Okay, here’s a set of reflections that seem topical as another school year begins.
The reflections can be structured with reference to a question:
What’s the difference between a lawyer and a chick sexer?
It’s not easy, at first, to figure out what they have in common. But once one does, the risk that one won’t see what distinguishes them is much bigger, in actuarial and consequential terms.
I tell people about the link between them all the time—and they chuckle. But in fact, I spend hours and hours and hours per semester eviscerating comprehension of the critical distinction between them in people who are filled with immense intelligence and ambition, and who are destined to occupy positions of authority in our society.
Anyway, the chick sexer is the honey badger of cognitive psychology: relentlessly fascinating, and adorable. But because cognitive psychology doesn’t have nearly as big a presence on Youtube as do amusing voice-overs of National Geographic wildlife videos, the chick sexer is a lot less famous.
So likely you haven’t heard of him or her.
But in fact the chick sexer plays a vital role in the poultry industry. It’s his or her responsibility to separate the baby chicks, moments after birth, on the basis of gender.
The females are more valuable, at least from the point of view of the industry. They lay eggs. They are also plumper and juicier, if one wants to eat them. Moreover, the stringy scrawny males, in addition to being not good for much, are ill-tempered & peck at the females, steal their food, & otherwise torment them.
So the poultry industry basically just gets rid of the males (or the vast majority of them; a few are kept on and lead a privileged existence) at soonest opportunity—minutes after birth.
The little newborn hatchlings come flying (not literally; chickens can’t fly at any age) down a roomful of conveyor belts, 100’s per minute. Each belt is manned (personed) by a chick sexer, who deftly plucks (as in grabs; no feathers at this point) each chick off the belt, quickly turns him/her over, and in a split second determines the creature’s gender, tossing the males over his or her shoulder into a “disposal bin” and gently setting the females back down to proceed on their way.
They do this unerringly—or almost unerringly (99.99% accuracy or whatever).
Which is astonishing. Because there’s no discernable difference, or at least one that anyone can confidently articulate, in the relevant anatomical portions of the minutes-old chicks.
You can ask the chick sexer how he or she can tell the difference. Many will tell you some story about how a bead of sweat forms involuntarily on the male chick beak, or how he tries to distract you by asking for the time of day or for a cigarette, or how the female will hold one’s gaze for a moment longer or whatever.
This is all bull/chickenshit. Or technically speaking, “confabulation.”
Indeed, the more self-aware and honest members of the profession just shrug their shoulders when asked what it is that they are looking for when they turn the newborn chicks upside down & splay their little legs.
But while we don’t know what exactly chicksexers are seeing, we do know how they come to possess their proficiency in distinguishing male from female chicks: by being trained by a chick-sexing grandmaster.
For hours a day, for weeks on end, the grandmaster drills the aspiring chick sexers with slides—“male,” “female,” “male,” “male,” “female,” “male,” “female,” “female”—until they finally acquire the same power of discernment as the grandmaster, who likewise is unable to give a genuine account of what that skill consists in.
This is a true story (essentially).
What the chick sexer does to discern the gender of chicks is an instance of pattern recognition.
Pattern recognition is a cognitive operation in which we classify a phenomenon by rapidly appraising it in comparison to large stock of prototypes acquired by experience.
The classification isn’t made via conscious deduction from a set of necessary and sufficient conditions but rather tacitly, via a form of perception that is calibrated to detect whether the object possesses a sufficient number of the prototypical attributes—as determined by a gestalt, “critical mass” intuition—to count as an instance of it.
All manner of social competence—from recognizing faces to reading others emotions—depend on pattern recognition.
But so do many do specialized ones. What distinguishes a chess grandmaster from a modestly skilled amature player isn’t her capacity to conjure and evaluate a longer sequence of potential moves but rather her ability to recognize favorable board positions based on their affinity to a large stock of ones she has determined by experience to be advantageous.
Professional judgment, too, depends on pattern recognition.
For sure, being a good physician requires the capacity and willingness to engage in conscious and unbiased weighing of evidence diagnostic of medical conditions. But that’s not sufficient; unless the doctor includes only genuinely plausible illnesses in her set of maladies worthy of such investigation, the likelihood that she will either fail to test for the correct, one fail to identify it soon enough to intervene effective, will be too low.
