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Learning to Think Like a Lawyer

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Yale Law School
Yale Law School Legal Scholarship Repository
Faculty Scholarship Series Yale Law School Faculty Scholarship

1-1-1998

Is Learning to “Think Like a Lawyer” Enough?

Stephen Wizner
Yale Law School

Recommended Citation
Wizner, Stephen, "Is Learning to “Think Like a Lawyer” Enough?" (1998). Faculty Scholarship Series. Paper 1846.
http://digitalcommons.law.yale.edu/fss_papers/1846

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 Is Learning To "Think Like a Lawyer" Enough?

Stephen Wiznert

1. INTRODUCfION

In 1850 Abraham Lincoln offered the following advice to new law

students:
There is a vague popular belief that lawyers are necessarily dishonest....
[T]he impression is common, almost universal. Let no young [person] choos-
ing the law for a calling for a moment yield to the popular belief-resolve to
be honest at all events; and if in your own judgment you cannot be an honest
lawyer, resolve to be honest without being a lawyer. Choose some other oc-
cupation, rather than one in the choosing of which you do, in advance, con-
l
sent to be a knave.
Many law professors would claim that such moral instruction is either
unnecessary or inappropriate in a graduate program for adult students.
Yet, most law school graduates today seem to be entering the profession
with only the vaguest sense of their ethical obligations to the public. The
duty of lawyers to contribute to the social good has been eclipsed by self-
interest and the desire for financial security.
The training of students to "think like lawyers" may very well have
contributed to the erosion of professional values by implicitly authorizing
students to become amoral, technically proficient advocates-"knaves"
in Lincoln's term-who practice law without regard for the human, social
and moral implications of their choices and actions as lawyers.
Are law schools educating students for technical proficiency, but
failing to inculcate in them a proper sense of their social and public re-
sponsibilities as members of the legal profession? What should law stu-
dents be taught about the relationship between income and wealth distri-
bution, and their professional responsibility as members of the legal
profession to those unable to pay for legal services? Have legal educators
been sufficiently explicit about the duty of lawyers to provide and sup-
port free or low-cost legal services for those who cannot afford to pay for

t The author is William O. Douglas Clinical Professor of Law, Yale Law School.
1. Abraham Lincoln, Fragment: Notes for a Law Lecture, July 1, 1850 in 4 THE COLLECfED
WORKS OF ABRAHAM LINCOLN 82 ( Roy P. Basler et al. eds., 1953). Thanks to Herbert Mit-
gang for bringing this lecture to my attention.

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Yale Law & Policy Review Vol. 17:583, 1998

them? These are questions that have acquired added immediacy in an era
of increasingly scarce legal services for the poor.
Of course, merely preaching to law students from time to time that, as
lawyers, one day in the future, they will have some ill-defined profes-
sional responsibility to provide pro bono legal services to the poor can
accomplish little. Moral exhortation alone is not effective education, legal
or otherwise.2
Virtue, like proficiency in legal analysis and advocacy, comes from
understanding, insight and practice. It must be incorporated in the educa-
tional process by which law students become lawyers.

II. LEGAL SERVICES FOR THE POOR: A CRISIS IN THE LEGAL

PROFESSION

It is beyond dispute that there are not enough lawyers providing legal
services to the growing numbers of the poor among us. At a time when
the number of Americans living in poverty is at an all-time high, when in-
come equality in the United States is the most extreme in the Western
World, and when the United States has the highest child poverty rate of
any industrialized nation,3 most poor people are forced to deal with their
legal problems without the benefit of any legal assistance, and are there-
fore deprived of the ability to defend or pursue effectively their lawful
personal, economic and social interests.4
The assistance of competent lawyers offers economically disadvan-
taged people the possibility of equal justice when confronting the gov-
ernment and other powerful or affluent legal adversaries. The unavail-
ability of publicly funded or private pro bono lawyers to represent clients
unable to afford counsel has become a national crisis.s

