legal reasoning in critical thinking

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Logic Ab Initio: A Functional Approach to Improve Law Students’ Critical Thinking Skills

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While certainly not suggesting that formal logic training would remedy all that ails legal education or even that it could enhance critical thinking for all students, this article asserts that law schools should make the process of legal reasoning more transparent and explicit from the outset, and proposes techniques that can be adopted quickly with minimal institutional costs or upheaval. Part I examines possible reasons that law-school matriculants increasingly lack critical-thinking skills needed for success. Part II maps out three basic components of informal logic training: deductive reasoning, inductive reasoning, and fallacy. It then identifies related law-school competencies that could be enhanced through training in these areas. Part III proposes a relatively painless method of incorporating functional logic training across the law-school curriculum. Given the breadth and depth of the critical thinking deficit, this approach presents a pragmatic—though admittedly imperfect—solution to the problem.

“Logic!” said the Professor half to himself. “Why don’t they teach logic at these schools?” ― C.S. Lewis , The Lion, the Witch, and the Wardrobe

Law professors and legal employers alike lament a modern trend of diminishing critical-thinking skills among law students and new graduates. [1] These concerns are not imaginary: a recent study that followed thousands of undergraduates through college concluded that large proportions of college graduates lacked critical thinking, complex reasoning, and written communication skills once thought to be the foundation of university education. [2] This means that law schools are increasingly enrolling students who lack the skill set traditionally associated with law-school success. [3] To complicate matters, this critical-thinking crisis comes at a time when law schools face stricter and more detailed accreditation standards than ever before. [4]

The concept of “critical thinking” has many overlapping definitions. [5] It’s been described as an “intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, [] or evaluating information.” [6] In cognitive terms, critical thinking is “problem solving in situations where ‘solutions’ cannot be verified empirically.” [7] In the specific context of legal education, critical thinking can be broadly described as “questioning knowledge.” [8] It requires students to remember, understand, and apply both law and facts, and then analyze, evaluate, and integrate that knowledge to determine “what is important, what is missing, and what is vague.” [9] In this respect, critical thinking is the “foundation for the ‘key intellectual tasks’ associated with the sophisticated higher order thinking required in law school.” [10]

We are all born with the ability to think, but critical thinking generally requires considerable training and hard work. [11] The ancient philosophers excelled at critical thinking because most formal learning involved—to a greater or lesser extent—the mastery of logic. [12] Classical philosophers like Aristotle practiced “formal” logic, so named because of its emphasis on the “form,” or structure, of the argument. [13] To formal logicians, whether the substance of an argument was true or false was unimportant. Their focus was on the argument’s logical structure and whether the form itself was reliable. [14] Those ancient philosophers spent considerable time thinking about how they were thinking and, were, perhaps, the first true metacognitive [15] thinkers.

But formal logic was and remains a discipline requiring rigorous training—an impractical detour on the path to critical thinking in law school. Therefore, requiring a course in formal logic in law school is much like using a sledgehammer to crack a nut: the benefit is outweighed by the collateral damage. What’s needed is a practical method harnessing the metacognitive benefits of logic that fits unobtrusively into existing law-school curricula. By introducing informal or “functional” logic into the curriculum, law schools can not only enhance students’ comprehension of individual lessons, but make them better overall thinkers.

The late Judge Ruggero Aldisert was an outspoken proponent of teaching logic to law students. In 1989, he published Logic for Lawyers: A Guide to Clear Legal Thinking , [16] a text that cogently explained that the basics of legal reasoning, including the use of precedent, are merely variations of deductive and inductive reasoning—the building blocks of logic. Logic for Lawyers coincided with a late-20 th and early-21 st century burst of legal scholarship exploring the relationship between law and classical logic and rhetoric. [17] In 2007, Judge Aldisert published the article Logic for Law Students: How to Think Like a Lawyer , [18] a more streamlined version of his earlier work, “explain[ing], in broad strokes, the core principles of logic and how they apply in the law-school classroom.” [19]

This article builds on Judge Aldisert’s premise that “thinking like a lawyer”—critical thinking—means “employing logic to construct arguments.” [20] It goes a step further, however, proposing that training law students to use logic would not only provide professors and students a common language to identify specific deficiencies in analysis, it could actually increase students’ cognitive capacity for critical thinking.

While certainly not suggesting that such training would remedy all that ails legal education or even that it could enhance critical thinking for all students, this article asserts that law schools should make the process of legal reasoning more transparent and explicit from the outset, and proposes techniques that can be adopted quickly with minimal institutional costs or upheaval. Part I examines possible reasons that law-school matriculants increasingly lack critical-thinking skills needed for success. Part II maps out three basic components of informal logic training: deductive reasoning, inductive reasoning, and fallacy. It then identifies related law-school competencies that could be enhanced through training in these areas. Part III proposes a relatively painless method of incorporating functional logic training across the law-school curriculum. Given the breadth and depth of the critical thinking deficit (detailed below), this approach presents a pragmatic—though admittedly imperfect—solution to the problem.

Part I: A Lack Of Critical-Thinking Skills And (Some) Reasons For It

Success in law school (as opposed to success in most undergraduate disciplines) requires skills beyond mastery of facts, dates, formulas, and established theories and positions of academics. It requires independent reasoning. [21] And that reasoning cannot be theoretical or abstract: it must comport with societal norms of justice, fairness, and overall propriety. [22] Furthermore, that reasoning must be drawn from—and remain consistent with—numerous sources of law. Legal reasoning must be sound and valid; in other words, it must be logical. But increasingly, students come to law school ill-equipped for this type of rigor. [23] In recent years, law student credentials have decreased across the board: between 2010 and 2013, the median score of the Law School Admission Test (“LSAT”), which purports to measure critical-thinking skills, declined from 157 to 155. [24] In fact, nearly ninety percent of law schools had a lower median LSAT score in 2013 than in 2010. [25]

As to the cause, there is no shortage of finger pointing. Professor Jay Sterling Silver has opined that primary education—often undertaken in overcrowded public schools, where learning is geared toward mastery of standardized tests—teaches students not to think. [26] Professors Susan Stuart and Ruth Vance blame federal law, specifically noting that the current generation of law-school matriculants has been almost wholly educated under No Child Left Behind, which, since enactment in 2001, has shifted primary education focus towards mandatory achievement of minimum skill. [27] Others point to systematic grade inflation at the undergraduate level as contributing to students’ inflated opinion of their competency. [28] Still others suggest that institutional use of student evaluations as part of tenure decisions contributes to lower teaching standards. [29] Moreover, there appears to be no end in sight to the decline, given educational, social, and technological trends.

It’s likely impossible to identify the contributing factors exhaustively. But, as explained below, trends in undergraduate education and technology partly explain why students generally seem to have adopted a more shallow, heuristic method of thinking. This is particularly true of the Millennial generation, whose unique cultural characteristics make them all the more prone to such thinking shortcuts.

a. The Changing Nature of Undergraduate Education

Undergraduate education has changed over the last fifty years. [30] Some scholars theorize that modern law students lack adequate thinking skills partly because undergraduates no longer receive the benefit of a classical liberal-arts education. [31] A foundation in the liberal arts was long presumed to prepare students “to become civic and professional leaders, to prepare them for lifelong learning and inquiry.” [32] These students were well versed in the humanities, logic, and rhetoric, and developed “communication skills through a variety of oral and written exercises.” [33] This liberal education, focused on flexibility, creativity, critical thinking, analysis, and written communication, [34] would, unsurprisingly, prepare a college graduate to successfully participate in and benefit from the rigors of a law-school classroom. [35]

But while classic liberal-arts education did indeed mold creative and well-rounded learners for many decades, colleges and universities—along with students and their parents—have, over time, become increasingly dubious of its practical value. Knowledge of classical literature, arts, and natural sciences does not provide specific, marketable competencies for a defined entry-level job. [36] Some presume that a broad, liberal-arts education is unlikely to lead to the same level of monetary reward as, for example, a Master’s degree in Business Administration [37] or Engineering. [38] As a result, undergraduate institutions in the United States have, since the 1970s, shifted curricular emphasis from liberal arts to more professionally-oriented or vocational training. [39]

Colleges and universities now promise to prepare students for specific careers. But a classic liberal-arts program used classic literature, history, the arts, and natural sciences (as opposed to applied sciences) to shape thinkers who could, presumably, succeed in any number of careers. “The essential paradox, or one might even say the miracle of liberal education, is that by being evidently impractical, it equips a student for life far more richly and completely, and across a far wider expanse of time and space, than does education whose sole aim is to be useful.” [40]

Whether caused by an institutional shift away from liberal arts or some other phenomenon, the decrease in critical-thinking skills in undergraduates is well documented. In 2011, two researchers, Richard Arum and Josipa Roksa, collected empirical evidence of a downward trend in critical-thinking skills in undergraduates. Their book, Academically Adrift , proposed that undergraduates are overwhelmingly distracted by work, social lives, and an educational culture that puts learning low on the priority list. [41] Arum and Roksa collected data using the Collegiate Learning Assessment (“CLA”), a test comparing similarly situated students from a wide variety of colleges and universities. [42] The test measured critical thinking, analytical reasoning, problem solving, and writing skills, all of which are essential during the first year of law school. [43] The study tracked the academic progress of 2,322 students, scoring them once in their first semester of college and again at the end of their fourth semester (half-way through college). The study found that forty-five percent of students gained virtually no critical thinking, complex reasoning, or writing skills over the assessment period:

While these students may have developed subject-specific skills . . . , in terms of general analytical competencies assessed, large numbers of U.S. college students can be accurately described as academically adrift. They might graduate, but they are failing to develop the higher-order cognitive skills that it is widely assumed college students should master. [44]

Other studies have painted an equally grim picture of college graduates’ critical-thinking skills. The Wabash National Study of Liberal Arts Education, [45] conducted in 2006-2007, concluded that thirty percent of undergraduates tested showed no growth—or even declined—in critical-thinking skills after completing four years of college. [46] These results confirmed those of earlier studies, which also suggested a long-term decline in skills acquisition among undergraduates. [47]

Arum & Roksa’s study revealed another disturbing problem: universities participating in the assessment were not closing the achievement gap experienced by socioeconomically disadvantaged students. [48] In the initial, freshman-year CLA assessments, minorities and students from less-educated families scored significantly lower in critical thinking, complex reasoning, and writing than white students from more-educated families. [49] According to the study, this “achievement gap” between privileged students and their less-advantaged peers only increased after the first year of college. In other words, “[t]he results of the CLA ‘suggest higher education . . . reproduces social inequality,’” [50] insofar as it correlates to lack of critical thinking skills. Accordingly, the critical thinking necessary for law school is likely foreign to students who lack that privilege. [51] Law schools that purport to promote diversity and equal opportunity in learning simply cannot ignore such data.

The effect of this achievement gap is brought into sharper focus by the recent, colossal downturn in law-school applications. Higher-tier schools made up for the deficit in applications by accepting students they previously would never have considered. [52] Those students were effectively pilfered from middle-tier schools, which made up for their own losses by accepting students who they, in turn, would previously have rejected. [53] But this left many lower-tier schools, particularly those created to provide opportunities for minorities or other at-risk students, with an existential crisis: disappear, or continue the valuable mission with less-qualified and, presumably, less-prepared students. At the end of the day, nearly every law school has been left with a student cohort less likely than previous ones to pass the bar exam. [54]

The ostensible decrease in critical thinking in college graduates across socioeconomic spectrums impacts more than just individual students. A first-year law student who has never had the opportunity to disagree with a professor or to independently form opinions about cultures based on their art, literature, or music will almost certainly struggle to synthesize seemingly inconsistent judicial opinions into a cogent legal principle. But a critical mass of students struggling on the same level will fundamentally change the dynamic of a law-school classroom and prevent the purposeful exchange of ideas.

b. The Effect of Technology on Students’ Ability to Think

The effect of the digital age and the ubiquity of technology in nearly every detail of daily life cannot be understated when considering the reasons for waning critical thinking. “The Internet has made so much information available to us, more than we could possibly retain in our brains, that we are more often ‘handing off the job of remembering’ things to technology.” [55] But technology causes problems more worrisome than just intellectual laziness: technology is changing the way students learn.

Learning can be described as any “relatively permanent change in a neuron.” [56] Neurons are simply the brain’s cells which, when activated, release chemicals called neurotransmitters. Neurotransmitters connect neurons to other neurons, creating electrochemical pathways in the brain that form our thoughts, memories, emotions, and sensations. [57] When confronted with challenges, the human brain adapts by modifying existing neural connections. [58] This is known as brain plasticity or neuroplasticity. The brain can “efficiently reorganize allocation of its resources to meet demands and compensate for deficits.” [59] “Evolution has given us a brain that can literally change its mind—over and over again.” [60] This means humans “can form bad neurological habits as well as good ones.” [61]

In The Shallows: What the Internet is Doing to Our Brains , author Nicholas Carr describes the subtle—yet ultimately profound—effects the Internet and other technological advances are having on human brains. Just as we can strengthen our mental capabilities through use of technology, Carr explains that human brains are subject to “intellectual decay.” [62] His collected research suggests that information and communication technologies are changing humans at a neurological level. [63]

For example, Carr posits that the Internet has supplanted reading as the primary source of information gathering (as did television, to some extent, before it). In terms of neurological development, the emergence of reading—particularly the “deep reading” necessary to consume literature and other book-length works—rewired and optimized the human brain for “deep thinking.” [64] The ability to read not only expanded one’s knowledge; it allowed previously unattainable levels of comparison to thoughts and experiences of others. [65] To fully appreciate the written word, one would have to discipline one’s mind to “follow a line of argument or narrative through a succession of printed pages.” [66]

The Internet, in contrast, features small chunks of information punctuated with distracting hyperlinks, multimedia, and ads. These features activate the prefrontal cortex, overtaxing the brain, making online reading a “cognitively strenuous act.” [67] In response to this stress, Carr suggests, our brains’ plasticity kicks in, rewiring and optimizing neural connections (and pruning unnecessary ones) for this new, rapid method of information gathering. [68] His research shows that as little as five hours of Internet use can significantly rewire the neural circuitry of the prefrontal cortex. [69]

The triumph of the Internet as a single medium for communication and information gathering may, therefore, also be its greatest danger. Just as computers have evolved to function simultaneously as typewriters, encyclopedias, phones, televisions, and social gathering spaces, their users have, unsurprisingly, become skillful multi-taskers. [70] And the same plasticity that, over millennia, had optimized our brains for deep thinking is now strengthening the neural circuitry customized for “rapid and incisive spurts of directed attention” that enable multitasking. [71] Unfortunately, quick shifts of attention and multitasking are quite useless in a typical 1L classroom. The reasoned analysis necessary in law school is not achievable without focused attention for a sustained time period. [72] Thus, critical thinking takes another hit thanks to technology.

One last insult to critical thinking occurs as a result of “The Google Effect.” [73] This phenomenon describes the automatic forgetting of information that can be found online. [74] Neuropsychologists know that, to maintain efficiency, our brains constantly—and subconsciously–prune memories. [75] Since there is less need to preserve information that can be readily retrieved, facts and ideas are more often pruned when the brain perceives that the information will be archived. [76] For law students faced with hundred-page reading assignments and looming deadlines, this phenomenon would appear rational and advantageous. Sometimes, “the effort needed to acquire knowledge outweighs the advantage of having it.” [77] The Google Effect could, therefore, be further eroding law students’ capacity for successful legal analysis. For example, a student accustomed to efficient and fruitful Internet searches will have little success using those techniques to brief a case before class. In the context of legal research, the wide-cast net of a Google search will yield poor results in comparison to a systematic, linear exploration of legal sources made possible by understanding jurisdictional structure. [78] Rule-based subjects, such as Civil Procedure and Evidence, which require memorization of rules as building-blocks of greater concepts, [79] could be challenging for a student whose brain is unaccustomed to storing large amounts of data. As technology rapidly pushes aside millennia of neurological refinements allowing for deep thinking and logical reasoning, legal education will likely have to adapt.

c. Millennial Zeitgeist and Beyond

Shifts in undergraduate education and technology may indeed be the two main ingredients for the collective deficits in critical-thinking skills of matriculating law students. But the culture and attitudes of the 21 st Century could be the seasoning that makes those deficits so unpalatable in the context of law-school learning. It’s all too easy to blast the Millennial generation [80] for its (real or imagined) lack of intellectualism, [81] perfunctory knowledge of history, [82] or narcissism. [83] But Millennials are also more socially conscious and idealistic than previous generations. [84] Their early exposure to computers and the Internet make them “the most technologically savvy and resourceful generation yet to hit the law school scene.” [85] They are “education-oriented, career-minded, motivated, connected, and self-confident.” [86] These same characteristics have led some scholars to brand Millennials as overconfident and entitled. [87]

In the context of legal education, overconfidence should be distinguished from confidence. Students who matriculate to law school have generally achieved much: They have completed a Bachelor’s degree—at least—with enough success to be accepted into a graduate-level program. [88] They have succeeded on the LSAT to the extent that their scores have earned them a place in an entering law-school class. Non-traditional students entering law school as a second or third career may have already achieved business success. As a result of this widely varied success, many students come to law school overestimating their intellectual abilities. [89] Often, students “express high academic expectations and professional ambitions but fail to realistically appreciate the necessary steps to achieve their goals.” [90]

This pattern is consistent with a fascinating psychological phenomenon known as the Dunning-Kruger Effect. The Dunning-Kruger Effect [91] was proposed in 1999 by David Dunning and Justin Kruger, cognitive psychologists at Cornell University. Their study concluded that unskilled people generally hold overly favorable views of their intellectual abilities. This overestimation of ability increases as actual ability decreases. In other words, incompetence “robs [the incompetent] of the metacognitive ability to realize” they are incompetent: [92]

[S]kills that engender competence in a particular domain are often the very same skills necessary to evaluate competence in that domain—one’s own or anyone else’s. Because of this, incompetent individuals lack what cognitive psychologists variously term metacognition, metamemory, metacomprehension , or self-monitoring skills. These terms refer to the ability to know how well one is performing, when one is likely to be accurate in judgment, and when one is likely to be in error. [93]

Dunning and Kruger’s study is particularly interesting considering that the researchers used logical reasoning skills—in the form of LSAT questions—as one of the metrics for measuring the effect. [94] Overall, subjects (forty-five Cornell undergraduates) overestimated their logical reasoning skills relative to their peers. [95] But bottom quartile subjects overestimated their performance by a staggering degree: although they scored at the 12th percentile on average, they nevertheless estimated that their general logical reasoning ability fell at the 68th percentile. [96] In other words, the poorest performers considered themselves significantly above average.

The point, of course, is not that law-school matriculants are incompetent. But the existence of the Dunning-Kruger effect may shed light on why those students most lacking in critical-thinking skills are either unaware of their deficits or are unable to rectify them. [97] More importantly, it suggests that students would benefit from learning specific metacognitive skills at an early stage in law school so that they can evaluate their own analytical competence before and after graduation.

Whatever the reasons for the (real or perceived) lack of critical thinking skills, a more appropriate discussion is what law schools can do to address any real deficits. There is no definite etiology for dwindling reasoning skills, nor is there any real need to articulate one. But if legal educators sense that “things are not as they were,” and that observation is coupled with increasing attrition rates or decreasing bar exam success, [98] then we must take corrective measures.

Part II: The Basics of Logic and Related Law-School Competencies

Law schools purport to teach students to “think like lawyers.” [99] But despite the need for clear and logical reasoning in the legal profession, law schools do not teach principles of logic. [100] Or do they?

The fact is that modern law curricula do use principles of logic—without denominating them as such. Law-school competencies—identifying issues, articulating rules and exceptions, comparing precedent to new facts, understanding public policy, addressing counterarguments—all require some form of logical reasoning. When law students apply a general legal rule to a specific legal issue on an exam, they engage in deductive reasoning. When students synthesize precedent into a general legal principle in legal writing class, they engage in inductive reasoning. When students argue in a brief or oral argument that a particular precedent should be followed, they engage in reasoning by analogy. [101]

But often, students see these law-school learning methods as nothing more than their professors’ personal methodological preferences. [102] They fail to appreciate that these techniques have been tested over thousands of years by history’s greatest thinkers. Hence the need for basic logic training: exposing neophyte law students to the basic principles of logic could provide them and their professors a common language to identify and correct deficits in reasoning and critical thinking. In addition, such training could—through the magic of brain plasticity—remediate deficiencies in cognitive analytical ability and foster better learning.

