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408.  Conventions

It's hard for any professional to question the conventional wisdom of his or her field. It's hard even to perceive the things one takes for granted.  The tendency is easiest to see in fields in which one has no emotional or financial investment, such as medicine. 

In Seed, Dave Munger writes: "placebos by definition have no medical effect."  He's paraphrasing this belligerent post by the MD blogger Peter Lipson, who claims to genuinely believe he's delivering "a serious smackdown."  But both pieces demonstrate that, according to standard ways of measuring things, placebos do have a measurable medical effect.   

What the bloggers mean is: placebos, by definition, have no pharmacological effect.  They're proceeding from the assumption that something made up to look like a pharmacological agent can have no medical effect through any mechanism other than pharmacology.  The fact that their own blog posts document the opposite isn't enough to make them question their assumption. 

Here's another example from a field other than law.  The University of Chicago econ prof John Cochrane posted on his website a deeply-felt  response to Paul Krugman's powerful New York Times Magazine piece about the obvious and comprehensive failure of economic theory to explain, much less predict, the real world:

Imagine this weren’t economics for a moment. Imagine this were a respected scientist turned popular writer, who says, most basically, that everything everyone has done in his field since the mid 1960s is a complete waste of time. Everything that fills its academic journals, is taught in its PhD programs, presented at its conferences, summarized in its graduate textbooks, and rewarded with the accolades a profession can bestow, including multiple Nobel prizes, is totally wrong.  Instead, he calls for a return to the eternal verities of a rather convoluted book written in the 1930s, as taught to our author in his undergraduate introductory courses.  If a scientist, he might be an AIDS-HIV disbeliever, a creationist, a stalwart that maybe continents don’t move after all.

It's hard not to feel for Cochrane, who sounds close to tears in this passage.  But can anyone think of any particular reason why everything that fills economists' professional journals and is taught in their Ph.D. programs can't be wrong?

My father was a geologist who got his Ph.D. in the early 1950s.  In his day, continents didn't drift.    When I was in college, cataclysmic events such as (snigger) asteroid collisions had nothing to do with the extinction of dinosaurs

Even Cochrane recognizes this point, though perhaps not consciously: his reference to "the mid 1960s" reveals his belief that everything taught before that time was a waste of time.  Why shouldn't everything after the mid 1960s equally be a complete waste of time?

I think it's likely, and indeed nearly certain, that if humans survive long enough intellectual historians will one day puzzle about the Chicago School the way we wonder today about the Greeks and their gods: did anyone actually believe this stuff?  Or was it just a convenient frame of reference, a prettily decorative screen self-consciously designed to deflect discussion from phenomena they could observe and describe but lacked the intellectual tools to explain?

Still, I was less convinced by Krugman's analysis (I'm sorry, but I just cannot accept his premise that economic theory can be "elegant," much less "beautiful") than by The Economist's take earlier in the summer.  The discipline's reliance on mathematics means that no economic theory can ever be more complex than than the mathematical knowledge of a non-mathematician.  And the world's more complex than that.

The Economist's piece provoked a less-emotional but even-more pathetic rebuttal from Cochrane's colleague, the Nobel Prize winner (always assuming the Economics Nobel should be classified as something similar to the real things) Robert Lucas, who basically argued that no one ever said that macroeconomics can explain, much less predict, the real world, so don't blame him. 

Naturally, he didn't follow his argument to its logical conclusion, which would involve renaming the prize the Sveriges Riksbank Prize in Speculative Bookkeeping in Memory of Alfred Nobel.  After the universities close down their economics departments the decent thing will be to allow people like Cochrane and Lucas to retire in dignity emeritus professors of accounting.

Anyway, there's a field even more trapped in a cocoon of conventional wisdom than economics, and even less capable of accommodating itself to the evidence of observable reality.  One might be tempted to say the law is conventional wisdom, except that it's so frequently unwise.

Law is the only field taught in our universities since approximately the time of Joseph Priestley in which arguments from authority are accepted as dispositive solutions of the problems studied.  But not only do we lawyers take them seriously, we regard them as the best arguments of all.

Law school exists to train students how not to think critically.  Instead, we're taught to cherrypick the catalogued sayings of various poohbahs and rearrange them to make it seem plausible that we should get whatever we want.  The last thing you want to do is examine the validity of authority that supports your side.

In law, knowledge is purely instrumental, of value only insofar as it's useful for the task at hand.  If you challenge the authority cited by the other side, it's only in an effort to displace it with your favored alternative slab o' conventional wisdom.  (Lucas and Cochrane are lawyers, though they might not know it.)

Legal authority isn't subject to challenge because it's demonstrably wrong, incongruent with observable reality, or laughable.  Indeed, none of those features is considered a defect in legal doctrine.  Doctrine can be challenged only on the ground that it's contrary to other legal authority.  And what makes the alternative legal authority preferable isn't its inherent quality, a concept that doesn't even exist in the law, but in its projected usefulness.  The new doctrine can be laughable, too--that doesn't matter, because we've been trained not to laugh.

Reader Comments (2)

Examples would help, especially for the part of your audience which is not familiar with the details of practicing law and not familiar with your past writings.
November 15, 2009 | Unregistered CommenterPrakhar Goel
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April 1, 2010 | Unregistered CommenterStephanieHampton23

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