2. See Lon Fuller, What the Law Schools Can Contribute to the Making of Lawyers, 1 J.
LEGALEDUC.189,202-03 (1948).
3. The United States has the highest incidence of poverty of the 17 industrialized nations
(Australia, Belgium, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, Neth-
erlands, New Zealand, Norway, Spain, Sweden, United Kingdom, and United States). See gen-
erally United Nations Human Development Report 1998, UN Development Programme, 28-29
(1998); Richard Freeman, Toward an Apartheid Economy, HARVARD BUSINESS REVIEW
(Sept./Oct. 1996); Daniel H. Weinberg, A BriefLook at Postwar U. S. Income Inequality, in U.S.
CENSUS BUREAU, CURRENT POPULATION REpORTS, HOUSEHOLD ECONOMIC SWDIES 60-91
(1996); Timothy Smeeding, LUXEMBURG INCOME STUDY, Syracuse University (1991), cited in
Jean Hopfensperger, In France a Security Blanket for All Families with Children, MINNEAPOLIS
STAR TRIB., April 14, 1996, at 1A.
4. See ABA Consortium of Legal Services and the Public, Two NATIONWIDE SURVEYS:
1989 PILOT ASSESSMENTS OF THE UNMET LEGAL NEEDS OF THE POOR AND OF THE PUBLIC
GENERALLY 37 (1989). Recent and current reductions and restrictions in federally funded legal
services programs can only have made matters worse.
5. See, e.g., Symposium, Crisis in the Legal Profession: Rationing Legal Services for the
Poor, 1998 ANN. SURV. AM. L. (forthcoming).

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Is Learning To "Think Like a Lawyer" Enough?

In the current political climate, and for the foreseeable future, there is
no prospect of increased government financial support for legal services
for the poor. Notwithstanding limited resources and government-
imposed restrictions, existing legal services programs must make the most
of what is available and continue to attract lawyers to perform the low-
paid demanding legal work that needs to be done. In addition, and now
more than ever, there is a need for the private bar to assume the profes-
sional responsibility of providing pro bono legal services to the poor.
Law schools have an important role to play in addressing the crisis in
legal services. They must seek to attract and admit applicants who are
idealistic and committed to social justice, and law faculty must teach and
nurture the professional obligation of providing legal assistance to the
poor.

III. HAVB WE TAUGHT CIVIC RESPONSIBILITY?

In his presidential address to the Association of American Law
Schools in 1933, Dean Charles Clark of the Yale Law School observed
that although financiers and businessmen bore the primary responsibility
for the Depression, "at their right hands as counselors and advisors stand
the ablest of the men we have instructed and we ourselves are not too far
away .... Have we," he asked, "taught civic responsibility?,,6
More than a half century later, the incoming president of the AALS ,
Professor Deborah Rhode of the Stanford Law School, has taken up the
gauntlet thrown down by Dean Clark and called upon legal educators to
make the teaching of professional responsibility an educational priority.
While she acknowledges that many law teachers are uncomfortable
"venturing into value-laden discussion" and prefer not to express opin-
ions on ethical issues, not doing so, she argues, "risks fostering relativism
and cynicism," with the result that "an atmosphere meant to foster toler-
ance can undermine commitment." "We cannot," she insists, "be value
neutral on matters of value. What we choose to discuss itself conveys a
moral message, and silence is a powerful subtext.,,7
With respect to the availability of legal services Professor Rhode's
message is unequivocal: "[P]ro bono service should be treated not simply
as a worthwhile philanthropic option, but as a central priority in profes-
sionallife."s

6. See JERALD AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL JUSTICE IN

MODERN AMERICA 164 (1976) (quoting Clark).
7. Deborah Rhode, Professional Education and Professional Values, AALS NEWSLETIER,
Apr. 1998, at 1,4.
8. ld.

