In a post about the irrationality of testing methodology, Jeffrey Harrison at MoneyLaw touches on a subject that sticks in the craw of first year law students and those who are deeply concerned with keeping them all warm and fuzzy. Being that it’s the opening of another round of the game show, “So You Wanna Be A Lawyer,” unemployed edition, this seems a particularly good time to remind law students, and those who deign to teach them, that reasoning matters.
This doesn’t tend to work nearly as well before judges, and therefore isn’t an acceptable basis for becoming a lawyer. Despite the touchy-feely approach to legal education, where the self-esteem needs and holistic concerns of personal morality and satisfaction transcend the nasty, ugly, demeaning approach of demanding that students be capable of both assessing a fact pattern for its relevant details and then crafting a rational argument that logically flows from the facts and law to the end to be achieved.
They don’t wanna. They like their own emotional argument, and if it’s good enough for them, then it should be good enough for the rest of us. It’s their right! And what makes reason so much better than whatever it is they believe?
In Jeffrey’s post, he notes that it’s irrational to mark the student who gets the ultimate answer wrong the same whether it’s been well-reasoned, though marred by minor or single error, or wrong because it’s devoid of reason and understanding. Sure, wrong is wrong ultimately, provided that there is a discrete right and wrong answer. As lawyers, we come to realize that right answers are only right until some court somewhere decides otherwise, leaving us with quite a few fuzzy lines. Over enough time, we even find that some black letter law is written in the sand, and is subject to change with the swipe of a hand.
But the ephemeral nature of law tends to get in the way in law school, and is best left for the lessons of misery as one matures in practice. Law school is for the teaching of foundations upon which nasty experience can build, and foremost of our foundations is to think like a lawyer. The rest can be learned in a diligent afternoon.
Logic isn’t personal. It doesn’t care how you “feel” about something. Your preferences are irrelevant. And no, you’re not entitled to your own opinion.
This doesn’t mean that you can’t be creative in the crafting of an argument, or the understanding of why a court reached a particular holding. Indeed, a deeper understanding, informed by experience, may often yield a different rationale for a holding than the one commonly accepted and taught to you. Provided you understand the accepted rationale, taking the initiative to challenge the rationale by a logical, albeit different, line of reasoning is a higher order skill. But it must still be based on sound reasoning. Of course, your professor may not agree with your explanation and burn you for it on tests, but that’s the risk you take.
Jeffrey asks whether logic is still taught in schools. It is in law school, even if not called logic anymore. Or at least it should be if law school is to serve any purpose. The ability to craft and convey a logical rationale for a position is fundamental to the practice of law. It’s time to put away the child-like arguments that have worked well up to now, and may still work at beer blasts and sock hops. But they won’t work with other lawyers and judges, none of whom care a whit about how you feel or whether your self-esteem is undermined when you’re told that your argument is rejected with a terse “denied”.
And as lawprofs decide whether the ease with which a scantron satisfies their grading is more important than the ability of a student to present a well-reasoned position, even if it falls short of perfect, consider whether motivating and incentivising your students to leave their childish notions of reason behind and strive to achieve logic is more important than remembering the case name or getting the holding right. It’s not that holdings don’t matter, but any student who gets a good grade but can’t reason will fail as a lawyer.
From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools. They can’t think worth a damn. As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse. If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers. And yes, as Jeffrey suggests, their failure is a reflection of the failure of their legal education to teach them the difference.
Welcome to law school. I hope you know what you’ve gotten yourself into. Now get to work.
And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.Ignore the grading aspect and focus instead on the reasoning aspect. One of the most disturbing, yet recurring, themes amongst law students who comment around here is their inability to distinguish between emotion and reason, causation and correlation. Up to now, 1Ls got away with winning arguments any way they could. It was perfectly sufficient if they achieved their end by screaming louder or withholding sex. Winning was winning, and the rest was simply finding the mechanism to accomplish the goal.
This doesn’t tend to work nearly as well before judges, and therefore isn’t an acceptable basis for becoming a lawyer. Despite the touchy-feely approach to legal education, where the self-esteem needs and holistic concerns of personal morality and satisfaction transcend the nasty, ugly, demeaning approach of demanding that students be capable of both assessing a fact pattern for its relevant details and then crafting a rational argument that logically flows from the facts and law to the end to be achieved.
They don’t wanna. They like their own emotional argument, and if it’s good enough for them, then it should be good enough for the rest of us. It’s their right! And what makes reason so much better than whatever it is they believe?
