Monday, December 14, 2009

Farnsworth's Legal Analyst

Getting ready to begin my 40th year in the classroom, I took a spin through Ward Farnsworth's The Legal Analyst: A Toolkit for Thinking About the Law (2007). It's fun and rewarding on its own terms, but also a rewarding opportunity to reflect on how things have changed over my professional lifetime. And before anything else, I should specify that Farnsworth is a superb explainer, topnotch at packing some difficult concepts in accessible, yet still intellectually honest, terms. Farnsworth says in his preface that he hopes it will appeal to "law students, lawyers, scholars and anyone else with an interest in the legal system." Right enough, although I suspect its primary audience may be students just finished with their first year, perhaps waiting for a jingle on the employment hotline. Or perhaps even more important, it will be another one of those books that the professor tucks in his own top drawer, so as to trade on some bits of intellectual capital that he hasn't earned.

As one might guess, the heart and soul of Farnsworth's book is the stuff drawn from "economics," or more precisely "law-and-economics," that congeries of insights, puzzles and provocations drawn mostly from the first-year micro econ curriculum. And here is the field in which the evolution of the modern law curriculum is most obvious. I sat down for my first law school class in the fall of 1963. That would be three years after the publication date for the publication of Ronald Coase's The Problem of Social Cost, which serves s the law-and-econ analog to the role played in mainstream econ by Adam Smith's Wealth of Nations. My own guess is that none of my own professors* ever heard of Coase--or if they had, that they ever troubled themselves to find out much about him. This isn't to say they were bad teachers. Well: some were bad teachers, but one or two (or three?) were among the best teachers I ever had in my life. They just didn't see this law-and-econ stuff as in any way relevant to the (formidable?) traditional education that they undertook to impart.

I suppose I read Coase before I started teaching in 1969, by which the article had been abroad on the land for nine years (and Farnsworth himself would have reached the age of two). I have to admit I had trouble grasping it at first, but in this apparently I was not alone. Anyway, I got on board soon enough that I was able to track a good deal of the intellectual current as law professors grasped and then embraced the new economic learning. For a while it seemed as if everyone was styling himself a "law and econ" person; hiring committees were hot for law-and-econ people, and everybody was offering, or planning to offer, or pretending to offer, law and econ courses.

What was my point here? Oh yes: my point is that I'm struck by how much those days have passed us by now; to what extent "law and econ" has become common sense, common knowledge, part of the substrate. We once thought that Coase, etc., required a separate course. I suspect now that a good deal of the Coasean wisdom has passed, at least in vulgarized form, into the mainstream curriculum. The same might be said for some of the other, closely related, topics in Farnsworth's book: the stuff on game theory, for example, or the small dose of basic probability learning.

If I'm right so far, it may seem that I raise an awkward question: to what extent are Farnsworth's insights part of a "toolkit," and to what extent just "stuff that you learn in law school?" I don't have a pat answer to that one and in any event,I suppose I am taking aim at a moving target. But if we've reached the point where one guy can sketch the stuff out and put it into a (highly readable) short book, then we are veering close to the point where it isn't really specialized knowledge at all.

This offering provides background for my take on the latter portion of the book, where Farnsworth discusses topics from (as he calls it) "psychology"--with chapter headings like "hindsight bias" and "attribution effects." If you've followed the literature at all, you know we are now out there beyond the bob wire, in tht uncertain no-man's land where the economists and the psychologists come head to head. Or where, more sharply, the economists are laying down an imperialist claim to be masters of all knowledge.

The provenance is clear enough. An abundance of evidence has persuaded even the diehards that traditional economic models of human behavior were crude to the point of caricature. The current agenda is to try to find ways to refine the crude models into a more subtle and appreciative understanding of human behavior. It's all the rage and it has indeed generated some interesting results.

Well, fine. Yet I have to wonder how much of this stuff counts as "new insight" and how much as "things we knew or should have known all along." I need to tread with delicacy here: I do not want to come across as a total Philistine. I suppose it does help at least to be reminded that people value risk asymmetrically; that the benchmark determines the agenda, and that the person who sets the agenda wins tahe argument. Maybe I want to say that these are all things that a smart cop or a successful political consultant knew all along.

Indeed, maybe it is only the professors who did not know--and I don't think this suggestion is quite as ridiculous as it might seem on the surface. I suspect it might well be that professors are the class so disposed to get bound up with their theories that they forget what they might learn from their intuitions. And recall Peter Drucker who said that the hardest thing to know is what you are good at, precisely because you are good at it, so it becomes invisible. A corollary may well be that one becomes a professor of (a) sociology; (b) psychology, (c) economics; (d) law, precisely because one does not have a knack for those things that make up the common-sense parts of the discipline. Admit it now: how many of us heard a psychologist at a seminar presentation report "we were surprised that"--only to report something tht doesn't strike you as very surprising st all?

Or maybe not. This seems to me to be a question rife with difficulties which neither I nor anyone else has explored with the insight it deserves. Meanwhile it is good to have Farnsworth as a field guide to the state of play. I think I'll stock up on a few extra copies, for young friends who are thinking about taking the plunge into law school themselves.

*At the University of Louisville, where I got my first law degree. After Louisville I did a "cleansing masters'" at Yale, where Coase was hot stuff.

No comments: