On Legal Education, and ...

December 15, 2011 7:30 AM

"The contemporary American law school is based on bullshit."

"Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic." -- Henry Frankfurt, On Bullshit

The analytical distinction Frankfurt is drawing between lying and bullshitting seems especially germane to legal academic life in its current form. To put it more bluntly, the contemporary American law school is based on bullshit.

On Bullshit, previously.
The Value of a Legal Education, previously.

posted by gauche (106 comments total)

Contemporary?
posted by gern at 7:41 AM on December 15, 2011 [1 favorite]

I call bullshit on this bullshit:

"This is a natural consequence of the fact that the rhetorical posture of Prof. Leader requires him to represent to his students that is teaching them how to be lawyers. But Prof. Leader knows nothing about being a lawyer. Hence, he must bullshit"

His initial premise is wrong. Prof. Leader is teaching the students how to "think like a lawyer," not how to be a lawyer. The technical day to day requirements of being a lawyer are something anyone can learn. They are clerical by nature. Learning to think like a lawyer, on the other hand, is a topic well suited to the law school environment. Having past experience as a lawyer is of course helpful because the Prof. can sprinkle in real world examples from his own practice. But it's not required. Learning to think like a lawyer is a whole different ball of wax than learning to actually be one.
posted by Outlawyr at 7:41 AM on December 15, 2011 [13 favorites]

100% true. Also, there's no such thing as "thinking like a lawyer". That's core, foundational bullshit.
posted by facetious at 7:48 AM on December 15, 2011 [9 favorites]

Those who can, do. Those who can't, teach.
posted by sour cream at 7:48 AM on December 15, 2011 [1 favorite]

Prof. Leader is teaching the students how to "think like a lawyer," not how to be a lawyer. The technical day to day requirements of being a lawyer are something anyone can learn. They are clerical by nature. Learning to think like a lawyer, on the other hand, is a topic well suited to the law school environment.

That's a false dichotomy. Being a lawyer involves a lot of work that's more substantive than clerical, but more mundane and less theoretical than studying the kinds of ground-breaking appellate opinions you study in law school.
posted by John Cohen at 7:49 AM on December 15, 2011 [1 favorite]

I'm not sure how law school differs in this from... well, most things. Do most lawyers in practice really personally care if their client is right? No. Neither does anybody engaged in marketing or PR. For that matter, your accountant doesn't really personally care about your tax return and your housekeeping service does not really care about the cruft accumulating on your baseboards.

Your accountant is also, for example, presenting your data to the IRS as being more certainly correct than they actually know it to be because they really don't know how your business/life works the way that you do, and meanwhile presenting anything the IRS sends you as though they really know what the IRS is doing, when sometimes they do and sometimes they don't. Even a biologist is going to be operating largely on top of results gained by someone else which they have not personally experienced or verified, but have some reason to believe to be true.

If we all had to only talk about things that we knew from personal experience and actually cared about... well, there wouldn't be a Metafilter, anyhow.
posted by gracedissolved at 7:50 AM on December 15, 2011 [8 favorites]

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic.

It's funny, On Bullshit reads a lot like classic (in the Greco-Roman sense) philosophy on rhetoric. I am almost sure that I've heard very, very similar arguments and concepts in Frankfurt's work in the Symposium or some other similar work. So the overlap between it and the concept of lawyering really isn't all that surprising.
posted by griphus at 7:51 AM on December 15, 2011

"Those who can, do. Those who can't, teach."

An old saw that is wrong much more than it is right.
posted by bz at 7:53 AM on December 15, 2011 [33 favorites]

Learning to think like a lawyer is a whole different ball of wax than learning to actually be one.

As someone who started at a firm and has since hung a shingle, I think that law schools need to strike the balance somewhere a lot closer to teaching people how to be lawyers than how to think like them.

It's my understanding that firms are not thrilled with having to teach the "how to be a lawyer" stuff to people in their first year, which is one of the reasons it's so hard to get work as a young lawyer now.

Also, I think that a large part of legal practice, except maybe in areas like trusts and estates work, involves wrangling other people, often intractible people, in some form or another, be it your client or opposing counsel or a judge or mediator. That's a skill that was pretty deprecated relative to teaching abstractions of jurisprudence, at least where I went to law school.
posted by gauche at 7:53 AM on December 15, 2011 [2 favorites]

The law is a unique area, I think.

Our law system is adversarial by design. Theoretically, it truly doesn't matter what the lawyers think. Their job is to present their side in the best light. The truth, again theoretically, comes out in the middle.
posted by Benny Andajetz at 7:54 AM on December 15, 2011 [2 favorites]

"Those who can, do. Those who can't, teach."

I like to add "and some ... 'manage'.

It's not a fact, or anything, but damn does it roll off the tongue.
posted by Dark Messiah at 7:58 AM on December 15, 2011 [3 favorites]

Lawyering is in many ways the art of bullshit, i.e., persuasion. Law students should be learning how to bullshit, presumbly from the professional bullshitters that constitute the law faculty.
posted by exogenous at 7:59 AM on December 15, 2011 [1 favorite]

Prof. Leader is teaching the students how to "think like a lawyer," not how to be a lawyer.

And how is a non-lawyer (which may professors are) supposed to know how to think like one? Because of what they learned in law school from more non-lawyers, ad infinitum?

Or maybe "how to think like a lawyer" is more properly called "how to think like a law professor's idea of how a lawyer thinks?" It's a bit like trying to learn ancient Greek from someone who has read all the classics...as translated into English.
posted by jedicus at 8:00 AM on December 15, 2011 [1 favorite]

Those who can, do. Those who can't, teach.

Even in the narrow group of situations where this is true, it applies exclusively to primarily physical endeavors (dance, football, etc.). If you're talking about something that's mostly mental (such as being a lawyer, for instance), "those who can't" are probably incapable of teaching anything of value.
posted by IAmUnaware at 8:01 AM on December 15, 2011 [2 favorites]

I think of all my law profs and can only come up with a few who fit this description.

The rest were a mix of practioners and academic specialists, the former teaching around their work schedule -- like a colleague of mine who teaches he's on the cutting edge of his field (really, past it, in that he knows more than he can divulge about his subject field) -- and many of the latter being involved in some major cases shaping the legal landscape. That's only occasional participation, but when you're being taught by Professor Hathaway or Hogg or Showler -- and these are the people being cited by the Court and influencing its decisions, you could do a lot worse.

Conclusion: much of this article is bullshit (or at least representative of a very different kind of experience than my own, though it is comforting, knew-it-all-along bullshit).

On preview: I'd also like think there's no such thing as "thinking like a lawyer" and yet I can't get past the great divide -- and it's certainly not in intelligence -- between people who can understand the strengths and flaws of a case (or even what a judgment stands for) and those who cannot. Which is why the latter part of the right to retain and instruct counsel is a bit of a joke -- it's almost always counsel "instructing" their clients. If the clients know what's good for them.
posted by Durn Bronzefist at 8:02 AM on December 15, 2011 [4 favorites]

"That's a false dichotomy. Being a lawyer involves a lot of work that's more substantive than clerical, but more mundane and less theoretical than studying the kinds of ground-breaking appellate opinions you study in law school."

John Cohen, can you please explain in what way this is a false dichotomy. I'm not suggesting that to be a lawyer one need not think like a lawyer. I'm saying that in law school one merely learns to think like a lawyer, not how to actually be one. In being a lawyer, one must think like a lawyer, but one must also perform many mundane clerical tasks (or delegate and supervise the performance of these tasks). In my experience, this clerical aspect tends to use up more hours in the day than the actual thinking like a lawyer stuff, but I suppose for others the balance goes the other way.

In any event, it is not bullshit for a non-practicing lawyer to teach non-lawyers how to think like a lawyer, because thinking like a lawyer can be taught without knowing first hand the doing/clerical part of the job.
posted by Outlawyr at 8:02 AM on December 15, 2011

John Cohen, can you please explain in what way this is a false dichotomy.

See my above comment.
posted by John Cohen at 8:06 AM on December 15, 2011

Lawyering is in many ways the art of bullshit, i.e., persuasion. Law students should be learning how to bullshit, presumbly from the professional bullshitters that constitute the law faculty.