Expert forensic auditors must master more than the technical details of accounting; they must acquire a properly calibrated capacity to recognize the pattern of financial irregularity that helps them to extract evidence of the same from mountains of business records.
The sort of professional judgment one needs to be a competent lawyer depends on a properly calibrated capacity for pattern recognition, too.
Indeed, this was the key insight of Karl Llewellyn. The most brilliant member of the Legal Realist school, Llewellyn observed that legal reasoning couldn’t plausibly be reduced to deductive application of legal doctrines. Only rarely were outcomes uniquely determined by the relevant set of formal legal materials (statutes, precedents, legal maxims, and the like).
The solution he proposed was professional “situation sense”: a perceptive faculty, acquired by education and experience, that enabled lawyers to reliably appraise specific cases with reference to a stock of prototypical “situation types,” the proper resolution of which that was governed by shared apprehensions of “correctness” instilled by the same means.
This feature of Llewellyn’s thought—the central feature of it—is weirdly overlooked by many scholars who characterize themselves as “realists” or New Realists,” and who think that Llewellyn’s point was that because there’s no “determinacy” in “law,” judges must be deciding on the basis of “political” sensibilities of the conventional “left-right” sort, generating differences in outcome across judges of varying ideologies.
It’s really hard to get Llewellyn more wrong than that!
Again, his project was to identify how there could be pervasive agreement among lawyers and judges on what the law is despite its logical indeterminacy. His answer was that members of the legal profession, despite heterogeneity in their “ideologies” politically understood, shared a form of professionalized perception—“situation sense”—that by and large generated convergence on appropriate outcomes the coherence of which would befuddle non-lawyers.
Llewellyn denied, too, that the content of situation sense admitted of full specification or articulation. The arguments that lawyers made and the justifications that judges give for their decisions, he suggested, were post hoc rationalizations.
Does that mean that for Lewellyn, legal argument is purely confabulatory? There are places where he seems to advance that claim.
But the much more intriguing and I think ultimately true explanation he gives for the practice of reason-giving in lawyerly argument (or just for lawyerly argument) is its power to summon and focus “situation sense”: when effective, argument evokes both apprehension of the governing “situation” and motivation to reach a situation-appropriate conclusion.
Okay. Now what is analogous between lawyering and chick-sexing should be readily apparent.
The capacity of the lawyer (including the one who is a judge) to discern “correct” outcomes as she grasps and manipulates indeterminate legal materials is the professional equivalent of—and involves the exercise of the same cognitive operation as—the chicksexer’s power to apprehend the gender of the day-old chick from inspection of its fuzzy, formless genetalia.
In addition, the lawyer acquires her distinctive pattern-recognition capacity in the same way the chick sexer acquires his: through professional acculturation.
What I do as a trainer of lawyers is analogous to what the chicksexer grandmaster does. “Proximate causation,” “unlawful restraint of trade,” “character propensity proof/permissible purpose,” “collateral (not penal!) law”—“male,” “male,” “female,” “male”: I bombard my students with a succession of slides that feature the situation types that stock the lawyer’s inventory, and inculcate in students the motivation to conform the results in particular cases to what those who practice law recognize—see, feel—to be the correct outcome.
It works. I see it happen all the time.
It’s quite amusing. We admit students to law school in large part because of their demonstrated proficiency in solving the sorts of logic puzzles featured on the LSAT. Then we torment them, Alice-in-Wonderland fashion, by presenting to them as “paradigmatic” instances of legal reasoning outcomes that clearly can’t be accounted for by the contorted simulacra of syllogistic reasoning that judges offer to explain them.
They stare uncomprehendingly at written opinions in which a structural ambiguity is resolved one way in one statute and the opposite way in another--by judges who purport to be following the “plain meaning” rule.
They throw their hands up in frustration when judges insist that their conclusions are logically dictated by patently question-begging standards (“when the result was a reasonably foreseeable consequence of the defendant’s action. . . “) that can be applied only on the basis of some unspecified, and apparently not even consciously discerned, extra-doctrinal determination of the appropriate level of generality at which to describe the relevant facts.
