"Do Lawyers Think, and If So, How?" with Professor Frederick Schauer
Summary
TLDRThe speaker humorously dissects the typical Dean's opening speech at law school, highlighting the emphasis on legal reasoning over learning legal rules or practical skills. They challenge the notion that legal thinking is unique, engaging with skepticism about its distinctiveness. The talk explores the importance of precedent, rules, and authority in legal reasoning, suggesting that a key aspect of thinking like a lawyer is the ability to tolerate wrong answers for the sake of systemic or long-term values, such as stability and consistency.
Takeaways
- 📚 Dean's opening speeches at law schools tend to follow a similar pattern, highlighting the history of law and the institution, and setting expectations for students.
- 🚫 Law school is not solely about learning legal rules or acquiring practical skills like drafting documents or standing in a courtroom.
- 🤔 The dean emphasizes that law school is about developing legal reasoning and thinking like a lawyer, a concept that is often left vague and assumed to be absorbed by students.
- 🧐 Skeptics argue that legal reasoning may not be as distinct from general reasoning as law schools claim, suggesting that being a good thinker transcends the legal profession.
- 👨⚖️ Legal realists believe that judges and lawyers' decisions are influenced more by their humanity than by legal training or knowledge, challenging the uniqueness of legal thinking.
- 📖 The script suggests that legal reasoning might have unique elements when compared to other forms of reasoning, even if it's not entirely unique.
- 📘 Reasoning from precedent is a significant aspect of legal reasoning, where judges are sometimes obligated to follow decisions they disagree with.
- 🚦 Rules and authority play a crucial role in law, often guiding decisions even when they lead to outcomes that seem incorrect in specific cases.
- 🏛️ The legal system's tolerance for 'wrong' answers in individual cases for the sake of systemic or long-term values is a hallmark of legal reasoning.
- 💡 The Socratic method in law teaching aims to teach students that the best legal outcome isn't always the best outcome in every case, fostering a broader understanding of legal principles.
Q & A
What is the general theme of the opening speech at the University of Virginia Law School?
-The general theme of the opening speech at the University of Virginia Law School, as described in the script, involves the dean discussing the glorious history of law and lawyers, the history of the law school, and emphasizing that law school is not about learning legal rules or practical skills but rather about legal reasoning and thinking like a lawyer.
Why does the dean mention that law school is not about learning legal rules?
-The dean mentions that law school is not about learning legal rules to preemptively address the concerns of first-year law students who may expect to learn a lot of legal rules but later realize they haven't learned any. This is to set the expectation that law school focuses on legal reasoning rather than memorization of rules.
What is the role of precedent in legal reasoning according to the script?
-Precedent plays a significant role in legal reasoning as it often dictates outcomes even when a judge may personally disagree with the decision. It represents a system that can constrain judges to follow decisions that align with previous rulings, even when they would have made a different decision on their own.
How does the script describe the relationship between legal reasoning and human nature?
-The script suggests that legal reasoning is not entirely unique to lawyers but is influenced by human nature. It references legal realists who argue that judges and lawyers, being human, are influenced more by their human nature than by any specific legal training or practice.
What is the significance of the cannibalism law example in the script?
-The example of the cannibalism law in Virginia is used to illustrate the point that laws can exist and be known without necessarily influencing individual behavior. It serves to highlight the difference between what the law dictates and what people choose to do, even when a law is not enforced or is repealed.
Why does the script mention the idea of a 'wrong answer' in the context of legal reasoning?
-The script mentions the 'wrong answer' to emphasize that legal reasoning often involves accepting outcomes that may not be the most just or fair in an individual case but are necessary to uphold systemic values such as consistency, stability, and the rule of law.
What does the script suggest about the role of authority in law?
-The script suggests that authority plays a crucial role in law, where the fact that something is said by a legislator, a judge, or a legal scholar like Wigmore, Corbin, or Keaton carries significant weight and can influence legal decisions, even if the decision-maker personally disagrees.
How does the script relate the concept of rules to the practice of law?
-The script relates the concept of rules to the practice of law by explaining that rules are most impactful when they require action contrary to what one would have done without the rule. It shows that rules can dictate outcomes even when they lead to what may be considered the 'wrong' answer in a specific case.