In Jeffrey’s post, he notes that it’s irrational to mark the student who gets the ultimate answer wrong the same whether it’s been well-reasoned, though marred by minor or single error, or wrong because it’s devoid of reason and understanding. Sure, wrong is wrong ultimately, provided that there is a discrete right and wrong answer. As lawyers, we come to realize that right answers are only right until some court somewhere decides otherwise, leaving us with quite a few fuzzy lines. Over enough time, we even find that some black letter law is written in the sand, and is subject to change with the swipe of a hand.
But the ephemeral nature of law tends to get in the way in law school, and is best left for the lessons of misery as one matures in practice. Law school is for the teaching of foundations upon which nasty experience can build, and foremost of our foundations is to think like a lawyer. The rest can be learned in a diligent afternoon.
Logic isn’t personal. It doesn’t care how you “feel” about something. Your preferences are irrelevant. And no, you’re not entitled to your own opinion.
This doesn’t mean that you can’t be creative in the crafting of an argument, or the understanding of why a court reached a particular holding. Indeed, a deeper understanding, informed by experience, may often yield a different rationale for a holding than the one commonly accepted and taught to you. Provided you understand the accepted rationale, taking the initiative to challenge the rationale by a logical, albeit different, line of reasoning is a higher order skill. But it must still be based on sound reasoning. Of course, your professor may not agree with your explanation and burn you for it on tests, but that’s the risk you take.
Jeffrey asks whether logic is still taught in schools. It is in law school, even if not called logic anymore. Or at least it should be if law school is to serve any purpose. The ability to craft and convey a logical rationale for a position is fundamental to the practice of law. It’s time to put away the child-like arguments that have worked well up to now, and may still work at beer blasts and sock hops. But they won’t work with other lawyers and judges, none of whom care a whit about how you feel or whether your self-esteem is undermined when you’re told that your argument is rejected with a terse “denied”.
And as lawprofs decide whether the ease with which a scantron satisfies their grading is more important than the ability of a student to present a well-reasoned position, even if it falls short of perfect, consider whether motivating and incentivising your students to leave their childish notions of reason behind and strive to achieve logic is more important than remembering the case name or getting the holding right. It’s not that holdings don’t matter, but any student who gets a good grade but can’t reason will fail as a lawyer.
From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools. They can’t think worth a damn. As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse. If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers. And yes, as Jeffrey suggests, their failure is a reflection of the failure of their legal education to teach them the difference.
Welcome to law school. I hope you know what you’ve gotten yourself into. Now get to work.
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Law is about rhetoric, not logic. It can’t be about logic because the axioms of law (the black letter part) doesn’t form any kind of consistent system, the axioms themselves are self-contradictory.
Rhetoric is the delivery mechanism. Logic is the content. That law contradicts itself all over the place is obviously true, but that’s a by product of ultimate normative determinations. After all, have you ever met the reasonable man?
Long time ago, in undergraduate school, logic was a required course for everyone. The times they are a changing.
Thinking is so . . . restrictive. Young minds should be allowed to “reason” in whatever fashion makes them feel valued, confident and enhances their self-esteem.
See this article, Americans Most Likely to Base Truth on Feeling, and “Why People Believe Weird Things”, by Michael Shermer.
Now that the system is filled with judges and lawyers unable to analyse evidence and the law, the disasters will accumulate exponentially.
From what I’ve seen here, and I’ve seen quite a bit from our law student and young lawyer friends, we have a severe logic gap coming out of law schools. They can’t think worth a damn. As the trend toward warm and fuzzy at the expense of sound reason spreads, it’s only going to get worse. If young lawyers can’t distinguish between sound reasoning and their personal feelings, they will fail as lawyers.
My I point you to a specific example of two prosecutors and three of their cases?
In the first case, they prosecuted a man for the murder of his stepdaughter, whose naked body was found in some woods. Their sole evidence against him was this: they found an ‘expert’ who testified that a mark in her flesh was caused by an automobile seatbelt. The accused owned a vehicle. The vehicle had seatbelts. Therefore the accused must have killed her. The jury agreed.
In the second case, they prosecuted a man for the murder of his pregnant wife. Their evidence against him was, the wife was murdered by a human. The husband is a human. Therefore the accused must have killed her. The jury agreed and sentenced him to death.
In the third case, they considered prosecuting a man for the murder of his pregnant girlfriend. He stabbed her multiple times in the belly to kill the child, then strangled her with a telephone cord. He fled their apartment, travelling across several states. He left all the evidence behind and, when caught, made a full confession. The prosecutors declined to take the case to trial pleading inadequate evidence and ‘other’ circumstances. The accused pled to second degree and got 17 years but subject to parole.
In case one, there was considerable local feeling and notoriety. In case two there was international notoriety. In case three, involving two Hispanics, there was no interest at all. But perhaps I’m a cynic.
What happened to these prosecutors? One is now the DA and the other was made a judge!