The spirit is willing but the flesh is weak…

By Legal Eagle

I was at an event for restitution lawyers the other day, when one of the academics present made a good point. She said that she thought restitution lawyers had “tidy minds”. They wanted the law to be tidy. I think she is absolutely correct. The desire is that like cases be treated alike, regardless of whether they arise in equity or the common law. If the basic triggers of various causes of action are the same, then they should be grouped together, not scattered in 7 random places and random textbooks.

I do have a very categorical mind. When I teach, I like to provide my students with little flow charts which show how the law works. If it can’t be reduced to a one page flow chart, there’s something wrong with it and it needs to be cleaned up. I like to group similar beasts together, and I don’t particularly care whether they come from equity or the common law. I care about what they do, and what they mean for the plaintiff and defendant.

Unfortunately, outside of my own head, I am not at all tidy. I mentioned last year that I purchased a labelling machine in an effort to get the piles of paper off my desk and into neat labelled folders. I developed a beautiful filing system for most things – it was very logical. Unfortunately, as I sit at this desk here, I am surrounded by my usual piles of paper. Some are even on the floor, in the lounge and in the kitchen. Perhaps it’s a form of entropy – gradually, over time, my papers disperse themselve throughout the room, and then throughout the house. My systems all work beautifully in theory but when I put them into practice…they work for a few weeks or a few months…and then the wheels fall off. Then I have to have a big cleaning binge, and the whole system is reformed again for a while. My spirit is willing to create order, but my flesh is weak…

It is even worse when you have to share your system with someone else. I reorganised the pantry about 2 months ago. It has now degenerated into a shambles again. My husband has put things in the wrong place. Given that he’s been good enough to put away the shopping in the first place, I don’t think it’s a good idea (or very nice) to bug him about it. However, it shows that even when you have a principled system, another person might have different ideas on how it should best be used, particularly if you didn’t explain the principles to him in the first place, but just expected him to notice all the rice was in the back right-hand corner. And he really can’t be blamed for the fact that I bought a 2 kg bag of rice which doesn’t fit in the back right-hand corner.

I have decided that private law is like my pantry, except that there are hundreds and thousands of other people stacking groceries in it. If you want some kind of order, it’s good to have labels on the shelf for other people to follow, so that at least the rice at least ends up vaguely in the same place, even if it’s not exactly where you would have placed it. Sometimes you might get a case which is like my 2 kg bag of rice – it just doesn’t fit the structure. But nonetheless, a system does make it easier for others to understand what is going on, or to say that a case is altogether wrong when the rice ends up in the fridge, not the pantry.

The difference between my pantry and the law, of course, is that nothing much hinges on whether or not someone can easily find where the rice is. However, the legal system depends upon a system of advisors (barristers and solicitors) being able to predict where a case will end up, or whether it will be thrown out entirely.

In the case of Australia, it’s a bit like the system was devised in the 1800s when the principles of packing away one’s groceries were entirely different. Perhaps one could even say the system was originally a bit like one of those ultra Orthodox Jewish kosher kitchens where the milk and the meat never mix, and there are separate cupboards, fridges and stoves for the cooking and storing of each. Even though there is no reason not to mix milk and meat these days, the structure still permeates the whole kitchen, and gets in the way of organising things properly. But judges like Gummow J and Heydon J insist that we must keep the division between milk and meat in our pantries, even though this leads to confusion, anomalies and duplication. (Ha ha ha! I bet they’ve never thought of themselves as kosher before.)

So, even though my systems always end up moving towards chaos, my pantry analogy tells me that I think some kind of order is very important. At the moment, I am working on developing two systems. The first system is a scheme of when accounts of profits should be available for breach of contract. That is working very nicely, thank you. It looks very neat and I have managed to reduce it down to a one page flowchart. The other system…well, that’s my filing system. It’s not working so well. There are Christmas cards and photo paper interleaved with the pile of restitutionary damages cases (seriously, I’m looking at them right now). One day, just one day, I might be able to get one of my systems to work outside of my head!


  1. Posted May 6, 2009 at 9:38 am | Permalink

    LE, have you read Mary Douglas’s Purity and Danger? I think you would really enjoy it.

  2. Jacques Chester
    Posted May 6, 2009 at 2:46 pm | Permalink

    In working on your flowcharts, you may like to consider McCabe’s “cyclometric complexity” metric.

    Essentially you count the lines between boxes (E) and the boxes themselves (N).

    Then substract N from E and add 2:

    C = E – N + 2

    The number you get is every independent pathway through the flowchart. In software we (supposedly) use this for developing our tests, to ensure that we test every possible path through the code.

    Perhaps lawyers could find a use for it too: identifying tricky areas likely to be mucked up, or ensuring when arguing that you’ve explicitly counted every possibility.

