Carnegie Mellon University – CEDM Annual Meeting Pittsburgh, Pennsylvania May 2011

1. Law as a “Complex System”:Elements, Traits, and QuestionsAbout How Americans Set Standards and Resolve Disputes Carnegie Mellon University – CEDM Annual Meeting Pittsburgh, Pennsylvania May 2011 Michael Dworkin, Professor of Law & Director Institute for Energy and the Environment Vermont Law School MDworkin@vermontlaw.edu 802-831-1319

2. Overview • We have a few minutes to think and talk about a truly complex system: • our rules for what behaviors we will enforce or ban, encourage or deter and how we resolve our disputes about society’s standards. • I suggest we divide our time into 3 parts: • 1) some “nuts and bolts” facts about America’s legal system • 2) some observations about law as a complex system • 3) mutual discussion about the aspects that interest you.

3. Presentation Structure • Overview of Complex Systems • Purpose and Functions of the System • Structure and Mechanics of the System • Dynamic Operations and Practices of the System

4. What is a complex system? • A Comprehensive response to climate change impacts requires a complex system. ~ • Our legal system is the most complex social structure ever created by human minds.

5. Traits of Complex Systems • Many semi-autonomous agents • Non-linear response changes over time • Non-linear response to stimuli/feedback • No apparent persistent equilibrium • Memory: Precedent and ‘heaviness of existing reality’ • Emergence –new facts affected, in non-linear way, by past facts • Self organization • Robust and adaptable

6. Problems in Understanding the Legal System • Everyone is affected by the law • Few specialize in it • VERY FEW specialize in law as a TOTAL system, rather than as a set of specialties. • Professionals and outsiders have differing views • Academics: “The law is a seamless web” • Popular novelist: “If the law says that, Sir, the law is an ass.” Charles Dickens

7. What is the social need that we are trying to address ?

8. Law’s Purpose and Goals • Organic systems survive when they meet the challenges of their environments. • The environment of law is human society, over time and over space. • The challenge is to usefully and efficiently • 1) define the behaviors we will deter and those we will encourage, and • 2) resolve disputes among people

9. Dual Purposes • “A legal decision has, as it were, two purposes. The first is to resolve a dispute between parties, The second is to offer guidance as to the likely resolution of future disputes before the same tribunal. This, latter, purpose, we call precedent.” Abraham Lincoln Commenting on the US Supreme Court’s “Dred Scott decision” that “a black man has no rights that the Courts of this nation must affirm.”

10. The US Legal Structure • The Constitution is the supreme law of the land. • It sets up a three part federal structure: • Congress makes laws • Courts interpret them • Executive ‘executes’ (implements) them Partly by actions/orders, partly by rules and agency actions State structures largely parallel federal; but at a more granular scale. Agency actions have become a ‘4th branch’ of gov’t

11. Federal Courts are structured in a filtered hierarchy – distilled from the world of law beyond the judiciary • Cops on the beat make hundreds of millions of decisions • Agency decisions resolve many millions of disputesper year • State courts address a couple million disputes per year • Hundreds of District Courts monitor discovery in tens of thousands of cases and use trials in thousands of cases to determine facts and apply law. Agency fact-findings parallel these • A dozen Courts of Appeal review (without fact-finding) a few thousand District Court decisions and several hundred federal agency rule makings • One Supreme Court reviews (without fact finding) a couple hundred carefully selected Court of Appeals decisions

12. The District Court Process 1 • Criminal and civil cases • Private-law and public-law cases • Seldom reaches full-trial, but is always compared to it.

13. The District Court Process 2 • Begins with a complaint, stating • 1)relevant facts and 2) law and 3) desired remedy • Is followed by a response, denying or accepting facts, citing law, and often moving for dismissal for failure to state claim • If case is not dismissed, discovery follows • In discovery, the parties gather information from each other. Designed to save trial cost, has become the prime cost driver. It often leads to settlement, or • Motion for Summary Judgment (without trial) claiming that “‘no genuine issue of material fact’ and ‘law favors moring party.’”

14. The District Court Process 3 • Summary judgment usually resolves cases; if not, trial follows. • The process focuses on introducing evidence (usually through witnesses) and testing credibility through ‘the crucible of truth’ --cross-examination • The purpose of trial is to: • 1) resolve disputed facts • 2) apply relevant law • 3) determine proper remedy.

15. The District Court Process 4 • After a trial or summary judgment, court issues a decision and judgment. • If losing party obeys, fine. • If losing part ignores it…what happens? • Winning party can accept the resistance, or seek an order to compel • If that is ignored, party can invoke the armed power of the government by asking court to order sheriff or marshal seize property or compel obedience

16. What is the Essence of “A Government” ? • Traditional definition: • A government is an institution with a monopoly on the legitimate use of deadly force within a specified geographic territory. (Max Weber 1918)

17. Mode of Legal Decision 1) Parallel Vocabularies for process: • a) Vocabulary of Hegelian Dialectic: Thesis, Antithesis, Synthesis • b) Vocabulary of Law: Petition, Response, Decision 2) Triangular Structure: Parties who propose, judge who independently decides 3) Parallel vocabularies for resolution: • Philosophy: b) Law • What is reality ? What are the facts? • What is justice ? What is the law? • What is to be done? What is the remedy ?

