nihalsahu.net

Against Lawyer Brain

I.

When I got into law school, I sought an intelligible, formal inner world, where enumerable arguments faced off against enumerable counterarguments, and outcomes were binary. I focused on what I thought was ‘pure law’ and had a slight sense of disdain for the ‘interdisciplinary,’ wanting to avoid the messy, concrete world where the substantive merits of decisions mattered.  Ceteris paribus, I said, and waved away reality. Reality was speckled with governments with pesky little policies based on economic cost-benefit analyses and endless, annoying externalities. Instead, I clutched the Hohfeldian matrix like so many pearls. I had some knowledge of procedure, a natural sense for statutory interpretation, and access to the law reports; the world was my oyster. This kind of rigid, formal analysis made me more inclined to ‘certainty’ in legal opinion, but it also meant that I spent little time thinking about the real world.  In fact, I tried to spend as little time thinking about the real world as possible. 

Over the course of a month last year, I went through two conversions which negated most of what I had done up till this point. 

First, I was converted to legal realism. I always thought that the law is a human exercise, governed by incentives, dependent on the people who administered it. But I was finally taking this view to its logical conclusion and treating the law as a human exercise when I wrote and thought about it. It wasn’t enough for me to discuss statutes and caselaw; it became necessary to think about systems and how they affected the people who make up the legal structure.

Second, and relatedly, I developed a more concrete concern for the real world and the people in it. This was partly due to reading about the effective altruism movement. It was also because I had acquired a remarkable group of internet friends who were deeply engaged with the real world and how to think about it, and how to change it. 

I ended up deciding that I wanted to work in public policy. I was lucky to pull this off. Now, I assist some wonderful researchers at a think tank, and I work on issues of public health, pharmaceutical regulation, and patient rights. 

My old work revolved around competence in theorising about texts and arguments. My new work, public policy, has a simpler mandate: figure out what is true about the world, identify ways in which the status quo is suboptimal, come up with a vision of the world that is as close to optimal as I can imagine, modify that vision while taking into account the art of the possible, and find and push the lever that can actualize that vision. This is easy. It just happens to be impossible. 

The universe, clearly, has an interesting sense of humour. I started out wanting to avoid intractability and messiness. I am now performing what is plausibly the messiest role in the world: trying to help make decisions under uncertainty, to be implemented at scale, in an infinitely complex system.

At the moment, I am remarkably bad at this. This is not so disheartening, given that I’m twenty-two years old and I’ve only really been doing this for a little while.

I started with a major handicap: I went to law school.

Lawyers reason about ordinary things in a formal way.

Legal analysis relies on authorities. It is our principal tool for the simplification of complex situations. For example, you might say ’this law is unconstitutional, because the Supreme Court has held an identical law unconstitutional before under similar circumstances.’ You can authoritatively say, ‘on this issue, the argument is over, at least for the moment.’ Whether you are right or wrong depends upon whether your view is consistent with past authorities. To the uninitiated, this is abstract and arcane. But it is in fact a shortcut made possible by formalism.

Legal analysis is limited. The legal lens simplifies things, constraining the set of possibilities as well as the mode of analysis. You are helpfully limited to reasoning about documents and texts. There is only an enumerable set of bodies that can hold a law unconstitutional, an enumerable set of reasons they may provide, and an enumerable set of documents you can read to discover those reasons.

Legal analysis prioritizes completeness. If you are a lawyer, you care about completeness because the outcomes are binary. The case can be decided in favour of X view or Y view. You can read almost all the cases, make sure none of the cases you rely on have been overruled, and make sure they apply squarely to the facts. Completeness is possible, and approximation is impossible — one document can render a thousand others inoperative.  Because completeness is possible, a failure to execute this narrow reasoning properly is humiliating; an unforced error.

Legal analysis is somewhat insulated from risk. In most circumstances, lawyers are unconstrained by outcomes. They are accountable only for failure to execute the reasoning properly and produce a cogent legal opinion, not for what happens to society as a result of that opinion. This is not a regrettable bug, but a valued feature of legal analysis, codified in maxims like fiat justitia, ruat caelum, i.e., do justice and let the skies fall.

Decision-making under uncertainty

Think about governance now. Adopt a more executive stance. You are running a business or governing a country. Perhaps you are advising someone who is, or trying to intelligently criticise and comment on someone who is. You will immediately discover that a lot of things are different about your work.

First, completeness is impossible; approximation is your lot. With each project, a researcher is confronted with fundamental problems about the lens through which they see the world. The number of ways you can increase economic growth or design a securities regulation are not enumerable; because the conceptions of the good are infinite. You can’t tick boxes off a checklist and decide ’this is the best way to solve air pollution in Delhi’ or ’this is the ideal way to hold doctors accountable’ because there is no predefined consensus about who should bear the costs of these decisions, who should receive the benefits, and what a good outcome looks like. The best you can get is an indication that, on balance, the arrows point in what you think is the right direction. 

Second, like in most fields in life, you are judged on whether your decisions produced good outcomes. You are asked to recommend a course of action for entire societies; falling skies are prohibited by definition. A sound methodology and a thorough literature review does not insulate you from criticism on the grounds that your recommendation was stupid. You are using live ammunition and your eight-step checklist does not really prevent you from shooting yourself in the foot. 

