Critical Thinking Is Antagonistic to Success in Law School
General critical thinking, as it's taught at the college level, teaches you to ask a set of questions:
Questions like these may be valuable to ask, but they aren't the right questions to be asking from the perspective of law professors. A lot of law school, I think, is learning the range of permissible arguments in the profession. Much more valuable in the eyes of law professors are questions that raise immanent criticisms of legal reasoning:
I think the difference in focus is a result of a desire to channel revolutionary forces away from the judicial system and into the democratic process.
Que piensas tu?
- What are the assumptions in this reasoning?
- What fallacies are present in this argument?
- What ambiguities are there?
- Where is the evidence for that claim? How good is it?
- What alternative perspectives are there?
Questions like these may be valuable to ask, but they aren't the right questions to be asking from the perspective of law professors. A lot of law school, I think, is learning the range of permissible arguments in the profession. Much more valuable in the eyes of law professors are questions that raise immanent criticisms of legal reasoning:
- Does this argument fall prey to the same problem it reacts to?
- Does this reasoning mesh with other fundamental concepts in the law? Can this argument be read as consistent with other closely related rules?
- What's really going on here?
- How would this argument apply to slightly different situations?
- In sum, is this argument internally consistent?
I think the difference in focus is a result of a desire to channel revolutionary forces away from the judicial system and into the democratic process.
Que piensas tu?
posted by Garrett at 5:00 AM
4 Comments:
Another I have enountered several times in the last few weeks, especially in federal courts:
"Does the carve-out exception swallow the rule?" This critique gives rise to the most important thing one learns in law school: effective use of the "tail-wagging-the-dog" metaphor. As in, "does the carve-out become the tail that wags the dog of the substantive rule?"
Scalia has a hilarious footnote in one of his dissents poking fun at Breyer's use of that metaphor, but I can't seem to find it right now . . .
It's in Blakely v. Washington: Something about sentences not being so long for enhancing facts such that the sentence enhancement becomes the tail that wags the dog of the substantive offense. Scalia quips that this might mean that the ratio of enhancement sentence to base sentence cannot be more than the ratio between a dog's tail to his spine.
I read that about two weeks ago in preparation for my moot court brief and I laughed out loud in the library.
That's it. I think that may be his best footnote ever.
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