deserves one!

Three quick reactions:

1. Well, I guess there's something I share with Bork. A first for everything.

2. I'd agree that law and economics dominates those areas of academic legal thinking, and has even, to some extent, influenced doctrine. Richard Posner once chided me for stating that people were still moved by the philosophers, on his contention, apparently, that nobody really read them anymore. You can also go through a whole career in big time law practice and never heard one word about game theory, rational actors, welfare maximization, or the availability heuristic. In short, it's also economics at the retail level.

3. As to dynamic multi-player games, when I was a GC, I once had an interesting but practical antitrust question I thought might be answered using game theory. I called my classmate Douglas Baird at Chicago, one of the co-authors of Game Theory and the Law, and posed my question. He just laughed at me.

Keep it coming, man. I love it.

Posted by: Jeff Lipshaw | Jan 30, 2007 10:42:31 AM

"Some issues are in the nature of polarity or paradox, and inherent unsolvable, and only, at best, manageable. I speak from experience when I say that those are issues that can flummox mathematicians and engineers and economists in real life:"

As an engineer and a lawyer, I am slightly offended by your characterization of our ability to understand and engage the practice of law. No engineer worth his salt would be "flummox[ed]" by an unsolvable problem; the physical world is full of those examples. An engineer should rely on his scientific background as a guide to reach an acceptable compromise. Often, the reason a problem is unsolvable is because we lack sufficient understanding of fundamental physical principles (e.g. try telling a ship designer in 10,000 BC that he can build a boat out of metal, he likely would have thought you were insane).

In other words, if you are encountering "unsolvable" issues in your legal profession, you probably aren't working hard enough.

Posted by: P.A. | Feb 1, 2007 4:41:00 AM

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