Thinking
like a lawyer is what law school is supposed to be all about, and to some extent,
it is. Now many people, like Daniel Pink or Gerry Spence, agree that is
true--and woe to us all. And to some extent, that also is true. Word
nitpicking, “word gravel” (Spence), and endlessly argumentative perspectives
(for the purpose of delay or battle by attrition) are all too common in the
legal profession. But I want to emphasize a more positive way of thinking about
this topic. In fact, I want to consider legal thinking in the context of how lawyers tell laypeople to think about the legal issues put to them, because in this case—especially with juries—we have to put
our perspectives in terms that everyone should be able to grasp.
* While reviewing Antifragile to make some notes I did find the following, which qualifies the statement made above. I will be looking for any other references to the law as I continue my review:
I argue my effort has been to further elucidate this passing remark.
The Legal System, Torts, and Negligence
I’ve
thought about this because I’ve recently finished Nassim N. Taleb’s Antifragile, his intriguing (further)
consideration of how risks can affect us. Because I will review the work in a
separate post, I won’t go on at length here about the many aspects of the book,
but I do want to point to some salient features. One, following a pattern that
NNT set forth in his two previous books, Fooled
by Randomness and The Black Swan,
he favors practitioners over academics. He preaches empirical skepticism from a
linage coming starting with Menodotus of Nicomedia through Sextus Empiricus
down to the present. He criticizes much of academic medicine because of its
rationalist (as opposed to empirical, skeptical) mindset. The mindset that he
criticizes says, “If we can do it, we should”, which leads us to think that we
can fix a problem by doing this or that without consideration of system
effects. He offers a number of examples that make sense.
However,
one thing that he doesn’t address much is lawyers and the common law legal
system.* Perhaps it’s because he’s only been exposed to contract-drafters and
securities regulators, the sorts of attorneys who attempt to extinguish risk
and minimize every manner of Black Swan. Unfortunately, he doesn’t address the
common law world of tort laws, for instance. Tort law developed in the U.S. in
part as a response to increasing industrialization and commercialization. In
short, we had more not governed by contract or status. We had a
number of more casual but often consequential interactions that required the
law to decide who lost and who gained in such interactions. For instance, who
paid what to whom if farmer Brown’s cow was on the railway track and was struck
by the train? (Such collisions could damage the train, but the cow usually came up the worst;
locomotives have cowcatchers, but cows don't have train catchers.) With the advent of
automobiles, all of this became much worse. Now autos could run into trains and
to each other. So how did the law respond?
Following
a pattern laid down in the British Isles before the American Revolution, the
courts laid down principles on a case-by-case basis, using prior decisions as
precedents to establish the norms for later courts and parties to follow. This
system dealt with the practicalities of the law at the level of actual
litigants and in light of practical necessities. This should make NNT happy:
practitioner and practice-based guidelines established according to need. Of
course, sometimes the system seemed too overgrown and complex and needed some
rational pruning (my Garden metaphor again!), but generally, the
rationalization process was a distillation and not a complete overhaul. Some
standardization occurred, but not a huge amount. One state could look at what
another was doing and could adopt or reject a practice as it saw fit. What
works in Iowa might not work in California or New York, but it might prove
quite useful (and enlightened) in Nebraska.
Consider
the legal concept of negligence, from the realm of torts described above, which
attempts to weigh whether a loss suffered by an injured party (plaintiff)
should shift to another party when the plaintiff believes the defendant should have
acted differently to avoid the plaintiff’s loss. The plaintiff can shift the loss
(obtain a judgment for damages) to the defendant, if the plaintiff can prove by a preponderance of the evidence (more about burdens and evidence later in this essay)
that defendant should have acted to prevent the harm from occurring.
We
say that defendant had a duty to act to prevent the harm from occurring by
acting as a reasonable person would act under like or similar circumstances.
The logic of negligence most widely known in legal circles comes from the decision of Judge Learned Hand in U.S. v.
