Thinking Like a Lawyer

1. Legal Reasoning: A Distinct Discipline?

Law schools aspire to teach their students how to think differently—differently from ordinary people, and differently from members of other professions.

Beyond Ordinary Reasoning. Law schools aim to cultivate a unique mode of thinking, distinct from general rationality or professional expertise. This "legal reasoning" involves specific techniques in argument and decision-making, setting lawyers apart from other professionals.

Skeptical Challenges. The distinctiveness of legal reasoning faces challenges from Legal Realists, political scientists, psychologists, and historians. These critics argue that lawyers and judges are influenced by personal biases, policy preferences, and psychological shortcomings, questioning the actual impact of specialized legal training.

A Contested Hypothesis. The existence of legal reasoning remains a contested hypothesis, requiring empirical validation. While lawyers share reasoning characteristics with others, the concentration and dominance of specific methods within the legal system may justify the claim that "thinking like a lawyer" is a real and important skill.

2. Rules: The Backbone of Legal Decisions

Central to what rules are and how they function is that what the rule says is the crucial factor, even if what the rule says seems wrong or inconsistent with the background justifications lying behind the rule, and even if following what the rule says produces a bad result on some particular occasion.

Rules and Rationales. Every rule has a background justification or rationale, which it is designed to serve. However, the rule itself, not the rationale, carries the force of law. This can lead to seemingly unjust outcomes when a literal application of the rule conflicts with its underlying purpose.

Core vs. Fringe. Rules have a clear core of settled meaning and a fuzzy edge or penumbra where interpretation is required. Litigated cases disproportionately involve the penumbra, leading to a skewed perception of legal rules as inherently ambiguous.

Generality and Formality. Rules are general, applying to a wide range of cases, and this generality inevitably leads to over- and underinclusiveness. The formality of law prioritizes the outcome dictated by the words of a rule, even when it seems unfair in a particular case.

3. Precedent: Learning from the Legal Past

The core principle of decision-making according to precedent is that courts should follow previous decisions—that they should give the same answers to legal questions that higher or earlier courts have given in the past.

Vertical and Horizontal Precedent. Vertical precedent requires lower courts to follow decisions of higher courts within their jurisdiction. Horizontal precedent, or stare decisis, obligates courts to follow their own prior decisions.

Following vs. Learning. Reasoning from precedent involves following a previous decision solely because of its status as a precedent, not because the instant court is persuaded by its reasoning. This can lead to decisions that the court believes are incorrect.

Justifications for Precedent. Vertical precedent is justified by hierarchical authority. Horizontal precedent promotes stability, predictability, and efficiency in the legal system.

4. Authority: The Weight of Legal Sources

When courts are constrained by precedent, they are obliged to follow a precedent not only when they think it correct, but even when they think it incorrect.

Content-Independence. Authority in law is content-independent, meaning that legal subjects are expected to obey rules and precedents regardless of their own opinions of their wisdom. The source or status of the rule is what matters, not its substantive content.

Optional vs. Mandatory Authorities. Mandatory authorities, such as binding precedents, must be followed. Optional authorities, such as persuasive precedents or secondary sources, may be considered but are not binding.

Prohibited Authorities. Certain sources, such as overruled cases or non-legal materials, may be prohibited as authorities. This reflects a judgment about which sources are legitimate for legal reasoning.

5. Analogy: Finding Similarity in Difference

In seeking to demonstrate to the hapless student or the struggling advocate how the best legal outcome may be something other than the best outcome for the immediate controversy, the prototypical Socratic interrogation embodies law’s pervasive willingness to reach a result differing from the one that is optimally fair or maximally wise, all things considered, in the particular case.

Drawing Connections. Analogical reasoning involves arguing that a current situation is similar to a past one and should be treated in the same way. This requires identifying relevant similarities between the source and target cases.

Not Precedent. Analogical reasoning differs from following precedent, which involves an obligation to follow a prior decision regardless of whether the instant court agrees with it. Analogies are chosen for their persuasive power, while precedents are binding due to their authority.