    Eg. If there are 6 pathways through the code, have you checked the facts in each of the 6 paths? Do you need 6 subtitles in your pleadings? etc etc.

  3. Jacques Chester
    Posted May 6, 2009 at 2:49 pm | Permalink

    Or another thought. Say you think the case overlaps two areas of law — constitutional heads of power and contract offers, to pick two at random.

    Then you turn to your flowcharts. The chart for heads of power has a cyclometric score of 3 and the contract offers has a score of 14. This suggests that you will need to spend more time on the contracts section by an approximately 14:3 ratio. It also suggests that you chances of mucking up the contracts arguments is higher, but so is the other lawyer’s.

  4. Posted May 6, 2009 at 2:51 pm | Permalink

    Argh! Your argument was doing so well, and then you blew it! Yes, Law is like a pantry, except that EVERYONE is putting things in it, so one guy’s idea of how to make it neat is never going to work. So the (very few) people with minds THAT tidy just have to accept that everyone has a different system. It’s not that any one system is bad necessarily, it’s that no-one’s ever going to agree. By George, I think she’s got it!

    Then you blew it, with the hoary old argument that we HAVE to agree because otherwise lawyers won’t be able to advise properly. But they can and they do! And there’s no evidence that they’d do it any better under a more rigorous scheme for restitution! (Do German lawyers answer restitution questions more efficiently / charge less for answering them than common lawyers? I don’t think so!) There ALWAYS will be cases that don’t fit in the rest of the law, and they ALWAYS will be put in the “restitution” pantry, because there’s nowhere else to put them. And, actually, the world goes on turning despite this, and restitution lawyers continue to have such great conferences PRECISELY BECAUSE there isn’t a neat answer everyone will agree on. The same way a hamster has such a great time on the wheel, PRECISELY BECAUSE he’ll never climb to the top of it!



  5. Lang Mack
    Posted May 6, 2009 at 4:59 pm | Permalink

    It really is simple. In rural terms you keep:
    The rams from the ewes
    The bulls from the cows
    The dog from the bitch,
    Until the required time.Tidy.
    (I may have some Boarder Collie pups soon and a few poddy lambs and calves, I mean, no one’s perfect.)

  6. Lang Mack
    Posted May 6, 2009 at 5:44 pm | Permalink

    LE, isn’t boundary an interesting word..

  7. Posted May 6, 2009 at 6:00 pm | Permalink

    Nominated for my BBP2009. Have not stopped laughing yet. BTW sorry for absence, but I have had two conferences in two weeks, & have to present a paper tomorrow.

  8. Lang Mack
    Posted May 6, 2009 at 6:28 pm | Permalink

    Sl, this is serious. A lot of planning goes into disorder.

  9. Lang Mack
    Posted May 6, 2009 at 7:01 pm | Permalink

    I’m fascinated by boundaries.
    Hah, well, you may well know or crossed(sorry about that :)), give and take boundaries.
    This all applies to your “The spirit is willing but the flesh is weak…”albiet, cross bordering.

  10. Posted May 6, 2009 at 7:03 pm | Permalink

    Ontology (in the information management sense) with multiple classification schemata ain’t that easy, is it?

    The worst for me is my library. Hmmm, do I put “I Claudius” in fiction, or sitting next to Suetonius? Do I put Principia Mathematica next to “Short History of Western Philosophy” and “Why I am not a Christian” or next to “On formally undecidable propositions of Principia Mathematica and related systems”, with “Godel Escher Bach” next to it.

    And then there is the problem when you get a book that has an obvious location for it on the shelf, but it would be the only huge book in a short shelf of paperbacks (especially if you have to stack your books horizontally and two deep on the shelves to find the room).

    And then there are the nice pairs with little commonality, like “Short History of Western Philosophy” and “Short History of Chinese Philosophy”.

    Hmmm. One weekend soon I’m gonna hafta rework things again – or maybe invest in RFID!

  11. Lang Mack
    Posted May 6, 2009 at 8:48 pm | Permalink

    Dave Bath, very impressive with the titles and the quandary, I’m still struggling with “Dust my Broom”although it’s only about six years and I’m about 80% through it. Sort of reminds you that a “Short History of Chinese Philosophy”was shorter, well I hope it is/was’
    I may tackle “How to be Orderly”by L.E. Anon with the ISBN at the back, and SC on the cover peering through a theodolite, if I can find it, however the burning question is,
    do I put the ‘Best Of’, ‘Cooking With’, ‘Jungle Blues’,’Jam in Chicago’,’Kings of Harp’ more, before or later the name order as some ‘names’ are there.
    “Why I am not a Christian” , no problems, that goes next to ‘Mechanical Devices”.

  12. Posted May 6, 2009 at 9:59 pm | Permalink

    Off topic: Mary Douglas’ Purity and Danger was – apart from a seminal work in social anthropology in its own right – a very influential work for Old Testament scholars, particularly for those examining the laws of Leviticus etc. She wrote quite a bit on Leviticus herself include one monograph.

