Monday, June 05, 2006

A Call for Prophetic Lawmaking

Well I'm pretty sure I haven't hit that elusive “real world" quite yet (as opposed to the “not-so-real world” of a law stuent), but the first period has ended and I've decided to take off my skates and spend my summer cloistered deep within a federal agency while the proverbial zamboni machine smoothes the ice over.

During this past year as a 1L I felt like I was always looking up at laws - trying to decode which situations fit under their umbrella and which won't. In my two weeks of humble interning, however, I’ve had a much different experience: I'm looking down (or better, out) at laws, worrying more about future policy implications and how the entire landscape will look in ten years. And while those pesky factctual scenarios that I muddled through case by case still play a role in the analysis, they have become, at best, supporting actors in my mental theatre. And honestly, after a year dieting on nothing but cases, this new way of seeing things is a welcome change.

One thing this new vantage point has got me thinking about is the legislative process in general and the almost prophetic qualities that legislators must possess in order to make good policy. Just about any sort of theorizing (scientific, philosophical, legislative, etc.) involves an element of prediction. If Newton, for example, concludes that the gravitational constant of a falling body near earth is 9.8 m/s, then he not only means that to be true right now and everywhere, but he also means for it to be true tomorrow and in 473 years.

If prediction is an essential aspect of science or philosophy, then it is all the more important in legislation which, some would argue, affects people more directly than the gravitational constant of a falling body. Whether (and how) the government should regulate the internet, for example, and what words/concepts it uses in choosing how to regulate it, directly affects jobs and income and innovation. So if Congress passes a law or if an agency creates a regulation, and a year later a technological sea-change occurs, the governement has to scramble to shoehorn new and unforseen concepts into out-dated legislation (if such shoe-horning is even possible). Needless to say, it seems that a lot rides on a legislator’s ability to predict the future and legislate accordingly.

All this may be stating the obvious, and this is certainly not an attempt to create some paradigm shifting political theory here. Mostly, I just thought I’d share my excitement about seeing the legal world from a different view. It’s a nice change.


At 6/06/2006 02:09:00 AM,

Charles S. Peirce, arguably the American Aristotle, was big into this - he called it abduction . 

Posted by Mark Butler

At 6/06/2006 09:24:00 AM,

Sounds like a legislative version of "Newton-envy" - everyone wishes that their branch of thinking (be it history, biology, political "science") had the same uber-predictive capacity of physics




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