The principles of logic that could benefit a law-school curriculum in this way represent only a fraction of the discipline of formal logic. It would be impractical and counterproductive to teach a comprehensive additional discipline in the already-crowded list of required subjects. Sufficient metacognitive benefits can be achieved through exposure to three fundamental principles of logic: deductive reasoning, inductive reasoning, and fallacy. [103] While philosophers may cringe at such attenuation of the Art of Aristotle, Aquinas, and Wittgenstein, [104] the goal is not to teach logic for its own sake. It is to provide students with a practical—perhaps heuristic—method for evaluating the quality of their reasoning. In short, one “familiar with the basics of logical thinking is more likely to argue effectively than one who is not.” [105]

a. Deductive Reasoning and Rule Application

Perhaps the easiest logic principle to teach law students is deduction, a lawyer’s most fundamental skill. [106] This process of reflective thinking [107] moves from general truth to specific conclusion. [108] In its simplest form, deduction involves two propositions which, if true, taken together lead undeniably to a third proposition. The classic tool of deductive reasoning is the syllogism, [109] demonstrated by this ubiquitous example:

All humans are mortal. Socrates is a human. Therefore, Socrates is mortal.

The reliability of a syllogism comes from the objective certainty that the conclusion follows from the truth of the first two propositions, or “premises.” [110] The first, the “major premise,” represents a universal truth. The second, the “minor premise,” represents a specific and more narrowly applicable fact. The third, the conclusion, is a new idea that follows inferentially from the truth of the first two premises. It is this progression of thought, based on the relationship between known truths, that instills confidence in the resulting conclusion. [111]

Logicians test the validity of a syllogism by analyzing the patterns of the terms within each premise. [112] Each of the three premises is made up of two terms: a subject term (e.g., “All humans”) and a predicate term (“are mortal”). The specific idea contained in each of these terms appears twice in the syllogism. The “major term” appears in the major premise and the conclusion. The “minor term” appears in the minor premise and the conclusion. The “middle term” appears in the major and minor premises but not the conclusion. [113] So, in the Socrates example, “mortal” is the major term, “human” is the middle term, and “Socrates” is the minor term. [114]

All humans are mortal. Middle Term , Major Term

Socrates is a human . Minor Term , Middle Term

Therefore, Socrates is mortal. Minor Term, Major Term

Each term can further be described as “distributed” or “undistributed.” A subject term is distributed if it represents all members of the class and is undistributed if it represents only part of a class. [115] A predicate term is distributed if it is a negative statement and undistributed if it is a positive statement. [116] Only certain patterns of distributed and undistributed terms can be valid syllogistic forms. [117]

In the legal context, the syllogism involves taking a legal premise (an enacted or judicially created “rule”) and applying it to a factual premise (the facts of a case) to reach an objectively sound result (the conclusion). Judge Aldisert used a generic template, which he called the “prosecutor’s model,” to illustrate this fundamental “categorical syllogism” of legal reasoning:

Major premise: [Doing something] [violates the law] Minor premise: [The defendant] [did something] Conclusion: [The defendant] [violated the law]. [118]

The benefits of presenting legal ideas in this structured way are manifest. The structure promotes clarity and consistency and prevents many analytical errors. [119] It allows one to test the accuracy of individual arguments by observing each step of the analytical process. For lawyers, who must routinely debunk opponents’ arguments, this reasoning skill is critical. [120] Another helpful structure is the conditional (or hypothetical) syllogism, which takes an “if-then” format. The “if” term is known as the “antecedent” and the “then” term is known as the “consequent.” To be valid, a conditional syllogism must take one of two forms. [121] One such form, known as modus ponens , [122] is structured,

If p , then q ; p , therefore q.

The syllogism is valid when the antecedent is “affirmed” as existing or being true. For example,

If a non-competition clause is not in writing, then it is unenforceable. The defendant’s agreement not to compete was oral. Therefore, it is unenforceable.

When the minor premise of a conditional syllogism negates the consequent of the major premise, the form is called modus tollens . [123]

If p , then q ; Not q , then therefore not p .

These conditional syllogism forms appeared in a recent Florida First District Court of Appeals case, Madison v. Florida. [124] In Madison , the majority reversed the defendant’s conviction on the grounds that the trial court had abused its discretion in failing to properly consider and grant the defendant’s motion for a continuance. [125] The deferential standard of review for abuse of discretion required “affirmance of the trial court order unless no reasonable judge could have reached the decision challenged on appeal.” [126] But, in his dissent, Judge T. Kent Wetherell pointed out that, when broken down into a modus tollens syllogism, the majority’s decision demonstrated flawed logic: If reasonable judges could disagree as to the propriety of the trial court’s ruling, then the trial court did not abuse its discretion.

The trial court abused its discretion. Therefore, reasonable judges could not disagree as to the propriety of the trial court’s ruling. [127]

If the majority’s conclusion that the trial court had abused its discretion were true, then the antecedent (reasonable judges could not disagree as to the propriety of the trial court’s ruling) would also have to be true. But Judge Wetherell—presumably a reasonable judge— did disagree. The syllogism, according to Judge Wetherell, revealed the majority’s illogic. [128] He then demonstrated that, because the antecedent was true, the consequent (the trial court did not abuse its discretion) must be true as well under modus ponens . [129] Alas, deductive logic did not carry the day in Madison . But the case cogently demonstrates the utility of breaking an argument into its fundamental parts: doing so reveals illogic and, simultaneously, suggests the better outcome.

This greatly attenuated description of deductive reasoning would be enough to start students on the path to recognizing syllogisms in judicial opinions and, more importantly, to “shoehorning” [130] their own arguments into the illuminating pattern of syllogistic thought. By thinking meaningfully about their thought processes in this way, students gain metacognitive skills that could improve overall learning.

b. Inductive Reasoning and Precedent

In areas where the law is unsettled, deductive logic is an insufficient reasoning tool. [131] If there is no universal “rule,” there can be no material for the major premise in syllogistic thinking. [132] In such cases, rules must be extracted from many specific outcomes. [133] This is the process of inductive reasoning. [134]

“Induction is the inference from the observed to the unobserved, occasionally, and rather loosely, termed inferring the general from the specific.” [135] Unlike deductive reasoning, where the conclusion follows absolutely from the premises, inductive reasoning does not produce conclusions guaranteed to be correct. [136] However, if one examines enough similar, specific outcomes, one can ascertain with some confidence the resulting new principle. [137]

Consider scientific research. A scientist conducts enough trials of an experiment to be able to observe a pattern in the results. Numerous similar results can then suggest a general hypothesis: if A, B, and C all have result X, then D (which is similar to A, B, and C) will probably also have result X. As long as the scientist conducts enough trials, he or she can have confidence in the accuracy of the hypothesis. [138] It is unlikely, however, that a scientist would suggest that simply repeating results consistently creates scientific proof or absolute certainty in the result. [139] The process of induction as applied to legal reasoning is no different.

Inductive reasoning generally takes one of two forms: inductive generalization (or enumeration) or reasoning by analogy. [140] The process of inductive generalization lies at the heart of common law: in the absence of codified law, the accumulation of many specific holdings in individual cases has led, over time, to common acceptance—and formal articulation—of generalized legal precepts or principles. [141] The common law, therefore, “is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just . . . .” [142] Again, this inductive process does not provide certainty. It yields probabilities and generalities—but often extremely reliable ones.

One instructive example of inductive generalization is found in Justice Cardozo’s opinion in the early products liability case of MacPherson v. Buick Motor Co. [143] The case involved an injury from a collapsed wooden wheel of an automobile. [144] At the time, lack of privity of contract between the automobile’s owner and the manufacturer would have prevented the injured owner from collecting damages from the manufacturer. [145] Rather than decide the case on established contract principles (as the dissent suggested), [146] Justice Cardozo used inductive reasoning to fashion a rule that avoided the unjust result existing law seemed to require. Cardozo compared the results of sixteen factually diverse products liability cases. [147] He identified relevant similar or divergent features between the cases, such as whether the defendant was a manufacturer and whether there was a near certainty of injury, should the product be defective. [148] By analyzing a large enough number of specific circumstances of liability and comparing relevant resemblances between them, Cardozo was able to derive a new (and yet, not new) principle: A manufacturer who constructs an automobile using defective component parts may be liable to a remote purchaser of the automobile for injuries resulting from those parts. [149] Cardozo’s rule has withstood the test of time. [150] Its longevity can be attributed to the large number of cases Cardozo compared and the significance of the common features he analyzed. In other words, Cardozo used enough relevant particulars to generalize a reliable statement of the law.

Analogical reasoning is also a form of induction. It’s arguably one of the most crucial skills in the study and practice of law. [151] Analogy is simply the comparison of similarities between things with the attendant expectation that, if they resemble each other in several ways, then they will likely share some other property. [152] In the law, analogical reasoning involves comparing precedent—with established facts and outcome—to a new set of facts to determine the likely outcome of the new case. The more relevant similarities between the cases, the more likely their outcomes will be similar as well. Unlike inductive generalization, analogy’s reliability is not dependent on presenting a large number of particulars. [153] Rather, it is the quality of the comparison of the cases that makes the analogy reliable:

The success of the analogy depends on how significant the reader perceives the factual similarities between the two cases and whether any differences strike the reader as even more significant. An analogy can fail as much because an advocate ignores significant differences between two cases as because of a dearth of similarities. [154]

One could rightly state that our system of jurisprudence is built on a foundation of analogy. Stare decisis , the doctrine that underlies our case law system, requires that courts compare pending cases to existing precedent such that similar facts lead to similar legal consequences. Accordingly, students with a healthy working knowledge of induction (both inductive generalization and analogy) will not only better understand our legal system’s foundational principles but will be equipped to mold and manipulate legal ideas in useful ways.

c. Fallacy and the Quality of Arguments

If an argument can be defined as an attempt to establish the truth, a fallacy can be described as an argument that appears to do so–but doesn’t. [155] The ability to recognize fallacy allows law students to meaningfully evaluate judicial opinions and question outcomes in cases. As a result, it improves the quality of students’ argumentation and assessment of opponents’ counter-arguments.

Unfortunately, much like the public at large, students entering law school have been so inundated with arguments undermined by logical fallacies [156] that they are psychologically predisposed to accept logical fallacy as a substitute for sound reasoning. [157] People routinely “make logical mistakes, ignore logic altogether, or actually prefer certain illogical argument patterns.” [158] Essentially, audiences are conditioned to pick up on cues embedded in an argument that hint at the desired conclusions. These thinking shortcuts, known as “superficial heuristics,” often take the place of actual analysis. [159]

Of course, superficial heuristics and faulty reasoning should be avoided at all costs in law school. Exposing these thinking shortcuts and their attendant risk of error is the gateway to avoiding them. Therefore, learning a bit about common logical fallacies would help law students and law professors alike: When a student makes a faulty argument in class, the professor can describe the problem using the common language of functional logic.

A formal fallacy describes an error in the structure of an argument. [160] In a formal fallacy, a conclusion could be false even if all of the premises are true. [161] For example, using the classic “Socrates” syllogism:

All humans are mortal Socrates is mortal Therefore, Socrates is human.

This syllogism is fallacious because it is entirely possible that Socrates is the name of the neighbor’s cat. The formal error is the swapping of the minor term (in the minor premise) with the major term (in the conclusion). As with all formal logic, recognizing a formal fallacy requires familiarity with the patterns of distributed or undistributed terms. Again, this level of knowledge is beyond what’s needed for our limited goal of improving critical thinking. Nonetheless, it’s important to recognize that formal fallacy and formal deductive logic are two sides of the same coin.

Informal fallacies, also known as material fallacies, [162] are harder to spot. Informal fallacies could be described as mistakes in “the content (and possibly the intent) of the reasoning.” [163] Logicians have identified hundreds of distinct types of informal fallacies; [164] therefore, a comprehensive list of them is unworkable here. But some are so common—and so effective—that learning to recognize them should be considered a critical law-school skill. The following common fallacies demonstrate the potential deceptiveness of otherwise appealing arguments:

Ad Hominem : This fallacy is committed by abusing the proponent of an argument or by dismissing the proponent’s position on the grounds of the proponent’s appearance, circumstances, or background. [165] An advocate can cross the line from identifying weakness in an opponent’s argument into an improper attack on the opponent’s character. In Bauer v. Yellen , [166] the Second Circuit admonished counsel (and reduced its award of attorney fees) for the following ad hominem attack on its opponent, a pro se litigant: “Ms. Bauer has pursued this case blindly, recklessly, vindictively, maliciously and without a shred of evidence to support her wild and deluded claim of copyright infringement. . . . Ms. Bauer’s opposition papers mirror the nasty, mean-spirited approach she has taken in prosecuting this matter.” [167]

Bandwagon Fallacy : Also known as the ad populum fallacy, this type of fallacious argument suggests that, because a great number of people believe something, it must be objectively true. This fallacy occurs when a party argues that a court should adopt a rule because of “near universal agreement among . . . courts that have confronted [the] issue,” [168] rather than because of the merits of the rule.

Begging the Question : This fallacy assumes as true what is to be proved. [169] It can be as simple as a single step of faulty reasoning (e.g., “The hospital was negligent because it failed to use ordinary care”) or it can be buried in several steps of circular reasoning (e.g., An indigent prisoner claims a right to a free trial transcript because he wishes to argue ineffective assistance of counsel on appeal. There is no requirement to furnish an indigent prisoner with a free transcript unless he is unable to show that he has a non-frivolous claim. Because the prisoner cannot show that he has a non-frivolous claim, he has no right to a free trial transcript).

Fallacy of Accident : This fallacy, also known as dicto simpliciter , occurs when one applies a general rule to exceptional circumstances or facts. [170] For example, an Internet pornographer arguing that his website’s content is “Free Speech” may be committing the fallacy of accident by not acknowledging that limitations on obscenity and commercial speech exceptions likely apply—and must be analyzed—in his case.

Hasty Generalization : Essentially “jumping to conclusions.” A Hasty Generalization fallacy occurs when a conclusion is induced from too few particulars. [171] The reliability of any inductive generalization depends on having considered enough specific instances with identical outcomes to eliminate doubt as to the likelihood of non-conforming outcomes. But drawing a conclusion from only a few particular instances lacks that reliability. For example, in O’Conner v. Commonwealth Edison Co. , [172] an expert witness committed the fallacy when he testified that a plaintiff’s cataracts were caused by exposure to radiation at a nuclear plant where he worked. [173] His opinion was based on previously observing five patients with similar cataracts, all of which had been radiation-induced. [174]

Post Hoc : Any argument that suggests causation simply because one event preceded another is guilty of the post hoc ergo propter hoc fallacy. [175] It’s also known as the false cause fallacy, and it is tricky. The danger of presuming a causal connection between events when none exists is obvious. But in a legal context, it’s often rational to conclude that when a legally significant event is followed by a result, that result probably flowed from the event. [176] For example, a criminal defendant could claim her medication prevented her guilty plea from being knowingly and voluntarily made. [177] It sounds reasonable, but absent evidence that the medication affected the defendant’s cognitive function, it’s spurious. Despite the fallacy, post hoc arguments are an effective tool for litigators since they are so enticing to jurors. [178] Straw Man : This is a fallacious argument in which one “creates the illusion of having refuted a solid proposition by substituting a similar, weaker proposition for it and refuting the substitute instead.” [179] By exaggerating or misrepresenting an opposing argument, one can more easily present one’s own position as reasonable. Consider the statement by former presidential candidate Bernie Sanders, who, during a Democratic Presidential Candidates Forum, suggested that opponents of gun control “think they should have a missile launcher in their backyard as a Constitutional right . . . .” [180]

These—and the scores of other known fallacies—all have the common attribute of obscuring the truth. But fallacies are often highly persuasive and can be used to manipulate—intentionally or otherwise. [181] And to properly represent clients and fulfill one’s professional responsibilities, lawyers must, if not pursue the truth, at least be aware of when it is being obscured. Knowing how to recognize fallacies is, in itself, a tool for honing critical thinking, and should be considered a fundamental lawyering skill.

Part III: Integrating Functional Logic Training Across the Law-School Curriculum

Regardless of how theoretically beneficial logic training may be, students cannot be expected to distill the principles of logic on their own. [182] Integrating basic, informal logic training into the law-school curriculum could be relatively painless and cost-effective and, most importantly, could begin to bridge the ever-widening gap between how students think and how academics expect them to think.

a. Logic During Orientation

The obvious moment to begin exposing students to a paradigmatic system of thinking is during orientation. Orientation varies in length, depth, and purpose from school to school. Schools use orientation for everything from registering parking passes and assigning study carrels to presenting more substantive programs that introduce the cohort to systems of law and the Socratic Method. Schools with more in-depth programs could introduce basic principles of logic in a two-to-three hour session, incorporating outside reading and a formative (perhaps online) assessment.

Orientation programs introducing logic should be straightforward and unintimidating. The goal is to build a solid foundation upon which to build the thinking processes students will encounter in the first weeks of law school and beyond. The classic categorical syllogism is a perfect starting point. [183] After introducing the basic form of a syllogism, the professor should provide numerous real-world examples of valid syllogisms:

Lack of sleep makes one drowsy during the day . Joe Law Student stayed up all night . Joe Law Student will be drowsy during the day . [184]

When we finish this orientation session, it will be time for lunch. We have not yet finished this orientation session. Therefore, it is not time for lunch. [185]

Once the basic form is clear, students should see examples of legal syllogisms: the basic application of rules to facts, along with their consequent conclusions. A formative assessment at this point could test students’ ability to distinguish rules from facts.

Students with innately sound reasoning skills (or, perhaps, previous training in logical reasoning) would recognize the deductive pattern at once and organize their thinking about legal issues accordingly. But for students who lack critical-thinking skills, this breakdown of the basic syllogistic form would provide a step-by-step process upon which to structure analysis. Armed with an effective process of reflective thinking, these students could avoid analytical missteps, which often go unnoticed until mid-term or final exams—in other words, too late.

In addition to basic deduction, Orientation should present the basic principles of inductive reasoning. Simple but engaging exercises in a “what do all these cases tell you about the law” model—presented as “induction”—would not only prepare students for the progressive integration of law that will happen once classes begin, but would give a name to the process they will be expected to use and, eventually, master. Professors involved in Orientation can enhance this benefit by preparing exercises specifically engineered to call out invalid induction. For example, a set of cases that seem to induce an obvious answer, save one anomalous result, tempts students to commit the fallacy of hasty generalization. [186] The fruits of the endeavor would be enduring: students who take the time to consider why their answers are good or bad are thinking like lawyers.

Introducing deductive and inductive reasoning during Orientation would, therefore, likely bear fruit once classes begin. By repeating these processes in different contexts as classes progress, students will naturally strengthen their brains’ neural networks responsible for critical thinking. [187]

b. Logic in Doctrinal Classes

Merely knowing the principles that distinguish good and bad reasoning is not enough. To enhance critical thinking, law students should replicate the process of putting analytical components together in multiple contexts. In other words, students should be encouraged to use syllogistic logic across the curriculum.

But herein lies the greatest difficulty: changing the way law students think means a change in the way law professors think and teach. Law professors, however, are not generally known for their great desire to implement teaching innovations. [188] Fortunately, simple adjustments to existing instructional models might yield unexpected mutual benefits and ease frustration for both professors and students.