Let's stipulate that this is true: that persuasion is the same as bullshit. Being bullshitted to by the people who will be grading them is a pretty cynical way to teach people how to bullshit.
posted by gauche at 8:07 AM on December 15, 2011

While I share the author's justified dismay at the nature of much of legal academic work product, I think he perhaps overstates his case. I identify two sources of bullshit in the piece.

The first is that lots of law professors--and lawyers generally--wind up speaking authoritatively about subjects about which they know basically nothing. Though he sort of mentions it in passing, there are an increasing percentage of law professors with other advanced degrees, mostly Ph.D.s. It's getting to the point that the old way of getting a professorship, i.e. clerk for a prestigious judge, work in a big firm for a few years, then get a job at a law school, has largely disappeared. One of our mutual professors was actually the last person our law school hired who didn't have an advanced degree of some sort. So this is changing, and it's changing with increasing rapidity.

Further... that's basically what lawyers do. We're generalists, not specialists. And to the extent that we do specialize, it tends to be in the ability to rapidly assimilate salient facts and features of disciplines other than our own in such a way that we can communicate those facts and features to lay juries. To the extent that we can't do this on our own, heavy reliance is made on expert testimony. And, as others have pointed out, lawyers are paid to take and argue for positions about which they don't necessary care, even with which they actively disagree! But no one ever thinks that a lawyer arguing something in court is supposed to represent his own personal convictions on the subject. Everyone knows it's bullshit, and everyone expects it to be. So yeah, maybe there is bullshit on subject-matter stuff, but that's kind of the point. Always has been.

The second type of bullshit is that most law professors haven't spent all that much time in law firms, and even those that did haven't been in practice for years. This is, of course, true. Two things. First, I think he may undervalue the significance of the clerkships which many if not most law professors do. They're as close as the legal profession gets to an equivalent to residency programs in the medical field. But second, the author seems to come from the perspective that law school should really just be a trade school, teaching students how to do particular technical things like write a motion to dismiss, or file a brief, or depose a client, etc. That's certainly one take, but it's not the only one, and it's not the one to which I subscribe. I oppose lawyers every week who have a better grasp of the clerical/technical side of the legal profession every day, but the vast majority of them can't actually argue their way out of a wet paper bag, and I've seen uses of legal authorities which don't even reach the level of "shockingly bad". I'm involved in one case right now in which the other lawyer isn't bullshitting enough. She's obviously got something personal invested in this case, and as a result, I'm about to eviscerate her on a motion for summary judgment, because she's based her arguments on her and her clients' feelings on the subject rather than complying with the relevant statutory requirements.

Also, the clerical stuff? That's why I have a secretary.

There really is something to learning to "think like a lawyer". Look at this thread. There are very, very few people whose first thought was "Well, the legal standard for a conviction is pretty high, so no wonder this guy got off. DA screwed himself over." Most people thought "This is a travesty of justice and GRAR!" A lawyerly mind is concerned with different things than a layman's mind, and it ought to be. Rules of Evidence and Procedure matter. Professors who aren't practitioners are perfectly capable of instilling this kind of detached, analytical approach to reasoning and argumentation, with its emphasis on abstraction.

I think the problem isn't actually that law schools are trying to do this as much as they aren't doing so. A course in legal history should be required, because the laws we have exist as the result of almost a thousand years of legal development. Knowing something about this development lets one understand how the law came to be what it is, including the injustices and problems that various changes were designed to correct. It's even useful. Understanding the law/equity distinction was worth about half a million dollars in a coverage case I saw a while back.

So I call "bullshit" on this bullshit.
posted by valkyryn at 8:07 AM on December 15, 2011 [21 favorites]

The employment numbers are, to speak precisely, bullshit, in that nobody (or more exactly nobody in a position to do something about this) really knows the extent to which they’re false, because nobody in that position wants to know. The “96% employed with an average salary of $145,000″ claims aren’t lies, exactly, because in order to lie one must, somewhat paradoxically, care about the truth. Those claims aren’t lies: they’re bullshit, because the people who make those claims don’t know what the real numbers are and don’t care.

The employment numbers are lies. "They" have a vested interested in propagating dazzling numbers. OF COURSE THEY CARE. Lies here, not BS.
posted by 3FLryan at 8:07 AM on December 15, 2011 [1 favorite]

And how is a non-lawyer (which may professors are) supposed to know how to think like one? Because of what they learned in law school from more non-lawyers, ad infinitum?

Or maybe "how to think like a lawyer" is more properly called "how to think like a law professor's idea of how a lawyer thinks?" It's a bit like trying to learn ancient Greek from someone who has read all the classics...as translated into English.
posted by jedicus

By "non-lawyer" do you mean someone that never practiced? Because all my professors were lawyers (and many of them had practiced before, but then that's the advantage of going to a 3rd tier law school).

As for the learning to think like a lawyer bit, I would compare it more to learning how to be a philosopher than learning ancient Greek. It is a purely academic endeavor. Those who get it, and then apply it to real world cases, can become very good lawyers. But to teach it does not require law firm experience, just an understanding of what it means to "think like a lawyer" and how to get the concept and skills across to someone else.
posted by Outlawyr at 8:09 AM on December 15, 2011

Or, in other words, Outlawyr, your earlier comment was acting like there is no grey area in between pure clerical work and the majestic, ground-breaking reasoning of the kinds of Marbury v. Madison cases one reads in law school. And that is simply not true. There is a huge grey area that's substantive but is unlike the study of cases in law school.
posted by John Cohen at 8:10 AM on December 15, 2011

So John, are you suggesting that the article is correct because a non practicing lawyer will fail in adequately teaching this "grey area", will have to profess knowledge of the "grey area" that they in fact lack?
posted by Outlawyr at 8:15 AM on December 15, 2011

When I was in college, the professors always made a big stink about the difference between an education and training.

This is the difference between thinking like a lawyer as Outlawyr puts it (or an architect, or a writer, for example) and being a lawyer (or an architect or a writer).

An education is about opening one's eyes and mind. Training is about learning the processes. You should come out the other end of a good education bewildered and a little humble. You should come out of good training cocksure and capable.

In the long run, the education is the better bet.

Back on the topic of bullshit, I can tell you that after 25 years of professional practice in architecture and engineering, yeah, about 90% of everything is bullshit. People want answers and solutions, and they insist on provenance of authority, even if the authority is demonstrably wrong. They really don't care if it is correct. They just want assurances.
posted by Xoebe at 8:15 AM on December 15, 2011 [1 favorite]

Am I right in thinking that Leader is meant to be a parody of Leiter? It seems that this is a response to this post of Brian Leiter's (which Stanley Fish recently linked to on the NYTimes blog).
posted by painquale at 8:17 AM on December 15, 2011

Those who can, do. Those who want spring, summer, and christmas vacation, along with a full slate of other holidays, teach.

I still often find myself wishing I'd majored in education, especially when my teacher friend is calling me from Acapulco telling me to come down because hey, he just randomly decided to pop down there for a week and it's awesome.
posted by mullingitover at 8:19 AM on December 15, 2011

The repeated and earnest use of the phrase "think like a lawyer" by some in this thread is worth a good laugh. I think this phrase is most popular with people who had never read a book before attending law school. I guess if (a) general familiarity with a particular subject area and (b) the use of basic reading comprehension, inference, and argumentation are features only the domain of those lawyers, the high priests of human cognition, then yes in the three year $150000 investment that is law school indeed one will learn the dark art of "thinking like a lawyer" which to be fair does look suspiciously like "basic human reasoning" but don't tell a J.D. that!

But anyway law school is that thing you know that the legal profession requires new lawyers to have attended so they will know how to be good lawyers while legal profession employers still fully expect to have to fully train new lawyers and it only costs the new lawyers roughly what a house does, plus whatever training expenses incurred by the employer. It's really efficient and non-exploitative.
posted by norabarnacl3 at 8:20 AM on December 15, 2011 [6 favorites]

Those who can, do. Those who want spring, summer, and christmas vacation, along with a full slate of other holidays, teach.

Those who can, do.

