Moore, Wilbert E.

English

University of Denver

Denver Law Review Volume 44 Issue 5 Special Issue - apers Presented at the Curriculum Committee Meeting, Association of American Law Schools Article 8 April 2021 Social Science and the Future Law School Curriculum Wilbert E. Moore Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Wilbert E. Moore, Social Science and the Future Law School Curriculum, 44 Denv. L.J. 49 (1967). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. SOCIAL SCIENCE AND THE FUTURELAW SCHOOL CURRICULUMBy WILBERT E. MOORE*WHERE can social science be relevant if we are thinking ofv curriculum revision? Some of the obvious places have alreadybeen noted in earlier papers, and the evidence seems to be that movesare afoot in those directions. For example, what constitutes evidenceand proof? What is the social science methodology of coming upwith a verifiable statement of fact or relationship? There has beenargument from time to time as to how much of this training thelawyer ought to have, because it may inhibit him in his adversaryrole. He may not really want precise scientific accuracy if that isagainst his client's interests. One still has to recall that there may bea difference in what the lawyer as a practitioner thinks of as evi-dence and legal proof as distinct from social science proof. It maybe acceptable for him to tolerate both of these systems of truth andkeep them in mind, but as a practitioner, he ought not to confusethem.Another area which I think is of considerable interest to socialscientists and lawyers is that of studies of the legal profession itself.By virtue of various commercial and noncommercial enterprises in thelegal field a good deal of statistical information is available aboutlawyers. Missing, however, are many things of a subtler varietyabout the practice of law -such as, what does the law-man reallydo with his time? What are the proportions of trial work to nego-tiations, to office paper pushing, to public relations, to serving onboards, and to doing a variety of things which are not the practiceof law, but rather are efforts to bring business to the firm? Thislatter activity is a valid function. Much of the voluntary servicein the United States on boards of trustees, on fund-raising cam-paigns, and so forth, does come from this highly-educated portionof the community.A side comment should be made with reference to the legalprofession. Dean Yegge spoke about the lack of calling on thepart of the legal profession. Perhaps it is more that the training inlaw is more directly used by the trainees as a stepping stone to someother career than is common in other professional fields. Moreover,there may be among lawyers an excessive orientation to where the*Sociologist, Russell Sage Foundation; Visiting Lecturer with the rank of Professor ofSociology, Princeton University; A.B., Linfield College; Ph.D., Harvard University.DENVER LAW JOURNALmoney is, rather than to where the need is, which may not be thesame place.It seems that if we want people who have some sort of anorientation to the fraternity, and particularly to a sense of havinga high calling, then some of the things such as the history of law,even going back to its medieval origin in terms of the common lawtradition, may be professionally valuable, even though they may nothave any great current relevance, because they illustrate the identityof law with a continuing tradition in a high calling. Perhaps this isa subtle point, but a very important one.What is the expected output of a legal education? A fairly highproportion of people can pass the bar in some jurisdiction, butsurely that does not justify a three-year curriculum. It is not whatthe framers of educational programs had in mind as the mature out-put of professional training. What should professional training be?Certainly not the use of the human mind as a very inefficient data-storage and retrieval system, particularly since the data waste veryfast and spoil quickly. Rather, what is desired is a set of habits-habits of mind.First it is important to develop the habit of humility, of findingout, of not being certain. The medical fraternity has developed withhigh skill an air of assurance in dealing with clients, however un-certain they may be. The legal fraternity, in dealing with a clientwho desperately wants assurance that the odds are in his favor, willtell him that it seems to be this or that, but that if a certain judgeis assigned, it would be better to negotiate and not go to trial. Thus,the client is left with a great air of uncertainty. Thus, we have totrain clients. Often the problem of professional practice is that theclients will not play their role right. This habit of humility, whichis kind of forced on lawyers in our particular legal system, is onewhich should be expected, and, on the whole, is an admirable trait.The second habit is that of continuous learning. If informationspoils rapidly, then the problem is to keep at it and to keep findingout what is going on and not assume that simply because one hasan LL.B. or a J.D. and has passed the bar, that now he is for alltime qualified to practice law. Professional obsolesence will set in inthe legal practice at least as fast as in other fields over the comingyears, and may be really severe if the individual does not approach hisprofession as a lifetime of learning rather than a lifetime of practiceof