Law School Discussion

Anyone interested in legal reasoning method, its pecularities and the like, please post here.

I think the need to believe in the power of legal reason plays an important role in producing the extremely complex and interesting psychological phenomenon, the modern legal mind.

I hope you have heard of unicorns. One could believe that unicorns are actual biological phenomena -- that unicorns are real in the same way horses are real. Or one could believe that unicorns are creations of the human mind, imaginary creatures whose characteristics are therefore wholly a product of our assumptions about those same characteristics. Now imagine a social practice that requires persons to act as if they sincerely believe there actually are independent facts of the matter regarding unicorns -- facts not dependent on human beliefs -- and indeed routinely requires these people to assert the existence of such facts. Yet suppose this practice also requires that on certain occasions those who engage in the practice claim no such independent facts concerning the status of unicorns exist because, after all, "everyone knows" unicorns are merely products of the human mind. We could anticipate that many of the participants in this practice will develop a sort of double consciousness about unicorns, one in which they will both affirm and deny -- and in which they will in a sense both believe and not believe -- that unicorns are actual or imaginary creatures, depending on the context in which such affirmation or denial, and belief or absence of belief, is deemed appropriate.

On certain occasions, they would argue passionately about what colors unicorns really were, or about their actual population, whereabouts, and habits. On other occasions they would treat with derision anyone who could be foolish enough to take the naive view that unicorns were the sort of creatures that existed outside the minds of the men and women who imagined them into being. On yet other occasions they would seem to assert both views at once, claiming that while of course unicorns didn't really exist outside our imaginations, nevertheless by treating them as if  they were actual living animals we could eleminate any practical distinction between the characteristics of real and imaginary creatures.

Such is the ordinary mental condition of the modern American lawyer. The modern lawyer, and especially the modern judge and law professor, must continually practice a sort of "as if" jurisprudence, within the context of which the lawyer both knows and doesn't know that most important legal facts are facts only to the extent we believe them to be legal facts. Various strategies are then employed to deal with the intense cognitive dissonance that characterizes this condition. A common one among practicing lawyers is to simply ignore the dissonance -- to treat it as someone else's problem. That someone is, of course, whatever decision maker is precluded from employing the same cognitive strategy by virtue of the decision maker's decisional responsibilites.

Perhaps the proper function of a legal education is to produce persons who "think like lawyers": individuals, that is, who are trained to hold various unambivalent yet rationally unjustified beliefs, necessary for the vigorous deployment of social power, that nevertheless remain highly role specific, and are therefore subject to change at a moment's -- or a client's -- notice. Such beliefs help mold otherwise ordinary people into the sorts of state actors who will not hesitate to kill, cage, and impoverish their fellow citizens on what are deemed institutionally appropriate occasions, in much the same way that successful military training renders otherwise pacific young men capable of committing acts of politically sanctioned homicide.

The hardest thing about it is the @ # ! * e d-up way of thinking you've to adopt. The best way to think about it is to imagine you've this weird way of thinking yourself that you're "projecting" from now on to your thinking processes while in the environment where your classes take place; that is to say, just think that you've to put up with this bad part of yourself that adheres to the assinine lawyers' way of thinking and that you're inexorably free from all that crap once out in the real world, away from the law school sorrounding madness!

In Orwell's Nineteen Eighty-Four there is a particularly chilling scene in which, after the director of the Ministry of Love has subjected Winston Smith to intense physical tortures, he employs another strategy in the process of Smith's gradual re-education.

^{"This time it will not hurt," [O'Brien] said. "Keep your eyes fixed on mine."
   At this moment there was a devastating explosion, or what seemed like an explosion.... A terrific, painless blow had flattened [Smith] out. Also something had happened inside his head ... somewhere or other there was a large patch of emptiness, as though a piece had been taken out of his brain.
   "It will not last," said O'Brien. "Look at me in the eyes.... Just now I held up the fingers of my hand to you. You saw five fingers. Do you remember that?"
   "Yes."
   O'Brien held up the fingers of his left hand, with the thumb concealed.
   "There are five fingers there. Do you see five fingers?"
   "Yes."
   And he did see them, for a fleeting instant ... there had been a moment -- he did not know how long, thirty seconds, perhaps -- of luminous certainty, when each new suggestion of O'Brien's had filled up a patch of emptiness and become absolute truth, and when two and two could have been three as easily as five, if that were what was needed ...
   "You see now," said O'Brien, "that it is at any rate possible."}

Compare this passage to Karl Llewellyn's famous description of the student's first year of law school: "The hardest job of the first year is to lop off your commonsense, to knock your ethics into temporary anesthesia. Your view of social policy, your sense of justice -- to knock these out of you along with woozy thinking, along with ideas all fuzzed along their edges."

Bot of course when we undertake the resolution of hard issues it will always be the case that the relevant legal concepts, the demands of social policy, and the ideal of justice will by necessity appear to sensitive interpreters to be "fuzzed along their edges." That very same formal, empirical, and ethical fuzziness is, after all, what makes hard issues hard. A successful legal education therefore both sharpens and desensitizes the adept's sense of analytical complexity, sharpening it so that the advocate can identify various plausible arguments, and then deadening it for the purpose of making and (especially) deciding between such arguments. This  characteristic doubleness of the legal mind produces the doubleness of the literal sophomore -- of the brilliant simpleton who understands and exploits and at appropriate times forgets -- the evidentiary problems, conceptual incommensurabilities, and ethical dilemmas that always characterize legal issues. To be trained to think like a lawyer is to be taught how to evoke all the chaotic complexity of law, and then how to repress the intolerable doubt that same evocation can produce by going on to achieve the "luminous certainty" required of the advocate or judge.