75 Pages Posted: 12 Feb 2010 Last revised: 25 Jun 2011
Date Written: February 11, 2010
This article addresses that attribute variously called good, sound, seasoned, or mature judgment. How do we in the academy describe this almost ineffable quality, much less teach it? To be clear, this is not the usual legal or philosophical task of sitting in retrospective judgment, as in the attribution of fault or blame, but instead the process of prospective decision-making. The question is who is capable of making mixed law and business judgments. We can model these as the overlap between pure business judgments and pure legal judgments in the circles of a Venn diagram. The practical implication is that businesspeople are not generally competent to make the legal judgment, but not inclined merely to trust the mixed decision to lawyers. Lawyers, on the other hand, are usually successors to a particular conceptual method of organizing the world, and members of a closed discipline; they are usually not business people. My thesis is that the very nature of a judgment, however, requires that it occur privately in a single conscious mind, no matter how the judgment is ultimately influenced, communicated, shared, or adopted by others. The implication for lawyering and legal education is that some of the old canards about leaving business judgment to the business people must fall away.
There are three sub-themes. First, there is no "collective judgment." Practical judgment does not occur in some communitarian ether, but in a mind. The closest we have come to a science of judgment is the exploration of consciousness and cognition, both of which remain tough nuts. There is still no scientific explanation of consciousness; it is subject to what Thomas Nagel referred to as the "explanatory gap." It is fair to say that if there is anything to the idea that consciousness is irreducible, judgment must also be. Indeed, an inquiry into prospective judgment overlaps traditional questions whether anything actually constrains a judge's retrospective decisions. It seems intuitively correct, when we think about judgment not within the adjudication context but as a relatively mundane and prospective exercise, that our judgments are neither pre-ordained by some kind of formula nor wholly random. We need to assess rule following in the non-adjudication context, and for that I turn to work in cognitive science and the law.
Second, the judgment in the overlap is interdisciplinary. Business judgment depends far more on the argument from merit, versus legal judgment, which depends far more on the argument from authority, and a particular kind of authority at that. What, then, does it means to be an expert in the overlap of the diagram? We need to define a new professional discipline: the field of metadisciplinarity. Being a metadisciplinarian takes us to a higher order skill: it means being expert in the making of interdisciplinary judgments. My experience was that successful business people and business lawyers frequently made judgments in which they weighed and selected among the views of experts in different disciplines, even those they were not expert in any of them.
Third, metadisciplinarity recruits such basic cognitive abilities that the task of learning it is never going to be easy. It requires that its practitioners understand that human beings are "meaning-making machines," employing what the cognitive scientists call "cognitive integration" or "blending" (of which metaphor is a prime component). Metadisciplinary lawyers will not merely understand the fact of cognitive blending, but also approach it empathetically.
Keywords: Business Judgment, Interdisciplinary, Metaphor, Analogy, Cognitive Science, Empathy, Blending, Law
JEL Classification: D81, K20, K22
Suggested Citation: Suggested Citation
Lipshaw, Jeffrey M., The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity (February 11, 2010). Seton Hall Law Review, Vol. 41, No. 1, 2011; Suffolk University Law School Research Paper No. 10-06. Available at SSRN: https://ssrn.com/abstract=1551243