18. The Appellate Process 1 • Appellate courts review determinations of fact with high deference to fact finder • Appellate courts re visit determinations of law with little deference • Appellate courts re visit remedies with high deference. • The goal is to catch major errors and guide future, not to make all cases right. • To guide future and advise parties, appellate decisions are routinely written up and published and are readily searchable….thus they become powerful precedents

19. Appellate Process 2 • Because of its focus is law, not facts, appellate courts do not use trials, • Instead, they review briefs (legal memos) from the parties who were in the original case and, rarely, advisory briefs from interested outsiders – and they rely on short oral arguments, typically 15-30 minutes for each side – plus, vitally, review of the record of the case below.

20. Hierarchies of rules Constitutional Law trumps conflicting Statutory Law, which trumps conflicting Regulations, which trumps conflicting Orders and decisions. The Supremacy Clause of the constitution (and the Civil War) make clear that federal law (usually) trumps conflicting state law (see pre emption, below). Query- Who decides what is ‘conflicting” ? Answer - Article III of Constitution creates judges and says that they decide what the law is (Marbury v. Madison), over-ruling legislature on Constitutional issues, deferring to legislature on statutory ones, deferring to bureaucrats on regulatory ones.

21. Pre-emption • Federal law trumps state law only when Congress clearly meant it to. What are the indicia of Congressional intent to pre-empt? • Explicit statement of intent to pre-empt • Conflict in practice; i.e., impossibility of mutual compliance • “Field pre emption” – scope and scale of Congressional scheme imply an intent to occupy the whole field of a subject with comprehensive regulatory structure.

22. Standards for Decision • A spectrum of certainty: • The usual civil standard: “more likely than not” • The usual criminal standard: “beyond reasonable doubt” • Multiple Intermediate standards: E.g., “clear and compelling evidence” • Compare scientific treatment of probability: • For example, the discussion of certainty in the Inter-Governmental Panel on Climate Change (IPCC) Assessment of green house gas potentials.

23. Law Does Not Equal Nature • Law is a construct, an artifact, a creation of humans making choices over time; i.e., it is ‘artificial’ • Nature is pre-human, post-human, wider than human – • Examples: • “I accept the universe” Margaret Fuller. • King Canute’s prohibition of a tidal rise was ineffective

24. Are people uncomfortable with lawyers? Why are there lots of derogatory jokes about lawyers and (relatively) few about engineers? • People are inherently uncomfortable about uncertainty – • Engineers confront the uncertainty of natural systems, and respond by reducing them with (relatively) predictable hardware tools • Lawyers confront the uncertainty of human desires and respond by creating general rules which become more and more specific when put into application • A single professional label (and training model) covers three roles: • advocacy, adjudication and policy decisions. Public sees a blurring…. a conflict..a dissonance… among those roles. • C.P. Snow and “The Two Cultures” speech of 1950s • American law worked with a language of ‘rights privileges and responsibilities” from 1770s to 1970s; since 1970’s it has worked with a dominant rhetoric of “costs, benefits, and expected returns”.

25. What Behaviors Do We Promote and Deter ? • Not all social standards are laws. • Legal rules do NOT equal social mores. • Some things are binary – prohibited or required • Other things are gradients: incented or deterred

26. How do we know if we understand a system? • The usual test is our probability of accurate prediction (but, consider Hobbes’ query about tomorrow’s sunrise) • Emergence is the stress-test for prediction. • Large, global, complex patterns can emerge from relatively simple interactions. They challenge our ability to predict. • Sidelight: The emergence patterns for the common law (English, et. al.) are different from those for the civil codes (Napoleonic, etc.).

27. Are Patterns of Human Behavior Predictable? • Isaac Asimov: Hari Seldon and the Foundation chronicles. • Leo Tolstoi and “War and Peace” • Gallup Polls and voter behavior

28. Are Legal Decisions Predictable? • How do we discern patterns? • 19th Century, Digests and Shepardizing. 20th Century, West Law. • Investors and public utility decisions on electric utility earnings. • Trillions of dollars of commercial contracts. • But…look at the OJ Simpson murder decision and recognize our predictions fail at times

29. The Concept of “Penetration” – Will Social Behaviors Change When the Law Does ? • Obedience of stop signs and red lights – Thurman Arnold, Yale Law, 1920s • Abortion clinics: Safe Havens or Bomb Targets ? • Desegregation .. One lunch counter at a time, or “all deliberate speed” ?

30. How Does Law Demonstrate The Aspects of a Complex System ? • Lets talk……