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Saturday, June 28, 2008

A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide

Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions.  I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night.  Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice.  This simple point has been heretofore under-theorized.  I'm going to step into the breach with the following theory about under-theorization:  Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not.  Academics seek to theorize - i.e. to provide causal explanation of social events in time and place - in a reductivist way.  The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.   

Here's what triggered this.  In his post, Deven Desai extolled the value of summer reading for academics, but added "[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument."  A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn't somebody ask him to guest blog?) begged to differ:

Drilling down and reading voraciously about your area of law can actually be counterproductive. If you're doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn't so difficult for a client to find someone who knows a lot about a particular area of law.

What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are "it"s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)

It so happens that something that I'm reading this summer helps theorize about both views and is the basis of my thesis above.  More on Thomas Haskell's The Emergence of Professional Social Science, after the jump!

Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.

Here is my poor attempt to restate his thesis, in a nutshell.  Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell's words, "causal potency."  Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief.  Individuals lived in dispersed and independent communities (by and large), and the cause of things - in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things - was proximate, either in oneself, in one's local community, or in a personal God that determined otherwise inexplicable events. 

Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world.  With increasing interdependence came increasing specialization - the rise of professions.  The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.

What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world.  My take on Haskell is that he not only makes sense, but that we've not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it. 

Haskell says social science is a search for the independent variables of explanatory cause somewhere between the "causal potency" of the individual and First Causes like God:

To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities - "independent variables"  As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change.  Common sense fails and the claim of expertise gains plausibility.  Explanation itself becomes a matter of  special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.

And when does the pursuit of this chain of causation end?  It's a troubling issue.  Haskell relates that  Herbert Spencer learned as a child to question every cause and "as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses."

There's a kind of Rule of Recognition problem going on here.  In a specialized, professional world, how do you recognize expertise?  Haskell's historical account says professional organizations arose in order to achieve a community of expertise.  For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well.  Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.

What strikes me about the current state of legal academia - particularly the debates over interdisciplinary work - is how it resembles the 1890s, in terms of the contrast between the old "gentlemen social inquirers" and the new professional social scientists.   Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation.  I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.

Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily "theorize" or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying.  The analogy from another Haskell work, Objectivity is Not Neutrality, is apt.  Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building.  Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation.  The pipes burst because the superintendent of the building forgot to turn the heat on!

So now we understand the Deven-A.J. dialogue a little better.  Deven is rightly suggesting what a law professor should suggest:  drill down, learn the details, find the underlying causes, and then the causes of those causes.   A.J. is rightly responding in so many words:  that's not the level of explanation - of causal attribution - that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).

The open question is whether the specialized, professional, reductivist explanation is the better one.  My answer is:  it depends what you are trying to explain.  For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games:  The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43. 

Indeed, even old practitioners can get co-opted.  My friend Bill Henderson understandably took me to task in good ol' plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus:  "what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner."  He (and other commenters) were right, and I dropped it from the syllabus.

Posted by Jeff Lipshaw on June 28, 2008 at 11:04 AM in Lipshaw | Permalink


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Loved the post. I read a lot of history of the legal education profession; I completely agree that virtually everything today has a historical analogue that tells us how things will turn out today (unless we can "theorize" an appropriate intervention).

I often wonder "whether the specialized, professional, reductivist explanation is the better one." I will read the your essay to figure that out. Is it possible that the best does both? Thx. bh.

Posted by: Bill Henderson | Jun 29, 2008 3:36:21 PM

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