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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, August 10, 2017

More Justifications For Going To Law School

I'll plead guilty to my own case of availability heuristic here, but it sure seems like law professors lead the parade for defensive justifications of why their segment of academy still makes sense as a post-graduate choice.  Shima Baradaran Baughman (Utah), guest blogging over at PrawfsBlawg, has bravely donned the gladiatorial armor and is sure to endure the largely anonymous opprobrium that will come in the comments as a result of any such effort.  She's committed to a continuing series on "The Case for Law School" with Part I and Part II already posted.

My daily feed-reader scan occurred this morning just before I walked Tia the Wonder Dog, so it meant that I read this paragraph in Prof. Baughman's post, then stewed about it for the next thirty minutes as Tia got her daily constitutional.  

Law school teaches you how to see both sides of an argument better than any other degree. Law school teaches you how to determine a reputable source from a bad one, a good argument from a weak one, and to see through logical fallacies. Often lawyers are criticized for becoming dispassionate because of this great skill. Students that come into law school feeling indignantly opposed to abortion rights will be forced to confront the legitimate arguments on the other side and have to rethink their views. This is an invaluable lifelong skill. There is no other education that will teach you this kind of analytical thinking. And the byproduct of this is that it makes it hard for lawyers to argue with nonlawyers (ask your snarky lawyer friends but it is true). It is important now—more than ever—to have people able to see the holes in arguments and to be able to understand both sides of an issue. It is important for people to be able to decipher real from fake news and be able to see the logical problems in arguments.

Professor Baughman's bravery deserves the wider distribution Tax Prof Blog provides, so I'll give another shot at what spilled out in the Prawfs comments after Tia and I returned home, she got her treat for being a good puppy, and I ventured back to the MacBook Pro.

Punch line: I spent too much of my career as a lawyer-executive among non-lawyers to be a proponent of "J.D. exceptionalism."  And lawyers and law profs tend to drink the rationality Kool-Aid.  It's an occupational hazard.

The empirical proposition that people change their fundamental views on things like abortion because of law school is questionable. Also the empirical proposition that there is no other education that forces one to confront legitimate arguments on the other and have to rethink views seems questionable. It is true that law school teaches a particular kind of analytical thinking (how to come up legal theories in pursuit of instrumental goals), but I'm not sure that it isn't merely a subset of the kind of analytical thinking that you have to do to make any argument, descriptive or normative, in the arts and humanities. I do know, from my years of being in board rooms and management suites with colleagues who had advanced degrees in business, environmental science, chemistry, organizational behavior, physics, English, etc., that suggesting I was uniquely able to see holes in arguments because I had a law degree would have been a rhetorical mistake!

My observation over many years is that the inclination to see the other side's point of view is affective and emotional and not reasoned. One variant on this is my maxim "the rule of law is not a rule of law." What inclines you to confront legitimate arguments and ACCEPT them is a kind of empathy or willingness to get outside your yourself and into the metaphoric shoes of another. Law, and legal argument, is just as capable of being a club as a physical club. Rather than doing the beating yourself, you appeal to a third party holding the power. The rule of law isn't a rule of law because losing and accepting the loss is a cultural or emotional or psychological disposition. Getting along with other without resort to law takes the same willingness to accept Mick Jagger's dictum that you can't always get what you want.

Several years ago, I wrote an article how how making business decisions and acting on them was fundamentally different than merely thinking rationally (as a lawyer "thinking like a lawyer" might) about a problem.  One of the insightful pieces I referred to came from the philosopher Brian Ribiero:

Ribeiro has pondered why deep and fundamental disagreements in hard philosophical cases persist. He concludes that they “confront us with an unresolved, and seemingly unresolvable,challenge to the rationality of philosophical discourse, thereby raising the spectre of worrisome philosophical skepticism.” What is a hard case? It is not one in which one of the interlocutors is ignorant of a critical fact (e.g., an argument about the temperature in which one person has access to a thermometer and the other does not), uneducated (e.g., a child who believes that a stork has brought his baby sister), or under a cognitive liability (e.g., someone who simply does not have the mental capacity to understand a mathematical proof).

A hard case is instead one like Wittgenstein posed in his On Certainty, and which I can restate in my own experience. I have friends in the legal academy whose access to information, education, and intelligence are unimpeachable. Nevertheless, they are Catholics or Mormons, and undoubtedly believe things that I am quite sure no amount of reasoned persuasion could cause me to believe. Wittgenstein’s (and derivatively Ribeiro’s) assessment was that this kind of disagreement is incapable of reconciliation. Instead, a change in belief of one of the interlocutors requires conversion. “If reconciliation is to occur, then one of us must forsake reason-giving, (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute.”