In nearly every American law-school class, students read appellate decisions in casebooks and answer professors’ questions about the holdings and principles of law contained in the cases. This “Case Law” or “Socratic” [189] method of instruction remains the standard teaching method in law schools, despite concerns about its effectiveness and recommendations against its widespread use. [190] But despite its prevalence, law schools generally fail at explaining the process and goals of the Socratic Method. [191] Many professors assume that students implicitly recognize these goals. [192] There is generally no explanation of the underlying thought process that gets the students to the “right” answer. [193] Many students eventually work out that professors are not simply “hiding the ball,” but are, rather, drawing out reasoned analysis. Others however, may stumble through law school never quite understanding the reason for the trauma and humiliation that the Socratic Method engenders. [194]

The frustration is mutual. First-year professors complain that students’ exam answers are missing analysis. [195] Students jump from identifying a rule to stating a conclusion with no significant application of the rule to facts in between. What is missing in those answers, logically speaking, is the syllogistic minor premise. [196] On an exam, many students struggle to even articulate the accurate legal issue.

Consider a scenario where a defendant is charged with aggravated battery for using a deadly weapon. The facts state that the defendant sloshed household bleach in the victim’s face. [197] The rule is that any object can be a deadly weapon if it is used in such a way as to make it likely to cause great bodily harm. [198] It may seem obvious to an experienced lawyer that the precise legal issue is “whether bleach, sloshed in a victim’s face, is likely to cause great bodily harm.” But a student with poor analytical skills might begin by stating the issue as “whether the defendant used a deadly weapon” or even more obtuse, “whether defendant committed aggravated battery.” With this as a starting point, it’s no wonder that students resort to incomplete, heuristic thinking in place of reasoned analysis.

Now, imagine if every professor began requiring students to express arguments in the form of a syllogism. Certainly, the process would be a struggle, if not downright ugly, in the first weeks or even months of law school. But with repetition, students would quickly become proficient at identifying the proper components of the syllogistic process—thereby clarifying their reasoning. A simple approach to achieve these benefits in nearly any law-school classroom is to require students to articulate rules as “if-then” statements. [199] By reframing rules in this way, students are forced to critically examine the constituent elements of the rule: its requirements and its consequences. [200] Consider the following basic rules in Torts, Constitutional Law, and Civil Procedure:

If the plaintiff proves elements X, Y, and Z, then tort liability is established. If the state deprives a citizen of notice and opportunity to be heard, then the right to Due Process is violated. If a party currently resides in the state and intends to remain there indefinitely, then he or she qualifies as a “citizen” for diversity jurisdiction purposes.

Note that these simple rules are structured so as to force the rule’s requirement (the “if”) and consequence (the “then”) into plain view. This skill alone is beneficial for students because it not only trains the brain to recognize the pattern of rules, it transfers to skills necessary for legal writing and drafting: coherence and clarity. More importantly, however, these if-then rules form the major premise of a conditional syllogism. In such a major premise, the “if” clause is the middle term and the “then” clause is the major term.

Once students are comfortable articulating rules as the major premise of a syllogism, the next step is to present the facts of a case—whether a hypothetical presented by the professor or an assigned case reading—as the minor premise. Here are the minor premises that correlate to the major premises above:

Defendant did facts A B C. The state imposed a fine without affording the party an opportunity for a hearing. Plaintiff owns a houseboat that is moored in the state.

The subject of each minor premise is the minor term. The predicate of each minor premise is the middle term—or at least it would be, if the syllogism were complete. In a complete syllogism, of course, the middle terms would match exactly. Here, the middle terms do not match—yet. This is the advantage of this syllogistic exercise: students can immediately spot the precise legal issue in a case by joining the two middle term positions (in bold):

The issues revealed in this way are:

Do facts A B C —> satisfy elements X Y Z? Did the state’s imposing a fine without affording the party an opportunity for a hearing —> deprive the citizen of notice and opportunity to be heard? (YES) Does merely owning a houseboat currently moored in the state —> mean that a party currently resides in the state and intends to remain there indefinitely? (NO)

In this way, the analysis can be tested for accuracy. And in the first weeks and months of law school, the reliability of students’ analyses is of paramount importance.

These functional logic exercises, repeated in various contexts across the curriculum, would undoubtedly have at least some metacognitive benefits. And professors might find that the process improves not only students’ preparation, but also the quality of dialogue between them and their students.

c. Logic in Legal Writing and Analysis Courses

There is no question that legal writing professors are on the front lines of recognizing—and attempting to mitigate—shortcomings in law students’ reasoning. Legal writing assignments force students to reveal their thought processes on paper. [201] In grading their memos and briefs, we see that students’ “confusing prose reflects their confused thinking.” [202] Moreover, legal writing courses bridge a curricular gap between doctrine and skills. Students learn theory in their doctrinal courses and learn to apply it in a meaningful way toward the resolution of a client’s legal issue in legal writing classes. These courses help students integrate material across curriculum “because they do not separate the learning of theory from its application.” [203] Naturally, this setting is ideal for reinforcing functional logic skills.

Most law students are exposed to fundamental logical reasoning in their first-year research and writing course. They just don’t know it. Basic IRAC structure (Issue, Rule, Analysis, Conclusion)—the hallmark of legal writing organization—represents a deductive syllogistic process. [204] But written legal analysis involves induction as well. [205] Virtually no analysis is complete without incorporating analogical reasoning by comparing the facts of one’s case to precedent. And when a factual scenario presents novel or troublesome facts that seem not to fit established law, students are taught to engage in rule synthesis. [206] In other words, the legal writing classroom is rich with opportunities to practice deduction and induction in ways that incorporate both theory and practical application. What’s critical, however, is for legal writing professors to use logic terminology (i.e., deduction, induction, analogy, fallacy) when teaching these skills. It’s not that IRAC , synthesis , case illustration , or application are bad terms: legal writing professors have had great success using these and other labels for parts of analysis and should continue to do so. [207] Rather, it’s the additional benefit of reinforcing the concepts of logical thought in various contexts that will strengthen those skills across the board. [208] Accordingly, during the writing-instruction phase of a typical first-year legal-writing course, professors should take every opportunity to point out deductive and inductive analysis wherever it can be found. The professor should demonstrate that the Rule Synthesis section (the “R” of IRAC) has, overall, the same function as the major premise of a syllogism: as a unit, it represents a universal truth against which the facts of the case must be tested. Ideally, students should be exposed to several such deductive (or “rule-based” [209] ) analyses during their first legal-writing class session. Doing so connects legal writing not only to the deduction they learned about in Orientation, but also to the deductive processes used in their doctrinal courses. It also serves as a jumping-off point for the next step: the inductive process of applying precedent to new facts.

New law students learning predictive writing [210] are often confounded by the concept of analogizing facts of a case to established precedent. [211] It’s not that students don’t understand analogy: they’ve likely mastered the “head is to hat as foot is to shoe” analogy prevalent on the LSAT. [212] Rather, it’s the fact that using multiple (and often seemingly contradictory) analogies to reach a conclusion is a foreign concept to most non-lawyers. Moreover, even the conclusions reached by such a process can be less than satisfying, since they lack certainty. [213]

In drafting their first memos, rookie law students often make the mistake of analogizing a single precedent case to the facts of the memo problem. Despite having described several precedent cases, they default to choosing “the closest” single case to apply to the untested facts without endeavoring to reconcile other precedent or, much less, the law as a whole. The result is a superficial conclusion and inadequate prediction. To combat this tendency, legal-writing professors should reinforce that the two inductive forms, (1) inductive generalization and (2) analogy, should feature in the application (the “A” of IRAC) section of a memo.

In inductive generalization, a legal writer extracts multiple, often intersecting, points of similarity among a representative group of precedent cases to reach a working standard. [214] Say a legal writing professor includes four precedent cases in a closed-universe memo assignment. The professor undoubtedly chose those cases because they represent basic concepts relevant to the expected analysis. Case 1 has characteristics A and B ; Case 2 has characteristics A and C ; Case 3 has characteristics similar to A , B , and C , but mostly hinges on D ; and Case 4 falls short on A , B , C , and D (and, accordingly, fails to meet the legal standard at issue). Again, a student may be tempted to base his or her application simply on which of these cases most closely resembles the untested set of facts. But a professor can avoid this dangerous shortcut by taking time in class to break down each case conceptually, identifying and describing characteristics A , B , C , and D , and, where possible, articulating a formula describing characteristics necessary for the standard to be met.

Disorderly conduct provides a good example. In Florida, disorderly conduct is rather abstractly defined by Florida Statute section 877.03 as conduct that “corrupt[s] the public morals,” “outrage[s] the sense of public decency,” or “affect[s] the peace and quiet of persons who may witness [it].” [215] This mushy definition makes pure deduction difficult. Precedent, however, provides more helpful concepts. In one case, a defendant’s loud verbal conduct attracted a crowd of curious onlookers, but it was his physical act of interfering with the police officer’s lawful duties that made his conduct disorderly. [216] In another case, the defendant’s verbal conduct attracted a crowd, and he was physically aggressive toward an officer; this was also sufficient to constitute disorderly conduct. [217] In a third case, the defendant’s verbal conduct attracted a crowd that became hostile toward the officer, and this too was considered disorderly conduct. [218] But in a case where a defendant’s loud verbal conduct merely attracted a crowd of annoyed onlookers, the conduct was not considered disorderly. [219]

From these cases, at least three conceptual points of comparison arise: (A) conduct that draws a crowd; (B) conduct that interferes with an officer’s lawful duties; and (C) conduct that puts the officer in danger. In the cases where the disorderly conduct standard was met, there was some combination of (A) attracting a crowd and either (B) interfering with the officer’s duties or (C) putting the officer in danger. In the one case where the standard was not met, only (A) was present. Therefore, even from this limited selection of precedent, an implicit working standard can be extracted: Where (A)+(B) or (A)+(C) are present, conduct will be considered disorderly. If the formula is reliable, it should explain the results in all cases.

What’s happened here is induction: a general principle has been extracted from a number of particulars based on relevant similarities. [220] That general principle would then be applied to the untested facts of a new case. Admittedly, four cases may be a small sample from which to extract a general standard. But if the chosen cases are highly representative of all the cases on point, then the standard is likely to be highly reliable. [221] Nonetheless, because the conclusion reached by this process is uncertain, further substantiation is needed. That’s where analogy comes in.

Using analogical reasoning, the legal writer justifies his or her conclusion in terms of the chosen precedent. [222] Our typical “rookie” law student tried analogy, but failed to connect it to the law as a whole; therefore, it was superficial and analytically flimsy. But analogy coupled with the application of the inductive working standard demonstrates that a predicted outcome is consistent not only with an individual case, but also with the entire body of law on that issue. Thus, instead of describing random or disconnected similarities and distinctions between precedent cases and a set of untested facts, students can think of analogical reasoning as “proof” that the inductive formula was reliable.

Back to the disorderly conduct example. Suppose a memo fact pattern described a suspect—a witness to a shooting—who was loudly insisting that an officer take his statement, despite the fact that the officer was busy arresting the shooter. The suspect’s antics of yelling at the officer attracted a crowd of onlookers. The suspect, perhaps fueled by having an audience, put his face within two inches of the officer’s face, causing the officer to push him away with a free hand. The issue, of course, is whether the suspect can be charged with disorderly conduct.

In applying the law to these facts (the “A” of IRAC), a writer may initially want to point out that the statute does not provide concrete enough concepts upon which to base a purely deductive analysis. [223] Therefore, the analysis would be inductive. First, the writer should articulate the inductive generalization that the charge is generally supported by evidence that the defendant’s conduct (A) caused a crowd to form and either (B) interfered with an officer’s lawful duties or (C) put the officer in danger. Based on that working standard, the writer can state that the facts satisfy the inductive standard: the suspect both attracted a crowd and interfered with the officer making the arrest.

Next, it’s time to analogize the precedent cases. Because analogy compares cases with the expectation that, if they resemble each other in several relevant ways, then they will likely share the same outcome, [224] the writer must demonstrate that the specific relevant similarities between the chosen precedent and the untested facts support the stated conclusion. Because the relevant characteristics ( A , B , C , or D ) have already been described in the inductive generalization, it’s sufficient to briefly connect them to the specific facts of the memo problem. Analogy, in this sense, further substantiates the reliability of the inductive process.

What I’ve described above does not differ significantly from analytical processes taught by the average legal writing professor. But I believe there’s a significant additional benefit gained from reinforcing basic logic processes and terminology along the way.

d. Logic in Oral Advocacy

One final golden opportunity to reinforce basic logic is during the oral argument component of a first-year persuasive-writing class. Besides being a blood-curdlingly terrifying event forever etched in students’ memories and an important rite of passage, the appellate oral argument is fertile ground for using and recognizing informal fallacy. Generally, the lead-up to the oral argument is preceded by several weeks of instruction on oral persuasion and, ideally, in-class practice. Students already exposed to the concept of informal fallacy would be more adept at responding to their opponents’ positions, perhaps even identifying faulty logic by name. A student’s argument that “opposing counsel asserts X, but that is without merit because (restate original premise for the ninth time)” can become “opposing counsel asserts X, which falls into the logical fallacy of hasty generalization and is, therefore, not a reliable result.”

One way to achieve this benefit is to use class time to brainstorm every possible fallacious (but compelling) argument that could be made in the context of an appellate-brief fact pattern. Do the facts of the case allow for an improper appeal to authority? Can an ad hominem argument be made against an unsympathetic witness? This exercise not only reinforces the meaning of individual fallacies in a practical way; it challenges students to test how far advocacy can stretch before it becomes no longer persuasive.

Introducing basic logic into the legal writing classroom, therefore, requires little substantive change to existing pedagogy. But if students learn that the familiar paradigms of legal writing are exactly the same logic principles introduced in orientation and reinforced in doctrinal classes, their ability to critically think about legal issues—and their overall comprehension—could significantly increase.

Legal education in the United States has evolved over time in response to economic and social change. But the social, educational, and technological changes of recent decades, which have noticeably altered students’ ability to think critically, merit at least an adjustment in the way law schools teach. The time-tested methods of logic—even when pared down to their most practical and functional components—could begin to remediate some of the problems students face in the modern law-school classroom.

See generally Paul Douglas Callister, Beyond Training: Law Librarianship’s Quest for the Pedagogy of Legal Research Education , 95 L. Lib. J. 7, 9 (2003) (discussing legal employers’ frustration with new graduates’ poor legal research skills); Rebecca C. Flanagan, The Kids Aren’t Alright: Rethinking the Law Student Skills Deficit , 2015 BYU Educ. & L.J. 135, 138 (2015) (discussing possible reasons for law students’ decreasing critical-thinking skills); Courtney G. Lee, Changing Gears to Meet the “New Normal” in Legal Education , 53 Duq. L. Rev. 39 , 67 (2015) (decreased critical-thinking skills of many law schools’ entering classes is likely to continue for years to come); Karen Sloan, Practice Ready? Law Students and Practitioners Disagree , Nat’l L.J . (March 6, 2015), https://www.law.com/nationallawjournal/almID/1202719928678/?slreturn=20171030205801 (last visited Nov. 30, 2017) (discussing a survey by BarBri finding that only 23% of practitioners felt that graduating law students were ready to practice law); James Etienne Viator, Legal Education’s Perfect Storm: Law Students’ Poor Writing and Legal Analysis Skills Collide with Dismal Employment Prospects, Creating the Urgent Need to Reconfigure the First-Year Curriculum , 61 Cath. U. L. Rev. 735, 740—41 (2012) (discussing law-school “education-to-profession” disjunction).

Richard Arum & Josipa Roksa, Academically Adrift: Limited Learning on College Campuses 35—36 (2011).

Flanagan, supra note 1, at 144—45.

Changes needed to implement innovative curriculum changes have been “hampered,” in part, by American Bar Association regulations. Kristen K. Tiscione, How the Disappearance of Classical Rhetoric and the Decision to Teach Law as a “Science” Severed Theory from Practice in Legal Education , 51 Wake Forest L. Rev. 385 (2016); see also ABA Sec. Leg. Educ. & Admissions to the Bar , Managing Director’s Guidance Memo: Standard 316, Bar Passage (Aug. 2016), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/governancedocuments/2016_august_guidance_memo_S316.authcheckdam.pdf (last visited Dec. 12, 2017).

Michael Scriver & Richard Paul , Defining Critical Thinking, The Critical Thinking Community , http://www.criticalthinking.org/pages/defining-critical-thinking/766 (last visited Dec. 12, 2017).

Joanne G. Kurfiss, Critical Thinking: Theory, Research, Practice, and Possibilities , ASHE-ERIC Higher Educ. Rep. 1, 5 (1988).

Flanagan, supra note 1, at 144.

Id. (quoting Judith Welch Wegner, Reframing Legal Education’s "Wicked Problems ," 61 Rutgers L. Rev. 867, 871 (2009)).

Henry Ford is reported to have said, “Thinking is hard work, and that’s why so few people do it.”

See Kurfiss, supra note 7, at 14.

Stephen M. Rice, Indiscernible Logic: Using the Logical Fallacies of the Illicit Major Term and the Illicit Minor Term as Litigation Tools , 47 Willamette L. Rev. 101, 108 (2010).

Cheryl B. Preston et al., Teaching “Thinking Like a Lawyer”: Metacognition and Law Students , 2014 BYU L. Rev. 1053, 1057 (2014) (defining metacognition as “thinking about thinking”).

Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking , 28—29 (Nat’l Inst. for Trial Advo. 3d Ed. 1997); Edwin W. Patterson, Logic in the Law , 90 U. Pa. L. Rev. 875 (1942).

See, e.g. , Michael R. Smith, Rhetoric Theory and Legal Writing: An Annotated Bibliography , 3 J. ALWD 129 (2006) (listing dozens of scholarly works discussing logic and rhetoric in the discipline of legal writing); Richard D. Friedman, Logic and Elements (Symposium: Premises and Conclusions: Symbolic Logic for Legal Analysis), 73 Notre Dame L. Rev. 575 (1998).

Ruggero J. Aldisert et al., Logic for Law Students: How to Think Like a Lawyer , 69 U. Pitt. L. Rev. 1, 2 (2007).

Paula Lustbader, Construction Sites, Building Types, and Bridging Gaps: A Cognitive Theory of the Learning Progression of Law Students , 33 Willamette L. Rev. 315, 338 (1997) (“What is expected of students at the undergraduate level is vastly different from what is expected in law school. Prior to law school, learning mainly involved memorizing and regurgitating predigested, prepackaged, and organized information obtained from textbooks, lectures, and the media. Consequently, they are ill-prepared to read critically, synthesize rules, or analyze material to the extent required in law school.”).

Jesse Franklin Brumbaugh, Legal Reasoning and Briefing: Logic Applied to the Preparation, Trial and Appeal of Cases, with Illustrative Briefs and Forms 59 (1917) (“Ordinary logical theory requires but truthfulness only in the materials of the syllogism and form, but legal logic adds the social elements of justice and equity . . . .”); James R. Maxeiner, Thinking Like A Lawyer Abroad: Putting Justice into Legal Reasoning , 11 Wash. U. Global Stud. L. Rev . 55, 60 (2012) (“It is elementary learning that law seeks justice.”).

Ruth Vance & Susan Stuart, Of Moby Dick and Tartar Sauce: The Academically Underprepared Law Student and the Curse of Overconfidence , 53 Duq. L. Rev. 133, 134 (2015) (“[M]any matriculating law students arrive at law school woefully underprepared at the same time legal educators are challenged with the task of producing practice-ready graduates.”).

Aaron N. Taylor, Diversity as a Law School Survival Strategy , 59 St. Louis U.L.J 321, 329 (2015).

Id . While not the only predictor of law-school success, the LSAT measures “natural skill or reasoning,” skills that law schools and state bars consider essential to lawyering. Robert Steinbuch & Kim Love, Color-Blind-Spot: The Intersection of Freedom of Information Law and Affirmative Action in Law School Admissions , 20 Tex. Rev. L. & Pol. 181, 201 (2016) (citing Nicholas Georgakopoulos, Bar Passage: GPA and LSAT, Not Bar Reviews (Indiana University Robert H. McKinney School of Law Research Paper No. 2013-30 Sept. 19, 2013), http://bit.ly/20Ar8aB [ perma.cc/62MU-JRR7 ]).

