Legal culture, legal strategy, and the law in lawyers' heads

Northwestern University Law Review

Volumn 90, Issue 4, 1996, Pages 1498-1556

  LoPucki, Lynn M ^a  

^a MIT Sloan School of Management

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EID: 0041948152     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (334)

1. See, e.g., Austin Sarat & William L.F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 YALE L.J. 1663, 1667 (1989) ("Legal problems are understood to be technical, and clients on their own are assumed not to have sufficient knowledge to cope adequately with them. When lawyers articulate the legitimating assumptions of law, they portray success in the legal system as dependent upon expert knowledge and the shrewd application of legal rules.") (emphasis added) (citations omitted). The divorce lawyers Sarat and Felstiner studied de-emphasized the importance of rules in legal practice, but Sarat and Felstiner themselves attribute that to the high level of judicial discretion invited by the rules governing divorce. Id. at 1676 n.51.
2. I use the term "Formalism" not in some technical sense, but merely as the best available shorthand for the view described in the previous sentence. Other words expressing essentially the same idea are "legal positivism" and "determinate" when "determinate" is applied to law. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 179-81 (1986) (defining "formalism");
3. Frederick Schauer, Formalism, 97 YALE L.J. 509 (1988) (arguing in favor of formalism).
4. Weinrib uses "Formalism" in a sense I find indistinguishable from "natural law." The concept of Formalism I employ here is the one he denounces as law "wafting down from the publicly recognized organs of power." Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949, 956 (1988).
5. "Realism" has been used in such a variety of ways that it seems no longer to have a technical sense. I use it for its association with the idea that law logically mandates no particular result in real cases, but instead leaves judges "legally free [to decide cases as they please]." David Lyons, Legal Formalism and Instrumentalism - A Pathological Study, 66 CORNELL L. REV. 949, 953 (1981).
6. The distinction I intend is captured in Professor Robert Summers's contrast of formalistic and non-formalistic views of law. See Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought - A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 CORNELL L. REV. 861, 867 n.4 (1981).
7. See, e.g., John Hasnas, The Myth of the Rule of Law, 1995 WIS. L. REV. 199, 204 ("Because the legal world is comprised of contradictory rules, there will be sound legal arguments available not only for the hypothesis one is investigating, but for other, competing hypotheses as well.")
8. See, e.g., Robert W. Gordon, Lawyers, Scholars, and the "Middle Ground" 91 MICH. L. REV. 2075, 2078 (1993) ("[Most law teachers] would argue that, although doctrine supplies the language of legal - or rather, judicial - decisionmaking, it is not the major factor in deciding cases and that purely doctrinal scholarship is therefore of quite limited utility.").
9. In keeping with the Realist view, Weyrauch describes the central theme of elite legal education in the United States as one of skepticism: nothing is true, and even if it were, one could not prove it. See WALTER O. WEYRAUCH, HIERARCHIE DER AUSBILDUNGSSTATTEN, RECHTSSTUDIUM UND RECHT IN DEN VEREINIGTEN STAATEN 29 n.47 (Juristische Studiengesellschaft Karlsruhe Nr. 129, 1976) (referring to the attitude of elite American universities as one of fundamental skepticism as attributed to Gorgias: "nothing exists; if anything exists, it could not be known; if it could be known, that knowledge could not be communicated").
10. Weinrib, supra note 2, at 951.
11. Other scholars have attempted to reconcile the competing claims of Formalism and Realism. See, e.g., Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805, 815-16 (1987) ("In order to break with the formalist ideology, which assumes independence of the law and of legal professionals, without simultaneously falling into the contrary instrumentalist conception, it is necessary to realize that these two antagonistic perspectives, one from within, the other from outside the law, together simply ignore the existence of an entire social universe (what I will term the 'juridical field') . . . . [I]t is within this universe that juridical authority is produced and exercised.").
12. Other scholars have noted the existence of unwritten rules of law that tend to prevail over written rules. See JEROLD S. AUERBACH, JUSTICE WITHOUT LAW? 19-30 (1983) (demonstrating that various religious communities have succeeded in establishing community law that prevails over written law promulgated by the state);
13. Todd R. Benson, Taking Security in China: Approaching U.S. Practices, 21 YALE INT'L L.J. 183 (1996) (discussing sharp differences between written law and practices as described by Chinese lawyers interviewed);
14. Keith S. Rosenn, The Jeito: Brazil's Institutional Bypass of the Formal Legal System and its Developmental Implications, 19 AM. J. COMP. L. 514 (1971);
15. Walter O. Weyrauch & Maureen A. Bell, Autonomous Lawmaking: The Case of the "Gypsies," 103 YALE L.J. 323, 330-31, 364-66 (1993).
16. For a more lucid statement of Auerbach's point, see Corinne Cooper, Justice Without Law? A Search Through History for Contemporary Solutions, 48 ALB. L. REV. 741, 745-46 (1984).
17. The psychological nature of law is, by contrast, a principal tenet of Scandinavian Legal Realism. See infra note 210.
18. See, e.g., Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. LEGAL EDUC. 518 (1986);
19. Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827 (1988).
20. Legal scholars have used the insights of cognitive psychology to illuminate the subjects law addresses as distinguished from the law itself. See Melvin A. Eisenberg, The Limits of Cognition and the Limits of Contract, 47 STAN. L. REV. 211 (1995) (arguing against basing economic analyses on the assumption of rational decisionmaking and describing alternative decisionmaking algorithms as "strategies").
21. But see Robert E. Scott, Error and Rationality in Individual Decisionmaking: An Essay on the Relationship Between Cognitive Illusions and the Management of Choices, 59 S. CAL. L. REV. 329 (1986) (arguing against adjustments to consumer law to attempt to compensate for consumers' cognitive illusions).
22. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the "Hunch" in Judicial Decision, 14 CORNELL L.Q. 274 (1929).
23. The idea of the hunch is still being taken seriously today. See, e.g., Charles M. Yablon, Justifying the Judge's Hunch: An Essay on Discretion, 41 HASTINGS L.J. 231, 279 (1990) ("[T]he Realists were right in emphasizing the importance of the judicial hunch.").
24. Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992).
25. See T. Alexander Alienikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987) (arguing that balancing is merely a metaphor that cloaks an essentially political process of decisionmaking). But see Kennedy, supra note 11 (examining the factors in the judge's choice and discussing what are essentially mental models of written law).
26. Legal scholars are most likely to be capable of seeing the difference between the written law and the law in shared mental models in the fields of the scholars' own expertise. When exploring a field in which one is not an expert, it is easy to fall victim to the kinds of shared mental models that law professors create for their students. See infra note 209. To the outsider, those models appear to be written law. In fact, they are often general models that express the academic community's shared mental model, which may be very different from written law in the area.
27. For an interesting expression of essentially this idea, see Walter O. Weyrauch, Book Review, 42 AM. J. COMP. L. 807, 808 (1994) ("Since the vast majority of cases in all fields of law are settled before they reach the appellate level or even the lower courts, these settlements are likely to be based on experiential norms of what is tenable under the circumstances, although only vaguely related to traditional written law.").
28. Weyrauch & Bell, supra note 9, at 382-85. Weyrauch and Bell have presented a theory of legal strategy, which is discussed infra notes 116-17 and accompanying text.
29. These lawyers and judges may construct a shared mental model during a long trial.
30. Mental models can be of substantive law, legal procedure, or both. While repetition in the applicable substantive law may not be the norm, repetition in the procedures applied in legal practice clearly is.
31. See Lynn M. LoPucki, Reorganization Realities, Methodological Realities, and the Paradigm Dominance Game, 72 WASH. U. L.Q. 1307, 1307-10 (1994) (describing the paradigm dominance game).
32. Elizabeth Warren & Jay L. Westbrook, Searching for Reorganization Realities, 72 WASH. U. L.Q. 1257, 1259-62 (1994);
33. see Robert C. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L.J. 1238, 1268 (1981) (arguing that "a theory should be treated as vacuous unless it is formulated so as to be falsifiable or infirmable by evidence yet to be collected").
34. Cognitive psychologists seeking to develop a working model of the mind recognized the danger of empty theorizing even earlier. They require that theories about the operation of the mind be expressed as "effective procedures," by which they mean procedures that will run on a computer. Such expression assures that the procedures could run in a human mind. See, e.g., P.N. JOHNSON-LAIRD, MENTAL MODELS 4-8 (1983).
35. Among social scientists, a concept is said to be operationalized when it is expressed in objectively verifiable terms. See, e.g., David Lewin, Grievance Procedures in Nonunion Workplaces: An Empirical Analysis of Usage, Dynamics, and Outcomes, 66 CHI.-KENT L. REV. 823, 831 (1990) (operationalizing "grievance procedure effectiveness" as numerical responses to the question: "Overall, on a scale of 1 to 10, with 10 being 'excellent,' 5 being 'average,' and 1 being 'poor,' how would you rate the grievance procedure?");
36. Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. REV. 1231, 1235-36 (1992) (describing Turing's operationalization of "thinking" as the ability to persuade a human subject in conversation that the machine is human);
37. Joseph E. Scott, Book Review, 78 J. CRIM. L. & CRIMINOLOGY 1145, 1151-52 (1987) (describing proposal by a member of the Attorney General's Commission on Pornography to operationalize "pornography" as material that aroused more than five percent of men as measured by a penile plethymoraphs machine).
38. Compare STEWART MACAULAY, LAWRENCE FRIEDMAN & JOHN STOOKEY, LAW & SOCIETY, READINGS ON THE SOCIAL STUDY OF LAW 51 (1995) ("[D]eciding how to measure a variable is called 'operationalizing' the variable.")
39. with MARY G. KWEIT & ROBERT W. KWEIT, CONCEPTS AND METHODS FOR POLITICAL ANALYSIS 21, 165-74 (1981) (explaining techniques for operationalizing concepts in social research).
40. See, e.g., Jules S. Cohen, Shareholder Advances: Capital or Loans?, 52 AM. BANKR. L.J. 259 (1978).
41. Lynn M. LoPucki, The Debtor in Full Control - Systems Failure Under Chapter 11 of the Bankruptcy Code? (pts. 1-2), 57 AM. BANKR. L.J. 99, 247 (1983) (reporting results of the study).
42. See Austin Sarat, Legal Effectiveness and Social Studies of Law: On the Unfortunate Persistence of a Research Tradition, 9 LEGAL STUD. F. 23, 30 (1985) (describing a genre of scholarship knows as "legal effectiveness" or "gap" studies that examine empirically the gap between law in action and law on the books).
