Occupational Hazards: Lawyers and Economists

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6 Responses

  1. Jeff Lipshaw says:

    Neil, one of the most vivid memories of my undergraduate career was talking to one of my economics professors (a macroeconomist working in economics of population) about my decision to go to law school. I think I said something to the effect that I wanted to deal in reality, not models, to which his response was, “yes, but law is also a model.”

    Your comment about mistaking models for reality is insightful, but I think you unduly dismiss the extent to which lawyers also think in models. My fuller treatment on this, which deals with the theory and consequence of precisely that issue – treating models as reality – or games as models – see my “Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists.

    I don’t think the “models” versus “black and white” distinction holds – instead, I think what we have are different modes of explanation, particularly around causation. Again, I apologize for the self-promotion (not really), but this is a subject I’ve been thinking about extensively. I’m particularly interested in the way non-lawyers explain why things happen, the way lawyers do, and the way social scientists (like economists) do, all compared to the way physical scientists explain (see Hart and Honore, Causation and the Law, for a discussion how causation differs, in their view, between scientists, on one hand, and “historians, lawyers, and plain men,” on the other.

    My thesis is that all modeling (including legal and economic) is reductive, and the real distinction lies in the extent and level of reduction. Both are to be distinguished from the process of judgment, which I contend is ultimately irreducible. For more on this, see “Law’s Illusion: Scientific Jurisprudence and the Struggle with Judgment”.

  2. Orin Kerr says:

    Great post, Neil.

  3. Neil H. Buchanan says:

    Thanks, Orin.

    Jeff’s comment makes perfect sense to me. I don’t think that I have any reason to reject the idea that this is a matter of degree and is not truly binary. My answer then becomes: Lawyers are more likely to look for complete answers while economists are more likely to think in marginal impacts; and economists are more likely to adopt models with a limited number and type of variables while lawyers are willing to think in terms of models with a wider variety of variables. Still a gross generalization, but it comports with what I’ve observed.

  4. A.J. Sutter says:

    I was hoping Jeff would more roundly reject the “black and white” characterization of the lawyer’s point of view, and thereby allow me to run out to an appointment this morning on time instead of dallying to type a hasty comment. But this idea that lawyers think of their client as guilty/innocent, or liable/not liable, applies at most to the litigating segment of the profession.

    Transactional lawyers (especially ones doing deals relating to business operations, as distinct from public company M&A, for example) have a much more flexible, open-ended and, to mix metaphors, multi-hued view of the world. That’s because they have to deal more directly with the their clients’ and counterparties’ personalities, the vicissitudes of the business world and industry, and the parties’ desire/need to have a relationship continue into an uncertain future.

    As for economists, a feature that Neil doesn’t mention is their models’ tendency to reduce the output of their multivariate functions and functionals to a scalar. Maybe that’s of the same dimensionality as the “black and white” lawyer model, but it’s different from the point of view of business lawyers — and, I hope, of lawyers who still care about things like justice and equity, rather than only economics.

  5. Jeff Lipshaw says:

    At the risk of getting too theoretical, A.J., I didn’t comment on the “black and white” because I was not (and still am not) quite sure what to think of it.

    I think of litigators and economists both as dealing in historical data and attempting to using inductive reasoning to state a rule (fit to a model) for the situation. In that effort, both run the risk of overdetermination – that is, looking back, any number of rules (or models) will fit the data. In litigation, however, the application of different rules have significantly distinct consequences for the parties, setting up the incentive to “black/white” argument – if we are over-determined in the sense of rule-following, I need to show why my interpretation and not yours is correct. Example from class today: was the failure to disclose a particular fact material for securities law purposes? Plaintiffs say the facts fit the TSC Northway rule; defendant says they fit the “mere puffing” rule. Economists, social scientists, and physical scientists have those kinds of arguments all the time, but not necessarily with the short-term monetary payoff as a legal dispute!

    In transactional work, the problem is under-determination. Should we disclose? We know the rule in TSC Northway, but it doesn’t tell us what to do! And what would this discussion be without playing the W card here: “no course of action could be determined by a rule, because any course of action can be made out to accord with the rule. The answer was: if any action can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict.” This is the leap I talk about in the Law’s Illusion essay – there is no rule for the application of a rule, so how do we explain judgment?

    So I think I’m agreeing with you.

  6. A.J. Sutter says:

    Hi Jeff

    Actually, your point about “should we disclose” illustrates a point I think we’ve discussed before in this or another blog — “transactional” work includes not only compliance but also negotiation, where the rules are there in the background, but the most salient decisions are business decisions. As we’ve discussed, getting involved in that mess of law-and-business is very much part of a lawyer’s job.

    Your paper on contract and promise touches on this a little bit — you question whether the tension between contract and promise becomes important at the contract stage or at the dispute stage; if I read you correctly, you incline to say at the latter. I tend to agree, in that context.

    In the context of this thread, though, the question isn’t about the domain of application of law, it’s about the thought processes of lawyers. All I’m saying is that even lawyers can unwittingly caricature those thought processes because of ignorance about what a lot of us actually do for a living.