Law as Engineering

Thinking About What Lawyers Do

David Howarth
University of Cambridge, UK

Edward Elgar
Cheltenham, UK • Northampton, MA, USA
50 Law as engineering

is not likely to intervene, and draft statutes. That seems a very disparate set
of functions. How can it be that a single profession is interested in them
all? Is there anything that binds them together? It is to that question which
we now turn.

3. Law as engineering
What is the service that lawyers offer their clients? Lawyers themselves
tend to think in ternas of ‘advice’. Clients want to achieve something -
restructure a debt, float a company, securitise assets, buy a house, provide
for relatives after they die, or bring in a new government policy - and
lawyers advise them about how to do it. But ‘advice’ does not fully
capture what lawyers offer. Clients do not write contracts or leases or
statutes on the advice of lawyers. Lawyers write them. Indeed, contracts,
leases and statutes are often difficult for clients to understand without
assistance. Their importance lies, for clients, in what they accomplish, not
in their inner workings. Lawyers’ advice comes in the form of informing
clients about what it is possible or not possible to achieve (or possible or
not possible to achieve easily). It is about the risks attached to the various
courses of action lawyers can facilitate, not about how that facilitation
works.
A better way of characterising the situation is that lawyers make
things for their clients. Clients want things that help them to achieve
their ends, and are interested in their effects and risks, but they are not
particularly interested in the detail of how they work. Clients, from
banks to governments, want to change their circumstances and want to
put in place arrangements that bring about those changes, but specifi-
cally how those arrangements work is left to lawyers. Lawyers maintain a
stock of standard techniques and precedents that help them achieve ends
that clients repeatedly want, but they also on occasion develop new tech-
niques, or new combinations of techniques, to meet new requirements or
new circumstances. Even standard-looking jobs are potentially different
from the norm and providing a good service often involves choosing
existing techniques very carefully to suit the precise requirements of the
client.
The job lawyers do, from corporate finance to legislative drafting, of
making things for clients is arguably the most important, and it is probably
the most frequent, job they have. But it is a job that is poorly understood
outside the world of law firms and government. It is difficult from the
outside even to see it as a single type of activity. As information technol-
ogy radically changes economic relationships and different lawyers come

51
52 Law as engineering Law as engineering 53

to serve very different clients, some people ask whether there is any sense parallel). These different types of classification can cross-cut to produce
in which lawyers are still members of the same profession.1 sub-specialisms, such as the design of nuclear power station safety systems
There is, however, a way of explaining what lawyers offer that both or the sustainability of the materials used to make aircraft. Occasionally
grasps and unifies much of what they do. It is to see their job in terms of debate breaks out about whether a new offshoot is genuinely ‘engineering’
a much more easily grasped type of job, a job that also involves making or something else (for example there was for a time a fierce debate about
things for clients. That job is that of the engineer. the status of software engineering), 3 and engineers, especially in Britain,
have often been concerned about the use of the term for other types of job,
especially non-graduate technical trades.4
ENGINEERS All engineers, however, have in common a commitment to one central
activity - making useful things. The Institution of Civil Engineers’ Royal
Just as there are many kinds of lawyer, there are many kinds of engineer. In Charter refers, rather grandly, to engineering as ‘the art of directing the
historical terms, it is more than arguable that modern engineering began in great sources of power in Nature for the use and convenience of man’, a
the military,2 but by the end of the 18th century, civil engineering, which is phrase usually attributed to Thomas Tredgold, an early writer of engineer-
to say not military engineering, was developing as a profession. As the 19th ing textbooks. The philosopher Michael Davis, after long observation of
century progressed, civil engineering further specialised and formalised engineers, offered a rather more straightforward statement that engineer-
- spinning off first mechanical engineers and naval engineers (curiously ing is ‘the practical study of how to make people and things work better
known as ‘naval architects’, to distinguish those who design ships from together’.5 In other words, engineering is about the creation of artefaets
those who carry out other engineering tasks at sea) and later mining, elec- that get jobs done.
trical and chemical engineers. Specialisation continued throughout the fol- The central point of these ways of characterising engineering is that
lowing century and continúes to this day. Many dozens of specialisms have engineers are committed not just to understanding the world but to chang-
developed with their own professional bodies and journals. Some special- ing it. This is the central feature of engineering that distinguishes it from
isms are based on the type of object produced. Examples inelude building science. For scientists understanding nature is important whether or not it
bridges, roads or power stations, manufacturing chemicals, making indus- leads to ‘directing [its] great sources of power’. For engineers, understand-
trial machinery, aircraft, communications systems or medical equipment, ing is a means to an end, the end of making useful things. Another way
devising new silicon chips and developing nano-machines that work at of expressing the difference between engineering and science is that engi-
molecular level. Other specialisms are based on the type of effeets the engi- neering creates new objeets that nature would not have produced by itself.
neers are concemed with, for example safety, security, resilience, or sus- Engineering is inherently concerned with the ‘artificial’, in the literal sense
tainability. Others still are based on particular stages of engineering, such of making things by skill, but also in the extended sense of ‘unnatural’. 6 As
as design or materials, or on particular work methods, for example control a leading engineering textbook says ‘Scientists try to understand nature.
engineering or concurrent engineering (organising many types of work in Engineers try to make things that do not exist in nature.’7
The difference between engineering and science operates not just in the
1
abstract but in how engineers and scientists think about themselves. Davis
E.g. H.W. Arthurs, ‘A Lot of Knowledge is a Dangerous Thing: Will the
Legal Profession Survive the Knowledge Explosión?’ (1995) 18 Dalhousie Law
Joumal 295-309, Herbert Kritzer, ‘The Professions Are Dead, Long Live the
Professions: Legal Practice in a Post-professional World’ (1999) 33 Law & Society 3
See e.g. Davis (1998) chapter 3.
Review 713-59, Andrew Francis, Law at the Edge: Emergent and Divergent Models 4
See e.g. Helen Marshall, Lynne McClymont and Lucy Joyce, Public
of Legal Professionalism (Famham: Ashgate, 2011) at 3ff. Attitudes to and Perceptions of Engineering and Engineers (London: Royal Academy
2
E.g. Michael Davis, Thinking Like an Engineer: Studies in the Ethics of a of Engineering, 2007).
Profession (Oxford: Oxford U.P., 1998) 9-11. Another point of view is that the 5
Davis (1998) atix.
origins of engineering are in water and sewerage - think, for example, about the 6
See Herbert Simón, Sciences of the Artificial (Cambridge, MA: MIT Press,
aqueduets and the cloaca maxima of Rome. (Or in both - Scott Boorman points 1996) at 4-5.
out that the Román engineer Frontinus wrote a treatise on stratagems and a treatise 7
Y.C. Fung and P. Tong, Classical and Computational Solid Mechanics
on aqueduets!). (Singapore: World Scientific, 2001) at 1.
carried out a series of informal surveys of mixed groups
Law as engineering
of scientists 55 and
54 Law as engineering
engineers who were working together in the same institution, sometimes
on the same projects. He asked them conclusión whether
was perhaps even they more radical, thatwouldit is in the act ofrather
designing invent
something useful or discover new knowledge.
new useful things that we come to understand the world.10 Scientists overwhelmingly
preferred discovering new knowledge. Engineers
But more than that, many engineers even more
claim that engineering is not merely overwhelm-
ingly preferred inventing something useful. 8 applied scienceEngineers use
because it generates its own forms of knowledge, knowl- science but
engineers are not scientists. More importantly, scientists are not engineers. edge about ‘how to make people and things work better together’. In
Engineers are not even ‘applied’ scientists, in they claim
particular, thethat it generates senseknowledge about of engineering thoseitself. who
merely take advances in theoretical knowledge They insist, and apply them
with Vincenti, that engineering knowledge is not just ‘know- to practica!
problems. Engineers do ‘apply’ science some how’,of a set of unspoken
the practices,time,
but knowledge forthat can be stated
example clearly, using
the results of scientifíc investigations into the properties of
tested and transmitted. Herbert Simón carne to the same conclusión, and materials when
considering which materials to use, andindeed insisted scientifíc
that knowledge about the advances
process of design unifiescan a large prompt
engineering advances, for example the discovery of a new
number of disciplines, starting with engineering but going beyond it to material might
prompt engineers to find a use for it. The relationship
inelude human behaviour in fields such as town planning. Simón saw between
11 engineering
and science, however, is not simple. For thatonewhat unifiedthing, these fields was since
that they were engineers
concemed with are human inter-
ested in making objects that work, it is often a sensible
beings creating something new, and that one could engage in organised approach for them
not to search out new materials and processes but to look
study of how that creation happened, and of how created objects behave, a for new ways
of using oíd ones. For another, it is mistake
‘science to That science
of the artificial’. believewould, unlike that the science theof nature, intellectual
movement is always from science to engineering. The
automatically incorpórate human purposes and forethought. contrary
12 movement
is also important. Engineers frequently find that they have
For a time controversy surrounded whether the process of creating new reached the
limits of scientifíc knowledge about what they are working
useful objects, or ‘design’ in its most general and least aesthetic sense, with. That
might happen in at least two ways. should be First, engineers
taught to engineers. Herbert Simóndeal described how, with as academic complex
interactions between different processes, engineers redefined themselves as fully part of the university rather than understand
whereas scientists, to
those processes clearly, will often have radically at trade schools,
as instructors isolateddesign almost fell them. For
out of the curriculum of engi-
neering purposes, it is important not just engineeringto degree courses. understand
13 how processes
Design was too often thought of as ‘intel- and
materials behave in an abstract or experimental world but how
lectually soft, intuitive, informal, and cookbooky’ rather than, as appeared they behave
in the manifold complexity of the real proper for world.
a real university Second, engineerstough, analytic,
discipline, ‘intellectually can for- reach
the limits of science for the more fundamental 14 reason that
malizable, and teachable’. Even the pioneers of its re-establishment in scientists have
simply not studied or have not succeeded in understanding
the university curriculum, such as the Cambridge engineer Gordon Glegg, the processes
or materials the engineer would like to use. sounded The
sometimes reticent about theirneedsown efforts.of‘At first sight engineers
the idea to
know more about a particular field or a of any rules specific question can in
or principies being superimposed on the creative mind seems this way
often set science’s agenda. For example, inmost likely to a hinder thanclassic
to help,’ Glegg wrotestudy, in 1969, before,
Walterhowever, Vincenti
demonstrated that advances in the engineering
continuing, ‘but this is really quite untrue in practice. Disciplined think- preceded
of aircraft wings
scientifíc understanding of how airfoils ing focuseswork inspiration rather than and blinkers it.’ 15 Largely
engineers’
thanks to figures questions
about them prompted subsequent scientifíc progress.9 * Herbert Simon’s such as Simón, Vincenti and Glegg, the systematic study of creation, the

science is applied engineering rather than the other way round. See Subrate
Dasgupta, Technology and Creativity (Oxford: Oxford U.P., 1996).
8
Davis (1998) at 15-16. 10
Simón (1996) at 164.
9 11
Walter Vincenti, What do Engineers Know and how do they Know it? Simón (1996) at 138.
12
(Baltimore: Johns Hopkins U.P., 1990) chapter 2. One might go even further and Simón (1996) at 138.
13
point out that the methods and thought processes of scientists who make scientifíc Simón (1996) at 111.
14
breakthroughs look far more like those of engineers making new inventions than Simón (1996) at 112.
15
those implied by the classic hypothetico-deductive method, and that therefore Gordon Glegg, The Design of Design (Cambridge: Cambridge U.P., 1969) 1.
consist 56
of inputs, outputs and a process that connects the two. They
Law as engineering Law as engineering 57
connect to other systems by providing an input for those other systems
or by taking their output as an input. One can conceive of systems as a
study of engineering design, now forms a central part of both engineering
network of inputs and outputs or as a hierarchy in which each system
teaching and engineering research, forming a link between engineers in all
provides inputs for higher levels of the overall system (super-systems) and
specialisms.
is made up of components that provide it with inputs (sub-systems). The
boundaries between systems or between systems and their super-systems
and sub-systems are more an analytical matter than a physical one, since
they TECHNICAL
can OBJECTS be
often drawn in different places for different purposes, but
engineers tend to choose as boundaries the places at which the flows of
inputs Theandexact división of labour between engineers
outputs are and otherat people whotheir are minimum.20 Useful objects are themselves
systems, concerned
but with they
the creation ofalso objects, suchform as artists andparts architects, is not
of bigger systems, some of which they are
intended alwaysto clear. One view
change. is that engineers
They are concerned can with all aspects
also of be broken down into sub-systems, each
with objects
their except the own aesthetic. Some inputs, engineers would claim, however, that and
processes outputs. Designing a useful object
requires they are also concerned
understanding with the ataesthetic and that
each the difference oflies only these levels and of the relationships
between them. in the priority they give it compared to the other functions of the object.
The Another,
process related, view of is that engineers
design differ from canarchitects inbe their atten- described in general terms as ‘the specifi-
cation tionofto mathematics and
measurablesciences, their concern
goals, with all the functions
objectivesof an and constraints for the design; the
16
object and their organisational
conceptualization and abilities. parametrization of alternative candidate designs
that A more general or
meet way of answering surpass the question ofspecifications;
what engineers do the analysis and ranking of design
alternatives; as opposed to
and, other creators of objects
finally, is that engineers
the make ‘technical’
selection, implementation and testing of the
17
most objects, physical objects that
preferred fulfil ‘technical’
alternative.’ 21 functions.
Although By ‘technical’, there is no universal theory of
how engineers
the originally
processtended to mean bestthat the object changed the physical
works, and there are competing views about each
step, world either by converting
engineers claim energy fromthat one form to another enough(machines) or is known about what works and what
18
matter from one state to another (apparatus).
does not work that the process itself can be researched and taught. But engineers extended
their scope of activity to inelude the processing of information and so now
Specification inelude within ‘technical’ anything (or at least any physical process) that
changes the informational state of the world (that is, ‘devices’).
The process itself starts with a clarification of what difference the eventual
artefact is required to produce. The design needs to solve a problem the
client
THE PROCESS OF ENGINEERING
actually has, not
DESIGN some other problem. Extended interaction with
the client
Engineers normallyis now describe usually
the design process necessary to
as they often describe elicit a clearly defined and measurable
brief. Engineers are 19 taught that
much else, in terms of systems. Systems analysis can be used for many clients very rarely have a precise view
of what they want and
purposes, but its anchoring in engineering, in the task of changing the state indeed might have self-contradictory views, away
from which
of the world andthey will
not just understanding oftenis important.need
it better, Systems to be drawn. 22 Eliciting all of the client’s
objectives is particularly important, since hidden agendas make success or