Jay Sterling Silver, Responsible Solutions: Reply to Tamanaha and Campos , 2 Tex. A&M L. Rev . 215, 229—30 (2014).

Vance & Stuart, supra note 23, at 137. A full discussion of the deficiencies of K-12 and undergraduate educations is beyond the scope of the article.

“Despite a dramatic decrease in hours spent studying, college students are receiving higher grades.” Flanagan, supra note 1, at 139 (citing Kevin Carey, ‘Trust Us’ Won’t Cut It Anymore , Chron. Higher Educ. , Jan. 18, 2011, http://chronicle.com/article/Trust-Us-Wont-Cut-It/125978/ (last visited Dec. 12, 2017). (“Yes, there’s been grade inflation. A-minus is the new C.”); Lee, supra note 1, at 66; see also Rebecca C. Flanagan, Do Med Schools Do It Better? Improving Law School Admissions by Adopting a Medical School Admissions Model , 53 Duq. L. Rev . 75, 81 (2015) (“Many students can earn above-average grades throughout their undergraduate years by artfully selecting courses and majors.”).

Lee, supra note 1, at 66.

Flanagan, supra note 1, at 135—36.

Viator, supra note 1, at 753 (“From the late seventeenth century through the end of the nineteenth century, all levels of American schooling were dedicated to the study of classical literature and history.”).

Flanagan, supra note 1, at 148; see also Marilyn R. Walter, Erasing the Lines Between the Law School and the Liberal Arts Curricula: A Comment on “A Liberal Education in Law,” 1 J. Alwd. 153, 154 (2002) (discussing that familiarity with the classical authors and with principles of oratory was viewed, pre-Civil War, as essential to a lawyer’s excellence).

Tiscione, supra note 4, at 400.

Carol T. Christ, Myth: A Liberal Arts Education Is Becoming Irrelevant , Am. Council on Educ. (Spring 2012), http://www.acenet.edu/the-presidency/columns-and-features/Pages/Myth-A-Liberal-Arts-Education-Is-Becoming-Irrelevant.aspx (last visited Dec. 12, 2017).

“[T]he best preparation for the intense phase of the apprenticeship we call ‘going to law school’ is a broad-based liberal arts education.” Patricia Sayre, “Socrates is Mortal”: Formal Logic and the Pre-Law Undergraduate , 73 Notre Dame L. Rev . 689, 703 (1998).

Flanagan, supra note 1, at 148.

Doug Mataconis, College Students Lack Critical Thinking Skills, But Who’s To Blame? , Outside The Beltway (Jan. 18, 2011), http://www.outsidethebeltway.com/college-students-lack-critical-thinking-skills-but-whos-to-blame/ (last visited Dec. 12, 2017).

“Most of the top earners in the liberal arts end up matching only the bottom earners in science, technology, engineering and mathematics — known as the STEM fields — and some will earn less than high school graduates who have vocational skills, like welders and mechanics.” Patricia Cohen, A Rising Call to Promote STEM Education and Cut Liberal Arts Funding , N.Y. Times (Feb. 21, 2016), https://www.nytimes.com/2016/02/22/business/a-rising-call-to-promote-stem-education-and-cut-liberal-arts-funding.html (last visited Dec. 12, 2017).

Id. ; Michael Delucchi, “Liberal Arts” Colleges and the Myth of Uniqueness , 68(4) J. of Higher Educ. 414, 414 (1997) (“[T]he curricular trend in higher education since about 1970 has been toward studies related to work . . . . Enrollment concerns in recent years have compelled many liberal arts colleges to abandon or sharply scale back their arts and sciences curriculum in order to accommodate student preoccupation with the immediate job market.”); see also Mark Yates, The Carnegie Effect: Elevating Practical Training over Liberal Education in Curricular Reform , 17 Legal Writing 233, 243 (2011) (“Since the 1970s, undergraduate institutions in the United States have been shifting their curricular emphasis from liberal arts to more professionally oriented education. This shift is due largely to enrollment concerns caused by changes in the labor market and corresponding changes in the expectations of entering students.”); Judith T. Younger, Legal Education: An Illusion , 75 Minn. L. Rev. 1037, 1043 (1991) (arguing that, in attempting to democratize higher education, colleges and universities abandoned the liberal arts in favor of specialization and vocationalism).

Nicholas Lemann, Liberal Education and Professionals , 90 Liberal Educ. 14 (Spring 2004), http://www.aacu.org/liberaleducation/le-sp04/le-sp04feature1.cfm (last visited Dec. 12, 2017).

Arum & Roksa , supra note 2, at 96—98.

See Flanagan, supra note 1, at 140 (describing Collegiate Learning Assessment test subjects as similarly situated students from wide variety of colleges and universities).

Id . (characterizing critical thinking, analytical reasoning, problem solving, and writing skills as essential skills during the first year of law school).

Arum & Roksa, supra note 2, at 121.

Center of Inquiry in the Liberal Arts at Wabash College, Wabash National Study of Liberal Arts Education , http://www.liberalarts.wabash.edu/study-research/ (last visited Dec. 12, 2017).

Center of Inquiry in the Liberal Arts at Wabash College, Wabash National Study of Liberal Arts Education, Fourth Year Change Summary , http://static1.1.sqspcdn.com/static/f/333946/10418206/1296073333850/4-year-change-summary-website.pdf?token=ZVEVCl3%2ButHXke%2Fk0YqlLCJCYMo%3D (last visited Dec. 12, 2017).

“[S]tudies have not found positive evidence of broad-based skills acquisition by college students since the 1990s.” Flanagan, supra note 1, at 142.

Id. at 143.

Id. (quoting Arum & Roksa, supra note 2, at 40).

Elizabeth Olsen, Study Cites Lower Standards in Law School Admissions , N.Y. TIMES, Oct. 27, 2015, at B1; Jennifer M. Cooper, Smarter Law Learning: Using Cognitive Science to Maximize Law Learning , 44 Cap. U.L. Rev. 551, 552 (2016).

See generally Taylor, supra note 24.

Jeremy Berke, Law-School Grads are Bombing the Bar and It’s a Sign of Trouble for Legal Education , Business Insider , http://www.businessinsider.com/bar-passage-exam-rates-have-dropped-in-several-key-states-2015-11 (last visited Dec. 12, 2017).

Shailini Jandial George, Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School , 66 Me. L. Rev. 163, 169 (2013).

Id. at 172.

Id. at 172–73.

Sara Bernard, Neuroplasticity: Learning Physically Changes the Brain , EDUTOPIA (Dec. 1, 2010), http://www.edutopia.org/neuroscience-brain-based-learning-neuroplasticity (Dec. 12, 2017).

Nicholas Carr, The Shallows: What the Internet is Doing to our Brains 31, 34 (2011).

Id. at 120.

Jennie Bricker, Where No One Has Gone Before: Practicing Law in the Digital Age , 72 J. Mo. B. 18 (2016).

Carr, supra note 60, at 65.

See id. at 72.

Id . at 75.

Id. at 122.

Id. at 141—42.

Id . at 121.

A slightly exaggerated, but not-all-too-unrealistic multi-tasking scenario is described at the outset of George, supra note 55, at 164.

Carr , supra note 60, at 140.

Vance & Stuart, supra note 22, at 141.

Daniel M. Wegner & Adrian F. Ward, The Internet Has Become the External Hard Drive for our Memories , Sci. Am. (Dec. 1, 2013), http://www.scientificamerican.com/article/the-internet-has-become-the-external-hard-drive-for-our-memories/ (last visited Dec. 12, 2017).

Patrick Meyer, The Google Effect, Multitasking, and Lost Linearity: What We Should Do , 42 Ohio N.U. L. Rev. 705, 716 (2016).

William Poundstone, The Internet Isn’t Making Us Dumber — It’s Making Us More “Meta-Ignorant,” N.Y. Mag. (July 27, 2016) , http://nymag.com/scienceofus/2016/07/the-internet-isnt-making-us-dumber-its-making-us-more-meta-ignorant.html (last visited Dec. 12, 2017).

Meyer, supra note 74, at 712—13.

Gabriel H. Teninbaum, Spaced Repetition: A Method for Learning More Law in Less Time , 17 J. High Tech. L. 273, 302 (2017).

Neil Howe & William Strauss , Millennials Rising: The Next Great Generation 4 (2000) (defining a Millennial as anyone born during or after 1982).

Data suggests that Millennials do not read print newspapers, watch television news, or purposely visit news websites, instead receiving information on selected stories through social media. The Media Insight Project, How Millenials Get News: Inside the Habits of American’s First Digital Generation , http://www.mediainsight.org/Pages/how-millennials-get-news-inside-the-habits-of-americas-first-digital-generation.aspx (last visited Dec. 12, 2017).

Poundstone, supra note 77 (“Most — more than 50 percent — of millennials can’t name anyone who shot a U.S. president or discovered a planet; they don’t know the ancient city celebrated for its hanging gardens, the one destroyed by Mount Vesuvius, or the emperor said to have fiddled while Rome burned; and most millennials can’t name the single word uttered by the raven in Edgar Allan Poe’s poem.”).

“The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in 1982.” Joel Stein, Millennials: The Me Me Me Generation , Time Magazine (May 20, 2013) http://time.com/247/millennials-the-me-me-me-generation/ ; see also Vance & Stuart, supra note 22, at 134—35.

Kari Mercer Dalton, Bridging the Digital Divide and Guiding the Millennial Generation’s Research and Analysis , 18 Barry L. Rev . 167, 173—74 (2012).

Eric A. DeGroff, Training Tomorrow’s Lawyers: What Empirical Research Can Tell Us About the Effect of Law School Pedagogy on Law Student Learning Styles , 36 S. Ill. U.L.J. 251 (2012).

Vance & Stuart, supra note 22, at 134—35.

Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive Skills of Law Students Through More Effective Formative Assessment Techniques , 40 Cap. U. L. Rev. 149, 160 (2012); Cooper, supra note 53, at 556.

Cooper, supra note 52, at 556.

See generally Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments , 77 J. Personality & Soc. Psychology 1121 (1999).

Id . at 1121.

Id . (citations omitted).

Id. at 1124.

Participants placed themselves in the 66th percentile relative to others, significantly higher than the actual mean of 50. Id . at 1123.

Id . at 1125.

Legal Writing guru Bryan Garner linked the Dunning-Kruger effect to the legal profession. He suggested that attorneys overestimate their writing skills and, therefore, fail to take steps to improve it, even when doing so would be beneficial. Bryan A. Garner, Why Lawyers Can’t Write: Science Has Something to Do with It, and Law Schools Are Partly to Blame , 99- Mar. A.B.A. J. 24 (2013).

See 2016 MBE Statistics, Nat’l Conf. Bar Examiners, http://www.ncbex.org/publications/statistics/mbe-statistics/ (last visited Sept. 29, 2017) (showing a decline in MBE National Mean Scaled Scores from 2007 to 2016).

“Thinking like a lawyer” has been described as “employing logic to construct arguments.” Aldisert et al., supra note 18, at 1.

Jack L. Landau, Logic for Lawyers , 13 Pac. L.J. 59, 60 (1981); Aldisert et al., supra note 18, at 2; Stephen M. Rice, False Persuasion, Superficial Heuristics, and the Power of Logical Form to Test the Integrity of Legal Argument , 34 Pace L. Rev. 76, 76 (2014).

Aldisert, supra note 16, at 28—29; see Patterson, supra note 16, at 903 — 04 (describing types of analogies).

Professors often hear, “I know the material; I just didn’t present it the way you wanted it.”

The Honorable Jack L. Landau, Justice of the Supreme Court of Oregon, proposed essentially the same in 1981, when he was an Instructor of Law at Northwestern School of Law of Lewis and Clark College:

Much of what is currently taught in logic classes is entirely too cumbersome for analysis. However, there are certain techniques, namely deduction, induction and analogy, and the avoidance of informal fallacies, that can easily be taught to first-year students, that do have a direct bearing on the legal reasoning process, and that can definitely improve the quality of reasoning and critical thinking skills exhibited by students and lawyers alike.

Landau, supra note 100, at 60.

Judge Aldisert expressed similar unease at possibly offending logicians and mathematicians. Aldisert et al., supra note 18, at 2. But it is, perhaps, the greatest approbation to demonstrate Logic’s utility even in such a highly diluted form.

“Deductive reasoning is a mental operation that a student, lawyer or judge must employ every working day.” Aldisert, supra note 16, at 45.

See, e.g. , id. at 48—49.

There are three basic types of syllogisms:

Conditional Syllogism: If A is true then B is true (If A then B). Categorical Syllogism: If A is in C (and B is in A) then B is in C. Disjunctive Syllogism: If A is true, then B must be false (A or B).

See id . at 145.

This is true, of course, only if the syllogism is valid.

Aldisert et al., supra note 18, at 4.

See generally Aldisert, supra note 16.

Aldisert et al., supra note 18, at 6.

For beginners, it may be easier to remember that the major term represents the broad or universal class, the middle term represents a portion of that class, and the minor term represents the narrowest or most specific component.

Aldisert, supra note 16, at 57—58.

The informal or practical logic envisioned in this article does not necessarily require students to understand these patterns or, for that matter, to create exclusively valid syllogisms. Rather, it is the process of forcing ideas into a syllogism—whether revealing an objective “truth” or not—that is likely to improve students’ critical-thinking skills. A secondary effect of this approach may be that some students become interested in more formal logic and pursue it further.

Aldisert, supra note 16, at 237.

“[Formal logic] structure allows legal thinkers to comparatively analyze legal argument, by comparing and contrasting it to necessarily valid or invalid logical structures, and reach conclusive logical decisions about the validity or invalidity of the form of the argument.” Stephen M. Rice, Conspicuous Logic: Using the Logical Fallacy of Affirming the Consequent as a Litigation Tool , 14 Barry L. Rev . 1, 13 (2010).

Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist’s Decisions in Criminal Procedure Cases , 59 U . Colo. L. Rev . 741, 774 (1988).

Rice, supra note 120, at 9.

132 So. 3d 237 (Fla. Dist. Ct. App. 2013).

Id. at 245.

Id. at 247 (quoting Clark v. State, 95 So. 3d 986, 987 (Fla. Dist. Ct. App. 2012)).

Id. at 247 n. 16.

Naturally, it is possible that, in this particular judgment on this particular issue, Judge Wetherell was not reasonable. Nonetheless, his use of conditional syllogism to compare the facts (judges disagreed about the ruling) to the legal standard (no abuse of discretion if reasonable judges could disagree) was effective, in theory.

Id . at 12.

See Aldisert , supra note 16, at 48.

Kent Sinclair Jr., Comment, Legal Reasoning: In Search of an Adequate Theory of Argument , 59 Calif. L. Rev. 821, 827 (1971), http://scholarship.law.berkeley.edu/californialawreview/vol59/iss3/13 (last visited Dec. 12, 2017).

Aldisert et al., supra note 18, at 13.

Anita Schnee, Legal Reasoning "Obviously ," 3 Legal Writing 105, 112 (1997), http://www.legalwritingjournal.org/wp-content/uploads/2015/06/volume3.pdf (last visited Dec. 12, 2017).

Aldisert, supra note 16, at 92—93.

Carlo Rovelli, Science is not Certainty , NEW REPUBLIC (July 11, 2014), https://newrepublic.com/article/118655/theoretical-phyisicist-explains-why-science-not-about-certainty (“Science is extremely reliable; it’s not certain.”) (last visited Dec. 12, 2017).

Mary Massaron Ross, A Basis for Legal Reasoning: Logic on Appeal , 3 J. Ass’n Legal Writing Directors 179, 182 (2006).

Aldisert, supra note 16, at 50, 92.

Kansas v. Colorado , 206 U.S. 46, 97 (1907).

111 N.E. 1050 (N.Y. 1916); see Schnee, supra note 137, at 113.

MacPherson , 111 N.E. at 1051.

Id . at 1055 (commenting that “defendant was not absolved from a duty of inspection” because it bought the wheels from a third party manufacturer); Schnee, supra note 137, at 113.

Id. at 1055 (Bartlett, J., dissenting) (opining that the majority’s opinion extended vendor liability further than any case the court previously approved).

Id. at 1051—53 (majority opinion); Schnee, supra note 137, at 113.

Aldisert, supra note 16, at 100—01.

MacPherson , 111 N.E. at 1055.

Schnee, supra note 137, at 113.

See Aldisert , supra note 16, at 91 (“Inductive generalization is used in all aspects of the legal profession – in studying law, in practicing law and in judging cases. Thus, it looms large in the common-law tradition in the development of legal precepts in the case by case experience.”).

Ross, supra note 140, at 185 (“Typically, deductive reasoning proceeds from a general proposition to a conclusion that is either a particular proposition or another general proposition.”).

Kristen K. Robbins, Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning , 27 Vt. L. Rev . 483, 532 (2003).

Bruce Weinstein, How Trump and Friends Could Learn a Few Things From Mr. Spock , Fortune Magazine Online (March 8, 2016), http://fortune.com/2016/03/08/fallacious-arguments-logic-trump/ (discussing fallacies in recent presidential campaign speeches).

Consider some pop-culture examples of blatant fallacy: Advertisements in the “Four out of five dentists approve” variety (demonstrating appeal to authority fallacy); talking head debates over whether ISIS militants are or are not “genuine Muslims” (no true Scotsman fallacy); political candidates stating their opponents are in the pocket of special interests, hate the middle class, are socialist, are racist, etc. (ad hominem argument); arguments against the theory of evolution using a picture of a chimpanzee and asking, “Is this really your ancestor?” (straw-man fallacy).

Indeed, use of fallacy is so prevalent that television and commercial writers have found it a ripe target for satire: A Simpsons episode where Homer concludes that a rock is capable of repelling tigers because, while the rock was present, no tigers were about ( post hoc fallacy), Simpson- I want to buy your rock , https://www.youtube.com/watch?v=g3U6IUMTDHY (last visited Sept. 28, 2017); a Direct TV commercial suggesting, “Don’t wake up in a roadside ditch: Get rid of cable” (slippery slope fallacy).

Rice, supra note 100, at 79—80.

Id . at 82.

Id. at 82—83.

Ross, supra note 140, at 189 (“Formal fallacies are based on a mistake in the form or logic of the argument.”).

Aldisert, supra note 16, at 141.

Aldisert , supra note 16, at 143.

Cory S. Clements, Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of Words , 2013 BYU L. Rev . 319, 332 (2013).

LOGICALLY FALLACIOUS: THE ULTIMATE COLLECTION OF OVER 300 LOGICAL FALLACIES , https://www.logicallyfallacious.com/tools/lp/Bo/LogicalFallacies (last visited Sept. 28, 2017).

Michael Sean Quinn, “Scholarly Ethics”: A Response , 46 J. Legal Educ. 110, 112 (1996).

375 Fed. App’x 154, 157 (2d Cir. 2010) (unpublished).

375 F. App’x at 156 n.2.

Scheck v. Burger King Corp ., 798 F. Supp. 692, 698 n10 (S.D. Fla. 1992).

Aldisert , supra note 16, at 208.

Id. at 193.

Id . at 195.

807 F. Supp. 1376 (C.D. Ill. 1992).

Id . at 1391.

Aldisert , supra note 16, at 199.

Eugene Volokh, The Mechanisms of the Slippery Slope , 116 Harv. L. Rev . 1026, 1102 (2003)

See State v. Brown , 305 P.3d 48 (Kan. App. 2013).

See generally Neal R. Feigenson, The Rhetoric of Torts: How Advocates Help Jurors Think About Causation, Reasonableness, and Responsibility , 47 Hastings L.J. 61, 165 n 154 (1995).

Gabriel H. Teninbaum, Reductio Ad Hitlerum: Trumping the Judicial Nazi Card , 2009 Mich. St. L. Rev. 541, 554 (2009)

Weinstein, supra note 155.

Doing so would be “like asking them to design a rocket without teaching them the rules of physics.” Aldisert et al., supra note 18, at 2.