Those who can't, sneer at teachers for doing the hard work of education because they don't understand that a week full of 12-hour days isn't even close to balanced out by a couple of unpaid months off once a year.
posted by Tomorrowful at 8:21 AM on December 15, 2011 [15 favorites]

(Oh, and winter and spring break? Please. Teachers don't get vacation days; they get school-designated holidays and a pittance of sick and personal days and that's it. Don't think of it as spring and winter vacation; think of it as "your employer designates when you have off and you don't get to choose, and outside of those windows, good fucking luck if you want to kick off for a long weekend to visit your family.")
posted by Tomorrowful at 8:22 AM on December 15, 2011 [5 favorites]

I say it all the time, "it's not what you know, it's what you make people think you know."
posted by The 10th Regiment of Foot at 8:25 AM on December 15, 2011

"The repeated and earnest use of the phrase "think like a lawyer" by some in this thread is worth a good laugh. I think this phrase is most popular with people who had never read a book before attending law school."

Just because you don't understand something doesn't give you license to criticize those who do.
posted by Outlawyr at 8:26 AM on December 15, 2011

The "those who do" business is a bullshit derail. Please stop.
posted by foxy_hedgehog at 8:26 AM on December 15, 2011 [7 favorites]

valkyryn wrote most of what I wanted to write, more eloquently than I likely would have. That said, the fundamental fallacy in the "think like a lawyer" idea is that there is a way of thinking that is unique to lawyers, and that no one thinks this way before attending law school. This is false. Thinking like a lawyer just means, at the most general level, (1) being able to pick up a set of rules and apply it to a problem, and (2) deploying rhetorical tools to advocate for your favored interpretation of those rules and desired outcome. Maybe this is cynical, but I did not see any student in my law school experience that learned how to think like a lawyer. The successful students already thought that way.
posted by monju_bosatsu at 8:29 AM on December 15, 2011 [2 favorites]

It's funny, because the lawyers I've known have been pretty divided on this. Some of them think law school was disconnected from practice but worthwhile in many ways; others think it was a complete waste of time in every way. The division between the two seems to be about the same as the division between people in general who think school is worthwhile, and people in general who think you have to get out and do something to actually learn it.

I've never been to law school, so I have no idea. I just think it's interesting how divided lawyers seem to be on this point.
posted by koeselitz at 8:29 AM on December 15, 2011

People want answers and solutions, and they insist on provenance of authority, even if the authority is demonstrably wrong. They really don't care if it is correct. They just want assurances.

For corporate and government clients, yes to this. And I'll add: cover. Half the time wanting to be able to say "legal said we can do this" and the other half wanting legal to kill an idea they don't like but don't wish to oppose ("legal said no; sorry"). Individual clients don't want cover. They want and often need to be right at the end of the day, because the price of being wrong is often too costly.

And I love talking to new lawyers and articling students that studied my subject area in law school, and then talking to them a few months down the line and asking them about the dichotomy between what they were led to believe about how things work and how they actually do. That's not really an issue of adequate preparation, though.
posted by Durn Bronzefist at 8:30 AM on December 15, 2011

Some of them think law school was disconnected from practice but worthwhile in many ways; others think it was a complete waste of time in every way.

I'm willing to believe that schools do vary quite a bit, but just from the vast difference in capability of graduates coming out of my school, I tend to think it goes back to getting out of it what you put in. You can coast through law school. Most people can. Take the bullshit classes. Hit that middle grade. It isn't hard. It's a huge waste of time, money, and potential, though.
posted by Durn Bronzefist at 8:33 AM on December 15, 2011

Also, there's no such thing as "thinking like a lawyer". That's core, foundational bullshit.

Wow is this wrong. This is the Dunning-Kreuger effect in action: people who think like lawyers don't realize they're doing something special (because they focus on their weaknesses) and people who don't think like lawyers don't realize how far off the mark they actually are. Generating a mental map of the law keyed to hundreds of particular narratives and cases changes the way people think. It's like the mnemonic technique of the memory palace: I've seen it happen over and over again, and it's pretty great. And no, it's not the same thing as "basic critical thinking," which is also an massively difficult thing to teach. (As Arum and Roksa demonstrated in Academically Adrift.) Law school is certainly too long and too expensive, but there are a lot of jobs that people who don't think like lawyers will fuck up and not even understand why.
posted by anotherpanacea at 8:35 AM on December 15, 2011 [7 favorites]

the cliche notion, here stated in one comment, that those who can do and those who cannot teach simply does not work out in fact. How many former highly placed advisers to recent Democratic presidents have gone on to elite universities? and writers who also teach? and military teachers at military academies, and so forth....In fact, most of the number of law profs I have known, like doctors at med schools, continue to practice while teaching or have been working previously in their fields.
besides: the cliche is those who can not do...become teachers..and those who can not teach become administrators.
posted by Postroad at 8:38 AM on December 15, 2011

Sure, there exists a really smart high school graduate who could take BarBri and pass a bar exam and be a "lawyer." But I guarantee he won't be "thinking like a lawyer." That phrase means something, certainly something nebulous, but it's not a bullshit phrase.
posted by resurrexit at 8:39 AM on December 15, 2011

monju_bonsatsu: the implication in what you've written is that law school is entirely ineffective at teaching students to think like a lawyer. Do you actually mean that?
posted by hoople at 8:40 AM on December 15, 2011

Thinking like a lawyer just means, at the most general level, (1) being able to pick up a set of rules and apply it to a problem, and (2) deploying rhetorical tools to advocate for your favored interpretation of those rules and desired outcome. Maybe this is cynical, but I did not see any student in my law school experience that learned how to think like a lawyer. The successful students already thought that way.

This is a very insightful point, and one that I think bears repeating. I think that a related problem with legal education is that you can get all the way through law school without getting very much negative feedback on your inability to use these skills. I don't think these skills are actually taught in any really meaningful way in law school.

I actually went to the same law school as valkyryn, and I'm kind of surprised at how much our experiences apparently differ.
posted by gauche at 8:41 AM on December 15, 2011

To me thinking like a lawyer means in part that your strongest argument is not necessarily the one that you believe in the most personally or that would seem to treat the parties most fairly, but the one that has been shown to work in the most clearcut way in previous similar situations. Because you have to learn how to do legal research and analyze presidential decisions throughout law school, that skill is very definitely taught there.
posted by onlyconnect at 8:41 AM on December 15, 2011

monju_bonsatsu: the implication in what you've written is that law school is entirely ineffective at teaching students to think like a lawyer. Do you actually mean that?

Maybe not entirely, but mostly yes.
posted by monju_bosatsu at 8:42 AM on December 15, 2011

Those who can't teach, do. Those who can do, teach.
posted by erniepan at 8:43 AM on December 15, 2011

Well that clears that up.
posted by Durn Bronzefist at 8:44 AM on December 15, 2011

I stopped reading after he gave himself license to bullshit:

In what follows I am going to paint with a broad brush, which is to say I will make generalizations that will be valid to greater and lesser extents in regard to particular individual cases.

Translation: Some of my statements are going to be inaccurate.

So before you get to that, please note pointing out general statements aren’t accurate in every individual case in order to dismiss the value of making general statements is itself a classic form of rhetorical bullshit

Translation: I don't care enough to make my statements accurate. If you point out that they should be qualified, you're the bullshitter, not me.
posted by Hume at 8:44 AM on December 15, 2011

By "non-lawyer" do you mean someone that never practiced?

Sure, and that includes people who received a legal degree of some kind (e.g. a JD or LL.M) and never took the bar. Many of my professors (at a "top 25" school) fell into that category.

But I also include people whose "practice" consists largely of writing amicus briefs or otherwise doing the kind of legal work that the great majority of lawyers don't do. I want to see a law school faculty made up of people with experience doing the kind of work that the law school's graduates actually do (insert joke about how half of the professors would be former Starbucks employees here).

Just because you don't understand something doesn't give you license to criticize those who do.

How do you know norabarnacl3 isn't a lawyer? Anyway, I am one and I tend to agree. There's nothing magic about law school that teaches people to think like a lawyer.

And if the goal is to teach people to "think like lawyers" then the schools do an absolutely terrible job at it almost by design. The pseudo-Socratic method and almost complete reliance on a single essay exam per class (with no opportunity for a meaningful feedback loop) is a godawful way to teach someone how to think about legal problems in a particular way. To the extent "thinking like a lawyer" is measured by exams, monju_bosatsu's point is correct: if you already think like a lawyer you'll tend to do well and if you don't you won't learn, at least not in law school.
posted by jedicus at 8:49 AM on December 15, 2011

Translation: Some of my statements are going to be inaccurate.

