“It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” Hyde v. United States, 225 U.S. 347, 391 (1912) (Holmes, J., dissenting).
More than 35 years ago, Marshall McLuhan predicted that a global village would be built on an electronic nervous system. In its present stage, that system is the Internet. The Internet feels nothing, creates nothing, and imagines nothing. It delivers data. We permit it, however, to govern nearly every aspect of our lives.
American culture is obsessed with grades, standings, and scoreboards. In a world in which even emotions are measured on graphs and scales, the play is no longer “the thing wherein I’ll catch the conscience of the king” (Hamlet act 2, sc. 2); rather, it is an event whose success is measured by box-office receipts. Is it any wonder the world we now inhabit reviles imagination, considers poetry quaint and art an amusement, and substitutes systems for thinking? We have conditioned ourselves to look at quantitative results rather than revel in the qualitative world of thought.
In Practical Wisdom, authors Barry Schwartz and Kenneth Sharpe argue that although we have developed systems and procedures to improve our work, they often have the unintended consequence of making it worse. The absence of wisdom is foolishness, and much of what we espouse and do is foolish. Why? Because we measure value by the bottom line. We ignore our capacity for recognizing intangible qualities of personal dignity and uniqueness because we assume that the solution a system provides is good enough.
Systems Instead of Thinking
Substituting systems for thinking is rampant in our culture, and nowhere is this more apparent than in the law. Allowing a system to become an end in itself, rather than a starting point, has made the practice of law programmatic and wrought incalculable damage to our profession. Programs are organized lists of instructions that, when executed, produce predictable results. Because they are predictable, the results are quantitative, not qualitative. A system is a set of interacting programs that governs results by excluding factors not contained in the relevant programs. Yet, it is often those very factors that make the difference between a system’s failure and its success.
The Federal Rules of Civil Procedure is a system based on the interacting programs of notice pleading, liberal discovery, and a reductive pretrial order. Cost is excluded as a factor. In criminal practice, the Sentencing Guidelines have excluded rehabilitation from the instructions and thereby eliminated it as a factor in calculating penal sentences. The intent was to eliminate disparity. But by excluding factors that lie at the heart of primary goals—in the one case, access to civil justice; in the other, reduction of recidivism—each system has defeated its very purpose.
Adherence to systems makes us spectators instead of participants. There is no drama in a summary judgment, and the jury trial is dying because its outcome cannot be predictably quantified. Trial requires individual involvement, risk, and moral exposure; better to calculate the bottom line and settle. But by substituting systems for thought, something more fundamental is lost: meaning. When meaning is lost, thoughts morph into slogans devoid of nuance and ultimately become vacuous.
Depending exclusively on systems also produces poor results. Reliance on mechanics in lieu of thought inexorably reduces a client, cause, or case to an object. This, in turn, inevitably dehumanizes the lawyer or judge himself or herself. One can perform mechanistic exercises only for so long. Is it any wonder that many lawyers who leave the practice and judges who leave the bench do so because they find themselves on a value-free treadmill whose motion becomes utterly pointless?
This counterproductivity is often revealed in employment suits. I have had numerous Title VII cases in which the employer is mystified and angry at having been haled into court. But the same company, through its Human Resources Department (the name alone suggests the problem), sends computer-generated birthday and condolence cards and retirement letters beginning with “We congratulate you on __ years of loyal service.” In one instance, the Human Resources Department forgot to fill in the blank. After the verdict, the chief executive officer complained to the press, “I don’t get it, we run our company by the book.” The jury thought so too. The question not asked in this mechanistic process was what made that plaintiff different from or more than the generalization derived from the metrics of “human resources.”
The main work of the trial judge is to exercise discretion within the bounds of law. Because discretion is the freedom to decide what should be done in a particular situation, in exercising it other decisions are merely illustrative. The most persuasive advocate is the one who leads the judge to understand what he or she should do based on the particularity of the case, rather than droning on about statutory mandates and binding precedents. Cases and statutes are the beginning, not the end, of the task. Which premise should be followed is seldom obvious, and no two cases are ever identical, no matter how formulaic one might wish them to be.
In determining attorney fees in a class action, for example, no string of citations in which 20 or 30 or 40 percent was adopted by any number of courts creates a presumption of reasonableness in the case at bar. How much was recovered? How many investors are in the class? How efficient were the lawyers? What issues were presented? What was the risk of failure? A bland statement that X number of circuits approved 30 percent proves nothing without a careful and detailed presentation of the facts.
On the criminal side, guidelines might provide that two bank robbers of about the same age, each with a prior conviction and each pleading guilty, should receive the same sentence. Filling in the blank would create no disparity, but myriad factors would make the sentence unduly harsh for one and inexcusably mild for the other. Typical is not necessarily reasonable.
Independence of function and thought is cardinal to the judiciary. Delegating decisions to programs corrupts us, and we compound this corruption when we fail to superintend and analyze a system’s programmed results. Chief Justice Vaughan stated in Bushell’s Case, (1670) 124 Eng. Rep. 1006; 6 How. St. Tr. 951: “A man cannot see by another’s eye, nor hear by another’s ear, no more can a man conclude or infer the thing to be resolved by another’s understanding or reasoning.” This doctrine is as relevant today as it was three-and-a-half centuries ago. It teaches judges and lawyers alike that we cannot evade our responsibility by reducing our work to a clerical task. If the law is not a creative process intended to breathe into life truth and justice, what is its point?