Thinking Like A Lawyer

There may be ways that thinking like a lawyer could actually be a good thing.

When you apply to law school you hear a phrase over and over and over again: “think like a lawyer.” As in “At [insert law school], we will teach you to think like a lawyer.” This phrase is echoed endlessly among institutions. Each law school I applied to is the most collegiate law school in the country, each one prepares you the most for the real world challenges you will face, and each one focuses laser-like on a single goal: teaching you to “think like a lawyer.”

As I reflect on actually graduating from one of these institutions I have had a chance to consider what it means to “think like a lawyer.” The phrase has purchase, I think, more because of the amorphous reality of legal education than because it relates to any concrete skill set. Law schools implicitly tout the J.D. as the smart person’s masters degree — it is the post secondary education for those who don’t know why they need a post secondary education. In other words, “think like a lawyer” is a sort of dog whistle: “don’t worry, we’ll just teach you how to be smart and you can figure it out from there.”

Still, I think I have learned, at least in some respects, how to think like a lawyer. Lawyers are oft maligned, and many who read this probably wish to avoid thinking like a lawyer as much as possible. But I would suggest there are some ways we could all do well to be more lawyerly in our approach to important topics in our national political conversation. I have outlined a few such ways below.

Normative versus positive. One of my favorite professors told us that law school is essentially about being able to keep two conflicting ideas in your head and knowing how not to mix them up. Determining what is the “right” thing to do — what is the best in a moral or ethical sense — is not always the legally “correct” result. That may sound like a particularly dry lawyer joke, but it is actually a concept that we all intuitively grasp. Say you are driving from your house to the grocery store, and you encounter a construction related detour. You may want to just keep going straight, on the route that you know is best. But the correct thing to do is to follow the directions of the nice person waiving you along. Two things are true about that scenario: (1) you did not go the best available route (assuming that “best” means “fastest” and that you could physically drive through the construction site, although it would have been illegal to do so) and (2) you took the correct route.* Why does this matter? Because in the first scenario, if you are explaining why you are late getting back from the grocery store, it would be absurd for someone to scold you for taking the detour because that was not the best available route. You are not arguing that you went the “best” way, you are arguing that you went they way you were supposed to go. Law students think of this as the difference between normative and positive arguments. Positive arguments are about what the law is (what is correct). Normative arguments are about what the law should be (what is best).

In terms of our politics, we overlook this distinction all the time. There’s a big difference between what the text of the Affordable Care Act says and whether low income Americans should have subsidies for their health insurance. There’s a difference between whether the United States should lower its barriers to entry to allow more immigrants in and whether someone has broken the law when they entered the country. I have personally encountered this problem. On several occasions I have tried to explain simply how a law works or what I think the law is only to be attacked for supporting a particular outcome of that law. We would do well to separate these discussions, at least somewhat. I am a firm believer that one must know the contours of the box before they can step outside of it. Similarly, I think that we will always have a hard time deciding what we should do if we can’t agree about what we are, in fact, already doing.

People versus ideas. One of the most celebrated and disparaged aspects of lawyers is that they defend all kinds of people. The fact that lawyers will likely have to argue positions that they do not personally support is so implicit that I don’t think it is ever really taught in law schools.** One thing this imbues on the profession is a not-always-met-but-generally-pursued goal of avoiding ad hominem attacks. That is, you make your arguments about the law and the facts, not about the lawyer. Where it works, this is one of the best aspects of legal discourse. It allows ideas to be considered in relative isolation. No law is an island, but if the argument before the court is about the proper standard for review on summary judgment, it’s not helpful to argue about the lawyers’ views on abortion. Opposing counsel may have made arguments in a different case in support of a pro-life group, but you aren’t supposed to hold that against them now.

Sometimes the conversations we have, particularly those about the “social justice” issues — race, incarceration, immigration and so forth — can feel less like conversations about the issues and more like elaborate purity tests, where everyone brings to the table everything they have ever thought, said, tweeted, or commented on a friends blog, and if anything is out of line the whole batch is ruined. Outside of a courtroom, it is perfectly reasonable to consider someone’s prior statements and actions as evidence of their bias (it may be acceptable in the courtroom too, but in maddeningly specific circumstances). But that’s a bullet point in the discussion. It should be a treated as a shadow behind the actual argument, a reason to raise an eyebrow. Imagine an open and proud member of the Klu Klux Klan who has an ingenious way of capturing and treating polluted stormwater. They are still a bad person, and we should be skeptical of their motives, but their racism and bigotry simply does not per se make that method of treating stormwater not ingenious. As someone who constantly seeks out people whom I disagree with and who is attracted to people who say edgy things (whether they are legal scholars, comedians, or podcasters), I find the inability to separate people and ideas frustrating. Yes, Dan Savage has said some bad things about obese people in the past. No, that does not mean that because I listen to Dan Savage I hate fat people . Etc. Etc. I suspect that by engaging with ideas more and the ideological purity of their purveyors less, we could come to more agreement on ideas, which I assume is a good thing.

Substance versus Process. When I am asked (constantly) by future employers, family, and friends (in that order), why I went to law school I occasionally give the real answer, which is often too esoteric to be thrown into a casual conversation: I am interested in the idea of what to do when you are right. We often spend tremendous amounts of time and energy determining what is “right.” In other words, what is the normative solution. But there is a step B: in addition to determining what is right, there is the question of how, a question of “what do you do about it?”

