HOW TO "THINK LIKE A LAWYER": Advice To New And Prospective Law Students
By MICHAEL C. DORF
|Wednesday, Aug. 22, 2001|
This month, at law schools all across the country, thousands of first-year students are beginning studies that will, for most of them, culminate in their joining the legal profession a few years from now. The start of any new venture is always a time of excitement and anxiety, but such classic works of fiction and memoir as The Paper Chase and One-L have contributed to a mythology of law school as a kind of extended hazing ritual. As a result, the anxiety can dominate the excitement.
To try to calm the fears of new and future law students, I offer a few words of advice that I wish someone had given to me when I was a 1-L fourteen years ago. I hope what I have to say will also be of interest to those of you who have finished your legal studies, or who have no intention of ever beginning them.
The Dreaded Socratic Method
First-year law students come to law school after twelve years of primary and secondary school, four years of college, and in many cases some additional years in the workforce or in graduate school. Why, then, should another three years of school be frightening? The answer is surely the mystery surrounding the Socratic method.
Here is an example of the Socratic method based on the first day of my course in constitutional law:
Me: Ms. Yavlinsky, suppose the New York state legislature passes a statute banning "the making of any statements critical of the New York government." You write an editorial for the student newspaper in which you state that the members of the legislature who voted for the statute thereby violated their oath to support the Constitution. You are prosecuted for violating the statute. Do you have a constitutional defense?
Ms. Yavlinsky: Yes.
Me: What is your defense?
Ms. Yavlinsky: It violates the First Amendment.
Me: But the First Amendment says that "Congress shall make no law . . . abridging the freedom of speech, or of the press." Is the New York legislature the same body as Congress?
Ms. Yavlinsky: No.
Me: So is the prosecution permissible?
Ms. Yavlinsky: I don't think so?
Me: Why not?
Ms. Yavlinsky: I think the First Amendment has been applied to the states.
Me: Very good. Indeed it has. Later in the semester, we will study a series of cases in which the Supreme Court ruled that when the Fourteenth Amendment prohibits any state from denying a person "liberty" without "due process of law," it implicitly includes within "liberty" most of those rights that are spelled out in the Bill of Rights. But I'm troubled by something else today. Why should a New York court have to pay any attention to what's in the federal Constitution?
Ms. Yavlinsky: Because of Article VI.
Me: I assume you are referring to the portion of Article VI that says: "This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."
Ms. Yavlinsky: Yeah, that's it.
Me: Well, that seems rather circular doesn't it? I have here in my pocket another document, also labeled "the Constitution of the United States." It has the following provisions:
Article I: The form of the government of the United States shall be a dictatorship.
Article II: The dictator shall be all-powerful.
Article III: The dictator shall be Columbia Law School Professor Michael Dorf, unless and until he appoints a successor.
Article IV: "This Constitution shall be the supreme law of the land; and everybody shall be bound by it, any thing in the constitution or laws of any state or other body to the contrary notwithstanding."
Tell me Ms. Yavlinsky, why is the Constitution printed in the front of your casebook more authoritative than the "Dorf is Dictator" Constitution?
Ms. Yavlinsky: Because the real Constitution was ratified by the People.
Me: Did you ratify it?
Ms. Yavlinsky: No.
Me: Did any of your ancestors ratify it?
Ms. Yavlinsky: No.
Me: What were your ancestors doing in 1789, when what you call the real Constitution was ratified by the People?
Ms. Yavlinsky: They were serfs in Russia.
Me: I see. Well perhaps the so-called real Constitution is binding because it was democratically chosen by the people who lived here at the time?
Ms. Yavlinsky: Okay.
Me: If you had been living in the United States in 1789, would you, as a woman, have been permitted to vote for the people who decided whether to ratify the Constitution?
Ms. Yavlinsky: No.
Me: Did enslaved African-Americans vote for ratification?
Ms. Yavlinsky: No.
Me: How about Native Americans?
Ms. Yavlinsky: No.
And so it goes. For every answer it seems there is another question, until the exasperated students begin to feel like the point of the Socratic method is to show how much smarter the professor is than they are.