things once learned.Thirdly, the lawyer is a problem solver, as any professional whois helping clients is, in some degree. He wants to solve the problemfor his client, whatever that client may be, a public agency, a con-VOL. 44SOCIAL SCIENCEstitutional convention, a corporation, or a hapless person accusedof some misdemeanor or crime.It does not make much difference what the substantive contentof the legal curriculum is if the consequence of that content is thedevelopment of these sets of habits. A problem-solving course inmedieval law would be better than a "hornbook" or "black letter"law course on some current field of legal specialty.Aside from the business of social science methodology, whereelse can social science feed in, if not precisely into the legal curric-ulum, or at least into the legal university community, into the inter-action of specialists as researchers, or into seminars?One major area is the increased importance of the inventionof organizations and new organizational forms. Organizations in theprivate sector are imitative of one another. One looks at another'sorganizational chart and says, "Yes, with but a little tinkering wecan adapt that for our purposes." Increasingly, private organizationsdepend on the advice of organizational specialists, people who arespecially trained in administrative science, theory of formal organiza-tions or similar areas. Public organizations, on the other hand, aremainly the outcome of legislative processes which are dominated bylawyers. This means that whatever public organizational inventivenessis being exhibited is the outcome of people who are not necessarilywell trained either in organizational theory or in the ways in whichone can adapt various organizational forms to do particular func-tions and purposes.Lawyers, as legislators, or occasionally in administrative andsimilar agencies, are experts at rule-making, but not necessarily ex-perts in estimating the probability that the rules will be obeyed orthat they will in fact accomplish their purpose. Here is where ajuncture of skills is appropriate.The social scientist may be able to say, "That's a very interestingrule, but in view of X, Y and Z- the probability that that rule isgoing to get you where you want to go is not very high. Let's tryit another way. Let's try it in a different formulation."It is also true that lawyers are not highly enough trained, ortheir habits of mind well enough equipped, to do sequential problemsolving. They tend to set up organizations and say, "Well, this is theway we're going to go about this," rather than thinking in termsof a sequence of steps in order to arrive at an outcome. They mayget less help from the social scientists than they had good reason toexpect, because the latter are not very good at it either. Therefore,we need to pay attention to what is currently called systems analysis,a concept which has been developed primarily in the engineering1967DENVER LAW JOURNALfield, but which is now being used in a variety of areas of concernboth to regulate human order and to solve social problems.What is different about what the Systems Development Cor-poration, the Rand Corporation, Arthur D. Little, Stanford ResearchInstitute, or a variety of these places are doing from what, say, thewell-trained social scientist is doing? Two notions of innovationhave evolved, both of which are worth comment.The first is the assumption that consequences have consequences;that is, that one is not doing a once-for-all set of problem solving.Rather he should look down the road and then back up and say, "Allright. What would we have to do and what would that mean?" so thathe gets the concept of lead time of first inputs, and the consequencesof that leading on to some others. Sociologists generally do not thinkthat way, and neither do lawyers on the whole. It is a very importantpart of organizational inventiveness and of social problem solvingto have that perception which tells one that what he is dealing withis a sequence of moves and not simply a once-for-all solution.The other notion which has evolved is that in the problem-solving development of a systems analysis, if there appear to be somefactors on which one does not have good evidence, to say nothingof measurement, but which he yet believes are important or mightbe important to the outcome, the analyst assigns arbitrary values tothem rather than not accounting for them. He is willing to settle forbad data, to settle for a plus or minus rather than a real quantity, orto settle for an arbitrary value. This often means that he comes outwith less than highly precise on-target solutions, but they are likelyto be better solutions than if one had not accounted for these thingsat all. Perhaps people not trained in all of the rigors of social sciencemethodology have a slight advantage over those who think that onehas to be rigorous in problem-solving or it is not worth doing at all,which, in the real world, may mean that he does not do it at all.Systems analysis is a great bundle, and not a very homogeneousone, of what goes on. Operations research, linear programing, gametheory, and cost-benefit analysis are also essentially in this mold ofproblem solving in a sequential series.Another area not unrelated to what has just been discussed issocial science's relevance to legal training and legal practice, andthe use of law as an instrumentality of change. Twenty years agothis statement might have had some shock effect. It has none atall at the moment with most of the legal fraternity, certainly notwith professors of law. The notion that law is purely a conservativeforce has been pretty generally abandoned. If it has not, the pro-fession had better re-examine those antiquated notions and get someof them out of the practice. The articulation of social goals, includingVOL. 