Legal Commentary

This morning's Wall Street Journal reports that the Harvard Business School has named a current professor, Nitin Nohria as its 10th dean.  The article describes Nohria as "a vocal critic of management education and the leaders it produces," and quotes Nohria's recent conference call comment - one that without some unpeeling sounds a little odd:  "I believe that management education has been overly-focused on the principles of management."  But maybe not.  Would it sound so odd to say that legal education has been overly-focused on the principles of law?  Not at all.  But consider the next quote in the article, this from Jeffrey Sonnenfeld at the Yale School of Management:  "Mr. Nohria is someone who's been asking the tough questions. . . .  While there is a lot of soul searching going on, he has been taking the steps to give MBAs judgment as well as knowledge."

To paraphrase Mark Twain, everybody talks about judgment but nobody does anything about it.  It's hard to be both thorough and brief when giving quotable comments to reporters, so I don't knock Dean Sonnenfeld at all, but, obviously, instilling or teaching or demonstrating judgment is a task far more challenging than the mere "giving" of it.

What's intriguing to me is the implicit polarity of (a) over-focus on principles of management and (b) judgment.  Some thoughts on principles (or rules) as reduction, something I've been considering recently, below the break.

I can't recall if I have blogged about this, but I have mentioned it in a couple papers.  My next door neighbor and very good friend, David Haig, is a theorist in evolutionary biology at Harvard.  He is a very smart guy.  His groundbreaking work was in genomic imprinting, and particularly the theory underlying certain outcomes in maternal-fetal conflicts (it's a game theoretic approach that hinges on the selection of the mother's or father's gene, particularly when it's a zero-sum game as to resources as between the mother and the fetus).  The theory has practical impact because it helps explain conditions like preeclampsia in pregnancy.  Every couple weeks, usually late on a weekend afternoon, I open the gate in the fence between the houses, walk up the steps, and David and I share a bottle of wine and solve all the problems of the world (usually his house because he has small children.)  There is one continuing theme:  David thinks science will get us most, if not all, of the answers (eventually), and I am what we have come to refer to as a mysterian (Colin McGinn may have coined it, but I am happy to adopt it.)

Much of our conversation, then, is expressly or implicitly about reduction, and more specifically, epistemic reduction. Reduction is of particular interesting to biologists (or philosophers of science interested in biology) because of the seeming loss of explanatory power as one moves from molecular biology to the physics of the atoms and particles that make up the cells. Hence there is a Stanford Encyclopedia of Philosophy entry on Reductionism in Biology and it defines epistemic reductionism as "the idea that the knowledge about one scientific domain (typically about higher level processes) can be reduced to another body of scientific knowledge (typically concerning a lower and more fundamental level)."  The Theory of Everything orientation to the world is necessarily reductive, even if not deterministic (hence the hope of somebody like Roger Penrose who hopes that consciousness and free will are ultimately explained by quantum physics, and therefore as reducible or irreducible as our ability to understand particles). 

I just saw a paper on BEPress from Hanoch Dagan and Roy Kreitner with a pithy quote about legal doctrine: "Langdellian legal science envisioned law as an autonomous discipline governed by three characteristic intellectual moves: classification, induction, and deduction."  This strikes me as classically reductive in the sense of isolating from the data what constitutes in language, the medium of the law, any particular element of any particular legal consequence, whether it be, for example, duty, negligence, mens rea, an investment contract, monopolization, or apparent authority.   Focusing on the Kantian idea of judgment as the "faculty of subsuming under rules, i.e., of determining whether something stands under a given rule ... or not,? there's really no difference between scientific judgments in biology and scientific judgments in legal doctrine.  The real question is whether in adopting a particular rule or theory or model (the skill in judgment that Kant didn't view as something that could be "given" by way of teaching, but could only be practiced) we've adopted one with optimum power for explanatory or predictive purposes in resolving the question at hand.

Hence, when we acquire knowledge, we are necessarily selecting rules that themselves tag only pieces of all the data available to us, and those rules allow us to predict consequences whenever the relevant conditions present themselves.   Right now (but that could change), the selection of particle physics as the model (with its coherent assemblage of rules) is not going to help a biologist explain pollination, notwithstanding all of the explanatory power of particle physics for those operating the Hadron collider.  It strikes me that Nohria is right about business people (and I extend it to lawyers in business):  if we over-focus on the rules and principles of management or law, we've over-reduced, and will necessarily find our judgments to be problematic.