Is Law An Effective Way To Analyze And Solve Problems?
It may seem strange to most people, but many lawyers consider themselves to be problem solvers. Some people go into law hoping to improve their analytical and rational decision making skills. There is some justification for that view; law school does encourage students to spot issues and to apply concepts from one area of law in another. Yet legal system's method of problem solving is very different than the ones advocated by other experts on human relations, like psychologists, sociologists, and economists.
Legal analysis is often not the most logical way of making decisions. In many situations, judicial decisions resolving disputed or unclear law are really policy decisions, yet they are approached by asking what the state of the law is, rather than what objective the parties wish to achieve. The result is that the decisions are made based on semantic games and by following prior cases decided under different circumstances. Legal rules developed through precedent are sometimes based on a few outlier cases that were unusual or novel enough to result in written court opinions, rather than the far more common situations that never result in written opinions. When resolving factual disputes, many aspects of our litigation system give an advantage to those who have greater access to the underlying facts, and can use this information to outmaneuver opposing counsel.
I. Questions of Law:
Where law is clear:
In many situations the relevant law is sufficiently clear or opposing parties do not wish to dispute it because not much is at stake. Here, determining the applicable law is more of a mechanical task and doesn't involve as much legal analysis. Certain areas of law like taxation tend to be clear, while other areas like state tort law have less defined concepts like negligence and reasonably foreseeable harms.
Resolving Unclear or Disputed Law Often Requires Policy Making
The bulk of legal analysis occurs when the applicable law itself is in dispute. Other cases involve disputed questions of law. The law may be unclear because there is no source of law directly relevant to the matter, or because there are multiple sources of law that conflict in some situations.
These situations often arise because legislators and judges cannot foresee every possible scenario that may arise sometime in the future, nor can they anticipate the surrounding circumstances that lead to each situation. It is not possible to know the consequences of each course of action, and what policy arguments may raised for or against it. Different judges and different legislative bodies may have conflicting policy goals, and final decisions often reflect compromises. Therefore, when a judge is asked to decide whether statute X or statute Y controls, or whether an administrative regulation on matter X supercedes prior caselaw on matter Y, he or she must engage in a certain degree of policy making.
Spotting Outside Issues and Policy Concerns Is a Useful Skill
Law students and lawyers are trained to spot issues that they could raise or the other side might argue. They are trained to find abstract yet useful relationships between seemingly different topics. For example, a concept from patent law could be relevant to a copyright case. To some extent, this method of thinking also helps lawyers appreciate policy concerns that may typically arise in another area of law.
Some law students and lawyers remain generalists. Others get very specialized and have more difficulty valuing concerns beyond their their area of expertise and their clients. This overspecialization problem is similar to a classic medical scenario, where a patient has some unknown ailment. Each specialist wants to diagnose the patient with something from within their specialy, discounting the opinions of other doctors. Lawyers who specialize in areas like tax, ARISA, or patent law sometimes get so absorbed by their area of law that they can become oblivious to other legal concerns.
Why Using Legal Analysis To Make Policy Can Be Problematic
One problem with the policy making inherent in legal analysis is that the decisions are based on or justified on other grounds. When making (non-law) policy, business, or personal decisions, most people figure out what their objectives are and weigh the pros and cons of several methods of achieving that objective. However, legal jurisprudence is reactionary. Attorneys and judges frame questions of law in terms of “what does the law say”, rather than evaluating the merits of the policy objectives that the parties in court are trying to achieve. The way the language frames the underlying legal question assumes that there is one correct interpretation of the law, and judges are simply determining that correct interpretation. This approach sometimes doesn't work well since questions of law are often litigated exactly because the relevant sources of law are ambiguous or contradict each other, and multiple interpretations are plausible.
Looking for Precision That Doesn't Exist Leads To Semantics Over Substance
During litigation, attorneys will often write dozens or hundreds of pages to determine the exact meaning of amorphous terms like “substantially evidence”, “arbitary and capricious”, “duty of care” or “reasonably foreseeable harm” or “proximate cause.” These terms are by nature broad and can apply to a myriad of different factual situations.