That's mostly a standard disclaimer that writer uses because apparently every time he doesn't make it explicit he gets a ton of hatemail from professors who say "I'm not like that, therefore your argument is invalid and you're a jerk."
posted by jedicus at 8:50 AM on December 15, 2011

Thinking like an experimental philosopher for a moment, it occurs to me that we ought to be able to get funding to do fMRIs of law students before and after law school, and then again maybe after five years as a practicing attorney. Hmmm....
posted by anotherpanacea at 8:51 AM on December 15, 2011 [2 favorites]

Sure, and that includes people who received a legal degree of some kind (e.g. a JD or LL.M) and never took the bar. Many of my professors (at a "top 25" school) fell into that category.

My father-in-law is a Yale Law grad. At some point during a class a student asked if a particular subject would be covered on the bar exam, to which the professor replied "the bar exam is for the little people."
posted by Bulgaroktonos at 9:00 AM on December 15, 2011

Those who can't, sneer at teachers for doing the hard work of education because they don't understand that a week full of 12-hour days isn't even close to balanced out by a couple of unpaid months off once a year.

Whoa, hey, easy there. I'm not sneering, and I know it's not always an easy job (although it can be if you teach a class like elementary school theatre or band that doesn't assign homework, or your an administrator). And I know the time off isn't paid (or it is, if you choose to get paid less per paycheck but be paid year round). I'm seriously just jealous of the time off because no one I know aside from teachers has access to that kind of free time to travel, no disrespect intended.
posted by mullingitover at 9:01 AM on December 15, 2011

I'm seriously just jealous of the time off because no one I know aside from teachers has access to that kind of free time to travel, no disrespect intended.

1) Anyone can have that kind of free time to travel if they arrange their life/career to allow for it; I know a lot of freelancers who regularly arrange to have no work to do for months at a time to allow them to travel/do other things.

2) You explicitly designated teaching as the other choice if you "cannot do." That's very disrespectful, intended or not.

I'm not going into this any further because it represents a derail from the main topic, but I wanted to get that out there.
posted by Tomorrowful at 9:07 AM on December 15, 2011

Those who can, do. Those who can't, teach.
posted by sour cream

Really? What is this, the Yahoo News comment gallery? That comment is unbecoming of Metafilter.
posted by spitbull at 9:07 AM on December 15, 2011 [1 favorite]

sour cream: Those who can, do. Those who can't, teach.

Those who don't know enough about the topic to discuss, repeat this line.


mullingitover: I'm seriously just jealous of the time off because no one I know aside from teachers has access to that kind of free time to travel, no disrespect intended.

Then work long enough that you can take leave without pay for that amount of time, because that is what summer vacation amounts to. The only difference for teachers is that they will probably get their job back when they return from their unpaid leave.
posted by filthy light thief at 9:07 AM on December 15, 2011

"And if the goal is to teach people to "think like lawyers" then the schools do an absolutely terrible job at it almost by design."

I don't think this is the point the article is trying to make. If it were, it would have been a more interesting article.

As for the statement itself, my own experience was that I learned to think like a lawyer at law school. I'm also one of those wretched creatures that enjoyed law school. A lot. I recognize that no one teaching method will work for everyone. For me the pressure from both the "pseudo Socractic method" and from the looming single exam pushed me to over prepare for class. Both the ability to deal with stress and the habit of over preparing have served me well in my practice.
posted by Outlawyr at 9:08 AM on December 15, 2011

To become a tenured professor (of law or anything else), I can assure you that you do not take summers "off." Or weekends. Or nights. Or early mornings. The reason is that you are very busy *doing* the things, outside of the classroom, that authorize you to teach about them for the few hours a week that you are expected to do so.
posted by spitbull at 9:09 AM on December 15, 2011 [4 favorites]

if you already think like a lawyer you'll tend to do well and if you don't you won't learn, at least not in law school.

That's not what I believe is meant by "thinking like a lawyer". It isn't a matter of critical thinking skills, or even just persuasive writing and speaking. As others have observed, there are plenty of disciplines that do that. And on those grounds I concur: if you can't write before you show up to law school, law school isn't going to teach you.

For those that don't believe, I task you to go down to your county courthouse and pick any random file. Read a few of the briefs. Odds are very, very good that whatever you find is terribly written.

Rather, "thinking like a lawyer," to me, means the rather counter-intuitive process of applying laws to facts. This involves three steps, but they aren't really performed in order. One must identify the important facts, identify the applicable law, and then figure out how the two work together. This really isn't how anyone without legal training analyzes situations. Clients will frequently think that Fact A is really, really important, when it's either completely irrelevant on its face or, alternatively, useless because we've got no evidence for it. I, on the other hand, care a lot about Facts B and C, which they hadn't even known were there, because I know that this means something in light of Law 1 and Case 2.

Further, there's a consistent feature of legal reasoning, especially judicial reasoning, which a lot of people completely fail to understand, a feature which is demonstrated every single time the concept of corporate personality comes up on the Blue. Specifically, while most people seem to want to make rules based on the general principle of the thing, lawyers and judges want rules that capture all of the desired results and only the desired results. This can make them appear to be obsessed with fringe cases and can, to the uninitiated, look like pedantic squabbling. But it's really at the core of almost every appellate decision you care to read. Judges want to know that if they adopt a certain rule, they won't wind up having to revisit the rule down the road because it has undesirable consequences under different facts, even if those facts are remote and bizarre. In a sense, the slippery slope isn't always a fallacy in the context of legal reasoning. If a rule made in one context can logically permit an undesirable consequence in a completely different context, however unlikely, that rule won't and shouldn't be adopted.

Normal people don't really think that way, and there's no reason they should. But lawyers and judges do, and law school is, in no small part, intended to get law students to think that way.
posted by valkyryn at 9:10 AM on December 15, 2011 [6 favorites]

And as good a time as any to plug a remarkable book by Elizabeth Mertz, a professor of anthropology and law a U Wisconsin, entitled: *The Language of Law School: Learning to "Think Like a Lawyer." It's a work of linguist scholarship, so it's not light reading.
posted by spitbull at 9:11 AM on December 15, 2011

*linguistic* sorry
posted by spitbull at 9:12 AM on December 15, 2011

what valkyryn said, a million times over, "A lawyerly mind is concerned with different things than a layman's mind, and it ought to be. Rules of Evidence and Procedure matter. Professors who aren't practitioners are perfectly capable of instilling this kind of detached, analytical approach to reasoning and argumentation, with its emphasis on abstraction. "

There is a fuckton wrong with law schools in the U.S., but the truth that many/most/all (i don't even know which is true) professors aren't practicioners (or haven't been) is way down the list. I have said before that I think we need more clinical education in law schools, but the "thinking like a lawyer" thing is actually true, is actually taught, and is a manner of thinking that a nonpracticing lawyer can teach. Almost every time a law thread comes up here, or a big case comes up in conversation, I am reminded that I did, in fact, learn a very valuable skill in law school. Namely, the skill valkyryn identified: being able to approach the facts from the foundations of the rules of evidence, the rules of procedure and the understanding that the law is often concerned with something very different than the litigants, or society, or even human beings.

What working in public interest law for over 10 years has shown me (and this is hard to see many days), you can make the Law be concerned with the same thing as litigants, society and human beings, but you must do it within the language of the Law or else you are a really bad lawyer who will never get a good outcome except by accident.
posted by crush-onastick at 9:14 AM on December 15, 2011 [2 favorites]

For me the pressure from both the "pseudo Socractic method" and from the looming single exam pushed me to over prepare for class

You're assuming that "prepare for class" means "prepare for class the way a lawyer would" or at least that preparing for class enhanced your ability to think like a lawyer. But what if someone prepares the wrong way?

They won't find out until after they get their first semester grades, whereupon their fate is basically sealed. And it's a very low-information process. Bad grades say "you did it wrong" but they don't say how (good grades have the same problem; it's entirely possible to learn the wrong lesson from an A).