But the students do learn—that the life of the law is not “logic” (to paraphrase, Holmes, a proto-realist) but “experience,” or better, perception founded on the “experience” of becoming a lawyer, replete with all the sensibilities that being that sort of professional entails.
The learning is akin to the socialization process that the students all experienced as they negotiated the path from morally and emotionally incompetent child to competent adult. Those of us who are already socially competent model the right reactions for them in our own reactions to the materials—and in our reactions to the halting and imperfect attempts of the students to reproduce it on their own.
“What,” I ask in mocking surprise, “you don’t get why these two cases reached different results in applying the ‘reasonable foreseeability’ standard of proximate causation?”
Seriously, you don’t see why, for an arsonist to be held liable for causing the death of firefighters, it's enough to show that he could ‘reasonably foresee’ 'death by fire,' whether or not he could foresee ‘death by being trapped by fires travelling the particular one of 5x10^9 different paths the flames might have spread through a burning building'?! But why ‘death by explosion triggered by a spark emitted from a liquid nitrate stamping machine when knocked off its housing by a worker who passed out from an insulin shock’—and not simply 'death by explosion'—is what must be "foreseeable" to a manufacturer (one warned of explosion risk by a safety inspector) to be convicted for causing the death of employees killed when the manufacturer’s plant blew up?
"Anybody care to tell Ms. Smith what the difference is,” I ask in exasperation.
Or “Really,” I ask in a calculated (or worse, in a wholly spontaneous, natural) display of astonishment,
you don’t see why somoene's ignorance of what's on the ‘controlled substance’ list doesn’t furnish a "mistake of law" defense (in this case, to a prostitute who hid her amphetamines in tin foil wrap tucked in her underwear--is that where you keep your cold medicine or ibuprofen! Ha ha ha ha ha!!), but why someone's ignorance of the types of "mortgage portfolio swaps" that count as loss-generating "realization events" under IRS regs (the sort of tax-avoidance contrivance many of you will be paid handsomely by corporate law form clients to do) does furnish one? Or why ignorance of the criminal prohibition on "financial structuring" (the sort of strategem a normal person might resort to to hide assets from his spouse during a divorce proceeding) furnishes a defense as well?!
Here Mr. Jones: take my cellphone & call your mother to tell her there’s serious doubt about your becoming a lawyer. . . .
This is what I see, experience, do. I see my students not so much “learning to think” like lawyers but just becoming them, and thus naturally seeing what lawyers see.
But of course I know (not as a lawyer, but as a thinking person) that I should trust how things look and feel to me only if corroborated by the sort of disciplined observation, reliable measurement, and valid causal inference distinctive of empirical investigation.
So, working with collaborators, I design a study to show that lawyers and judges are legal realists—not in the comic-book “politicians in robes” sense that some contemporary commentators have in mind but in the subtle, psychological one that Llewellyn actually espoused.
Examining a pair of genuinely ambiguous statutes, members of the public predictably conform their interpretation of them to outcomes that gratify their partisan cultural or political outlooks, polarizing in patterns the nature of which are dutifully obedient to experimental manipulation of factors extraneous to law but very relevant indeed to how people with those outlooks think about virtue and vice.
But not lawyers and judges: they converge on interpretations of these statutes, regardless of their own cultural outlooks and regardless of experimental manipulations that vary which outcome gratifies those outlooks.
They do that not because, they, unlike members of the public, have acquired some hyper-rational information-processing capacity that blocks out the impact of “motivated reasoning”: the lawyers and judges are just as divided as members of the public, on the basis of the same sort of selective crediting and discrediting of evidence, on issues like climate change, and legalization of marijuana and prostitution.
Rather the lawyers and judges converge because they have something else that members of the public don’t: Llewellyn’s situation sense—a professionalized form of perception, acquired through training and experience, that reliably fixes their attention on the features of the “situation” pertinent to its proper legal resolution and blocks out the distracting allure of features of it that might be pertinent to how a non-lawyer—i.e., a normal person, with one or another kind of “sense” reliably tuned to enabling them to be a good member of a cultural group on which their status depends . . . .