43. Use of the term "gap" to apply to the numerous examples of practices that deviated from the law on the books apparently originated with Professor Richard Abel. See Richard L. Abel, Law Books and Books About Law, 26 STAN. L. REV. 175, 184-89 (1974) (discussing explanations for the existence of the gap). In commenting on a draft of this Article, Professor Lawrence Ponoroff wrote: I practiced for many years with a large Denver-based firm, but in a branch office in Colorado Springs. I had a case in El Paso district court in which I had served requests for admissions. The other side failed to either respond or request, formally or informally, an extension of time to file prior to the expiration of the thirty-day period to respond. Therefore, in my pretrial statement, I indicated that, per the rules, each of these matters was deemed admitted at trial. The other lawyer called me, casually apologized for not contacting me earlier, and said he needed more time. I refused on the basis that I could no longer accommodate him when to do so would be materially prejudicial to the advantage my clients had gained as a consequence of his earlier, unexcused dilatoriness. He expressed outrage at my refusal on the basis, among other things, that I was trying to practice "Denver-law" in Colorado Springs. To make a long story short, the judge saw it the same way, even though the rules were crystal clear on the point. Letter from Lawrence Ponoroff, Professor of Law, Tulane Law School, to the author 2 (Oct. 20, 1995) (on file with the author).
44. Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910).
45. Teresa A. Sullivan et al., The Persistence of Local Legal Culture: Twenty Years of Evidence From the Federal Bankruptcy Courts, 17 HARV. J.L. & PUB. POL'Y 801, 804 (1994).
46. The earlier definitions offered by Church were simpler but less explanatory. Thomas W. Church, Jr., Civil Case Delay in State Trial Courts, 4 JUST. SYS. J. 166, 181 (1978) (referring to "a stable set of expectations, practices and informal rules of behavior which, for want of a better term, we have called 'local legal culture'");
47. Thomas W. Church, Jr., Examining Local Legal Culture, 1985 L. & SOC. INQUIRY 449, 451 (1985) (referring to "the practitioner norms governing case handling and participant behavior in a criminal court").
48. Prior to the publication of The Persistence of Local Legal Culture, many commentators regarded the theory of local legal culture as a mere tautology or category for residual phenomena not explained by other theories.
49. Mary L. Luskin & Robert C. Luskin, Why So Fast, Why So Slow?: Explaining Case Processing Time, 77 J. CRIM. L. & CRIMINOLOGY 190, 212 (1986) ("[F]or local legal culture to be more than a residual or catch-all variable, it must consist of clearly specified norms and expectations. To date, the norms and expectations in local legal culture remain largely unspecified.") (citation omitted);
50. George L. Priest, Private Litigants and the Court Congestion Problem, 69 B.U. L. REV. 527, 530 (1989) ("At this level, the legal culture hypothesis is irrefutable but, regrettably, tautologous.").
51. Sullivan et al., supra note 27, at 839-57.
52. Id. at 844-45.
53. Id. at 817-27.
54. Jean Braucher, Lawyers and Consumer Bankruptcy: One Code, Many Cultures, 67 AM. BANKR. L.J. 501, 532 (1993).
55. Id. at 532.
56. In re Goeb, 675 F.2d 1386, 1390 (9th Cir. 1982) ("[Bankruptcy courts should determine a debtor's good faith on a case-by-case basis, taking into account the particular features of each Chapter 13 plan."); In re Rimgale, 669 F.2d 426, 432 (7th Cir. 1982) (requiring consideration on a case-by-case basis with substantiality of repayment one of many factors to be considered).
57. 11 U.S.C. § 1325(b)(1)(B) (1994) (requiring that all of debtor's "disposable income" be devoted to payments under the plan).
58. See In re Greer, 60 B.R. 547 (Bankr. CD. Cal. 1986) (holding that zero-repayment plans are legally permissible); see also supra note 35.
59. Some may object to the expression "rule of thumb" because of its putative origins. See State v. Oliver, 70 N.C. 60, 60 (1874) (asserting the prior existence of a legal doctrine "that a husband had a right to whip his wife, provided he used a switch no larger than his thumb," but providing no citation and referring to the putative doctrine as a "barbarism"). It is, however, the only expression likely to trigger in many readers an association with the broad array of informal norms to which I refer.
60. In the first years after adoption of the Bankruptcy Code, the bankruptcy courts formally established rules of thumb regarding the percentages of repayment that were acceptable. The appellate courts responded by striking those rules down. See supra note 34.
61. Differences in legal outcomes between cities that cannot be accounted for on the basis of written law frequently occur outside the United States as well. See, e.g., Theodore Eisenberg & Shoichi Tagashira, Should We Abolish Chapter 11? The Evidence from Japan, 23 J. LEGAL STUD. 111, 155 (1994) (describing regional variations);
62. THEODORE EISENBERG, CREATING AN EFFECTIVE SWEDISH RECONSTRUCTION LAW 61-62 (1995) (describing sharp regional variations in the use of national reconstruction and bankruptcy laws in Sweden).
63. Lynn M. LoPucki & William C. Whitford, Bargaining Over Equity's Share in the Bankruptcy Reorganization of Large, Publicly Held Companies, 139 U. PA. L. REV. 125, 142 (1990) (showing that creditors routinely consented to equity holders, sharing in the distributions of insolvent companies despite creditors' clear legal entitlement to the contrary, because of various practical leverages generated in reorganization proceedings).
64. Id. at 144-46.
65. Id. at 195 (citations omitted).
66. To illustrate, assume that on a given set of facts, the law creates no entitlement for shareholders and all lawyers understand the law that way. However, all lawyers other than Smith believe litigation to that result would cost several millions of dollars in expense and delay, so the only reasonable solution is a settlement that gives shareholders one million dollars. Smith believes that the difficulty of this kind of litigation is overrated, and once a case has been litigated, the myth of difficulty will disperse. Smith, as attorney for the Unsecured Creditors' Committee, nevertheless may not be able to litigate, because (1) the lawyers for individual members of the Committee will reject his proposal to buck the conventional wisdom, (2) the first challenges to the conventional wisdom are likely to be hotly contested because they seek a result contrary to the shared mental model, so they are likely to be much more expensive than otherwise necessary, and (3) Smith may suffer reputational damage if Smith attempts to raise the issue and is not successful in this case.
67. E.g., Clark D. Cunningham, The Lawyer As Translator, Representation As Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298, 1320-22 (1992) (reporting anecdote in which a judge approves an "attitude ticket" in accord with practice and admittedly in violation of Supreme Court decisions);
68. ROBERT E. RODES, JR. ET AL., SANCTIONS IMPOSABLE FOR VIOLATIONS OF THE FEDERAL RULES OF CIVIL PROCEDURE 85 (1981) (finding an "all or nothing" approach to the imposition of discovery sanctions, rather than the "scheme of increasingly severe sanctions" contemplated by written law);
69. Christopher H. Schroeder, Rights Against Risks, 86 COLUM. L. REV. 495, 556, 557 (1986) ("Much environmental legislation is absolutist in language, but more lenient in administration. . . . [Sophisticated firms] comprehend that the 'real' law, the law in action as opposed to the law on the books, is the accumulation and extension of actual decisions reached by agencies, rather than the absolutist language of the statutes themselves.").
70. The concept of "mental models" originates in the literature of cognitive psychology, see, e.g., JOHNSON-LAIRD, supra note 21, and the closely related field of artificial intelligence, see, e.g., MARVIN MINSKY, THE SOCIETY OF MIND 303 (1985). Dominant theory in cognitive psychology postulates that the human mind works by constructing models that have similar "relation-structures" to the processes they imitate. These models are working models in that they are dynamic and at least purport to work in the same way as the processes they parallel, but they are not necessarily workable in that they may contain inaccuracies or internal contradictions. JOHNSON-LAIRD, supra note 21, at 3-4, 8-9. "[M]odels of reality need neither be wholly accurate nor correspond completely with what they model in order to be useful." Id. at 3.
71. JOHN H. HOLLAND ET AL., INDUCTION 12 (1986) ("In common with many recent theoretical treatments, we believe that cognitive systems construct models of the problem space that are then mentally 'run,' or manipulated to produce expectations about the environment.").
72. JOHNSON-LAIRD, supra note 21, at 10. For the use of a similar model in jury research, see Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) (arguing from empirical studies that jurors decide cases by constructing coherent stories from evidence and matching the stories to permissible verdicts).
73. The literature of cognitive psychology contains a wide variety of theories of the nature of the mental structures employed in thinking. Words such as "schemata" are assigned a variety of meanings. See Blasi, infra note 50, at 339 ("The relation between the concepts of schemas and mental models [in the cognitive science literature] is less than precise."). I do not mean to endorse one to the exclusion of another. But the idea of a working mental representation of a portion of the world is essential to my concept of mental model. See infra note 50 and accompanying text.
74. J.A.W. Kamp, A Theory of Truth and Semantic Representation, Report of Center of Cognitive Science, University of Texas at Austin (unpublished), cited in JOHNSON-LAIRD, supra note 21, at 439 ("A text represented in a discourse model is true provided that there is a mapping of the individuals and events in the discourse model into the real world model in a way that preserves their respective properties and the relations between them."). See also id. at 399-406 (contrasting the cognitive process of modeling with the "cognitive" process of automatons).
75. See, e.g., JOHNSON-LAIRD, supra note 21, at 416-19 (describing the concept of "ownership" in lay terms).
76. The model need not be "correct" in any absolute sense. Nor does it have to be in the mind of a lawyer. For examples of mental models of law in the minds of lay people see Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, 38 STAN. L. REV. 623, 670 (1986) (Shasta County laymen's model of law governing trespass by cattle); JOHNSON-LAIRD, supra note 21, at 416-19 (cognitive theorist's model of the effect of ownership). The key, salient characteristic of the model is that it "run."
77. See Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL ED. 313, 318 (1995) ("[T]he schematic knowledge enables experts to construct mental models that capture much of the complexity of the situation, and to 'run' the mental models in simulation in order to evaluate the likely consequences of alternative courses of action.").
78. See Blasi, supra note 50, at 344-45 (discussing the relationship between speed and expertise in legal problem solving).
79. 11 U.S.C. § 1111(b) (1994).
80. One of my explanations appears in LYNN M. LOPUCKI, STRATEGIES FOR CREDITORS IN BANKRUPTCY PROCEEDINGS § 12.9.4 (2d ed. 1991).
81. Duncan Kennedy, for example, describes his understanding of the relationship among case holdings as "fields" and describes them as graphics. Kennedy, supra note 11, at 538-44; e.g., GETTING GRAPHIC: VISUAL TOOLS FOR TEACHING AND LEARNING UCC AND BANKRUPTCY LAW (Corinne Cooper ed., 1993) (reproducing the graphics used by dozens of law professors).
82. I have encountered students for whom I think the situation may be otherwise. They seem obsessed with the precise wording of rules and rely heavily on memorization. They seem to constitute not more than about one percent of the students I have taught.
83. Blasi identifies such patterns as the primary manifestations of legal expertise. See Blasi, supra note 50, at 335-38.