Sure, you could go to the professor and ask to discuss what, precisely, you did wrong but a) not all professors are willing to go over an exam in detail b) those that are aren't necessarily good at it c) it's still too late to change the grade and d) to the extent this is an effective feedback mechanism, why on earth isn't it what the professors do to start with?

The pseudo-Socratic method is terrible because most professors don't engage in a leading Socratic dialog but rather use it as a kind of randomly assigned pop quiz. The main purpose of the method seems to be to allow the professor to avoid having to assign and grade homework or (at a bare minimum) mid-term exams. What's so special about law professors that they can't do what every undergraduate professors does I have no idea.
posted by jedicus at 9:16 AM on December 15, 2011 [2 favorites]

I don't usually find myself agreeing with valkyryn on this site, but every single word he's said here is absolutely true.

It's funny, because the lawyers I've known have been pretty divided on this. Some of them think law school was disconnected from practice but worthwhile in many ways; others think it was a complete waste of time in every way. The division between the two seems to be about the same as the division between people in general who think school is worthwhile, and people in general who think you have to get out and do something to actually learn it.

It might also depend on the law school. The one I went to had a high proportion of practitioners among the faculty, and I don't think anybody there was a pure academic. Certainly none of the classes I took was taught by anything but JDs. I had Constitutional Criminal Procedure taught by Nancy Forster, then the head of the Maryland Office of the Public Defender, and Evidence taught by Judge Joseph Murphy, then on the Court of Appeals of Maryland. To say that law school is a place where you're learning from non-lawyers is, at best, true only in very specific places.

Yeah, there should have been a mandatory 3-credit "How to run a practice" class, but the theory was constantly couched in practicum, usually drawn from the professor's direct experience.
posted by kafziel at 9:20 AM on December 15, 2011

Rather, "thinking like a lawyer," to me, means the rather counter-intuitive process of applying laws to facts.

See, to me this is just the use of a logical syllogism. Did A murder B? Well, the law says that murder occurs when there are facts X and Y but not Z. As it happens, there was X and Y but not Z, therefore A did murder B. There's nothing counter-intuitive about it.

(I'll grant that the legal realists and crits would have a field day with this view, but this is basically what you learn in law school. It's certainly the view you use in order to pass the bar.)

Further, there's a consistent feature of legal reasoning, especially judicial reasoning, which a lot of people completely fail to understand, a feature which is demonstrated every single time the concept of corporate personality comes up on the Blue.

What people get caught up in is the distinction between arguing about what the law ought to be (and thus what the result in a given case ought to be) versus what the law is (and thus why the result in a given case occurred). This is not necessarily a failure of people to understand the law or to "think like lawyers." It's two different kinds of arguments about two different things. In other words, you can't bring political arguments to a legal reasoning fight and vice versa.
posted by jedicus at 9:26 AM on December 15, 2011 [2 favorites]

Rather, "thinking like a lawyer," to me, means the rather counter-intuitive process of applying laws to facts.

So, thinking like a lawyer means "applying rules to the situations that are governed by such rules instead of thinking about the situation however you feel". I just call this "thinking".
posted by 3FLryan at 9:26 AM on December 15, 2011 [1 favorite]

Those who can, do. Those who can't, teach.

Do people just say this to point out they don't understand either doing or teaching?
posted by meinvt at 9:29 AM on December 15, 2011 [2 favorites]

It might also depend on the law school. The one I went to had a high proportion of practitioners among the faculty, and I don't think anybody there was a pure academic. Certainly none of the classes I took was taught by anything but JDs. I had Constitutional Criminal Procedure taught by Nancy Forster, then the head of the Maryland Office of the Public Defender, and Evidence taught by Judge Joseph Murphy, then on the Court of Appeals of Maryland. To say that law school is a place where you're learning from non-lawyers is, at best, true only in very specific places.

Law schools prepare you for what they expect their graduate to do. My law school expected you to go to a big firm, so they prepared you for that instead of preparing you to be in a courtroom. Read some cases and then write a memo about it? That's a lot of big firm life. Your school (University of Baltimore?) sounds like it expected you to be in the courtroom, so they prepared you for that. The problem of course is that we've decided to label schools that prepare you to write memos "good" and schools that prepare you to be a divorce lawyer "bad."
posted by Bulgaroktonos at 9:31 AM on December 15, 2011 [1 favorite]

More law-school-related, since I'm now officially halfway through (whee), I have to say, having had previous experience in the real world, there is no thinking like a lawyer. There is "knowing how to think" and "knowing enough law to know what to think about". I think it's a worthless concept because nobody talks about "thinking like an accountant" or "thinking like a software developer" in those same sacred terms. Thinking like [whatever] is basically what any degree program is for, but I think there's a fundamental problem with people in the legal profession thinking law is somehow Special.

The writing's a good case in point. The writing instruction at my school was terrible. I write well at work (not just saying this, this is what my supervisors have all told me repeatedly) because I write constantly for pleasure, too. I did poorly (well, in relation to the rest of my grades) in my actual legal writing class because my instructor (I will not go so far as to say 'professor' about somebody who doesn't deserve it) was so completely incompetent. (I use a lot fewer parentheses when I'm writing at work, I swear.)

But actual experience wouldn't have helped there; a lot of professionals are incompetent about it, too. As are people in all kinds of degrees. An old boss of mine with a doctorate in a writing-heavy field wrote so badly that my coworkers and I had to insist on re-writing all his letters and emails lest he embarrass himself. My ex who taught freshman comp brought home stacks of papers and glancing through them, I wouldn't have guessed that the average student had finished 8th grade, much less high school. I don't think you can fix a problem that started with social attitudes towards writing before a kid ever started school with one class at the graduate level.
posted by gracedissolved at 9:32 AM on December 15, 2011

"You're assuming that "prepare for class" means "prepare for class the way a lawyer would" or at least that preparing for class enhanced your ability to think like a lawyer. But what if someone prepares the wrong way?"

I'm not assuming that. I was just saying that the method in which law school is conducted works for some, not others.
posted by Outlawyr at 9:34 AM on December 15, 2011

My friends who went to law school because the economy sucked and they had no idea what to do with their lives (mostly reason #2) are almost out...

I have been hoarding these articles the entire time, but I've discovered they read them too.

No, none of them actually plan to be lawyers.
posted by OnTheLastCastle at 9:37 AM on December 15, 2011

I think it's a worthless concept because nobody talks about "thinking like an accountant" or "thinking like a software developer" in those same sacred terms.

The fact that no one talks about "thinking like a software developer" doesn't mean that such a thing doesn't exist. I know that when software developers talk about their work on Metafilter, there seems to be something I'm not getting in terms of the way they think about and approach problems.

Law might be the only field that explicitly talks about "learning to think like an X," but the fact certainly exists in other fields. My wife is a teacher, and she thinks like one in a way I do not, even leaving aside knowledge she acquired and skills she developed that I don't have.
posted by Bulgaroktonos at 9:38 AM on December 15, 2011

this could just as accurately describe working in pure mathematics.. take a bunch of 'axioms' that are assumed to be 'true' and construct an argument based on these axioms that shows that the result is true..

so abstract thought is bullshit.
posted by mary8nne at 9:44 AM on December 15, 2011

But what if someone prepares the wrong way?

They won't find out until after they get their first semester grades, whereupon their fate is basically sealed.

Oh, I'm with you on that one. My first semester grades sucked. My cumulative GPA was about 0.65 higher than my first semester GPA, and if I'd done even a little better in the fall of 2006 my life would probably be radically different.

There's plenty wrong with law school, I just don't think this article hits on most of them.
posted by valkyryn at 9:47 AM on December 15, 2011

I'm not assuming that. I was just saying that the method in which law school is conducted works for some, not others.

That pretty well proves my point: there are people who are going to be good at law school and people who aren't, and law school does not turn the latter into the former.

For example, you cited "the ability to deal with stress and the habit of over preparing." I argue that you would likely have dealt well with stress and overprepared had you, for example, gone straight into an apprenticeship or otherwise went into legal practice without going to law school. These are useful skills for a lawyer, but I don't think law school teaches them, at least not for the great majority of students. If someone hasn't learned to deal with stress and prepare for class after 22 years of life experience and an undergraduate degree, then law school isn't going to teach them.
posted by jedicus at 9:47 AM on December 15, 2011

Those who can, do. Those who can't, teach.