Some differences are about agency

Remember, the legal process was everything to me; it was my lens, my mental model, my framework. I loved disputes and legal analysis more than life itself. I spent most of my long evening walks in eleventh grade listening to good lawyers answer elaborate hypotheticals at the US Supreme Court. And now I was out here trying to figure out if a draft Bill that governed the pharmaceutical industry was any good.

In theory, I had much more agency as a result of being free from this formal process. I was confronted with fundamental problems of the good. My work is infinitely flexible. I’m pretty much free (within reason) to choose which data to look at and what to read, pick the form and the function of my answers, and target them to further my vision of ’the good.’

I balked. I did all sorts of things that were attempts to give up agency and responsibility. I deferred (wisely) to smart people I was working with who knew far more than me. I wasn’t churlish about it; for the first time in my life, I was grateful that I wasn’t making decisions. But it wasn’t simply the rational thing to do, it was also an emotional response. I reallywanted to surrender my newfound agency. I wanted to be told what to do, what to think, what to feel. I wanted to be accountable for the process and not the results; accountable for doing the due diligence, not for getting it right. I was optimising for maximal coverage of the literature, minimising the possibility for embarrassment.

If I wanted to surrender agency, why did I pick a high-powered, type-A profession like law? There’s no contradiction here. Formal legal reasoning is just another thing to which you surrender your agency. It’s safe, comforting, limiting. If operating within a system, with its traditions, its cultural norms, and its built-in heuristics is your permanent objective, then you don’t really exercise much agency in the first place; you don’t really go through the exercise of deciding how you feel about something. You just substitute yourself with the rigours of the process.

Slowly, reality began creeping in. The most obvious way this manifested itself was in how difficult I found it to arrive at a view. What did I think about the Bill? Someone asked me, at some point, ’let me know what you think about it’, which I interpreted as ‘comb through it for obvious, indefensible mistakes,’ but which slowly became apparent meant ‘what do you think about it?’

Who was I to know anything? I was a competent reader of the legal ticker tape, a fastidious peon of implementation detail. Who was I to say what the law should say, and what it shouldn’t? I just knew what a court would say about a law, and perhaps, if the court could say nothing, what excuse did I have to speak? The sheer body of work available and the absence of a defined process to parse it inevitably meant that my initial view is likely wrong (or atleast suboptimal). The limbic fear of embarrassment and humiliation that you acquire in law school (citing an overruled case, failing to notice a material fact) began to creep into my whole mechanism of decision about the merits of policies.

Forming opinions: a guide

People doing difficult things must move as if they have the confidence of an epistemic blessing. For one, they have to be convinced that they want to do difficult things. There are many easy things they could do, and if they are not convinced of the manifest importance of their chosen course of action, they will dwindle, dawdle, lose hope. Once they come to a difficult problem, they need to formulate a view. They need to be able to make statements like ’this department of the government should be abolished’ or ’this is a billion-dollar market’ or ’this law is bad, it should be repealed’ for reasons more concrete than ‘a judge thinks so.’ They need to be able to have a sense that something is not right in the world, and a drive to fix it. 

In order to make decisions, it is important, vital even, to be comfortable having opinions (often wrong ones) on things that matter. You can start with a working hypothesis, a belief that is your best approximation of the world based on what you know. This is often referred to as ‘strong beliefs, loosely held,’ a notion coined by Paul Saffo:

“Allow your intuition to guide you to a conclusion, no matter how imperfect — this is the ‘strong opinion’ part. Then –and this is the ‘weakly held’ part– prove yourself wrong. Engage in creative doubt. Look for information that doesn’t fit, or indicators that pointing in an entirely different direction. Eventually your intuition will kick in and a new hypothesis will emerge out of the rubble, ready to be ruthlessly torn apart once again. You will be surprised by how quickly the sequence of faulty forecasts will deliver you to a useful result.”

Opinions themselves cannot cause harm, and so it is not a failure to hold the ‘wrong’ opinion if it is the best account you can provide, at that moment, of the world as you know it. You must disavow ideological purity, commitments to processes, and focus on what works. And this is difficult to do, as Judah explains in ‘Form is Fake’:

An unhealthy obsession with good form is what happens when reality’s surprising amount of detail meets lazy choices. At the heart of which lies the desire for an optimal solution that is both simple and universally prescriptive. One of the features of cocktail party ideas is this disposition towards simple, often meta-level, solutions. “Why don’t they just do the right thing?” 

Well, maybe it’s because the “right thing” is almost meaningless.

. . .

[Think about] the mistaken assumption that an agent operating without X is obviously incompetent. Instead of seeing the absence of X as a sign that X might be unnecessary, it’s seen as negligence on the part of the involved parties. 

This is ultimately limiting on a societal-level, and makes it much harder for anyone to achieve legitimacy outside of established practices. It’s why interviewing practices are stuck in a bad place with almost nobody willing to do it better, why dress codes still matter so much, and the reason academic papers has a monopoly on intellectual authority. Attempting to ignore the accepted set of best practices is deemed too unprofessional for any sane person to risk.

In a way, this essay is a way to give myself permission to reject perceived expertise. I’m picking sides. I’m with the people who care about making the right calls, instead of just ticking all the right boxes. I want to own my decisions and my views, as opposed to sitting with my indecision. It’s not exactly necessary to do this in public, but I think it’s a good start. On this Substack, and in other places, I will write more essays that contain views; and I will write more op-eds, if I feel sure of something. I haven’t quite overcome my limbic fear of being seen as incompetent, someone who gets things wrong. But atleast I will be someone who cares, above all pretense, about getting things right in a useful way.