“If man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis of prophecy” Oliver Wendell Holmes
University of Virginia professor Frederick Schauer, in his book “Thinking Like a Lawyer,” provides a framework useful in fulfilling Justice Holme’s prescription. Within this framework is professor Schauer’s careful identification and distillation of complex theoretical issues underlying the Anglo-American judicial system. The reader leaves this book with enhanced legal reasoning and more cogent thinking, allowing you to look straight through all the “dramatic incidents and to discern the true basis of prophecy,” as Justice Holme’s advised.
Nonetheless, this book is not something to breeze through lightly before bed or on a lazy afternoon. While it is not a strictly legal text or “law book” with rules and standards listed in a formulaic and mundane fashion, it requires careful attention and thinking. Schauer dives right into the core of some confusing, yet interesting, legal issues and this book requires patience.
If the reader chooses to embark on Schauer’s theoretical discussion within Thinking Like a Lawyer, great rewards wait for them at the end. Some of my personal favorites include a detailed and unique perspective on authority and how that authority should be viewed, as I discussed in this older blog post. Equally valuable was Schauer’s parsing of using and citing precedent and using and citing analogy. He states: “Law’s use of precedent differs substantially form law’s use of analogy, for in the latter a previous decision is selected in order to support an argument now, while in the former a previous decision imposes itself to preclude an otherwise preferred outcome.”
Having a clear understanding of this distinction, and many others identified within the book, aids in the legal reasoning process. This “clearing-up” function of concepts is a consistent theme throughout the book and instills a more clear-headed perspective for the lawyer.
Another interesting discussion, found within the analogy chapter, includes tips on how one is to determine similarity in order to successfully analogize a case—i.e., you must focus on the similarities with legal relevance as opposed to similarities that are relevant for other purposes. Legal relevance might be those facts that help further the underlying policy the rule of law is supposed to further. This type of model gives the practitioner some helpful theory behind the reasoning process so that legal briefing, for example, can be completed in a more methodical fashion.
Another useful discussion for the theoretically disposed is the one on the Common Law. Professor Schauer gives a useful history of the Common Law, mentioning its basic precepts and goals. Such as, “It is the merit of the common law, Oliver Wendell Holmes observed, ‘that it decides the case first and determines the principle afterwards’ ”; and how the common law “works itself pure,” which captures “the belief that the common law, in being fluid and always improvable at the hands of common-law judges, gradually approaches a perfection in which the rules almost never generate suboptimal outcomes.”
One of the more practical discussions is the one on Statutory Interpretation, which outlines the fundamental goals of interpretation, the primary methods lawyers successfully interpret statutes to favor their client, the common pitfalls in statutory interpretation, the major debates surrounding interpretation, and various canons of statutory construction—e.g., In pari materials (Provisions in different statutes, or different parts of the same statute should be interpreted as a whole to produce a coherent and internally consistent statutory scheme). Schauer also separates apart the different types of issues interpreters face when the words of the text are insufficient, such as when the text provides no answer versus when the text provides a bad answer, and how a legal reasoner can go about solving this problem.
The remaining chapters continue to provide a well-selected mix of topics that provide practical as well as theoretical value to the lawyer, law student, or practitioner—the difference between Law and Fact (surprise, the distinction is more threadbare than you might think), the difference between Rules and Standards, and the role of the Burden of Proof in American Law. Schauer is really masterful at identifying subtle nuances in the law, such as the impact of narrow versus broad decisions and how this impacts the development of law in the future decision-making, and the effect a rule has on judicial discretion compared to a standard. His explanations of these nuances seem common sensical and obvious, but they are distinctions that go unconsidered for most in everyday legal practice.
Moreover, this book is unequivocally a gold-mine for developing your mental representations, a topic I’ve written about in the past. When you expose yourself to new information, you conjure up a new mental structure that houses that information and similar information. The more you study a topic, the more detailed and comprehensive these mental representations become, thus allowing you to assimilate new information more easily. Exposing yourself to the wonderful survey that professor Schauer provides sets into motion various mental structures that are engrained in everyday legal practice—burdens of proof, citation of authorities, and dealing with facts and law. While many of the discussion in the book are admittedly highly theoretical, the mere exposure will help you have a more dynamic perspective in your practice.
The only down-side of Schauer’s work is that it leaves a young lawyer grasping for actionable tips to implement immediately in practice. There were almost none that I was able to pick up, as the book focuses on abstractions that the reader must turn into something actionable–perhaps this isn’t such a bad thing. Luckily, there are plenty of books out there that to focus on the actionable, so you can always turn there.
Alas, Thinking Like a Lawyer belongs on your bookshelf of law books and can be referred to when faced with a difficult problem, whereby a new perspective might be helpful. It is also interesting in its own right, providing many interesting controversies and disputes in legal theory—e.g., the correctness of the legal realist movement—and citing a multitude of law review articles on topics you may want to take a further look. But, at bottom, it provides various frameworks and insight into legal concepts that will help you become a master of law, as Holmes put it, as the true prophecy and purpose of the law is made more apparent through Schauer’s discussion. One of the most cited legal scholars in the country does not fail in this attempt to provide an introduction into the distinct reasoning process lawyers engage in, and I highly recommend it to pre-law students, law students, and lawyers alike.
Get the book here: Thinking Like A Lawyer