44SOCIAL SCIENCEnew ones, seems a proper joint venture for the person who thinksin value terms and the person who thinks in instrumental terms,together with those people who may have some expertise at identify-ing goals on the basis of popular concern - people who know howto determine what the democratic goals of a society might be.More and more our society is going in for planning, for a delib-erate shaping of the future, and for stating future goals as to what theyear 2000 will be like. How can it get there? This question applies notonly to the articulation of these goals and the articulation of the socialinstrumentalities for achieving them, but also to thinking sequen-tially, and therefore not simply in terms of precedent and of therestraints on the system.A helpful conceptual distinction is between teleology andteleonomy. Teleology is the description of a future goal and thebehavior oriented to achieve that goal. Teleonomy consists of pre-dicting that part of the future which probably cannot be controlledand making prior ameliorative or adaptive adjustment to that stateof affairs.In the dynamics of social inventiveness the effort is constantlybeing made to increase the teleological capacity and to reduce theeffect of teleonomy of future states. Society has an extremely smallpower over the effect of both death rates and birth rates on the laborforce, short of inhumane measures. The labor force of the year2000 is pretty much at hand and its age structure is going to behighly predictable with very little margin of error, short of catas-trophe. That can then be taken as a given factor with regard to awhole variety of other kinds of plans and implementation, such asurban congestion, demand for schools, labor input, and variouskinds of economic production. This is not then a teleological state ofaffairs. There are going to be too many people, but no one is goingto prevent that. Thus, the attempt is made to take such action as canbe taken, or to take that fact as a parameter, or essentially as a datum.Finally, let a challenge for joint social science and legal problemsolving be put forth in reference to the national scandal of auto-mobile insurance. If you have Blue Cross-Blue Shield Insurance,approximately ninety to ninety-three percent of the premiums paidfor that insurance are returned to the insured population. In thecase of automobile insurance, the percentage is perhaps thirty tothirty-two. The rest of the money goes to the profits of insurancecompanies, to claims adjustors, notably to tort lawyers, trial lawyers,to court costs and to the support, in part, of a fair proportion of trialcourt judges. One looks at that combination of interests, which havepositive interests in the preservation of this wicked system, and hefinds that it is a very difficult problem to solve. If one were thinking1967DENVER LAW JOURNALin terms of systems analysis he would say, "Well, we may not be ableto get ultimate causes, but where would we start?"The basic problem obviously is the automobile accident. Thus,we need to know what can be done about the hardware technologicalproblems, or about the psychological, or the sociological problemsin reference to the accident rate. Perhaps one needs to ask if thereare alternative ways, as has been proposed, of settling claims.Usually the analogy with workmen's compensation is the one thatimmediately gets into the conversation. Surely there must be othercomparable alternatives to the handling of this problem which isclogging our courts and which, incidentally, supports probablythe poorest segment, in terms of training and talent, of the legalfraternity.The settlements are likely to be not only unjust in the gross,but it also appears that they are regressive. Those people who canbest retain competent counsel and hold out for a just settlementare the ones who are getting just settlements. Others, who have nocredit at the hospital or with their physicians and who do not havea variety of other amenities, including the capacity to identify anattorney, to say nothing of affording one, even if only on a con-tingent fee basis, are likely to be the ones who will take a quicksettlement offered by the insurance companies. Again, a seriousmatter of social policy is involved.Here, then, is an area where, recognizing the problem of thelegal fraternity turning on part of its own, legal skills are absolutelyrequisite. One can see that a variety of other skills are requisite, notall of which are in the social science field. Some of these skills arein the technological area, such as, for example, electronic controlof traffic and remote controls which prevent rear-end collisions, notbecause the driver has been educated not to tail-gate, but because thecar will not tail-gate. It seems that the systems development approachis the only way in which one is going to get this type of problemameliorated, to say nothing of resolved.VOL. 44

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