Hats off to Professor Baughman for trying to make the case. I remain rationally unpersuaded and non-rationally unconverted.

http://taxprof.typepad.com/taxprof_blog/2017/08/more-justifications-for-going-to-law-school.html

Legal Education | Permalink

Comments

I have long been a critic of legal education BUT I do think that done correctly it does provide a unique critical fact and evidence insistent mode of approaching situations. And I have been involved in a very wide array of projects and work with a variety of people trained in other disciplines. Even having said this I have also dealt with many, many lawyers who have not adequately internalized that critical mode of thinking, evaluation and input and have time-after-time seen lawyers try to fit everything into a "law box". Having said that, I want to add several more observations.

1. To the extent that law school teaches us to think critically I feel quite comfortable in asserting it doesn't need three years to do it and 25-30 law courses. So, if we are using that "thinking like a lawyer" rubric as justification for all of law school as it now stands we are quite off base pedagogically. At most it takes only the First Year stuff if we do it right and probably less than that.

2. Thinking critically about things is great, but what I often see lacking in lawyers and legal education is the ability to analyze constructively in a solutions-oriented way that adds the positive attributes of synthesis and solutions generation to the deconstructive process of analysis or the ability to take things apart by stripping away various components. Constructive thinking is rather important and we don't do a whole lot of that.

Posted by: David | Aug 10, 2017 7:27:30 AM

I basically agree with David. Traditional law school provides a unique way of thinking. However, based on recent research on learning, law schools can do much more. If law schools would add the new learning to the traditional approach, they could attract back those students who come to law school because it provides ways of thinking no other field does.

Some law schools are trying to do this, but much, much more needs to be done. Law schools especially need to provide professional identity training. I will list scholarly works on professional identity training on my Weekly Legal Education Update tomorrow.

Posted by: Scott Fruehwald | Aug 10, 2017 9:13:42 AM

I don't find persuasive the advocacy of attending law school because it "teaches you to think like a lawyer". I suspect that most intellectually curious people begin thinking about all sides of an issue (note, not "both sides," which would be limiting) towards the end of high school or at least by the end of college. Most liberal arts courses of study lend themselves to this. I actually find it odd that someone wouldn't develop such critical thinking skills until the law school stage of life.

Posted by: Jack | Aug 10, 2017 12:10:02 PM

"My colleagues at Kirkland & Ellis used to joke that we were the best email writers around (which is basically most of what we did early on in our legal careers in litigation)—write really good emails." - Prof. Baughman

This would be funnier if it weren't such a sadly ironic indictment of the legal profession.

Posted by: anon | Aug 10, 2017 4:39:25 PM

"Thinking like a lawyer" is justification for charging exorbitant rates for law school tuition for what is by definition a trade school.

Posted by: anon | Aug 10, 2017 6:36:10 PM

"Traditional law school provides a unique way of thinking."

I keep reading this assertion repeated mindlessly, but I have yet to read any argument or evidence for it. Is that the unique wrinkle that David and Scott Fruehwald are referring to?

Posted by: Rob T. | Aug 11, 2017 5:43:34 AM

Back at you on "Thinking".

An Essay on Strategies for Facilitating Learning

Cleveland-Marshall Legal Studies Paper No. 06-127
42 Pages Posted: 5 Jun 2006
David Barnhizer
Cleveland-Marshall College of Law, Cleveland State University
Date Written: June 2006

Abstract

This essay focuses on goals, strategies and techniques for the facilitation of student learning. It reflects a bias toward what can be called active learning in which students move beyond being passive listeners (and too often even less than that) and instead are prompted to travel along a continuum of becoming fully responsible and active participants in their own learning processes. The underlying assumption is that this increasingly participatory engagement with the learning environment - one constructed and facilitated by the teacher - offers great potential for increasing the quality and depth of students' learning. Ironically, it does the same for the teacher because it places a far heavier responsibility on the teacher to listen, interpret, guide and interact rather than merely "profess".

The analysis also begins from the belief that there is a convenient assumption among law teachers that the existing model of the American law school works effectively. This includes the conclusion that its methods and goals are not only appropriate and comprehensive but are being achieved. The reality is quite different. While law teachers have many positive attributes we tend to be amateurs from the perspective of the quality of teaching and awareness of the most effective ways to structure a curriculum, integrate course offerings and design and execute individual courses. Because most law professors have been extremely successful in their undergraduate and law school careers they may feel as if they are endowed by that experience with the knowledge and ability required to teach well, or they may understand their lack of knowledge and seek to compensate for that deficiency through denial and rationalization. In any event there is no guarantee that earlier academic success bears any direct relationship to excellence in teaching. With that criticism in mind this essay examines strategies for facilitating learning. Preliminary to that analysis, however, I thought it useful to discuss briefly the history of the Langdellian Hypothesis about the scientific nature of university legal education and academic legal research and scholarship. It is this flawed hypothesis that shaped the American law school.


