What Was Old is New – Narrative and Social Science in Law, History, and . . . Mergers and Acquisitions?

Dave Hoffman’s very interesting post below on the future of corporate law scholarship – as to which I posted a comment about “narrative” – got me to thinking about the reality of what goes on in a very complex corporate life, and academic attempts to distill that reality into meaningful scholarship. What follows incorporates some thoughts and text from a blog post I put up on Legal Profession Blog several months ago.

First, a disclaimer. I’m still sorting my way through the concept of narrative (see Cover’s seminal Nomos and Narrative), and I have been bugging my office next door neighbor, Jessica Silbey, about it as well. Narrative, as I understand it, at least in the context of legal studies, works from the viewpoint of the participants in (of victims of) the legal process. It stands as a contrast to third-party theorization, and has been a central feature of critical studies, because it gives voice to those historically under-represented – minorities, the poor, the uneducated, etc. But narrative is not exclusively the province of critical legal studies. Jessica’s most recent piece, The Mythical Beginnings of Intellectual Property Law (George Mason Law Review) uses narrative as an alternative approach to intellectual property law. Jessica’s ambitious thesis is that utilitarian (read: economic) theories of intellectual property law do not fully account for its importance. She posits a narrative significance to creativity, supported by intellectual property rights, as a form of the “origin myths” or “origin stories” (I think of Horatio Alger, or George Washington and the cherry tree, or Abraham smashing the idols) that serve as models for human behavior and give meaning to our lives.

Second, a context. Yesterday, the New York Times picked up again on the Cerberus-URI decision, linking it to speculation that targets in acquisitions will seek stronger contractual protection against deals falling through because of diminished force of reputational impact on an acquiror who backs out. What struck me again, as it did when I commented originally, was how hard it is for a participant in a deal negotiation that stretches over several weeks or months to reconstruct all of the ebbs, flows, ups, downs, inserts, deletions, morphs, retrenchments, amendments, flare-ups, deal-breakers, and compromises that invariably occur. It was no surprise to me that the lawyer for URI, on cross-examination, threw up his arms and testified that “anything is possible.”

So the question to me is the relationship between the kind of scholarly theorization Dave catalogued and the relevance (or impact) of that theorization to (or on) the corporate actors. I still recall the graduate student instructor (my long time friend and current University of Houston history and social work professor Andy Achenbaum) in the first session of the small section of my first U.S. history course describing the paper requirements, and telling us that we should think of them as “legal briefs.” As I had no idea what a good history paper nor a good legal brief looked like, it was not, at the time, particularly helpful advice. But I know now that all scholarship, implicitly or explicitly, makes an argument linking data through some structure or process of theorization.

The hot topic back then (mid-1970s) was the call to import social science methodology into historical analysis, as a (or the) way of making that argument. Another of my professors, Robert F. Berkhofer, Jr., had then recently written a book entitled A Behavioral Approach to Historical Analysis, a call to employ historiographical methods that pierced through the possibility of myth-making by understanding the roles of actors and interpreters in the writing of history. It was a reaction to the interpretive or narrative nature of the study of history, which had no doubt as much to do with the time and place of the narrator as it did of the actors. (The example I recall most vividly was that Arthur Schlesinger’s The Age of Jackson seemed to import a fair amount of the The Age of Roosevelt, reflecting as much the author as the subject.) That is, to what extent were historians writing history, versus writing the Great Stories?

I was separately, and for my own purposes, trying to construct what had happened to Berkhofer’s thesis about social science methods in history. I came upon a review, authored by Thomas Haskell at Rice, of Berkhofer’s 1995 book, Beyond the Great Story: History as Text and Discourse. (The review is “Farewell to Fallibilism: Robert Berkhofer’s Beyond the Great Story and the Allure of Post-Modernism,” 3 History and Theory 347 (1998)). Now, I have not read the book, only the review, but it serves my point here just as well. The review was devastating, but, despite my fond memories of my time with Professor Berkhofer, I have to admit I was sympathetic to its point, which was essentially this: there’s nothing like the reaction of the disappointed absolutist (read: Berkhofer the behavioral theorist) who despairs of his theory, and proceeds from rigorous causal explanation to a rejection of all theory with no stop in between for the possibility that life (read: history) is too complex either for algorithmic solution or complete deconstruction.

