Beyond Legal Reasoning: a Critique of Pure Lawyering
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Beyond Legal Reasoning: a Critique of Pure Lawyering

Jeffrey Lipshaw

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Beyond Legal Reasoning: a Critique of Pure Lawyering

Jeffrey Lipshaw

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About This Book

The concept of learning to 'think like a lawyer' is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of 'thinking like a lawyer' or 'pure lawyering' aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering's potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on 'thinking like a lawyer' beyond the litigation arena.

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Information

Publisher
Routledge
Year
2017
ISBN
9781315410791
Topic
Droit
Edition
1

1 Why a Critique?

[T]here is a natural and unavoidable dialectic of pure reason, not one in which a bungler might be entangled through lack of acquaintance, or one that some sophist has artfully invented to confuse rational people, but one that irremediably attaches to human reason, so that even after we have exposed the mirage it will still not cease to lead our reason with false hopes, continually propelling it into momentary aberrations that always need to be removed.1
This book is a critique, not a criticism, of the rigorous mode of rationality that has come to be known as “thinking like a lawyer.” For reasons that will become clearer over the course of this book, I refer to it as “pure lawyering.”
Our approach to teaching the lawyerly thinking process hasn’t changed all that much since C.C. Langdell assembled his first contracts casebook in 1871.2 Little more than a hundred years later, my professors still used similar casebooks and only seldom moved away from the podium to scrawl something on the blackboard. PowerPoint, YouTube, Blackboard, clickers, and other marvels of classroom technology had not yet arrived. Nevertheless, I doubt I would get serious resistance to the claim that, even while the techniques have changed, the substance of what we do (and usually very well!) is to inculcate the reasoning abilities captured in some iconic books.3 Those worthy works address the technical proficiencies of legal reasoning: how to derive the applicable rules and holdings from cases and apply those rules to new situations. There isn’t much wrong with either the substance or the pedagogy of that subject. My focus is rather the kind of thinking that non-litigating lawyers need to undertake over the course of a career. It is therefore a consideration of what it takes to get beyond legal reasoning.
My perspective as teacher, scholar, and practitioner is relatively unusual. I have been a law professor for over ten years. But I brought to the party something relatively rare among law professors—over a quarter century in a wide variety of legal roles. During the first ten years of my career, as a traditional litigator in a big Midwestern firm doing big cases (i.e. antitrust, securities, and complex commercial litigation), I never questioned what seemed to have been a natural segue from my legal education to my practice. Nor do I question it now. So much of my later practice career, however, took place outside the courtroom. It was unusual, but I quit being a litigator cold turkey over the course of a traumatic weekend, and spent the next sixteen years as a transactional lawyer within the firm, then as a company general counsel and business executive.
In the business world, my primary function was to be the liaison between the lawyers and law with its unique language and structures, on one hand, and non-lawyer decision-makers, on the other. I still needed to be fluent in the language and forms in which lawyers spoke to each other. What I learned over the course of a long career, however, is that legal reasoning is merely one form of making sense of things. Its application in non-legal settings requires the effective lawyer to hear it as non-lawyers might hear and respond to it, for better but often for worse.
Just as I felt myself a bridge from the legal profession to our business executives, I now want to bridge from the rigor of legal reasoning to the other kinds of nuanced judgments good lawyers have to make. I spent too long as a litigator myself and, as a general counsel, hired too many great litigators to denigrate the subtleties of judgment in litigation and trial practice. But as many of my academic colleagues now recognize, lawyering “before the fact” in transactions is quite different from “after the fact” dispute resolution. Despite some efforts to make it otherwise, the primary means of teaching the most transactional of the first-year subjects, contracts and property, is still by way of analyzing litigated appellate cases. Our methods of teaching the “deal” part of those subjects are still in their infancy. And the law-business judgments in the deal context can be quite different as well.
Nevertheless, this is not a rehash of most of the current criticisms of legal education. In many respects, what I will say here runs counter to the clamor for reform in legal education that has arisen since the MacCrate Report of 19924 and the Carnegie Foundation’s 2007 assessment of legal education, Educating Lawyers.5 After the Financial Crisis of 2008–09, the legal profession and law schools experienced the Great Contraction. The number of Law School Admission Test (LSAT) takers and law school applicants tumbled. The war of words between the establishment of legal education and its critics achieved new levels of venom. The American Bar Association (ABA), state bar regulators,6 and our students have come to demand professors teach skills, not just Langdellian-style doctrine, and certainly not abstract theory.
Nor is it a practical guide to restructuring the so-called skills curriculum. I offer a course in entrepreneurship and venture capital to our upper level students. Teaching them the mechanics of documenting a venture capital investment is relatively easy. The far harder task is conveying to my bright law students the extent to which their entrepreneurial clients don’t think like them. In our simulation, I play the client on both sides when the lawyers need to consult about a business decision. I’m sure I am one of their first experiences in dealing with a client who views lawyers as an impediment to the real goal, whatever it is.