I've heard this trope all my life, but I've never really seen it as necessarily negative. I mean, how exactly does one "do" 18th Century German Philosophy or Late Romantic American Poetry?
posted by The 10th Regiment of Foot at 9:52 AM on December 15, 2011

this could just as accurately describe working in pure mathematics.. take a bunch of 'axioms' that are assumed to be 'true' and construct an argument based on these axioms that shows that the result is true..

so abstract thought is bullshit.

Well, in reality (as the legal realists and crits will tell you), the law isn't based on incontrovertible facts and simple syllogisms. It's frequently based on contested or even unknowable facts, and the syllogism for murder looks more like "If X and Y but not Z except if the defendant is black and the defense didn't do a good job of filtering the jury for racists but if the victim was also black then it's less of a problem and also the judge screwed some things up but an appeals court would probably call it harmless error because of some ad hoc "policy" (i.e. political) argument about judicial efficiency..."

Heck, some crits would say it's all just politics, the whole system is rotten to the core, probably irredeemably so, and there's no point trying to reason about it.

But dealing with those complexities is something that you learn to do in practice. Law school exams and the bar exam are based on more-or-less tidy factual scenarios in which you can't argue the facts (because they're given to you as holy writ) and you also (generally) can't argue that the law ought to be different. So you apply the law as you are told it to be to the facts as you are told them to be, and the whole thing looks a lot like "If P then Q. P, therefore Q."
posted by jedicus at 9:59 AM on December 15, 2011

See, to me this is just the use of a logical syllogism. Did A murder B? Well, the law says that murder occurs when there are facts X and Y but not Z. As it happens, there was X and Y but not Z, therefore A did murder B. There's nothing counter-intuitive about it.

In my experience, things aren't nearly so cut and dried. Take a car accident. Your standard guy off the street is going to want to defend (or prosecute) that by focusing on fault. But maybe this isn't a liability case. Maybe it's a damages case. Or maybe it's a causation case. I've seen cases about which there is absolutely no dispute about liability drag on for quite some time because the plaintiff and defendant disagree as to whether the accident actually caused the claimed damages. I've seen cases where liability and causation were completely clear, but there was a disagreement about the magnitude of damages.

Sure, in some sense this is just a matter of syllogism, but they don't tend to be the kind of syllogisms that people who haven't gone to law school would think of on their own. And law school is, for many people including myself, where they learned how to make these kind of assessments. Not with respect to tort law per se necessarily, but with the idea that there is a framework going on here, and it's largely independent of our intuitive sense of justice and fairness.
posted by valkyryn at 10:04 AM on December 15, 2011 [1 favorite]

Off the top of my head, here are some things that mean "thinking like a lawyer" to me:

- Being able to quickly pick out salient facts from written material and apply them to a previously memorized legal framework (aka "issue spotting")
- Facility with categorization -- how splice facts into categories, either by advantageously arranging the facts or defining/redefining the categories
- Basic legal writing (aka IRAC)
- Thorough comfort with procedural rules so as to be able to engage in strategic thinking about litigation (e.g., making sure you have enough facts to defeat summary judgment as part of a settlement strategy)
- Deep understanding of the kinds of general factors present in a particular practice area that allows you to assess cases and predict the end game: the background law; characteristic fact patterns suggesting success/failure; current case law; likely jury outcomes; damages potential (facts & law).
- Ability to absorb new facts quickly in any setting and ask the right questions -- e.g., witness interviews; background research; talking to experts.

SOME of these things can't really be taught in law school and only come with experience. However, a lot of them can, or at least can be given a start. In particular, the cannonical 1L curriculum actually gives students a TON of content that ends up being essential in almost any practice area -- what is a tort? what is a contract? what are damages? what is a burden of proof? And every single law school class is an exercise in applying facts to the law -- which is really the essence of "thinking like a lawyer," in my opinion.

All of this said, I really agree with one point in the article. Judges make up facts ALL THE FREAKIN TIME and it is totally inappropriate. There is far too little respect for the fact determination process. But I think this isn't because of any culture of bullshitting; instead, it's because of very specific, very bad legal doctrines like "original intent" that require the judiciary to engage in a complete fantasy -- such as divining what Congress "thought" in 1781.
posted by yarly at 10:05 AM on December 15, 2011 [1 favorite]

Spitbull: thanks for that pointer to Mertz's book, looks great. People interested in it may also be stimulated by Duncan Kennedy's "Legal Education and the Reproduction of Hierarchy," which has some fairly trenchant things to say about what it means to "think like a lawyer." (Mostly that, if it means anything beyond "critical thinking," it means "learn to reject any sense of justice and become a tool of existing hierarchies of power." Not sure I agree with all the conclusions, but I think every incoming 1L should be required to read, critique, and respond to the paper.)
posted by louie at 10:06 AM on December 15, 2011

Sure, in some sense this is just a matter of syllogism, but they don't tend to be the kind of syllogisms that people who haven't gone to law school would think of on their own.

The question is whether people need a legal education in order to be able to apply the law to the facts, not to come up with new laws. And of course most people wouldn't come up with the modern test for negligence; most people know almost nothing about the law (i.e. what the law is, as apart from legal reasoning), so their guesses would tend to be crude and intuitive. But then again, most lawyers and judges wouldn't come up with that test out of whole cloth, either. It took centuries of tort cases before Learned Hand devised his formula for negligence (really millennia, depending on how you look at it), and presumably his predecessors knew how to think like lawyers.

To argue that laypeople can't, with a modest bit of instruction from an expert, correctly figure out the result in a given case, is to argue that the jury system should be done away with. Now, maybe you're happy to do so, certainly lots of people have argued against it. But it's something to think about.
posted by jedicus at 10:25 AM on December 15, 2011 [1 favorite]

Since this thread has become about "thinking like a lawyer", I think it might be worthwhile to examine the proposition: "Law school teaches you how to think like a lawyer". What does this statement mean? Is it true?

It's worth taking a moment to think about how we're forming this statement. It's a statement positing some kind of a causal relationship between going to law school and thinking like a lawyer.

Since just being at law school doesn't impart this knowledge, I'll be happy to stipulate that you have to do some amount of work to learn how to think like a lawyer. How do you know if you are doing that work? Are grades a good proxy? How about bar passage? How about not flunking out? I am inclined to think that not flunking out ought to be an indicator for "has learned the bare minimum that we're trying to teach", which is, apparently, "how to think like a lawyer."

I'll also stipulate, for now, that there exists some value of "think like a lawyer" that is valuable to the actual day-to-day practice of law.

There are two basic possibilities for well-formed propositions here:

1) if you went to law school and didn't flunk out, then you learned how to think like a lawyer.

and

2) if you learned how to think like a lawyer, then you went to law school and didn't flunk out.

Let's think about proposition 1. This is a simple p -> q proposition. If p is true, then q is also true, and it is never the case that p will be true without q also being true (that is, ~(p & ~q)). Thus, every time p is true, we would expect q to be true.

Does it work this way? Does everyone who went to law school and didn't flunk out know how to think like a lawyer? Surely this is not the case: there are examples in this very thread of people who not only didn't flunk out but passed the bar and are practicing law but did not, apparently, learn how to think like a lawyer. Not flunking out of law school is not a good indication of whether you learned how to think like a lawyer.

How about proposition 2. Again, a proposition in the same form. For this one to be true, it must be the case that there is nobody who learned how to think like a lawyer and did not go to law school. Another way of saying this is that law school is the only way to learn how to think like a lawyer. This is probably also untrue: successful self-taught lawyers are rare today, but they are not unheard of in the American legal system.

It's neither the case that everyone who went to law school (and didn't flunk out, and passed the bar and is now practicing) thinks like a lawyer, nor that everyone who thinks like a lawyer went to law school. What, then, is the causal relationship between these things?

It's probably a lot more accurate to say something like "law school teaches some people how to think like a lawyer". It might even be the case that "law school is the best way for some people to learn how to think like a lawyer."

When people in this thread say "law school teaches you how to think like a lawyer" what they are really saying is probably a lot closer to "law school taught me how to think like a lawyer." And that's fine. They are true positives in that they both passed the test (not failing out of law school) and possess the attributes that the test holds itself out as testing for (thinking like a lawyer).

