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Wednesday, July 04, 2007

Stepping Off the Cliff and Publicly Following Advice on Scholarship from the AALS New Law Professor Workshop

All of Friday at last week's AALS New Law Professor Workshop was devoted to teaching, and two speakers, Doug Berman (Ohio State), of blogging and criminal sentencing fame (he is quoted on the front page of the New York Times this morning regarding the Libby commutation), and Angela Davis (American), shared the two hours devoted on Saturday morning to scholarship.  As to Doug's talk, I'll simply note that the written outline, one and a half pages of well-spaced bullet points, repeats the word "write" fourteen times.  Indeed, this is a public apology to Angela, because she spoke on the mechanics of writing and placing articles, but by that time, Doug had gotten me so fired up I didn't want to listen anymore about writing, and went up to my room to write.

One of Doug's major theses was "the importance and value of quantity. . .aka. . .avoiding the false comforts of 'quality over quantity.'"   (Readers of my blog posts know that has never been my concern.  Indeed, I take it one step further and actively sacrifice quality for quantity.)  Point number one under that thesis was "realize 80% of genius is revealed in the first 20% of efforts."  On that note, I decided this morning that the introduction (12 pages) to a piece on which I have been reading, writing, and thinking for six months, and the conclusion of which, say 48 pages (or the remaining 80%) in the future, is still murky to me, is certainly not genius, but on the other hand, beyond laughable.  So without further ado, and in another exercise of shameless self-promotion, I posted on SSRN a piece entitled Aboutness, Thingness, and Morphosity:  A Pragmatic Ontology of Formal Systems in Law, the abstract of which follows:

Others have spoken of a sense that distinguishes areas of the law, for example, the law of property, in terms of “thingness.” I explore the implications of this sense for the phenomenon known as formalism, in which legal forms reflect a belief in a “deep reality.” I contend our tendency to formalism is more than linguistics; it reflects perceptions of forms intangible but nevertheless real, all of which raises an ontological question. I further explore the pragmatic consequences of this otherwise philosophical question, in areas of complex arrays of constitutive and regulative rules, like accounting standards, codes, business acquisition agreements, and corporate structures. Lawyers are not unique among human beings in perceiving intangible deep realities where others do not, but if we see things as real that our clients do not, perhaps we ought to address the implications. This is the introduction to a work-in-progress in which I will attempt to do so.

I have done this a whole bunch of times and it is still like stepping off a cliff.

Posted by Jeff Lipshaw on July 4, 2007 at 11:22 AM in Article Spotlight, Legal Theory, Lipshaw, Property | Permalink


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Hey Jeff,

I think the advice you've received is sound. The most recent paper I've uploaded to SSRN barely deserves the title of a Working Paper, as it is more a thought-piece that serves as a skeleton of some directions I might like to move in.

Believe it or not, I do some work on complex systems theory (often called non linear dynamical systems theory or complexity theory), and though it was popular in an almost faddish sense at the turn of the millenium, I think it has much more to offer in thinking about causation, induction, and ontology than has been explored thus far.

Posted by: Daniel Goldberg | Jul 5, 2007 2:42:18 PM

I thought Jeff was making a distinction between that which involves symbolic representation and thingness, and thus morphosity well captures the difference, hence, for example, the following: "It is not a great leap to move from the idea of symbolic representations, maps, or model, whether a flag, or a contract, or a set of financial statements prepared in accordance with generally accepted accounting principles, to the question whether those symbols take on independent meaning, and in the case of the law, decision-making force."

Posted by: Patrick S. O'Donnell | Jul 4, 2007 11:29:02 PM

Why "morphosity"? The Greek root of "morphosity" means form, shape, figure, appearance, etc. That's why when something "morphs" it shifts forms, and why "morphology" is the study of form and structure. I'm not sure, though, that you're aiming at the idea of form and structure--as you say, you're interested in "thingness" (as opposed to "aboutness"). If I were going for "thingness," which is to say something concrete instead of something abstract, I might use as a root "pragma" (Greek) (as in "pragmatism") or "res" (Latin) (as in "reification").

Posted by: Classics Nerd Wannabe | Jul 4, 2007 10:15:13 PM

Well, I think the analogy between a scientific model and your use of a legal morph is rather strong, differences between the natural and social sciences notwithstanding. And it will not do (i.e., it is either not true or misleading), in my humble opinion, to speak of the natural sciences as an "entirely descriptive exercise." See, for instance, Hilary Putnam's chapter, "Values, Facts and Cognition," in Reason, Truth and History (1981), 201-216. As Putnam makes clear, even the seemingly most banal descriptive statement (e.g., the cat is on the mat) entail criteria of relevance that rely on presuppositions and judgments of value: "[O]ur criteria of relevance rest on and reveal our whole system of values." Descriptions are entangled with values, and recognition of this blurs the boundaries between the natural and social sciences (historically the social sciences, for better and worse, have been heavily dependent on the natural sciences: look for instance, with David E. Leary, at the former's foremost metaphors and cf. the work of I. Bernard Cohen). As Putnam elsewhere explains, "normative judgnments are essential to the practice of science itself," hence "judgments of 'coherence,' 'plausibility,' 'reasonableness,' 'simplicity,' and of what Dirac famously called the beauty of a hypothesis, are all normative judgments in Charles Peirce's sense, judgments of 'what ought to be' in the case of reasoning." This does not, of course, amount to a denial of a difference between epistemic and ethical values.... For the argument (I'm not endorsing it, just offering it for consideration) that "the social sciences can be good science by the standards of the natural sciences" and that "the social sciences can only be good science by meeting the standards of the natural sciences," see Harold Kincaid's Philosophical Foundations of the Social Sciences (1996).