The Textualist Approach: When using a textualist approach to decide how the words apply in a specific fact scenario, judges must search the words carefully for answers. This approach sometimes results in a search for a level of legal precision that doesn't exist. This type of jurisprudence makes substantive decisions by splitting hairs over dueling dictionaries or novel grammatical constructions, rather than making the policy decision on policy grounds and empirical evidence that are more relevant to the underlying situation before them.
The Sometimes Elusive Search For Legislative Intent: Searching for a legislative intent can be just as problematic as the textualist approach described above. Legislative intent is often elusive, as the entire legislative body may have had no collective intent. Different legislators will have had different reasons for voting for a piece of legislation as most legislative works are a compromise. Many will not even have read the entire bill; most will not have thought through the implications of each provision. Moreover, judges must still ask what how the legislature intended to resolve the particular factual situation before them now; since the members of a legislature may not have even envisioned that particular scenario, it may be that no intent exists.
Legislative Facts: Judges will sometimes need broad-based empirical evidence to know how often a situation arises, or how severe it typically is, before crafting a rule of law. Judges may need to know which definitions of words are most plausible; background information on the subject matter may yield insight into which definitions best fits into the overall scheme of the statute. Yet most lawyers and judges lack the intuitive quantitative skills to interpret such factual information. Complicated scientific or technical information gets too little or too much weight and lawyers often have difficulty understanding the limitations of it. To add to the problem, some judges and legal scholars believe that judges should not rely on empirical evidence when deciding legal questions, therefore, a judge who bases a decision on empirical data may not be inclined to be honest about how that data may affect decisions. The decision may instead be based on linguistic arguments.
Emphasis on Precedent and Prior Cases
Judges look to prior cases to resolve legal disputes. Where the case is from a higher court, the judge must follow the case in resolving a case with similar facts. Where the case is from another jurisdiction, for example, another state or circuit, attorneys or judges may cite the case as persuasive authority if they believe the reasoning is sound. While consulting prior cases is helpful, this approach is problematic when applied in a rigid and mechanical manner.
Muddled Caselaw Results From Honoring Bad Precedent:
A popular saying says that,“Bad facts make bad law.” Relying on precedent is problematic when that precedent is incorrect or results in absurd consequences. Judges are reluctant or sometimes unable to overrule some of these problem cases. They instead distinguish future cases that reach the opposite result based on other details. Muddled caselaw then results from these attempts to reconcile inconsistent opinions instead of narrowing or overruling the problem cases.
For example, the Supreme Court decided in the Slaughterhouse cases in 1873 that the Bill Of Rights in the US Constitution did not apply to actions by states. The Justices stated that the “Privileges and Immunities” Clause of the newly-enacted 14th Amendment effectively had no meaning. Future courts did in fact believe that certain civil liberties in the Bill of Rights actually did apply to state government actions by virtue of the 14th Amendment. Instead of simply overruling the prior case, Justices instead chose to base later fundamental rights on a new notion of “Substantive Due Process” The Court effectively took the “Due Process” clause, designed to deal with court procedures, and used it to justify substantive legal rights that should have been based on the now-devoid “Privileges and Immunities” Clause. This change took decades, and resulted in numerous conflicting and confusing cases. Perhaps one day the Court will take the opportunity to fix the confusion, thereby letting judges write decisions whose legal justification is clearer and closer to the intent of those who passed the 14th Amendment.
Prior Cases Often Decided Under Different Circumstances: Courts often wrote prior cases at different times or under different circumstances, so even if they are semantically analogous, the underlying reasoning may not be applicable. Some legal treatises often assume that some old cases are no longer good law for this reason, even if those cases have never been specifically overruled. The litigants and judges may have made different policy choices and had different social or business values based on those times and circumstances. Even within the same jurisdiction, there will be multiple judges who may conceptualize the law differently. Some judges take account of background “legislative facts” that demonstrate how a particular decision will or will not implement the legislative intent of the law. Different legislative facts may exist now as a result of changed circumstances, a better understanding of the issue among experts, or more research by better-prepared counsel. In such cases, the reasoning behind the holding in a prior case may no longer be valid.
Prior Litigants May Have Had Different Goals: Another problem with relying on prior cases is that they may have featured litigants with different goals than later parties. These goals reflect which arguments the parties choose to raise, and how they will divide their resources among each possible argument. Litigants usually have a finite amount of time and money to spend on their cases, and courts often place length restrictions briefs submitted and time restrictions on oral arguments. So it is possible that a decision will be based on a point that did not receive the full attention of the litigants arguing before the court.