What is the Socratic dialogue method described in the script, and how does it relate to legal education?
-The Socratic dialogue method described in the script involves presenting hypothetical cases and challenging students to defend their initial intuitive responses with legal rules or principles. This method is used in legal education to teach students to think critically about the broader implications of legal rules and to understand the complexities of legal reasoning.
How does the script connect the idea of tolerating a 'bad' outcome to the concept of thinking like a lawyer?
-The script connects tolerating a 'bad' outcome to thinking like a lawyer by suggesting that legal reasoning often requires lawyers to accept less-than-ideal outcomes in individual cases for the sake of upholding legal principles, systemic values, or the long-term stability of the legal system.
Outlines
📚 Dean's Opening Speech and Legal Education
The speaker reflects on the typical opening speech given by law school deans, which often includes a discussion of the history of law and the institution, and the role of Thomas Jefferson. The dean emphasizes that law school is not about memorizing legal rules or acquiring practical skills like drafting documents or standing in a courtroom. Instead, it's about developing legal reasoning and thinking like a lawyer. The speaker acknowledges that this concept is often not clearly defined for first-year students, who may be disappointed to find that they are not learning a lot of legal rules. The speech also touches on the skepticism surrounding the uniqueness of legal thinking, suggesting that it might be more about being human than about any specific legal training.
🤔 The Skepticism of Legal Reasoning
The speaker delves into the skepticism about the distinctiveness of legal reasoning, questioning whether there is anything unique about how lawyers think compared to other professionals. Legal realists and other skeptics argue that the way judges and lawyers think is primarily influenced by their humanity rather than their legal training. The speaker acknowledges that while there are good and bad thinkers in every field, the qualities that make a good legal thinker might be the same as those that make a good thinker in other disciplines. However, the speaker also suggests that there may be something special about legal reasoning that is worth exploring, even if it's not entirely unique.
👩⚖️ The Role of Precedent and Rules in Legal Decision Making
The speaker discusses the importance of precedent and rules in legal reasoning, explaining that they often guide judges to make decisions that they might not have reached on their own. Precedent is particularly powerful when it requires a judge to follow a decision they disagree with, highlighting the constraining nature of the legal system. The speaker uses the example of cannibalism laws in Virginia to illustrate how rules can be in place even if they don't directly affect an individual's behavior. The discussion also touches on the idea that rules can be most impactful when they require actions contrary to what one would have done without the rule, such as in the case of speed limits.
🏛️ The Tolerance for 'Wrong' Answers in Law
The speaker concludes by exploring the concept of authority in law and the willingness of the legal system to tolerate 'wrong' answers in individual cases for the sake of systemic or long-term values. This includes adherence to precedent, rules, and the opinions of legal authorities, even when they conflict with one's own judgment. The speaker suggests that this tolerance for wrong answers in the service of larger legal values might be a key aspect of legal reasoning. The discussion also touches on the burden of proof and the idea that the legal system sometimes prioritizes stability and consistency over getting every individual case right. The speaker uses a Socratic dialogue about a hypothetical case involving a starving widow and a fuel oil contract to illustrate how legal reasoning can lead to outcomes that may seem 'wrong' in the context of a single case but are necessary for the broader legal system.
Mindmap
Keywords
💡Legal Reasoning
💡Precedent
💡Rules
💡Authority
💡Legal Realism
💡Analogous Reasoning
💡Socratic Dialogue
💡Burden of Proof
💡Process Values
💡Particularism
Highlights
Dean's opening speech often follows a similar pattern across different law schools, discussing the history of law and the institution.
Law school is not just about learning legal rules, but also about understanding the limitations of such rules.
Practical skills such as courtroom procedures are not the primary focus of law school education.
The core of law school education is legal reasoning and learning to think like a lawyer.
The concept of 'thinking like a lawyer' is often assumed rather than explicitly taught.
Legal realism challenges the idea of a distinctive legal reasoning, suggesting that judges and lawyers think as humans first.
The importance of understanding human thinking over legal training in explaining judicial and legal decisions.
Skepticism about the uniqueness of legal reasoning, comparing it to general reasoning skills.