84. See infra note 59.
85. The ability of the model to generate the same results in the minds of different people is the acid test of a shared mental model of law. See, e.g.. Kennedy, supra note 11, at 561 ("[D]eciding how to apply [a rule] involves a social, hence in some sense a subjective process. . . . I've many times had discussions with others in which we formulated rules together, seemed to agree about their terms, then engaged in a series of applications, and found that once we'd agreed on the formula we came up with the same answer to the question: how does the rule apply here?").
86. See John F. Kihlstrom, The Cognitive Unconscious, 237 SCIENCE 1445 (1987);
87. Richard E. Nisbett & Timothy D. Wilson, Telling More Than We Can Know, 84 PSYCH. REV. 231 (1977).
88. See supra notes 45, 47.
89. HOLLAND ET AL., supra note 45, at 29-39.
90. See, e.g., Ketelson v. Stilz, 111 N.B. 423, 425 (Ind. 1916) ("One of [English common law's] oldest maxims was that where the reason of a rule ceased the rule also ceased."); 1 WILLIAM BLACKSTONE, COMMENTARIES *70 (This asserts that "[t]he law is the perfection of reason, . . . it always intends to conform thereto, and . . . what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely aligned; but it is sufficient that there be nothing in the rule flatly contradictory to reason."); KARL N. LLEWELLYN, THE BRAMBLE BUSH 157-58 (1951) ("The rule follows where its reason leads, where the reason stops, there stops the rule."). The concept of the "reason for the rule" dominates common-law jurisprudence. A LEXIS search for that phrase discovers use in more than 11,000 legal opinions. Nearly all of these uses are by judges who assert that they know the reason for the rule they were applying in a particular case. They appear to agree with Oliver Wendell Holmes that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
91. OLIVER W. HOLMES, COLLECTED LEGAL PAPERS 187 (1920).
92. 11 U.S.C. § 362(a)(6) (1994).
93. The legislative history provides that "[c]reditors can no longer independently contact debtors to encourage them to reaffirm debts because such contact is prohibited by the Code." S. REP. No. 65, 98th Cong., 1st Sess. 11 (1983).
94. As a private practitioner representing consumer debtors in the first year Bankruptcy Code § 362(a)(6) was effective, I routinely received requests for reaffirmation from secured creditors' attorneys. In their landmark study of consumer bankruptcy cases, Warren and Westbrook found evidence highly inconsistent with the view that debtors sought out their creditors for reaffirmation. The debtor who reaffirmed an agreement to pay for four tires on a car that had already been repossessed, the dozens of reaffirmations in one city to a particular department store and no reaffirmation to any other similar store, and other such episodes suggested to us that creditors contact their debtors for reaffirmations. ELIZABETH WARREN & JAY L. WESTBROOK, TEACHER'S MANUAL, THE LAW OF DEBTORS AND CREDITORS: TEXT, CASES AND MATERIALS 116 (2d ed. 1991).
95. See, e.g., In re Brown, 851 F.2d 81 (3d Cir. 1988) (credit union did not violate stay by sending a letter to debtor stating that future services would be denied unless debtor reaffirmed); In re Murray, 89 B.R. 533 (Bankr. E.D. Pa. 1988) (a mildly worded letter from creditor's counsel to debtor's counsel stating creditor's intention to foreclose unless debtor reaffirmed the debt did not violate the automatic stay).
96. While this provision has been in effect, several "technical amendment" bills have been enacted by Congress to correct errors in the Bankruptcy Code. Apparently, the wording of Bankruptcy Code § 362(a)(6) has not been considered an error.
97. For a conclusion so obvious, it is remarkably difficult to specify the reason. The existence of a reaffirmation procedure in Bankruptcy Code § 524(c) certainly implies that reaffirmations are contemplated. But the intent could have been to rely on debtor-initiated reaffirmations. The probable explanation is that reaffirmations can only be accomplished before discharge. See Bankruptcy Code § 524(c)(1) (1994). Without prompting from creditors, debtors who would benefit from reaffirmation might miss the deadline.
98. Blackstone suggests that one might be unable to know the reason for the rule until the rule is encroached upon. He states (supposedly relating an ancient observation of British Law) "that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation." 1 WILLIAM BLACKSTONE, COMMENTARIES *70.
99. This statement is based on numerous class discussions of a hypothetical that raises the issue. See WARREN & WESTBROOK, supra note 65, at 295-96 (stating the hypothetical in problem 20.4).
100. Minsky's "bridge definition" is a definition that bridges highly general "purposeful definitions" and specific "structural definitions" in the human mind. By connecting the two kinds of definitions of a chair, for example, the bridge definition renders the concept of a chair adjustable to context and therefore functional. See MINSKY, supra note 45, at 131.
101. This proposition might be tested empirically by presenting the facts of cases to lawyers who are members of the community and to a control group that has full access to the written law but not to the model. The analyses of community lawyers should be more similar to those of other community lawyers than to those of the control group, and the analyses of community lawyers should employ fewer distinctions.
102. See, e.g., HOLLAND ET AL., supra note 45, at 31 ("In general, the cognitive system will attempt to construct various simplified models adequate for achieving certain goals. This can be accomplished by aggregating environmental states and system outputs into useful categories and ignoring details irrelevant to the purposes of the model.").
103. See, e.g., id. at 36 ("The need for more accurate prediction favors the addition of further specialized rules, whereas the need for efficient prediction favors the addition of general rules to replace a larger number of specialized rules.").
104. The lawyer may work with the lawyer's community in deciding what adjustment to make. See infra subpart I.D.
105. Lawyers and judges commonly speak of "points of law" even though there seems to be nothing in the logic of written law that naturally would reduce it to points. Marjorie Murphy deserves credit for this insight.
106. West keynotes are a system, popular among lawyers, that facilitates both aspects of this process. Though marketed as a way of deciding which cases to read, it is routinely used as a way of avoiding the necessity to read cases. Other publications include only summaries of the cases. See, e.g., BANKRUPTCY LAW REPORTER (BNA).
107. Arthur T. Denzau & Douglass C. North, Shared Mental Models: Ideologies and Institutions, 47 KYKLOS 3, 25-26 (1994) (discussing examples and some of the literature);
108. ROBERT NOZICK, THE NATURE OF RATIONALITY 75-78 (1993) (explaining the benefits individuals obtain from maintaining inconsistent beliefs).
109. For an interesting argument that all models of reality, though not necessarily inconsistent, are incomplete, see GERALD M. WEINBERG, AN INTRODUCTION TO SYSTEMS THINKING 110-22 (1975).
110. See, e.g., JOHNSON-LAIRD, supra note 21, at 465 ("Although there is much that you can be aware of, there is also much that is permanently unavailable to you. Indeed, you can never be completely conscious of how you exercise any mental skill. Even in the most deliberate of tasks, such as the deduction of a conclusion, you are not aware of how you carried out each step in the process.").
111. The process for determining errors in one's own mental model is, in essence, to generate conclusions from the model, compare the conclusions with data generated externally, and note inconsistencies.
112. The volume of written law has exploded to the point where an awareness of all of it is impossible. See, e.g., PHILIP K. HOWARD, THE DEATH OF COMMON SENSE 25 (1994) (noting that Federal Register increased from 15,000 pages in the final year of John Kennedy's presidency to over 70,000 pages in the last year of George Bush's presidency). Computers have made it possible to produce binding law far more rapidly than human beings can read, resulting in substantial amounts of law that have never been read by anyone. For example, most employee health and pension plans are machine-produced documents intended to be identical to the form, except as modified by the drafter for the particular client. The drafter may not read the plan because the drafter is confident in its method of preparation. The employer may not read boilerplate provisions of the plan because the employer considers them the responsibility of the drafter. Employees may be given only nonbinding summaries of the plan, and not even have access to the plan itself. The same phenomena may be occurring with regard to government regulations, producing a new strategic environment with unpredictable consequences.
113. See Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983) (fashioning a "standard for standards" for administrative rules);
114. Richard Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2428-38 (1995) (describing the complexity and obscurity of modern environmental law);
115. Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1 (1992).
116. The dissemination to which I refer is within the legal community. Galanter has noted the overwhelming importance of communication of the actions of courts to the broader community. Marc Galanter, Justice in Many Rooms, in ACCESS TO JUSTICE AND THE WELFARE STATE 157-61 (Mauro Cappelletti ed., 1981).
117. See, e.g., THE IMPACT OF SUPREME COURT DECISIONS (Theodore L. Becker ed., 1969) (assessing the practical consequences of decisions of the United States Supreme Court).
118. See, e.g., Kathleen F. Brickey, An Introduction to the Kentucky Penal Code: A Critique of Pure Reason?, 61 KY. L.J. 624, 635-39 (1973) (discussing the problem of legislation creating new crimes entirely encompassed by the definitions of existing crimes); Rosenn, supra note 9, at 530 ("Brazilians commonly refer to laws in much the same manner as one refers to vaccinations. There are those which take, and those which do not.").
119. See LoPucki & Whitford, supra note 40 and accompanying text.
120. Commentators link the decline in "civility" in the legal profession to the decline in communities. See, e.g., Charles H. Wilson, Planes, Trains and . . . Civility, 76 A.B.A. J. 77, 77-78 (Jan. 1990) (blaming the lack of civility in part on lawyers who maintain national practices and "have no roots in the communities in which they occasionally practice"). Those commentators assert as the operative fact that lawyers fail to practice civility because they do not expect to encounter today's adversaries tomorrow. But part of the problem may simply be the difficulty of communicating across legal cultures. When a lawyer from outside the culture enters a case, the efficiency of case processing can be expected to decline.
121. See, e.g., WILLIAM M. KUNSTLER, DEEP IN MY HEART 55-56 (1966) (describing a case in which an out-of-town civil rights lawyer defended a charge of breach of the peace by challenging the jury panel for racial bias).
122. For an introduction to the concept of shared mental models and their use in institutional economics, see Denzau & North, supra note 78, at 4 ("Some types of mental models are shared intersubjectively. If different individuals have similar models they are able to better communicate and share their learning. . . . But the social aspects of these models are of crucial importance in human society, and these cultural links are only now being explored in this literature."). The shared mental models described here are more specific in their content than what Bourdieu describes as habitus. See Richard Terdiman, The Force of Law: Toward a Sociology of the Juridical Field, Translators Introduction, 38 HASTINGS L.J. 805, 811 (1987) (defining "habitus" as "the habitual, patterned ways of understanding, judging, and acting which arise from our particular position as members of one or several social 'fields,' and from our particular trajectory in the social structure"). The shared mental models are principally beliefs as to what the law requires in specific instances.
123. Singer emphasizes "orientation of thought" as an element of the type of knowledge from which lawyers and judges construct their legal reality. The orientation results from concepts such as the corporation as a private entity or the employee as someone other than the owner. See Joseph W. Singer, The Player and the Cards, 94 YALE L.J. 1, 21 (1984).
124. See Denzau & North, supra note 78, at 18 ("[The shared mental model] provides those who share it . . . with a set of concepts and language which makes communication easier."); infra note 217.
125. Private mental models may enable them to identify situations in which the written law will strongly support a challenge to the shared mental model. See infra subpart III.A.
