September 22, 2010


Schauer, Frederick, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2009) ("This is a book about thinking and reasoning. More particularly, it is about the thinking, reasoning, and argumentative methods of lawyers and judges, which may or may not be different from the thinking, reasoning, and argumentative methods of ordinary people. Whether lawyers think, reason, and argue differently from ordinary folk is a question and not an axiom, but it is nonetheless the case that certain techniques of reasoning are thought to be characteristic of legal decision-making. The focus of this book is on those techniques. Its aim is partly to make a serious academic contribution to thinking about various topics in legal reasoning, but mostly it is to introduce beginning and prospective law students to the nature of legal thinking. In the typical law school, especially in the United states, the faculty believes that it teaches legal thinking and reasoning by osmosis, or interstitially, in the process of providing instruction in substantive subjects such as torts, contracts, criminal law, property, civil procedure, and constitutional law. But less teaching of legal reasoning actually occurs than faculties typically believe, and even if it does take place, there may be a need to provide in one volume, abstracted from particular subjects, a description and analysis of much of what law students are supposed to glean from the typically indirect teaching of legal reasoning. Similarly, although most law teachers think that it is important that students know something about the major figures, themes, and examples in the canon of legal reasoning, much of this material also falls through the cracks in the modern law school, and again there appears good reason for presenting it in one place. This book seeks to address these needs, at the same time giving lawyers and legal scholars something to chew on--and disagree with--about most of the topics it takes on. Id. at xi. "[I]t may be that law schools seek to teach their students more about the language of legal justification than about the determinants of judicial decisions. Even if judges do base their decisions substantially on broad notions of equity and justice, or on policy considerations, or even on the personal characteristics of the judge and the litigants, what lawyers need to know, and what law schools are uniquely positioned to teach, it might be argued, is the language of the law, the words and the categories and the concepts in which law talk takes place, even if beneath the talk something else entirely is going on. Lawyers can afford to be Realists, perhaps, but they will succeed only if they understand the non-Realist language and categories with which the legal system actually functions." Id. at 145-146. Over the last few years, a trend has developed where more, and more law schools increasingly succumb to pressure from practicing bar (i.e., lawyers and judges) to revamp legal education so that graduates are up and running as lawyers from day one. One consequence of this trend is that fewer and fewer resources will be devoted the figures, themes, and examples in the canon of legal reasoning. What students may have been able to glean indirectly from their professors and courses will not have sufficient presence to be gleaned and, therefore, will be largely ungleanable from their the law school experience. Law students will have to find it for themselves. To that end: LAW STUDENTS IN U.S. LAW SCHOOLS SHOULD READ PROFESSOR SCHAUER'S BOOK! If they have the inclination, they should also read Edward Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949).