Legal reasoning may not be entirely unique, but there could be concentrated forms of thinking specific to law.
Reasoning from precedent is a significant aspect of legal reasoning, where judges are sometimes bound by previous decisions.
Rules in law have a constraining effect, especially when they dictate actions contrary to one's own judgment.
The concept of authority in law, where the opinion of a legislator or a judge carries significant weight.
The burden of proof is a legal concept that can lead to outcomes that seem unjust in individual cases.
Tolerance for the 'wrong' answer in legal reasoning to serve systemic or long-term values.
The Socratic method in law education, challenging students to consider the broader implications of legal rules.
The idea that sometimes reaching a 'bad' conclusion is necessary for the integrity of the legal system.
The potential unpopularity of lawyers due to the nature of legal reasoning and the necessity of sometimes upholding unpopular decisions.
Transcripts
I think with the possible exception of
some of my colleagues who are here uh
none of us have heard Paul's opening
speech to entering
LS but although none of us have heard
that we have all heard a Dean's opening
speech um and they're all more or less
the same maybe you heard it from John
Jeff maybe you heard it from Bob Scott
or Tom Jackson or dick Merill or Emerson
Spees or monrad Paulson or Hardy Dillard
um or possibly Frederick Ribble or
armistad Doby uh but we've all heard one
of these Opening Day speeches um the
dean starts off with some fluff about
the Glorious history of Law and lawyers
uh the Glorious history of the
University of Virginia law school a
little bit of course about Thomas
Jefferson um then tells you that law
school is not about learning a lot of
legal rules and the dean says this
partly to inoculate himself against the
expected complaints especially the
complaints and anxieties of firste law
students who come to law school thinking
that they are going to learn a lot of
legal rules November of the first year
comes around exams are looming on the
horizon and they really realiz that not
only have they not learned a lot of
legal rules they haven't learned any uh
and they go and complain to the dean and
he reminds them that that's not what law
school is
for then in the opening day speech um
the dean goes on and says nor is law
school about um practical skills it's
not about learning uh where to stand in
the courtroom it's not about learning
how to draft a complaint or a will or a
trust or a contract again trying to
immunize himself in the institution
against the expected complaints law
school is
insufficiently um
practical but if law school is not about
these things the dean says on the first
day then what is it about uh aha the
dean says
pretentiously law school is about legal
reasoning it is it is about learning how
to think like a lawyer recall kingsfield
in the paper chase you come in here with
a skull full of mush and you leave
thinking like a
lawyer but having said that the law
school is about learning how to think
like a lawyer the dean then Retreats the
fluff again and never actually tells the
first year students what it is that to
think like a lawyer or what legal
reasoning really is nor I should add did
kingsfield nor do any of us who teach in
the first year of law school we claim
that we are teaching students how to
think like lawyers but we never actually
tell them what it is to think like
lawyers we assume that they will absorb
this by osmosis and we assume it the
same way that people have assumed it for
decades or Generations um or whatever
so then the question and the question I
want to address now is what is legal
reasoning what is it to think like a
lawyer one
possibility and a serious possibility is
that maybe there is nothing to it there
are serious skeptical challenges out
there to the idea that there is
something distinctive something
specially important about legal
reasoning or legal thinking as opposed
simply to thinking or simply to
reasoning indeed that's what legal
realists like Jerome Frank and Carl
lellan and William O Douglas and Thurman
Arnold and many others believed uh with
an important number of variations among
them but still at the core of many
significant legal realist
positions is the view that judges and
lawyers are in addition to being judges
and lawyers human beings and that if we
want to explain or understand how judges
and lawyers think um we should
understand how human beings think and
the biggest explanatory factor in
determining what judges and lawyers do
and how judges and lawyers think is the
fact that they are human beings rather
than anything that they may have learned
in the practice of law anything that
they may have learned in law school
anything that they may have learned on
the bench that it is their human
beingness rather than their lawyer or
their
judges that explains exactly what it is
that they are doing and there are other
forms of skepticism as well uh not
necessarily associated with legal
realism but there is a serious view out
there
that lawyers are not in any way
different or in any significant way
different in their thinking and
reasoning processes from other people
now that doesn't mean that there are not
