Law School and the Design of Government
“I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” — Thomas Jefferson
The power of a legal education comes from an understanding of how and why our government and our society came to be the way they are. For many years lawyers have designed American government and its institutions. Government so designed has defined much of American society. Laws, institutions, and programs crafted to solve perceived problems in our society have produced great benefits, but also enormous and often unintended consequences, from the costs of our legal system to the effects on economic behavior caused by our tax laws.
At least three questions need to be posed about any piece of legislation, whether in place or proposed: Is the problem being addressed well understood? Will the law solve the problem? What might be the law’s unintended consequences? This is the design perspective, independent of such issues as deciding upon the benefits and the beneficiaries of the legislation. The design perspective will not guarantee a better law, and better laws will not always triumph in the political marketplace. The conscious pursuit of better design in many disciplines is one of the hallmarks of our age, however, and should be applied to government as well.
There is no institution in either the executive or the legislative branches of the federal government that reviews proposed actions from the design perspective. State and local governments fare no better. All players in the political arena have an advocacy role, and inquiry into possible unintended consequences is not encouraged. Since all legislatures do indeed design legislation, we have by default both a design perspective and a design philosophy for government in America — but it is at best fragmented and at worst incoherent.
The design of alternative approaches to specific problems in governance has not been a subject of study in law schools. The schools of public policy and public administration have recently emerged to try to fill this gap, but the graduates of the law schools still fill the ranks of the decision-makers. Law schools already study the effects of past governmental actions and educate our future decision-makers. Law school students are the best candidates for training in analysis and design of laws and programs, since it is lawyers who have designed our government and continue to do so every day, in legislatures and regulatory agencies across America.
We can do a better job by reaching out to many other disciplines, and especially to the systems sciences and information technology developed in the last 40 years. President Derek Bok of Harvard addressed the need for redesign of the legal system in his President’s Report of 1981-1982 (Harvard, 1982) as follows:
“All graduate schools risk becoming captives of their professions, absorbed in preparing skilled professionals and seeking new knowledge for practitioners to employ. This preoccupation is understandable, since the acquisition and transmission of specialized knowledge are the central tasks of a professional school. But they are not its only tasks. A vigorous school should address the larger problems of its calling, serving as a conscience to its profession and a stimulus for change. In fulfilling this function, a faculty must be knowledgeable enough to speak convincingly to practitioners, detached enough to see the blemishes of their profession, skilled enough in research and analysis to explore each defect thoroughly & offer thoughtful suggestions for reform.” (p. 1)
President Bok then lists a number of specific problems:
“…For example, after a dozen years of teaching labor law and antitrust, I would argue that large areas of the law in each of these fields rest so heavily on sheer guesswork that no one can be confident that our rules actually serve the public interest…
“…I do question whether most of the legal marathons and treble damage suits that clutter the field are truly worth the money and time they cost. To test this judgment, I recently approached an old acquaintance — one of the country’s leading antitrust experts — and asked him whether he would dispute my claim that over half of all antitrust decisions have no demonstrable effect in furthering accepted economic goals. Instead of chiding me for speaking rashly, my colleague replied that he would push the figure up to at least 75 percent….
“…For example, numerous studies have found no reduction in accident rates resulting from the mass of regulations on work-place safety. And yet, the law grinds on in an unceasing effort to build a consistent body of rules from what are often unproven or unrealistic premises….” (pp. 4 and 5)
Although President Bok is directing his attention to the legal system narrowly defined, his conclusions are equally valid for the government beyond the courts. Where he sees the lack of resources available to judges to anticipate the impact of their decisions, one can read the lack of resources available to legislatures. He calls for someone to oversee and coordinate the governmental process, but admits that the political environment of the legislature precludes it from that role. His conclusion:
“No one feels responsible for the operation of the entire system or worries whether the different parts fit together in a coordinated whole.” (p. 12)
President Bok readily admits that we know too little about the effects of the laws we already have, about the costs and benefits of legislation. Without knowledge of the effects of laws we cannot begin to examine the approporiate role of law in society. His solution to this dilemma is found within the law schools, but he would include disciplines beyond the law:
“….Yet we ignore the social sciences at our peril, for their techniques grow steadily more refined. Business school professors begin to have more intricate theories of competitive markets that might help legal analysts predict the effect of changes in our antitrust laws. Scholars in schools of public policy and education develop more sophisticated methods of program evaluation that could help implement sunset laws or detect the secondary and tertiary effects of legal rules on human behavior….
