Saturday, June 22, 2019

Strategic Advice and Marking-to-Market in Law (and Political Analysis)

Mark Tushnet

The Guardian has a long-form article on the strategist Edward Luttwak. He apparently gives a lot of strategic advice to a lot of people, on a lot of diverse topics. To the extent the article describes his general approach, it is this: "doing the least efficient thing possible in order to gain the upper hand over your enemy by confusing them." (I'm pretty sure that this can't be a Nash-equilibrium strategy, but put that aside.) What's striking about the article is that it says almost nothing about whether his advice is good advice -- that is, whether people who follow it are better off than if they had done what someone else (or their own instincts) would have recommended.

"Almost nothing," because there is this: "the best notice [for his book offering advice on how to conduct a coup d'etat] came in 1972, when General Mohammad Oufkir was assassinated during an attempted coup against King Hassan in Morocco; it was rumoured, to Luttwak’s delight, that a blood-spattered copy of Coup d’Etat was found on the general’s corpse." I would have thought that the delight would come had the book been found on the king's corpse.

Do these observations have any relation to my interests in constitutional law and politics? Indirectly: A lot of informal commentary about those topics, and some efforts at "theorizing," has a Luttwak-like character. People trained in law (and, sometimes, in political science) offer broad arguments about what might happen if the Court did X or Congress did Y -- with no real evidence offered other than the author's credentials and, sometimes, air of complete self-assurance (Luttwak apparently has that in spades). I once called this the lawyer-as-astrophysicist phenomenon: Legal training apparently gives a lot of people a Luttwak-like confidence that, had they the time, they could become rocket scientists -- and so they shoot rockets off without taking the time to get the training.

At least when law professors have a track record of talking about the political implications of Supreme Court decisions or congressional actions, before we take their (my) current views into account we should ask whether they have systematically "marked to market" their views, that is, retrospectively adjusted them when they turned out to be mistaken.

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