16
Davis (1998) at 12.
17
Pieter Vermaas, Pieter Kroes, Ibo van de Poel, Maarten Franssen and Wybo
Houkes, A Philosophy of Technology: From Technical Artefacts to Sociotechnical
20
Systems (Morgan and Claypool, 2011) at 21. Pahl et al. (2007) at 28. See also e.g. Lars Skyttner, General Systems Theory:
18
Gerhard Pahl, Wolfgang Beitz, Jórg Feldhusen and Karl-Heinrich Ideas and Applications (Singapore: World Scientific, 2001) at 60.
Grote (Ken Wallace and Lucienne Blessing, translators), Engineering Design: A 21
Andrew Sage and William Rouse, Handbook of Systems Engineering and
Systematic Approach 3rd edition (London: Springer, 2007) at 30. Management (London: John Wiley, 2011) at 508, Pahl et al. (2007) at 51-53
19
See e.g Pahl et al. (2007) at 29. 22
Sage and Rouse (2011) at 509-10. Cf Pahl et al. (2007) at 53.
58 Law as engineering Law as engineering 59

failure a kind of reputational lottery. It is also important, where the client Analysis of the Problem
has múltiple goals, to elicit the relationships between those goals - their
hierarchical arrangement or the acceptable trade-offs between them.23 For problems of any complexity, engineers will often attempt to break
The constraints within which the project has to work also have to be down the problem as presented by the client and supplemented by the engi-
clarified and listed as exhaustively as possible. Many of the constraints neer into a comprehensive set of sub-problems. One method is to look for
for a project will also appear as goals or objectives - for example cost a set of sub-problems that cover the whole of the main problem but which
constraints will appear as objectives about máximum costs, timescale con- are as far as possible independent of one another, a procedure sometimes
straints will appear as objectives about timing and so on. But there are also called the method of factorisation.26 Other methods are less concerned
constraints the client might not have in mind. One such constraint is the with comprehensive coverage but stress the identification of those sub-
issue of physical feasibility. The engineer knows to check, where the client problems most relevant to finding solutions. For example, the method of
might not, that the intended effect is not impossible, either because, crudely, ‘backward steps’ starts with the goal and traces backwards all the steps that
it would viólate known physical laws, or because, although not physically could lead to it, a procedure which should generate a tree of sub-problems
impossible, it requires some other problem to have been solved that has that have to be solved before one can arrive at the goal. Or one could
not yet been solved. In Glegg’s phrase, the former relates to whether the start with an initial or a previously suggested solution and move forward
project is ‘intrinsically impossible’, the latter to whether it is ‘relatively towards the goal until the solution fails, the method of forward steps. 27
impossible’.24 Another important constraint that might not appear in the An important aspect of the way that many engineers think about prob-
client’s set of objectives is safety. Regulatory safety standards, for example, lems is that they attempt to abstract away from them before turning to
opérate as an important constraint. concrete solutions. They do this mainly to make sure that they are not
Another set of constraints (or objectives) that might be incorporated looking for the solution in the wrong place, but there is also an idea that
right from the start concern the manufacture of the object once it is abstraction helps by distracting the engineer as far as possible from focus-
designed. The traditional approach to design assumed that design and sing on specific solutions, so opening up the range of solutions eventually
manufacture were different problems, and that after it had been devised considered (‘solution neutrality’ as it is sometimes called). 28 In particular
the designed object could just be ‘thrown over the wall’ to manufacturers. they look at the problem functionally, in terms of the effects the relevant
But that approach led to obvious problems both in terms of feasibility systems and sub-systems have on states of energy, material or informa-
and cost of manufacturing the object. A solution is to build in constraints tion, so that they can ask what the desired effect is in more abstract and
and objectives about manufacturing right from the start, so that the whole systematic terms.29 For example, in traffic engineering the solution to an
process of design is integrated and so less prone to failure and having to accident problem might not he in the layout of the road in the immediate
start again. Indeed, the same approach can be extended to build in other vicinity of the accidents but in the mix of traffic entering the area or the
sources of later potential difficulty such as marketing and consumer configuration of the public transport network that generates that mix.
experience, all of which can be tackled concurrently with design and manu- If engineers concentrated only on what effects different interventions at
facturing problems.25 The use of these concurrent methods often requires the accident site might have, as opposed to looking at what the transport
the creation of multi-disciplinary teams, with engineers working with system does more generally, they might miss the point that a better solu-
experts in other fields. tion for the accident problem might be some form of traffic regulation or
management or the extensión of a public transport network. Of course,
analysis of this type might reveal that the better solutions exist at levels
of the system so far above that at which the engineer is asked to intervene
23
Sage and Rouse (2011) at 510-11. Expressing these relationships
quantitatively can be complex. See e.g. Nadia Nedjah and Luiza De Macedo
26
Mourelle, Real-World Multi-Objective System Engineering (Hauppauge, NY: Pahl et al. (2007) at 58,61.
Nova, 2005). 27
See Pahl et al. (2007) at 58 for these and other methods.
28
24
Glegg (1969) at 5. Pahl et al. (2007) at 78.
29
25
Sage and Rouse (2011) at 523-27. See Pahl et al. (2007) 31 ff, chapter 6.
and at which neither the engineer ñor the client has the means to act
60 Law as engineering Law as engineering 61
effectively. For example, it might be more effective to ban certain types
of vehicle completely (for example four-by-fours with bull-bars) than to
engage in any kind of trafile management, but the client might have no
way of bringing about such a ban. In such cases, questions arise about the
limits of ‘engineering’. Are these issues for engineers at all? Is there a level
of a sociotechnical system above which engineers have no relevant exper-
tise? But even if there is such a limit, engineers are still interested in how
the whole system works and need to understand it if their interventions at
other levels are to be effective.

Generation of Options

The process then moves on to looking for options for solutions. Engineers
emphasise that it is usually a mistake to move to detailed design of the
first plausible solution that comes to mind. There is an important initial
step of generating as many plausible ideas as possible, which can then
be sorted and assessed. 30 If the characteristics of the problems and sub-
problems have been exhaustively specified, it should be possible to draw
up a general classification of the choices to be made, which in turn can be
used to generate a comprehensive set of possible solutions that recombine
the different choices. For example, there might be a set of choices about the
configuration of the object and a set of choices about the materials that
might be used. Each configuration combined with each material consti-
tutes an option. This is the method of ‘systematic variation’, often treated
as an ideal procedure in the literatura,31 but not always possible. Indeed it is
possible that full systemisation itself might not be optimal because it might
interfere with the creation of radically new departures.
Other methods for generating possible solutions inelude analysis of
existing solutions and systematically varying their elements, analysis of
analogous natural systems, and more intuitive methods such as brain-
storming and Delphi methods.32 Indeed, different.strategies might suit
different circumstances. Where the goal is to do something that has already
been done, but to do it better, the strategy might more naturally involve
starting with existing solutions, breaking them down into their sub-systems
and then looking for variations on those sub-systems, a method that fits
the forward steps method of analysing the problem. Where the goal is to do
something new, it is more natural to start with the goal and think about the
conditions for bringing it about, more in line with the method of backward
steps.33 30
Another E.g. Sage and Rouse (2011)
variable in at 513-14, Pahl how et al. (2007) at 77ff.
engineers deal with complex problems that have
31
been divided E.g. in Pahl et al.
up (2007), but see,
intofor criticism ofsub-problems
treating systematic variation is the order in which the sub-problems
as the ideal method, D. Motte, ‘A Review of the Fundamentáis of Systematic
are solved. In the ‘process-oriented’ approach, the sub-problems are solved
Engineering Design Process Models’ Intemational Design Conference, Dubrovnik,
in parallel,
Croatia, 2006. so that issues of compatibility between the sub-solutions can
be tackled
32
Sage and Rouseas(2011) at 513-14, thePahl et al. (2007)designers
at 82ff. go along. In the ‘problem-oriented’ approach,
the sub-problems are solved in series, following a single guiding principie
of solution, with compatibility issues tackled by adjustment as the series is
completed. Research on design process styles suggests that inexperienced
designers (or designers inexperienced in the kind of problem) tend towards
the process variant, whereas experienced designers tend towards the
problem variant.34 But the trend towards incorporating more objectives
and constraints from the start, to be resolved concurrently, seems to imply
a parallel approach.35
Although engineers are usually encouraged to sepárate as far as possible
the process of identifying problems and the process identifying solutions,
in practice the two processes interact. The process of generating solutions
often suggests new ways of thinking about the problem. In particular, it
can lead to further thinking about the functions to be served and about
the natura of the whole system, especially at levels above that of the
problem as originally described. The result can be a kind of co-evolution
between problem and solution, in which the stopping point is convergence
rather than a solution to the problem as originally stated. 36 Problems can
arise, however, where the degree of drift turns out to be unacceptable to
the client and no obvious process of convergence seems available. These
problems can suffer from a third kind of impossibility, the impossibility of
framing the problem so that it has a satisfactory solution.37

33
Note that engineers are often more interested in sufficient conditions than
necessary ones. Simón (1996) at 124.
34
Pahl et al. (2007) at 55.
35
Sage and Rouse (2011) at 523.
36
See e.g. Mary Lou Maher and Josiah Poon, ‘Modeling Design Exploration
as Co-evolution’ (1996) 11(3) Microcomputers in Civil Engineering 195-209,
Kees Dorst and Nigel Cross, ‘Creativity in the Design Process: Co-evolution of
Problem-Solution’ (2001) 22(5) Design Studies 425-37.
37
These problems, especially if combined with other elements such as not
being able to test prototypes (see below) and no time being available to leam from
experience, are often called ‘wicked problems’, though the epithet is extremely
62 Law as engineering Law as engineering 63