But -- because of all that syllogistic business I went through above -- I think that it is far from an open question as to whether the test is a great test for the attribute. I think there are a lot of false positives.
posted by gauche at 10:37 AM on December 15, 2011

there are examples in this very thread of people who not only didn't flunk out but passed the bar and are practicing law but did not, apparently, learn how to think like a lawyer.

I don't mean the commenters in this thread. Wanted to make that one clear.
posted by gauche at 10:39 AM on December 15, 2011

Specifically, while most people seem to want to make rules based on the general principle of the thing, lawyers and judges want rules that capture all of the desired results and only the desired results.

This is one of the places where legal theories of how the world should operate often collide with an intuitive understanding. Legal thinking, from where I sit, often develops to a binary. Is it within the law or outside of it? Probability, and worse uncertainty, less than perfect knowledge, is a very difficult concept for a lawyer to interpret. You can't give a lawyer or a judge a probabilistic statement. Is 1:3 a reasonable doubt? Is 1 in 20, 1 in 1,000,000?

How can you cover all of the desired results if not all of the results are certain? Lawyers hate the idea of, say, drawing a contour line at a 1 in 20 likelyhood of innocence or even 1 in a million and having that stick in court (scientists love this idea and try to do it anyway---we just dress the numerical results up with simple words and present that as expert testimony).

Where that line gets drawn in messy reality usually comes down to how good the lawyers are at rhetoric.

"Teaching someone to think like a lawyer", to me, is teaching someone how to make a certainty out of a probability. how to make the real world into black and white.
posted by bonehead at 10:42 AM on December 15, 2011

"Teaching someone to think like a lawyer", to me, is teaching someone how to make a certainty out of a probability. how to make the real world into black and white.

So, "thinking like a lawyer" is "simplifying reality so that we may settle disputes and move on with life", and legal theorists arguing edge cases try to make the simplifications that result from thinking like a lawyer more closely match reality.
posted by 3FLryan at 10:50 AM on December 15, 2011

You can't give a lawyer or a judge a probabilistic statement. Is 1:3 a reasonable doubt? Is 1 in 20, 1 in 1,000,000?

Lawyers might not explicitly phrase it probabilistically, but we do talk about degrees of certainty in numeric terms. A preponderance of the evidence is 51% sure, clear and convincing evidence is 75%, beyond a reasonable doubt is 98% etc. These numbers aren't fixed into the letter of the law, and there's plenty of debate about what they should be, but they're absolutely part of the discussion lawyers have.

If nothing else, the concept of different standards to meet burdens of proof absolutely accepts the existence of probabilities over certainties. It's why we're willing to accept a greater probability that the result reach is incorrect in civil cases versus criminal cases.
posted by Bulgaroktonos at 10:53 AM on December 15, 2011

Specifically, while most people seem to want to make rules based on the general principle of the thing, lawyers and judges want rules that capture all of the desired results and only the desired results.

But, getting back to the central topic of bullshit, I have to say that as far as my niche of practice goes (criminal), it's very difficult to distinguish appellate bullshit from outright lies. Many appellate opinions I've read in the last eight or so years in my state begin with statements of all of the rules which, if applied mechanically to the facts, oughtt to lead to a favorable result for the defendant instead lead inevitably to: (1) some new innovation requiring that the defendant must now lose; (2) explaining away the operative facts so that, surprise, the defendant loses; or (3) an admission that the rules and facts combine to show some legal error, but the error is "harmless" (which apparently happens a lot in my state's death penalty cases).

It doesn't help that my friends and colleagues who have clerked for appellate judges in my state have told me that, in fact, all decisions they saw being rendered were decided not by discerning (or even making) law and applying it to facts, but solely by deciding what the judge wanted the result to be.

So now I can't tell whether appellate courts actually care about, or even understand, the rules promulgated in their decisions, or whether they're just lying about it. If the latter, that seems more inimical to truth-telling in the tribunal than even bullshitting does, disproving Frankfurt's claim that bullshitting is worse than lying.
posted by Hylas at 10:55 AM on December 15, 2011 [2 favorites]

gracedissolved: " nobody talks about "thinking like an accountant" or "thinking like a software developer" in those same sacred terms"

It's funny you should mention that, since as I was reading valkyryn's first comment I began to suspect that there are indeed some parallels. Being a practicing software developer, particularly a contractor (usually a generalist by necessity), seems to require a similar ability to quickly learn the ins and outs of domains with which you aren't familiar to begin with. You have to then map them to the domain in which you are more deeply trained (law/cases and software models, respectively). A more experienced professional developer will have a mental library of abstractions built up over time that will allow them to do this a hell of a lot quicker than, say, a computer scientist, and their intuitive choices and leaps of logic won't necessarily make sense to people who don't have the experience or on-the-job training.

(If anything, this ability to deal with unfamiliar domains is something that software development/engineering courses are not doing too well.)

I guess what I'm saying is, I'd hesitate to say that there isn't something special about "thinking like a software developer." I'm not familiar with law school or CA school, so I can't comment on that.
posted by vanar sena at 10:57 AM on December 15, 2011 [1 favorite]

Regardless of whether a law school education sucessfully teaches one to "think like a lawyer" or not, such a skill is rarely worth the sticker price of $150k+ for the vast majority of students so enlightened.
posted by T.D. Strange at 11:06 AM on December 15, 2011 [2 favorites]

Lawyers might not explicitly phrase it probabilistically, but we do talk about degrees of certainty in numeric terms.

As an expert witness, I've been explicitly told to remove any numerical discussion of probabilities from written evidence submissions and instructed to not talk about them on the stand. It's usually phrased as to as not be too technical to judges and sometimes to juries. Explicitly, we are to say that something did or did not match the theory of fact that is being built by our lawyer. In a very real sense, we, as experts, are told to interpret probability (more properly uncertainty) as a certainty in the courtroom.

I understand that as one of the central challenges to making legal decisions, and appreciate how hard it can be as an outsider. That turning of slippery slopes into steps of guilt or innocence (or liable/not-liable etc...) is really the key a lawyers' thought process.
posted by bonehead at 11:12 AM on December 15, 2011 [1 favorite]

Also, there's no such thing as "thinking like a lawyer". That's core, foundational bullshit.

1. Wow is this wrong. This is the Dunning-Kreuger effect in action: ...Generating a mental map of the law keyed to hundreds of particular narratives and cases changes the way people think.

2. A lawyerly mind is concerned with different things than a layman's mind, and it ought to be.

So, (ignoring the ad hominem) - "thinking like a lawyer" means thinking about legal procedure and substance, and remembering a lot of it.

You guys should meet my buddy, Sal the cabdriver. After all the driving he's done, he knows this city like the back of his hand - it's like he's constructed a memory palace in his mind that contains a map of the whooole city - I guess you could say he "thinks like a cabdriver".

Despite my tone, I actually have an open mind about this. If somebody can come up with a strong argument for the existence of "thinking like a lawyer", I'll (unfacetiously) buy it.
posted by facetious at 11:16 AM on December 15, 2011

As an expert witness, I've been explicitly told to remove any numerical discussion of probabilities from written evidence submissions and instructed to not talk about them on the stand.

Told by a judge or told by a lawyer? If you were told by the lawyer who hired you, it's because they want to make their case seem certain when it's not. I don't blame them, since people are so bad at probabilities, but that's probably what's going on. I don't know why you would be told this by a judge. In criminal cases, for instance, it's not uncommon to see DNA evidence presented in terms of probability. Now, lawyers frequently do a bad job with the math on this (as do juries), but they at least understand the fact that there is not absolute certainty.

My point was that lawyers themselves, at least, have no trouble with uncertainty (at least when it comes to facts), we know that a fact only need be proven to a certain degree of probability. They might try to keep that uncertainty from the judge or jury, but that's more about trial strategy than anything else.
posted by Bulgaroktonos at 11:23 AM on December 15, 2011

facetious: "I guess you could say he "thinks like a cabdriver"."

I've got no end of respect for cab drivers.
posted by vanar sena at 11:26 AM on December 15, 2011

We've been told to "simplify" by our trial lawyers, of course, explicitly, as part of their courtroom strategy.

