- Paperback: 256 pages
- Publisher: Harvard University Press; Reprint edition (April 16, 2012)
- Language: English
- ISBN-10: 0674062485
- ISBN-13: 978-0674062481
- Product Dimensions: 0.8 x 6 x 9.2 inches
- Shipping Weight: 11.4 ounces (View shipping rates and policies)
- Average Customer Review: 4.5 out of 5 stars See all reviews (24 customer reviews)
- Amazon Best Sellers Rank: #85,863 in Books (See Top 100 in Books)
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Thinking Like a Lawyer: A New Introduction to Legal Reasoning Paperback – March 19, 2012
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This book will belong on every law professor's and law student's bookshelf--and on many others' bookshelves as well. (Lawrence A. Alexander, University of San Diego School of Law, author of Is There a Right of Freedom of Expression?)
Schauer is a leading scholar of jurisprudence and legal process, and his new book is as comprehensive, thorough, and sophisticated an introduction to legal reasoning as it is a lucid one. All of the bases are covered, and law students, teachers, practicing lawyers, and judges alike will gain perspective and insight from seeing the entire range of legal reasoning techniques laid out before them. (Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit, author of How Judges Think)
Thinking Like a Lawyer is by far the best available introduction to legal reasoning, of interest to law students and their teachers alike. It should be enlightening to the general reader as well, who will learn what, for better and perhaps for worse, distinguishes 'thinking like a lawyer' from other approaches to analyzing social problems. (Sanford V. Levinson, University of Texas Law School, author of Our Undemocratic Constitution: Where the Constitution Goes Wrong)
Thinking Like a Lawyer is well-designed to work for first-year law school classes. It covers the most important themes relating to law and legal reasoning, and manages to do so in ways that are accessible and thought-provoking. (Brian H. Bix, University of Minnesota, author of Jurisprudence: Theory and Context)
A welcome complement to [Edward] Levi's approach, as well as being easier for the legal novice to understand. Yet Schauer's book also offers the lawyer and scholar useful perspective on what he or she does. (Brian Leiter Times Literary Supplement 2010-02-12)
Thinking Like a Lawyer is excellent reading material for anyone wishing a deeper and more nuanced--even a more magnanimous--understanding of the motivations behind law's often convoluted pronouncements. (John Azzolini Law Library Journal 2010-02-01)
About the Author
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia.
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University of Virginia professor Fredrick Schauer, in his book “Thinking like a Lawyer,” provides a framework useful in fulfilling Justice Holme’s prescription. Within this framework is professor Schauer’s careful identification and distillation of complex theoretical issues underlying the Anglo-American judicial system. The reader leaves this book with enhanced legal reasoning and more cogent thinking, allowing you to look straight through all the “dramatic incidents and to discern the true basis of prophecy,” as Justice Holme’s advised.
Nonetheless, this book is not something to breeze through lightly before bed or on a lazy afternoon. While it is not a strictly legal text or “law book” with rules and standards listed in a formulaic and mundane fashion, it requires careful attention and thinking. Schauer dives right into the core of some confusing, yet interesting, legal issues and this book requires patience.
If the reader chooses to embark on Schauer’s discussion of the numerous theoretical within this text, great rewards wait for them at the end. Some of my personal favorites include a detailed and unique perspective on authority and how that authority should be viewed, as a discussed in this older blog post. Equally valuable was Schauer’s careful parsing of using and citing precedent and using and citing analogy. He states: “Law’s use of precedent differs substantially form law’s use of analogy, for in the latter a previous decision is selected in order to support an argument now, while in the former a previous decision imposes itself to preclude an otherwise preferred outcome.” Having a clear understanding of this distinction, and many others identified within this book, aids in the legal reasoning process greatly. This “clearing-up” function of nuances is a consistent theme throughout the book. Another interesting discussion, found within the analogy chapter, includes tips on how one is to determine similarity in order to successfully analogize a case—i.e., you must focus on the similarities with legal relevance as opposed to similarities that are relevant for other purposes. Legal relevance might be those facts that help further the underlying policy the rule of law is supposed to further. This type of model gives the practitioner some helpful theory behind the reasoning process so that legal briefing, for example, can be completed in a more methodical fashion.
