The Flow and the System of Law

Lawyers aren't doing these studies. They can't now, and it appears that they won't anytime soon. So in the future, many of the answers we want about the system will have to come from non lawyers who've been trained to provide them. The findings of experts in computers, math, social sciences, and other technical subjects can't continue to be mere footnotes to the learned books of the law professors. We need those experts' findings much more than we need a lot of the stuff that the lawyers spend their time debating.

These shortcomings of the law schools made it hard for me to accept the whole enterprise. I failed to use my anti-empirical blinders properly; as a result, my legal vision was impaired by the glare coming from a single bright insight: that all those nice, neat cases had gotten into my law books only after a huge, rarely mentioned quantity of human suffering by clients on both sides of the battle. It has been both satisfying and depressing to see, time and time again, in psychological studies and in real life, that I was right. The contest hurts people in positions of grief and trust; it sometimes interferes with your ability to do the sensible thing for yourself; and it frequently triggers Litigation Response Syndrome, or LRS, in which the individual experiences difficulty in concentrating, burnout, feelings of detachment and estrangement, sleep and other physical problems, and other behaviors similar to those found in people suffering from post-traumatic stress disorder.


Those human dimensions didn't interest my law professors much. So maybe it should not be surprising that law schools are often criticized for turning out lawyers who'd rather be adversarial than master "the gentler arts of reconciliation and accommodation." It seems clear that when you diligently avoid areas of knowledge, you inescapably skew the educations of those who listen to you.

Games Professors Play

Now, law professors aren't irrational. They have the option of being more sensitive or scientific. They ignore that option, partly because their philosophy about the law tells them that a non-sensitive, non-scientific approach is best.

You can learn more about that philosophy in courses on jurisprudence. I didn't take any such courses, and I've often regretted that, thinking that maybe doing so would have helped me see what weirdness in high places was responsible for the current state of the law on the everyday level.

On the other hand, when I have glanced at articles on legal philosophy, I've found that either I don't understand them or that their authors are on another channel. In one article1851 looked at recently, for example, a professor asserts that, since facts are so darned hard to figure out, a system of justice is better off if it simply avoids worrying too much about the truth, and focuses instead on other goals. For him, "the truth and nothing but the truth" is "a myth."

He doesn't trash the truth just for the fun of it, though. Rather, he says, society has other important goals that justice must consider, even if they force truth into the back seat. One such goal is "social harmony." He notes that some cultures have conflict resolution methods that restore social harmony without emphasizing truth. In a fit of anthropological fervor, he offers us these examples:

Turhbull says of the Pygmies of the Forest: "Disputes are generally settled with little reference to the alleged rights and wrongs of the case, but more with the sole intention of restoring peace to the community."

The Eskimo song duel involves parties pouring out abuse in song at one another, sometimes combined with head and rear buffeting, before a village assembly.

So there you are. You've got your basic Eskimos clubbing each other on the ass, and this professor tells us that this has a lot to do with the way justice should function in America. What can you say to something like this? Thanks for noticing the 4,000 years of Western jurisprudence, pal.

It's not that I think the Eskimos have it all wrong. I don't see them writing a book, like the one you're now reading, that's full of bitching and moaning about their legal training. All I'm trying to say is that the Eskimos' ways of handling things do not necessarily mean a lot for American law. Apparently unlike the Eskimos, we think the truth is terribly important. As the Declaration of Independence puts it, "We hold these truths to be self-evident "

What can I tell you? The professor evidently got into the wrong end of the donkey costume. The rest of us are trying to go in the other direction, toward a more truthful system. (He's not really that much worse off, though, than the legal theorists who insist that they can define their terms any way they want, so that it makes sense to them to say that a failure to act is an act too. Not that it's like an act. For them, it is an act. I mean, where are we?)

Like I say, when I look at this stuff, I quickly lose much of my regret for neglecting to take my complaints about criminal law and the tax code to a more philosophical level. In an undergrad philosophy course, I once spent six weeks trying to understand what we mean when we say, "The cat is on the mat." Pursuing that kind of inquiry with the law would have driven me bats.

In the end, you'll find difficulties all along the spectrum of legal substance, from theory to data, intuition to induction, and top to bottom. As long as you exercise your tunnel vision, you might make it through and learn to concentrate only on what the judges say. But the minute you widen your perspective and ask bigger questions, you're going to see that you've been standing in deep doo-doo. The only thing that could be worse would be if you let yourself go beyond thinking about the law, and started to feel what your clients are going to be feeling - a point to which I turn now.

The Procedure

As you're going through law school, you begin to hear things. Sure, you heard them before, but you were able to ignore them in your eagerness to get into this exciting new career. Now, however, when you can settle down and realize that yes, you really are going to be a lawyer, some of these things slowly seep through to your consciousness. You, personally, are going to be involved in - indeed, you may be worsening - a situation that authorities abhor. For example:

The system is ready to crash. It's ready to fall apart without relief. People get frustrated with the system. They blame the lawyers, they blame the courts. You can't get justice when you have to wait five years.

Access to the courts may be open in principle. In practice, however, most people find their legal rights severely compromised by the cost of legal services, the baffling complications, and the long frustrating delays. This nation, which prides itself on justice, has developed a legal system that is the most expensive in the world, yet cannot manage to protect the rights of most of its citizens.

But I think the situation becomes clearest when you consider the words of one very famous lawyer:

We must not doubt the serious dissatisfaction with courts and lack of respect for law which exists in the United States today. Our adversary system turns objective witnesses into partisans who hope one side defeats the other. It leads to sensational cross-examinations.

Our system of justice is archaic. Uncertainty, delay and expense have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible businessman in the community.

The basic principle is this: Lawyers are trained to focus on doing what they have to do before their clients will pay them. That does not mean they have the clients' best interests at heart, and it certainly doesn't mean that they give a hoot about whether the legal system itself continues to function well. In the big picture, it goes like this: If you let your United States go on for a couple of centuries with lawyers who rarely lift a finger to improve the system, it's not surprising that the system begins to show some signs of neglect.

It's like a taxicab in which you, the lawyer, are always going where your clients demand, at whatever speed they say, without ever stopping for maintenance. At first, you lose a few functions. You run out of windshield wiper fluid; the radio stops working. If you keep it up, more important systems fail you, like the clutch and the brakes. And then, one fine day, the machine won't start or, worse, it won't stop.