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And herein lies the tension and profound dilemma of the received approach to modern legal practice. For we commercial lawyers are charged with anticipating ''the [[future]]'' but we are sent out to battle armed with a methodology drawn exclusively from ''[[Past results are no guarantee of future performance|the past]]''. Just occasionally, this [[dissonance]] rears up and hits us, when the formal imperatives of [[legibility]] take priority over the logic of common sense. When, say, the financial controller insists {{sex|she}} must hold capital against undoubted shortcomings in a contract documenting a transaction that has already matured — a risk that ''did not come about and no longer can'', even though the reporting period rumbles on. That kind of thing. | And herein lies the tension and profound dilemma of the received approach to modern legal practice. For we commercial lawyers are charged with anticipating ''the [[future]]'' but we are sent out to battle armed with a methodology drawn exclusively from ''[[Past results are no guarantee of future performance|the past]]''. Just occasionally, this [[dissonance]] rears up and hits us, when the formal imperatives of [[legibility]] take priority over the logic of common sense. When, say, the financial controller insists {{sex|she}} must hold capital against undoubted shortcomings in a contract documenting a transaction that has already matured — a risk that ''did not come about and no longer can'', even though the reporting period rumbles on. That kind of thing. | ||
It is a persistent frame: by the time we get around to analysing any catastrophe and how it played out, all circumstances are known, all options have crystallised and all discretions have hardened. The employee who, with imperfect information and in the fog of war, tacked to ''starboard'' when hindsight revealed a safe harbour to ''port'' finds {{sex|himself}} short an very ugly option which those with executive responsibility for his performance will be mightily tempted to exercise. This is the lesson of {{fieldguide}}: | It is a persistent frame: by the time we get around to analysing any catastrophe and how it played out, all circumstances are known, all options have crystallised and all discretions have hardened. The employee who, with imperfect information and in the fog of war, tacked to ''starboard'' when hindsight revealed a safe harbour to ''port'' finds {{sex|himself}} short an very ugly option which those with executive responsibility for his performance will be mightily tempted to exercise. This is the lesson of {{fieldguide}}: the executive blames the [[meatware]], because by doing so, it exonerates the executive. | ||
What caused the catastrophe — an inquiry one can only launch upstream — forms, informs, and reforms the ''down''stream narrative. Take [[Madoff]]: now we have [[No One Would Listen: A True Financial Thriller|the book]], the film, the exposés, the fabulously gruesome congressional committee hearings, ''everything'' about his investment strategy is ''obviously'' bogus. How could this possibly be allowed to happen? There can be only one explanation: someone further down the chain was asleep at the switch. This is where the historian’s perspective is more useful than the [[thought leader]]’s.<ref>Sidebar: {{author|Thomas Kuhn}}, the greatest of all philosophers of science, was neither a scientist nor a professional philosopher but a ''historian''.</ref> We know Madoff’s regulators were ''not'' asleep at the switch because we have {{authorHarry Markopolos}}’s testimony that they ''can’t have been'': he kept prodding them in the ribs and pointing out exactly the anomalies they should have, the now agree in hindsight, been alarmed by.<ref>His paper to the SEC, in November 2005 —more than ''three years'' before Madoff eventually shopped himself (even then the SEC didn’t see it!), was entitled “The World’s Largest Hedge Fund is a Fraud.”</ref> | What caused the catastrophe — an inquiry one can only launch upstream — forms, informs, and reforms the ''down''stream [[narrative]]. Take [[Madoff]]: now we have [[No One Would Listen: A True Financial Thriller|the book]], the film, the exposés, the fabulously gruesome congressional committee hearings, ''everything'' about his investment strategy is ''obviously'' bogus. How could this possibly be allowed to happen? There can be only one explanation: someone further down the chain was asleep at the switch. This is where the historian’s perspective is more useful than the [[thought leader]]’s.<ref>Sidebar: {{author|Thomas Kuhn}}, the greatest of all philosophers of science, was neither a scientist nor a professional philosopher but a ''historian''.</ref> We know Madoff’s regulators were ''not'' asleep at the switch because we have {{authorHarry Markopolos}}’s testimony that they ''can’t have been'': he kept prodding them in the ribs and pointing out exactly the anomalies they should have, the now agree in hindsight, been alarmed by.<ref>His paper to the SEC, in November 2005 —more than ''three years'' before Madoff eventually shopped himself (even then the SEC didn’t see it!), was entitled “The World’s Largest Hedge Fund is a Fraud.”</ref> | ||
it wasn't that the operators were asleep, that is to say, but that ''their switch didn’t work''. But a maladroit switch is the responsibility of the executive, not the worker. | it wasn't that the operators were asleep, that is to say, but that ''their switch didn’t work''. But a maladroit switch is the responsibility of the executive, not the worker. | ||