Carroll, a case about a barge that broke loose and sank after a tow ship
accidentally severed a line anchoring the barge to a pier. The U.S. government,
owner of the barge, sued the tow ship (Carroll) for the damages caused,
alleging negligence. Justice Hand established a “calculus” of negligence that
has remained quite influential throughout the years:
[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.
To
expand on this, one can state: If (Burden < Cost of Injury × Probability of
occurrence), then the accused will not
have met the standard of care required. If (Burden ≥ Cost of injury ×
Probability of occurrence), then the accused may have met the standard of care.
This
classic formula has served at the touchstone of thinking about negligence since
it was written in the Carroll
decision back in 1947. When you think of the issue in this manner, it makes a
lot of sense to formulate things this way. Analytically, it’s very clear and
concise. Of course, in practice, it’s much messier. Indeed, as any experienced
tort lawyer will tell you (or the Iowa Rules of Appellate Procedure for that
matter), questions of negligence are normally decided by applying the
principles to the facts of the case, and what does or does not constitute
negligence normally lies with the fact-finder, which is usually the jury. Thus,
predicting what is or is not negligence becomes difficult because the issue is
by definition fact and context-specific; indeed, juries bring in attitudes from
their communities that vary over time and place. For instance, what juries
accepted as negligence 30 years ago might be rejected today because of changing
community attitudes (from business interests campaign against tort claims
brought against them) or by distance (how a jury might dispose of a claim can
vary from place to place (and even jury to jury). All of this remains
decentralized and ad hoc, thus allowing change over time without recourse to
the political process (for the most part; much of so-called “tort reform” is an
instance to trying to freeze the system to limit damages set by jurors for
injury awards). To the extent juries aren’t limited by new reforms, this most
democratic (in both its good and bad manifestations) process allows some
predictability overall while allowing for change and individual variations over
time and place. This, to me, seems a workable system, for all of its faults,
which I’ve come to know well in the course of over 30 years of practice.
Burden of Proof
Another
key area where I think that the law has some useful insights to offer all of us
concerns the burden of proof. Specifically, who has the burden of proving (or
disproving) a proposition (e.g., “Jerry was negligent and this injured me”) and
how much proof is necessary for an actor (the court system) to accept that the proposition as proven sufficiently to act upon it (e.g., order Jerry to pay
Sandy money for the harm caused by his negligence).
Generally
speaking, a party seeking to establish a proposition has the burden of proving
it. In other words, if you want the court to order something, such as payment
of money damages or to order a person to refrain from acting via an injunction,
you must prove the necessary elements. The standard of proof is the amount of
proof necessary to establish a proposition sufficiently for a court to act upon
it. In most civil cases in most jurisdictions, this standard is a preponderance
of the evidence; in criminal cases, beyond reasonable doubt (and with various
other permutations available for less common cases). For instance, for me to
obtain a judgment against you for ten million dollars, I need only prove the
legally required facts by a preponderance of evidence; however, if the State
wants to send me to jail for a day, it must prove all of the legally relevant
facts beyond a reasonable doubt. Criminal punishment, including fines, requires a
higher standard of proof than a recovery of any sum of money in a civil action.
Think
about this in light of the daily decisions that you make. Do you need to know
something “beyond reasonable doubt” or by a “preponderance of the evidence”, or
perhaps “maybe” works. It depends mostly on the magnitude of the consequences
of the decision. Will I like a new ice cream flavor? “Maybe” might provide a
sufficient burden of proof for you to try the new flavor. Others may have a
higher standard; for instance, another person might believe that she probably
will not enjoy the new flavor more than her established favorite (which is
chocolate, of course).