good thinkers and bad
thinkers but under the skeptical
view the things that make lawyers and
judges good thinkers and good lawyers
and good judges are the same attribute
that they share with good thinkers in
various other disciplines so yes uh it
is certainly important the Skeptics say
to recognize the value in lawyering and
judging of analogical
reasoning it is important to understand
the value of analytic thinking it is
important to understand the importance
of hearing the other side of any
arguments or any position but then so
goes the argument um these are skills
analogical reasoning and lot analytic
thinking um hearing all sides uh and
various other things these are also
important to policy analysts detectives
Physicians chemists plumbers carpenters
and various other people and as a result
of this although there are so so the
Skeptics say good legal thinkers uh um
good judges uh what makes them good is
the same things that make other people
good at their professions and that the
whole idea that there is something
distinctive or special about legal
reasoning that there is something we can
identify as thinking like a lawyer is
basically a uh self-aggrandizing sham
that's taken place since Christopher
Columbus Langell um in order to justify
the existence of Law School
uh and justify the existence of a
special lawyer
class I don't believe
this I think there may be something to
Legal reasoning there may be something
special or important about thinking like
a
lawyer but in order to understand what
it might be in order to make the
argument we have to at least appreciate
the fact that it is not plausible to
claim
that legal reasoning and legal thinking
is entirely unique legal reasoning is
not to reasoning what multivariant
calculus is to poetry or Estonian is to
Chinese um obviously there are closer
connections between legal reasoning and
reasoning closer connections between
legal thinking and thinking that we than
we would find in terms of other far more
disperate enterpris
nevertheless there may be things that
are concentrated in legal reasoning
there may be forms of thinking forms of
analysis forms of decision making forms
of reasoning that although they exist in
other disciplines exist in other areas
and Enterprises may exist more
importantly and in a more concentrated
form uh in law than elsewhere and if we
try to look for those rather than
looking for something that is entirely
unique we may get a start on identifying
what is particularly special if anything
about legal
reasoning it seems to me that one
possibility or one of the things that
might be um concentrated in law and one
of the things that we spend the fair
amount of time on in the first year uh
of law school of course is reasoning
from
precedent when a judge thinks that a
previous decision is right it's that
it's the correct decision whether it be
from the same court previously or from a
higher Court precedent doesn't
matter as the late legal theorist
Patrick AA put it the concept of a
system of precedent is that it
constrains judges in some cases to
follow decisions they do not agree
[Music]
with
that precedent matters or at least
matters most in those circumstances when
a judge All Things Considered would have
made a different
decision but nevertheless feels
constrained by precedent to do something
other than what she would have done had
she been left entirely to her own
devices without the constraints of
precedent precedent oper Ates
largely when someone thinks to repeat
that a previous decision is wrong but
thinks there is an obligation to follow
it anyway so too with
rules when a rule tells us what to do
when a rule tells us to do what we would
have done anyway it matters far less
which is not to say it doesn't matter at
all but it matters far less than when a
rule appears to command us to do
something other than what we would have
done had we not been constrained by the
rule preparation for this talk I did a
little bit of research for those of you
who are unaware of this the laws of the
Commonwealth of Virginia prohibit
cannibalism uh you may not be interested
in how I reach this conclusion but I see
that everybody has finished um with
lunch uh some combination of the laws
against uh murder and the law dealing
with how one can deal with a dead body
will produce the conclusion that
cannibalism is against the law uh here
take my word for it um now but it also
turns out that at least for me I won't
speak for any of you if the Commonwealth
of Virginia would repe were to repeal
its laws prohibiting cannibalism
tomorrow that would not change my eating
habits one bit um at least as far as my
decision decisional processes are
concerned um the rules the law against
uh laws against cannibalism um are
largely
inconsequential most rules however or
many rules for many people operate in a
quite different way um uh when a rule
dictates the wrong answer when a rule
tells us to do what we would not
otherwise all things considered have
done then the rule appears to have its
greatest bite obviously rules play into
our decisional processes even if in the
final
analysis we agree with what a rule would
say but rules are most obvious and most
constraining and perhaps most important