“As yet, this work is largely overlooked by our great schools of law. One can argue that such studies are not the proper province of the legal scholar and that it is better to wait for social scientists in other parts of the university to do the necessary research. But experience shows how empty this observation is. Law professors cannot stand idly by and expect others to investigate their problems. Social scientists have not done much of this work in the past nor will they in the future. If the necessary research is to go forward, legal scholars must help organize it and participate in it, albeit with the aid of interested colleagues from other disciplines.” (pp. 16 – 18)
President Bok has called for a redesign of the legal system by lawyers with the aid of the social scientists within the university. Professor Simon, in The Sciences of the Artificial, 2nd. Ed. (M.I.T., 1981), calls for the development of a science of design applicable to all professional schools and to all professions. Professor Simon defines the artificial sciences as those disciplines that teach how to design artifacts that have desired properties — irrespective of whether the artifact is a bridge or a new medical device on the one hand, or a sales plan or social welfare policy on the other. This process of design is the distinguishing characteristic of the professions as opposed to the sciences. The sciences seek to learn to learn what is, and ask why. The professions seek to learn what might be, and ask why not.
In the words of Herbert Simon:
“In view of the key role of design in professional activity, it is ironic that in this century the natural sciences have almost driven the sciences of the artificial from professional school curricula. Engineering schools have become schools of physics and mathematics; medical schools have become schools of biological science; business schools have become schools of finite mathematics. The use of adjectives like ‘applied’ conceals, but does not change, the fact. It simply means that in the professional schools those topics are selected from mathematics and the natural sciences for emphasis which are thought to be most nearly relevant to professional practice. It does not mean that design is taught, as distinguished from analysis.” (p. 130)
Certainly medical schools are more involved in design issues than are law schools. Consider the different roles of medical schools and law schools. Medical schools teach would-be practitioners how to use the tools now available, but are also deeply involved in medical research: the analysis of diseases and the development of new tools for treatment in the future. Law schools teach would-be lawyers how to use the available tools, but are seldom involved in the analysis of public problems and the creation and discussion of alternative future public responses. Most doctors will not spend their professional careers developing new medicines, and most lawyers will not design governmental programs, but while medical students are exposed to the design process as a part of their education, law students are not.
Again, Herbert Simon:
“…The professional schools will reassume their professional responsibilities just to the degree that they can discover a science of design, a body of intellectually tough, analytic, partly formalizable, partly empirical, teachable doctrine about the design process.
“…[S]uch a science of design [is] not only possible but is actually emerging at the present time. It has already begun to penetrate the engineering schools, particularly through programs in computer science and ‘systems engineering,’ and business schools through management science.” (p. 132)
The science of design in government can be approached at three levels of increasing difficulty and sophistication. First, by reviewing in detail the consequences of legislation and considering the possible consequences of the alternatives not chosen. This is the approach taken by Pressman & Wildavski in the book Implementation (Berkeley, 1973), and by articles in such specialized magazines as “The Public Interest.” Of all general-circulation newspapers, only “The Economist” takes a serious and continuing interest in the design of public programs and institutions. Analysis and attempted quantification are the hallmarks of this approach, but the disciplines in use are primarily the social sciences and economics.
Second, the twentieth century systems sciences can be brought to bear generally upon the consequences of legislation in an attempt to inform the legislative process. Charles Schultze, in his monograph “The Farm Subsidy Program — Who Benefits?” (Brookings, 1973), shows that the value of farm subsidy programs is capitalized into the value of the farmland growing the subsidized crops. When the land is sold, the seller pockets the capitalized value of the subsidy and the subsidy the buyer receives must be spent on a higher mortgage payment. The buyer will need money from an additional farm subsidy program in order to continue farming.
From the cybernetician’s viewpoint, the subsidy system is suffering from positive feedback, and must eventually crash. Another view, taken originally from medicine, is that the subsidy program is a form of addiction. A system exhibits addictive behavior if an increased stimulus is required to maintain the same response, whether the “system” in question is a single drug addict or a nation’s farm subsidy program. The lesson, still to be learned by most legislators, is that no government can afford to create programs that are addictive.
