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-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Wednesday, September 14, 2011

Thinking Like A Lawyer

“[Y]ou teach yourselves the law. I train your minds. You come in here with a skull full of mush, and if you survive, you’ll leave thinking like a lawyer.”
--Professor Kingsfield from the Paper Chase

Although law students certainly learn legal doctrine – the so-called “black-letter law” -- many law professors like to think that they are in the business of teaching legal analysis. As the mythical Professor Kingsfield states, black-letter law is something students teach themselves. Professor Josef Redlich similarly once wrote that “[t]he real purpose of a scientific instruction in law is not to impart the content of the law, not to teach the law, but rather to arouse, to strengthen, to carry to the highest possible pitch of perfection, a specifically legal manner of thinking,” In other words, the purpose of attending law school is not to learn the law, but to learn to “think like a lawyer.”

What exactly does it mean to “think like a lawyer” and why is that important? The answer to the second question should be obvious -- if you are going to be a lawyer, is it not important to think like one? The first question is more difficult to answer.

For some, the answer to what it means to “think like a lawyer” is quite simple. “It means employing logic to construct arguments.” Other commentators, however, believe that “[t]hinking like a lawyer means, to a large extent, thinking rhetorically within a problem-solving context.” And still others take a more thoughtful approach-- “The phrase “to think like a lawyer” encapsulates a way of thinking that is characterized by both the goal pursued and the method used.” The method used, “essentially requires beginning with a factual situation and, through some process, arriving at a conclusion about the rights and duties of the persons or entities involved in the situation.” Learning to “think like a lawyer,” then, is a somewhat nebulous and ill-defined concept. Nevertheless, if knowing how to conduct legal analysis is an essential skill of successful lawyers, then students would be wise to focus not only on learning the relevant legal doctrine, but also on learning how to think like a lawyer.

Unfortunately, “students are often well into their education before they understand the operation of the legal method. Indeed, a law school graduate’s first job is frequently reduced to an apprenticeship in the use of this method.” In order to help students better understand what it means to think like a lawyer, I provide below a short bibliography of sources that discuss legal reasoning. Reading one of these books may help students not only teach themselves the law, but also how to think about the law. No claim is made that this list is exhaustive (or will help students earn better grades in law school), but all these sources provide a good introduction and explanation of legal reasoning. In addition, there are many law review articles on this subject, but they tend to take a more nuanced approach and may confuse as much as they enlighten the novice.

Bibliography:
Steven J. Burton, An Introduction to Law and Legal Reasoning, 2nd ed. (1995)
KF8775 .B87 1995

Wilson Huhn, The Five Types of Legal Argument (2002)
KF380 .H84 2002

Patrick M. McFadden, A Student’s Guide to Legal Analysis: Thinking Like a Lawyer (2001)
KF283 .M396 2001

Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer (2007)
KF279 .M47 2007

David S. Romantz and Kathleen Elliot Vinson, Legal Analysis: The Fundamental Skill, 2nd ed. (2009)
KF240 .R636 2009

Elias E. Savellos with Richard F. Galvin, Reasoning and the Law: The Elements (2001)
K213 .S28 2001

Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009)
K212 .S325 2009

Peter T. Wendel, Deconstructing Legal Analysis: A 1L Primer (2009)
KF283 .W46 2009

Kenneth J. Vandevelde, Thinking Like a Lawyer: An Introduction to Legal Reasoning, 2nd (2011)
K212 .V36 2011

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