in law when they tell us to do things
other than what we would have done if
the rule did not exist it is when a rule
dictates it's the wrong answer but you
have to follow it just because it is the
rule that rules matter the
most indeed um we might imagine um a
scenario um involving uh one of the
rules that we confront all the time um
speed limit 65 obviously that's a rule
designed um to achieve safety on the
highways it is designed for the average
driver under average aage conditions uh
in an average car so suppose that I am
out on a clear dry Sunday
morning with my clean driving record and
my new car and the weather is perfect
and there are no cars on the road and I
am driving at 78 uh we all know you can
um drive more or less 9 M an hour above
the posted speed limit and you're safe
but the speed limit is 65 and I'm
driving 78 um I see the blinking light
uh in the rear view mirror I pull over
the officer says um you you were going
78 the speed limit is 65 uh I then
explained to the police officer excuse
me officer I'm not sure you understand
um the speed limit is designed to ensure
safe
driving I have a perfect driving record
you can look it up there's no
traffic the weather is perfect this is a
new car I am driving very safely I am
not violating the purpose of the rule so
obviously I should not be uh cited just
because I am going above um 55 now we
all know what happens next um uh that's
not an argument I I am going to win uh
that even though the best All Things
Considered decision might be that I am
not driving unsafely or dangerously I am
violating the rule and that's that
sometimes in law you have to follow a
rule just because it is the
rule so too with the idea of
authority in law more than in other
areas the fact that someone said
so the existence of an authority the
fact that it was said by legislator the
fact that it was said by a judge the
fact that it was said by Wigmore about
evidence or about or by Corbin about
contracts um um or by prer or Keaton
about torts uh or by Ken Abraham about
insurance uh I see him sitting there I
don't mean to insult uh or slight the
rest of my colleagues um the fact that
Ken says so about insurance makes a
difference in law even even if the
person who actually has to make the
decision thinks that Ken is wrong that's
the very idea of
authority uh often it at least inclines
us or inclines legal decision makers in
the direction of wrong answers indeed we
could add to this list of precedent and
rules uh and Authority the burden of
proof um which often produces the
outcome that people who are in fact
guilty get
off but what ties all of these things
together is a tolerance for the wrong
answer and it may very well be that that
is at the heart of legal reasoning that
is what lies at the heart of thinking
like a lawyer s tolerating the wrong
answer in the immediate case in the
service of process values or long-term
values uh or something of that variety
stability for stability sake off often
brandise famously said in most matters
it is more important that the rule be
settled than that it be settled
right it may be that law more than in
other decisionmaking
Enterprises is willing to tolerate the
wrong answer in this in the service of
these systemic or process or longer term
values this plays out of course in at
least one form of the typical firste
Socratic dialogue
we've all been through this in some form
or another uh I'll make up a case um um
it's contracts class um there's a case
involving a starving Widow with five
young children who buys fuel oil
contract from Exxon Mobile um she
doesn't pay Exxon sues the starving
Widow with the five children um and some
student is asked what's the right result
obviously the students want want the
starving widow um uh to win they
typically do not have an enormous degree
of sympathy with Exon Mobile um in these
circumstances um and then the student is
asked why is that why should she win and
the student gives some rule or principle
and then with the benefit of having
taught the same course with the same
hypotheticals for the last 37 years uh
we ask the student a series of patterned
hypotheticals designed to show um why
the students preferred result and the
students preferred rule um would produce
in the aggregate or in the long run more
bad results maybe it's better to let the
starving Widow uh lose in this case
maybe it's better uh to let Exxon Mobile
win here because in the aggregate a
better rule a better outcome for the
array of cases would be one in which
Exxon wins and the starving Widow loses
and eventually we hope students
understand this the larger lesson is
that the best result All Things
Considered here is not necessarily the
best legal result in that sense thinking
like a lawyer is necessarily nonp
particularistic to the extent that you
can see why it is sometimes good to
reach a bad
conclusion then perhaps you have learned
to think like a
lawyer and then of course once you have
learned why it is sometimes good to
reach a bad conclusion and learned uh
that that may be at the heart of
thinking like a lawyer you will have
learned as well why there are a lot of
people who don't like lawyers but I'll
leave that for my next talk thank you
very
much h
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