The Purposes and Methods of American Legal Education

Cleveland-Marshall Legal Studies Paper No. 11-205
Journal of the Legal Profession, Forthcoming
52 Pages Posted: 1 Jun 2011 Last revised: 15 Jun 2011
David Barnhizer
Cleveland-Marshall College of Law, Cleveland State University
Date Written: March 1, 2011

Abstract

The best way to represent the focus of the essay’s analysis is by outlining its content. The Purposes and Methods of American Legal Education seeks to suggest the reasons, theoretical orientation, professional, technical and philosophical dimensions of graduate legal education. It examines purposes and strategies for enhancing education while offering a critique of what I consider to be fundamental flaws and assumptions that have inhibited the qualitative development of American legal education. Along with this analysis is consideration of primary methods of teaching and delineation of what the author considers the goals of the curriculum. The coverage of the analysis is most accurately demonstrated by its structure, as follows.

I. Who Are We Teaching and Why?
II. A Historical Critique
A. Langdell and the “Scientific” Law School
B. The Anti-Intellectual Orthodoxy of the American Law School
III. “Thinking Like a Lawyer”
A. The Meaning of “Thinking” Like a Lawyer?
B. Legal Interpretation as Involving the “Original and Natural” Idea of Knowledge
C. Lawyers and the “Shelf” of Knowledge
D. The Dynamics of Legal Interpretation
IV. A Discussion of Educational Methods
A. Relatively Passive Educational Methods
B. More Active Methods
C. Distinctions between Educational Methods
1. Lectures
2. Mediating and Creating Experience, Active Learning and Critique
3. The “Substantive Method” of Clinical Teaching

V. An Outline of Educational Goals and Methods

A. Educational Goals Involving Institutional Analysis and Critique, Social Responsibility, Justice and Systemic Reform

B. Educational Goals Involving Elements of Principled Professionalism, Professional Responsibility and Ethics, and Personal Morality

C. Educational Goals Involving Judgment, Analysis, Synthesis and Problem-Solving

D. Educational Goals Involving Substantive Law

E. Educational Goals Involving Strategic Awareness and Technical Skills
Keywords: legal education, law teaching, law schools, legal philosophy, thinking like a lawyer, educational method, Langdell, legal science, law curriculum


Abstract

"The American Law School and Nine Elements of “Thinking Like a Lawyer”"

The idea of “thinking like a lawyer” represents a form that combines strategic analysis, assessment and action. At this point my analysis takes an unusual step and seeks to enhance our understanding through use of a seemingly “exotic” framework. In A Book of Five Rings, Miyamoto Musashi describes nine points a strategist must master. I have long thought these points represent the true meaning and composition of what it means when we say “thinking like a lawyer” and am offering them here as a focusing device. Musashi’s nine elements are: 1). Do not think dishonestly; 2). Become acquainted with every art; 3). Know the ways of all professions; 4). Distinguish between gain and loss in worldly transactions; 5). Develop intuitive judgment and understanding for everything; 6). The Way is in Training; 7). Perceive those things which cannot be seen; 8). Pay attention even to trifles; 9). Do nothing that is of no use. These nine elements are useful as the foundation of an integrated system reflecting the lawyer's approach to knowledge, awareness, and action. They represent the range of knowledge a lawyer needs and give meaning to the concept of “thinking like a lawyer” as not simply a technique or method but a quality that includes substance and knowledge. They offer a template for much of the knowledge and technique that we ought to be teaching in law schools. Nor is this knowledge limited to external information or hard data but includes extensive understanding of human nature and self. This strategic knowledge is gained by increasing the quality, nature and complexity of the information being processed by law students and lawyers. The elements involved in thinking like a lawyer include not only the acquisition of information but the ability to recognize and discriminate among pieces of information, set priorities about a client’s goals, discern the significance and utility of information, identify the implications of knowledge and action essential to achieve the desired goals, and learning how to take action of a kind that represents the increased likelihood of achieving the desired goals.

Disciplines
• Law and Philosophy,
• Law and Society,
• Legal Education,
• Legal Ethics and Professional Responsibility and
• Legal Profession

Publication Date
2015
Citation Information
David Barnhizer. "The American Law School and Nine Elements of “Thinking Like a Lawyer”" (2015)
Available at: http://works.bepress.com/david_barnhizer/96/

Posted by: David | Aug 11, 2017 7:38:05 AM

To say that there is something characterizable as "thinking like a lawyer" seems correct; I wrote a whole book about it. See https://www.routledge.com/Beyond-Legal-Reasoning-a-Critique-of-Pure-Lawyering/Lipshaw/p/book/9781138221307

To say that "thinking like a lawyer" is a unique way of thinking strikes me as tautological. Yes, it is uniquely like thinking like a lawyer. It's the application of more general thinking skills (deductive, inductive, abductive) to a particular set of inputs, namely legal rules and the situations in which they are relevant to solving the problem. "Car Talk" on NPR is a wonderful example of taking more general thinking skills and "thinking like an auto mechanic."

