Legal Fictions

-- By ElizabethHayden - 01 Mar 2018

Effect vs. Intention

When we study the law in law school, we look at how we think the law should work. We read opinions where a judge rules one way or another because they believe that their decision will cause people to behave in a desired way.

I thought they were ruling one way or another because the law requires them to do so. There are, no doubt, as Holmes says, cases in which unconscious legislative motives inform decisions, but how does your characterization cover all the usual work of civil discovery, evidence rulings, criminal trials, etc.? Where law is clear and the role of the judge is to enforce it, where is the role for what the judge thinks people are going to do next?

Judges battle back and forth, arguing about what they think the best policy decision is, far too often not attempting to learn the actual effects of different policies on human behavior. Where does behavioral psychology come into a judge’s decision making process? Are you really telling me expert testimonies are a reasonable substitute? In law school we talk about how liability acts as an incentive to change behavior but we don’t look at data to prove this. We’re taught to apply an economic approach to making predictions about how things will play out, assuming that everyone is a rational actor, when we know that this is far from the case. In doing so we make arbitrary decisions about the state of the world from our own biased perspectives and act as if this is fact. They call these legal fictions, which feels to me like a contradiction.

No, legal fictions are something else. I've written about this, perhaps helpfully.

Law school attempts to teach us to view legal problems from different perspectives. Admissions offices carefully curate each class to try to provide what they think is a diverse set of viewpoints. Does this give us a false sense of security that we understand the policy implications of the decisions we are going to make? Really listen to the stories people tell in class and think about all of the stories that are missing from the conversation. Where do the perspectives that are not present in a law school classroom or in a judge’s chambers come into play? How can a judge that is white, male, and grew up in a well-to-do family make decisions that take into account the interests of a black women who lives paycheck to paycheck?

Perhaps that depends on whether he has spent his life representing such clients?

How can we design drug laws to curb addiction if we refuse to understand why people use drugs?

Perhaps that's not what drug laws are "designed" to do. What is the evidence about that?

What is the reason to believe that those who work in the world of addiction, treatment and enforcement are refusing to understand? Or that if the making of drug laws were an ongoing process, they would somehow not be heard?

How can we create laws that promote social equality if we don’t actually understand how law affects inequality?

I don't understand this sequence of rhetorical questions. (It's often a bad writing strategy: the reader actually tries to answer them in her mind.) In this case, unless we have forgotten a great deal we used to know about how law affects inequality, we can never have created any laws that promote social equality. But I can think of many.

Aren’t we just guessing? Should we really be guessing when we’re dealing with something so important?

What is the difference between these questions and what Holmes asks in the Path of the Law? Would a single reference have sufficed?

Design Thinking

I came to law school with a background in software, where everyone knows that guessing doesn’t work. There are two tools that software developers use that would be incredibly useful to help solve legal problems and make the law run in a more efficient and effective way: design thinking and the use of empirical evidence. Design thinking is a way of using a continuous process of designing, implementing, and getting feedback to channel the design process in the right direction. That means focusing on the consumer and how they interact with the design and approaching each new iteration by responding to how real-world factors affect the outcome. Using data to anticipate what consumers might do and then testing to find out what they actually do is invaluable to designers, and allows them to focus their time and energy where it’s needed while gaining insight into their customers.

That's not the way I made or make software. Perhaps we should consider the possibility that there is more than one way to make software, as there is more than one way to make law.

Lawyers don’t tend to think of themselves as designers, but it’s hard to think of lawyers as anything but. Advocates craft legal arguments to force the outcome their client desires, judges make crucial decisions that have downstream effects on the world around us, and as a whole the decisions that lawyers make can have a tremendous impact both on the customers they serve and on the general public. Lawyers may not be designing a thing that they can hold in their hand and marvel at, but it’s not any less of a design problem. It’s important that we recognize that design is part of the process so that decision makers in the law will start to take some responsibility for what they lend a hand in creating.

Do you believe that no one in the legal profession takes some responsibility for what they lend a hand [to] creating? Doesn't this "I know betterness" in the rhetoric grate on you a little bit when you read it over?

Testing to Close the Gap

Like in law, programmers write special “magic words” in an attempt to make those words do something. The biggest difference is the speed at which they can figure out if they got it right. The first thing you do when you write a program is write tests for it. Just like in law, badly designed programs can often create far more problems than they solve, adding further complexity to an already tangled web. A designer has to envision in precise detail exactly what a perfect solution would look like, because it’s impossible to know the best way to get somewhere without knowing exactly where you’re going and how to know when you’ve made it there. In law we tend to rest on our laurels, preferring to reason through precedent rather than attempting to figure out how our intentions line up with the actual effects of what we’re doing. Judges don’t generally conduct empirical studies to understand the effects of each and every ruling so that they can adjust their approach with the next case. Should they? What’s more important, putting out fires or taking a purposeful approach to bring about positive change in the long run?

Perhaps consideration of differences in social role would be helpful here. The analogy gets strained after a time.

The Need for Innovation in the Law

The legal profession moves forward at a snails pace compared to other industries where innovation is a part of everyday life. When I worked in software, “innovation” was part of my job title.

Which of course makes it easy not to have to think about what it means. What does "innovation" mean?

As a service that is costly and necessary for the general public to be able to receive, it is imperative that lawyers start thinking about ways they can design the services they provide to be more efficient and better solve the needs of their customers. Innovation can be useful for every aspect of law, from legal reasoning to parsing documents. The legal profession may be forced to move much more slowly than other industries like software, but there’s still so much room for innovation. Maybe we can stop when our intentions finally match up with what’s actually happening.

I think there are two most promising routes to improvement: first, to recognize the limits of a single extended analogy as an explanatory device; and second, to accept that some other people may know something about the problems you see, and might already be responding in ways you haven't considered.

On the first point, It can undoubtedly be useful to think about ways in which computer programming offers insights useful to lawyers. I've found it useful for decades, because for me too making software is a well-known form of work I began doing in childhood. But it would be valuable to see that an analogy is not ever complete, or its correspondences sufficiently perfect to sustain the whole of an argument. Here, Holmes' point that it's important to know what laws does has been enlisted in the service of a further idea: that there is one better way of knowing and a few sorts of information not being fed into it. We can do better by recognizing that diversity is not only about "viewpoint" but about cultures of knowledge.

Which brings us to the benefits of a more restrained claim: not that law is conducted on some basis that can be discarded in favor of a preferred form of social functionalism, but rather that for someone learning the law the methods by which parties to the legal system learn and respond to its effects in the society around them can be obscure. Hence the benefit of interpretive as well as predictive activity. Also, hence the wisdom of assuming that whatever you know, there are other ways of knowing it going on elsewhere, if you can find them.

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