Id . at 6. Judge Aldisert describes the prosecutor’s syllogism as a useful template for most legal problems:

Major premise: [Doing something] [violates the law] Minor premise: [The defendant] [did something] Conclusion: [The defendant] [violated the law].

A basic categorical syllogism.

A modus tollens conditional syllogism.

Aldisert , supra note 16, at 195.

“The more times a network is stimulated, the stronger and more efficient it becomes.” Bernard J. Luskin, “If I Had a Better Brain!” Brain Health, Plasticity, Media, and Learning Can be a Perfect Storm , Psychology Today (Aug. 20, 2013), https://www.psychologytoday.com/blog/the-media-psychology-effect/201308/if-i-had-better-brain (last visited Dec. 12, 2017).

See Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching , 38 San Diego L. Rev . 347, 360 (2001) (law schools’ emphasis on scholarship and publication, the criteria by which law schools measure professors’ performance for tenure purposes, discourages teaching innovation); Samantha A. Moppett, Control-Alt-Incomplete? Using Technology to Assess “Digital Natives” , 12 Chi.-Kent J. Intell. Prop . 77, 86 (2013) (law professors fear change because of concern about academic freedom, resistance to changing status quo, and hesitation over increasing workload).

The Case Law method, introduced by Christopher Columbus Langdell at Harvard Law School in 1870, has been commonly labeled the “Socratic Method.” This is, somewhat, a misnomer. Ruta K. Stropus, Mend It, Bend It, and Extend It: The Fate of Traditional Law School Methodology in the 21st Century , 27 Loy. U. Chi. L.J. 449, 453 (1996) (“Unlike Socrates, who focused purely on the questioning process, Langdell sought to combine both the substance of the law and the process of the law into the legal classroom.”) Despite this technical difference, I refer to the typical law-school instructional method as “Socratic.”

See, e.g., William M. Sullivan et al., educating Lawyers: Preparation for the Profession of Law 56—60, 75—78 (The Carnegie Foundation for the Advancement of Teaching, Preparation for the Professions Program, 2007); A.B.A. Section of Legal Educ. & Admissions to the Bar , Legal Education and Professional Development–an Educational Continuum, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap 233—36 (1992) [MacCrate Report].

Tiscione, supra note 4, at 399—400

Niedwiecki, supra note 89, at 168.

Id. at 169.

See generally Jennifer L. Rosato, The Socratic Method and Women Law Students: Humanize, Don’t Feminize , 7 S. Cal. Rev. L. & Women’s Stud. 37 (1997) (discussing students’ humiliation as an integral part of the Socratic Method).

Timothy R. Zinnecker, Syllogisms, Enthymemes and Fallacies: Mastering Secured Transactions Through Deductive Reasoning , 56 Wayne L. Rev. 1581, 1589 (2010) (quoting James M. Boland, Legal Writing Programs and Professionalism: Legal Writing Professors Can Join the Academic Club , 18 St. Thomas L. Rev. 711, 726 (2006)).

State v. Smith , 969 So. 2d 452, 453 (Fla. Dist. Ct. App. 2007).

Id. at 454.

I am indebted to my colleague, Professor Brendan Beery, for this pragmatic and tested approach for using conditional syllogisms to promote what he terms “right thinking.” Professor Beery conducts voluntary logic workshops that not only teach the syllogistic process using functional terminology, but which enhance students’ ability to express their reasoning on exams.

See generally Kevin H. Smith, Practical Jurisprudence: Deconstructing and Synthesizing the Art and Science of Thinking Like a Lawyer , 29 U. Mem. L. Rev . 1, 49 (1998).

Carol McCrehan Parker, Writing Throughout the Curriculum: Why Law Schools Need It and How to Achieve It , 76 Neb. L. Rev . 561, 571 (1997).

Viator, supra note 1, at 742.

David S. Romantz, The Truth About Cats and Dogs: Legal Writing Courses and the Law School Curriculum , 52 U. Kan. L. Rev. 105, 139 (2003).

Schnee, supra note 137, at 106.

Laura P. Graham, Why-Rac? Revisiting the Traditional Paradigm for Writing About Legal Analysis , 63 U. Kan. L. Rev. 681, 688 (2015) (citing Kristin Konrad Robbins-Tiscione, Rhetoric for Legal Writers: The Theory and Practice of Analysis and Persuasion 111—13 (2009)).

See generally Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis , 40 Tex. Tech L. Rev . 1 (2007).

But see Terrill Pollman, Building A Tower of Babel or Building A Discipline? Talking About Legal Writing , 85 Marq. L. Rev. 887, 924–25 (2002) (discussing the need for consistent legal-writing terminology, or “jargon,” to effectively communicate about writing and about the substance of the academic discipline of legal writing).

Some writing texts already approach legal analysis using logic terminology. See generally Deborah A. Schmedemann & Christina L. Kunz , Synthesis: Legal Reading, Reasoning, and Writing (3d ed. 2007); Teresa J. Reid Rambo & Leanne J. Pflaum, Legal Writing by Design (2d ed. 2013).

See Laurel Currie Oates & Anne Enquist , Just Memos (3d ed. 2011).

Predictive writing is nearly always taught before persuasive writing. Kathy Stanchi, Teaching Students to Present Law Persuasively Using Techniques From Psychology , 19 Perspectives: Teaching Legal Res. & Writing 142, 142 (2011).

See, e.g ., Dan Hunter, Teaching and Using Analogy in Law , 2 J. Ass’n. Legal Writing Directors 151, 151 (2004).

Cass R. Sunstein, On Analogical Reasoning , 106 Harv. L. Rev. 741, 745 (1993).

Ross, supra note 140, at 180.

Fla. Stat. § 877.03 (2016).

C.L.B. v. State , 689 So. 2d 1171, 1172 (Fla. Dist. Ct. App. 1997).

Wiltzer v. State, 756 So. 2d 1063, 1065 (Fla. Dist. Ct. App. 2000).

W.M. v. State, 491 So. 2d 335, 336 (Fla. Dist. Ct. App. 1986).

Fields v. State, 24 So. 3d 646, 648 (Fla. Dist. Ct. App. 2009).

See Aldisert et al., supra note 18, at 12.

“If the analysis is based on a complete set, then the conclusion will be strong. But if a complete set is not used for the analysis, the conclusion may be weak. The advocate must test the strength of the conclusion by examining the sample’s size and its representativeness.” Ross, supra note 140, at 181.

Dan Hunter, Reason Is Too Large: Analogy and Precedent in Law , 50 Emory L.J. 1197, 1246 (2001).

In reality, Fla. Stat. § 877.03 provides one concrete example of disorderly conduct: “brawling or fighting.” However, in a “closed universe” memo, that part of the statute can be left out for pedagogical purposes.

Aldisert , supra note 16, at 93.

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36 Legal Reasoning

Barbara A. Spellman, Department of Psychology and School of Law, University of Virginia, Charlottesville, VA

David and Mary Harrison Distinguished Professor of Law, University of Virginia, Charlottesville, United States

• Published: 21 November 2012
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The legal profession has long claimed that there are process-based differences between legal reasoning—that is, the thinking and reasoning of lawyers and judges—and the reasoning of those without legal training. Whether those claims are sound, however, is a subject of considerable debate. We describe the importance in the legal system of using categorization and analogy, following rules and authority, and the odd task of “fact finding.” We frame these topics within the debate between two views of legal reasoning: the traditional view—that when deciding a case, judges are doing something systematic and logical that only legally trained minds can do; and the Legal Realist view—that judges reason in much the same way as ordinary people do, and that they first come to conclusions and then go back to justify them with the law rather than using the law to produce their conclusions in the first place.

Introduction

In the 1973 film The Paper Chase , the iconic Professor Kingsfield announced to his class of first-year law students: “You teach yourself the law. I train your minds. You come in here with a skull full of mush, and if you survive, you'll leave thinking like a lawyer.” In claiming to teach students to think like lawyers, Kingsfield echoed the assumptions of centuries of legal ideology. In the 17th century, the great English judge Edward Coke glorified the “artificial reason” of the law (Coke, 1628 , ¶ 97b), and from then until now lawyers and judges have believed that legal thinking and reasoning is different from ordinary thinking and reasoning, even from very good ordinary thinking and reasoning. Moreover, the difference, as Kingsfield emphasized, has long been thought to be one of process and not simply of content. It is not only that those with legal training know legal rules that laypeople do not. Rather, lawyers and judges are believed, at least by lawyers and judges, to employ techniques of argument, reasoning, and decision making that diverge from those of even expert nonlawyer reasoners and decision makers.

Our chapter begins by describing three important distinctions: between what people typically mean by “legal reasoning” and other types of reasoning that occur in the legal system; between two competing views of how such reasoning is done; and between law and fact. The heart of the chapter deals with four thinking and reasoning processes that are common in legal reasoning: following rules, categorization, analogy, and fact finding. We then discuss whether legal decision making requires particular expertise and examine some of the peculiarities of legal decision-making procedures generally. We end with some ideas for future research.

The Who, How, and What of Legal Reasoning

What is meant by “legal reasoning”? Who does it, how is it done, and which parts of it do we think are unique? We sketch answers to these questions in the text that follows.

“Legal Reasoning” Versus Reasoning Within the Legal System

Legal reasoning, strictly speaking, must be distinguished from the full universe of reasoning and decision making that happens to take place within the legal system. Juries, for example, make decisions in court that have legal consequences, but no one claims that the reasoning of a juror is other than that of the ordinary person, even though the information that jurors receive is structured by legal rules and determinative of legal outcomes. There has been extensive psychological research on jury decision making (for example, Diamond & Rose, 2005 ; Hastie 1993 ), and we discuss some of it in this chapter in the section on “Fact Finding.” But when Coke and Kingsfield were glorifying legal reasoning, they were thinking of lawyers and judges and not of lay jurors. Similarly, police officers, probation officers, and even the legislators who make the laws are undeniably part of the legal system, yet the typical claims about the distinctivenessof legal reasoning do not apply to them. Clearly, the institutions and procedures of the legal system affect decision making, but the traditional claims for the distinctiveness of legal reasoning go well beyond claims of mere institutional and procedural differentiation. The traditional claim is that certain legal professionals—lawyers and judges—genuinely reason differently, rather than employ standard reasoning under different institutional procedures.

Thus, the term “legal reasoning” refers to reasoning by a subset of people involved in the legal system; it also refers to a subset of what that subset of people reason about. Television portrayals notwithstanding, a large part of what lawyers do consists of tasks such as negotiating, drafting contracts, writing wills, and managing noncontested dealings with the administrative bureaucracy. These lawyers' functions are important in understanding the legal system in its entirety, yet they are rarely alleged to involve distinctive methods of thought, except insofar as they are performed with an eye toward potential legal challenges and litigation. Therefore, we focus in this chapter on trials and appeals because that is the domain about which claims for the distinctiveness of legal reasoning are most prominent.

Two Views of Legal Reasoning

In this chapter we examine forms of reasoning that are allegedly concentrated in, even if not exclusive to, the legal system. But we also address the long history of skeptical challenges to the legal profession's traditional claims about the distinctiveness of its methods. From the 1930s to the present, theorists and practitioners typically described as Legal Realists (or just “Realists”) have challenged the belief that legal rules and court precedents substantially influence legal outcomes (Frank, 1930 ; Llewellyn 1930 ; Schlegel 1980 ). Rather, say the Realists, legal outcomes are primarily determined by factors other than those that are part of the formal law. These nonlegal factors might include the personality of the judge, for example, as well as the judge's moral and political ideology and her reactions to the facts of the particular situation presented.

The Realists' claim that such nonlegal considerations are an important part of judicial decision making should come as little surprise to most psychologists. After all, the Realist challenge is largely consistent with the research on motivated reasoning (Braman, 2010 ). Because decision makers are often focused on reaching specific desired conclusions, the motivation to reach an antecedently desired conclusion will affect their information search and recall, as well as other components of the decision-making process (Kunda, 1987 , 1990 ; Molden & Higgins, 2005 ; Chapter 20 ). Insofar as this research is applicable to judges, then, the Realists would claim that judges are frequently motivated to reach specific outcomes in specific cases for reasons other than the existence of a relevant legal rule. They might, for example, sympathize with one party in the particular case. Or they might believe, more generally, for example, that labor unions should ordinarily prevail against corporations (Kennedy, 1986 ), or that the police should be supported in their fight against typically guilty defendants, or that commerce flows more smoothly if the norms of the business community rather than the norms of the law are applied to commercial transactions (Twining, 1973 ). These nonlegal and outcome-focused motivations, say the Realists, would lead judges to retrieve legal rules and precedents selectively in light of that motivation, locating and using only or disproportionately the rules and precedents supporting the result generated by their nonlegal outcome preferences in a particular dispute.

Indeed, the same point is supported by the research on confirmation bias (see Nickerson, 1998 , for a review). This research teaches us that both novice and expert decision makers are inclined to design their tasks in ways that yield results consistent with their initial beliefs (Fiedler, 2011 ). In light of what we know about motivated reasoning and confirmation bias, therefore, it is plausible that judges often consult the formal law only after having tentatively decided how the case, all or many things other than the law considered, ought to come out. The judges would then select or interpret the formal law to support outcomes reached on other grounds, as the Realists contend, rather than using the formal law to produce those outcomes in the first place, as the traditional view of legal reasoning maintains.

The traditional view of “thinking like a lawyer” does not deny that motivated reasoning and confirmation bias influence the decisions of ordinary people. It does deny, however, that these phenomena are as applicable to expert legal reasoners as they are to laypeople. Indeed, it is telling that nominees for judicial appointments, especially nominees to the Supreme Court testifying before the Senate Judiciary Committee at their confirmation hearings, persistently pretend not to be Realists. They deny that any policy or outcome preferences they might happen to have will influence their judicial votes, claiming instead that their job is simply to follow the law. 1 The judicial nominees thus join the claims of Kingsfield and countless others that the forms of thinking and reasoning that characterize human beings in general are exactly the forms of thinking and reasoning that lawyers and judges are trained to avoid. Whether such avoidance can actually be taught or actually occurs, however, are empirical questions, and not the articles of faith they were for Kingsfield. The question of whether lawyers and judges really are better than laypeople at avoiding the consequences of motivated reasoning, confirmation bias, and other impediments to law-generated results is one that lies at the heart of the traditional claims for the distinctiveness of legal reasoning. In this chapter, we consequently discuss not only the traditional view of legal reasoning but also the research examining the extent to which the model of reasoning described by the traditional view accurately characterizes the arguments of lawyers and the decision making of the judges to whom they argue.

The Distinction Between Law and Fact

The distinction between questions of law and questions of fact is crucial to understanding legal decision making. Indeed, questions of fact are primary in important ways, because the initial question in any legal dispute is the question of what happened—the question of fact. How fast was the Buick going when it collided with the Toyota? Who came into the bank with a gun and demanded money from the teller? Did the shopkeeper actually promise the customer that the lawnmower she bought would last for 5 years? In typical usage we think of “facts” as things that are known to be true. But in the courtroom, relevant facts may be unknown or in dispute. Thus, the first thing that the “trier of fact,” be it jury or judge, must do is “fact finding”—that is, deciding what actually happened.

Knowing what happened is important and preliminary, but knowing what happened does not answer the legal question—the question of what consequences flow from what happened. If a prospective employee proves that the company that did not hire him refuses to hire anyone over the age of 50, has the company violated the law, and, if so, what is the penalty? If the defendant in a murder case drove a getaway car but did not shoot anyone, is he subject to the same criminal penalty as an accomplice who actually did the shooting? If the Buick that someone purchased from a Buick dealer turns out to be defective, is the dealer responsible or only the manufacturer?

In the United States it is common to think of juries as determining questions of fact and judges as deciding questions of law. However, this simple dichotomy is misleading. Although juries generally do not decide questions of law (though they are required to apply the law to the facts in order to reach a verdict), judges do decide questions of fact. In many countries, there are no juries at all. And even though most countries with a common-law (English) legal heritage have juries for many criminal trials, only in the United States are there still juries for civil lawsuits between private parties.

Even in the United States, juries are far less common than one would suspect from television portrayals of the legal system. Partly because of settlement and plea bargaining, partly because only certain types of cases involve the right to a jury, partly because sometimes the opposing parties agree to have a judge decide the case, partly because of alternative dispute resolution, and partly because many cases are dismissed or otherwise resolved by judges on legal grounds before trial, jury trials are rare. In fact, only about 1% of initiated cases in the United States reach trial at all, and many of those are tried by a judge sitting without a jury (Galanter, 2004 ). Often, therefore, the issues of fact as well as law are decided by the judge.

And even when there is a jury, many preliminary factual issues will have been decided by the judge. In criminal cases, for example, factual questions about arguably illegal searches and seizures or confessions—Did the police have probable cause to conduct a search? Was the defendant given the requisite warnings before being interrogated?—are determined by the judge. In civil cases with a jury, judges decide many issues of fact in determining preliminary procedural issues and making rulings on the admissibility of evidence—Did the defendant answer the complaint within the required 20-day period? Can an expert in automobile design testify as an expert about tire failure?

The psychological issues implicated by decisions about disputed questions of fact are not necessarily the same as those involved in determining what the law is. And thus we deal separately, much later, with the psychology of factual determination in law. For now, however, it is worth noting that many of the claims about a distinctively legal reasoning pertain to the resolution of uncertain questions about the law rather than about what happened. Determining what the law requires, especially when the law is uncertain, involves the kind of legal reasoning that Kingsfield celebrated and Supreme Court nominees endorse. Learning how to make such determinations is a large part of the training of lawyers, and a substantial component of legal practice, especially in appellate courts. It is precisely when rules or precedents are unclear or generate uncomfortable outcomes that the use of rules, precedents, analogies, and authority becomes most important, and these are the forms of reasoning that are central to the alleged distinctiveness of legal reasoning. We turn to those forms of reasoning now.

Following, applying, and interpreting formal, written, and authoritative rules, as well as arguing within a framework of such rules, are important tasks for lawyers and judges, and they are consequently emphasized in the standard picture of legal reasoning. The psychology literature does not address this kind of rule following per se; however, to a psychologist the processes involved in deciding “easy” cases seem to involve deductive reasoning (see Evans, Chapter 8 ), whereas those for “hard” cases seem to involve categorization (see Rips et al., Chapter 11 ) and analogy (see Holyoak, Chapter 13 ).

The distinction between easy cases and hard cases is widely discussed in the legal literature. In an easy case, a single and plainly applicable rule gives unambiguous guidance and, as applied to the situation at hand, appears to give the right result. Suppose a law says: “If someone does A, then he gets consequence B.” Richard comes along, blatantly does A, and then gets consequence B. Rule followed; justice done; everyone (except Richard) is happy. But what we illustrate next is that not all rules are so simple, nor can they be so simply and rewardingly applied. Several types of difficulties can arise, making the application of the rules uncertain or, perhaps, undesirable. What are those difficulties that create hard cases and how do judges resolve them? It depends whether you ask a traditionalist or a Realist.

Defining Hard Cases

There are three kinds of hard cases: ones in which the language of an applicable rule is unclear; ones in which it is unclear which of several rules apply; and ones in which the language of a plainly applicable rule is clear but produces what the interpreter, applier, decision maker, or enforcer of the rule believes is the wrong outcome.

Unclear Rules

Legal rules often do not give a clear answer. A famous example in the legal literature involves a hypothetical rule prohibiting vehicles in a public park (Hart, 1958 ; Schauer 2008 a). When the question is whether that rule prohibits ordinary cars and trucks, the application of the rule is straightforward. Cars are widely understood to be vehicles, vehicles are prohibited according to the rule, and therefore cars, including this car, are prohibited. That people can and sometimes do reason in such a deductive or syllogistic way when they are given clear rules and presented with clear instances of application is well established (Evans, Barston, & Pollard, 1983 ; Rips 2001 ).