Assessment of Options immediately to breaking down the option in a set of tasks to be performed
to bring the option into being. But where obstacles and risks remain,
Once solutions have been identified in principie, as options that combine designers will look for ways of dealing with them.
certain functional characteristics, they need to be firmed up into concepts Those obstacles and risks often flow from or are exacerbated by uncer-
that can be assessed. This is a step which ‘almost invariably involves con- tainties about how the various systems and sub-systems will behave in dif-
siderable effort’.38 Solutions need eventually to be specified in a form ferent conditions. Of particular importance here is the distinction systems
that can be made and inserted as a sub-system in the system in which the engineers make between ‘closed’ systems and ‘open’ systems. In a closed
desired effects are intended. That means something like a description of a system, nothing apart from a specified input is taken to cross the bound-
set of parts and instructions for putting them together.39 ary into the system and nothing apart from a specified output is taken to
The next stage is the assessment of options, which involves asking cross the boundary out of it.43 In open systems, however, the boundary
whether the solutions meet, or exceed the standards set at the goal and between the system and the system’s environment is crossed by more than
objective setting stage. Since the development of computer-assisted design
just the specified inputs and outputs. Open systems are thus constantly
systems, which allow rapid re-calculation of how an option would perform,
interacting with their environment. The introduction of openness to the
each option will go through an iterative process of adjustment and re-
analysis brings in both an extra dimensión of realism but also an extra
assessement.40 That process can be conceived as one of optimisation,
which is to say aimed at making the option as good as it possibly can be layer of uncertainty. Closed systems are, however, rare in the natural world
across the various constraints or objectives, or as one of satisficing, which and engineers are sometimes warned that if their analysis depends on the
is to say improving each option until it is ‘good enough’ in terms of the presence of a closed system they should re-examine their assumptions.44
specified objectives, goals and constraints.41 Just as boundaries between systems are difficult to draw, the boundary
Part of the process of assessing designs consists of identifying obstacles between a system and its environment is not always clear, and is more a
that stand in the way of the designs’ bringing about the desired states of matter of analytical choice than something forced by reality. Engineers
affairs or their risks of bringing about undesired states. 42 * If there are no often opt for placing outside the system anything they cannot control. 45
obstacles in the way of a solution and no risks, the engineer can move More broadly, the function the system is thought of as serving often plays
a decisive role.46
There are other important sources of uncertainty. 47 One such source is
complexity, in the sense that a system contains a high number of elements
unfortunate. See Horst Rittel and Melvin Webber, ‘Dilemmas in a General Theory and there is high number of possible interactions between those elements,
of Planning’ (1969) 4 Policy Sciences 155-69, which has generated a voluminous to the extent that the system becomes difficult to describe. 48 Treating a
literature across several disciplines. Much of the literature seems merely to express
the bafllement technical experts appear almost invariably to experience whenever
they encounter politics. The capriciousness of democratic electorates and the
consequent necessity for democratic leaders to follow contradictory goals seem to specification of task itself. See Pahl et al. (2007) at 46. Otherwise, the task might be
take many experts (but especially town planners) by surprise. A better subject for mis-specified as minimising the obstacles rather than achieving the goals.
study might be to ask why that happens and how the education of technical experts 43
E.g. Karl-Heinrich Grote, Erik K. Antonsson, Springer Handbook of
might change so that they are not surprised by the obvious. Mechanical Engineering, Volume 10 (New York: Springer, 2009) at 224.
44
38
Pahl et al. (2007) at 190. Gregory S. Pamell, Patrick J. Driscoll and Dale L. Henderson, Decisión
39
Sage and Rouse (2011) at 515, Cf Pahl et al. (2007) at 190ff. Making in Systems Engineering and Management (Hoboken, NJ: John Wiley, 2010)
40
Before the development of CAD systems, the cost of assessing múltiple at 36.
45
options many times over would have been an important consideration. See e.g. Joseph R. Laracy, ‘Addressing System Boundary Issues in Complex Socio-
Simón (1996) at 125, citing Marvin Manheim, Hierarchical Structure: A Model Technical Systems’ (2007) 2(19) Systems Research Forum 19-26 at 21.
46
of Design and Planning Processes (Cambridge, MA: MIT Press, 1966) as the first M. M. Ottens, ‘The Limitations of Systems Engineering’ in Ibo van de Poel,
attempt at incorporating design costs into the design process. The cost of each David Goldberg, Michael Davis, (eds) Philosophy and Engineering: An Emerging
iteration is no longer so significant, but the time taken overall for assessment still is. Agenda (London: Springer, 2010).
47
41
Sage and Rouse (2011) at 515-16. Simón, who is credited with coining the See William Wulf, ‘Engineering Ethics and Society’ (2004) 28 Technology
word ‘satisficing’, advocates it as a method: See Simón (1996) at 120-23. in Society 385-90.
48
42
It is important to keep the analysis of risks and obstacles sepárate from the Technically, this is ‘structural complexity’. See e.g. Olivier de Weck, Daniel
Prototype Testing
64 Law as engineering Law as engineering 65
The next step is to turn the highest ranking option, or if cost allows, the
system as open will often itself introduce complexity. In addition, com-
highest ranking options, into prototypes for testing.53 The process of
plexity can obscure the relationships between different levels of the system
testing, whether under laboratory conditions or in the field, can lead to
and can give rise to the problem of ‘emergence’, a situation in which
further a system adjustments
appears not to be explicable and at all in termsimprovements of the states of its (albeit ones that are expensive
to incorpórate). In the
sub-systems and seems explicable only by events at its own level (a classic worst case, testing might reveal fatal errors in
the design, which will send
example is the idea that consciousness is an emergent property because it the process one or more steps back towards
the isbeginning.
not explicable in terms In of brain chemistry).
the 49 best can also arise
Uncertainty case, testing confirms the previous calcula-
tions and allows the engineers
from chaotic effects, namely where the long-term behaviour of the system to move with confidence to installation or
manufacture. is very sensitive to its initial conditions, so that even though the process
Sometimes, that takeshowever, one from the initialit conditions is to the end result not is capablefeasible of or fmancially justifiable to test a
prototype. For example, if
being modelled with exactitude, inability to observe those initial conditions the project is large scale, expensive and one-off,
testing might enough makes
precisely be accurateequivalent
prediction of future in states of the cost system and difficult to carrying out the whole
project.54 veryIndifficult.50 A thatthird sourcecase, of uncertainty,the especially important
only if the option is to monitor carefully the process
system if
of fabrication, adjusting ineludes
possiblecomputing, are discreteness
as new information becomes effects,
available. which arise because,
unlike in the physical world where small changes in input are usually asso-
ciated with small changes in output, in the world of computing a change
GENERAL PRINCIPLESof a single ‘0’ to a OF ‘1’ canSUCCESSFUL
have very large effects. DESIGN 51

Only when the options have been assessed should the candidates be
There collected
have and systematically
been compared
a andgreat
ranked. The schema number for estab- of attempts to pulí together general lessons
that lishing the ranking
might be order should drawn refer back tofrom the goals, objectives
the and experiences of designers, both successful and
unsuccessful, constraints. althoughIn co-evolution processes, no there mightuniversally have been some impliedagreed set of principies for successful
design drift
can in goals and be objectives, saidand one task yet of the designer to is to have
check emerged.55 There are, however, some obvious
points, whether
such the drift isasacceptable. Occasionally
that it might
the be possible to identify
client’s requirements need to be defined precisely,
a singleindesign that isquantitative
best in all respeets, but terms, usually 56 the ranking has to be
preferably and that the chances of success (though
treated as problem of making a decisión with múltiple objectives under
also costs) increase if one builds in more than one way of reaching the
uncertainty.52
desired outeome, that is if the system ineludes elements of redundaney.
But some more specific principies have developed within particular types
of engineering that turn out to be good candidates for wider application.
For example, the integration of manufacturability into the process of
design has yielded a number of generally agreed principies for that kind
of process, such as that it is better to minimise the number of parts, to
Roos and Christopher Roos, Engineering Systems (Cambridge, MA: MIT Press,
design in
2011)atl85.
modules that can be used for different purposes and that can fit
with other components 49 using(2004)
Wulf standardat interfaces,
387. Wulf’s anddiscussion
to sub-modularise
concems what has been termed
‘weak’ emergence (see Mark Bedau, ‘Weak Emergence’ (1997) 11 Philosophical
Perspectives 375-99, and ‘Dowmvard Causation and the Autonomy of Weak
Emergence’ (2002) 6(1) Principia 5-50), in which the states of lower levels of the
system are accepted as causing the states of higher levels but it is not possible,
either in the current state of knowledge.or, more radically, ever, to understand how
53
that causation happens, rather than the more controversial ‘strong’ emergence, in Sage and Rouse (2011) at 517.
which even in principie one could not explain the properties of a higher level of the 54
Sage and Rouse (2011) at 517.
system in terms of the states of lower levels. 55
See generally, Richard Buchanan, ‘Thinking about Design: An Histórica!
50
Wulf (2004) at 387. Perspective’ in Antonie Meijers (ed.), Philosophy of Technology and Engineering
51
Wulf (2004) at 387. Science (Oxford: Elsevier, 2009) 409-53.
52
Sage and Rouse (2011) at 516. 56
Glegg (1969) at 8-17, but see Simón (1996) at 145-46.
66 Law as engineeríng Law as engineeríng 67

by standardising components and developing parts that can be used in dif- solution should stop, even with the aid of the most powerful computers, is
ferent ways.57 ultimately a human being.
Above all, engineers recognise, indeed celébrate, the fact that what they
do is creative, and therefore to an added extent unpredictable. But that does
HUMANS IN ENGINEERING SYSTEMS not preelude their gathering information and formulating theories about
the conditions that might favour or inhibit creativity. They think about,
Engineeríng is conventionally thought of as concerned with things rather for example, the trade-off between allowing time for ideas to incúbate and
than people, but the extensión of engineeríng from the conversión of the risk that allowing time for ideas to develop also means interruptions
energy and states of matter into concern with information has produced and diversions that can be disruptive. 60 They are interested in techniques
a profound change. Although engineeríng started its analysis of informa- for enhancing creativity, such as alternating between concentration and
tion with the transfer of information from one technical object to another relaxation.61 There is also a debate about whether computer-aided design
(‘signáis’), it soon became clear that in many cases the most important inhibits or encourages creativity.62 Even creativity, they think, or at least
they hope, can to some extent be engineered.
system providing input and receiving output was a human being, who
in turn might receive input (‘messages’, perhaps, rather than ‘signáis’) 58
from other human beings. The whole system was not just technical, but
sociotechnical. To design devices within sociotechnical systems, engineers
LAWYERS AS ENGINEERS
have found themselves travelling beyond the physical sciences and begin-
It should now be apparent that transactional and legislative lawyers have
ning to consider the organised study of human behaviour, originally
a great deal in common with engineers, perhaps not in the way the profes-
mainly through physiology and cognitive psychology, but now increasingly
sions of engineeríng and law are organised or in their history, or even in
through economics, sociology and anthropology.59
their self-image, but in their basic tasks. Like engineers, transactional and
Moreover, in engineers’ studies of the design process, the system under
legislative lawyers want to make something useful that works for their
study itself is mainly human. It consists of people, and organisations of
clients. They are presented with problems to solve, an undesired current
people, setting and resolving problems. Admittedly, the use of computers
state of affairs, and a desired future state of affairs, with obstacles and
in design has revolutionised the scale and speed of the calculations engi-
risks lying between the two. Lawyers’ work consists of getting their clients
neers can make, allowing large numbers of detailed simulations to be run.
from one to the other. If there are no obstacles, getting there becomes
Expert systems can design out the possibility of many errors and can even
merely a matter of carrying out a series of tasks, such as filling in the right
make suggestions for design improvements. But the device that decides
forms. If there are obstacles, however, lawyers have problems to solve just
whether a problem has been solved, or at least that the search for a better
as engineers do.
Unlike the objeets created by engineers, lawyers’ objeets are embodied
57
not in metal or concrete or plástic, but in relationships between people, and
Sage and Rouse (2011) at 527. The authors suggest that these principies
are cióse to the axioms of design proposed by Suh, namely to maintain the
they are designed in words rather than in drawings. The forces they harness
independence of functional requirements and minimise the information contení of
the design. See e.g. Suh Nam-Pyo, The Principies of Design (Oxford: Oxford U.P.,
1990).
58
Pahl et al. (2007) at 29. 60
E.g. Pahl et al. (2007) at 54-55.
39
See e.g. Gavriel Salvendy (ed.), Handbook of Human Factors Engineeríng 61
See Glegg (1969) at 19. Glegg describes work on the circumstances in which
and Ergonomics 4th edition (Hoboken, NJ: John Wiley, 2012) 57-383. For socio- leading thinkers found their key idea. The results were that several ideas occurred
technical systems generally, see Vermaas et al. (2011). Mention might also be made to their progenitors while they were in bed, while they were travelling, while they
of the tradition of cybemetics - the study of the interaction between control and were out walking or even ‘sitting in front of the fire’. One great idea even occurred
information - which has from time to time been applied to social systems, with ‘at a state dinner’(!)
varying degrees of success. For a recent work that develops the tradition see Ralf- 62
E.g. Thomas Kappel and Albert Rubenstein, ‘Creativity in Design: The
Eckhard Türke, Governance: Systemic Foundation and Framework (Heidelberg: Contribution of Information Technology’ (1999) 46(2) IEEE Transactions on
Springer Physica Verlag, 2008). Engineeríng Management 132-43.
 Legal theorists sometimes talk in a way that implies that the only systems
68 Law as engineering Law as engineering 69
that matter beyond the device are other legal objeets. For example, they
sometimes talk as if the only system a legal device is ever designed to affect
are not natural but human, and that ineludes, although it is by no means
is the system of legal decisión - the courts. They take the lawyers’ habit
of limited to, the‘how
asking coercive power would of the state.a63 But thatcourt is not a decisive interpret this?’ and tum it into a principie
of the objection separateness
to the comparison. Contracts, of companies,
the conveyances,
law, wills,
sealing the law off from systems outside it.
But from trusts, regulations,
a statutes
client’s and constitutions,
point allof useful objeets
view designed the idea of the separation of the law from
life is and created by lawyers, are,The
perplexing. in engineering pointterms, devices,
of objeetsthewhose device is to create desirable effeets or to
prevent effeetsundesirable
are in the realm of information effeets rather than in the realms of energy
beyond itself, in how humans behave, whether
in a or matter.commercial
On the whole, their inputs deal come from or humans and their outputs the
inside political structure or in some regulated
aspect are
of received by humans, and so
human the information
lives. It flows areis‘messages’true rather that the effeets might happen indirectly -
that than
the ‘signáis’, device’s
and we can concede that the knowledge
effeets on most usefulhumanfor relations outside the law might happen
not as designing a them,result knowledge about of humansthe rather thandevicephysics oritself chemis- but of the actions of another system - of
which the might notcourts
try, be as exact aswould that generated by be the natural an sciences. example
But it is - of a system that uses the device
designed by
knowledge the
nevertheless, client’s that engineers
knowledge lawyers as
themselves increasingly an input. But even then, the client is
interested use innot the design ofintheir own devices. the internal of those who
The intention workings
use of that other system (which might
as wellknowledgebeabout human a behaviour black-box
to design devices from
is precisely the the same client’s point of view) but in that other
system’s effeets,
in the both change in
two fields - to create onthe world outside
others the device. and on the client. The effeets might also be
partly indirect, via the interpretation
It also helps to understand lawyers’ activities in the same way as engi- of the legal device by other lawyers
without the understand intervention
neers their own activities, inofsystems terms. courts.
The legal object But to at some point, the effeets will reach
the world outside the law,
be created is itself a system - and can be analysed into sub-systems - but and clients would be surprised and disappointed
if their lawyers ifhaditnois interest
to be in a those
solutioneffeets.
to a problem in the world, the most important
Nevertheless, some lawyers do attempt to control the extent of their
faets about it are faets about its effeets in other systems outside of itself.
responsibility in a way that limits their job to changing the law itself. They
Legal devices are designed to have effeets, and to understand those effeets
attempt to leave responsibility for whether the law itself has any effect
requires understanding systems beyond the device itself. In particular, it
to their clients. In system terms, they accept responsibility only for one
system requires
level understanding up, 64the conditions
and under which
not people beyond.
follow, or fail The clearest example of ‘only one level
* 65
up’ is to follow,the legal rules. Office Legal devices of that ignore those conditions are
Parliamentary Counsel. In its account of its services for
unlikely to
government departments, it warns: work. fo