126. Judges frequently discuss cases with law clerks, in part to recheck and adjust their understanding. In these sessions, judges and clerks forge shared mental models.
127. See supra note 65.
128. See, e.g., Nicholas S. Zeppos, The Professional Construction of Interpretive Theory: The Legal Profession and Statutory Interpretation 38 (unpublished manuscript on file with the author) (showing with the example of section 92 of the National Bank Act, that "there can be shared agreement about legal meaning that arises apart from and indeed despite statutory text").
129. This proposition could be tested by interviewing lawyers and judges who are processing substantial numbers of cases for which case-by-case processing is required. The theory predicts that those lawyers and judges will, after processing a significant number of cases, be able to state the rules by which they are making decisions. They will not collect or consider facts irrelevant to determination under those rules. See, e.g., Blasi, infra note 146 (describing practice in the landlord-tenant court in Washington, D.C. by which appearing tenants were asked "Do you owe the rent?" as soon as their cases were called and "[o]nly those tenants responding with an unequivocal 'No' were ever allowed to reach the front of the courtroom").
130. Bankruptcy Judge Leif Clark follows the practice of holding a hearing to scrutinize any fee application that exceeds $250 per hour. He approves lesser rates without hearings. As a result, attorneys who practice before him generally apply for fees at rates not exceeding $250 per hour. The effect is essentially to limit fees to $250 per hour, even though bankruptcy judges have no authority to impose a top dollar limit on fees. Judge Clark's rule of thumb is contrary to written law. See In re Boddy, 950 F.2d 334, 337 (6th Cir. 1991) ("[T]he establishment of a maximum amount for attorney's fee awards resembles the practice of the courts under the pre-Code Bankruptcy Act, when economy of the debtor's estate was a paramount concern. This notion that economy of the estate should govern the award of attorney's fees was expressly repudiated by the Code.").
131. See 42 U.S.C. § 667(a) (1994).
132. See Corinne Cooper, Identifying a Personal Property Lease Under the UCC, 49 OHIO ST. L.J. 195 (1988) (showing that two of the three tests developed by the courts generate the wrong results in some cases).
133. See Weyrauch & Bell, supra note 9 (discussing autonomous law made by Gypsies that conflicts in some respects with law made by the state, yet appears to persist indefinitely).
134. The idea that all legal rules can be reconstituted as if-then logical propositions without altering their meaning originated with Layman Allen. It is the foundation of the process of "normalization" of statutes. Normalization is a process that eliminates structural ambiguity from statutes. See Layman E. Allen & C. Rudy Engholm, Normalized Legal Drafting and the Query Method, 29 J. LEGAL EDUC. 380, 402-03 (1978) (describing normalized statutes as if-then statements);
135. Grayfred B. Gray, Reducing Unintended Ambiguity in Statutes: An Introduction to Normalization of Statutory Drafting, 54 TENN. L. REV. 433 (1987) (providing examples of statutes expressed as if-then statements).
136. See Galanter, supra note 82, at 147.
137. Thus viewed, the legal system is closely analogous to cognitive systems such as the human mind or an expert computer system. See, e.g., HOLLAND ET AL., supra note 45, at 14-15 ("Condition-action rules underlie much important work in artificial intelligence, including problem solvers . . . and most expert systems. . . . [T]he activity of a rule based system (or production system) can be described in terms of a cycle with three steps: (1) matching facts against rules to determine which rules have their conditions satisfied; (2) selecting a subset (not necessarily a proper subset) of the matched rules to be executed, or 'fired'; and (3) firing the selected rules to take the specified actions."). I do not intend to assert, however, that this relationship between the functioning of the legal community and the human mind is anything more than an analogy. Shared mental models would not lose their significance if they were shown to be social rather than cognitive phenomena.
138. Resort to written law is more common in practices where the importance of the issues and the wealth of the parties are sufficiently high to support it. Because unanswered arguments are highly persuasive, resort by one side to the written law forces resort by the other. In high stakes corporate practice, the mental model itself calls for resort to written law on the "important" issues in every case.
139. Written law may trump in the case of an appeal outside the community, but that is a rare occurrence. See infra note 159.
140. For example, in 1993, a small software company sold Revlon a computer program for inventory and distribution control. When Revlon failed to pay for the program, the software company hacked into the system and disabled it. That action might be defensible on the theory that the software company had the right to "render equipment unusable . . . on the debtor's premises." U.C.C. § 9-503 cmt. However, unless their mental model suggested such a defense, lawyers for the software company would be unlikely to discover it through research.
141. This proposition could be tested by observing a community processing cases and asking members, before they resort to written law, to specify the issue, and asking them, after they resort to written law, whether the written law resolved the issue. The proposition suggests that written law will tend to have its greatest impact when a party takes the issue outside the community for resolution, as often happens when a party appeals.
142. I have referred to the informal rules requiring such dispositions as "rules of thumb."
143. see supra notes 65-74 and accompanying text.
144. To say that an outcome is path dependent is to say that it lacks inevitability, that is, the outcome depends on the path followed to reach it. The theory of path dependency challenges the basic assumption of classical economics that systems move toward inevitable equilibria. See, e.g., M. MITCHELL WALDROP, COMPLEXITY 17-18, 37, 50, 255 (1992) (asserting that the concept of equilibrium is central to neoclassical economics). While the lack of inevitability of our institutions and forms of social organization seem obvious to most people, it is far from obvious to a neoclassical economist. Id. at 50 ("[N]eoclassical theory, if really taken seriously, says that history is irrelevant."). A neoclassical economist views economic forces as compelling institutions and forms of social organization toward an equilibrium at which maximum efficiency would be achieved. Id. at 34-35. Regardless of the particular path by which the economy proceeds, given time it would reach the same equilibrium. See, e.g., Denzau & North, supra note 78, at 27 ("The presence of learning creates path-dependence in ideas and ideologies and then in institutions.").
145. The empirical test proposed supra note 72 could be used for this proposition as well.
146. This theoretical framework is similar to the one presented by Stanley Fish. See Stanley Fish, Fish v. Fiss, 36 STAN. L. REV. 1325, 1327-30 (1984) (attributing agreement on what a rule "is" to the constraints of the context in which it is applied because "knowledge informs rules rather than follows from them"). Fish nevertheless insists on seeing the processing of cases as an interpretation of the "text" of the written law. But the link back to written law is inappropriate when, as is usually the case, the lawyers applying the law neither know nor consult the "text" they supposedly are "interpreting." By insisting, Rsh misses the largely independent nature of the law in lawyer's heads.
147. Although appellate court lawyers often practice in communities and forge shared mental models, those models deal only with the matters those communities address repeatedly. The most prominent is appellate procedure. As to the merits of particular cases, their mental models are likely to be empty.
148. See, e.g., the discussion of Johnson v. Home State Bank, infra note 175 and accompanying text.
149. JOHNSON-LAIRD, supra note 21, at 408 (stating as "[t]he principle of economy in models" that "[a] description of a single state of affairs is represented by a single mental model even if the description is incomplete or indeterminate").
150. Id.
151. See supra notes 94-97 and accompanying text.
152. See Weyrauch & Bell, supra note 9, at 382-85.
153. Id. at 383 (arguing that strategies "permeate the law . . . and cannot be eliminated").
154. See supra note 99 and accompanying text.
155. As decisionmakers become aware of strategic manipulation of the facts of the cases that come before them, their tendency to accept them as given may decline. For example, provisions of Chapter 13 of the bankruptcy code require that debtors pay all of their disposable income to unsecured creditors. The requirement is, however, vulnerable to the debtor strategy of buying expensive consumer goods on secured credit before filing and proposing a plan that devotes the bulk of the debtor's disposable income to payment of this new debt. The effect is to avoid the necessity of making payments to unsecured creditors. As courts became aware of this strategy, they began to inquire into such prepetition purchases and employ the "good faith filing" doctrine to combat it. See, e.g., In re Rogers, 65 B.R. 1018, 1021-22 (Bankr. E.D. Mich. 1986) (refusing to confirm a Chapter 13 plan because the debtor sold the less expensive of two cars before bankruptcy and kept the more expensive one).
156. The creators of a law-related system are likely to have had a wide variety of intentions. Some readers may be skeptical of any theory that regards such a system as intending anything in particular. Though I share that skepticism, I nevertheless choose to treat law-related systems as goal-seeking. Only by glossing over the many subtle differences in intention that go into the making of a law-related system is it possible to make sense of such a system. Triantis and I elaborate on this point in Lynn M. LoPucki & George G. Triantis, A Systems Approach to Comparing U.S. and Canadian Reorganization of Financially Distressed Companies, 35 HARV. INT'L L.J. 267, 269-72 (1994).
157. See 11 U.S.C. § 303 (1994).
158. See, e.g., LYNN M. LOPUCKI, STRATEGIES FOR CREDITORS IN BANKRUPTCY PROCEEDINGS § 2.8 (2d ed. 1991); Lawrence Ponoroff, Involuntary Bankruptcy and the Bona Fides of a Bona Fide Dispute, 65 IND. L.J. 315, 317 n.15 (1990) ("The circumstance most frequently motivating involuntary filings is the making by the debtor of a large, preferential transfer of property to a single creditor, resulting in a net depletion of assets available to satisfy the claims of remaining creditors.").
159. I first wrote about the strategy in 1985, see LYNN M. LOPUCKI, STRATEGIES FOR CREDITORS IN BANKRUPTCY PROCEEDINGS § 2.14.4 (1st ed. 1985), thinking that its exposure would lead to remedial action, id. at xxx. It has not.
160. See Bankruptcy Rule 7041, providing that dismissal of an adversary proceeding that raises an objection to discharge must be "on order of the court containing terms and conditions which the court deems proper." 11 U.S.C. app. Rule 7041 (1994). The avowed purpose of this rule is to assure that the plaintiff has not received anything in settlement of the case. See id. Rule 7041 advisory committee's note; In re Moore, 50 B.R. 661 (Bankr. E.D. Tenn. 1985) (refusing to approve compromise where plaintiff dropped suit in exchange for settlement of claim).
161. In an indeterminate legal system, system-unintended strategies would be ineffective. With the freedom to do what they wanted in individual cases, judges would reward system-intended strategies and thwart system-unintended ones. As Atiyah put it, in attempting to explain why Holmes's "bad man" theory of law never took off, "judges do not like bad men." P.S. Atiyah, The Legacy of Holmes Through English Eyes, 63 B.U. L. REV. 341, 369 (1983). Atiyah's implication is that we need not worry about strategic manipulation in the American legal system because judges have sufficient latitude to ensure that system-unintended strategies don't work. Id. Almost anyone who has practiced law with responsibility at the case strategy level knows that (1) most judges in fact don't like bad men and (2) dislike isn't sufficient to prevent strategic manipulation. See infra section IV.B.1.
