Pragmatic Practice in Law and Programming

Thanks to the Prawfsblawg army of thousands for having me here.  I’ll try to keep this painless.  Between the job market (thankfully) behind me and the actual teaching ahead, I’ve been reflecting a lot on just what it is that we do and ought to do in the legal academy.  My particular angle (or perhaps gimmick) is that I come from the computer science homeworld, where things are sometimes a bit different than they are here on Space Station Law.  I feel more than a little like an immigrant, identifying with both cultures but on the margins of each.  One thing I’d like to talk about during my visit is how computer science looks from the legal perspective, and vice-versa.

Back in college, one of my friends characterized computer science as “ruthlessly pragmatic.”  We were taking a dreadful course on operating systems at the time, and the classroom part of the course was less a set of lectures than a series of worked examples.  This is how a clock-face scheduler works.  This is how a linker rewrites addresses.  This is the code for malloc; let’s walk through it line by line.  There was some theory, but nothing whose applicability wouldn’t be obvious by the end of a 50-minute hour.  The course was an extreme example, but he was on to something fairly general about the subject.  Computer science is a pragmatic discipline; the field is driven by the needs of programmers.  It has generated some of the most beautiful mathematical ideas ever invented, but almost all of them were devised to deal with pressing practical problems.  Most working programmers either disdain the theory entirely or take up only what they need to know to solve the programming puzzle in front of them.  Generations of computer science professors have struggled to move students from the first camp to the second.

So here, perhaps, is a way in which my two orbits are not so different.  Practicing lawyers, like practicing programmers, are professional pragmatists.  Both must make their cases (and case mods) out of the materials they have available; both starve or eat steak depending on whether their creations work.  The day-to-day practice of law is unlikely ever to require much high theory.  We can mourn that fact because it means that they look at us with suspicion, or celebrate it because it frees us to chase Truth and Beauty—and it will remain a fact either way. 

That said, I think I bring with me from my programming days something of a faith in the utility of theory.  I’m grateful to the professors who insisted that learning first-order logic and recurrence relations would make me a better programmer.  It did.  The mathematics became a grounding in careful modeling, a toolkit of ways to make sense of a challenge and look for a structured solution.  The very pragmatism of our theory became a kind of virtue; the more pieces of it you knew well, the more effectively you could generate creative solutions and be confident that they’d work.  (One of my proudest moments in the programming world involved using de Bruijn numbers to implement undo in our product.) 

So too, I hope, in law.  All of the talk of learning to “think like a lawyer,” all of our in-class excursions into policy arguments, all of the law-and-economics models, and all of the endless flood of new abstractions: the argument is that legal theory helps win cases and solve clients’ problems.  It opens students’ eyes to new levers they can pull, to structured ways of making sense of a mess of facts, to the aesthetic difference between a good argument and a bad one, and to the nuances of every word they use.  That’s not all we do, but in this complete breakfast of law teaching, it’s an important part.