To the contrary, if anything I want us as educators and lawyers to think even harder, and apply more theory if necessary, to what it means to think like a lawyer in the 21st century. What we teach so well, particularly in the first-year courses, is an enchanting way of thinking rationally and methodically. Legal reasoning is a method for converting narrative from the real world into a particular model, one that spits out legal consequences. That works perfectly in the purest form of pure lawyering, advocacy. Reason is a weapon. In transactional and other lawyering work beyond litigation, however, weapons may not be appropriate.
Thinking and, whether students want to hear it or not, the ability to theorize are the seedbed that underlies all the other lawyering skills. I want to understand where the traditional forms of lawyerly thinking fit the bill. But I also want to consider, particularly for those of our students who won’t be litigators, where they might not. The theme is deliberately beyond legal reasoning and not instead of it. The last thing I want to do is dull the sharp edges of the steel trap analytic minds I’m teaching in first-year contracts. Rather, at some point in their careers (perhaps even before they finish law school), they ought to consider the kinds of judgments for which the classical conceptions of thinking like a lawyer either do not provide satisfactory answers, or provide the kinds of judgments in which a naked rationality can lead to error.
One of the stereotypes of legal rationality is its relative amorality. It evokes a crafty cleverness, whether it is Portia’s examination of Shylock in The Merchant of Venice, or Don Corleone’s advice in The Godfather that Tom Hagen go to law school “because a lawyer with his briefcase can steal more than twenty men with guns.” Another stereotype is “CYA” caution where, as my simulation students learn, business people perceive lawyers as the corporate wet blanket, spinning out the downside legal risk of every good idea in their capacities as “Vice Presidents of ‘No.’”7
There’s a reason for the stereotypes. Almost two decades ago, UCLA law professor Gary Blasi offered an encyclopedic assessment of how lawyers go about solving problems. He noted at the outset the prototypical lawyer in cultural context was
a litigator, very likely a trial lawyer, knowledgeable about both legal doctrine and procedure, and able to put that knowledge to use on behalf of an individual client, generally in a fairly simple dispute with another party, in order to achieve a desired result.8
Pure lawyering is how that happens. It is a mode of converting real-world narratives into a logical progression of rules and facts. Deepak, a typical client, tells his lawyer a story of tripping on his neighbor’s rake or of a seller confirming a bargain price for a coffee maker and then reneging on the deal. His lawyer recasts the story into a series of if-then propositions, the effect of which is to turn out a conclusion that somebody is liable to Deepak for his injury or his disappointment. The heart of legal training is learning how to argue persuasively that the situation in dispute bears the greatest analogical resemblance to a case precedent in which the if-then rule just happens to generate a result favorable to that lawyer’s client. The arguments may involve the rule’s meaning, applicability, legitimacy, universality, or fairness. These are subjects of classroom debate.9 But once the process of lawyerly argumentation resolves the applicable rule, the legal consequence follows syllogistically. That, in a nutshell, is the core of pure lawyering: to force the resolution of the dispute into an otherwise amoral syllogism the result of which is binary: I’m right and you’re wrong.
It is difficult to talk about thinking like a lawyer without connecting it to the historical happenstance in which it developed. Law school introduces students to what Professor Elizabeth Mertz described as “a closed linguistic system that is capable of devouring all manner of social detail, but without budging in its core assumptions.”10 That is another way of expressing what legal sociologist Gunther Teubner called law’s “epistemic trap.” Law as a social institution develops its own models and constructs of reality. Its “cognitive operations … construct idiosyncratic images of reality and move them away from the world constructions of everyday life and from those of scientific discourse.”11 Those are some of the hallmarks of the professional identity described in Educating Lawyers.12
Modern conceptions of law in the United States began with Langdell’s formalist vision of law. It didn’t take long for others to object to that view. Holmes’s dictum was that law’s life comes from experience, not logic. But the nature of the closed system didn’t change.13 Even the legal realism of the first half of the 20th century, the first significant intellectual objection to Langdellian formalism, was still legal. It was a vision from within the community of lawyers about how its closed linguistic system should best reflect the outside world.
The closed community of the profession has social as well as intellectual attributes. In the real world, we still congregate in firms and law departments. When I left the law firm to become the young general counsel of a large multi-product business, I wanted all the lawyers to congregate in the home office like a miniature firm. The CEO overruled me, demanding that they be physically dispersed to the businesses they represented. He viewed the chief lawyer for each business as no different from the chief financial officer, the chief technologist, or the chief human resources executive. I wanted to keep the system closed. Not only did the CEO want it opened to the constructions of everyday business life, he thought my view was parochial. When I left the business and returned to the law firm, I remember the overwhelming sense at the first large meeting that it was viscerally diverse. Just a bit deeper, however, everybody looked alike.
Apart from the structure of lawyer communities, anticipating and conducting litigation is the quintessential version of that theoretical closed system in action. Lawyers own the turf. Business and lay people are generally uncomfortable participants in the game. Ordinary people see parsing the meaning of “is” (so famously demonstrated by Bill Clinton’s deposition) as an example of pure lawyering. That view of lawyers is not generally one that carries high esteem, even though parsing the meaning of words is precisely what lawyers do.
Transactional lawyers who see their jobs as anticipating all the possible bases for litigation can create the same impression. The big-city lawyer for a client buildin...

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