But what about bicycles, baby carriages, wheelchairs, and skateboards, none of which are either clearly vehicles or clearly not vehicles? Faced with such an instance, what would a judge do? One standard view is that the judge would then have discretion to decide the issue as she thought best. Perhaps the judge would try to determine the purpose behind the rule, or perhaps she would try to imagine what the original maker of the rule would have thought should be done in such a case. But whatever the exact nature of the inquiry, the basic idea is that the judge would struggle to determine what the unclear rule really means in this situation and would then decide the case accordingly.

The view that judges are searching for guidance from even unclear rules is part of the standard ideology of the lawyers and judges. But that view may be at odds with psychological reality. Freed from the strong constraints of a plainly applicable rule, the research on motivated reasoning suggests that the judge would be likely to decide how, on the basis of a wide range of political, ideological, personal, and contextual factors, she believes the case ought to come out (Braman, 2010 ). Having come to that conclusion, a conclusion not substantially dependent on the legal rule at all, the judge would then describe that result as being the one most consistent with the purpose behind the rule. And if the judge then looked for evidence of the purpose behind the rule, or evidence of what the rule maker intended in making the rule, much of what we know about confirmation bias (Nickerson, 1998 ) would suggest that the judge would not engage in the search for purpose or intent with an entirely open mind, but rather would be likely to find the evidence of purpose or intent that supported the outcome the judge had initially preferred.

The latter and more skeptical explanation is entirely consistent with the Legal Realist view about rules. In 1929 Joseph Hutcheson, a Texas-based federal judge, wrote an influential article (Hutcheson, 1929 ) challenging the traditional picture of legal reasoning. He claimed that it is a mistake to suppose that in the typical case that winds up in court the judge would first look to the text of the rule, the purpose behind the rule, the evidence of legislative intent, and the like in order to decide the case. Rather, Hutcheson argued, the judge would initially, and based largely on the particular facts of the case rather than the law, come up with an initial “hunch” about how the case ought to be decided. Then, and only then, would the judge seek to find a rule to support that result or seek to interpret a fuzzy rule in such a way as to justify that result. Subsequent Realists (e.g., Frank, 1930 ) reinforced this theme, albeit rarely with systematic empirical research.

Thus, the debate between traditional and Legal Realist view about rule following might also be cast in the language of the contemporary research on dual-process methods of thinking (Evans, 2003 , 2008 ; Sloman 1996 ; see Evans, Chapter 8 ; Stanovich, Chapter 22 ). 2 System 1 reasoning is quick and intuitive, whereas System 2 reasoning is more logical, systematic, and deliberative (Stanovich, 1999 ), and the traditional view of legal reasoning relies heavily on a System 2 model of decision making. The Realist perspective, as exemplified by Hutcheson's reference to a “hunch,” sees even judicial reasoning as having heavy doses of quick, intuitive, and perhaps heuristic System 1 decision making. (These are sometimes viewed as two separate reasoning systems and sometimes as the ends of a reasoning continuum.) The question remains as to which method of decision making more accurately reflects the reality of judging. Several legal scholars have suggested that judges, just like ordinary people, often come quickly to an intuitive decision but then sometimes override that decision with deliberation. They state, “The intuitive system appears to have a powerful effect on judges' decision making” (Guthrie, Rachlinski, & Wistrich, 2007 , p. 43) and then suggest various ways in which the legal system should increase the likelihood that judges will use System 2 reasoning in deciding cases. Note, however, that when the systems are in opposition it is not always the case that the intuitive system is wrong and the deliberative system is right; it can also turn out the other way (Evans, 2008 ).

When Rules Proliferate

The second type of hard cases consists of those to which multiple but inconsistent clear rules apply. Is a truck excluded from the park by the “no vehicles in the park” rule, or is it permitted by another rule authorizing trucks to make deliveries wherever necessary? Such instances of multiple and inconsistent rules make the Realist challenge to the conventional picture especially compelling in a legal system in which many rules might plausibly apply to one event. In countries with civil law systems, 3 legislatures attempt to enact explicit and clear legal rules covering all conceivable situations and disputes. Such rules are collected in a comprehensive code; therefore, the existence of multiple and inconsistent rules applying to the same event is, at least in theory, rare. Even the outcome-motivated judge might well find that the law plainly did not support the preferred outcome, and that would almost certainly be the end of the matter.

The situation is different in English-origin common-law countries, 4 where much of the law is made by judges in the process of deciding particular cases. Law making in common-law systems is less systematic than in civil law countries, and common-law judges and legislatures are less concerned than their civil law counterparts with ensuring that new rules fit neatly with all of the existing legal rules. As a result, it is especially in common-law countries that multiple and inconsistent rules may apply to the same event, allowing for more decisions that seem to be based on motivated reasoning. Moreover, even when a judge does not have a preferred outcome, when there are multiple potentially applicable rules, the judge's background and training, among other things, will influence which rules are retrieved and which are ignored (Spellman, 2010 ). In addition, if judges, like other people, seek coherence and consistency in their thinking, they may select legal rules and sources that are consistent with the others they have retrieved and ignore those that would make coherence more difficult (Holyoak & Simon, 1999 ; Simon, Pham, Le, & Holyoak, 2001 ).

When Rules Give the Wrong Answer

Although there can be problems with vague rules and multiple rules, as described earlier, typically the words of a plainly applicable rule, conventionally interpreted, do indicate an outcome, just as the “no vehicles in the park” rule indicates an outcome in a case involving a standard car or truck. But leading to an obvious outcome is not the end of the story. Because rules are generalizations drafted in advance of specific applications (Schauer, 1991 ), there is the possibility, as with any generalization, that the rule, if strictly or literally followed, will produce what appears to be a bad result in a specific situation. In Riggs v. Palmer ( 1889 ), for example, a case decided by the New York Court of Appeals, the pertinent statute provided clearly, and without relevant exception, that anyone named in a will could claim his inheritance upon the death of the testator (i.e., the person who wrote the will). The problem in Riggs , however, was that the testator died because his grandson, the beneficiary, had poisoned him, and did so precisely and intentionally in order to claim his inheritance as soon as possible. Thus, the question in Riggs was whether a beneficiary who murdered the testator could inherit from him. More generally, the question was whether the justice or equity or fairness of the situation should prevail over the literal wording of the rule.

Cases like Riggs are legion, and the issues they present raise important issues about the nature of law and legal decisions (Dworkin, 1986 ). But they also implicate equally important psychological questions. When a rule points in one direction and the all-things-considered right answer points in another, under what conditions, and how often, will people—be they legally trained or not—put aside their best moral or pragmatic judgment in favor of what the rule commands?

If the traditional story is sound, we would expect those with legal training to attach greater value to the very fact of the existence of a legal rule, and thus to prefer the legally generated but morally or pragmatically wrong result more often than those without such training. It turns out, however, that very little research has addressed precisely this question. On the one hand, research has found that law students (Furgeson, Babcock, & Shane, 2008 b) and federal law clerks (recent law school graduates) working for federal judges (Furgeson, Babcock, & Shane, 2008 a) are affected by their policy preferences in drawing conclusions about the law. On the other hand, there are data indicating that judges are better able to put aside their ideologies than law students in evaluating evidence (Redding & Reppucci, 1999 ). Most relevantly, legally trained experimental subjects tend to prefer formal rules of justice more often than those without legal training (Schweitzer et al., 2008 ). Still, the research can best be described as limited, presumably owing to the difficulties in securing judges and lawyers as experimental subjects. And, of course, any study finding differences between groups along the law-training continuum (laypeople, law students, law clerks, lawyers, judges) must consider not only legal training and experience but also selection and self-selection effects (e.g., who chooses to go into law; who is chosen to become a judge) when drawing causal conclusions.

Deciding Hard Cases

It is important to understand the types of difficulties generated by hard cases because litigation, and especially litigation at the appellate stage, is disproportionately about hard cases. Easy cases are plentiful, at least if we understand “cases” to refer to all disputes or even all instances of application of the law (Schauer, 1985 ). But if the law is clear and if the clear law produces a plausible or palatable outcome, few people would take the case to court in the first place. Only where two opposing parties each believe they have a reasonable chance of winning will the dispute actually arrive in court, and also, to an even greater extent, when disputants decide whether to appeal. As a result of this legal selection effect (Lederman, 1999 ; Priest & Klein, 1984 ), the disputes that produce litigation and judicial opinions will disproportionately represent hard cases, with the easy cases—the straightforward application of clear law—not arriving in court at all.

This selection effect is greatest with respect to decisions by the Supreme Court of the United States, which can choose the cases it will hear. It is asked to formally decide about 9,000 cases per year but considers only about 70 per year with full written and oral arguments. And with respect to these 70 cases, the existing research, mostly by empirical political scientists, supports the conclusion that the political attitudes of the Justices—how they feel about abortion and affirmative action, for example, as a policy matter—is a far better predictor of how they will vote than is the formal law (Segal & Spaeth, 2004 ). This research is not experimental; rather, it involves coding Justices on a variety of attributes and coding cases on a variety of attributes and then analyzing what predicts what. For example, Justices are coded on such things as age (at the time of the decision), gender, race, residence, political party at the time of nomination; cases are coded on such things as topic, types of litigants, and the applicability of various precedents and legal rules. The conclusion of much of this research is that we can better predict legal outcomes, at least in the Supreme Court and to some extent in other appellate courts, if we know a judge's prelegal policy preferences than if we understand the applicable rules and precedents. To the extent that this research is sound, therefore, it may support the view that the Supreme Court, ironically to some, is the last place we should look to find distinctively legal reasoning (but see Shapiro, 2009 , for a critique of these analyses).

Categorization

Questions about rule following obviously implicate important issues of categorization. Do we categorize a skateboard as a vehicle or as a toy? Do we categorize Elmer Palmer, the young man who murdered his grandfather in order to accelerate his inheritance, as a murderer, as a beneficiary, or possibly even as both?

Because legal outcomes are determined by something preexisting called “the law,” those outcomes require placing any new event within an existing category. When the category is specified by a written rule with a clear semantic meaning for the pertinent application, as with the category “vehicle” when applied to standard automobiles in the “no vehicles in the park” rule, the freedom of the decision maker is limited by the plausible extensions of the specified category. Often, however, there is no such clear written rule that is literally applicable to the case at hand, sometimes because the rule is vague (consider the Constitution's requirement that states grant “equal protection of the laws” and the constitutional prohibition on “cruel and unusual punishments”), sometimes because a case arises within the vague penumbra of a rule (as with the skateboard case under the “no vehicles in the park” rule), and often because in common-law systems the relevant law is not contained in a rule with a fixed verbal formulation but instead is in the body of previous judicial decisions. In such cases the task of categorization is more open ended, and decision makers must make less constrained judgments of similarity and difference in order to determine which existing legal category best fits with a new instance.

Legal Categories

The view that legal reasoning and legal expertise is a matter of using and understanding the categories of the law rather than the categories of the prelegal world is one whose iconic expression comes from an apocryphal anecdote created by Oliver Wendell Holmes:

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, 1897 , pp. 474–475)

The point of the anecdote derives from the fact that a justice of the peace would have been a lay decider of minor controversies, not a real judge with legal training and legal expertise. And thus Holmes can be understood as claiming that only an untrained bumpkin could have imagined that “churn” was the relevant legal category. That this is Holmes's point is made clear shortly thereafter, when he says that

[a]pplications of rudimentary rules of contract or tort are tucked away under the heads of Railroads or Telegraphs or … Shipping …, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. (Holmes, 1897 , p. 475)

For Holmes, “railroad” and “telegraph” are lay categories, and “contract” and “tort” are legal categories, and one mark of legal expertise and legal reasoning is the ability to use legal rather than lay categories. This is still not a very strong claim about the distinctiveness of legal reasoning, for the difference that Holmes identifies is one of content and not of process. The lawyer does not think or reason differently from the layman, Holmes might be understood as saying, but thinks and reasons the same way, albeit with different categories and thus with different content (Spellman, 2010 ). If legal reasoning does not involve substantially different processes from ordinary reasoning, the strongest claims of the traditional view of legal reasoning are weakened. But if legal reasoning employs the distinctive categories and content of the law, and if these categories in fact determine many legal outcomes, the strongest claims of Legal Realism are weakened as well. By applying substantially (even if not completely) ordinary reasoning to substantially (even if not completely) law-created content and categories, legal reasoning may turn out to have its own special characteristics, but not in ways that either the traditionalists or the Realists maintained.

Relational Categories

We believe that the categories that the law uses tend to be relational categories—categories created on the basis of the relations that one item has with another, rather than on the basis of the attributes of single items taken in isolation (i.e., involving predicates that take at least two objects). That law is principally concerned with the way in which one person or thing is connected or related to another should not be surprising. After all, the law is about regulating interactions and exchanges among people—that is, relations. Take the category of “contract.” Suppose someone wants to know whether Judy and Jerry have entered into a contract. Nearly all personal details about Judy and Jerry are irrelevant, as are nearly all details about what they have contracted for. What is relevant is whether Jerry owned the property, whether Judy made what the law defines as an offer, and whether Jerry responded with what the law defines as acceptance. Similarly, suppose that Beth has done something to Brian. Whether that “something” is being hit, libeled, or kidnapped, it is again typically the relation of what one did to the other that matters. And so too with the questions involved in a finding of negligence: Did John harm James? Did John have a duty of care toward James? Again, relations are key. Note that sometimes it does matter whether the person is under 18 (and so can't sign a contract) or over 35 (and so is eligible to be President of the United States). And sometimes it matters whether a person is male or female, Black or White, famous or nonfamous. But most of the time it is only the relations between the parties that matter. Indeed, the traditional contrast between the “rule of law” and the “rule of men” [sic] stresses the impersonality of the law, and thus its emphasis on the relational “what” rather than the personal “who.”

Despite the large psychology literature on categorization, there has been relatively little work on relational categories (see Gentner & Kurtz, 2005 ). However, we do know that just like category members from standard categories prime other category members, category members from relational categories prime other category members (e.g., “bird-nest” primes “bear-cave” by activating the relation “lives-in;” Spellman, Holyoak, & Morrison, 2001 ). We also know that relations are generally more important than attributes for analogical reasoning. Thus, when someone is trained on which relations exist and matter, analogical reminding can be useful for retrieving analogies that can help make a legal argument. How analogy is used in legal reasoning is the topic of the next section.

Precedent and Analogy

In common-law systems much of the law is not to be found in the explicitly written rules enacted by legislatures or adopted by administrative agencies, but in the decisions of judges. And because when judges reach decisions and thus make law they are expected to take account of previous decisions—precedents—the interpretation of precedents is an important part of common-law decision making. In common-law systems, and increasingly in civil law systems, law develops incrementally as decisions in particular cases build on previous decisions. Understanding how to use previous decisions to make an argument or decision in the current dispute is consequently a substantial component of legal reasoning. Previous decisions play a large role in legal reasoning, but they do so in two very different ways (Schauer, 2008 c).

“Vertical” Precedent

First, and possibly of less significance in hard cases, is the obligation of a judge to follow the decision of a higher controlling court (hence “vertical”) even if she disagrees with that decision. This is the strong form of constraint by precedent, and it resembles the constraints of an explicitly written rule. When there is a previous decision on the same question (just as when there is an explicit rule plainly covering some application), the law tells the judge what her decision should be. Consider, for example, the obligations of judges with respect to the Supreme Court's decision in Miranda v. Arizona ( 1966 ), the case in which the Court required police officers to advise a suspect in custody of his rights to remain silent and have a lawyer prior to questioning. Miranda was controversial when it was decided and has remained controversial since. Many citizens, police officers, and even judges believe that Miranda was a mistaken decision. Nevertheless, a judge in a court below the Supreme Court is not permitted to substitute her judgment for that of the higher court. If the question arises in a lower court as to whether the statements of a suspect who was not advised of his rights can be used against him, the lower court judge who thinks that the answer to this question ought to be “yes” is obliged by the Supreme Court's decision in Miranda to answer “no.” Obviously there will be difficult cases in which it is not clear whether the defendant was in custody, or whether he was being interrogated, or whether he waived his Miranda rights. 5 In such hard cases a judge's views about Miranda's wisdom will likely influence her decisions about the application of the precedent. But in the easy cases—the cases that present the same question that the Supreme Court decided in Miranda —the lower court judge is obliged by the system to decide the question as it has already been decided even if, without the constraint of precedent, she would have reached a different decision.

“Horizontal” Precedent

The constraint of precedent, at least in theory, applies horizontally as well as vertically. That is, judges are obliged to follow previous decisions of their own court even if, again, they disagree with those decisions. In theory, a Supreme Court Justice who in 2010 disagrees with the Court's 1973 decision in Roe v. Wade ( 1973 ) is obliged by what is known as the doctrine of stare decisis —“stand by what is decided”—to follow that decision. At least with respect to the Supreme Court, however, the data indicate that the constraint of stare decisis is a weak one, having little force in explaining the votes of the Justices (Brenner & Spaeth, 1995 ; Schauer 2008 b; Segal & Spaeth, 1996 ). Unlike the obligation to follow the ruling of a higher court, which is largely respected when the decision of the higher court is clear, the obligation to follow an earlier decision of the same court appears to be perceived by judges as weak.

The obligation of a judge to follow a precedent that is exactly “on point” is an important aspect of legal reasoning and the self-understanding of the legal system, but its effect is rarely seen in appellate courts. When it is clear that some dispute is the same as that which has already been decided, the dispute will usually be resolved prior to reaching the appellate court. The cases that do end up being decided on appeal, again by virtue of the selection effect, are overwhelmingly ones in which past decisions do not obviously control the current dispute but exert their influence in a less direct way. Because the idea of following precedent so pervades the legal consciousness, drawing on and arguing from past decisions even when they are not directly controlling is a ubiquitous feature of legal reasoning, argument, and decision making.

The Role of Analogical Reasoning

Using previous decisions that are not exactly like the current question in order to guide, persuade, and justify is a process that is heavily dependent on, or perhaps identical to, analogical reasoning (Spellman, 2004 ). Understanding the legal system's use of analogical reasoning is accordingly vitally important for understanding the methods of legal reasoning and argument. Consider, for example, the decision of the New York Court of Appeals in Adams v. New Jersey Steamboat Company ( 1896 ), a case frequently discussed in the literature on analogical reasoning in law (e.g., Spellman, 2010 ; Weinreb 2005 ). The case concerned the degree of responsibility of the owner of a steamboat that contained sleeping quarters to an overnight passenger whose money had been stolen when, allegedly because of the company's negligence, a burglar broke into the passenger's stateroom. No existing legal rule controlled the case, and no previous decision had raised or decided the same question. And it turned out that two different bodies of law—two different lines of precedent—were each potentially applicable. If the law pertaining to the open sleeping compartments (“berths”) in railroad cars applied, the steamboat company would not be liable to the passenger. But if the law about innkeepers' responsibility to their guests was applicable, then the passenger could recover.

The Adams case presents a classic case of analogical reasoning in law. Although some prominent skeptics about analogical reasoning argue that judges, like the judges in Adams , simply make a policy-based choice of a general rule (Greenawalt, 1992 , p. 200) and mask it in the language of similarity (Alexander, 1996 , ; Posner 2006 ), such an approach is inconsistent with what we know about analogical reasoning. Applying the research on analogy to the Adams case, we can understand how each side was trying to get the judges to apply a different well-understood source—either the law of innkeepers or the law of railroads—to a less well-understood target—a stateroom on a steamboat.

So is a steamboat more similar to an inn or to a train? We suspect that most people would answer “train,” but that is not the relevant question. How about: Is the stateroom on a steamboat more similar to a room at an inn or to a sleeping berth on a railroad? That is a tougher question, and one might be tempted to ask (as one should when dealing with categorization generally; see Chapter 10 ), “Similar with respect to what?” Here the answer might be, “With respect to how much the plaintiff had the right to expect security of his possessions while he slept.” Given the situations—that one can lock one's room at the inn and one's stateroom on the steamboat but not one's berth on the train; given that the room at the inn and the stateroom are more private than the sleeping berth on the train; and, perhaps, given that one paid extra for a room and a stateroom (the court's decision did not include many details)—it is easy to argue that the steamboat and inn are similar in that the owner gives the traveler an implied guarantee that he and his possessions will be safe while sleeping.