[T]he essential thing to remember is that Bills, or rather the Acts they become,
63
can Those forcesonly
achieve inelude acceptance
one of the authority
thing of law, including moral
and, as such, can therefore have only one objective
- to change thecommitment
law. to good order regardless of personal preferences, the co-ordinating
effeets of eonvention and the uncertainty reducing effeets of planning. See next
The note for references toofthe psychology
Office and sociology of actingCounsel
Parliamentary in consonance withgoes on to list the ways in which
the law. conceding, for example, that it can change
the law can be changed,
64
Important studies in this field inelude Tom Tyler, Why People Obey the Law
2nd edition (Princeton, NJ: Princeton U.P., 2006), which reports empirical work
that brings out the role of legitimacy and procedural faimess, and not coerción
or the threat of coerción, in bringing about behaviour consonant with the law (a
finding, it should be said, with important implications for commercial law, and
not just for criminal law), and Per-Olof Wikstrom, Dietrich Oberwittler, Kyle
Treiber and Beth Hardie, Breaking the Rules: The Social and Situational Dynamics
of Young People's Urban Crime (Oxford: Oxford U.P., 2012), which finds that for Other conditions inelude clarity in communication and not demanding the
some people law-breaking is simply inconceivable - it is not even an option for impossible, cf. Lon Fuller, The Morality of Law (New Haven: Yale U.P., 1969)
them -- and that for many others moral considerations make law-breaking highly chapter 2.
unlikely. Deterrence is thus only relevant to a specific section of the population. In 65
Office of Parliamentary Counsel, Working with Parliamentary Counsel
commercial contexts, another important factor is the way agreements constitute (London: Cabinet Office, 2011) (hereinafter OPC (2011c)) at 27 (http://www.
plans that guide conduct by reducing uncertainty about how others will behave. cabinetoffice.gov.uk/sites/default/files/resourcesAVWPC_6_Dec_2011 .pdf).
penalties or rewards, but it pointedly fails to discuss whether changes in
70 Law as engineering Law as engineering 71
incentives will have any effect on anyone’s behaviour, and goes on to point
out that aims for legislation such as hopes that it will change social atti-
tudes, are contingent on other matters, including the extent of respect for
the law in society generally.
A similar ‘only one level up’ conception of the tole of lawyers would
occur in the transactional context if lawyers saw their job as merely chang-
ing the legal rights, duties, powers and immunities of the parties, and
leaving to their clients any assessment of whether those changes would
generate particular forms of behaviour. But ‘only one level up’ thinking
would be surprising in that context. Unless clients are very experienced
(other lawyers, for example), they expect their lawyers to know about the
normal effects of what they draft, and not just in the extremely unlikely
scenario of a court case, but in practice in the world. If their lawyer’s expe-
rience is that a certain type of contractual clause is invariably objected to
(or even ignored) by certain types of counterparty, the client would expect
the lawyer to say so. More broadly, transactions lawyers are usually looking
to secure desirable effects in the world, not just in the law. Nathanson’s will
lawyer, for example, was concemed not just to produce the right legal
effects for the client, but also the right emotional effects.
Even in the legislative context, the attitude of the Office of
Parliamentary Counsel might reflect an attempt to delinéate a división
of labour with the lawyers working directly for its departmental clients
than a general view that lawyers have no need to think beyond the next
level up. The Office of Parliamentary Counsel stresses that it cannot be
expert in policy matters beyond its expertise in analysis for consistency and
coherence, but it nevertheless requires the departmental lawyers to brief it
on the factual and political background to the legislation, which in turn
requires the departmental lawyers at least to have sight of documentation
in the possession of other departmental officials about how the current law
works in practice and what is hoped for, in practical terms, from the new
law.66
But just as there seems to be a limit to what counts as an engineering
problem, lawyers would probably not accept responsibility for the failure
of projects that carne about, as they would see it, in ways unrelated to legal
work. They might concede, for example, that the client might reasonably
hold them responsible for an outbreak of litigation, but claim that they are
not responsible for the physical failure of a product (for which they might
blame an engineer). Legal devices have inherent limitations, they might
argüe, the risks of which can only be mitigated but not eliminated, so that
risks beyond legal control are inherently not legal matters. But just as it is
not easy to delinéate precisely what counts as a ‘technical object’ for the
purpose of engineering, it is not easy to put precise limits on the ‘legal’. In
engineering, the concept of the technical expanded when engineers took
on changing informational states in addition to changing energy flows and
states of 66 OPC (201 matter.
le) at 36-37. There might not be an entirely clear break either in engi-
neering or law. But at least the engineering analogy gives lawyers a way of
thinking about the question that they should find fruitful, namely what is
it precisely that we undertake to transform?67
Thinking about legal devices in systems terms also helps to understand
the relationships between direct and indirect effects and the risks lawyers
are dealing with in designing devices. The direct effects of the device
are achieved through the self-application of rules, so that risks of non-
performance arise not only from intentional defiance of the rules but from
failure to understand them (a situation with a parallel for engineers at the
interface between machines and humans). One might speculate that the
more distant a self-applier is from the process of design the more likely it
is that the self-applier will not understand the rules the device uses. That
would mean, for example, that there will be a lower risk of failure to under-
stand rules in contracts, in the designing of which the parties take part,
than in statutes, in the design of which most of its targets are not involved
at all. As the Drafting Guidance of the Office of Parliamentary Counsel
points out to legislative drafters:68

Your reader does not know what your message is until you deliver it. This con-
trasts with the position of a party to a commercial agreement, who presumably
knows, at least in general terms, what the agreement says.

On the same principie, there might also be more risk of misunderstand-

ing a contract by parts of an organisation not involved in the process of
negotiation than in those that were involved.
Indirect effects, via other interpretive or enforcement systems, intro-
duce a new risk of misunderstanding rules. Courts, because they are not
involved in drafting either contracts or statutes, are particularly risky. That
risk, alongside the relative costs involved, explains the preference of many

67
We retum to this issue in Chapter 4, in the context of legal ethics.
68
Office of Parliamentary Counsel, Drafting Guidance (London: Cabinet
Office, 2011) (http://www.cabinetoffice.gov.uk/sites/default/files/resources/Off
ice_of_the_Parliamentary_Counsel_revised_guidance_l 6_12_11 .pdf) (hereinafter
OPC (2011b)) at 3.
72 Law as engineering Law as engineering 73

commercial contracts for dispute resolution mechanisms closer to the deal is even passed, will be Ministers and members of the two Houses of Parliament,
itself, such as mediation. Indeed, standard dispute resolution clauses tend as well as lobby groups and other interested parties. What one set of readers
to provide a process that moves only slowly away from people with intí- finds easy may be quite difficult for another set, or may not be understood by
them in the way the writer intended. These competing interests need to be bal-
mate knowledge of the deal, for example mediation has to be exhausted anced and given due weight in what we write. The weight to be given to different
before the dispute is escalated to arbitration, and arbitration starts with competing interests may be different from Bill to Bill.
each side appointing its own member of the tribunal. A similar prefer-
ence in government produces giving enforcement powers to administrative One lesson for legislative lawyers of the various problems this applica-
agencies and dispute resolution roles to administrative tribunals. tion of systems analysis has highlighted might be that a process of legis-
Indirect effects also risk conflict with direct effects, since there is no lative design that exeludes future users of the statute might be defective.
guarantee that the outputs of these other systems will be consistent with Inclusión of judges, at least openly, in the process of drafting new statutes
self-appliers’ own interpretation of the rules. Conventional legal analysis might be difficult, given the objection that judges should not pronounce
tends to assume that judicial interpretation of a statute will automatically on the meaning of statutes about which they might be called to adjudícate
bring self-application of that statute into line with itself, but simple systems in the future (an objection that has resulted in the exclusión of Supreme
analysis immediately brings that assumption into doubt, and shows why, Court judges from the legislative House of Lords), but bringing in self-
for example, legislative lawyers are right to treat judicial interpretation as a appliers or, perhaps more plausibly, intermediaries such as lawyers, might
threat rather than as an opportunity for stabilisation. improve the effectiveness of the process.
The possibility of semi-indirect effects, where self-application occurs
through intermediaries such as lawyers, introduces a further set of inputs
and outputs. If the intermediaries have been cióse to the process of design- THE PROCESS OF LEGAL DESIGN
ing the rules, one might expect them to be a stabilising influence, but if not,
they add another layer of complexity and potential conflict.69 What we have suggested so far amounts to saying that law is one of the
The same analysis brings out the trade-off lawyers face in legislative
design disciplines. Herbert Simón identified it as such, alongside busi-
and contractual drafting between using language that will be clear to
ness, education, architecture, town planning and medicine. 71 Some fine
lawyers and language that will be clear to negotiators (or legislators) and
arts might count as design disciplines - especially painting and sculpture,
self-appliers. As the Office of Parliamentary Ccounsel’s Drafting Guidance
points out:70 but also music.72 One might also add the discipline of public policy. The
design disciplines each have their own unique concerns but what unifies
The Act must be capable of being used effectively from day to day, but it must them is the process of design itself. One might therefore usefully compare
also produce the right result if tested in court. And a Bill’s first readers, before it law with any of them, but the comparison with engineering is particularly
instructive for a number of reasons. First, lawyers, like engineers, but
unlike architects, drtists and town planners, have only a limited interest
in the aesthetic. One sometimes hears lawyers describe a legal device as
69
Another interesting field of study suggested by this analysis is of guidance ‘elegant’, but their meaning is cióse to the engineering ideal of using as few
and commentaries on statutes designed for use by self-appliers or by administrators elements as possible to construct a solution. Second, like engineers, but
who lack legal expertise. One question to ask about them is whether they generate unlike most types of medical professionals, lawyers provide a service for
convergence in interpretation or divergence. If they are used by some interpreters clients whose requirements need to be ascertained before the objectives of
but not by others, the extra layer of complexity might itself give rise to diverging
interpretations. But if they are used instead of the statute and are easier to the project can be set (plástic surgeons might be an exception, and perhaps
understand than the statute, one might expect convergence (though not necessarily
in the direction the statute itself might have seemed to indícate, as the author can
testify from his own experience as the chair of a tribunal dealing with appeals
against denial of housing benefits, in which it was not uncommon for officials 71
Simón (1996) at 111.
working from the guidance but not the statutory text to arrive at decisions that 72
Richard Buchanan, ‘Thinking about Design: An Historical Perspective’, in
were clear, but also clearly wrong). Antonie Meijers (ed.), Philosophy of Technology and Engineering Science (Oxford:
70
OPC (2011b) at 2. Elsevier, 2009) 409-53. See also Simón (1996) at e.g. 136 and 188.
74 Law as engineering Law as engineering 75