So, that’s what lawyers and chick sexers have in common: pattern recognition, situation sense, appropriately calibrated to doing what they do—or in a word professional judgment.
But now, can you see what the chick sexer and the lawyer don’t have in common?
Perhaps you don’t; because even in the course of this account, I feel myself having become an agent of the intoxicating, reason-bypassing process that imparting “situation sense” entails.
But you might well see it—b/c here all I’ve done is give you an account of what I do as opposed to actually doing it to you.
We know something important about the chick sexer’s judgment in addition to knowing that it is an instance of pattern recognition: namely, that it works.
The chick sexer has a mission in relation to a process aimed at achieving a particular end. That end supplies a normative standard of correctness that we can use not only to test whether chick sexers, individually and collectively, agree in their classifications but also on whether they are classifying correctly.
Obviously, we’ll have to wait a bit, but if we collect rather than throw half of them a way, we can simply observe what gender the baby chicks classified by the sexer as “male” and “female” grow up to be.
If we do that test, we’ll find out that the chick sexers are indeed doing a good job.
We don’t have that with lawyers’ or judges’ situation sense. We just don’t.
We know they see the same thing; that they are, in the astonishing way that fascinated Llewellyn, converging in their apprehension of appropriate outcomes across cases that “lay persons” lack the power to classify correctly.
But we aren’t in a position to test whether they are seeing the right thing.
What is the goal of the process the lawyers and judges are involved in? Do we even agree on that?
I think we do: assuring the just and fair application of law.
That’s a much more general standard, though, than “classifying the gender of chicks.” There are alternative understandings of “just” and “fair” here.
Actually, though, this is still not the point at which I’m troubled. Although for sure I think there is heterogeneity in our conceptions of the “goals” that the law aims at, I think they are all conceptions of a liberal political concept of “just” and “fair,” one that insists that the state assume a stance of neutrality with respect to the diverse understandings of the good life that freely reasoning individuals (or more accurately groups of individuals) will inevitably form.
But assuming that this concept, despite its plurality of conceptions, has normative purchase with respect to laws and applications of the same (I believe that; you might not, and that’s reasonable), we certainly don’t have a process akin to the one we use for chick sexers to determine whether lawyers and judges’ situation sense is genuinely calibrated to achieving it.
Or if anyone does have such a process, we certainly aren’t using it in the production of legal professionals.
To put it in terms used to appraise scientific methods, we know the professional judgment of the chick sexer is not only reliable—consistently attuned to whatever it is that appropriately trained members of their craft are unconsciously discerning—but also valid: that is, we know that the thing the chick sexers are seeing (or measuring, if we want to think of them as measuring instruments of a special kind) is the thing we want to ascertain (or measure), viz., the gender of the chicks.
In the production of lawyers, we have reliability only, without validity—or at least without validation. We do successfully (remarkably!) train lawyers to make out the same patterns when they focus their gaze at the “mystifying cloud of words” that Cardozo identified the law as comprising. But we do nothing to assure that what they are discerning is the form of justice that the law is held forth as embodying.
Observers fret—and scholars using empirical methods of questionable reliability and validity purport to demonstrate—that judges are mere “politicians in robes,” whose decisions reflect the happenstance of their partisan predilections.
That anxiety that judges will disagree based on their “ideologies” bothers me not a bit.
What does bother me—more than just a bit—is the prospect that the men and women I’m training to be lawyers and judges will, despite the diversity of their political and moral sensibilities, converge on outcomes that defy the basic liberal principles that we expect to animate our institutions.
The only thing that I can hope will stop that from happening is for me to tell them that this is how it works. Because if it troubles me, I have every reason to think that they, as reflective decent people committed to respecting the freedom & reason of others, will find some of this troubling too.
Not so troubling that they can’t become good lawyers.
But maybe troubling enough that they won't stop being reflective moral people in their careers as lawyers; troubling enough so that if they find themselves in a position to do so, they will enrich the stock of virtuous-lawyer prototypes that populate our situation sense by doing something that they, as reflective, moral people—“conservative” or “liberal”—recognize is essential to reconciling being a “good lawyer” with being a member of a profession essential to the good of a liberal democratic regime.
That can happen, too.