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Donald Boudreaux

Donald J. Boudreaux: Please, no hypotheticals

| Tuesday, Dec. 26, 2017, 9:00 p.m.
Detroit Free Press
Detroit Free Press

Years ago, on my first day of law school at the University of Virginia, my torts-law professor declared “hypotheticals” off-limits: “We'll discuss only actual cases; I don't want to hear any ‘what-if-this' or ‘what-if-that.'” Later that day, my contracts-law professor announced the same rule: “No hypotheticals.”

My disappointment was real. Hypotheticals are interesting, yet from the get-go in law school, we were barred from bringing them up in class. At the time, I didn't appreciate this policy, but I've since come to see its great wisdom: Law deals with what actually happens when humans interact; law is not an abstract philosophy of human or social perfection.

Too many who enroll in law school seek to “change the world.” They think of law and government as tools for social engineers. And social engineering, by its nature, is an effort to replace an imperfect reality with a closer-to-perfection ideal — which is the product of the social engineer's imagination.

Among the many problems is that each social engineer imagines a different ideal. One might wish for a society with greater income equality, while another wants faster economic growth. Because these two ideals at some point conflict — and because the choice between them is necessarily one of values and not of objective science — there's no way to use social engineering to make this decision.

But there's a much deeper problem: Reality is vastly more complex than even the most brilliant social engineer can grasp. Individuals are astonishingly creative in figuring out how best to achieve their goals — far too creative for social engineers to anticipate all the many ways that individuals will react to any social-engineeering blueprint's carrots and stick. When, for instance, government restricts use of lands declared habitats for endangered species, some owners quickly and secretly kill animals on their lands that might be endangered to avoid losing control over their lands to the government. This “shoot, shovel and shut up” practice is only one among countless instances of human ingenuity outwitting social engineers in ways that produce results quite the opposite of those sought by the engineers.

Among the most important lessons from a careful study of law is just how important seemingly minute details are to human interactions. Should the rancher be held liable if his wandering cattle destroy some of the farmer's crops? The answer depends on countless details. Did the rancher start ranching at that location before or after the farmer started farming there? Should the farmer have kept his fence in better repair? Is the cattle's wandering unusual or typical — and, if unusual, what caused the cattle to wander?

Each real-world legal case is decided in light of a surprisingly large number of relevant, specific details. Very few can be anticipated in the abstract. And so, my professors' stricture against hypotheticals: Reality is complex enough. Hypotheticals cause law students to divert valuable time toward pondering imaginary “facts,” and hence, away from the vital task of studying actual facts' interplay and consequences.

Donald J. Boudreaux is a professor of economics and Getchell Chair at George Mason University in Fairfax, Va. His column appears twice monthly.

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