The Black Swan

Here’s a weird story.
Let’s imagine we live in a world where we have recently discovered a new island someplace in the Pacific Ocean. It took our scientists a while to confirm the place is real and our minds and satellites are not playing tricks on us, but after a considerate amount of deliberation the time has finally come to deploy two pioneers to the unknown land.  

Everyone’s curious, excited and afraid of the unknown. The two scientists arrive at the island sooner than expected. Upon arrival nothing’s out of the ordinary, but after a few weeks of exploring the area they come to a terrifying conclusion: the mysterious island is a living entity which simply cannot be explained nor predicted by modern-day scientific theories. What seems like a distant run-of-the-mill fantasy has become nothing short of an egregious reality which seems to call for a new scientific status quo.  

It’s the kind of reality that makes for an extremely entertaining Hollywood production. We are faced with an improbable phenomenon, one that comes as a surprise and also has a major impact on our current system of beliefs. Before this discovery, any respectable scientist would not have had the guts to claim the existence of a similar island as it would have certainly required a strong a priori or extrapolating theory.

The discovery of the island is a black swan event. The concept of black swan events was popularized by essayist and statistician Nassim Nicholas Taleb in his book, The Black Swan: The Impact of the Highly Improbable. Not to be confused with Karl Popper’s scientific epistemological “falsificationism”, Taleb asserts that an event which comes as a surprise and has a major effect is often inappropriately rationalized with the benefit of hindsight. In the case of the island, if we are to believe Taleb, our scientists will eventually reach some sort of general ‘knew-it-all along’ consensus. They will have convinced themselves that the discovery of the new island, which contradicts any kind of scientific theory and could not have been predicted, can be  easily explained by heuristics and biases.  

According to Taleb, the occurrence of black swan events has been going on for a very long time. He calls the September 11, 2011 attacks, the rise of the internet and World War I as some of the many black swan events. In fact, Taleb believes that almost all consequential events in history come from the unexpected, yet are rationalized afterwards by hindsight. He adds on to this that these kind of events continue to persist throughout history mainly because black swan events are fundamentally constituted by what the observer perceives to be a surprise with a major impact. Something as insipid as discovering a piece of land can hence become an astounding development for its observers and will be in line with the theory of a black swan event.  

Even though Taleb’s reasoning primarily focuses on financial markets and banks instead of islands and wacky scientists, his core idea can surely be retrofitted into something worthy for the average lawyer. In legal methodology, the facts are supposed to be clear enough in order to establish or apply a particular rule. While this may not always be guaranteed, any lawyer should be certain that black swan events could become a common thing. The facts of any case can change in the blink of an eye. In the end, the art is not to attempt to predict these kind of events, but to build robustness against them. After all, not all swans are white.