It seems to me that the same unresolved (and if Haskell is to be believed – and I think he is – unresolvable) issues of historiography, the perseverance of the old antinomies like explanation and understanding, of empiricism and intuition, prevail in the legal briefs we want to write as legal academics. This paragraph of Haskell’s review of Berkhofer stopped me in my tracks:

The lamentable inadequacy of the so-called “modernist paradigm” turns out to be that it will not reduce to an algorithm. On [Berkhofer’s] account, the normal paradigm makes of historical inquiry a fallible project, the crucial features of which cannot be embodied in any set of explicit instructions, or be carried out in any fixed mental mode. It requires of its practitioners that they be nimble enough to shift mental gears as the intellectual terrain varies and to juggle alternative modes of thought, which may pull in different directions. They must even dare to make judgment calls, with no guarantee of being right and every prospect of being criticized. Rather than declaring history to be purely an art or purely a science, the conventional paradigm assumes that historical inquiry, like life itself, displays elements of both. Indeed, it assumes that the mental repertoire of the historian differs in no deep, fundamental way from that of common sense, which is eclectic through and through. This strikes Berkhofer as intolerably messy and methodologically promiscuous, a project bound to fail because it naively encourages crossbreeding between different species of thought.

At least a substantial part of the way lawyers become experts is from hearing and applying lessons from the war stories of their mentors, from their own trial and error, and from the cycles of experience by which they incorporate market norms (that’s how URI’s lawyer knew that the specific performance clause he was requesting was “off-market”). That learning may well be “intolerably messy” and “methodologically promiscuous,” but it strikes me as a fruitful area for inquiry.

You may also like...

1 Response

  1. A.J. Sutter says:

    Certainly such messiness is worth more attention, and is well worth being called to students’ attention.

    Apropos of algorithms and cross-examination, Theodore Porter’s 1994 “Trust in Numbers” makes the point that the rise of “objective” decision-making procedures such as cost-benefit analysis were in large part as a defense against criticism. He details the rise of CBA as the Army Corps of Engineers’s response to political attacks on dam placement decisions. The apparent objectivity and transparency of the new decision-making process of course actually didn’t eliminate subjectivity from the ACE’s decisions; it just made the decisions less vulnerable to attack. (Porter also makes the point that some of the “subjective” siting decisions based on expert judgment rather than CBA might have been better decisions.) His point is that there’s a kind of trade-off between being able to rely on expert professional judgment and a democracy’s needs for transparency. The messiness of judgment (which also has historically been used as an excuse to hide some ugly biases and prejudices, it’s true) tends to give way to the transparency of method (though not necessarily transparency in the implementation of the method).

    In a legal system in which each side’s advocates try to make the messiness of real life look like a conspiracy or at least negligence, it’s no wonder that even lawyers can get exasperated when they’re on the stand. The rising importance of quantitation in corporate managerial style is also, I believe, partly due to the need for defensibility, so Porter’s notions can be connected to the “governance” boom. Judging by Dave Hoffman’s interesting post, maybe some of the same forces are shaping the corporate legal scholarship field as well, where junior scholars seem to be falling back on “if you can’t measure it, it isn’t real” (or at least some type of scholarly algortihm) in order to build defensible resumes. (Of course, not just defensibility but also forces like scientism are, I expect, behind the fashion for quantitation in management and social science scholarship, too.)

    And apropos of what was old being new, we’re a long way from the messy classical notion, “Homo sum; nihil humanum me alienum est” — “I am human; nothing human is alien to me” (cleaned up from Terence, 2nd Century BCE). Maybe the narrative approach brings us back to that; but in any case, trusting in your experience as a practitioner can help to reorient your students and maybe even your colleagues towards that direction.