Posted by: captainfalcon | September 15, 2010

Hiding the Ball and Second Order Contract Theory: A Kluge

I.

A common pedagogical technique among law professors, so they say, is “hiding the ball.” That is, the professor declines to specify either (first order) current doctrine and (a fortiori) the court-accepted rationale for it, or (second order) the methodology for ascertaining current doctrine and rationale. Instead, proper methodology, doctrine and rationales are all approached obliquely, through fact-specific interrogations the points of which are intelligible only on the presupposition that the particular case, or line of cases, under discussion “stands for” some (more or less bounded) range of doctrines, rationales or methodologies.

Various explanations for the prevalence of hiding the ball pedagogy are on offer. The cynical include: (a) it is a cruel game, (b) it is an historical accident calcified by institutional inertia and, courtesy of Pierre Schlag, (c) it is a performance designed to conceal the fact that “there is no ball” – that “the law” is a muddle of just about every doctrine and methodology that can be dreamt. More sympathetically, hiding the ball arguably teaches valuable lawyerly skills – inter alia: (i) how to synthesize cases, (ii) how to be clear and convincing under pressure, and (in a broad sense) (iii) the distinction between the kinds of argument that are acceptable to the judiciary and the kinds they regard as off the wall; given that the judiciary’s epistemic norms can be arbitrary and obscure, this is arguably best learned by touch.

Obviously many of these explanations are compatible, and the compatibility cuts across type. Thus, cynical-(c) is pro tanto compatible with sympathetic-(iii) (although whether they are decisively compatible depends on a comparison of how unbounded cynical-(c) entails the law is versus how doctrinally restrictive the norms to which sympathetic-(iii) adverts actually are). These explanations are also susceptible to restrictions of subjective and temporal scope. Hiding the ball might be valuable for some people but not others, or it might be valuable at some, but not all, moments of a lawyerling’s development.

For me, hiding the ball is only valuable (qua augmenting my substantive knowledge and expertise) once I have a working, revisable characterization of the court, i.e. the parameters within which I can work. (It is also instrumentally valuable before I attain a working characterization, but only insofar as it helps me to distinguish the good working characterizations from the bad.) I know this because I was hopeless (even for an undergraduate) at philosophy until I read The Myth of Morality, which supplied an intuitive map both of meta-ethics and the general philosophical terrain that I could supplement and revise as necessary.

It goes without saying that a working, revisable characterization of a discipline isn’t for everyone. Some – less adept than I – aren’t capable of accepting a characterization provisionally. Others – more adept than I – rather not accept any pre-fabbed characterization even provisionally – to master their discipline they would construct one on their own.

II.

Which is all to say that I have found my working characterization of contract law, and I have hopes that it is a characterization that can be expanded to cover the law in general. It comes in the first twelve pages of Jody Kraus’s The Methodological Commitments of Contemporary Contract Theory.  The gist is this. There are two different approaches to ascertaining contract law’s constitutive rules, what Kraus unhelpfully calls the deontic and the consequentialist approach. According to the consequentialist approach states, contract law is constituted by the rules that best explain the outcomes of prior cases (what kind of thing won and what kind of thing lost). On the deontic approach, contract law is constituted by the rules that are best justified by the reasoning of prior cases. The consequentialist approach treats a case’s reasoning as a defeasible hypothesis about why the outcome – a datum of law – holds; the deontic approach treats a case’s reasoning as a datum, same as the outcome, that any broader theory of contract law has to accommodate.

Kraus observes that the deontic approach is motivated by considerations of public reason, specifically the idea that, to be legitimate, any public decision – including the outcome of adjudication – must be supported by publicly available reasons. The consequentialist approach, insofar as it entails that proper public decisions are often supported by non-publicized – in theory, esoteric – reasons (i.e. that the best explanation of prior outcomes entails this particular result), offends against public reason.

On the other hand, the consequentialist approach is recommended by the fact that it is the most efficient route to the law’s “working itself pure” (for, ex hypothesi, it replaces unintelligible doctrine with doctrine that is coherent).

(Presumably there are plenty of other justifications for, and objections to, each doctrine. Two cheeky ones: (A) the consequentialist approach is a self-serving academic contrivance that tacitly – perhaps, in some sense, unconstitutionally – shifts judicial authority to that seat of unifiers: the academy. In a different vein, (B) the consequentialist approach better respects the norms of public reason than the deontic approach, at least in the breach, because it is the simplifying theories of law, not the Byzantine doctrines, that anyone who knows anything about the law tends to work with.)

From the practitioner’s perspective – here is how Kraus’s theory serves as a working, revisable characterization of contract law – the deontic approach and the consequentialist approach call for two different types of case synthesis. The consequentialist approach advises looking only for a case’s fact-specific holding, and devising, from whole cloth, an explanation for a series of such holdings that is plausible on both empirical and moral grounds. The action is in framing the facts and devising competing plausible explanations. The deontic approach, on the other hand, advises looking for the most general rule that the case can be read to support, and (not devising but) listing, on the basis of the case law, the explanations for these general rules. The action is in finding tensions and inconsistencies in existing, normatively-laden, doctrines of law.

The deontic approach and the consequentialist approach come close to framing the range of methodological options a practitioner has, not just in contract law (I think), but in law simpliciter. To oversimplify (even further): the two ends of the strategic continuum are cleave to legal texts as much as possible and depart from them as much as possible. Suitably fleshed out, these are useful guidelines to bear in mind while seeking the ball.

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