Jay Forrester, in Chapter 6 of his book Urban Dynamics (M.I.T. 1969), describes complex systems and lists seven characteristics of such systems: (a) counterintuitive behavior, (b) insensitivity to parameter changes, (c) resistance to policy changes, (d) control influence points, (e) corrective programs counteracted by the system, (f) long-term versus short-term response, and (g) drift to low performance. Virtually all of the major problems now facing American legislatures involve complex systems.
In the words of Ambassador Elliot Richardson:
“…We live in a time of ill-tuned response — of over- and underreaction, of counterintuitive effects. We have been frequently surprised, of late, at the extent to which systems we thought or pretended we understood — the domestic economy, the energy system, relations with the natural environment, for example — are not in faact under rational control. There is a growing awareness that the pattern of bold and confident action that contributed so much to our development may now be inducing unintended harm.” (The Creative Balance (1976), p. xxvii)
The design of governmental interventions must therefore take into account not only the problem itself, but the nature of complex systems. Are the obvious interventions likely to produce only a counterintuitive result? How much intervention is necessary to induce the desired change in a hyperstable system? Where are the system’s influence points? Which intervention is least likely to destabilize the system? How long will the system take to stabilize at new parameters? These are not questions usually asked while drafting laws and programs. Their answers are increasingly quantifiable.
All efforts at deregulation should be examined from this viewpoint. Destabilizing interventions in the airline industry have resulted in a decreasing emphasis on safety, and in the banking industry in increasing numbers of bank failures.
Third, the systems sciences include a number of more rigorous techniques such as linear programming theory, dynamic programming, computer simulation, queuing theory, and control theory. These and other more technical applications of the systems sciences have their place in the design of governmental responses.
For example, despite all the money spent on law enforcement via the Law Enforcement Assistance Administration, the recent decrease in burglaries in America is clearly attributable to the emergence of the “Neighborhood Watch” movement. This is because the LEAA monies were spent largely on ways of increasing the effectiveness of a fixed number of law enforcement officials, while the Neighborhood Watches enlist more people in the effort. The success rate of a would-be burglar in a neighborhood is influenced much more by having several daily patrols by laymen than by increasing the telecommunications sophistication of the single police cruiser that comes by once a day. This is a textbook application of one of the fundamental precepts of cybernetics, Ashby’s Law of Requisite Variety. Ashby’s Law states that only variety can control variety, and to be successful any regulating mechanism must have variety at least equal to that of the regulated system. Given a large number of would-be burglars, increasing the sophistication of the police without increasing their number was doomed to failure. The Neighborhood Watch system succeeded by increasing the number of the regulators while substantially decreasing their sophistication (no force, poor communications, no training).
The study of such laws and techniques should obviously not be a part of the required law school curriculum. The results of their application to social problems and proposed solutions, however, should be included in discussions of the design of government. If coursework in the systems sciences is made available to some students in conjunction with the law curriculum, so much the better.
The systems sciences must be distinguished from computers and information technology. Law school programs involving computers and information technology have generally included technological issues within the existing framework of the law. Issues such as privacy in an era of data banks, computer software as intellectual property, and the effects of electronic copying on intellectual property rights are but new wine in old bottles. The systems sciences, including cybernetics, systems analysis, and general systems theory, must join with the law as partners in the design of legislation, institutions, and governmental programs.
The following quotation from The New Yorker (October 7, 1985, p. 30) on the demise of Manhattan’s Westway captures well the frustration that most Americans feel when confronted with the institutions of government that now exist:
“Deeply embedded somewhere in our thoughts or wishes — no doubt in some corner of the brain that is immune to factual evidence — is the belief that public institutions and programs exist to serve public needs. In this perhaps naive view, the links of the chain of public action begin with the identification of a need of society, by, say, a civic-minded group; next, measures to meet the need are debated and decided upon; and, finally, some institutional arrangement is made, and people set to work. It’s hard to help noticing, though, that in actuality things proceed, as often as not, in quite a different sequence. In this other sequence, the chain begins with the institutional arrangement, and only then is a need sought out — a need that will justify the continuing functioning of the institution. In other words, instead of starting with a problem and looking for an answer one starts with an answer and looks for the problem.”
America’s societal problems are increasingly complex, and require governmental responses of equal complexity. The design of these laws, programs, and institutions requires all the skills that we can muster. In the past forty years the systems sciences have begun to develop a science of design. The potential of the systems sciences must be made available to lawyers. The law school is the most appropriate place to begin. It is not too soon.
Robert A. Knisely
November , 1985