Skeptical View. Some argue that analogical reasoning is simply a disguised form of rule-based reasoning, with the court choosing a rule that determines the relevance of similarities. This view questions the distinctiveness of analogical reasoning.

6. Common Law: Evolving Through Cases

It is the merit of the common law that it decides the case first and determines the principle afterwards.

Judge-Made Law. The common law is a legal system in which law is created and developed through judicial decisions in particular disputes. This contrasts with civil law systems, which rely on comprehensive codes.

Flexibility and Adaptation. Common-law rules are defeasible, meaning they can be modified or overturned in light of new circumstances. This allows the common law to adapt to changing social conditions.

The Role of Equity. Equity, originally a system of individualized justice administered by the chancellor, has become integrated into the common law, providing flexibility and fairness.

7. Realism: The Skeptical Eye on Legal Reasoning

The skeptical position that distinctively legal reasoning is unusual rather than typical in actual legal practice may in the final analysis be sound, but the premise of this book is not only that legal reasoning does exist, even if it is not all that lawyers and judges do, but also that its actual existence is sufficiently widespread to say that there is, descriptively, something we can accurately characterize as “thinking like a lawyer.”

Challenging Formalism. Legal Realists questioned the traditional view that legal doctrine dictates judicial decisions. They argued that judges are influenced by personal biases, policy preferences, and other non-legal factors.

Predicting Outcomes. Realists emphasized the importance of predicting what courts will actually do, rather than focusing solely on formal legal rules. They urged empirical research to identify the "real" determinants of judicial decisions.

The Limits of Doctrine. Realists argued that legal doctrine is often indeterminate, allowing judges to justify a wide range of outcomes. This challenges the idea that legal reasoning is a neutral and objective process.

8. Statutory Interpretation: Deciphering Legislative Intent

In seeking to demonstrate to the hapless student or the struggling advocate how the best legal outcome may be something other than the best outcome for the immediate controversy, the prototypical Socratic interrogation embodies law’s pervasive willingness to reach a result differing from the one that is optimally fair or maximally wise, all things considered, in the particular case.

The Primacy of Text. Statutory interpretation typically begins with the enacted words of the statute itself. However, the question of whether the text is the only thing that matters is at the center of most controversies about statutory interpretation.

Indeterminacy and Supplementation. When the text is unclear, judges must look beyond the statutory language to sources such as legislative history, statutory purpose, or broader principles of justice.

The Canons of Construction. Canons of statutory construction are guidelines for interpreting statutes, but they are often contradictory and may not provide clear answers.

9. Judicial Opinions: Reasons and Rulings

The causes and consequences of judicial opinions are ones that are vitally important to lawyers and judges, and that law schools must teach their students.

Explaining Decisions. Judicial opinions are explanations by judges of the reasoning that led them to a particular conclusion. They provide the facts, procedural history, relevant law, and application of law to facts.

Holding vs. Dicta. The holding of a case is the legal rule that determines the outcome, while dicta are statements that are not strictly necessary to the decision. The distinction between holding and dicta is often contested.

The Declining Frequency of Opinions. Due to increasing caseloads, appellate courts are issuing fewer opinions, particularly in easy cases. This raises questions about transparency and the guidance function of judicial opinions.

10. Rules vs. Standards: Balancing Precision and Flexibility

It is better saith the Law to suffer a mischiefe (that is particular to one) than an inconvenience that may prejudice many.

Managing Discretion. Rules and standards represent different points on a continuum of precision and vagueness. Rules constrain discretion, while standards grant it.

Stability and Flexibility. Rules promote stability and predictability, while standards allow for flexibility and individualized justice. The choice between rules and standards involves a tradeoff between these competing values.

Allocating Authority. The choice between rules and standards also involves allocating decision-making authority between the present and the future. Rules make decisions now, while standards defer decisions to future decision-makers.

Last updated: April 11, 2025