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Yale Law & Policy Review Vol. 17:583, 1998

In her call for demarginalizing the teaching of professional responsi-

bility and the duty of public service, Professor Rhode has boldly advo-
cated a transformation of the educational culture of American law
schools from an almost exclusive preoccupation with the teaching of stu-
dents to "think like lawyers" to a "pervasive" focus on educating future
lawyers to act as socially responsible professionals.9
Law school clinics must be involved in this transformation. At pres-
ent, clinical legal education often includes several contradictions. Clinics
are not integrated into the mainstream curriculum. Their presence in law
schools insulates other faculty from dealing with issues of law practice
and of quality and equality in the administration of justice. And clinical
programs represent too small a percentage of law school budgets, include
too few faculty. Because these programs are available to few students,
they do not have a significant enough impact. In effect the law school di-
vision between clinical and non-clinical education replicates the dual sys-
tem of justice: law for the affluent as distinct from law for the poor, the
mainstream curriculum as distinct from the clinical curriculum.

IV. RE-THINKING LEGAL EDUCATION

A. Learning to "Think Like a Lawyer"

"[O]ne pays a price for thinking like a lawyer."lo
In his classic lectures to new law students, Karl Llewellyn set forth the
objective of legal education:
The hardest job of the first year is to lop off your common sense, to knock
your ethics into temporary anesthesia. Your view of social policy, your sense
of justice - to knock these out of you along with woozy thinking, along with
ideas all fuzzed along their edges. You are to acquire ability to think pre-
cisely, to analyze coldly, to work within a body of materials that is given, to
ll
see, and see only, and manipulate, the machinery of the law.
It is through this process, Llewellyn wrote, that legal education aims
to get the law student "thinking like a lawyer.,,12

9. See generally Deborah L. Rhode, PROFESSIONAL REsPONSIBILITY: ETHICS BY THE

PERVASIVE METHOD, (2d ed.1998).
10. Daniel Greenberg, Reflections on the New Mexico Conference: What Would You Have
Said Before You Came to Law School?, 19 N.M. L. REV. 171 (1989).
11. K.N. Llewellyn, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 116 (1960).
12. Id. Sallyanne Payton notes:
The ... sacrifice that one makes in the first year, from which one may never recover, is
the sacrifice of one's common sense, or general intelligence. Indeed, it is essential in
the first year of law school to separate the students from their unexamined views and
values, in the interests of inculcating habits of analytic rigor. I suppose that we assume
that there will be time later for the students to recover what is valuable of their old
selves and to integrate their previous lives with their lives as lawyers; but the institu-

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Is Learning To "Think Like a Lawyer" Enough?

Anyone who has attended law school will recognize Llewellyn's de-
scription. The not-so-hidden message that law professors give to their
students is that to be a lawyer one must "think like a lawyer," even if that
means suppressing one's compassion, idealism, and concern for truth and
justice.
To "think like a lawyer" means adopting an emotionally remote,
morally neutral approach to human problems and social issues; distancing
oneself from the feelings and suffering of others; avoiding emotional en-
gagement with clients and their causes; and withholding moral judg-
ment. 13 To think like a lawyer one must be dispassionate in analyzing a
client's legal problems and options, and in developing a legal strategy for
achieving the client's goals.
Thinking like a lawyer requires analytical rigor, logical reasoning, the
ability to recognize and draw distinctions, and an ability to advocate ei-
ther side of an issue logically and persuasively, whether or not one agrees
with or believes in the position one is advancing. Professor Thomas Shaf-
fer reports the following exchange between a law professor and a first-
year law student:
Professor: "Brown, what's a trial?"
Student: "An adversary proceeding."
Professor:"For what purpose?"
Student:"To discover the truth."
(There is silence in class for five seconds, then laughter.)
Professor:(After waiting just long enough for the laughter to help him make
his point) "Who cares what truth is?"
Student:"I care."
(Loud laughter.)