Lawyers may not have problem with uncertainty as a concept, but the legal process and, seemingly judges and juries do.
posted by bonehead at 11:28 AM on December 15, 2011

I think it's a worthless concept because nobody talks about "thinking like an accountant" or "thinking like a software developer" in those same sacred terms. Thinking like [whatever] is basically what any degree program is for, but I think there's a fundamental problem with people in the legal profession thinking law is somehow Special.

I'm a liberal arts professor, and we talk all the time, explicitly, with one another and with students, about what it means to think like a physicist, or think like a historian, or think like a creative writer—or an accountant or a software developer. It's a matter of what questions you ask when you approach a problem, what you pay attention to and what you ignore, what types of things count as "evidence", which types of evidence are stronger and weaker, and how that evidence is connected together to make arguments in your field. I think one of the hallmarks of a liberal arts education is engaging in this kind of metacognitive analysis and discussion, though I admit I'm a bit surprised to see so many people insisting that "thinking like a [profession]" isn't a valid idea.
posted by BrashTech at 11:31 AM on December 15, 2011

there's a consistent feature of legal reasoning, especially judicial reasoning, which a lot of people completely fail to understand, a feature which is demonstrated every single time the concept of corporate personality comes up on the Blue. Specifically, while most people seem to want to make rules based on the general principle of the thing, lawyers and judges want rules that capture all of the desired results and only the desired results.

Yes. The media is terribly guilty of this as well -- we can speculate about whether or not this is intentional (because the overgeneralized narrative is usually more sensational). I used to write in to the CBC to correct their court reporting all the time. They would reguarly get things wrong (major things -- they couldn't even tell the difference between dissent and concurring judgments fer cripes sake) and it was always in this direction -- the simple line, the overgeneralized line. Sometimes the ratio really is sweeping and dramatic but not very often.

"Teaching someone to think like a lawyer", to me, is teaching someone how to make a certainty out of a probability. how to make the real world into black and white.

You must not live in the world of "legal risk management" which practically takes as premise that there is hardly ever a right or wrong, black or white. It's all grey. You don't tell a client they can't do X. Instead, there is a level of legal risk attached to an activity, taking into account whether or not there is a contrary interest (the state, an individual, a tribunal, etc.) which has the resources to challenge you, and then the chance that they will be successful. So even if you're clearly, 100% in the wrong (say, you're claiming a legislative authority that just isn't available), if there are no contrary interests (you're being uncharacteristically generous) or they can't scrape the resources together to challenge you, the risk might be low or nil, black and white be damned. Granted, this changes somewhat where there are clear limits to what legislation can authorize -- in Canada, that's usually the Charter. But even there, it may not be black and white. After all, you're not just living in and with the law; you're changing it. At least, that's the charitable interpretation of that kind of thinking.

So to me, you've pretty much suggested the opposite of "how a lawyer thinks". Not that you're not going to try to convince a court or tribunal that your view is the correct view -- of course you are. But there are no illusions about this on either side of the bench.
posted by Durn Bronzefist at 11:37 AM on December 15, 2011

I guess you could say he "thinks like a cabdriver".

I have no intention of placing anything on a pedestal here. But this is why law is not strictly a memory game.

Sal takes his cab driver's exam. He's a good student. There are many rules to be learned and he knows them. Unfortunately, in Sal's city, alongside rules like "no right on red" and "no parking within 3m of fire hydrants" they also require consideration of principles and factors. Instead of speed limits in school zones, they have "best interests of the child". Instead of yield signs they have "reasonable accomodation". Sal studies dilligently from various rulings on driver behaviour to get a sense of how these things are applied, but it is not always clear. Sometimes yesterday's rule is tomorrow's infraction. You have to keep up.

Monday he starts work and learns that the local municipal authority has decided that cabs will not transit particular thoroughfares during rush hours. A by-law was passed, specifying the roads not to be used, but not what "rush hour" means. Sal's cab company defines "rush hour" for purposes of company policy, but it may not be the same. In Sal's city, which is a capital, he will traverse muncipal, state/provincial, and federal land and roads. The by-law might apply to any or all of them. He quickly learns (because he was such a good student) that his state has defined "hours of maximum road usage". Is that the same? Would it govern the city? Perhaps the state and province have agreements about this sort of thing? Are they binding? Sal also learns that the city has decreed that cabs will give right of way to buses. Sal knows that there are city buses but also provincially/state-licensed buses. The city has not yet passed a by-law on this but has stated its intention to do so. Municipal elections are in two weeks.

Sal's first customer is running late. He's going to need Sal to use the prohibited thoroughfare, but it's a quarter past nine, outside of what the cab company defines as "rush hour", but within the provincial/state definition of "hours of maximum road usage". And the customer is going to be mighty pissed if he lets every Greyhound bus ahead of him. In this city, reputation is paramount, so he probably can't just play it safe. No one will ever take his cab again.

Did I mention? This is a bilingual jurisdiction. He should probably compare the French versions as they are equally authoritative. The differences could be illuminating (or could obscure what had seemed clear).

Let's move! There are deadlines.

(Of course, in reality, Sal could just weigh the cost of an infraction vs. tip. There should be higher stakes for the client in him being right or wrong. If he makes a particularly poor showing, he'll sue Sal for the difference. Luckily Sal has Lucky Cab's malpractice insurance.)
posted by Durn Bronzefist at 11:56 AM on December 15, 2011 [3 favorites]

So are we all just BSing here?
posted by 3FLryan at 11:57 AM on December 15, 2011

I mean, how exactly does one "do" 18th Century German Philosophy

Dialectically, baby.
posted by joe lisboa at 12:02 PM on December 15, 2011 [4 favorites]

You must not live in the world of "legal risk management" which practically takes as premise that there is hardly ever a right or wrong, black or white.

You're correct. I'm not ever a witness for the defense.
posted by bonehead at 12:17 PM on December 15, 2011

I'm not ever a witness for the defense.

"Legal risk management" rarely has anything to do with litigation per se as much as it does consulting on how best to avoid and price for the possibility of litigation.
posted by valkyryn at 12:18 PM on December 15, 2011

That's my point. By the time I get involved, charges have already been laid.
posted by bonehead at 12:35 PM on December 15, 2011

I think the bigger point is being missed here. The author is essentially correct: the book being is cited is about a philosophical notion of bullshit.

Specifically, the important points are that:
a) legal education is ad-hoc and unsystematic, and
b) the (adverserial) legal system is unscientific and unverifiable

Thus the issue is fundamentally deeper than the various small examples complained about in the article. With all the progress that's been made in the STEM fields in the last century, the question is whether this aspect of societal functionality is in serious need of critique and revision as well.
posted by polymodus at 2:34 PM on December 15, 2011 [2 favorites]

With all the progress that's been made in the STEM fields in the last century, the question is whether this aspect of societal functionality is in serious need of critique and revision as well.

People actually tried to do law "scientifically" in the nineteenth and early twentieth centuries, back when it was in vogue to do everything "scientifically".

As a project, it failed spectacularly and is now widely regarded as a rather embarrassing fad in legal history. Law isn't scientific because people aren't scientific.
posted by valkyryn at 4:23 PM on December 15, 2011

I don't think that answers the question. So they failed once because they were naive. Today's intellectuals are well aware of the fallacies and failures of scientism and hyper-rationalism. For example the neuro economist Kahneman, and others, have been looking at the very ways in which humans are nonrational. The fact that our legal system has so little explicitly productive interaction with scientific culture should be troubling; we shouldn't be content with it at all. In this light Frankfurt's book is quite applicable.
posted by polymodus at 4:50 PM on December 15, 2011

polymodu, the project you're think of is sometimes known as legal realism or jurisprudential naturalism. It's in progress.
posted by anotherpanacea at 6:20 PM on December 15, 2011

Can I have a do-over on that typo laden comment?

polymodus, the project you're thinking of is sometimes known as legal realism or jurisprudential naturalism. It's in progress.
posted by anotherpanacea at 8:57 AM on December 16, 2011

Bulgaroktonos: Law might be the only field that explicitly talks about "learning to think like an X," but

It isn't. In math we often speak of "thinking mathematically" as something we want to teach our students to do. Not that we as a group necessarily know how to teach it, or even exactly what it consists of, but we do talk about it.

And, yeah, what BrashTech said.
posted by stebulus at 3:07 PM on December 16, 2011