Law As Engineering: Thinking About What Lawyers Do takes a creative approach to law; instead of seeing law as closely associated with philosophy or economics, David Howarth points to legal design. Most attorneys aren’t involved in litigation. Like engineers, they are often hired to provide services not in the abstract but for particular purposes, mostly to facilitate transactions or deals.
Law firms sometimes design innovations, such as the ‘poison pill,” which can then be marketed to their clients or used to attract new ones. Howarth cites examples of Silicon Valley law firms investing their own money in start-ups they advise and goes on to discusses examples in family law and government where wills are designed to meet client goals and withstand legal challenges and regulations are crafted to formalize powers and obligations.
Howarth argues that for scientists, understanding is the end goal, whereas for engineers understanding is a means to an end, the end of making useful things. Indeed, when asked if they would rather invent something useful or discover new knowledge, engineers preferred invention, whereas scientists preferred discovery. Unlike engineers, the problems lawyers tackle involve relationships between people, not concrete. Systems theory is useful in both. Legal devices that ignore conditions are unlikely to work.
After teasing out his analogy, Howarth explores its implications on professional ethics, research and teaching. He discusses the fall of Lehman Brothers, Goldman Sachs and the big short and asks if we can learn something from the longstanding concerns of engineers for safety, public welfare and “many hands” situations where responsibilities are widely dispersed. Citing how engineering has evolved, Howarth opines that where lawyers lacked the expertise necessary to understand the impact of risk-multiplying devices such as synthetic CDOs, that “should have been a spur to change, not an excuse for inaction.” Like engineers who had to develop an understanding of human behavior to ensure safety, lawyers should have thought out the consequences by testing legal prototypes before widespread adoption.
Does the new vision of law work? Yes, I think it does offer new insights and much might be borrowed from the engineering profession. It could also change the type of students attracted to law, the self-image of the profession, how public policy debates are framed and where to turn for allies. The financial crash provided a massive example of how lawyers can do harm. Howarth concludes:
to adopt the guise of engineers without also adopting the ethical standards that apply to them would be opportunistic, callow and self-serving. Lawyers can do better than that.
Let us hope attorneys build not only on the engineering analogy but also on Howarth’s ethical advice.