The Truth About the Socratic Method
It's true that the Socratic method can be used to confuse and humiliate students. It can also be misused in other ways for example, when the professor asks the students in effect to try to read his mind, rejecting perfectly intelligent answers because they are not exactly what was expected.
When used well, however, the Socratic method teaches law students a vital skill: critical thinking.
In The Paper Chase, Professor Kingsfield (memorably portrayed by John Houseman in the film version) tells his students: "You come here with minds full of mush and leave thinking like a lawyer." But, what exactly does it mean to think like a lawyer?
The answer the secret to law school success (offered here for free!) is nothing. There is no such thing as thinking like a lawyer. There is only clear thinking and confusion.
To be sure, the law often requires much greater precision than is needed in other spheres of life. A person's ability to avoid going to prison or to keep her fortune can turn on exactly what a word in a statute or contract means, and accordingly lawyers must learn to pay careful attention to nuance. But there is nothing different in kind about lawyerly precision that distinguishes it from any other type of clear thinking.
Why the "Thinking Like a Lawyer" Myth Persists
To paraphrase the first President Bush, for at least a generation, most law professors have practiced a kinder, gentler form of the Socratic method. These days, one would be hard pressed to find an example of the archetypal, Houseman-like Socratic law professor who never utters a declaratory statement and gives the impression that everything any student says is wrong.
Nevertheless, the myth of the bullying Socratic law professor persists as a staple in fiction and in the fearful imaginations of new and prospective law students. Why?
In part, the myth persists because it glorifies the legal profession. Those of us who hold law degrees have an interest in the general public believing that we have some distinctive skill in virtue of our special, and especially arduous, training. Thus, there is a tendency among current lawyers to exaggerate how much they suffered when they were law students.
But the self-interest of legal professionals is only part of the story. The public also has an interest in believing that lawyers think differently from everybody else.
In his 1930 book, Law and the Modern Mind, attorney (and later federal appeals court judge) Jerome Frank explained why the lay public had always been hostile to lawyers as a class. According to Frank, most people believe that the law itself is clear, but that hair-splitting lawyers introduce uncertainties as a means of manipulating the law to serve their clients' and their own interests. Law school, in the public mind, aims to displace common sense with legalistic pedantry.
The public's view, Frank argued, is mistaken. In most instances, the law cannot be certain, because life is simply too complex for a lawmaker to anticipate all of the circumstances to which a legal norm might be applied.
To borrow an example that is famous in the academic literature, a city council concerned about safety and quiet enacts an ordinance prohibiting "vehicles in the park." Does the prohibition apply to roller skates? To a statue of a tank? To an ambulance?
Even the most careful of lawmakers will not think of (or specifically address) some of the borderline cases, and the diversity of human experience will then require a nuanced judgment by lawyers.
The Risks of the Socratic Method
Although most lawyers would probably side with Frank and against the myth of legal certainty, law school does pose a real danger for those students who absorb the wrong lesson and come to resemble not Socrates, but the Sophists.
The point of the Socratic method is to encourage students to question assumptions they did not even realize they were making. That is an essential element of legal training, but it can be taken too far.
For example, in the above hypothetical dialogue, I was trying to induce Ms. Yavlinsky and the other students in the class to ask themselves why the Constitution is binding law. A clear answer to that question will be useful to students in figuring out how the Constitution should be interpreted. By using the Socratic method to elicit an answer, or a range of answers, rather than simply telling them what I think in a lecture, I am helping them sharpen their own analytical skills.
But a student who comes away from the class thinking, as a result of the Socratic give-and-take, that the law has no rightful claim to authority and that he can therefore ignore it, has missed the point of the lesson. Even if he is right as a matter of political theory, he will not be an effective lawyer if he treats the law as wholly illegitimate.
More generally, in exposing students to the law's inevitable ambiguities, the Socratic method risks inducing cynicism the view that the law can mean anything or nothing. But this view is no better than its opposite: the naïve view that law always has a single, undebatable meaning.
Cynicism is an unwarranted and unintended consequence of the use of the Socratic method. While there is some uncertainty in some areas of law, that is a far cry from saying there is no certainty anywhere in the law. The existence of dusk does not call into question the distinction between day and night.