162. See, e.g., Lawrence Ponoroff & F. Stephen Knippenberg, Debtors Who Convert Their Assets On the Eve of Bankruptcy: Villains or Victims of the Fresh Start?, 70 N.Y.U. L. REV. 235 (1995);
163. Kevin A. Shacter, Bankruptcy Estate Planning: Grounds for Denial of Discharge Under Section 727(a)(2)(A), 7 BANKR. DEV. J. 199 (1990).
164. Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines, 66 S. CAL. L. REV. 501, 501 (1992).
165. Id. at 502 (emphasis in original).
166. Id. at 504-12 (describing the guidelines and the Justice Department's efforts to prevent strategic manipulation); see Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 CAL. L. REV. 1471 (1993) (arguing that adoption of the guidelines did not reduce disparity in sentencing but merely shifted the power to create disparity from judges to prosecutors).
167. Nagel & Schulhofer, supra note 127, at 534 (showing that guideline circumvention in one district probably exceeded 25% of the cases). For one district, the authors list ten cases out of a sample of 111 in which the length of sentences actually given were only 18% of the minimum sentences required by the guidelines. Id.
168. 2.").
169. Probably the most general rules in Anglo-American law are those referred to as equitable maxims. Examples include the maxims that "equity abhors a forfeiture" and "one who seeks equity must do equity." Though rarely used as the sole basis for decision, they commonly serve as make-weights and are available for use in emergencies.
170. see, e.g., 11 U.S.C. § 109 (1994).
171. See, e.g., Singer, supra note 88, at 17 ("Even if a specific rule exists that has no exceptions and that everyone agrees how to apply, . . . there is always a more general rule or principle that could plausibly nullify it . . . .").
172. See, e.g., Dewsnup v. Timm, 502 U.S. 410, 417 (1992) (ignoring statutory language in the 1978 Bankruptcy Code authorizing the voiding of liens to the extent they exceed the value of the collateral, based on the supposed pre-Code "rule that liens pass through bankruptcy unaffected").
173. 11 U.S.C. § 727(b) (1978).
174. 11 U.S.C. § 523(a) (1978).
175. 11 U.S.C. § 524(a)(2) (1978) (emphasis added).
176. Six years later, Congress amended Bankruptcy Code § 524(a)(2) to delete the words "or from property of the debtor" to "clarif[y] that valid liens survive the discharge." BANKRUPTCY CODE 289 (Collier Pamphlet Edition, Asa S. Herzog & Lawrence P. King eds., 1985). No court appears to have been confused by Congress's "error" during those six years. See, e.g., In re Weathers, 15 B.R. 945, 951 (Bankr. D. Kan. 1981) (permitting enforcement of a mortgage against property of the debtor after discharge because liens "survive discharge"). But see In re Penrod, 50 F.3d 459 (7th Cir. 1995) (holding that a lien had been extinguished by confirmation of a plan that mentioned the debt but did not state that the debt was secured). The court added wryly that "like most generalizations about
177. For example, in the Gainesville, Florida legal community of the 1970s it was understood that "punitive damages are hard to get." The understanding gave content to the otherwise meaningless standard. See, e.g., Arab Termite and Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1041 (Fla. 1982) ("A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression."). The understanding was enforced through a variety of other doctrines, including tight restrictions on what evidence had to be introduced to provide the basis for an award of punitive damages.
178. See 11 U.S.C. § 362(d)(1) (1994).
179. See, e.g., In re BBT, 11 B.R. 224 (Bankr. D. Nev. 1981) (holding that the value of railroad cars would increase in the future and that expected future increase provided adequate protection to an undersecured creditor).
180. See 11 U.S.C. § 1129(a)(2) (1994) (providing that "[t]he court shall confirm a plan only if all of the following requirements are met: . . . (2) The proponent of the plan complies with the applicable provisions of this title.").
181. LoPucki & Triantis, supra note 120, at 304-05.
182. However, they might. For example, in Sweatt v. Painter, 339 U.S. 629 (1950), the Supreme Court ruled that blacks were entitled to admission to law schools on the same basis as whites. In 1949, the University of Florida College of Law denied admission to black applicant Virgil Hawkins. For nearly a decade thereafter, the College of Law and the Florida courts succeeded in denying blacks admission. They continued in the face of a clear mandate to the contrary from the Supreme Court of the United States. See Hawkins v. Board of Control, 350 U.S. 413, 414 (1956) (holding that "[T]here is no reason for delay. [Blacks are] entitled to prompt admission under the rules and regulations applicable to other qualified candidates."). Based on findings of "fact" by Circuit Judge J.A. Murphree, the Supreme Court of Florida nevertheless concluded that admission would "result in great public mischief" and, exercising its self-proclaimed discretion, denied Hawkins admission until such time as Hawkins could show that "his admission can be accomplished without causing great public mischief." State v. Board of Control, 93 So. 2d 354, 360 (FIl. 1957). Hawkins never managed to obtain admission. Darryl Paulson & Paul Hawkes, Desegregating the University of Florida Law School: Virgil Hawkins v. The Florida Board of Control, 12 FLA. ST. U. L. REV. 59, 69 (1984). Thus the Florida legal community managed to perpetuate a result in accord with their own mental model, despite clear and re peated decisions by the Supreme Court of the United States. See also DAVID C. FREDERICK, RUGGED JUSTICE 83-88 (1994) (discussing corruption of Alaskan district judge by gold miners who secured his appointment).
183. See, e.g., Gary L. Blasi, Creative Expertise, Law and Slums: A Cognitive/Historical Account of Innovation in Lawyering for Social Change 33-52 (Feb. 1, 1996) (unpublished manuscript, on file with the author) (contrasting the culture of the local landlord tenant court where the landmark case, Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), originated with the culture of the D.C. Circuit).
184. See, e.g., J.M. Balkin, The Crystalline Structure of Legal Thought, 39 RUTGERS L. REV. 1 (1986) (arguing for a dialectic model of legal evolution);
185. Robert C. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L.J. 1238 (1981) (arguing for the use of scientific methods to search for principles of legal evolution);
186. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 LAW & SOC'Y REV. 239 (1983) (describing several theories of legal evolution and attempting to reconcile them).
187. See, e.g., Commissioner of Internal Revenue v. Hallock, 102 F.2d 1, 5 (6th Cir. 1939) ("It is the province of the courts to construe, not to make laws."); Pickett v. McGavick, 19 F. Cas. 588, 588 (W.D. Ark. 1876) (No. 11,126) ("[I]f a remedy is wanting under the law, it is not with the court (which does not make laws, but construes and administers those already made), but with the law-making power.").
188. The example is Roscoe Pound's. Pound, supra note 26, at 12-14.
189. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 143 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) ("Primarily, principles and policies are used and useful as guides to the exercise of a trained and responsible discretion.").
190. See William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation as a Postmodern Cultural Form, 89 MICH. L. REV. 707, 711-31 (1991) (describing the shift in thinking from Formalism to Realism to Legal Process Theory); id. at 728 (asserting that "Hart and Sacks reconceptualized law as dynamic").
191. But see Clark, supra note 147, at 1253 (recognizing that lawyers play a role in legal change without specifying how).
192. The theories I present are merely examples of such lawmaking. They are cumulative to the theory of autonomous lawmaking presented by Weyrauch and Bell. See Weyrauch & Bell, supra note 9, at 394-95 (describing autonomous lawmaking in a group outside the legal system).
193. Clark, supra note 147, at 1257.
194. The young lawyer starting out is generally encouraged to watch and listen to more exper-ienced lawyers at work and cautioned not to rely too heavily on written law. See Weyrauch & Bell, supra note 9, at 374 ("A person who comprehends only written law would be inadequately prepared to practice law.").
195. See, e.g., DOUGLAS W. MAYNARD, INSIDE PLEA BAROAININO (1984) (discussing plea bar-gaining between prosecutors and public defenders).
196. For an example of what happens when a lawyer raises every issue that comes to mind, see VINCENT BUGLIOSI, HELTER SKELTER: THE TRUE STORY OF THE MANSON MURDERS 400 (1974) (expressing the opinion that if Irving Kanarek, a lawyer with a reputation for raising every objection that came to mind, were permitted to represent Charles Manson the trial that was expected to last four months "could last several years"). Kanarek did represent Manson and made thousands of objections during the trial. See, e.g., id. at 435-36 ("Reporters keeping track of Kanarek's objections [to the testimony of Linda Kasabian] gave up on the third day, when the count passed two hundred."). Nevertheless, Vincent Bugliosi, who was both the prosecutor and chronicler of the trial, acknowledged that Kanarek was effective. See, e.g., id. at 441 ("Given a choice of defense attorneys [the reporters] quoted Fitzgerald, whose questions were better phrased. But it was Kanarek, in the midst of his verbosity, who was scoring.").
197. See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95 (1974) (discussing the use of interest group litigation to change law).
198. Duncan Kennedy's description of the resort to written law captures the process brilliantly. Like Franz Kafka's Mr. K, who contemplates his upcoming trial through nearly the entire length of The Trial, Kennedy's hypothetical liberal judge muses endlessly about the possible implications of what he might find on his upcoming resort to written law governing a labor protest. The article ends with Kennedy's judge closer to a final decision on what to do than he is to the books that will tell him the written law. See Kennedy, supra note 11.
199. For example, during the 12 months ending December 31, 1991, 217,656 cases were commenced in the U.S. District Courts. See ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEDERAL JUDICIAL WORKLOAD STATISTICS 32 (Dec. 31, 1991). Only 44,465 appeals were commenced in the U.S. Court of Appeals. Id. at 20. The latter figure is 20.4% of the former. Corresponding figures for the bankruptcy courts are considerably more dramatic. During the 12 months ending December 31, 1991, 943,987 cases were filed in the bankruptcy courts. Id. at 11. Only 4362 bankruptcy appeals were commenced in the District Courts during that year. Id. at 32. The latter figure is only 0.4% of the former. In assessing these figures it is important to realize that appeals typically address only one or a few issues in the underlying case. That case may have involved dozens of issues that were actually litigated and thousands of issues that could have been litigated.
200. This proposition could be tested by ranking the influence of community members who represent opposing parties in the same case and then counting the number of motions, objections, or other types of challenges they raised during litigation. My theory would predict that lawyers ranked highly in the Martindale-Hubbell Law Directory would object less frequently than those lower ranked.
201. Bugliosi provides several examples of the informal sanctioning of lawyer Irving Kanarek, a lawyer with a reputation for making too many objections. Bugliosi referred to him in open court as "a professional obstructionist," BUGLIOSI, supra note 156, at 400, and another judge criticized his questions of a witness as "obviously stupid" and "ill-advised," id. at 379. One can only imagine the effect on Kanarek's clients.
