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Tuesday, June 03, 2008

Is and Ought's Excellent Adventure (Part 1): Ontological Confessions of a Wishy-Washy Lawyer

Several days ago, Rick Hills criticized legal scholars who use David Hume's famous "is-ought" quotation in the same way they might add a string cite for summary judgment standards in a brief.  I don't want to quarrel with that criticism, but the rest of his post implied that point of the is-ought distinction itself was somehow passe, or another Enlightenment relic, and put to rest by Hilary Putnam's critique (or, at least, eaten up in the legal academy once the analytic philosophy predators invade the eco-system).  I don't agree with that implication, and rather than bore everyone to tears with philosophical musings (I'll do that later), I offer some anecdotes and some practical advice on the matter of "is" and "ought" in the life of a real lawyer, using Hillary Clinton's "fight or concede" dilemma as an example.

I'll start with the confession.  I was a wimp as a corporate lawyer, at least in the sense that scorched earth tactics in any setting just weren't my cup of tea.  When I was practicing in a law firm in Detroit, there was a very smart fellow at one of the other big firms who made his reputation by being simply the most unpleasant litigator in town.  Even if conventional general counsel wisdom said that we would do better by hiring people like that to handle our litigation (once I was a buyer rather than a seller), I had a hard time with it.  I hated the tipping point where we had to decide to escalate.

This was all capsuled in one short exchange I had while I was interviewing for the job of vice president and general counsel of AlliedSignal's automotive division in 1993 (AlliedSignal is now Honeywell).  I had left a law firm partnership the year before to become an AlliedSignal "senior counsel" on the prospect that this other job would be opening up.  But there were no guarantees.  Because the new position was at the divisional C-level, the last hurdles were interviews with Larry Bossidy, the CEO and chairman, and Alan Belzer, the about-to-retire president, and a crusty old veteran of the chemical industry (the "Allied" in the name came from Allied Chemical, founded in 1924 by among others, Eugene Meyer, Katherine Graham's father, and for years the New Year's ball in Times Square was atop the Allied Chemical building.)  Talking with Bossidy was like talking to the wisest grandfather in the world (somehow I managed to mention God, Torah, and Israel, the three foundations of Judaism, and did it smoothly enough to get the job).  Belzer, on the other hand, I think, enjoyed yanking the chain of this obviously too-young-and-inexperienced candidate, and our conversation follows the jump.

Alan congratulated me on a short essay I had written about why I thought I should get the job.  Then:

ALAN:  Okay, I'm going to ask you a question you may not like very much.

JEFF (smiling charmingly):  That's fine, Alan, hit me with your best shot.

ALAN:  I don't want to hit you.

JEFF:  I don't mind a tough question.

ALAN:  Okay, but there are rules.  You cannot answer "it depends."

JEFF:  I can't answer "it depends"?

ALAN:  You can't answer "it depends."

JEFF:  Okay.

ALAN:  Alright.  Here's the question.

JEFF:  Okay.

ALAN:  Fight or settle?

JEFF:  Fight or settle?

ALAN:  Yes, fight or settle.

JEFF:  And I can't say it "it depends"?

ALAN:  No.

JEFF:  Then you settle.

ALAN (coming out of his chair):  BUT WHAT IF THEY ARE BASTARDS?

JEFF:  Then you fight.

I didn't realize at the time this was really a discussion about the "is" and the "ought."   We are faced all the time with considering what really is the case, what we think ought to be the case in the best of all possible worlds, and what we ought to do about it if they are not the same.  Think about Hillary Clinton's dilemma over the last few days.  Fight or settle?  What is true and what is right?  Some things really are a matter of simple analytic truth, and unquestionably objective.*  Obama has X elected delegates and X superdelegate commitments.  Some things are a matter of a possible but unrealized state of the world, and one that might even be the best of all possible worlds.  She says "I ought to be the nominee because I am more electable."  Finally, there is the question of action - what ought we do?   This doesn't involve the question of "is" at all, except to the extent that the gap between what is and what ought to be impels us to action.  The dilemma of the wishy-washy corporate lawyer is just like Hillary's dilemma - one principle of what ought to be demands that I fight to the bitter end to change the "is;" another principle says that the party (or the company) is better off if we compromise or concede.

How do you decide?  Hume kind of shrugged his philosophical shoulders, observing, however, that you would undoubtedly employ your reason to get you to the result that made you happiest.  Kant acknowledged that was a problem, but thought you could reason your way to the right thing to do by figuring out what duty would require everyone in that situation to do.

People have been debating the is-ought issue forever, and I'm skeptical anybody, even Hilary Putnam, has the silver bullet as a philosophical matter.  I also don't think there's a silver bullet (as I will discuss in the next post) that resolves the dilemma of data versus intuition.  What seems pretty clear to me is that we have to engage the questions as lawyers all the time, even if not in academic lingo, and even if we avoid the ontological musings. 

* Synthetic truths, like the number of delegates it takes to secure the nomination, or the structure of DNA, are another matter, and that is where Hilary Putnam's critique comes in.  More on that to follow in my upcoming post "How Many Superdelegates Does It Take to Screw In a Lightbulb?"

Posted by Jeff Lipshaw on June 3, 2008 at 01:05 PM in Corporate, Legal Theory | Permalink


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I am sitting here with Alan Belzer (my grandfather) right now, and he is, in the words of his wife Susan Martin, "older and crustier than ever." He sends his regards.

Posted by: Jon Cruz | Jul 10, 2008 1:36:31 PM

i wrote about David Hume today here

Posted by: rawdawgbuffalo | Jun 8, 2008 7:48:19 PM

Agreed. I found it odd to read Rick refer to it as an "old saw." In the arena I work in (ethics & public health policy), the "old saw" is of vital relevance, as I lost count long ago the number of times I've personally seen the descriptive conflated with the normative. And I'm a devotee of later Wittgenstein -- I agree completely that the normative is embedded in practices. But it doesn't follow from that premise that whatever those practices actually are defines how we should live.

Posted by: Daniel S. Goldberg | Jun 3, 2008 2:05:18 PM

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