some kinds of psychiatrist). Third, unlike many business consultants, but to do something the authority for which does not yet exist and which can
like engineers, lawyers possess specifíc technical skills their clients lack. only be obtained if someone beyond the client’s control acquiesces (e.g.
Fourthly, like engineers but unlike public policy professionals and town for a UK legislative lawyer where a change in EU law or an international
planners, lawyers’ clients are not overwhelmingly organs of the state or treaty is required, or for a transactions lawyer where any legislative change
those who control or would like to control organs of the state. Lawyers and is required).
engineers work in both the public and the prívate sectors. And finally, and One difference between lawyers and engineers appears to be the extent to
perhaps most importantly, engineering has perhaps the most developed which the goals and objectives of legal devices are measurable. In engineer-
and systematic set of ideas about how design works and so there is more ing measurability is thought to be all important, but lawyers seem not to
with which to compare. be overly concerned about it. Lawyers may say that what they deal with is
The process of designing legal devices has striking parallels with the
not easily quantifiable, but there are many well-known management tech-
engineering design process - although it is fair to say that engineers have
niques for setting targets about essentially qualitative matters. Measurable
been far more reflective and precise about that process than lawyers.
criteria of success or failure could be devised for many legal projects -
Specification of Objectives whether the company functioned as intended, for example, or the contract
was carried out, or the will transferred the testator’s property as intended.
The clearest parallels are at the start of the process, where transactions The problem might instead be cultural, or simply that it has not occurred
lawyers and legislative lawyers both stress, as do engineers, the importance to clients to quantify what they want.
of obtaining a clear brief from their clients about what the objectives of Another difference is that when lawyers design deais, as opposed to
the project are. As the Office of Parliamentary Counsel comments laconi- when they design devices such as wills and companies for use by the client
cally: ‘An attempt to draft for a policy that is uhcertain is likely to produce alone, the objectives of their client have to combine in some way with the
a draft that is unclear’.73 There are further parallels in the way both lawyers objectives of the other party or parties to the deal, who might want to use
and engineers realise that clients might not be entirely consistent or honest their own lawyers in a process of negotiation. Engineering, in contrast, is
about their goals, so that part of the task of producing a clear brief is usually conceived of as a game against nature, rather than one in which
an extended interaction between lawyer and client the goal of which is there are competing human objectives. The difference, however, is rather
to clarify what the client wants and to establish clear priorities between less than might first appear. Engineers often have to engage in negotia-
competing objectives. Another parallel is the lawyer’s identification of tion, especially in the context of concurrent engineering, in which different
constraints that the client might not have grasped, for example mandatory objectives will be in play simultaneously. 75 Moreover engineers sometimes
legal rules about wills, contracts or company constitutions that limit how work in teams that cross organisational boundaries, and frequently face
solutions might work. the problem of ascertaining and clarifying the joint objectives of those
Glegg’s distinction between the ‘intrinsically impossible’ and the ‘rela- organisations.76 Lawyers might not naturally see themselves as part of a
tively impossible’ also well describes the difference between a legal problem team that encompasses the lawyers of the other parties to a deal, but much
in which the client wants to do something self-contradictory (e.g. wanting negotiation does in reality consist of searching for joint objectives that
to distribute more than 100 per cent of the profíts of a deal, or profits in might make the deal worth making for all sides, and if negotiations fail,
excess of a company’s reserves, or leaving the whole of an estáte to more it is often because no coherent set of joint objectives could be specified.
than one person, or, in the legislative field, wanting to set up an autono- Furthermore, many of the standard legal ‘unblocking’ techniques - for
mous body but to keep control of it),74 * and one in which the client wants
would stay in control. If so, it has spectacularly failed in relation to Scotland with
election of SNP govemments, most notably an SNP majority govemment in 2011.
75
73
See Sage and Rouse (2011) at 403-9 for discussion of negotiation in
OPC (2011c) at 21 note 15. engineering design.
74
It is sometimes alleged that the policy intention of the Labour govemment 76
For an early survey and two case studies, see Margaret Bruce, Fiona
of 1997 for devolution to Scotland and Wales was indeed to create relatively Leverick and Dale Littler, ‘Complexities of Collaborative Product Development’
autonomous bodies but to design the electoral system so that the Labour Party (1995) 15(9) Technovation 535-52. Similar issues arise in supply chain engineering.
presenting issue one of marginal improvement. For problems where more
76 Law as engineering or Law as engineering 77
innovation was required expected, one would expect the backward steps
method, or even factorisation. The evidence, however, such as we have it at
present, example adjusting the pnce
seems to in exchangesuggestfor warranties, or that
inserting right transactions lawyers use the forward steps
method of first
in refusal or first
bothoffer clausestypes
- work becauseofall the lawyers under-78
situation. Considerations of costs and of client
familiarity stand them as ways of reconciling
with the the parties’ different objectives.
resulting In effect,
device appear to be important reasons for.the
the lawyers
popularity of its use. work together to solve problems that left to themselves the
parties would not solve.
Generation of Solution Options
Identification of Problems
There is also little information available about lawyers’ generation of solu-
tion If options.
we turn to the mapping The of problems, the full closeness
creative of the analogyof
nature legal problem solving is clear, and
some between
lawyersengineering design have and legal reflected, design retums. The albeit Office of less formally than engineers, on the
conditions Parliamentaryfor Counsel seems encouraging particularly committed toor the idea of inhibiting creativity. Caruth, for example,
describes solution-neutrality,
the to insisting
benefits that it must of analyse thetaking government’s breaks and decries the modem obsession
with policy
putting problem unencumbered
in long by suggestions
hours from departments
of about
hard work as opposed to allowing ideas to
form how
in to draft the the legislation. backIndeed, it isofstriking how themuch the Officemind. of But beyond that, the process seems rather
haphazard, Parliamentaryat Counsel’s leastworking practices if resemble those of an officetoof
compared the engineering ideal of systematic vari-
ation, consulting
or engineers.
even For example, withalthough they have
the a number lessof stand- comprehensive but still disciplined methods of
varying ard techniques,
the theyelements
try to avoid standardised of solutions, on the ground that
existing solutions or looking for solutions to each
over-standardisation
sub-problem generated by the backwardsinhibitssteps
clearprocess.
analysis of problems.
The As for
Officemethods of breaking
of down the problem, Office of Parliamentary
Parliamentary Counsel is nevertheless aware of the need
to Counsel’s
genérate analysis of
ideas. policy problems
That has affinities
is with another
the backward reason for its dislike of instructions from
departments steps method,in that isthe asking oneself form what conditions of would have draft to be clauses, which it sees as closing down
options, fulfilled
and for the problemwhy to count as it solved and then asking
discourages what condi-the over-use of precedents. At the same
time, tions would have to be
however, itsfulfilled before‘onlythose conditions one were in their level turn up’ approach must limit the range of
possible fulfilled solutions.
and so on. In contrast, In by emphasising the the uniqueness of each
transactional field, Nathanson’s will lawyer tries
out problem,
two the Office of Parliamentary solutions
standard Counsel seems to discourage with the the client and, finding them unsatisfac-
tory, method of
improvises forwards steps,a that is taking an
third. existing solution
John to some other
Flood’s studies of business lawyers at work
concéntrate problem and on running it forwardsthe until it fails. It is also conceivable,
process of at least negotiation rather than drafting, 79 but his
subjects from also
the way sub-problems
seem are sometimes
largely assignedtoto sepárate be teams or generating options as they go along. One
possible sepárateexplanation
team members, that the is Office of Parliamentary
that Counsel
the edges process of negotiation itself, in which
several towards a
parties versión of the
will method of factorisation,
have in which
their problems own are lawyers, will naturally generate a number
77
of broken down into but
options, a comprehensive the set of sub-problems.
process is hardly systematic and the chances seem con-
siderable The that
same set of analytical
the tools lawyers
is available to transactions
will lawyers,
between them miss a solution that would
although
have worked better direct
for all evidence of the methods they use is sparse. Caruth’s steel
parties.
contract and the story of the development of e-commerce contracts seem
to suggest the popularity of the forward steps process, but the Cravath
method suggests a backward steps procedure or even factorisation. If one
were looking for parallels with engineering, one would expect the forward
steps method to be used only where the problem was fairly familiar and the 78
The predominance of the method of forward steps was confirmed in
conversations between the author and practising commercial lawyers. Systematic
research on the question would, however, be interesting.
77
Edward Page, ‘Their Word is Law: Parliamentary Counsel and Creative 79
E.g. John Flood, ‘Doing Business: The Management of Uncertainty in
Policy Analysis’ [2009] Public Law 790 at 799. Lawyers’ Work’ (1991) 25 Law and Society Review 41
78 Law as engineering Law as engineering 79

Another way of looking at what law firms do, however, especially the others that the balance of advantage between the parties was being altered
production and storage of precedents and gradual adjustment of model in some unknown way. Keeping to known solutions reduces uncertainty.
documents to cover new situations, combined with occasional inspiration, Another example of contract stickiness concerns what happened in
is that firms are participating in a form of solution-problem co-evolution. 2000 to the drafting of sovereign bonds. In that year, in an unexpected
For example, the process by which standard contracts were produced for interpretation of terms standard in sovereign bonds drafted in New York,
various e-commerce purposes seems to fit the co-evolution model. 80 The a court ruled that there was a way around clauses that required unanimous
transfer of contract clauses from an earlier problem, particularly from consent by bondholders for the terms of the bond to be changed in any
software development to website development, seems to have started a significant way.84 One might have expected rapid redrafting in subsequent
process of discovery in which new problems or sub-problems emerge and bond issues of the clauses that allowed the unanimous consent rule to be
are then solved by later versions. The overall problem becomes better evaded. In fact, nothing happened at all for several years - bonds contin-
defined and better understood as the process of solution continúes.81 ued to be drafted as before - and then, rapidly, they were changed to reflect
The multi-party nature of contract design might limit the number of the entirely different standard used in London, under which terms could be
options generated in another way. Researchers into contracting behaviour changed by collective action of the bondholders short of unanimity. The
have noticed that standard contract terms tend to be ‘sticky’, that they con- same three factors were in play - the cost of redesign for the lawyers, the
tinué to be used long after the interests of the parties that produced them problems of losing standardisation and the fact that attempts at change
have changed.82 In one striking example, rents in domestic leases in Israel would act as a signal that would induce all the parties to assess their expo-
continued to be quoted in US dollars, and not in local currency, long after sure to risk, which would delay agreement.
the economic conditions that justified such a practice had disappeared. 83 It All three effects - the time needed to prepare new clauses, interoper-
appears that the reasons for stickiness were threefold. First, there is the cost ability and signalling - discourage the generation of options. They create
to lawyers of generating and thinking through a new way of doing things a situation in which the method of forward steps is dominant. Problem
when the oíd way, though not optimal, still worked. Second, there was a identification starts with existing solutions and works forward until those
problem of interoperability, that if all the other apartments in a block were existing solutions look like failing. Even at that stage, new options are
valued in dollars, to valué one in another currency, even the local currency, often generated out of other existing solutions, as in the sovereign bond
might mean that future decisions by the landlord or by the tenants col- story, where lawyers turned to the ‘London’ draft rather than start from
lectively might have different consequences for different tenants, and thus scratch.
might make for trouble. Third, there was a problem of signalling, that if Another point to note, perhaps one also linked with the costs of option
one party suggested changing the currency, it would trigger anxiety in the generation, is that the sovereign bond story seems to inelude an element
of co-evolution between problem and solution. Just after the 2000 court
decisión, one might have conceived of the problem as how to return to a
80
See e.g. Lenné Eidson Espenschied, Contract Drafting: Powerful Prose in position in which bondholder unanimity was required. But if one sees the
Transactional Practice (Chicago: American Bar Association Publishing, 2010) at court decisión not as definitively changing both the law and the behav-
25. A number of other possible examples of the process seem to exist. Nicholas iour of sovereigns, but as increasing the uncertainty surrounding both,
Aleksander points, for example, to the collection of standard agreements published
the problem becomes how to return to a satisfactory degree of certainty
by the Loan Market Association (see http://www.lma.eu.com/pages.aspx?p=206)
as a candidate for explanation along these lines. in the way bonds work - in other words, the functional definition of the
81
One might also ask whether different ways of organising law firms assist problem went one level up, from the functions of clauses within the ‘New
the process. The ‘London’ model of relatively fewer partners, very many more York? bond to the functions of bonds in general. At the higher functional
professional support lawyers and an emphasis on the interests of the ñrm rather level, it is not difficult to see why a bond with a controlled collective
than on individual partners, seems better suited to generate options systematically action clause, though inherently higher in uncertainty than one with an
than the more individualised ‘New York’ model.
82
Omri Ben-Shahar and John Pottow, ‘On the Stickiness of Default Rules’
(2006) 33 Florida State University Law Review 651-82
84
83
Doron Teichman, ‘Oíd Habits are Hard to Change: A Case Study of Israeli Stephen Choi and Mitu Gulati, ‘Innovation in Boilerplate Contracts: An
Real Estate Contracts’ (2010) 44 Law and Society Review 299-330. Empirical Examination of Sovereign Bonds’ (2004) 53 Emory Law Joumal 929-96.
80 Law as engineering Law as engineering 81