tion gives them little enough encouragement or opportunity to do so, and very little
indication of how that task can be accomplished consistent with the professional de-
tachment that is induced in the first year. These are not insignificant sacrifices ... the
payoff is supposed to be that one emerges from the first year .. "thinking like a lawyer.
Sallyanne Payton, Is Thinking Like a Lawyer Enough?, 18 U. MICH. J.L. REFORM 233, 236
(1985).
13. See James Elkins, Thinking Like a Lawyer: Second Thoughts, 47 MERCER L. REv. 511,
523 (1996). Professor James Elkins offers the following reflection by one of his students:
I vividly remember torts and criminal law during my first semester. Doggedly dissect-
ing violent murder cases and tragic accident cases with the same cold precision, the
professors "got through the material." Strict analysis and cynical attitudes seemed to
be the goals of the students. Professors demanded the holding of the case and logical
analysis and got it. Since we were taught to be valueless and scientific in our first year,
it is almost impossible to resist the temptation to use this logic and technique to make
moral choices, or not to make them at all.

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Yale Law & Policy Review Vol. 17:583, 1998

Professor:"Well, in your conversation with God, you can take those ques-
tions further." (Pause. Then to another student) "Smith, what's the purpose
of a trial?,,14
Law students come to believe that thinking like a lawyer means
adopting a kind of moral neutrality regarding the means they will employ
and the ends they will pursue on behalf of clients, and towards the choice
of clients whom they will serve. It is only a short step from there to the
conclusion that it really makes no moral difference what work one does
as a lawyer, or for whom.
But something of fundamental importance is missing from this de-
scription of what it means to be a good lawyer. Llewellyn himself ac-
knowledged the danger of teaching law students to "think like lawyers":
It is not easy thus to turn human beings into lawyers. Neither is it safe. For a
mere legal machine is a social danger. Indeed, a mere legal machine is not
even a good lawyer .... None the less, it is an almost impossible process to
achieve the technique without sacrificing some humanity first. IS

B. Learning To Be a Good Lawyer

Learning to "think like a lawyer" can be emotionally and morally
disabling. 16 By teaching law students to put aside their emotional re-
sponses to the facts of cases and the circumstances of the parties and to
focus their attention solely on the "legal" implications of the facts, law
teachers communicate to students the implicit message that as lawyers
they should respond to human situations and experiences as "lawyers,"
not as human beings.
Similarly, by teaching law students to separate the "moral" from the
"legal," to focus on the "legal" aspects of a case and put aside its moral
dimensions, law teachers communicate to students the implicit message
that as lawyers they should not be concerned with the moral implications
of their choices and actions as lawyers. I?

14. Thomas Shaffer, Moral Moments in Law School, 4 SOC. REsp. JOURNALISM, LAW,
MED. 32, 33-34 (L. Hodges ed., 1978).
15. See supra note 11; cf. Elkins supra note 13 at 511 ("What happens to the moral sensibili-
ties of those who follow the path of teachers who claim to teach you to 'think like a lawyer'?
How does a law education shape one's ethics and how is this education put to work in the prac-
tice of law? What do we become as a result of an education in law?").
16. See Peter R Teachout, Uneasy Burden: What It Really Means To Learn To Think Like
a Lawyer, 47 MERCER L. REv. 543, 550 (1996).
17. Aside from the difficulties in discovering the one particular way that lawyers do or
should think, the desirability of that mode of thought is open to question. "Thinking like a law-
yer" often has been challenged as an invitation to amorality, to the cynical manipulation of con-
cepts in behalf of one's client. See Sanford Levinson, book review, Taking Law Seriously: Re-
flections on 'Thinking Like a Lawyer,' 30 STAN. L. REv. 1071, 1072 (1978).

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Is Learning To "Think Like a Lawyer" Enough?