In fact, the court applied the law of innkeepers rather than the law of railroads, and such a decision might be explained in terms of a distinction between surface and relational similarities (Holyoak & Koh, 1987 ). The successful analogy—between the steamboat and the inn—was not the one in which the objects were similar, but rather the one in which the legal relations between the relevant parties were similar. Developing expertise in law, which we assume the judges possessed, means seeing through the surface similarities and understanding which relational similarities matter. 6 Note that in saying that the relevant legal category in Adams was a category that connects inns and steamboat accommodations (the category of those who offer sleeping accommodations, perhaps) rather than one that connects steamboats and railroads (means of transportation), the court based its categorization decision on a legal rather than a lay category.

Is this kind of reasoning substantially different between those who are legally trained and those who are not? Consider an experiment that compared law students to undergraduates (Braman & Nelson, 2007 , Exp. 2). The subjects (96 undergraduates and 77 law students) read an article summarizing the facts of a target case, but they did not know the result, and they also read one version of a potentially relevant previously decided case—which varied between subjects on two factors of possible legal relevance. The undergraduates rated the precedent as more similar to the target case than did the law students. The law students perceived similarity and difference between the cases in light of legal and not lay categories. Although the determination of similarity and difference is likely to be domain dependent (Medin, Lynch, & Solomon, 2000 ), it does not follow from the fact that particular similarities that are important in one domain are unimportant in another that the very process of determining similarity varies according to domain. Thus, although there may be differences between legal reasoners and ordinary reasoners, the differences, insofar as they are a function of knowledge attained in legal training and practice, may be better characterized as content based rather than process based.

Possession of legal knowledge may thus explain the difference between legally trained and non–legally trained reasoners. But given that most judges are legally trained, and given that both sides present the potentially relevant cases supporting their sides to the judges, why are there disputes over the appropriate analogy to use? The Realists would say that the judges have a desired outcome and then pick the appropriate analogies to justify their decisions. But perhaps people (and judges) choose relevant analogies (or precedents) as better or worse, applicable or inapplicable, not because of any particular desired outcome but rather because of their own preexisting knowledge and the way they frame their questions (Spellman, 2010 ; Spellman & Holyoak, 1992 , 1996 ).

Fact Finding

As described earlier, an important type of decision making in legal proceedings is “fact finding” and most of the factual determinations in legal proceedings are made by judges. Many of these determinations are made in the course of preliminary proceedings and many are made in trials in which there is no jury. Yet although fact finding is done far more often by judges than by juries, most of the research about fact finding has been done on juries. One reason may be that juries feature prominently in television and movie trials, and as a result researchers may believe they are more prevalent in nontheatrical legal proceedings than they really are (Spellman, 2006 ). Another reason might be that lay jurors are far more likely to resemble the typical experimental subjects used by psychology researchers. Using findings based on experiments with university undergraduates to draw conclusions about the decision-making practices of judges may involve significant problems of external validity, but the greater similarity between lay undergraduates and lay jurors significantly lessens these problems (Bornstein, 1999 ).

Fact Finding by Juries

Perhaps the most important dimension of jury fact finding is the way in which the information that juries receive is carefully controlled by the law of evidence. Evidence law is based on the assumption that jurors will overvalue or otherwise misuse various items of admittedly relevant information, and the rules of evidence thus exclude some relevant evidence because of a distrust of the reasoning capacities of ordinary people. There is a general rule of evidence (FRE 403) that a judge may exclude relevant evidence “if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury … ” More specifically, for example, the information that the defendant in a robbery case has committed robbery in the past is typically excluded from jury consideration, even though a rational decision maker would recognize that such evidence, even if hardly conclusive, is far from irrelevant. 7 Similarly, the exclusion of hearsay evidence—evidence of what someone else (who is not now testifying) said was true, rather than what a witness perceived as true—is based on the notion that juries will give too much weight to what was said by a person who is not appearing in court. Yet this fear entails excluding from consideration evidence that ordinary decision makers would consider relevant to the decision to be made. In ordinary life, people rely frequently on hearsay to inform themselves about what happened and often make judgments about ambiguous or unknown current behavior based on past behavior. The fact that the law of evidence excludes so much of what figures prominently in everyday reasoning is accordingly perhaps the most important feature of evidence law.

When jurors are the fact finders, they may receive two types of instructions from the trial judge. The first are immediate instructions during the trial: to forget information they have heard or to use some information for one purpose but not for an (obvious) other one. For example, a witness might blurt out that he knew the defendant because they had been in prison for robbery at the same time. If the defense lawyer objects and makes a motion to strike, and the judge sustains, she will immediately instruct the jury to disregard that evidence. There is much data supporting the conclusion that jurors typically do not disregard such evidence (Steblay et al., 2006 ). The jury is still out, however, on the question of whether it is that jurors cannot disregard or choose not to disregard. There is strong evidence that under some conditions the failure is intentional (e.g., Sommers & Kassin, 2001 ), but it is likely that under other conditions jurors are simply unable to disregard what they already know.

The second type of instructions comes just before jurors deliberate: They are instructed about both the content of the law specific to the case at hand and about general procedures they should use to decide the case. The latter include the mandate that they decide the case in accordance with the instructed law, and not on the basis of what they think is the right result. Thus, an important question, one about which there has been considerable research, is the extent to which jurors actually understand judge's instructions (see Diamond & Rose, 2005 , and Ogloff & Rose, 2005 , for reviews).

Although considerable recent efforts have aimed at making instructions more comprehensible, the research suggests that jurors typically do not understand very much of the judge's instructions, including specific instructions about elements of the crime and general instructions about the burden of proof (Ogloff & Rose, 2005 ). Some of this gap between instructions given and instructions comprehended may be a function of the fact that judges are more concerned with legal accuracy in language of the instruction (so the case will not be overturned on appeal) than they are with maximum comprehension by the jury. But much of the gap may follow from the difficulty that experts in general have of understanding the perspective of nonexperts in their own field.

Although jurors often do not understand the judge's instructions, that does not imply that they will deliver an erroneous verdict. It turns out that juries tend to deliver the correct verdict, at least where the measure of correctness is what the judge would have decided were there no jury. Various studies over the years, using different methodologies, have shown that a judge's and jury's decisions about the same cases are typically in accord (see Diamond & Rose, 2005 ). However, each one of these studies has at least one serious methodological flaw. Still, overall, it seems that even though jurors may not appreciate the nuances of the applicable law, they are reliable in getting a general sense of who ought to prevail. (As far as we can tell, none of the research has focused explicitly on the decisions of jurors who do not understand the instructions in cases in which the justice of the situation and the law point in opposite directions, and thus it would be a mistake to assume that juror incomprehension of judicial instructions is largely inconsequential.)

That jurors who at best imperfectly understand the judge's instructions nevertheless reliably reach the correct verdict is related to what we know about how juries determine what happened. Much of the structure of a trial and much of the law of evidence is premised on an incremental and Bayesian model of fact finding, in which jurors with prior beliefs about some state of affairs adjust the probability of those beliefs upward or downward as additional pieces of evidence are presented (see Griffiths, Tenenbaum, & Kemp, Chapter 3 , for a discussion of Bayesian inference and Hahn & Oaksford, Chapter 15 , for applications to the jury decision making). This is a plausible model of how information is received and processed at trial, yet it is not a model that appears to track the reality of juror decision making.

The prevailing psychological model of juror decision making is the Story Model (Pennington & Hastie, 1991 ), which suggests that juror decision making is more holistic than incremental. The Story Model proposes that jurors evaluate the evidence based on which story (i.e., prosecution, defense, or some other) best explains all or almost all of the evidence they have heard, as opposed to making a preliminary determination on the basis of some evidence and then continually revising that determination as additional pieces of evidence are presented. In seeking the story that best explains the evidence they have heard, therefore, jurors' reasoning is largely devoted to determining which of the two (or more) competing stories at a trial is more coherent and complete. Indeed, another holistic model of reasoning, Explanatory Coherence (Thagard, 1989 ), has been applied to reasoning about legal cases (Simon et al, 2001 ; Thagard 2003 ), scientific reasoning, and other types of reasoning (Thagard, 2006 ; Chapter 14 ). Thus, that these models explain ordinary reasoning as well as jury decision making provides still further support for the view that legal decision making, whether by judge or by jury, is less different from ordinary decision making than lawyers and judges have long believed.

Note, however, that the aforementioned describes the prevailing model of juror , not jury , decision making. Often left out of studies of legal decision making is the fact that jurors, always, and judges, often (on appeal but not at trial), make their final decisions as a group. Research on group decision making is thus very relevant to legal decision making (see Salerno & Diamond, 2010 ).

Fact Finding by Judges

The law of evidence provides an interesting window into the legal system's traditional belief in the superior and distinctive reasoning powers of those with legal training. In countries that do not use juries there is rarely a discrete body of evidence law, and judges are comparatively free to take all relevant information into account. And in the United States, when judges sit without juries, they often tell the lawyers that many of the rules of evidence will be disregarded or interpreted loosely to allow more evidence to be considered than would be allowed were there a jury (Schauer, 2006 ). Underlying this practice is the belief that only those with legal training can be trusted to evaluate evidence properly (Mitchell, 2003 ; Robbennolt 2005 ), but it turns out that underlying this belief is more unsupported faith than actual data (Spellman, 2006 ).

Should we expect judges to be better at fact finding than juries? There are many differences between jurors and judges (as we discuss in the next section), but there is certainly nothing about law school training that seems likely to affect this type of reasoning: It is not at all like what Professor Kingsfield had in mind with his version of training in the Socratic method whereby he would press students with question after question about the meaning and implications of the decision in a case. Perhaps, however, either judges' repeated experience listening to cases (versus jurors doing it rarely) or their desire to do the right thing in following the law (where jurors might not take that mandate as seriously) would make judges better. In terms of repeated experience, because there never is real feedback regarding what the true facts of a case were, it is doubtful that practice makes one better. And in terms of wanting to follow the law, there is research supporting the view that judges are barely better than laypeople at ignoring information they are supposed to disregard (Wistrich, Guthrie, & Rachlinski, 2005 ). Thus, the data that exist about judicial fact finding support the conclusion that, when acting as fact finders and not as legal interpreters, judges are less different from lay jurors than many people—and many judges—commonly believe (Robinson & Spellman, 2005 ).

Judges' Expertise and the Authority of Law

There is, as we have emphasized, a running debate between the traditional and Legal Realist accounts of legal reasoning, and one way of framing the question of the distinctiveness of legal reasoning is in terms of the traditional claim that lawyers and judges are experts. That was clearly Kingsfield's claim, for example, but it leaves open the question of what kind of experts lawyers and judges might be. More particularly, is it possible that there are at least some process-based differences between legal and lay reasoning? Consider again the task of analogical reasoning in law. Perhaps lawyers and judges simply become better analogical reasoners by virtue of their legal training and experience. Perhaps judges, and to some extent lawyers, are experts at analogical reasoning in ways that laypeople are not.

Judges (and typically lawyers) differ from nonjudges and nonlawyers on a variety of dimensions (see Stanovich, Chapter 22 ). On average, they have higher IQs than, say, jurors. They have more formal schooling. They may differ on some personality variables. They have chosen to go into, and stay in, the legal field. They are repeat players—doing the same thing time after time. And, as a result, they are likely motivated to “get it right,” or at least not to “get it badly wrong,” because their decisions become public and their reputations and even their jobs could be at stake. They also have their years of law school training. There is research showing that judges fall prey to the same standard reasoning biases as other mortals (e.g., anchoring, hindsight bias, etc., even when the problems are framed in a judicial context; Guthrie, Rachlinski, & Wistrich, 2001 ). But the research has focused on tasks other than those that are characteristically legal tasks. Maybe what Kingsfield was driving at was the notion that law students can be trained to be better at the central reasoning tasks that engage lawyers and judges.

Expertise and Analogy

That lawyers and judges are better at analogical reasoning than laypeople seems like a plausible claim, but it is not borne out by the research. Just as there are no data to support the belief that judges are expert fact finders (Robinson & Spellman, 2005 ) or experts at weighing evidence (Spellman, 2006 ), there are no data to support that judges' ability to use analogies transcends the domains in which they normally operate. And if they are not experts at using analogies outside of the law, then the expertise they have is an expertise that comes from their legal knowledge and not from any increased ability in analogical reasoning itself. Thus, when law students in their first and third years of law school were compared to medical students and graduate students in chemistry and psychology (Lehman, Lempert, & Nisbett, 1988 ), the law students had initially higher scores on a verbal reasoning test (which included verbal analogies) than the others, presumably partly a function of self-selection and partly of the selection criteria of law schools. After 3 years of schooling, however, the law students showed only a statistically nonsignificant increase in verbal reasoning while the others improved to a greater extent. If these findings are generalizable, they might be thought to provide further support for the view that legal reasoning expertise, if it exists, is a content-based and not process-based expertise.

Expertise and Authority

But as described earlier, particularly in the sections on rules that give the wrong answer and on precedent, there is more to legal reasoning than using analogies. Understanding the traditional view of legal reasoning, and even the nature of law itself, requires appreciating the role that authority plays in legal decision making. Just as citizens are expected to obey the law even when they think it mistaken, so too are lawyers and judges expected to follow the legal rules and legal precedents even when they disagree with them. In this sense the law is genuinely authoritative; its force derives from its source or status rather than from its content (Hart, 1982 ). Just as the exasperated parent who, having failed to reason successfully with her child, asserts, “Because I said so!” law's force derives from the fact that the law says it rather than the intrinsic value of the content of what the law is saying.

The nature and power of authority has been the subject of psychological research, primarily by social psychologists, but the effect of an authority, even an impersonal authority like the law, also has cognitive dimensions. For example, authoritative sources may provide arguments and reasons that the decision maker would not otherwise have thought valid and relevant. On the other hand, sometimes an authoritative legal source will tell a decision maker to ignore what she thinks is a relevant fact (Raz, 1979 ), and sometimes it will tell a decision maker to consider what she thinks is an irrelevant fact. As an example of the former: The relevant Supreme Court free speech cases make irrelevant the fact that a speaker is a member of the American Nazi Party or the Ku Klux Klan and wishes to publicly espouse Nazi or racist sentiments. The law not only demands that these factors be disregarded, but it also demands that they be disregarded even by a decision maker who disagrees with this aspect of the law. As an example of the latter: In determining whether a will is valid, a judge must determine whether the will contains the requisite signatures applied according to various other formalities, absent which the will is invalid even if there is no doubt that it represents the wishes of the deceased. And the judge is obliged to take this into account even if the judge believes it would produce an unjust outcome in this case, and even if the judge believes that the law requiring the formalities is obsolete or otherwise mistaken.

Thus, an important question is the extent to which legal decision makers can suppress their best judgment in favor of an authority with which they disagree. The traditional view of legal reasoning is that decision makers can be trained to do just that, and in fact much of the training in law school is devoted to inculcating just this kind of distinction between obedience to legal authority and taking into account that which otherwise seems morally and decisionally relevant (Schauer, 2009 ). Indeed, because the inherent authority of law often requires a decision maker to ignore what she thinks relevant, and consider what she believes irrelevant, it may be useful to understand part of legal reasoning as not being reasoning at all. It is, to be sure, decision making, but part of legal decision making is the way in which authoritative law makes legal decision makers avoid reasoning and even avoid thinking. For the legal decision maker, just like the legal subject, the authority of law is the mandate to leave the thinking and reasoning to someone else.

Are people willing and able to do that? Research by Schweitzer and colleagues (Schweitzer, Sylvester, & Saks, 2007 ; Schweitzer et al., 2008 ) indicates that law students are more willing than laypeople to follow rules even when the result produced by following a rule conflicts with the just result, suggesting that the difference between legal reasoning and ordinary reasoning may involve some process- and not content-based skills. Yet Schweitzer and colleagues also found no differences between first-year and third-year law students, possibly indicating that the process-based dimensions of legal reasoning are more a matter of self-selection and law school admissions selection than of anything that is actually taught and learned during the study or practice of law. Perhaps, therefore, lawyers and judges are different from laypeople, but those differences may be more a function of knowledge, experience, and self-selection than of actual training in distinctively legal reasoning.

Legal Procedures

In this chapter, and throughout much of the research on legal reasoning, great emphasis has been placed on the legal decision maker. Who makes legal decisions, how might legal decision makers resemble or differ from other decision makers, and what differences, if any, might these similarities and differences make (see LeBoeuf & Shafir, Chapter 16 )? But the law is not only a domain of decision makers with unique abilities, training, and experience, it is also a domain in which the procedures and structures for making decisions differ from those commonly found elsewhere. Controlling for differences in decision maker characteristics, therefore, might decision-making procedures by themselves produce important differences in the thinking and reasoning of those who are making the decisions?

The structural and procedural differences of the legal decision are manifested in numerous ways. Consider, for example, the all-or-nothing nature of much of legal decision making. Legal decisions are typically binary, with the parties winning or losing, and with legal rules or precedents being applicable or not. Probabilistic determinations are the exception and not the norm in law. A plaintiff who suffers $100,000 damages and proves her civil case to a 60% certainty does not recover $60,000, as expected value decision theory would suggest, but rather the entire $100,000; and if she established the same case with 48% certainty, she would get nothing at all. A defendant who is charged with first-degree murder (which includes a finding of premeditation) cannot be found guilty of manslaughter (which does not) if he was not charged with manslaughter but the jury thinks he indeed killed the victim without the requisite intent. 8

Similarly, it is rare for a judge to say that a rule or precedent is almost applicable or partly applicable, and even rarer for an uncertain judge, at least explicitly, to split the difference in a legal argument. There has been little research how the all-or-nothing character of legal decision making might create or explain some of the differences between legal and nonlegal decision making.

The binary character of legal decision making is merely one example of the procedural peculiarity of legal decision making, but there are many others. Judges are typically expected to provide written reasons for their decisions, but how does the requirement of formal reason-giving affect the nature of the decision? 9 Conversely, juries are typically prohibited from explaining the reasons behind their decisions, and how might this prohibition influence their decisions? The appellate process commonly produces redundancy in decision making, but how is the decision of an appellate court influenced by the knowledge that the judge below has already reached a decision about the same questions? Finally, and perhaps most obviously, legal procedures are especially adversarial, and it would be valuable to know the extent to which decision makers—whether judges or jurors—think differently in the context of adversarial presentations than they would were the same information and arguments presented to them in a less combative or more open-ended manner. In these and other respects, it may well be that considering legal reasoning solely as a matter of content- or process-based differences (or not) is too simple, and that a psychological account of legal reasoning must be conscious of how these distinctively legal procedures and structures affect the decision makers.

Conclusion and Future Directions

We have noted at various places that most of the research on judicial decision making has been based on assumptions rather than data about the similarity between judges and lay decision makers. There are obvious problems with trying to use judges and even experienced lawyers as experimental subjects. Still, insofar as the central questions of legal reasoning from a psychological perspective are the questions of whether people can be selected (or self-select) for a certain kind of legal reasoning ability, or whether they can be trained for a certain kind of legal reasoning ability, further research on the differences between lawyers, law students, and judges, on the one hand, and laypeople, on the other, remains an essential research task.

A related agenda for research is one that would distinguish the task of fact finding from the task of interpreting, applying, and, at times, making law. The traditional claims for legal reasoning are largely about these latter functions, and thus the evaluation of the traditional claims will need to focus more on the application of rules and precedents than has thus far been the case. Only when such research has been conducted in a systematic way will we will be able to approach an answer to the question of whether Kingsfield was right, or whether he was just the spokesman, as the more extreme of the Legal Realists claimed, for a long-standing but unsupported self-serving ideology of the legal and judicial professions.

In three recent Supreme Court nomination hearings, for example, now-Chief Justice Roberts insisted that Supreme Court Justices were like baseball umpires, simply calling balls and strikes with no interest in the outcome; now-Justice Sotomayor claimed that her past decisions as a judge were based solely on the law and not on her personal views, and that her future decisions would be the same; and now-Justice Kagan, even while acknowledging that Justices must exercise substantial discretion, said that good Supreme Court decisions were still based on “the law all the way down.”

