
One thing that surprises and interests me, as an adult, is what I remember from my education. I spent years in school, I learned many things – most of which I have long forgotten. For instance, law school. I spent three years at Yale Law School, I took many classes, I sat for long exams. What do I remember? Not much, but certain things do stick.
For one thing, from my second year in law school, I remember my Business Organization professor, Judge Ralph Winter, telling us, almost as an aside, “The investor who is wise, diversifies.” That is excellent advice in many diverse situations.
Incidentally, that line also taught me the power of the “fluency heuristic”—the cognitive tendency that means that we judge easy-to-process information as more true, valuable, or preferable than information that requires more effort to understand. Plus statements that rhyme are easier to remember.
I also remember my absolute delight when I encountered the concept of a “Restatement of Law,” which is a kind of treatise that attempts to clarify and systematize common law in a particular area, such as Contracts, Torts, or Property. I love that kind of thing! In fact, with co-author Jamie Heller, a law-school classmate who is still one of my best friends, I published a parody “Restatement” in the Yale Law Journal called “Restatement of Love (Tentative Draft).” (I say it’s a parody, but be warned—it’s only funny if you’re very familiar with Restatements.)
But maybe the idea that I most often recall– and that I most often invoke in everyday life – is an observation made by my Property professor Robert Ellickson, who wrote an influential book called Order Without Law: How Neighbors Settle Disputes. Here’s a description:
In Order Without Law, Robert Ellickson shows that law is far less important than is generally thought. He demonstrates that people largely govern themselves by means of informal rules―social norms―that develop without the aid of a state or other central coordinator. Integrating the latest scholarship in law, economics, sociology, game theory, and anthropology, Ellickson investigates the uncharted world within which order is successfully achieved without law.
That’s an idea I’ve always remembered. And I remember him saying in class – and of course, this is what I remember, decades later, so I can’t guarantee its accuracy–“It’s almost impossible to make people follow the law. It’s too hard and too expensive to enforce laws. For the most part, people decide to follow the law.”
I feel very strongly about the law, and the importance of the rule of law. I get tears in my eyes every time I see the words inscribed above the main entrance of the United States Supreme Court Building, “Equal Justice Under Law,” and the words inscribed under the East Pediment, “Justice the Guardian of Liberty.”
Also, in my Four Tendencies personality framework, I’m an “Upholder,” which means that I readily meet both inner and outer expectations.
It’s absolutely astonishing to me, sometimes, to see people just decide not to follow the law, flagrantly to flout it. I marvel at their imagination. It simply wouldn’t occur to me to break a law, to see that it could be broken. For instance, if I promised that I would do something, it just wouldn’t occur to me that I could decide not to do it. It wouldn’t even cross my mind! And I’ve come to understand that that’s truly a failure of vision on my part. Because it’s possible, it’s obviously possible, to choose to become the kind of person who doesn’t follow the law.
This observation reminds me of another Little Happier story I told, in which, in a surprising and probably unprecedented match-up, I discuss how British statesman Winston Churchill and Lady Olenna Tyrell, a fictional character from the HBO series Game of Thrones, make an identical observation: Sometimes, those who love order and have a traditional understanding of the proper limits of behavior can’t see the terrible possibilities available to those who are willing to go beyond all lawful boundaries.
I’m also reminded of an observation made by writer John Gardner, one that haunts me: John Gardner: “Every time you break the law you pay, and every time you obey the law you pay.”
There is a price for breaking the law, and there is a price for obeying the law.
What my law professor pointed out is that, to a much greater degree than might be supposed, it’s possible to decide for yourself.