The Philosophical Justification for Civic Capitalism

In a forthcoming article in the Emory Law Review, Scott Harshbarger and I address some of the issues that have come out of the recent financial crisis. In the next days and weeks, I'll be blogging about that article. But for now, I want to take a step back and talk about the philosophical justification for the position we advance in that paper. The discussion below doesn't appear in the article -- because of space limitations, we couldn't include it in the text. [NB: this is pretty long]

A Gap to Be Bridged? You tell me...

I have this crazy theory that one key difference between the way doctors and lawyers think involves the way each assesses status conditions. I don't want to fully expound my idea at this time, because I think it will be more valuable to first test it by asking the following question:

If a condition is defined as "X," and an individual or entity would (seemingly) satisfy this condition without taking affirmative steps to avoid being classified as such, can they appropriately be defined as "X?"

I know this is kind of abstract, so I'll break it down into two more practical (medical) examples:

1. Assume arguendo the status of hypertension (i.e. continual high blood pressure) is defined by having a blood pressure in excess of 160/100 on four occasions during the course of a year. A patient so qualifies, and is put on an exercise/medical regime to lower said blood pressure. Subsequently, in the following year, there are no blood pressure readings in excess of the qualifying minimum for the status classification. Can this patient be said to be suffering from hypertension?

2. Assume, similarly, the status of Diabetes is defined by having a single blood glucose level in excess of 250 mg/dL within the past year. After being diagnosed as such, said patient takes insulin shots and controls his or her glucose level for several years, during which the patient's blood glucose level does not exceed the qualifying minimum for the status classification. Can this patient be said to be suffering from Diabetes?

To an extent, my question is (and my examples are) philosophical; more importantly, however, I think the answers obtained here will highlight an interesting disparity between the way the legal mind operates vis-a-vis the doctor's mind. Maybe there's a gap to be bridged that extends beyond adopting a "Medical Based Approach" to legal education?

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UPDATE (6:35 PM): Responding to my initial post, a commenter asked for more information:

The real question is this. Who is paying me? Viable arguments can be made on both sides. It would really benefit this conversation to know where you are going with this. Better yet, a more detailed abstract explanation will not be as distracting.

I wanted to see some more responses before fully articulating my hunch, but now's as good a time as any--particularly since many commenters have highlighted the very point I was trying to drive at. Let me work through the two practical examples I use (to expand on the more general proposition).

Although the definitions for "diabetes" and "hypertension" differ from the descriptions I provided, I believe that almost every physician would describe the patient in example #1 to be suffering from "hypertension" and the patient in example #2 to be a diabetic if these were the correct clinical definitions. Lawyers, on the other hand, would (I think) use the approach Nima and our commenter employed--namely that the "real question is . . . [w]ho is paying me . . . ." because "[v]iable arguments can be made on both sides."

It's an interesting divergence in views, and I think it's fair to (as a commenter did) characterize this latter type of analysis as "rote application of rule to fact." That's really kind of the point--the mechanical way in which we are trained to apply law to fact, and argue both sides affects the way we analyze a problem as compared to physicians.

More succinctly, I would posit that doctors make determinations as to status based on the totality of the circumstances and background, while attorneys are often blinded away from doing so in pursuit of a (perhaps erroneous) perception of an even-handed argument. So, whether an individual does not--strictly speaking--meet the criterion for a particular ailment would not prevent physicians from characterizing the individual as such where they would meet the definition if not for their actions. But it may well prevent attorneys from reaching the same conclusion.