The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Politics in, and of, Law Schools

That legal education is tied up with politics is no excuse for indoctrination or ideological homogeneity

In an op-ed in The Globe and Mail Lisa Kerr and Lisa Kelly criticize “[c]alls for a return to … a legal education free of politics”, which they say amounts to “[s]tripping law of context”. Legal education, they insist, is necessarily, and properly, political. It is not just about legal doctrine, but also about “the complex relationship between legal principles and societal values”, as well as “history, culture, economics, and political economy”. I do not disagree with most of what they say on this point, so far as it goes. But I have a strong impression that Professors Kerr and Kelly, as well as their enthusiastic supporters in the Canadian legal academic corner of the twitterverse, elide crucial distinctions, and fail to address important questions that arise is their claim about the relationship between law, and especially legal education, and politics is accepted.

One claim in Professors Kerr and Kelly’s op-ed which I would not endorse without qualificaion is “that law and politics are not distinct domains”. To be sure, as I argued in one of my early posts here, “legal theory … is different from scientific theory, because it is in some measure argument [that] involves values, and hence ideology”. (Some of the things I said in that post now strike me as overstated, but I stand by this claim, and the post’s general tenor.) And it’s not just theory. As I wrote elsewhere, while Canadian courts is sometimes contrasted with American law as being less ideological, this is a mistake; Canadian judges are ideological, though they tend to share an ideology, and observes of Canadian courts believe, or pretend, that it is no ideology at all. Yet for all that, I think it would be a mistake to conclude that law and politics are wholly indistinct. Politics (in the sense of ideology, not necessarily partisanship) influences law, but it is not all there is to law. Professors Kerr and Kelly disparage “formalism”, but the law’s forms and procedures are important and valuable. “Due process of law” is not the same thing as political process, or the court of public opinion. I am not sure whether Professors Kerr and Kelly mean to suggest otherwise, but it would have been better had their op-ed not been open to such an interpretation.

I am also quite skeptical of the claim that Canadian law professors teach students not only law but also “history, culture, economics, and political economy”. With respect to my colleagues, how many of them master these subjects at even an undergraduate level?How many regularly read even, say, blogs written by historians or economists ― let alone scholarship? As readers who have followed my occasional musings on the “empirical turn” in constitutional law will know, it’s not that I am against the law being informed by these ― and many other disciplines; quite the contrary. But I am also skeptical about the capacity of the legal profession ― including the academy, as well as the bar and the bench ― to carry out the immense work that the “empirical turn” requires. Canadian law schools are several hundred Richard Posners short of offering the sort of interdisciplinary teaching that Professors Kerr and Kelly claim for them.

Be that as it may, as I said above, what worries me more is what Professors Kerr and Kelly do not say. First, as Michael Plaxton points out, there is a difference ― which Professors Kerr and Kelly elide ― between “drawing attention to political values” that permeate the law, and “adopting any particular political view, or imposing one on students”. One can expose the law’s politics and explain its context without necessarily arguing that the law is good or bad as a result. Now, I think that this distinction can only be taken so far. Given the limits on the time available to teach any subject, the choice of readings one assigns, or issues one emphasizes, is in part influenced by what one finds interesting and important, and one’s politics help shape those perceptions. Still, that’s not an excuse for giving up on even-handedness, or on broadening the issues one raises beyond one’s own interests and preoccupations.

Another important distinction is that between the positions of individual educators and educational institutions vis-à-vis politics. Professors Kerr and Kelly elide this distinction too, speaking of the way “we … teach law” and “the role of a law school” as if they were the same. They are not. Individual professors will, unavoidably, bring their particular political orientations to their teaching. They have a responsibility to strive, nevertheless, to fairly present views and concerns with which they disagree, but there are limits to how well individuals can discharge this responsibility, both due to the imperfections of the human nature and to the practical constraints I have already mentioned. Professors’ duty to create an environment where students who disagree with them feel free to do so is more absolute, but again, I am afraid that there are limits to what one can do. Ultimately, the professor gets the last word in a classroom discussion ― though the last word should often be a reminder that disagreement is welcome.

Law schools, as institutions, are subject to different constraints. Unlike individual professors, they are not entitled to their own political agendas. Individuals can only go so far in resisting the influence of their pre-existing commitments on their teaching. But law schools should have no pre-existing political commitments to resist. On the contrary, given the inevitability of a certain politicization of the teaching of individual professors, law schools should try to counteract this politicization by ensuring a certain degree of ideological heterogeneity among their staff, so that students are exposed to a variety of perspectives during the course of their studies. As Emmett Macfarlane points out, concerns about the role of politics in legal education have to do with “homogenizing attitudes” at (some) law schools that present them as committed to specific political orientations, so that other views would be unwelcome or at best devalued there.

One response to this that I have seen is to say that professors do not really change their students views. I think this is beside the point. For one thing, I don’t think that it’s necessarily improper for professors to change their students’ minds. If the change results from the students’ free assessment of arguments on both sides of an issue fairly presented by the professor, it’s a good thing, not a bad one. But conversely, even if  professors who set out to indoctrinate their students, or take a one-sided or authoritarian approach out of sheer carelessness, do not succeed at changing the students’ opinions, they are still causing harm. As Ilya Somin observed in a recent discussion of Keith Whittington’s new book on freedom of expression in universities, and as Matt Harringon pointed out in response to Professors Kerr and Kelly, students respond to such professors by hiding their true opinions, which harms the quality of classroom discussion. As Jonathan Haidt often reminds us, this leaves the holders of the majority opinions quite unprepared to argue against contrary views when they are confronted with them ― as will inevitably happen in the legal world, in particular.

 

So while I take Professors Kerr and Kelly’s point that the teaching of law is inevitably political, it is only true in certain ways and to some extent. Good legal educators do not shy away from discussing values, but they try to present more than their own value-laden perspective on the law, and do not seek to impose their own on their students. And, knowing that these attempts are bound to succeed only imperfectly, good law schools try to ensure that students are given opportunities to learn from professors whose political commitments are not homogeneous. I hasten to add that I strongly suspect that any legislative remedies for real or alleged failures of law schools and their faculties to live up to these commitments would be worse than the disease. But that just means that legal educators have to work very hard at it ― no one else can help them.