Another useful discussion for the theoretically inclined is the one on the Common Law. Professor Schauer gives a useful history of the Common Law, with its basic precepts and goals. For example, “It is the merit of the common law, Oliver Wendell Holmes observed, ‘that it decides the case first and determines the principle afterwards’ ”; and how the common law “works itself pure,” which captures “the belief that the common law, in being fluid and always improvable at the hands of common-law judges, gradually approaches a perfection in which the rules almost never generate suboptimal outcomes.”
One of the more practical discussions is the one on Statutory Interpretation, which outlines the fundamental goals of interpretation, the primary methods lawyers successfully interpret statutes to favor their client, the common pitfalls in statutory interpretation, the major debates surrounding interpretation, and various canons of statutory construction—e.g., In pari materials (Provisions in different statutes, or different parts of the same statute should be interpreted as a whole to produce a coherent and internally consistent statutory scheme). Schauer also separates apart the different types of issues interpreters face when the words of the text are insufficient, such as when the text provides no answer versus when the text provides a bad answer, and how a legal reasoner can go about solving this problem.
The remaining chapters continue to provide a well-selected mix of topics that provide practical as well as theoretical value to the lawyer, law student, or practitioner—the difference between Law and Fact (surprise, the distinction is more threadbare than you might think), the difference between Rules and Standards, and the role of the Burden of Proof in American Law. Schauer is really masterful at identifying subtle nuances in the law, such as the impact of narrow versus broad decisions and how this impacts the development of law in the future decision-making, and the effect a rule has on judicial discretion compared to a standard. His explanations of these nuances seem common sensical and obvious, but they are distinctions that go unconsidered for most in everyday legal practice.
Moreover, this book is unequivocally a gold-mine for developing your mental representations, a topic I’ve written about in the past. When you expose yourself to new information, you conjure up a new mental structure that houses that information and similar information. The more you study a topic, the more detailed and comprehensive these mental representations become, thus allowing you to assimilate new information more easily. Exposing yourself to the wonderful survey that professor Schauer provides sets into motion various mental structures that are engrained in everyday legal practice—burdens of proof, citation of authorities, and dealing with facts and law. While many of the discussion in the book are admittedly highly theoretical, the mere exposure will help you have a more dynamic perspective in your practice.
This book belongs on your bookshelf of law books and can be referred to when faced with a difficult problem, whereby a new perspective might be helpful. It is also interesting in its own right, providing many interesting controversies and disputes in legal theory—e.g., the correctness of the legal realist movement—and citing a multitude of law review articles on topics you may want to take a further look. But, at bottom, it provides various frameworks and insight into legal concepts that will help you become a master of law, as Holmes put it, as the true prophecy and purpose of the law is revealed in a methodical and interesting fashion. One of the most cited legal scholars in the country doesn’t fail in this attempt to provide an introduction into the distinct reasoning process lawyers engage in, and I highly recommend it to pre-law students, law students, and lawyers alike.
For a comprehensive outline on the book thatI includes more detailed discussions of each chapter of the book, and more practical insight visit my blog: no-nonsenselaw.
The reason that I was initially intrigued by this book is that I am planning to attend law school in the fall and I felt that a good primer on the subject was an appropriate starting point. Although I believe this book will not nor does it profess to directly improve your performance in law school, I feel that my reading was not in vain.
From reading this book, I feel that I have developed a beginners knowledge in some of the major topics within legal thought as well as a respect for the history of many fundamental legal theories as they pertain to legal reasoning. In addition, this book has also sparked my interest in the subject as a whole and from here I will begin to read more specific treatments of the subject.
If you enjoy learning about the law, philosophy and some history, then this book may be for you. If you are about to enter law school and are seeking a how to book for legal reasoning as it pertains to doing well in law school, then you should look at "Getting to Maybe."
I thank Frank Schauer for his book and would gladly recommend it.