So
how skeptically and conservatively (as a matter of judgment, not politics) we
may choose to act becomes (to some extent) a function of the magnitude of the
risk involved. Let’s take global climate change as an example. On one hand, NNT
argues that we are poking Mother Nature with a stick and that we shouldn’t. ("Burden of evidence: The burden of evidence falls on those who disrupt the natural, or those who propose via positiva policies." Antifragile, 429.) The
burden, because of the huge consequences if human conduct is upsetting the
global climate structure must be upon those who want to maintain the status
quo (a via positiva if there ever was one!); i.e., those who don't want to take active steps to counter any
human-caused climate change. (Technically, we get into burden-shifting here. In
other words, if the plaintiff provides some evidence of proposition A, then the defendant can offer evidence to rebut the proposition, and then the plaintiff must
have enough evidence to respond to the defendant’s contrary contention. Plaintiff
has the ultimate burden, but it switches back-and-forth during the course of
the trial.)
Blogger,
self-experimenter, and UC Berkley-Tsinghua psychology professor Seth Roberts,
on the other hand, is a climate change denier. (He will more likely call
himself a skeptic and attempt some burden-shifting of his own, but given what
I’ve read him to say about this, I think he belongs in the denier camp because
of his displays of confirmation bias when considering this the issue.) Like
others I’ve read recently, persons I otherwise can find quite persuasive and
intelligent, like Roger Scruton and Deirdre McCloskey, suggest that we’re
overreacting when we say that we need to change. They argue, I think, that
there is no Black Swan (or White Swan, for that matter) of risk, that
human-caused global climate change is all a mirage. Roberts and the others
argue in effect:
I know I might be the turkey and they say that there’s this Thanksgiving Day that might terminate my well-being with extreme prejudice, but how do I really know that this will come to pass? I know that I hear the farmer sharpening long, metal blades, talking about this upcoming holiday, and looking longingly at me, but really, this might all be something else. We shouldn’t take any action unless we know for sure that this Thanksgiving thing that you think is coming is proven by . . . ."What, an actual occurrence? This strikes me as a bit late, but that seems to be their preferred position.
I
mention this, because I’ve made lawyerly arguments on Roberts’s blog when this
comes up, but my points about burdens and standards of proof don’t elicit a
response. I admit that I’m not sure about human-caused global climate change
since I don’t have the credentials to independently verify and interpret the
data (as I don’t for most of life’s biggest questions). But from what I do know
is that if those arguing that we humans are causing global climate change and
that there are things that we should be doing to alleviate its impact (it’s
beyond stopping now, according to most), then we darned well ought to do
all we reasonably can given the magnitude of the risks.
(Refer back to the negligence calculus for a refresher on how to think about
this.) The climate change deniers don’t seem to want to respond to this. The changes will cause big dislocations (to put it mildly) whether we choose to make
changes ourselves or we choose to allow Mother Nature to make them for us. In
other words, either our economy changes or Earth's climate changes.
There
are those who might argue that while we’re causing global climate change, we’ll
innovate our way out of the pickle. “We’ve done it before and we can do it
again and we can do it again.” Maybe. (See Thomas Homer-Dixon’s The Ingenuity Gap about the limits of
our ability to innovate our way out of climate change.) However, t this strikes
me as a very big gamble, and frankly, one I'd not like to bet upon (I've too
much to lose).
All
of this may seem quite discursive, but I hope that I’ve made a point that at
least in some ways, “thinking like a lawyer” actual can prove useful, albeit
demanding. (We don’t like to expend the energy that thinking requires of us, so
we dodge it whenever we can). Thinking like a lawyer may not allow us to see
Black Swans, but because of the turbulence that lots of everyday decisions in law
and business inevitably create, so long as they are disbursed and have some
degree of independence should allow a measure of antifragility to arise.
* While reviewing Antifragile to make some notes I did find the following, which qualifies the statement made above. I will be looking for any other references to the law as I continue my review:
The same bottom-up effect applies to law. The Italian political and legal philosopher Bruno Leoni has argued in favor of the robustness of judge-based law (owing to its diversity) as compared to explicit and rigid codifications. True, the choice of a court could be a lottery—but it helps prevent large-scale mistakes. (90)
I argue my effort has been to further elucidate this passing remark.