unimpaired unanimity clause, might offer more certainty than one subject the effect the proposed legislation might have indirectly on the law through
to capricious interpretations by judges. changing behaviour, again leaving such questions to departments. It is pos-
sible, for example, that a statute aimed at changing behaviour might also
Assessment of Options change what counts as ‘reasonable’ conduct within the law (think of envi-
ronmental standards). The Office of Parliamentary Counsel’s approach
If we turn, however, to the assessment of options, lawyers seem to largely exeludes any such effects. The combined effect is that the Office of
be more organised and self-conscious. Legislative lawyers in particular Parliamentary Counsel has set up a ‘closed system’ analysis of the options.
expend much effort in thinking through the possible consequences of Only specified inputs and outputs count in the analysis and other effects,
drafts.85 Their main analytical technique is to generate permutations of to and from the environment that surrounds the system, are excluded. The
circumstances and ask how the draft bilí would cope with them. 86 They environment, for these purposes, appears to be defined, in a way engi-
are acutely aware of the uncertainties that arise from complexity, in the neers would fmd normal, as anything beyond the power of the Office of
same sense as used in engineering that the number of elements in the law Parliamentary Counsel to influence, which means most political, economic
and the number of interactions between them makes the system difficult and social events.
to describe and even more difficult to predict. One might even observe The benefit of closed system analysis is that, within its own terms, it pro-
problems of ‘emergence’ - that levels of the system have to be treated as duces greater precisión, albeit at the cost of realism. It can also be treated
if they were not explicable in terms of lower levels. Indeed ‘the law’ itself as a special case of an open system analysis of the same situation, and so
might be seen as such an emergent property. Moreover, although one might there is some sense in saying that if a device fails on the basis of assuming
not expect legal problems to be much affected by chaotic effects, which is a closed system, it is hardly likely to succeed if one relaxes that assumption.
essentially a problem of observability, there is a clear link between legal That might justify the Office of Parliamentary Counsel’s claim that even
structures and the problem of discreteness, the problem that very small dif- its more limited analysis of a policy proposal for its coherence and con-
ferences in wording can produce enormous differences in consequences (a sisteney can have broader benefits for the policy process. 88 But engineers
single ‘may’ in place of a ‘must’, for example). are warned against analysis that assumes that systems are closed for good
The ‘only one level up’ approach of Office of Parliamentary Counsel reasons. The unintended inputs and outputs that cross to and from the
legislative lawyers can be seen as an effort at reducing the degree of uncer- system and its environment can have very large consequences for perfor-
tainty they face. They are saying that they only purport to assess options mance. The result is that Office of Parliamentary Counsel might be able to
for their effect on the law, not for the effect of the law on any system identify some legislative proposals that cannot work, but it will let through,
outside itself. They are not denying that the law has outputs that affect and indeed draft up, other equally unworkable proposals where the prob-
the world, but they are saying that those outputs do whatever they do. 87 lems come from such broader inputs and outputs. As we have seen, Office
Office of Parliamentary Counsel lawyers also tend to pay little attention to of Parliamentary Counsel seems to assign to departmental lawyers the task
of carrying out any open system analysis, but that división of labour and
expertise looks, from an engineering point of view, to be a vulnerable point
85
Page (2009) 805-8. in the process.89
86
See e.g. OPC (201 le) at 18. The same technique appears to be used in France. Transactions lawyers put similar efforts into assessing solution options
See John Bell, ‘What Is the Function of the Conseil d’Etat in the Preparation of
Legislation?’ (2000) 49 Intemational and Comparative Law Quarterly 661—72 at
666. Working with Parliamentary Counsel does, however, attempt to wean the Office
88
of Parliamentary Counsel off the view that covering all the logical permutations is OPC (2011c) at 18.
more important than furthering the policy of statute through clarity and ease of 89
A further point of comparison might be the French system, in which the
use. Conseil d’État, in exercising its scrutiny role over legislation certainly goes beyond
87
In faimess, one should see Stephen Laws’ article (Stephen Laws, ‘Giving effects on the law alone and considers matters such as administrative workability
Effect to Policy in Legislation: How to Avoid Missing the Point’ (2011) 32 Statute and possible evasión or avoidance. See Bell (2000). Whether this amounts to a fully
Law Review 1) as a tentative move beyond that approach, at least in the sense of open-system analysis is unclear, but some researchers see the Conseil as capable of
emphasising that statutes might have purposes other than behaviour change and developing its own policy positions. See e.g. Margherita Rendel, The Administrative
that such purposes are relevant to what drafters do. Functions of the French Conseil d’Etat (London: Weidenfeld and Nicolson, 1970).
82 Law as engineering Law as engineermg 83

by thinking through their possible consequences. A survey of US trans- by inventing, testing and then adjusting for more and more futura sce-
actions lawyers found that nearly 80 per cent considerad that they were narios, they might be unnecessarily frustrating their clients and causing
responsible to a ‘great’ or ‘significant’ extent for ‘anticipating, and drafting them avoidable cost. The Office of Parliamentary Counsel attempts a
to protect your client against, possible futura events that could change your pre-emptive strike when it advises departments that ‘[because] Counsel in
client’s business incentives’ and 50 per cent considerad themselves respon- OPC are occupationally disposed to be literal-minded and cautious about
sible to the same extent ‘for anticipating, and drafting to protect your unspoken assumptions, the commentary provided by the OPC team may
client against, possible futura events that could change the business incen- be quite detailed’.92 Transactions lawyers are also bothered about whether
tives of other transaction parties’.90 The acceptance by commercial lawyers they might be going too far in providing against futura contingencies. One
of responsibility for anticipating events that might affect their clients’ busi- wrote on her blog:93
ness incentives is important in another way. It reveáis that at least these
lawyers are thinking about the effectiveness of what they are constructing Recently I was in a meeting with a group of attorneys reviewing two proposed
at more than ‘one level up’. Success is not just success in changing in the addenda to a contract. One was very detailed - contained definitions, covered
micro-legal environment surrounding the parties but the success of the deal all possible contingencies and outcomes. Its sheer length and complexity made
itself, in terms the client would recognise. As a consequence, transactions it more difficult to follow. The second was much shorter thus easier to under-
lawyers seem more willing than legislative lawyers to treat the system they stand and addressed only the most likely complications. A spirited discussion
are operating in as open. ensued.
The uncertainties involved for transactions lawyers in assessing risks
at system levels beyond the law are considerable, which might explain Boiled down, at issue was which document of the two better served its
the reluctance of some lawyers to go as far as others in giving business purpose, which, in a transactional setting is presumably to accomplish the
advice.91 Assessment of business consequences is just as subject to prob- parties’ contractual goals or to provide a smooth exit if achieving those
lems of complexity and discreteness as those faced by legislative lawyers. ultímate goals is not possible. Can a well-intentioned effort to provide,
In addition, because they concern psychological, social and economic to the extent possible, all permutations and contingencies be too much
conditions, they might also be subject to chaotic effects. On the other information? Can the sheer volume and density of the detail cloud the very
hand, transactions lawyers usually opérate at a much smaller scale than information you seek to provide?
the societal, macro-scale faced by legislators. If we assume that lawyers of In engineering terms, what is happening here is that lawyers are engag-
all kinds have a limit to their capacity to process information, it might be ing in a recognisable process of refining options in the course of assessing
that the reason legislative lawyers attempt to draw a line around the law them, but they have developed no clear stopping rule for that process.
itself is not that their capacity is less than that of transactions lawyers but Since they are usually working on a single option and then varying it, they
merely that the sheer volume of law they are dealing with leaves no room are involved in a process looking for marginal improvements rather than
for anything else. testing systematic variations. That would not be a problem if they could
Another problem lawyers report in option assessment is that they are consciously satisfice, and ask themselves whether the option in its current
not sure how far to go in generating futura contingencies. They fear that state is good enough.94 But since lawyers perceive that there is a problem
about not knowing where to stop, it seems to follow that they must have no
clear idea of what counts as a good enough solution. One can only specu-
late as to why that should be the case, but the situation suggests that some
90
See Steven Schwarcz, ‘Explaining the Valué of Transactional Lawyering’ lawyers have no clear idea of what counts for their clients as acceptable
(2007) 12 Stanford Joumal of Law, Business & Finance 486. The difference between
the two is interesting. It might be that lawyers think they have less opportunity to
understand the incentives facing the other parties to the deal, or it might be that
they think it is sufficient to draft in such a way that their own client is protected 92
OPC (201 le) at 50.
against any such changes. 93
Nancy Hupp, ‘Short but Comprehensive’, Practice Blawg 15 Feb 2010
91
Some of those risks are legal, for example the restrictions imposed by Part (http://practiceblawg.com/2010/02/short-but-comprehensive/).
XX of the Financial Markets and Services Act 2000 and the possibility that a 94
Cf. the procedures recommended in Paúl Brest and Linda Hamilton
disappointed client might be litigious. Kreiger, ‘Lawyers as Problem Solvers’ (1999) 72 Temple Law Review 811-32.
times those options can be adjusted and re-assessed.
Law as engineering
In legal 85 contexts,
84 ¿aiv as engineering
where quantification is rarely achieved and computing, though extensively
used, is necessarily limited in scope, the cost of option assessment and
reassessment risk. A practising lawyer commented high.to the author, ‘Good
That lawyers talk cost to
remains alone might explain why lawyers
generate their so
clients about few what are acceptable
options.risks’, whichOne is undoubtedlymight
true hope that assessment costs would fall
and the issue is ultimately one of the accurate specifications of the client’s
as computer-based expert systems for lawyers develop, and thus for option
generation requirements.
to But the persistence
become of the problem
a is itself interesting. Oneimportant
more activity, but the necessary concep-
possibility is that lawyers might be experiencing difficulties
tual work has not yet been done,in communi-
or at least where it has been done it has
cating
not yet produced risks tothat
technology clients.
lawyers use.96
As an example of communications difficulties, a leading legislative
Concurrence
lawyer explained to the author that one of the reasons for the inclusión in
Wórking With Parliamentary Counsel of the passage cited above about the
nature of the Office of Parliamentary Counsel’s comments back to client
The cost of option assessment might also explain the comparative lack
departments was that the departments tended to take detailed comments
in the legal context of concurrent
as destructive criticism or as an attempt to shift all blame for lack of clarity engineering, the attempt to solve many
aspects of department,
to the a not as anproblem
invitation to carryason a detailed possible
correspond- early on in the process and avoiding
‘throwing producís over the
ence that would clarify for drafters the department’s requirements - and wall’. Some of the demarcation disputes
97
between lawyers and other
that was a difficulty that aróse in communication not with lay clients but professionals are notorious, and debate
continúes to
with other lawyers. rage about whether lawyers should be allowed to practise
in firms that inelude non-lawyers.98 Nevertheless, the very fact that com-
mercial lawyers
Assessment Costs are prepared to work on their clients’ business problems
shows a willingness to engage in a degree of concurrency. Even the OPC
One important difference between law and engineering is the cost of
assessing an option. Because of the combination of quantification and
computing, engineers can assess and re-assess many options in a relatively
short time. In contrast, although expert systems for lawyers exist and can
help in such tasks as ensuring that definitions are held constant or that 96
One promising area where conceptual work has been done is the analysis
potential problems are comprehensively identifíed, the amount of human of complex statutes using techniques drawn from network analysis. See Scott
lawyer effort required to assess a draft is still considerable. In this regard Boorman and Paúl Levitt, ‘Blockmodeling Complex Statutes: Mapping Techniques
the anti-specialisation bias of the Office of Parliamentary Counsel might Based on Combinatorial Optimization for Analyzing Economic Legislation and
have drawbacks, since assessment by non-specialists will usually take more Its Stress Points Over Time’ (1983) 13 Economics Letters 1-9 (which takes
time and effort than assessment by specialists. It is significant that the the cross-references between sections in statutes - including cross-references in
commentaries, but one could also use the Explanatory Notes for new bilis - and
Office of Parliamentary Counsel emphasises that its clients, the depart- uses them to partition the statute, regardless of the statutory order of sections, into
mental lawyers, are expected to be experts in the substantive law covered groups in which the sections relate to the rest of the statute in the same way). The
by the bilí and to bring their expertise into play as drafts move between importance of such techniques for legislative lawyers is yet to be fully explored,
the Office of Parliamentary Counsel and the department. 95 Processes but one can see how they might considerably improve the dialogue between
that help with option generation are not necessarily optimised for option departmental lawyers and the Office of Parliamentary Counsel. They would help
assessment. non-specialist Office of Parliamentary Counsel lawyers to understand the structure
of the existing law and help both sides to identify issues and gaps in new bilis that
Moreover, we have seen that in engineering, the cost of option assess-
affect that structure.
ment feeds back to the option generation stage, so that engineering’s 97
See generally for an account of ‘jurisdictional’ disputes between professions,
combination of quantification and the use of computing resources has Andrew Abbott, The System of Professions: An essay on the división of expert labor
increased the number of options that can be assessed and the number of (Chicago: University of Chicago, 1988).
98
See e.g. Nick Jarrett-Kerr, ‘Altemative Business Structures - the Long
Pregnancy’ (2011) 11 Legal Information Management 82-85, and for a variety
of perspectives, Robert Lawry and others, The Jonathan M. Ault Symposium,
‘Professional Responsibility and Multi-Disciplinary Practice’ (2001-2002) 52 Case
95
OPC (2011c) at 17. Western Reserve Law Review 861-1004.
86 Law as engíneering Law as engíneering 87