These dehumanizing and amoral tendencies in legal education should

cause us to think critically about the concept of "thinking like a lawyer."
Why do we accept "thinking like a lawyer" as a given-as not only a nec-
essary, but even a sufficient goal of legal education?18 Is it not possible to
discourage fuzzy thinking and sentimentalism, and to teach "abstract hy-
pothetical-deductive critical thinking SkillS,,,19 while at the same time
raising and addressing moral issues and encouraging humane responses
to human experience?
One need not accept fully Felix Frankfurter's observation that "the
law and lawyers are what the law schools make them,,20 in order to ac-
knowledge that the education students receive in law schools not only
teaches them the craft of law, but also inculcates professional values, ex-
plicitly or implicitly.
Insisting that students learn to "think like lawyers" encourages them
to suppress feelings, like compassion, and moral concerns, like the desire
to work for social justice-feelings and moral concerns that they brought
with them to law school, and that may, in fact, have brought them to law
school.
The implicit message authoritatively conveyed by many law teachers
is that idealism and a commitment to social justice are not part of
"thinking like a lawyer." Instead of encouraging students to struggle with
and think intelligently about feelings of empathy, compassion, moral in-
dignation and unfairness, law teachers demand that students set aside
such feelings and learn to construct and criticize arguments in a hard-
headed, analytically rigorous manner. Soft-heartedness, sympathetic
views of human nature and human potential, idealistic beliefs about the
"good society," and concern about injustice in the world, often are ridi-
culed as "fuzzy," unrealistic, or naive. James Elkins reports that:
In writing about their experience of law school, students often focus on as-
pects of their life that are driven underground as they try to understand and
master legal thinking. The following excerpts from student writings make this
point repeatedly:
Most law professors look askance at a student who relies on his heart
rather than his head. In one of my first-year classes, a student backed up
his position by saying, 'It just seems right.' The professor replied, 'You
can get into trouble thinking like that.'
In the first year of law school, I had no class in which a solitary word was
ever said about right or wrong, should or ought, or the ethical responsi-

18. See generally John O. Mudd, Thinking Critically About 'Thinking Like a Lawyer', 33 J.
LEGAL Eouc. 704 (1983).
19. Gail A. Jaquish & James Ware, Adopting an Education Habit of Mind: Modifying What
It Means To Think Like a Lawyer, 45 STAN. L. REv. 1713, 1714 (1993).
20. See AUERBACH, supra note 6, at 149.

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Yale Law & Policy Review Vol. 17:583, 1998

bility of lawyers. Such matters are stuck away in a course called Profes-
sional Responsibility.
I catch myself desiring to be a good player. I work hard at the cases, try
to understand what I am being taught, and struggle with learning how to
think. I fear this makes me part of the process I so much despise.
In the beginning, you react, "that's just not right" or "that's unfair." As a
law student, you begin to set yourself apart from lay persons and learn to
think like a lawyer. When you do not think like a lawyer, you are made
to feel foolish and inadequate. There is perhaps nothing so bad as saying
21
what you feel.
Yet law schools have an obligation to educate students not only to be
technically proficient, but also to be professionally responsible, to see and
reflect on the contradiction between the pursuit of professional self-
interest and the public interest, and to reject materialism as the sole mo-
tivating force in human relationships.
Members of the bar have a professional duty to engage in public
service, to be involved in law reform, and to provide free legal represen-
tation to the poor. But if law schools fail to inculcate these professional
values in law students in a meaningful way, and in fact implicitly com-
mend a very different professional stance for students to adopt, students
are unlikely to absorb and feel those professional obligations, or to act on
them when they are lawyers.
In 1935, Llewellyn gave a talk to law students at Harvard entitled On
What Is Wrong with So-Called Legal Education.22 He gave the talk at
Phillips Brooks House, the university center for student public service
volunteers, because he was refused permission to speak on the subject at
the law school. In his talk Llewellyn took note of those law students who
struggled to reconcile professional self-interest with public responsibility.
Surprising to one who has watched the Wall Street flocking ... is this number
of youngsters who now show hunger to make law do something ... The spon-
taneous gathering ... of [students] who plan organized inquiry into what a
lawyer can do and how he can shape his work to be more of a person, and
more of a citizen .... Now have we no obligation in the engendering, in the
guiding, of such ideals?23
Llewellyn's question was obviously rhetorical. In his view, law profes-
sors do have an obligation to engender and guide such ideals in their stu-
dents.
Law students need to be reminded that "justice" is not something that
emerges ipso facto from the existing legal system. They need to be taught
that law is not simply a value-free or value-neutral mechanism for dispute
resolution and the protection of private interests, but a political mecha-

21. Elkins, supra note 13, at 527-28.

22. 35 COLUM. L. REV 651 (1935).
23. Id. at 662.