202. This proposition could be tested empirically by asking lawyers whether they raise all objections they think may ultimately prevail and, if not, why not. In commenting on a draft of this article, Professor Jean Braucher wrote: In Cincinnati . . . the [public defenders] . . . are extremely reluctant to make use of written criminal procedure precedents on behalf of their clients; their mental models may erase this law. The acquiescent attitude of public defenders in turn spills over to the private criminal defense bar, many of whose members fear being treated as troublemakers by the judges. This Cincinnati culture came as a real shock to me because I moved here from Seattle, where the local legal culture expected vigorous use of written law on behalf of criminal defendants. Letter from Jean Braucher, Gustavus H. Wald Research Professor of Law, University of Cincinnati College of Law to the author 2 (Oct. 20, 1995) (on file with the author).
203. See supra note 147. Walter O. Weyrauch, Gypsies, AMER. J. COMP. L. 53-63 (forthcoming 1996) (describing the implications of informal law for the process of advocacy).
204. The shared mental model is a blueprint for dealing with future cases. Unless a particular kind of case is likely to repeat with sufficient frequency, no change in the model is warranted. Thus lawyers and judges may be surprised by the same aberration more than once.
205. If we spread the universe of cases and issues along a continuum from the most difficult and uncertain to the easiest and most predictable, resort to written law is most likely to occur near the difficult end of the continuum. Even if there are, as Schauer asserts, "easy" cases where law is determinate in a Formalistic sense, see Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985), they will tend not to be the cases that cause lawyers to resort to the written law.
206. See, e.g., Duke of Norfolk's Case, 2 Swans. 454, 468; 3 Chan. Cas. 14, 36 (1681) ("Lord Nottingham said: 'It hath been urged at the bar, where will you stop if you do not stop at Child and Bayly's case? I answer, I will stop everywhere when an inconvenience appears, nowhere before'.").
207. This proposition could be tested by the method described supra note 72.
208. See supra subpart I.A.
209. See, e.g., Michael J. Powell, Professional Innovation: Corporate Lawyers and Private Law-making, 18 LAW & SOC. INQUIRY 423 (1993) (describing the development and implementation of the "poison pill" strategy in corporate takeovers).
210. See LOPUCKI, supra note 53, § 2.16.3.
211. The variety of cases in which secured or other preferred status is plausible is large. See id. § 6.6.4.
212. See Powell, supra note 169, at 439-46 (describing the spread of the "poison pill" strategy).
213. See, eg., H.R. REP. No. 1195, 96th Cong., 2d Sess., pt. 1, at 25 (1980) ("Chapter 13 is designed to induce eligible debtors to repay their just obligations from future income as a means of avoiding . . . liquidating bankruptcy proceedings under chapter 7. The principal statutory inducements to chapter 13 debtors include . . . the retention by the debtor of property . . . during the extension period. These and other important legal and economic advantages are afforded to chapter 13 debtors but not to chapter 7 debtors."); see also Lynn M. LoPucki, "Encouraging" Repayment Under Chapter 13 of the Bankruptcy Code, 18 HARV. J. ON LEGIS. 347 (1981) (arguing against requiring debtors to repay unsecured creditors as the price of Chapter 13 relief).
214. 11 U.S.C. § 1325(b)(1)(A) (1994).
215. Johnson v. Home State Bank, 501 U.S. 78, 80 (1991).
216. See, e.g., Braucher, supra note 32, at 533 (noting that "[a]fter Johnson v. Home State Bank, chapter 20 could also be used to make an end run around an expectation of high percentage repayment of unsecured debts in chapter 13" but that lawyers "may be reluctant to seize upon this aggressive technique" for "fear [of] annoying local trustees and judges").
217. For example, debtors might have adopted the strategy of waiving discharge of the mortgage debt. See 11 U.S.C. §§ 523(a)(10), 524(c) (1994). If the courts permitted waiver over the objection of the mortgage holder, the mortgage debt would remain owing and be a claim in the later Chapter 13 case.
218. I do not mean to imply that legal outcomes are unchangeable. My point is that change requires community action at the level of the shared mental model, as opposed to mere legislative or judicial pronouncements. See supra notes 85-108 and accompanying text.
219. This second adjustment is problematic because it is possible for the community to adopt a more complex expectation toward repayment to unsecured creditors: that Chapter 20 debtors will not repay, but Chapter 13 debtors will. Adoption of this more complex expectation would be more likely if there were legal or practical limits on a debtor's ability to file Chapter 20 that might seem to the lawyers to have some policy basis.
220. For example, debtors will have borrowed money and lawyers will have advised clients and filed bankruptcy cases in an environment where Chapter 20 was the expectation.
221. The mental model knows its own state. That is, it necessarily contains the information necessary to predict what it will do in any situation. But it does not necessarily know how it reached that state. Members of the community may have forgotten. Members of the community may never have been conscious of the changes they were making in their own mental models. Even if individual members of the community remember how the changes came about, their advocacy of restoration may seem self-serving to new members of the community who never experienced the old order.
222. See, e.g., Stuart A. Kauffman, The Evolution of Economic Webs, in THE ECONOMY AS AN EVOLVING COMPLEX SYSTEM 125 (1988).
223. An apocryphal history of the construction of security from existing legal concepts appears in LYNN M. LOPUCKI & ELIZABETH WARREN, SECURED CREDIT: A SYSTEMS APPROACH 27-29 (1995).
224. The hostility of the courts to the developing concept of security is recounted in RICHARD E. SPEIDEL, ROBERT S. SUMMERS, & JAMES J. WHITE, SECURED TRANSACTIONS: TEACHING MATERIALS 27-35 (1987).
225. James J. White, Efficiency Justifications for Personal Property Security, 37 VAND. L. REV. 473, 502 (1984) ("It is not clear that Congress would or could enact a law that would successfully deprive secured creditors - or their proxies under a new system - of priority. It is my thesis that if Congress indeed were successful in constitutionally abolishing security, then formerly secured creditors would search for security alternatives.").
226. See Lynn M. LoPucki, The Unsecured Creditor's Bargain, 80 VA. L. REV. 1887, 1931-38 (1994).
227. Courts order the payment of debts and use their contempt powers to enforce their orders only in a narrow range of cases. See LOPUCKI & WARREN, supra note 183, at 20.
228. For recent cases addressing it indirectly, see Security Pacific Bank v. Haines Terminal & Highway Co., 869 P.2d 156, 158 (Alaska 1994) (stating in dicta that "the trial court properly held that [the judgment creditor] could not 'attach property that is subject to a security interest when that security interest is larger than any of the debtor's interests' "); Grocers Supply Co. v. Intercity Inv. Properties, Inc., 795 S.W.2d 225 (Tex. Q. App. 1990) (holding a judgment creditor who did not notify the secured creditor before levying against collateral liable for secured creditor's damages in recovering the property from the judgment creditor).
229. By this, I mean to imply only that I encountered it first. Whether the law now moves from the "old" model to the "new" model may depend on the strategies employed by the lawyers involved.
230. The basis in law for this claim is found in U.C.C. § 9-311 (1994), which provides that "[t]he debtor's rights in collateral may be ... involuntarily transferred (by way of sale . . . levy . . . or other judicial process) notwithstanding a provision in the security agreement prohibiting any transfer . . . ." The purpose of the section is "[t]o make clear that in all security transactions under this Article, the debtor has an interest (whether legal title or an equity) which ... his creditors can reach." U.C.C. § 9-311 cmt. 1.
231. The basis in law for this claim is found in U.C.C. § 9-503 (1994), which provides that "a secured party has on default the right to take possession of the collateral." The lawyers recognized the formal limitations that the debt to the secured creditor had to be in default and the secured creditor might have to feign a desire to exercise its own remedies against the collateral. The lawyers seemed to presume that these things would be easy for a debtor and secured creditor to accomplish and that, if a judgment creditor took the hostile step of executing, they would accomplish them.
232. See supra notes 141-46 and accompanying text (discussing "Whole-Case Realism").
233. See supra notes 190-91.
234. Interpretation may serve as a means of incorporating norms from unwritten law into the written law. See Weyrauch & Bell, supra note 9, at 398.
235. First Nat'l Bank of Glendale v. Sheriff of Milwaukee County, 149 N.W.2d 548, 550-51 (Wis. 1967).
236. Altec Lansing v. Friedman Sound, Inc., 204 So. 2d 740 (Fla. Dist. Ct. App. 1967).
237. See Frierson v. United Farm Agency, 868 F.2d 302, 304-05 (8th Cir. 1988). A Florida Court of Appeals later held a secured creditor entitled to reclaim collateral from a sheriff who had taken it on execution, somewhat disingenuously confining the earlier Florida decision to cases where the debt owing to the secured creditor was not in default. See Brescher v. Associates Fin. Serv. Co., 460 So. 2d 464, 467 (Fla. Dist. Ct. App. 1984). Brescher is perfectly consistent with the law of Wisconsin as expounded in First National Bank of Glendale, which it cited; if the Brescher court is to be believed, Brescher effected no change in Florida law.
238. This proposition could be tested by presenting hypothetical fact patterns to lawyers who are not familiar with the practices of either community, but who have access to the law of all states, and asking them what results they would predict if the hypothetical were decided by the courts of the two states.
239. See, e.g., MARK S. SCARBERRY ET AL., BUSINESS REORGANIZATION IN BANKRUPTCY 10 (1995) ("Out-of-court workouts are entirely voluntary from the creditors' point of view and require almost unanimous creditor support to succeed. Only creditors who agree to the workout agreement are bound by it; even if 99 out of 100 creditors agree to it, the one dissenting creditor can demand full payment and pursue legal remedies. The debtor will typically pay that dissenting creditor to avoid the disruption that would be caused if the dissenter exercised its state law creditor's rights.").
240. see CAL. Qv. PROC. CODE § 720.210 -.230 (West 1995).
241. See, e.g., Order Granting Third Party Claim, Alliance Financial Capital, Inc. v. Peripheral Land, Inc. (No. 080265) (Municipal Court of California, County of Alameda, Apr. 5, 1995) (granting CMA's third party claim to debtor's money in a bank account in which CMA held a security interest).
242. In an assignment for the benefit of creditors, a debtor irrevocably assigns all of its property to a trustee, who undertakes to liquidate the property and distributes the proceeds to creditors. See WARREN & WESTBROOK, supra note 65, at 175-76. Debtors are sometimes willing to make such assignments because assignment blocks execution by individual creditors giving the trustee time to liquidate the property for the most advantageous price. Using Brooks's strategy instead of an assignment, the debtor can block execution without giving up possession and control of the business or committing to its liquidation.
243. Brooks reports that the "stay" has been effective for as long as 18 months after the grant of security, in some cases even against post-workout levies. Telephone interview with Lincoln Brooks, bankruptcy attorney with Brooks and Raub, Palo Alto, California (May 30, 1995).
244. see SCARBERRY ET AL., supra note 199, at 14 ("Dissenting creditors cannot be bound in a workout, but they can be bound in chapter 11.").