  13. Jacques Chester
    Posted May 6, 2009 at 10:48 pm | Permalink

    Ontology (in the information management sense) with multiple classification schemata ain’t that easy, is it?

    Which is why relational databases left hierarchical databases in their dust a long time ago, right? 😀

  14. Posted May 7, 2009 at 12:12 am | Permalink

    Enjoyable read LE!

  15. frank luff
    Posted May 7, 2009 at 9:28 am | Permalink

    I have never been in a barristers rooms without remarking the rolls of files being “on the floor,behind the door, or on the kitchen table”

  16. Richard
    Posted May 7, 2009 at 1:46 pm | Permalink

    Some novelists profess to use flowcharts and they’re quite in vogue in all types of non-scientific, non-technical government policy and project work to the extent that many managers now insist on having electronic whiteboards in their offices for precisely this purpose.

    My view is that’s all well and good for individuals so inclined but for some of us the sight of a someone addressing a captive audience via a flowchart, simple or complex, badly drawn or computer perfect is cause for the heebie-jeebies and the cessation of all thought but the desire to run screaming from the room.

  17. littlewing
    Posted May 7, 2009 at 3:10 pm | Permalink

    Posts and threads like this remind me why I love reading this blog so much. Now if only I could read SL and LE after I do my law readings for uni and not as a means of procrastination…..

  18. Jacques Chester
    Posted May 7, 2009 at 3:50 pm | Permalink

    LE @ 8 — since lawyers keep good time records, at the end of each case you should be able to take the cyclomatic complexity measure of that case and compare it to the time and cost.

    Over time you’ll be able to build up a useful database of how long a case should last, with standard deviation, based on what areas of law it touches.

    You might not share this with clients, but it would be useful internally for budgeting, planning hiring, deciding what new cases to take on etc.

  19. Posted May 7, 2009 at 6:33 pm | Permalink

    Mary Douglas’ monograph on Leviticus as Literature (from an anthropological rather than theological point of view, although Douglas herself was a committed Catholic)

  20. Posted May 7, 2009 at 6:35 pm | Permalink

    [email protected] “long a case should last … areas of law it touches.”
    That’s assuming the cases are properly metadata-ed up… but apparently most firms a friend of mine works in (he works in the background writing skeletons and opinions for senior partners) are pretty awful at finding work just like the work they did before. (God I love ISO 20000)

    [email protected]: MS-PP “It’s only good as a presentation tool if you are doing something like engineering”.
    Not enough good enough for that. In “techland” it’s usually only business architects that program in powerpoint.

  21. Jacques Chester
    Posted May 7, 2009 at 6:44 pm | Permalink

    Don’t forget Visio. The number of multi-billion dollar decisions that are constrained by people’s limited understanding of that baroque tool is staggering.

    And then there’s Excel …

  22. Jacques Chester
    Posted May 7, 2009 at 6:45 pm | Permalink

    But yes, my scheme depends on a good data model.

    There would be a lucrative market in this, if I could be arsed.

  23. Posted May 7, 2009 at 9:55 pm | Permalink

    [email protected] : Look at legalxml, legalrdf and lexml. Combine this with crawling trigraph analysis and government thesauri….

    [email protected]: “Ah techland… Can I tell my joke about the three engineers”
    * How many software engineers does it take to change a lightglobe? None – it’s a hardware problem.
    * How many computer hardware engineers does it take to change a lightglobe? None – you’re supposed to be able to emulate everything in software these days.

  24. Posted May 8, 2009 at 3:26 pm | Permalink

    That post seems like it would be a really good talk, if you had to give a talk, to graduates or schoolies or something like that.

  25. Posted May 8, 2009 at 3:26 pm | Permalink

    Lang Mack, if I got one of your Boarder collies would he pay to stay with me?

  26. Posted May 8, 2009 at 3:40 pm | Permalink

    Oh yeah. When the Baron had to give a talk to a La Trobe college it was about the virtues of procrastination, and Laura’s tossing up the possibility of doing one about plagiarism.

    How about a talk entitled ‘Effective House Manglerment’? Or ‘Disorganisation and its Discontents’?

  27. Lang Mack
    Posted May 8, 2009 at 4:46 pm | Permalink

    Helen said,

    ‘Lang Mack, if I got one of your Boarder Collies would he pay to stay with me?’
    Helen, Boarder Collies THINK they are the canine equivalent of a combination of Max Planck and George Clooney,however far smarter and more desirable. The females are vain.
    Are you hard to train?..

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  1. By skepticlawyer » The limits of law on January 19, 2010 at 9:07 pm

    […] contract. It’s one of the reasons I like restitution law – as I’ve explained in an earlier post, I think restitution lawyers have “tidy minds”. Simplification of the law is a worthy […]

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