Legal Reasoning

[sentinel]

r u suggesting the OP is Jew?

[dft]

no. im suggesting that json is an anti-semitic, bigoted pig.

[tjking82]

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.

This is a farce.  "Thinking like a lawyer" does not necessarily entail "hold[ing] various unambivalent yet rationally unjustified beliefs [which can] change at a moment's -- or a client's -- notice."

It is the very essence of lawyerly thinking to be able to approach a situation from all different perspectives.  When arguing from position A, you must first assess the strongest arguments from position B.  You do this to determine the strength of your position relative to that of your opponent, and also to determine which points you will need to rebut.

However, there is no legal obligation to take a case - EVER.  If a potential client walks through the door and their situation is at odds with your morals or beliefs, you have EVERY RIGHT TO TELL THEM TO GET THE HELL OUT OF YOUR OFFICE.  While many laywers are all about the benjamins, and will take any case which has potential, such behavior is certainly not inherant within the training of a lawyer.

Hence, the statement that thinking like a lawyer leads to rationally unjustified beliefs and positions which can change on a moment's notice is absurd.  Please stop perpetuating the stereotype of the greedy lying lawyer.

[jimmyjohn]

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.

This is a farce.  "Thinking like a lawyer" does not necessarily entail "hold[ing] various unambivalent yet rationally unjustified beliefs [which can] change at a moment's -- or a client's -- notice."

It is the very essence of lawyerly thinking to be able to approach a situation from all different perspectives.  When arguing from position A, you must first assess the strongest arguments from position B.  You do this to determine the strength of your position relative to that of your opponent, and also to determine which points you will need to rebut.

However, there is no legal obligation to take a case - EVER.  If a potential client walks through the door and their situation is at odds with your morals or beliefs, you have EVERY RIGHT TO TELL THEM TO GET THE HELL OUT OF YOUR OFFICE.  While many laywers are all about the benjamins, and will take any case which has potential, such behavior is certainly not inherant within the training of a lawyer.

Hence, the statement that thinking like a lawyer leads to rationally unjustified beliefs and positions which can change on a moment's notice is absurd.  Please stop perpetuating the stereotype of the greedy lying lawyer.

Exactly right.

Funny how this thread has brought out mostly the types of people referred to in the original post.  f-ing weirdos.

[VirtualJD]

Not to mention all the vilifying lawyer jokes.

[gh@yahoo.com]

You guys are changing the subject

[__insomnia]

You guys are changing the subject

Seriously, stick to the topic cus I'll like to read more. 

[andjustice4all]

BUMP

[theothertwin]

andjustice4all, did you fashion your moniker after the movie ...And Justice For All? I am asking because I absolutely love that movie! For those of you who may have not seen it, it has been considered the most vicious cinematic attack on the legal profession.

It occurred in 1979, when director Norman Jewison, writer Barry Levinson, and actor Al Pacino combined their talents to rake law and order across the coals in ...And Justice for All. Strictly speaking, the film in neither a satire nor a black comedy, but there are heavy shadings of each woven into the narrative. ...And Justice for All's bleak, absurd look at lawyers would be hilarious if it wasn't so true-to-life.

The movie is more about morality and ethics than courtroom shenanigans. ...And Justice for All has no part in the stock trade of shock witnesses and surprising revelations. This is about how too many guilty people walk while the innocent take their places in overcrowded jails. The more you consider ...And Justice for All's message, and the means by which it is delivered, the more aware you become of how uncompromising Jewison's attack is on the legal system. Insane and corrupt judges dole out life-and-death sentences with as much thought as a butcher would give to carving a side of beef. Attorneys view the courtroom as an arena where they can grapple with an opponent without concern for the cost in human pain and tears. And those who genuinely care about their clients are foiled at every turn by the deeply-rooted hypocrisy and cynicism that defines American law.

Pacino plays Arthur Kirkland, a defense attorney who has been in practice for 12 years. He has a good reputation, so his caseload is heavy. However, Kirkland isn't in the game for money, prestige, or power. He's one of those rare lawyers who believes in the judicial system and wants to help people. He'll spend a night in jail for contempt of court rather than let a judge ignore a crucial piece of evidence. Yet all of Kirkland's principles are about to be called into question when he is asked to defend a hard-line justice, Judge Fleming (John Forsythe), who is accused of rape. Kirkland's dislike of Fleming runs deep, but circumstances force the lawyer to take this case, which he should stay far away from.

Pacino earned an Academy Award nomination for his work in ...And Justice for All. However, of all his Oscar nominations, this is probably the least-deserved. Pacino's intensity is undeniable, but the actor -- who always works on the seam between restraint and overacting -- crosses the line a few times too often. In a scene where Kirkland learns that a client has hanged himself, Pacino's histrionics strike a false chord. Certainly, there are times when Pacino is excellent, but he is not consistently so.

[x.sq]

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