245. Pound gives examples from both Roman and Anglo-Saxon law of evolutions in which the law in action first split from the law on the books-perhaps through legal strategy-and the law on the books was later conformed to the law in action. Pound, supra note 26, at 13-15. Pound described the process as "legal theory . . . yielding] to the pressure of lay ideas and lay conduct," but his examples suggest strategic manipulation. Resort to "a fictitious plea and fictitious ejectment" would have to begin with the pleadings - the strategy of a lawyer - before it could be adopted by a court. Id. at 14.
246. The process of legal change through strategic manipulation is in many ways analogous to the process of legal change through the use of legal fictions. Both strategies and fictions seem manipulative on first use. Both cease to seem so after repeated use, and the eventual elimination of either after it has served its purpose in bringing about a particular change is likely to be viewed as modernization. See LON L. FULLER, LEGAL FICTIONS 14-23 (1967).
247. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897).
248. KARL LLEWELLYN, supra note 62, at 12. The full passage reads: This doing of something about disputes, this doing of it reasonably, is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself. Id.
249. Shared mental models also better fit these definitions than does the law in action. The law in action includes outcomes not imposed by officials, making it somewhat different from the law referred to by Holmes and Llewellyn. See Stewart Macaulay, An Empirical View of Contract, 1985 WIS. L. REV. 465, 466-71 (including within the concept of "contract law in action" sanctions imposed by trading partners).
250. The idea that law's only real existence is in the minds of participants in the legal system is a tenet of Scandinavian Legal Realism. See, e.g., KARL OLIVECRONA, LAW AS FACT 42-49 (1939) (explaining that laws are "imperative statements about imaginary actions" and that the written law is merely a way of reminding people about notions that their minds consider only intermittently). "In reality, the law of a country consists of an immense mass of ideas concerning human behavior accumulated during centuries through the contributions of innumerable collaborators." Id. at 48. Olivecrona states that "[t]he written text - in itself only figures on paper - has the function of calling up certain notions in the mind of the reader. That is all." Id. at 48;
251. see also ALF ROSS, ON LAW AND JUSTICE (1959).
252. The mental model may call for a "look up," as when the members of a legal community understand that child support is to be set by looking up the dollar amount on a table, and then perhaps adjusting it in some manner. Such a look up is merely a memory device that supplements the mental model, it is not written law that supplants it. A particular body of law may also achieve considerable complexity in the minds of a small community expert in it, as occurs in various areas of tax law. But the tradeoff for that complexity is that the expert community is fully absorbed with it and has less time to devote to understanding how the law they have mastered relates to the rest of the world. Additionally, legal expertise that goes beyond a certain level of complexity is of little use because it cannot be communicated to others, which ordinarily is a prerequisite to application.
253. See Peter Westin, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982) (demonstrating that the legal idea that likes should be treated alike is tautological and arguing that the idea should be banished from moral and legal discourse). Equality may be defensible as a moral concept if one considers the entire situations of the persons compared.
254. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971) (employing the concept of the least well off in society);
255. LARRY S. TEMKIN, INEQUALITY (1993) (discussing the bases for making such comparisons). But the concept of equality employed expressly in legal decisionmaking does not attempt to consider the entire situations of the persons involved.
256. The "locality" need not be geographical because the community that processes cases may be national or even international. What is essential is that members of a community interact regarding cases with sufficient regularity to forge shared mental models of the process and appropriate outcomes. That can only occur in relatively small communities, where an individual's mental model can be forced to conform to that of other members through repeated application and adjustment.
257. See, e.g., The Rt. Hon. Lord Justice Mustill, The New Lex Mercatoria: The First Twenty-Five Years, 4 ARB. INT'L 86, 93-94 (1988) (asserting that diverse trade practices have produced a "micro" lex mercatoria which differs from place to place); Weyrauch & Bell, supra note 9, at 376-77;
258. UGO DRAETTA ET AL., BREACH AND ADAPTATION OF INTERNATIONAL CONTRACTS 7-29 (1992) (describing the controversial concept that a "lex mercatoria" exists separate from the law of any of the states involved).
259. See Denzau & North, supra note 78, at 18-20.
260. The efficiency produced by shared understandings of the complexity of law have been commented on with some frequency. Maynard notes that "the 'routineness' of a case does not mean there is an absence of negotiation, but only that it is conducted so as to focus on what should be done and focus off why it should be done and how prosecution and defense view the case." See DOUGLAS W. MAYNARD, INSIDE PLEA BARGAINING 104-07 (1984). Weyrauch quotes a high-ranking German appellate judge: A selected group of specialized attorneys who constantly argue cases before us are not likely to waste our time. They know what we justices want to hear, and they bring just that. The out-of-town attorneys have no experience before a court of last resort. They talk too much.
261. WALTER O. WEYRAUCH, THE PERSONALITY OF LAWYERS 230 (1964) (citations omitted).
262. This proposition might be tested empirically by correlating the lengths of trials with the amount of experience trial participants have in working with one another. The theory would predict shorter trials when the participants are repeat players. The proposition has been asserted by others. See, e.g., Manik Roy, Pollution Prevention, Organizational Culture, and Social Learning, 22 ENVTL. L. 189 (1991) (noting that specialized legal jargons in various environmental enforcement agencies resulting primarily from the use of different jargon in the laws being enforced "served to heighten [a particular agency's] employees' sense of uniqueness from the outside world. However, the jargons, unique to each division, isolated them from each other.").
263. Law schools are probably the principal situs of the production of shared mental models of law. Sensing students' frustration with the completely unwieldy and indeterminate nature of law, law professors often create for their students a simple, determinate model of the subject that will be acceptable on the final exam. Bar exams promote the creation of a similar set of models. In either context, knowing too much written law may be counter-productive because it can easily lead to misunderstanding between test-taker and grader.
264. Teaching law students and writing articles for submission to journals run by law students provide opportunities and incentives for legal scholars to re-examine the foundations of our arguments. Lawyers are subjected to the same discipline when they must present their arguments to an appellate court outside their legal community.
265. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 171 (1920) (observing that "if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict").
266. For contemporary examples of strategic analysis, see Mark J. Roe, Corporate Strategic Reaction to Mass Tort, 72 VA. L. REV. 1 (1986) (using strategic analysis to test the adequacy of existing institutions to deal with mass torts);
267. Jeff Strnad, The Taxation of Bonds: The Tax Trading Dimension, 81 VA. L. REV. 47 (1995) (analyzing the rules for tax treatment of bonds issued at a discount by examining the tax strategies that a sophisticated bond trader might employ).
268. p.s. Atiyah, supra note 125, at 369; see LON L. FULLER, THE LAW IN QUEST OF ITSELF 92-95 (1940) (arguing that to understand what judges will do, Holmes's bad man would have to "look at the law through the eyes of a good man"). Fuller assumes in this passage that the judge is free, at the moment of decision, to distinguish between good and evil on the basis of natural law. FULLER, supra, at 92-95. The clear implication is that the judge is never bound by rules of law to afford Holmes's bad man like treatment with good men in any respect. Fuller's assumption is inconsistent with the experience of judges and lawyers. If his assumption were correct, career criminals and organized crime would find lawyers and legal strategy useless. Fuller would probably be bewildered by the modern bad man's prescription for problems with legal authorities, which is to "send lawyers, guns and money."
269. See, e.g., WARREN ZEVON, Lawyers, Guns and Money, on EXCITABLE BOY (Elektra/Asylum Records 1978).
270. See generally William H. Wilcox, Taking a Good Look at the Bad Man's Point of View, 66 CORNELL L. REV. 1058 (1981) (acknowledging that Holmes's bad man theory of the law increases our understanding of the role of the legal advisor but cannot explain adjudication).
271. See FULLER, supra note 221, at 92-95.
272. Data from the study are reported in four articles. LoPucki & Whitford, supra note 40; Lynn M. LoPucki & William C. Whitford, Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies, 1991 WIS. L. REV. 11
273. [hereinafter LoPucki & Whitford, Venue Choice];
274. Lynn M. LoPucki & William C. Whitford, Corporate Governance in the Bankruptcy Reorganization of Large, Publicly Held Companies, 141 U. PA. L. REV. 669 (1993)
275. [hereinafter Corporate Governance];
276. Lynn M. LoPucki & William C. Whitford, Patterns in the Bankruptcy Reorganization of Large, Publicly Held Companies, 78 CORNELL L. REV. 597 (1993).
277. We used the term "entitlements" only in a positive, not a normative sense. See Ronald J. Mann, Bankruptcy and the Entitlements of the Government: Whose Money Is It Anyway?, 70 N.Y.U. L. REV. 993 (1996) (arguing that the concept of entitlements used in the law and economics literature is without normative force).
278. See LoPucki & Whitford, Venue Choice, supra note 223, at 29-33.
279. See, e.g., Michael Ansaldi, Texaco, Pennzoil and the Revolt of the Masses: A Contracts Postmortem, 27 HOUS. L. REV. 733, 835-36 (1990) (arguing that Pennzoil tested the waters in Delaware by filing its contract action there and then, based on a positive but lukewarm response, refiling it in Texas where a jury trial would be available);
280. LoPucki & Whitford, Venue Choice, supra note 223, at 34-38 (discussing differences in federal bankruptcy courts that have led to rampant forum shopping);
281. Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 CORNELL L. REV. 1507 (1995) (demonstrating from an analysis of outcomes in approximately three million federal cases that plaintiffs win 58% of cases overall but only 29% of cases in which venue is transferred).
282. See Kennedy, supra note 11, at 543 (examining the strategic considerations involved in the decision of a hypothetical judge and referring to judges' "strategies of execution"); LoPucki & Whitford, Venue Choice, supra note 223, at 30-33, 37-38 (arguing that the scheme of bankruptcy venue creates incentives for judges to favor venue in their own district and that some bankruptcy judges have responded to those incentives).
283. By a law-related system I mean the larger societal systems in which law operates, when viewed as goal-seeking. See LoPucki & Triantis, supra note 120, at 271-73.
284. See, e.g., Ronald J. Mann, Explaining the Pattern of Secured Credit from the Ground Up, HARV. L. REV. (forthcoming 1996) (manuscript on file with author) (explaining the pattern of secured credit based on the explanations of debtors and creditors as to their choice of forum);
285. Mark J. Roe, Corporate Strategic Reaction to Mass Tort, 72 VA. L. REV. 1 (1986) (analyzing the mass tort problem by examining strategies available to actors in the system).
286. Whitford and I concluded, for example, that the best means for dealing with forum shopping in the bankruptcy reorganizations of large, publicly held companies was to monitor the kinds of shopping that occurred and the reasons for them. Only when a pattern of forum shopping for system-unintended reasons developed was there a necessity for the system to respond. See LoPucki & Whitford, Venue Choice, supra note 223, at 44-51, 57-58.
287. To respond to this weakness in economic method, Denzau and North have proposed the substitution of shared mental models based on cognitive theory for what they call "the black box of the 'rationality' assumption used in economics and rational choice models." Denzau & North, supra note 78, at 5.