Posted by: Patrick S. O'Donnell | Jul 4, 2007 3:02:28 PM

Patrick, much of my reading this summer is in philosophy of science, and philosophy of social science. The Blackwell compendium on the philosophy of social science is particularly interesting.

My initial intuition is that there are insights into basics of deduction, induction, and analogy from the physical sciences, but there we are talking an entirely descriptive exercise. The extension to social science means we are talking about abstractions that either describe US or our institutions. I am also working through some of the thinking on our perception of complex systems, and how it is we ascribe consciousness - for example the citation in the paper to Teubner on "How the Law Thinks."

But, as I said, I'm not there yet.

Posted by: Jeff Lipshaw | Jul 4, 2007 2:18:42 PM

Oops: I did not intend the "Jeff" redundancy.

Posted by: Patrick S. O'Donnell | Jul 4, 2007 1:43:50 PM


I enjoyed the paper.


I’ll assume for the sake of argument—and by way of getting a grip on what you mean by a legal morph--that a model in science is roughly equivalent to (or analogous to) the “morph” in law and you can tell me if or when the comparison doesn’t hold. I’m going to rely on Ronald Giere’s discussion of models in Explaining Science: A Cognitive Approach (1988) and some points from his more recent book, Science Without Laws (1999):

1. A (theoretical) model is intended to be a model of something, a representation of sorts, and one that represents the world (or something in the world). For example, models are used to represent diverse systems found in our world: springs and pendulums, projectiles and planets, violin strings and drum heads (Giere’s examples).
2. A theoretical hypothesis in science takes the following form: “Such-and-such identifiable real system is similar to a designated model in indicated respects and degrees.”
3. “To claim a hypothesis is true is to claim no more or less that an indicated type and degree of similarity exists between a model and a real system.”
4. Giere reminds us that cognitive science suggests that “human cognition and perception operate on the basis of some sort of similarity metric,” and that this metric is a “particularly promising relationship for use in a naturalistic theory [or methodological principle] of science.” I do not see any significant difference between such a metric and what you and I understand by an analogy.
5. Theoretical statements in science, on this account, are not directly implicated in a correspondence theory of truth, for “there is…no direct relationship between sets of statements and the real world. The relationship is indirect through the intermediary of a theoretical model.” (I take it that this touches upon your discussion of a ‘pragmatic ontology.’)
6. “The relationship that does the heavy representational work is not one of truth between a linguistic entity and a real object, but of similarity between two objects, one abstract and one real.” Thus, for example, Newton’s laws and the force of laws (without getting into a discussion—a la Nancy Cartwright--of the nature of laws) are not adequately captured by definitions “but would be embodied in the models.”
7. A scientific theory, therefore, would be comprised of two elements: “(1) a population of models, and (2) various hypotheses linking those models with systems in the real world.” Scientists accordingly speak of the fit between their models and the world.
8. “It is a consequence of the above interpretation that a scientific [or legal] theory turns out not to be a well-defined entity. That is, no necessary and sufficient conditions determine which models or hypotheses are part of the theory.” Here Giere turns to the Wittgensteinian notion of family resemblance and the practice of collective judgments by scientists so at to determine whether or not a proposed model fits within a theory. “There is no such thing as a perfect model, complete in all details.”
9. The laws of nature may be regarded as principles that serve as general rules for the construction of models.
10. “Coming to hold that one model fits better than other is not a matter of pure reasoning or logical inference. Rather it is a matter of making a decision.”
11. Giere uses the provocative expression, “constructive realism,” to capture this doctrine of scientific representations.
12. He also speaks, again provocatively, of “perspectival realism” to describe his theory of science: “…all forms of observation or detection should be understood as perspectival in nature. They all provide access to reality, access that is, nevertheless, always partial.” Here Giere calls upon cartography for an analogue of scientific theories, following in the footsteps of Polanyi, Kuhn, Toulmin, Ziman, and, most recently, Philip Kitcher (in Science, Truth and Democracy, 2001). As Kitcher says, “Like maps, scientific theories and hypotheses must be true or accurate (or at least approximately true or roughly accurate) to be good.” And the “requirement of significance” [fields of science being associated with what Kitcher terms ‘significance graphs’] here “cannot be understood in terms of some projected ideal—completed science, a Theory of Everything, or an ideal atlas.” Maps are always “partial” and maps “of something.” “So maps can be understood realistically.”

Well, once again, more might be said, but this will have to do.

Posted by: Patrick S. O'Donnell | Jul 4, 2007 1:42:11 PM

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