The difference between this formulation of the Realist view and the earlier one is, did the judge first consciously decide what she wanted the outcome to be (e.g., Bush has to win in Bush v. Gore, 2000) and then try to justify it (strong Realism) or did the decision come unbidden, as a “hunch”? This latter version sounds a bit like the Moral Intuitionist version of moral reasoning (Haidt, 2001 ; see Chapter 19 )—in which people make moral judgments from quick intuitions then strive to justify them—but they are different. The Moral Intuitionist view is vague about what intuitions are and how they arise; we believe that intuitions arise from knowledge, and, thus, an experienced judge's intuition about a case will reflect her knowledge of other similar cases. She may arrive at the opinion consistent with her values not because she consciously decided which way to rule, but because her previous knowledge and beliefs gave her a justifiable intuition (Spellman 2010; see Kahneman & Klein, 2009 ).

Civil law countries are those whose legal systems emanate, for example, from the Code of Justinian in Roman times or the Napoleonic Code 2,000 years later.

Common-law countries include the United States, the United Kingdom, and Australia. The type of legal system tends to vary with whether the country has juries, with common-law countries using them more and civil-law countries using them less, but the covariation is not a necessary one.

The key is to argue that these differences make it not the “same” question.

Or, perhaps, because the court believed as a policy matter that they ought to be treated as similar and decided accordingly. Similarity judgments may be guided by pragmatic relevance (Spellman & Holyoak, 1996 ).

The rule keeping out such evidence seems concerned with people making the Fundamental Attribution Error (Ross, 1977 ).

This all-or-none nature of a probabilistic verdict provides the backdrop for pretrial settlements and plea bargains. It also affects how much money a plaintiff might ask for in a civil case and which criminal charges a prosecuting attorney will bring.

It is in vogue to believe that not thinking about a complex decision is best (Dijksterhuis, Bos, Nordgren & van Baaren, 2006 ), but there is concern about those findings (e.g., Payne, Samper, Bettman & Luce, 2008 ; see also McMackin & Slovic, 2000 ).

Adams v. New Jersey Steamboat Company, 45 N.E. 369 (N.Y. 1896 ).

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The Tension between Critical Thinking and Legal Reasoning

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Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure; They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view legal scholarship as lacking common structure. This challenges these assumptions by offering a novel aesthetic perspective on legal writing. We argue that most legal essays are modeled on a narrative device known as “the hero’s journey,” in which a protagonist (the scholar) overcomes a particularly frightening menace (the legal problem), and returns home with the bounty (the legal solution). However, there’s a twist: legal theorists are institutionally conditioned to treat this story suspiciously, looking for false and misleading features, thus (perhaps unconsciously) treating the narrator as unreliable. By exposing these common literary patterns this essay also reveals a unique and as-of-yet unexplored trade-off between two different qualities of legal scholarship: the more unreliable the reader finds the legal article, the greater aesthetic pleasure she derives therefrom. Consequently, many legal articles are, in a way, beautiful failures. That is, unsuccessful attempts to convince their reader in the truth of their thesis that nevertheless resonate with their readers aesthetically. This essay explores these ideas and explains their implications both from a law & literature and a philosophical perspective.

Donald J. Kochan

Journal of Legal Studies Education

Neil Browne

Argumentation

Eileen Scallen

Chicago Kent Law Review

Dana Amirbayeva

The American Journal of Jurisprudence

John Finnis

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5.6: Legal Reasoning and Moral Reasoning

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• Page ID 29613

• Golden West College via NGE Far Press

By employing a healthy skepticism and dosage of reasonable doubt, we can be sure that what we believe has been hard-earned through careful and cautious analysis. In this discussion of moral reasoning, we will learn how to decide what to do. In this sense, moral reasoning is the most practical part of the process. When we reason about morality we build arguments, just like when we reason about anything else. But arguments involving moral propositions have to be constructed in a special way. This is partly to help us avoid the Naturalistic Fallacy. But it is also to help ensure that our arguments about morality are consistent.

Features of Moral Arguments

The main thing that makes an argument about morality distinct from other kinds of arguments is that moral arguments are made of moral statements, at least in part. A moral statement, as you might guess, is a statement about morality: it is a statement that says something about what’s right or wrong, good or evil, just or unjust, virtuous and wicked. Moral statements are not like other propositions: they do not talk about what is the case or not the case. Rather, moral statements talk about what should be the case, or what should not be the case. Look for moral indicator words like ‘should’, ‘ought’, ‘must’, ‘is right’, ‘is wrong’, and the like. And look for the language of character-qualities, like ‘temperance’, ‘prudence’, ‘friendship’, ‘coldness’, ‘generosity’, ‘miserliness’, and so on. Sometimes, sentences written in the imperative voice (i.e. sentences which are commands) are moral statements in which some of the moral indicator words have been left out.

Thus, a sentence like “Share your toys!” could mean, “You should share your toys!” But to be fully logical, it’s necessary to phrase imperative sentences that way in order to fit them into moral arguments, and find out whether they are sound. It’s also easy to fall into the fallacy of equivocation. Words like ‘good’ can have a moral and a non-moral meaning: we don’t use the word ‘goodness’ the same way when we speak of good snow boots, and good people. With that in mind, which of the following are moral statements, and which are not?

• Peter should keep his promise to you.
• Peter did keep his promise to you.
• Human stem cell research is wrong.
• Some people think that human stem cell research is wrong.
• My mother is a good person.
• My mother tries to be a good person.
• This pasta dinner is really good.
• Finish your dinner!
• It’s wrong to cheat on tests.
• Information gathered from terror suspects via torture can’t be trusted.
• Torturing people suspected of terrorism is barbaric and criminal.
• You’ve always been a good friend to me.
• Proper etiquette demands that we treat guests with respect.

As mentioned, moral arguments are made of moral statements. This means that the conclusion is a moral statement, and at least one of the premises is also a moral statement. As we saw in the discussion of deductions, nothing can appear in the conclusion that was not present somehow in at least one of the premises. So, if you have a moral statement for a conclusion, you need a moral statement somewhere in the argument as well. Without one, the argument is an instance of the Naturalistic Fallacy, and it’s unsound. Consider these examples:

(P1) It’s wrong to steal candy from babies.

(P2) Little Sonny-Poo-Poo is a baby.

(C) Therefore, it’s wrong to steal candy from Little Sonny-Poo-Poo.

In this example, P1 is a general claim about moral principles, and P2 is a factual statement. Together, they lead us to the conclusion, which passes a moral judgment about the particular case described in P2. So while it ultimately can be seen as valid, the truth of (P1) requires much further defense.

(P1) Jolts of electricity are very painful.

(P2) Some of the prisoners have been interrogated using electric jolts.

(C) It is wrong to torture people using electric jolts.

In this example, both P1 and P2 are both factual claims. But the conclusion is a moral statement. Since there’s no moral statement among the premises, this argument is unsound. Now there might be an implied, unstated general moral principle which says that it’s wrong to inflict pain on people. And some readers might unconsciously fill in that premise, and declare the argument sound that way. But remember, when examining an argument, the only things you can examine are what’s actually in front of you.

Legal Reasoning 50

Legal reasoning, for our purposes, is actually quite simple. To employ legal reasoning means that within the confines of the legal system, you use the logical methods we have employed to arrive at a conclusion of how to apply the law. So, if you want to figure out whether or not something is legal, you look to the relevant laws, combine them using logic, and you have answer.

However, nothing is always this simple. There are fallacies often committed with legal reasoning of two kinds:

• Whatever is right is legal, and whatever is wrong is illegal.
• Whatever is legal is right, and whatever is illegal is wrong.

You’ll notice that these are all moral claims, and we are not entitled to make these claims. Indeed, we can find examples that disprove each of these (it’s right to steal medicine to save a life but it’s not legal, it’s wrong to cheat on your spouse but it’s not illegal). However, in general, we do like the laws to match up with our moral reasonings. Whenever making any arguments, it’s always important to understand the relevant laws and how they impact (for better or worse) the claims and conclusions you are making.

Handbook of Legal Reasoning and Argumentation

• © 2018
• Giorgio Bongiovanni 0 ,
• Gerald Postema 1 ,
• Antonino Rotolo 2 ,
• Giovanni Sartor   ORCID: https://orcid.org/0000-0003-2210-0398 3 ,
• Chiara Valentini 4 ,
• Douglas Walton 5

Dipartimento di Scienze Giuridiche and CIRSFID, Università di Bologna, Bologna, Italy

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Department of Philosophy, University of North Carolina, Chapel Hill, USA

Cirsfid, università di bologna, bologna, italy, department of law, european university institute, florence, italy, department of law, universitat pompeu fabra, barcelona, spain, university of windsor, centre for research in reasoning, argumentation and rhetoric (crrar), windsor, canada.

• The only work to provide a comprehensive, thematic and systematic account of legal reasoning
• The first work on legal reasoning which systematically discusses it in relation to logics and philosophies of practical reason
• A multidisciplinary focus provides a good balance of formal (logical), philosophical and legal aspects

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Table of contents (24 chapters)

Front matter, basic concepts for legal reasoning, reasons (and reasons in philosophy of law).

Giorgio Bongiovanni

Reasons in Moral Philosophy

• Carla Bagnoli

Legal Reasoning and Argumentation

Douglas Walton

Norms in Action: A Logical Perspective

• Emiliano Lorini

The Goals of Norms

• Cristiano Castelfranchi
• Kenneth Einar Himma

The Authority of Law

• Veronica Rodriguez-Blanco

Kinds of Reasoning and the Law

Deductive and deontic reasoning.

• Antonino Rotolo, Giovanni Sartor

Inductive, Abductive and Probabilistic Reasoning

• Burkhard Schafer, Colin Aitken

Defeasibility in Law

Giovanni Sartor

Analogical Arguments

• Bartosz Brożek

Choosing Ends and Choosing Means: Teleological Reasoning in Law

• Lewis A. Kornhauser

Interactive Decision-Making and Morality

• Wojciech Załuski

Special Kinds of Legal Reasoning

• Evidential Reasoning
• Marcello Di Bello, Bart Verheij
• Basic Concepts of Legal Reasoning
• Case-based Reasoning
• Constitutional Adjunction
• Deductive Reasoning
• Defeasible Reasoning
• Deontic Reasoning
• General Forms of Reasoning
• Individual Rational Choice
• Inductive Reasoning
• Interactive Decision Theory
• Interpretative Arguments
• Legal Analogy
• Legal Philosophy
• Legal Reasoning
• Legal Theory
• Reasoning and Argumentation
• Reasoning and the Law
• Reasoning by Analogy
• Teleological Reasoning

About this book

This handbook addresses legal reasoning and argumentation from a logical, philosophical and legal perspective. The main forms of legal reasoning and argumentation are covered in an exhaustive and critical fashion, and are analysed in connection with more general types (and problems) of reasoning. Accordingly, the subject matter of the handbook divides in three parts. The first one introduces and discusses the basic concepts of practical reasoning. The second one discusses the general structures and procedures of reasoning and argumentation that are relevant to legal discourse. The third one looks at their instantiations and developments of these aspects of argumentation as they are put to work in the law, in different areas and applications of legal reasoning.

Editors and Affiliations

Gerald Postema

Antonino Rotolo

Chiara Valentini

About the editors

Bibliographic information.

Book Title : Handbook of Legal Reasoning and Argumentation

Editors : Giorgio Bongiovanni, Gerald Postema, Antonino Rotolo, Giovanni Sartor, Chiara Valentini, Douglas Walton

DOI : https://doi.org/10.1007/978-90-481-9452-0

Publisher : Springer Dordrecht

eBook Packages : Religion and Philosophy , Philosophy and Religion (R0)

Copyright Information : Springer Nature B.V. 2018

Hardcover ISBN : 978-90-481-9451-3 Published: 14 July 2018

Softcover ISBN : 978-94-024-1633-6 Published: 29 December 2018

eBook ISBN : 978-90-481-9452-0 Published: 02 July 2018

Edition Number : 1

Number of Pages : XXIII, 764

Number of Illustrations : 71 b/w illustrations

Topics : Philosophy of Law , Theories of Law, Philosophy of Law, Legal History , Logic

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Critical and Legal Reasoning - LAWS6400

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Module delivery information

This module is not currently running in 2024 to 2025.

Is there anything distinctive about legal reasoning? This question is posed from the perspective of a potential legal practitioner, in particular, an advocate. With that question in mind, the aim of the module is to equip students – as potential advocates, but also in general – with a range of transferrable reasoning skills. In short, seeks to teach transferrable critical thinking skills within a legal context. It is a premise of the module that any competent lawyer, must be able to demonstrate a proficient grounding in reasoning. The module introduces students to different forms of inferential reasoning. It explores the role and limits of inference in legal reasoning and more generally. It considers both logical and psychological factors that may lead to flawed reasoning. The module also touches on various forms of argument of relevance to law including practical, statistical, policy-based argument as well as rhetoric. The aim of argument, including legal reasoning is to persuade. The module will therefore introduce students to the skills of legal persuasion via written and oral advocacy. The theoretical background will provide the basis upon which students will learn, in particular, to understand and construct effective (legal) arguments and to practice the skills learned in a variety of contexts including the drafting of skeleton arguments and in mooting.

Contact hours

Total Study Hours: 150 Total Contact Hours: 20 Private Study Hours: 130

Availability

All undergraduate law programmes – optional module

Method of assessment

Main assessment methods The module will be assessed by 100% coursework, consisting of a combination of: a) A skeleton argument of 1500 words (40%), AND b) A 15-minute oral presentation (a Moot) (60%) including a revised skeleton argument of 500 words. 20% of the oral presentation mark (i.e. 12% of the final overall mark) will be made up of the reworked skeleton argument. Reassessment methods Reassessment instrument: 100% coursework

Indicative reading

Cottrell, Stella, Critical Thinking Skills (3rd edn, Palgrave, 2017) Chatfield, Tom, Critical Thinking (SAGE, 2017) Farnsworth, Ward, The Legal Analyst: A Toolkit for Thinking about the Law (University of Chicago Press, 2007) Hanson, Sharon, Learning Legal Skills and Reasoning (4th edn, Routledge, 2016) Kahneman, Daniel, Thinking, Fast and Slow (Penguin, 2011) Schauer, Frederick, Thinking Like a Lawyer: a new introduction to Legal Reasoning (Harvard, 2012)

See the library reading list for this module (Canterbury)

Learning outcomes

The intended subject specific learning outcomes. On successfully completing the module students will be able to: 1. Demonstrate a coherent understanding of what is meant by critical thinking, its associated skills and the obstacles that can hinder its effective development; in particular, to understand and demonstrate the function of effective critical thinking within and about legal reasoning 2. Demonstrate a coherent knowledge of the difference between argument and non-argument and to distinguish good from poor reasoning. 3. Demonstrate a systematic understanding of different forms of reasoning, both legal and non-legal. 4. Demonstrate a coherent knowledge of the distinctiveness (if any) of legal reasoning. The intended generic learning outcomes. On successfully completing the module students will be able to: 1. Utilise critical thinking skills in legal and non-legal contexts. 2. Identify and use a wide variety of argumentative techniques across a broader range of subjects. 3. Demonstrate knowledge of the value of non-legal material in the construction of effective legal argumentation. 4. Demonstrate appropriate independent legal research with minimal supervision, using a variety of legal sources and materials in order to formulate and apply legal argumentation to resolve given legal problem situations. 5. Retrieve up to date information, using paper and electronic sources including effective use of IT and other information retrieval systems; and systematically gather and evaluate relevant legal authority from a variety of legal sources, in particular case law, 6. Demonstrate relevant and appropriate legal and non-legal terminology with care, accuracy and confidence.

• ECTS credits are recognised throughout the EU and allow you to transfer credit easily from one university to another.
• The named convenor is the convenor for the current academic session.

University of Kent makes every effort to ensure that module information is accurate for the relevant academic session and to provide educational services as described. However, courses, services and other matters may be subject to change. Please read our full disclaimer .

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Critical Thinking Will Be Necessary When Using AI

Artificial intelligence is gaining widespread adoption in the workplace, and critical thinking skills will be key to successfully using the technology to improve work and limit negative consequences.

AI is a powerful tool, but the results need to be questioned and verified by humans in your organization, said Justin Reinert, SHRM-SCP, a corporate trainer and principal of Performance Accelerated Learning, speaking April 15 at the SHRM Talent Conference & Expo 2024 (Talent 2024).  

“AI offers an opportunity and an imperative for enhanced critical thinking skills in the workplace as responsibilities for some will change from producers to verifiers,” he said.

Critical thinking is the practice of analysis to understand a problem or topic thoroughly. Critical thinking typically includes steps such as collecting information and data, asking thoughtful questions, and analyzing possible solutions.

This important skill is even more necessary in the age of AI, because the technology is still prone to negative outcomes, such as the potential for making up or “hallucinating” information, generating biased results and demonstrating gaps in reasoning.

Some recent noteworthy misses include:

• Attorneys who used generative AI (GenAI) to write motions and briefs that contained made-up case citations .
• The AI-powered chatbot created by the New York City government to help small-business owners providing inaccurate information .

“The use of AI in the workplace is fast growing and quickly evolving—an individual’s ability to discern fact from AI hallucination is increasingly challenging,” Reinert said. “Without deep critical thinking skills, we face a danger where falsehoods are being incorporated into our workplaces and consumer interactions. The educators in the corporate world will have the responsibility to develop this in your people.”

He added that there are two paths forward: a path of automation and a path of new capabilities for humans.

“Typically, as technology advances, we use technology to automate processes, make things faster and more efficient,” he said. “But as we appropriate AI into our work, there is another path to be mindful of. Identify the things that are uniquely human, and make sure you develop those skills in people, and then automate what can be automated. Ensure that humans stay front of mind.”

Of course, to effectively use, train and improve AI, those involved must have strong critical thinking skills themselves.

5 Critical Thinking Skills and How to Develop Them

Reinert listed the following critical thinking skills and what employers can do to help build these capabilities in their workforce:

1. Observation , or the ability to notice and predict opportunities, problems, and solutions. Organizations can practice scenario and risk planning, engaging teams with various possibilities, mindfulness training to improve concentration and focus, and competitive intelligence exercises.  

2. Analysis , or the gathering, understanding, and interpreting of data and other information. This can be practiced through data analysis training, data interpretation workshops and data reviews.

3. Inference , or drawing conclusions based on relevant data, information, and personal knowledge and experience. This skill can be developed through case study analyses related to specific work functions, critical reading and discussion assignments, and mind mapping exercises to identify connections in disparate information.

4. Communication , or the sharing and receiving of information with others verbally, nonverbally, and in writing. Organizations can practice this skill with role-playing scenarios, through public speaking opportunities, and by holding feedback sessions and peer reviews.

5. Problem-solving , or choosing and executing a solution after identifying and analyzing a problem. Problem-solving can be developed through root cause analysis drills to find the underlying causes of a problem; working through a decision-making matrix to evaluate potential solutions based on feasibility, impact and cost; and via simulation exercises that mimic real-world challenges.

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The Power of Critical Thinking in the Life of the High Schooler | Interview w/ Kathy Gibbens How to Homeschool in High School

Our world (especially as teens) is full of so much information! We are confronted daily with bad thinking, propaganda, and emotional reasoning - it can be hard to manage! Today we have the privilege of hearing from Kathy Gibbens, homeschool mom and host of the "Filter it Through a Brain Cell Podcast" (a podcast focused on teaching critical thinking skills to every listener)! We cover everything from defining critical thinking and the most common fallacies we face as teens today to discovering how we can stay rooted in truth amidst this ever-changing culture! Resources mentioned: Fallacy Detective Master Books  - Introduction to Logic Memoria Press  - Traditional Logic Connect with Mrs. Gibbens: Filter it Through a Brain Cell: Podcast Filter it Through a Brain Cell: Instagram Follow How to Homeschool in High School on Instagram and Facebook Email questions to [email protected] Music by FASSounds from Pixabay

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