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Is Learning To "Think Like a Lawyer" Enough?

nism for the acquisition, exercise and defense of power-individual, so-

cial, economic, and political power. As Jerald Auerbach has observed:
"The issue is not whether law promotes political ends, but whether the
political ends that law inevitably promotes are democratic, fair, and
just.,,24
Alexis de Tocqueville, in his classic study Democracy in America, ob-
served that in the United States the power of lawyers "enwraps the whole
of society.,,25 Law teachers must expose their students to the ways in
which legal power is distributed and exercised in American society, to
what ends, and in whose interests. And they must resist tendencies in le-
gal education to devalue students' concerns about social justice and social
change.
A central goal of legal education should be to provide professional
education in the public interest, not simply to train students to "think like
lawyers." Among a law school's pedagogical objectives should be teach-
ing students to employ legal skills and legal theory to meet individual and
social needs, to expose students to the ways in which law can work either
to advance or subvert public welfare and social justice, to instill in stu-
dents a professional commitment to public service, and to "challenge
tendencies in the students toward opportunism and social irresponsibil-
1'ty. ,,26

v. CONCLUSION: WHAT IS TO BE DONE?

Jerome N. Frank once argued that "students should be encouraged to

consider than an important part of their future task is to press for im-
proving the judicial process and for social and economic changes through
legislation, and wise administration ....,,27 Law schools, and particularly
law teachers, have a "moral responsibility" to democratize our legal cul-
ture. They must teach and inculcate in their students the professional ob-
ligation of providing and supporting legal services for the poor.
For law schools to fulfill this responsibility, Deborah Rhode's pro-
posal to teach professional responsibility pervasively throughout the cur-

24. AUERBACH, supra note 6, at 365 n.8!.

25. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 270 (J.P. Mayer ed., 1969).
26. Duncan Kennedy, How the Law School Fails: A Polemic, YALE REv. L. & SOC.
ArnON 71, 80 (1970); see also Jane Harris Aiken, Striving To Teach 'Justice, Fairness and Mo-
rality',4 CLIN. L. REv. 1, 10 n.6 (1997) ("If all I can do in law school is to teach students skills
ungrounded in a sense of justice, then at best there is no meaning to my work, and at worst, I
am contributing to the distress in the world. I am sending more people into the community
armed with legal training but without a sense of responsibility for others or for the delivery of
justice in our society.")
27. Jerome L. Frank, Why Not a Clinical Lawyer-School?, 81 U. PA. L. REv. 907, 921
(1933).

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 Yale Law & Policy Review Vol. 17:583,1998

riculum must be implemented. Clinical programs and courses must be

fully integrated into the mainstream curriculum. Law schools must com-
mit-intellectually and financially-to teaching, research, writing, and
practice aimed at exposing and addressing issues of social justice.
But first, we need to be explicit about the political implications of
how law is practiced, of the maldistribution of legal services, and of how
professional legal power is exercised, to what ends, and in whose inter-
ests. We also need to challenge the disdain for public interest and legal
services and civil rights practice displayed by many legal academics, in-
cluding critical legal theorists.
We need to develop a new "critical legal realism" that not only incor-
porates legal practice into the law school curriculum, but exposes ways in
which prevailing practices, and the distribution of legal services, fail to
promote and even subvert public welfare and social justice. We need to
propose and advocate systemic pro bono representation and other sys-
temic reforms to ameliorate these conditions. Finally, we need to empha-
size in our teaching and by our example, that lawyers have a professional
and moral obligation to serve the poor, the vulnerable, the disempow-
ered, and to democratize the legal system.

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