Recommended Reading: David A. Super’s Against Flexibility

Cornell Law Review just published Professor David Super’s article Against Flexibility, a forceful and engrossing indictment of flexibility and legal procrastination at its core.  Here is the abstract:

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.

Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief. 

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2 Responses

  1. Ken Rhodes says:

    >>programs built around flexibility failed badly through a combination of late and defective decisions.>>

    And these situations, and observations, are attributable to many aspects of our lives — law, business, sports and games, the arts …

    There are, of course, examples on the opposite side, where maintaining flexibility until the last minute preserves options, so as to be able to take the most effective action precisely when it’s needed.

    Nevertheless, a problem with folks who want to “maintain flexibility” is that they never know for sure when that moment has arrived, so the action is often taken when it’s no longer so effective as a plausible alternative action would have been if more timely. Thus having a set of templates prepared in advance is almost always productive.

    And this is an illustration of Rhodes’ Rule of Uncertainty: Life is more complicated than you realize, even when you take into account Rhodes’ Rule.

  2. A.J. Sutter says:

    This article lost me at ‘hello’: WHY should both public and private law (or either of them) be understood as “a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value”? (Let’s leave aside for now the problems with the whole “social value” metaphor.) Aren’t there also, say, expressive aspects to law? Douglas Kysar’s Regulating from Nowhere shows how this expressiveness is particularly important to decisions made in conditions of “information scarcity” (apropos of the precautionary principle).

    And if they do constitute a productive activity, why waste time advocating anything like our current system? Wouldn’t kangaroo courts and absolute dictatorship be more productive? Or consider the workload of Minos, Aiakos and Rhadamanthys, who had to judge all souls of the dead. Hell is a great model of productive legal decision making. Though perhaps some folks in the States are catching on to that.