is aware of the need to deal with some concurrent issues, as long as they prone to somewhat slap-dash exercises in cutting and pasting, especially
do not involve thinking about the real world effects of the legislation when they are under pressure of time, but researchers suspect that lawyers
itself. It offers advice, for example, on the parliamentary handling of bilis, have tactical reasons for giving that impression, possibly that it suits their
not only on procedural matters but also on possible clashes between the purposes that the market does not notice their innovatory deviations from
wording of clauses and the way ministers want to present their policies to standardisation, and that reality is quite different. 102 Another possibility
Parliament.99 is that timescales are important, with more care taken - more iterations
Transactions lawyers are also used to working in teams with other between the parties, for example - for agreements designed for the longer
experts. Caruth, for example, tells of an occasion in which a problem had term. In the legislative field, the división of labour between departmental
arisen in the construction of an oil refinery. To add to the physical prob-
lawyers and the Office of Parliamentary Counsel, and the iterative process
lems of completing the job, there was a legal complication that the princi-
between them, offers some protection, but in jurisdictions without such a
pal contractor had agreed to work on a fixed-price basis but had taken on
sub-contractors on a cost-plus basis, so apparently transferring to itself división, for example in the United States, the process of reviewing while
the whole of the risk of poor performance by the sub-contractors. Caruth constructing might not be very elabórate.
was dispatched to negotiate a way out the problem with a joint team of In both the UK and the US, however, there is other set of processes that
lawyers and engineers.100 Transactions lawyers frequently find themselves might play some role in adjusting a draft before it becomes law, namely the
in teams that inelude, for example, accountants, surveyors and bankers. In legislative process itself. In some countries, the legislative process might
the legislative context, even the Office of Parliamentary Counsel is willing specifically inelude a revising stage, for example articles 38 and 39 of the
to be seen as part of the team responsible for a bilí, albeit a slightly distant French constitution, which entrench a consultative role for the Conseil
and reticent member, and it treats departmental lawyers as part of the d’État for governmental bilis and secondary legislation.103 Legislaturas
department’s broad bilí team together with policy advisers and process often claim that they are carrying out such a function themselves. For
managers.101 example the UK House of Lords is frequently said to act as a ‘revising’
chamber.104
Prototypes and Testing in Situ Legislative lawyers, however, usually express little confidence in the
ability of legislaturas to act as quality control processes. In the UK, for
The final stage of the engíneering design process is making a prototype for example, standard operating procedures instruct ministers to refuse to
testing. For lawyers this is rarely a plausible proposition. Although there accept any amendments offered by backbench or opposition Members
might be extensive experience of similar contracts, companies and statutes, of Parliament. Even if ministers accept the policy arguments behind a
and some confidence about the way they will perform, each new artefact non-Office of Parliamentary Counsel drafted amendment, they are told
is sent untested into the world. Engineers nevertheless also encounter situ- that they should do nothing beyond promising to bring forward an offi-
ations in which prototype testing is not a practica! option - for example cially drafted amendment later.105 US legislative counsel have described
where the project is large scale and essentially a one-off. In those cases, the typical output of the legislative process of the Congress as ‘blurry’, all
engineers strive to build into the process of building the artefact opportu- for good constitutional and political reasons, but nevertheless hardly high
nities for review and feedback. Lawyers could presumably act in a similar quality.106 The problem of how to ensure that constant assessment is built
way, allowing for feedback and correction in the process of deploying into the legislative process itself is essentially as yet unsolved.
a legal device. The evidence is mixed, however, on whether they in fact
do so. Transactions lawyers sometimes give the impression that they are
102
Mark Weidemaier and Mitu Gulati, ‘How Markets Work: The Lawyer’s
Versión’(2011).
103
For details of the legislative role of the Conseil d’État, see Bell (2000).
104
99
See e.g. Donald Shell, The House of Lords (Manchester: Manchester U.P.,
OPC (201 lo) at 14. 2007) at 35 and chapter 4.
100
David Caruth, A Life of Three Strands: A City Lawyer's Memoir (London: 105
OPC (2011c) at 67-68.
Avon Books. 1998) at 47^-8. 106
M. Douglass Bellis, ‘Drafting in the US Congress’ (2001) 22 Statute Law
101
OPC (201 le) at 16-19. Review 38-44 at 40-41.
88 Law as engineering Law as engineering 89

GENERAL PRINCIPLES OF SUCCESSFUL LEGAL precisión in determining the client’s requirements, redundaney, minimisa-
DESIGN? tion of the number of elements and modularity.
The importance of clarity about the goals and objectives of the project is,
Is there a legal equivalent of the (albeit tentative) principies that emerge as we have seen, recognised by lawyers as much as by engineers. Lawyers do
from engineering about how successful design can be organised? Little not share engineers’ enthusiasm for quantification, but the gap might not
detailed work has yet been attempted about the question, but it is an area be as large as it first seems. Not only do engineers sometimes face problems
of work that might develop in the future. Possible sources for such prin- with non-numerical objectives,110 lawyers, especially commercial lawyers,
cipies inelude the various practitioners’ guides to legal drafting 107 and the deal with clients whose goals are largely quantifiable. Clients could readily
style guides issued by the UK Office of Parliamentary Counsel and US set quantifiable goals, for example, in tax matters or for financial instru-
House of Representatives Office of Legislative Counsel.108 If one exam- ments. Even where objectives for lawyers are not easily quantifiable, (for
ines these texts even superficially, one will see emerging, across the divide example the emotional satisfactions sought by the client of Nathanson’s
will lawyer) lawyers are, at least in an informal way, constantly modelling
between the public and prívate sectors, a set of common themes. First,
their clients’ priorities or their trade-offs between their different objectives,
they invariably urge lawyers to make sure their main message gets across
and it might help some lawyers in the future to formalise those models. For
and is not obscured by subsidiary material. Second, they cali for the elimi-
example, it might be helpful for lawyers to be able to distinguish between a
nation of ambiguity and obscurity (which, given the non-legal intended client who is prepared to trade one goal off against another from a client
readership of legal documents, now often means eliminating old-fashioned who requires a minimum level of success about one goal, but, subject
‘legal’ language). Third, they insist that often-used terms should be clearly to that constraint, wants to maximise the degree of success achieved in
defined and consistently used. And fourth, they urge the elimination of another goal.
unnecessary material (the Office of Parliamentary Counsel, for example, Legal attitudes towards redundaney seem to parallel engineering atti-
refers to the ‘tendeney to tum septic of provisions in a Bill that are not tudes, but again might benefit from a degree of formalisation. Some forms
legally necessary’).109 of legal drafting exhibit ludicrous levels of redundaney. For example,
These themes contain at least the starting point for developing some objeets clauses in British company constitutions, the (formerly compul-
general principies of legal design. But they are largely concemed with sory) clause that lays out what the company has legal power to do, 111 were
avoiding bad solutions rather than finding good ones, and they seem traditionally drafted with very high levels of redundaney. To make sure
narrowly focussed on the process of drafting rather than on the broader that the power existed to do whatever the management of the company
process of design. For example, the elimination of ambiguity and obscurity wanted to do, every conceivable business and type of transaction they
is a useful linguistic rule, but in terms of design, some lack of clarity might might want to do was listed, whether or not Ítems on the list overlapped.
be important to get a deal going. Drafting clauses that, in effect, postpone Even when the law was changed in 1989 to allow companies to state that
dealing with disagreements to a later stage (which might inelude rights their object was to act as a ‘general commercial company’, little changed,
of first refusal or first offer) allow the parties to begin their joint work allegedly because banks were uncertain what the pirrase meant.112 Only
straightaway. For consideration of proper design we might look instead to with a further reform, making unrestricted objeets a statutory default
a comparison of what lawyers do with some of the equivalent engineering rule, has any change in drafting practice occurred. 113 One can also see
principies. In particular, we might consider the engineer’s principies of

110
Simón (1996) 145-46.
107
E.g. Peter Butt and Richard Castle, Modera Legal Drafting: A Guide to 111
See Companies Act 2006, section 31.
using Clearer Language 2nd edition (Cambridge: Cambridge U. P., 2006), Thomas 112
See David Martín, One Stop Company Secretary 6th edition (London:
Haggard, George Kuney, Legal Drafting: Process, Techniques, and Exercises ICSA, 2009) at 264.
(Eagen, Minn.: Thomson-West, 2007), Eidson Espenschied (2010). 113
See e.g. the new, object-less, articles and memorándum of association of
.http://www.house.gov/legcoun/pdf/draftstyle.pdf. Prudential pie at http://www.prudential.co.uk/prudential-plc/storage/downloads/
mems-and-arts-sep-2011.pdf. One can see a similar change also in the standard
109
OPC (2011c) at 36. forms issued by mass market drafters such as Oyez. If banks still object to
90 Law as engineering Law as engineering 91

contractual provisions for mediation or arbitration as a form of redun- different kinds of agreements, including the increasingly popular ‘layered’
dancy, as supplementary ways of meeting the parties’ goals if unforeseen or ‘multi-tiered’ dispute resolution clauses that take the parties from
obstacles arise (in the same way as engineers think about human beings mediated negotiation to full-scale arbitration. 119 Some market standard
as means for adjusting systems that might otherwise drift away from their agreements now exist as ‘suites’ - collections of documents using consist-
goals or outside their safety zones).114 But like engineers, lawyers are con- ent clauses that cover different possible deais in a market. 120 Re-using
scious of the costs of redundancy. Modern drafting style tends towards elements within statutes and between statutes (although the latter is not
eliminating long lists of overlapping Ítems, which are seen as tending encouraged by the Office of Parliamentary Counsel) are also attempts at
towards confusión,115 and favours dispute resolution procedures designed modularity (for example consistent definitions clauses). In the words of
to work in a defined sequence rather than in parallel.116 the House Office of Legal Counsel, drafting style should be ‘one of the
predictable, steady elements that attomeys use to reduce chaos to order,
Minimisation of elements is also a plausible goal of successful legal
and not one of the fluctuating factors that contribute to the chaos’. 121 At
design. It appears most clearly in the Office of Parliamentary Counsel
a more macro-level, the Uniform Commercial Code is in effect a modular
principie that unnecessary provisions ‘turn septic’, but it also lies behind
construction, allowing different states to opt for different variants but all
the Office of Legislative Counsel’s injunction to ‘cast out idle words’, 117 within a common list of alternatives.
and calis by writers on contractual drafting to excise unnecessary material, Whether there are limits to legal modularity at the macro-level lies at the
albeit subject to a warning that words that might look like ‘barnacles’ heart of one of the central debates in comparative law: whether projeets
acquired through unthinking repetition might in fact have some important for supra-national codifications such as the projected European Civil Code
but forgotten function.118 The conventional explanation for economy in are feasible.122 In effect, such projeets propose to insert into national legal
drafting is that courts tend to believe that statutory or contractual words systems a very large module that would replace existing national law across
musí have some function, so that the danger of including unnecessary areas as broad as the whole of prívate law. Some argüe that the project is
words or provisions is that judges will attribute functions to them that bound to fail because there are unspoken system-wide characteristics of
interfere with the intended meanings of other provisions. That is entirely different legal systems that mean that rules, even using the same terms, are
possible, but judicial interpretation is not the only possible source of con- never truly interoperable with the rest of the receiving legal system. The
fusión. It can arise just as easily from misunderstanding by those who read result will either be failure or a form of colonialism. 123 Others argüe that
the words for themselves. conceptual differences are smaller than opponents assert and that global
Modularity also appears in legal design, in the sense of chunks of inter- economic convergence is more important than the remaining conceptual
nally coherent text that can be slotted into larger documents and work well disparities.124
within them. Examples inelude standard arbitration clauses that fit into Settling that dispute is beyond the scope of the current work, but we
can at least attempt to specify more precisely what these kinds of claim