288. Lynn M. LoPucki, Strange Visions in a Strange World: A Reply to Professors Bradley and Rosenzweig, 91 MICH. L. REV. 79, 97-110 (1992) (arguing that economic analyses based on assumptions of perfect markets and zero transaction costs are of little or no value).
289. See, e.g., Denzau & North, supra note 78, at 5 (asserting that obtaining an understanding of mental models is "the most important step that research in the social sciences can make to replace the black box of the 'rationality' assumption used in economics and rational choice models").
290. See, e.g., Eisenberg, supra note 11 (arguing against basing economic analyses on the assumption of rational decisionmaking and describing alternative decisionmaking algorithms as "strategies"). But see Scott, supra note 11 (arguing against adjustments to consumer law to attempt to compensate for consumers' cognitive illusions).
291. See, e.g., Mann, supra note 229 (basing analysis on interviews asking borrowers and lenders why loans were or were not made on a secured basis).
292. See, e.g., CATHY S. GREENBLAT, DESIGNING GAMES AND SIMULATIONS: AN ILLUSTRATED HANDBOOK (1988);
293. CATHY S. GREENBLAT & RICHARD D. DUKE, GAMING-SIMULATION: RATIONALE, DESIGN, AND APPLICATIONS (1975).
294. See, e.g., LYNN M. LOPUCKI, PLAYER'S MANUAL FOR THE DEBTOR CREDITOR GAME (1985) (describing the environment simulated in the Debtor Creditor Game computer program).
295. E.g., LOPUCKI, supra note 53 (speculating on strategies effective in bankruptcy proceedings).
296. See supra notes 72-80 and accompanying text.
297. Galanter, supra note 157.
298. Id. at 149.
299. Id at 114-19.
300. Id. at 150.
301. Id. at 98-103.
302. Id. at 149. Probably the best example of a campaign of the type Galanter advocates is the attack of the NAACP on racial discrimination in the public schools. The campaign has been touted as a phenomenal success because it dramatically changed the written law. However, the persistence of racial separation in the schools suggests the possibility that the campaign changed legal rhetoric without changing practices. Strategies for maintaining racial separation in the schools prevailed over written law.
303. Id. at 141-44, 150-51.
304. Such an endeavor would not be without hazards. "We are told that when contact with the Romans taught Teutonic peoples that through the written page they could make and alter the law as well as record it, a great ferment resulted." Pound, supra note 26, at 24. Today, the ferment would doubtless be among the haves who benefit from the current, strategic state of affairs.
305. Id. at 36. See Roy, supra note 217, at 245 (advocating "the writing of readable regulations to make regulatory requirements comprehensible for the regulated community" and noting that "[g]enerally, state and federal environmental regulations are not written to be easily understood by the regulated community. Instead, regulations are written to withstand legal challenge.").
306. See articles cited supra note 81. For a bad example, see RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995) (advocating a system in which there would be only six rules: individual autonomy, private property, freedom of contract, protection from aggression against person or property, limited privileges in cases of necessity, and just compensation for public takings). Epstein would, for example, make the ownership of all resources depend on first "possession," id. at 59-63, ignoring the fact that "possession" is merely a legal construct used to summarize complex rules. LOPUCKI & WARREN, supra note 183, at 382-87 (deconstructing "possession");
307. see also Louis Kaplow, A Model of the Optimal Complexity of Legal Rules, 11 J.L. ECON. & ORG. 150 (1995) (arguing that there is an optimal complexity for legal rules).
308. See MINSKY, supra note 45 (attempting to explain the structure of the human mind by explaining the structure of a computer program that could mimic it).
309. That is, shared mental models are more likely than written law to address the ultimate issues of what parties can or cannot accomplish through litigation. Written law facilitates the sequential determinations of issues, supposedly tolerating whatever outcome emerges from the process. Ultimately, shared mental models tend to prevail, through the mechanism of whole-case realism. See supra notes 141-46 and accompanying text (describing whole-case realism).
310. These interactions may be real or projected hypothetically in the minds of the legal strategists.
311. But this is not always the case. Members of the community may be unaware of the pattern of outcomes their interaction generates. See Paul Brest, In Defense of the Anti-Discrimination Principle, 90 HARV. L. REV. 1 (1976) (discussing "racially selective indifference"); Clark, supra note 147, at 1241 ("I am certain that both particular legal scholars and the entire legal culture can follow intellectual patterns without being aware of them and that it is both possible and useful to discover those patterns.")
312. Walter O. Weyrauch, Taboo and Magic in Law, 25 STAN. L. REV. 782, 803-07 (1973) (documenting that seemingly neutral criminal sentencing procedures produce surprising racial disparities). Members of the legal community that process the bankruptcy reorganizations of large, publicly held companies were surprised by aggregate data showing management turnover in their cases to be almost universal.
313. See Lynn LoPucki & Whitford, Corporate Governance, supra note 223, at 723-37 (1993).
314. See, e.g., In re Hunter, 771 F.2d 1126, 1130 (8th Cir. 1985) ("Congress established a fraud exception to discharge 'to discourage fraudulent conduct and to ensure that relief intended for honest debtors does not inure to the benefit of the dishonest." "); Birmingham Trust Nat'1 Bank v. Case, 755 F.2d 1474, 1477 (11th Cir. 1985) ("Congress sought to discourage fraudulent conduct and ensure that relief intended for honest debtors does not inure to the benefit of dishonest ones.").
315. See 11 U.S.C. § 727(a)(2) (1994) (fraudulent transfers of property), 11 U.S.C. § 727(a)(4) (fraudulent testimony or withholding of information), 11 U.S.C. § 727(a)(5) (failure to explain loss or deficiency of assets), 11 U.S.C. § 727(a)(6) (failure to cooperate with the court), or 11 U.S.C. § 727(a)(7) (fraud in connection with another bankruptcy case).
316. See 11 U.S.C. § 727(c)(1) (1994).
317. A creditor usually is better advised to object to discharge of only the debt owing to the creditor, not to discharge of the debtor generally. Winning a denial of discharge rarely leads to the payment of the debt, because it is a rare debtor who has resources to pay a substantial portion of his or her debts, yet files bankruptcy. Settling an objection to discharge in return for payment is prohibited by Bankruptcy Rule 7041. 11 U.S.C.A. Rule 7041 (West Supp. 1995). The trustee has a duty to "oppose the discharge of the debtor" if advisable. 11 U.S.C. § 704(6) (1994). But neither the trustee nor the trustee's lawyer can be paid for litigating the objection unless there are assets in the estate from which to make payment. In approximately 95% of the cases, there are no assets. See U.S. GENERAL ACCOUNTING OFFICE, CASE RECEIPTS PAID TO CREDITORS AND PROFESSIONALS 1-2 (July 1994); see supra note 124.
318. A study of almost 1600 bankruptcy court files failed to discover even a single objection to discharge. TERESA A. SULLIVAN ET AL., AS WE FORGIVE OUR DEBTORS 265-66 (1989) ("We could not detect any cases of fraud, nor did we find any creditor objections to a debtor's discharge based on an allegation of fraud."). Their findings are consistent with my experience in representing debtors or serving as a bankruptcy trustee in approximately 400 cases.
319. Such settlements are usually said to occur "in the shadow of the law." See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
320. Supra note 40 and accompanying text.
321. See LoPucki & Whitford, supra note 40, at 142 (documenting that distributions to equity holders are the norm in reorganizations in which creditors receive more than approximately 15% of their claims).
322. See LoPucki, supra note 24, at 264-65 (finding that owner-managers retained full ownership and control of 9 of 12 surviving businesses and that only 4 of the 41 businesses studied underwent a change in ownership and control).
323. For example, members of the group may disparage the dissenter as having acted unprofessionally or irresponsibly and thereby interfere with the dissenter's other business relationships. A party's violation of settlement norms also may prevent the party from forming otherwise available alliances in the continuing litigation. LoPucki & Whitford, supra note 40, at 154-58.
324. See, e.g., Ellickson, supra note 50, at 668-73 (finding that cattle ranchers in Shasta County neither knew of their rights to compensation from neighbors for trespass by cattle nor wished to exercise those rights); Melissa L. Nelken, Sanctions Under Amended Federal Rule 11-Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 GEO. L.J. 1313, 1326 (1986) ("One half of the rule 11 opinions in the first two years came from two large urban districts . . . [that together] . . . accounted for only 7.8% of the federal court civil filings during the period beginning July 1, 1983 and ending June 30, 1985.");
325. HERBERT JACOB, DEBTORS IN COURT 87 (1969) (rate of garnishment of only 2.1 per thousand in Green Bay, Wisconsin, compared with 30.7 per thousand in Racine, Wisconsin).
326. Weyrauch states, "Disclosure of bias may be felt to be embarrassing. One of the many functions of law may be to minimize this embarrassment by giving a tranquilizing appearance of objectivity . . . while participating in a process that still has retained much of its ancient flavor of naked power." WEYRAUCH, supra note 216, at 244.
327. E.g., SIDNEY A. KEYLES, FORECLOSURE LAW & RELATED REMEDIES (1995).
328. Id. at 341. Many of the answers in FORECLOSURE LAW & RELATED REMEDIES are simply citations to appellate cases that recite multi-part balancing tests that are of virtually no use in learning what officials do in response to cases.
329. Bankruptcy judges work at the trial court level, but most write numerous opinions, hardly distinguishable from those of appellate courts.
330. See, e.g., In re Zwern, 181 B.R. 80, 86 (Bankr. D. CoIo. 1995) ("Some Judges review each case individually; others informally use a 'rule of thumb' of $1,200. Judge Matheson has held that a fee of $1,000 is appropriate for the average Chapter 13 case without any unusual, trouble-some or unique issues."); McCall v. Barnett Bank, 74 B.R. 666, 668 (Bankr. M.D. Fla. 1987) ("A rule of thumb used by many courts is that sale for less than 70 percent of value is avoidable under § 548(a)(2) [as a fraudulent conveyance]."); In re Access Equip., Inc., 62 B.R. 642, 646 (Bankr. D. Mass. 1986) ("If the option price amounts to 25% or more of the total list price, then the 'lease' is not one intended for security."). Informative as these rules are, because of the way they were derived, they are not legitimately part of the written law.
331. Explication of the law in lawyers' heads is unlikely to delegitimate written law. Official law already shares power with various systems of indigenous law. See Galanter, supra note 82, at 161-64. The identification of one more type - even one so powerful - is unlikely to bring the system down. The advantage in explicating the law in lawyers' heads is that it is sufficiently simple that lay persons could understand it. Law might become an effective communication between lawmaker and subject.
332. See supra note 22.
333. The reduction to writing may itself alter the "autonomous" law contained in shared mental models. The exploration of that possibility is beyond the scope of this Article.
334. See Weyrauch & Bell, supra note 9, at 377 (concluding that "oral systems do not address themselves to the needs of a mass society as such, even though they satisfy the needs of the smaller units that comprise a mass society").