There may be numerous sides to an issue; yet only the viewpoints raised by the litigants will receive significant attention from the court. The skill level and amount of experience in relevant areas of law also varies among attorneys. Some litigants have more at stake than others, and therefore are willing to pay for legal preparation. Sometimes litigants file or defend lawsuits mainly to delay. The decisions in these cases may have turned out differently if the losing party had a stronger interest in victory; the precedent set by them should be suspect.
Case Later Cited For Broader Legal Proposition Beyond What Judge Intended: Another problem occurs when a case is later misunderstood or misused to stand for a proposition beyond the original situation. For example, one of the most cited cases is Chevron v. Natural Resources Defense Counsel. The case states that when a government agency issues a regulation, courts will defer to those agencies if the statute they implement is ambiguous or allows flexibility. The justice who wrote the case later said he believed he was just restating the current law at the time which gave very limited deference to government agencies. Starting about 5 years later, courts and litigants began citing the Chevron case as a seminal case in administrative law that gives broad new discretion to government agencies. The basic holding may be good public policy, but this one decision is not really where it originated.
Published Cases Are Often Not Representative Or Are Outliers
Few business or personal interactions later give rise to litigation. Fewer of those cases are litigated to a final judgment instead of settling. Only a portion of those judgments are appealed, and even then, only a portion of the appeals result in significant published opinions that become legal precedent. So legal systems relying on caselaw are basing the state of the law on only a small portion of possible situations that are subject to the relevant law. When those published opinions are not representative of the vast majority of situations, then the law may become skewed by these outliers. Published cases are likely to be outliers for several reasons:
High Stakes: In cases that result in prolonged litigation, followed by appeals, the monetary or personal stakes had to high enough to justify the legal costs of litigating and appealing instead of settling. It may have been bet-the-company litigation, or an issue between people with strong personal animosity toward each other. A court therefore may craft a rule that is designed to prevent a rare yet disastrous scenario, but places undesirable burdens on parties in more common yet lower-risk situations.
Rarely Enforced Law Makes Bad Precedent: Where law is rarely enforced, the official state of the law may not reflect how parties actually behave. Caselaw in some areas, especially business-related law, is often designed to emulate how judges believe typical parties to a transaction already behave and what their expectations are. When faced with a novel legal question, judges may look to related law, or look to neighboring jurisdictions. If that other law does not accurately reflect how typical business relationships are conducted, the judge may write an opinion based on an erroneous assumption. Similarly, legal academics and public policy advocates may make erroneous assumptions about human behavior that may result in false conclusions. The danger is especially high when data is hard to gather, such as when gathering historical trends.
Changing Circumstances Create New Legal Issues: Cases that result in public decisions often result from changed circumstances or new technologies may have presented the court with an issue of first impression. During such an era of rapid social, economic, or technological change, it is likely the underlying factual assumptions made by judges, even in recent cases, will no longer apply to current situations. The state of caselaw may not accurately reflect business practices. Laws may not routinely be enforced, as it is possible that none of the parties involved are even aware of new changes in the law.
For example, courts began allowing software patents in the early 1980's, yet many experts in the field continued believing that software algorithms were generally not patentable, and technological constraints made enforcement somewhat difficult. Most companies didn't seek such patents; nor did they think to look if their own activities infringed the patents of others. Patents didn't play a significant role in most software development. Yet a current legal or economics scholar might not know this, and might make generalizations based off a handful of published opinions from the time period about when software could be patented. Those generalizations might well be inaccurate.
Final Thoughts On Legal Analysis:
Where the state of the law is unclear, courts often must make some policy decisions. However, attorneys and judges frame questions of law in terms of “what does the law say”, rather than evaluating the merits of the policy objectives that the parties in court are trying to achieve. Prior cases that have dealt with similar legal issues are helpful in making decisions, however, rigidly relying on precedent is also problematic. Those earlier cases often were decided under different circumstances. Published opinions are often based on atypical circumstances that led the parties to fully litigate the matter such as high-stakes, or a recent social or economic change. Those reading judicial opinions should remember that when the state of the law is unclear, a certain degree of policy making is inherent in deciding the state of the law.