unrestricted objeets, however, there must still be some doubt whether the new
style company constitutions will catch on, especially for start up companies. The
119
pressure of standardisation might, however, cause the banks to reverse their policy. See e.g. Dobbins (2005).
120
114
Pahl et al. (2007) at 42. One might also include the courts and the judiciary E.g. the Loan Market Association’s model agreements. See http://www.lma.
as such a system, but the problem with the courts as a back-up redundant system is eu.com/pages.aspx?p=206.
121
that they are unreliable as means of ensuring that a legal device works. House Legislative Counsel’s Manual on Drafting Style (1995) at 7.
122
115
Butt and Castle (2006) at 57. See e.g. Arthur Hartkamp, Martijn Hessehnk, Edwoud Hondius, Chantal
116
Robert Dobbins, ‘The Layered Dispute Resolution Clause: From Boilerplate Mak and C. Edgar du Perron, Towards A European Civil Code 4th edition (Alphen
to Business Opportunity’ (2005) 1 Hastings Business Law Joumal 161-82. See aan den Rijn: Kluwer-Ars Aequi Libri, 2011).
123
also Gary Poon, The Corporate Counsel’s Guide to Mediation (Chicago: ABA E.g. Pierre Legrand, ‘Sens et Non-sens d’un Code Européen’ (1996) 4 Revue
Publishing, 2010) 15-24. intemationale de droit comparé 779-812.
124
117
House Legislative Counsel’s Manual on Drafting Style (1995) at 5. E.g. Klaus Peter Berger, ‘European Prívate Law, Lex Mercatoria and
118
Eidson Espenschied (2010) at 23. For the description of prior contractual Globalization’ in Arthur Hartkamp, Martijn Hesselink, Edwoud Hondius, Chantal
language building up like ‘barnacles’, see Philip Wood, Life after Lehman: Changes Mak and C. Edgar du Perron, Towards A European Civil Code 4th edition (Alphen
in Market Practice (London: Alien and Overy, 2009) at 9. aan den Rijn: Kluwer-Ars Aequi Libri, 2011).
92 Law as engineering Law as engineering 93

amount to. One can concede that the effects legal rules have on behaviour makes comparing them with engineers at least as useful as comparing them
can differ not because of differences in the rules themselves but because with other types of designer? The answer is that there is a way of doing
of differences in the social, economic, political and cultural environment that, although we possibly take it at the cost of having to retreat from the
within which they opérate. But that is not the same as arguing that rules edge of theory and back to the realm of analogy.
taken from one legal system to another, or created by transnational bodies, Turning first to litigators, the place we might start is to notice that for
are inherently incomprehensible in the receiving system. The former argu- litigators, the main obstacle to achieving their clients’ purposes is the activ-
ment is an uncontentious claim that rules, like any engineering device, ity of the other party, namely of some other lawyer’s client. Overcoming
interact with their environment, so that designers who ignore variations in that kind of obstacle does not sound much like an activity aimed at making
the environment might be surprised by the results. The latter is more akin people and objects work better together, and so does not sound much like
to a claim that we cannot understand legal systems by understanding the engineering, although there are forms of litigation - in which the parties
rules within them and that there are emergent properties of the system as want a point clarified but otherwise intend to carry on working together
a whole that can only be understood at the level of the system, proper- - in which that is precisely what is happening. Oddly, however, there is a
ties, moreover, that have ‘downward’ effects on the rules. Sceptics of such form of engineering that fits the more normal type of litigation, in which
‘strong’ emergent properties might suspect that the problem is merely that destruction of the other party is either an intended result of the process or
we have not understood the rules themselves in sufficient detail, but there one to which the client is indifferent, and it happens to be the original form
might well be properties of human languages that have to be explained of engineering in the modern world. It is military engineering. 126 The goal
in terms of emergence.125 Whether such problems are serious enough to of military engineers is to contribute to the success of military operations,
prevent interoperability is, however, a different question. It is perfectly and, when those operations take the form of armed conflict, their goal is
possible that, even taking into account ‘downward’ effects, the fit is within victory for their side over their adversarles.
acceptable levels of engineering tolerance. It should be conceded, however, that the lessons for litigation from
military engineering, and vice versa, are not as obvious of those of civil
engineering for transactional and legislative lawyering. One of the clas-
LITIGATORS AND JUDGES AS ENGINEERS sics of military engineering, P.S. Bond’s The Engineer in War, posits three
main areas of interest for the military engineer: transportation, fortifica-
If we take the work of transactions lawyers and legislative lawyers as the tion (including destroying the other side’s fortifications) and sanitation. 127
central case of what lawyers do, the analogy with what engineers do is easy Although one might be able to draw some analogies between military
to see. We can perhaps start to go beyond simple analogy and look for ways transportation and the need for litigators to construct flexible arguments
to use engineering as a model for understanding what lawyers do and for that allow them to change tack at short notice, and between fortification
providing ideas for practical improvement in both directions. Indeed, to and the way litigators seek to build impregnable arguments by thinking
the extent that engineering increasingly deais with sociotechnical systems, about how the other side might attack them, it is difficult to see a litigation
and law forms part of such systems, one can even start to contémplate parallel for sanitation, although one might think about whether litiga-
integrating law into engineering.
tors have any responsibility to clear up the mess in human relations that
But what about the types of lawyer whose work lies at the centre of
litigation often leaves behind.
the currently dominant paradigm, namely litigators and judges? Is there
There is, however, one aspect of military engineering that lawyers, espe-
any way of incorporating them into the view that lawyers can be seen as
engineers, or, to be more precise, that lawyers, like engineers, are concerned cially those brought up in common law systems, might fruitfully consider.
with design and that they are concerned with design in a manner that Bond pointed out that unlike civil engineers, who seek to build roads and
bridges to work for a long time, on firm foundations and with long-lasting
materials, military engineers build for the moment using whatever they

125
See e.g. Nick C. Ellis, ‘Emergentism, Connectionism and Language
Leaming’ (1998) 48(4) Language Leaming 631-64. Cf. Simone Glanert, ‘Speaking 126
I am grateful to Scott Boorman for this suggestion.
Language to Law: The Case of Europe’ (2008) 28 Legal Studies 161-71. 127
P.S. Bond, The Engineer in War (New York: Magraw-Hill, 1916) at 14.
liave to hand.128 Military roads and bridges on or near the battlefield are
94 Law as engineering Law as engineering 95
designed for speed of construction and immediate effectiveness, not for
permanence. The arguments of litigators are similarly designed for imme-
as consulting engineers who are asked to decide what to do about problems
diate effect in winning the current battle. They are not designed for long-
that have arisen in structures and devices designed and built by others.
term stability or for solving problems beyond the iminediate ones facing
One might even be able to identify parallels between judicial techniques
the litigator’s client. But in a common law system, where much of the law
and engineering methods. For example, judges often inelude an element
is built up from judicial decisions arising out of litigation, the result is
of redundaney in their judgments, especially in the lower courts where it is
that we can be left with legal structures built out of the legal equivalent of
common for judgments to be structured in the alternative (‘if I am wrong
the detritus of war. It is not as far-fetched as it might first appear to draw
about point X, there is also point Y, which produces the same result’). The
an analogy between, for example, the entirely judge-made English law of
narrowness of judicial reasoning might be seen as a consequence of the
psychiatric injury in negligence, once described by a leading scholar as
judges’ lack of capacity for 129 option testing and thus an understandable
confused, unedifying and, in some respects ‘grotesque’, and the trans-
reluctance to make changes the effeets of which are uncertain. But even
port infrastructure of a recent battlefield. Both are full of roads that lead
if we can describe judges as consulting engineers, we should recognise
nowhere, bridges that cross obstacles that once seemed important but no
that they often seem to be working without access to the original draw-
longer matter and vehicles that were once useful in getting somewhere but
ings and to be trying to guess the function of the device they are called
are now bumt out and abandoned.
upon to repair entirely from the complaints of those who claim that it has
Moving onto judges, it is possible to conceive of their work precisely as
stopped working. It is a form of reverse engineering without the benefit of
building long-lasting and useful legal structures out of the temporary and
understanding much about what the product does.
improvised material of litigation. They would be the judges in the tradi-
One might justify the processes of the common law as an exercise in the
tion of, for example, Karl Llewellyn’s Grand Style or Ronald Dworkin’s
co-evolution of problems and solutions, or what Simón called ‘designing
Hércules.130 But most judges are reluctant designers. They tend to decide
without final goals’, in which each solution changes our understand-
cases on the narrowest plausible grounds, disturbing the existing structures
ing of the problem, and so also changes what the next solution needs to
as little as possible. One of the reasons for their reluctance is they face a
achieve.133 When the process works, the very act of designing solutions
fundamental problem that they have no client whose objectives and goals
leads to a better understanding of the problems. Where it does not work, at
they can work towards. They might attempt to construct a client - ‘the
least it might have revealed that the problems we face exhibit the third kind
public interest’ or ‘the people’ - out of the constitution they work within
of impossibility, that there is no satisfactory way of stating the problem
or the valúes inherent in the law, 131 but that exercise is full of peril, not
so that it can be solved. It is difficult, however, to see how even this kind
least because it threatens to bring them into the heart of politics. Another,
of process can work without judges having some initial view of what the
more realistic, way to think of judges is as bricoleurs, as do-it-yourself
problems are and without engaging in a conscious effort at designing
bodgers who use whatever is to hand to keep the structure of the law from
solutions. Where judges refuse to see themselves as engaged in any form
falling apart.132 If that seems too lowly, perhaps we could describe judges
of engineering, or any form of conscious design, they are unlikely to gain
enlightenment.

128
Bond (1916) at 12-13.
NEXT STEPS
129
Jane Stapleton, ‘In Restraint of Tort’ in Peter Birks (ed.), The Frontiers of
Liability vol. 2 (Oxford: Oxford U.P., 1994) at 87.
The purpose of this chapter was to show that there is a unifying theme for
130
For the Grand Style, see e.g. Llewellyn (1960b). For Hércules, see Ronald what lawyers do, namely the theme that lawyers, like engineers, make useful
Dworkin, Law’s Empire (London: Fontana, 1986). devices. It has gone on to show that we can use the analogy between law
131
Simón (1996) at 153 describes a similar process of constructing society as and engineering, especially between law and engineering design, to ¡Ilumí-
one’s client. nate further how lawyers achieve their effeets, and even to use the analogy
132
See Nigel Simmonds, ‘Bluntness and Bricolage’ in Hyman Gross and Ross
Harrison (eds), Jurisprudence: Cambridge Essays (Oxford: Oxford U.P., 1992)
and, in a narrower context, Gerald Garvey, Constitutional Bricolage (Princeton:
133
Princeton U.P., 1971). Simón (1996) at 162-64.
We now
96 turn Lawtoas engineering the question of what difference widespread acceptance of
the law-as-engineering perspective would make. We look at the implica-
tions in three areas: lawyers’
to suggest possible improvements in legal practice. The rest of this book is professional ethics, legal education, and legal
research. In thisdevoted
chapter largely
we consider the first
to teasing outitem on initial
some that listthoughts about the implications
We of start with as principally
treating lawyering a a form of problem
engineering, firstoffor practis- legal ethics that currently has no satisfactory
answer, namely in the fieldthe
ing lawyers of legal ethics responsibility
and then for academicoflawyers, in lawyers for the effects of devices they
design termsonof what they third
research and teach.parties. We then suggest that engineers have been think-
ing about ethical questions with
https://www.elespectador.com/noticias/judicial/el-profesor-que-quiere- many parallelsImplications (1) - Professional
with that issue, and that
the
forward
way engineers have
arreglar-el-sistema-judicial-desde-la-ingenieria/
for lawyers. We
reasoned
conclude
https://people.physics.anu.edu.au/~tas110/Teaching/Lectures/L1/Mate
about
with
their
asking
ethics ethical
how
issues
legal
provides
ethics might
a way
work
if it rial/WEAVER1947.pdf
started with the concerns of lawyers whose main work is comparable
to that of engineers.

THE FALL OF LEHMAN BROTHERS AND REPO 105S

What responsibility do lawyers bear for harmful effects on third parties of
the transactions they facilítate? This is not a trivial problem. The clearest
examples arise from an event of global significance, namely the collapse of
the world’s financial markets in 2007-9, a disaster in which lawyers played
an important, but as yet under-reported part.
Let us start with the fall of the investment bank Lehman Brothers in
September 2008, one of the crucial events in the financial crisis. The col-
lapse of Lehman, including the failure of attempts to rescue it, is often
taken by economists to be the central event of the Great Crash, and the
point at which the effects of a crisis in the financial markets started to leech
into the rest of the economy.1 Lehman’s collapse carne at the end of long

1
E.g. Charles Bean, ‘The Great Moderation, the Great Panic and the Great
Contraction’ (2010) 8 Joumal of the European Economic Association 289-325,
Jagjit Chadha, Sean Holly (eds), Interest Rates, Prices and Liquidity: Lessons
from the Financial Crisis (Cambridge: Cambridge U.P., 2012) at e.g. 108, 172-74,
197-201, 218-22, 240, 253-58. For a somewhat breathless account of the events,

97