I remember sitting at an summer clerkship interview lunch with a Donovan Leisure partner somewhere in the RCA Building in the fall of 1977. All I remember about it is that we DIDN'T go to the Rainbow Room, that I thought the lunch was fancy and he didn't, and that when I said something trite about law school teaching you how to think like a lawyer, he responded, "Bullshit, we all thought like lawyers before we got to law school."

Honesty, if you want a graduate degree in pure critical thinking without regard to its application in a trade or profession, get a Ph.D in philosophy! Otherwise, I think the process of starting with the standard five paragraph expository essay in middle school (thesis paragraph, topic sentences in the next three support paragraphs, and a conclusion), honing that in high school, and then having good people beat the crap out of you as a humanities or social science undergrad ought to work.

Posted by: Jeff Lipshaw | Aug 11, 2017 10:27:52 AM

I admit, I am going only by the abstracts that David provides. Based on those, however, I still see nothing unique either about legal education or the type of mind it produces, except in the trivial, tautological, subject-dependent sense that Jeff Lipshaw mentions. In that sense, one can speak just as easily of “thinking like a physicist”, or “thinking like a literary critic”, etc., ad nauseam.

The problem with the strategic, client-centered thinking that David mentions is that few, if any, students learn anything about that in law school. Instead, they spend most of three years learning how to dissect the reasoning of appellate court judges while learning rules of law and statutory interpretation. Again, ad nauseam.

What “thinking like a lawyer” *really* means, I believe, is “thinking like a Sophist”. There’s a certain irony here, given that the Sophists were Socrates’s and Platos bête noire. But I don’t mean this a sneer term, the way most do. The Sophists understood that truth is an instrumental concept, intertwined with power. They also were interested in the practical application of rhetoric in civil and political life, and they provided their services as teachers and advocates for a fee to whomever could pay for their services. Further, they taught their students to argue all sides of a position. Sound familiar? And therefore not “unique”? I’d say so.

Posted by: Rob T. | Aug 11, 2017 11:57:36 AM

Learning to "think like a lawyer" is not a skill that is the exclusive domain of law schools. And I don't just mean how lawyers like, inter alia, Adams, Jefferson, Marshall, Webster, etc. didn't attend law school. I mean how there are law school professors like the John Milton scholar Stanley Fish who are neither lawyers nor attended law school, yet have managed to teach everywhere from FIU Law to Yale Law. So clearly law schools do not have a monopoly on how to "think like a lawyer." That or the phrase is just meaningless PR blather, which surely is impossible.

Also note how even though law schools purport to teach people how to think like lawyers, virtually every law school graduate has to take a bar prep cram course to learn enough to pass that threshold of minimum competence. And of course in the monolithic Langdellian pedagogy that still rules the land, "thinking like a lawyer" does not include more than the barest lip service to building basic, practical legal skills such as lawyers use every day (drafting, negotiation, court appearances, soliciting clients, problem solving,* etc. ad nauseum). Nay, "thinking like a lawyer" is nothing more than ruminating on federal appellate court opinions.

*Sorry - taking one closed-book final per course, for which one generally gets no more feedback than a letter grade, does not count as building problem-solving skills.

Posted by: Unemployed Northeastern | Aug 11, 2017 2:38:56 PM

I agree completely with the last two posts (Rob T. and Northeastern). That is why I have been a critic of law schools for decades because they do so much less than they could and should. That, however, doesn't change the fact that forcing students into an intensely critical mode of approaching situations, facts, cases, etc. (everything, actually) at a time they are brand new to the process of legal education is something akin to basic training under pressure and authoritative control. There is a benefit to that as an introduction. One of my points is that this can be done in far shorter a time than it is, can be done with smaller and more interactive classes, and that there are an amazing array of ways to do the rest of law school more productively. As to whether we can teach many of the critical additional skills and insights most relevant to being a lawyer my answer is yes we can. How do I know? Because that is what I spent a great deal of my career doing through a combination of basic doctrinal teaching, along with Trial Advocacy, Strategy, Dispute Resolution, Externships, Legal Profession and Ethics, Clinical teaching, Jurisprudence and more. There are ways to do it but not enough teachers who are interested in doing it, able to do it, or experienced enough as lawyers to understand what is involved.

Posted by: David | Aug 11, 2017 4:10:45 PM

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