HOW TO "THINK LIKE A LAWYER": Advice To New And Prospective Law Students

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:

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.