Legal Work

As a sort of antidote to my generally negative views on the practice of law, here is an elogy of legal work as an intellectual pursuit.

Law at its highest is an exercise in connection-making, like software development or science.

A while ago, I did some Microsoft Access development. As a nonprogrammer with a reasonable grasp of technical concepts, I discovered the profound satisfactions of making the elements of a program work together. For example, I began by creating a collection of tables in some sort of normal form, each with a primary and foreign key that made sense. I had built the foundation and had tables that made sense; they included the correct data elements and grouped them in logical fashion.

I then created a set of forms to enter the data into my database, and experimented with what I regarded as the most superficial level of my endeavor: layout, style and usability. (It was superficial to me largely because I was the only user--so I could not possibly find my own screens confusing.)

The reports proved to be the most challenging part of the entire endeavor; it was not always evident how to make the reports tap the data in the way that I wanted. Once I figured out how to create reports which grouped records by particular headings, I became emboldened and began integrating reports and forms, placing buttons on the latter to launch the former. Something that sounds very simple, but which took me a few hours to solve, was the problem of how to make a report that would print exactly the record the user was viewing in my form. The macro I generated had to relate two separate processes to one another; it had to identify the record that the user was viewing, and pass the information to a report which printed only that record. The results of my first effort--a button on the form which printed the whole database, not solely the pertinent record--made me feel like a complete idiot.

On the other hand, the feeling of satisfaction I felt when I figured out the correct command to make my report and form interact seemed curiously familiar to me; at last I realized it was essentially the same satisfaction I felt when I finished a strong draft of a legal brief. The parallels are simple: the tables, forms, reports and macros were reminiscent of the cases, statutes, and treatises disclosed by legal research. One begins with a bunch of disparate objects standing in a vague field, and sooner or later one links them into a harmonic entirety.

I will give as an example the most recent legal brief on which I've worked, actually a briefing paper arguing that the First Amendment bars the purchase of censorware by public libraries. In it I unite unrelated strands of case-law. The first strand consists of a single Supreme Court case, Pico v. Island Trees School District, holding that a schoolboard cannot order the removal of disfavored books from the school library. The second strand consists of a series of cases holding that the states cannot adopt the MPAA movie ratings as legal standards determining what movies can legally be shown. Although these cases deal with disparate subject matter--the First Amendment is the only element they share--both are connected to each other as possible precedent in a censorware case. The legislature ordering the library to buy censorware is like the school board ordaining censorship in Pico. The library abdicating its own standards to a nongovernmental third party who is entrusted to make highly subjective decisions about which speech is acceptable is like the states adopting movie ratings as law in the MPAA cases. In writing my brief, I imposed a structure on these two disparate elements, much like I did when I made my form and report talk to each other.

I mentioned doing science as another parallel. Thomas Kuhn's theory of scientific revolutions--we impose a structure on the facts until we are forced to acknowledge that it doesn't fit, and then find another one--also reminds me of writing briefs. The main difference is that the scientist is dealing with natural phenomena that may be observed, albeit through flawed sense organs; the lawyer and software developer are substituting imaginary constructs--program elements or case law-- for natural phenomena. But the parallel, nonetheless, is interesting. While the metaprogrammers who created Microsoft Access may play God, I deal with the elements I have been given; the paradigm of tables, forms, reports and macros appear to me to have as much objective reality as the molecules or particles with which the scientist deals. Similarly, we are taught in law school to regard cases and laws as if they were physical facts. The first week of law school, someone said, "Before you came here, you spoke of right and wrong; but you will leave talking about what is and is not the law." While morality is increasingly clearly to many people a fuzzy system--it especially is to lawyers--many of them erroneously believe the law is not. The phrase, "what is and is not the law," suggests a binary system, like a computer language.

I was also warned, just before starting Harvard Law School, not to expect to find intellectuals there, and for the most part I didn't, though I found very smart people. Most of us don't think of the floor we walk on as being composed of atoms, nor when we take a walk in the country do we reflect on the profound age or violent origins of the rocks that surround us; you can get quite dizzy if you do. There is very good money to be made regarding cases as if they were atoms or rocks. But the truth is that the law, like science or software, is a fuzzy system indeed. Judge Cardozo summed it up, in his 1912 lectures on The Judicial Process when he said that the judge is a sort of legislator, using sociology, history and analogy to....knit together disparate objects in a vague field, into some sort of structure that makes sense.