17 June 2015


Just a very short note of irritation at the legal profession and legal education.

Several incidents over the past few years have crystalized for me a serious blindspot in the education and mindset of lawyers: The inability to conceptualize choices made among bad alternatives, due in large part to the post hoc, unstated assumption that based on the information and resources actually available at the moment of choice, there was a clear "good" choice that "should" have been undertaken, and that any deviation from that "good" choice is somehow subject to later second-guessing.

One example of this comes from the mortgage crisis that began about a decade ago. There's a lot of blame that gets attached to all of the actors in that mortgage crisis, ranging from the banks (and occasionally individual bankers themselves) to the servicing industry to the real-estate industry to a rather despicable subtextual disdain for those who overborrowed... especially first-time buyers who overborrowed. The main difficulty is that all of this presumes that there was a "good" alternative to entering the home-purchase or -refinancing market in the first place. Due to a wide variety of pressures and experiences, Americans rightly believe that if they are renters they will not get the attention, services, or anything else that they need in life; the evidence for this ranges from the preference for home ownership in credit reports (and the cascade effect on everything else in one's life) to obvious geographic comparisons of schools in high-rental versus high-ownership zones to hospital and medical services locations to... I won't go on. I'm not at all saying that actual misconduct and greed and so on shouldn't have consequences; I'm saying, instead, that it's not a simple, binary comparison between the actual results and some unachievable Pollyanish hypothetical as implied by virtually every case in virtually every casebook and judicial/administrative opinion.

So it's a problem. The difficulty is that the legal profession, and especially legal education and formal jurisprudence, do not provide any guidance whatsoever on how to deal with a problem all to familiar to military officers and even to many business leaders: How to accomplish the mission while minimizing collateral damage... and simultaneously acknowledging that there will be nonzero collateral damage. The closest that the law comes is the business judgment rule, which itself is wildly (and simultaneously) overbroad and overconstricted. It's overbroad because it doesn't require inquiry, but implicitly allows decisions made upon what is actually in front of the decisionmaker so long as that resembles what other decisionmakers might be expected to know (and therefore ignores context), and fails to account for foreseeable collateral damage; it's overconstricted because it applies only to certain aspects of pure commercial decisionmaking.

At its core, the real difficulty here is that lawyers simply are not trained in making or evaluating least-bad choices... except, that is, for criminal defense attorneys, and maybe family-law attorneys who specialize in child custody matters. Even they learn on the job; they sure as hell don't learn in law school, not even in "clinical" settings. And this makes a little bit of knowledge — especially a little bit of incorrect or purely-theoretical-with-no-lab-experience knowledge — extremely dangerous to everyone involved... most especially to their own clients.