What Was Old is New – Narrative and Social Science in Law, History, and . . . Mergers and Acquisitions?

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  1. A.J. Sutter says:

    Certainly such messiness is worth more attention, and is well worth being called to students’ attention.

    Apropos of algorithms and cross-examination, Theodore Porter’s 1994 “Trust in Numbers” makes the point that the rise of “objective” decision-making procedures such as cost-benefit analysis were in large part as a defense against criticism. He details the rise of CBA as the Army Corps of Engineers’s response to political attacks on dam placement decisions. The apparent objectivity and transparency of the new decision-making process of course actually didn’t eliminate subjectivity from the ACE’s decisions; it just made the decisions less vulnerable to attack. (Porter also makes the point that some of the “subjective” siting decisions based on expert judgment rather than CBA might have been better decisions.) His point is that there’s a kind of trade-off between being able to rely on expert professional judgment and a democracy’s needs for transparency. The messiness of judgment (which also has historically been used as an excuse to hide some ugly biases and prejudices, it’s true) tends to give way to the transparency of method (though not necessarily transparency in the implementation of the method).

    In a legal system in which each side’s advocates try to make the messiness of real life look like a conspiracy or at least negligence, it’s no wonder that even lawyers can get exasperated when they’re on the stand. The rising importance of quantitation in corporate managerial style is also, I believe, partly due to the need for defensibility, so Porter’s notions can be connected to the “governance” boom. Judging by Dave Hoffman’s interesting post, maybe some of the same forces are shaping the corporate legal scholarship field as well, where junior scholars seem to be falling back on “if you can’t measure it, it isn’t real” (or at least some type of scholarly algortihm) in order to build defensible resumes. (Of course, not just defensibility but also forces like scientism are, I expect, behind the fashion for quantitation in management and social science scholarship, too.)

    And apropos of what was old being new, we’re a long way from the messy classical notion, “Homo sum; nihil humanum me alienum est” — “I am human; nothing human is alien to me” (cleaned up from Terence, 2nd Century BCE). Maybe the narrative approach brings us back to that; but in any case, trusting in your experience as a practitioner can help to reorient your students and maybe even your colleagues towards that direction.