"Do Lawyers Think, and If So, How?" with Professor Frederick Schauer

Summary

The 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

00:00

📚 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.

05:01

🤔 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.

10:02

👩‍⚖️ 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.

15:04

🏛️ 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.

Keywords

💡Legal Reasoning

Legal reasoning refers to the process of thinking and arguing used by legal professionals to analyze, interpret, and make decisions based on the law. In the video, it is suggested that law school aims to teach students how to think like lawyers, which involves learning legal reasoning. The concept is central to the video's theme as it explores whether there is a distinctive way of thinking in law that sets it apart from other forms of reasoning.

💡Precedent

Precedent in law refers to a principle or rule established in a previous legal case that is either binding on or persuasive for a court when deciding a similar case. The script mentions that legal reasoning often involves reasoning from precedent, where judges feel constrained to follow decisions they might not personally agree with, highlighting the importance of consistency and stability in the legal system.

💡Rules

In the context of the video, rules are the legal guidelines or regulations that dictate certain actions or outcomes. The speaker uses the example of a speed limit to illustrate how rules can sometimes require individuals to act contrary to what they believe is right in a specific situation, emphasizing the constraining nature of rules in legal reasoning.

💡Authority

Authority in law is the power or right of a court or other legal body to enforce obedience, typically through the creation or interpretation of laws. The script discusses the role of authority in legal reasoning, noting that the opinion of a respected legal figure or a higher court can carry significant weight, even if one disagrees with the conclusion.

💡Legal Realism

Legal realism is a theory that emphasizes the role of judges' personal beliefs and values in determining legal outcomes, rather than just the application of abstract legal rules. The video references legal realists like Jerome Frank and others who argue that legal reasoning is not a distinct form of reasoning but rather a reflection of human nature and individual perspectives.

💡Analogous Reasoning

Analogous reasoning is a method of argument that involves comparing two similar situations to draw a conclusion. The video touches on the importance of analogical reasoning in law, suggesting that while it is a valuable skill, it is not unique to legal reasoning and is also utilized in various other disciplines.

💡Socratic Dialogue

Socratic dialogue, named after the Greek philosopher Socrates, is a form of cooperative argumentative dialogue that aims to stimulate critical thinking by asking and answering questions. The script describes a typical Socratic dialogue in a law school setting, where students are challenged to defend their positions and consider the broader implications of legal rules and principles.

💡Burden of Proof

The burden of proof is the obligation on a party in a legal dispute to provide sufficient evidence to support their claim. The video suggests that the burden of proof is an aspect of legal reasoning that can lead to outcomes that seem 'wrong' in individual cases but serve broader legal principles, such as the presumption of innocence until proven guilty.

💡Process Values

Process values in law refer to the principles and procedures that are valued for their own sake, such as fairness, consistency, and due process. The script argues that legal reasoning often involves a tolerance for reaching a 'wrong' answer in individual cases to uphold these process values and maintain the integrity of the legal system.

💡Particularism

Particularism is the idea that decisions should be made based on the specific details of a case rather than general rules or principles. The video contrasts particularism with the more systemic approach of legal reasoning, where the focus is on the broader implications and outcomes of legal decisions, even if they result in less favorable outcomes for individuals.

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