Friday, June 08, 2007

Orin Kerr on "Studying Engineering versus Studying Law"

I enrolled in law school after engineering graduate school, and people occasionally ask me if I have advice for engineering graduates planning to study law. ... I tend to think engineering education provides a pretty good background for law school, but that there are some pitfalls to keep in mind. Engineers tend to have two possible advantages over other entering law students. First, engineers usually have a very high tolerance for pain. It takes a lot of time and energy to "get" law school, and former engineers are used to facing that kind of challenge... Second, studying engineering trains students to think logically, step by step, and that kind of logical thinking can sometimes help students see relationships more easily than students with some other backgrounds.
I mentioned a pitfall, however and that pitfall is the major difference between studying engineering and studying law. Engineers study nature, while lawyers study something man-made... Law is man-made, and has all the uncertainty and open texture of any human endeavor. Roughly speaking, legal systems are made when a bunch of people get together and agree to form a set of rules for making rules. They write down those rules, and then enough people respect that agreement that they start to see themselves bound by it. The people in the institutions set up by the agreement start issuing new rules, and they write those down, too. So whereas in engineering, the "laws" come from nature, in the law we have man-made rules devised under man-made rules for making those rules.... . Engineering offers certainty, at least subject to assumptions; if an equation describes how the world works, then it describes how the world actually works. You have certainty in the equation. But man-made processes are very different. Those rules are bound to have some areas of certainty and other areas of uncertainty, and you need to get used to it. You need to know how to identify when something is (or is not) uncertain and why, and to know the typical arguments for how that uncertainty could be resolved if someone (such as a judge) must resolve it.

- Orin Kerr, "Studying Engineering and Studying Law" (7 June 2007),

Let all who would presume to study law, beware...

This reminds me of one simple illustration I used to use to show first-year students the difference between the "interpretative" and the "creative" views of judging:

"In 1930, Clyde W Tombaugh discovered the planet Pluto. Also, in 1930, William Faulkner's novel The Sound and the Fury was published. What's the difference? If Tombaugh hadn't discovered Pluto, it would still be there, in exactly the same form, waiting to be found by someone else. But if Faulkner had never written The Sound and the Fury, it would never exist, and the chance of someone else happening to write the same story by accident is infinitesimally tiny (even if you had a million monkeys with a million typewriters). That shows how different legal scholars view judge-made law: is it waiting there to be discovered, or do judges have to create it?"

The problem with this neat little dichotomy, which served me so well through so many daunting first-year tutorials, is that on 24 August 2006, the International Astronomical Union (IAU) reclassified Pluto as a "dwarf planet", rather than a "planet" proper. So even if the piece of rock is still in the same place in the solar system, what you categorise it as is still a matter of human judgment.

Moreover, as far as "creative" works is concerned, the fact that someone at Disney created The Lion King - ex nihilo, without ever having heard of Kimba the White Lion (and who would accuse Disney of falsehood?) - shows that the chance of random, uncoordinated but near-exact replicability is much higher than I had assumed a priori.