I think of this now in terms of a dichotomy well known to lawyers and law students — that between substance (what is the thing you are trying to do?) and process (how can you and how should you do the thing?). Importantly, they are different. Just as there is a difference between what is the best way to do something and what is the correct way to do something, there are different arguments about what is the thing you should be doing, and how you should be doing it. The current conversation on immigration is a great example. There is plenty of anger over increased arrests and deportations of undocumented immigrants. Yet, while I couldn’t find great data, I’m willing to wager that a minority of Americans favor truly open borders.^ A solid majority (~75%) of Americans believe that people who enter the country illegally should be given a path to citizenship, roughly 70% don’t think we should deport all immigrants who enter the country illegally, and roughly 78% think we should deport immigrants who enter the country illegally and commit crimes. In other words, we actually largely agree on the substance: there should be some laws governing how you enter the country, there should be some means of attaining citizenship even if you don’t follow those laws, and some people who break those law, especially those who then commit some types of crimes, should be deported. We disagree on the process — what should those laws be, what should be the path to citizenship? How should undocumented immigrants be allowed to become citizens? What crimes should trigger deportation? By confusing substance and process we make a fairly tractable problem intractable. If you bifurcate a problem by establishing a shared goal, the question of how gets a lot easier. And if you are a single mother suffering in a hastily made, privately run deportation center on the southern border who doesn’t want her children sent back to Ecuador because they might be murdered, that how matters a lot.

Law and Facts. Another way of conceiving of the above point is as the difference between law and facts. Appellate lawyers know this distinction well, as questions of fact (was a motion filed on June 29th?) are reviewed with lots of deference to the lower court, and questions of law (was a motion filed on June 29th “timely” within the meaning of the law?) are reviewed with no deference to the lower court. Just as courts can confuse law and facts, so can we when discussing important policy issues.

A good example is transgender bathroom laws. If someone wants to prevent people from using the bathroom of one’s choice because they are worried about their daughters being sexually assaulted, that is a fact problem. There is no reason to believe that transgender-identified people commit sexual assault at rates higher than cisgendered people. (There is also no reason to assume that a law preventing a male sexual predator from cross dressing and entering a women’s restroom will prevent a male sexual predator from cross dressing and entering a women’s restroom, but I digress). There is reason, however, to be concerned about your daughter being sexually assaulted in a bathroom if you have the facts wrong. That is, if you believe that “transgender” essentially refers to deceptive sexual predators, then wanting to prevent “transgender” women from using the women’s restroom is not some monstrous form of bigotry, it’s a completely sensible thought. To be sure, there are plenty of people who support bathroom legislation purely because of bigotry and close-mindedness, but there are others who support it not because they disagree with me about the law (or, really, what we should be preventing) but because they disagree with me about the facts. Confusing those arguments means that you paint a tremendous number of people morally awful when they are at worst dumb, and at best confused.^^


Lawyers get a bad rap, and it is occasionally deserved. There are a variety of ways that people think like lawyers to the detriment of our national conversations (certainly enough for another post). For example, unwavering faith in the adversarial process is a common refrain of jurists — some believe the best way to determine any fact is to argue as intensely and ruthlessly for one side, assume someone is arguing equaling intensely and ruthlessly against you, and the truth will out. While this might be true in theory, parties’ resource disparities, differential in lawyers’ talent, and advantages for repeat players prevent adversarialism from succeeding in practice. There are also a variety of misconceptions about how lawyers think that I believe are unfair. For example, lawyers are overly criticized for being overly nit picky, but I have found that good lawyers/professors care more about the ideas and the truth of the matter than about what sub-sub section you technically misquoted.

At the end of the day (or three years) I think I have generally benefitted from a lawyerly perspective on the news, politics, and policy. While I may deeply regret getting what I ask for, I think we could all benefit from thinking a little more like lawyers.


Endnotes

* Note that breaking the law and driving through the construction site could be justified in certain instances, perhaps if you were an ambulance driver with a dying person and the hospital was significantly closer if you didn’t take the detour. In that situation the best available route and the correct route are the same.

**This is not entirely true. I imagine we were taught something about this in Professional Responsibility. Furthermore, in an introductory course we were told that we never had to state when we were playing devil’s advocate, because we should all assume that whatever question someone was asking or point they were making was about the actual topic, and not necessarily a reflection of her personal beliefs or politics. Just imagine that being the baseline of our national political conversations.

^Somewhat tellingly, I was unable to find really any polling that directly asks the question whether Americans support open borders. That could be an oversight, or could suggest that it’s an idea far enough outside the mainstream to be not worth polling. If you’re interested, I’d check this out (though some of the links are dead). Considering my own experience, and the polling that suggest large majorities of Americans support some form of deportation, I think it’s safe to assume that most Americans do not support completely open borders.

^^This is closely tied to another lawerly concept that we get wrong all the time — the question of intent. In our political conversations we often sidestep the question of intent, but in my criminal-law trained mind it is insane to find Person A, a bigot who hates transgender people on principle, and Person B, a kind person who has been told that transgender people will molest their daughter, as equally morally culpable if each is angered by a transgender person they discover in the “wrong” bathroom. The former intentionally supports a bad policy, while the latter is at worst reckless.