One of the aspects of law study I most enjoy is the nature and importance of words and phrases. As a lawyer and a teacher, I am continually reminded of the import a word or phrase has in the context of an analysis, argument or discussion. Although my students could not tolerate it, I could spend many happy class hours dissecting the phrases “traditional notions of fair play and substantial justice” and “purposeful availment” as I hold those phrases to have the same import in my discipline as my Shakespeare professor held “out damn spot” to have in Shakespearean drama.

Despite our fondness for the weight of words, I suggest we have overlooked the import and implications of a phrase we use freely as legal educators. Paul Bergman’s May 21st CELL posting, “Thinking Like a Lawyer”, prompted me to rethink that traditional phrase used most often to promote the intellectual distinction of legal education. When a law student has learned to “think like a lawyer”, he has graduated to the next level of intellectual ability. As Professor Bergman suggests, when he thinks like a lawyer, a student has transcended the ability to read rules and has acquired an understanding that allows him to make legal arguments based what a case “stands for.”

This “thinking like a lawyer” concept is difficult to explain and I think we all, like Bergman, have struggled to describe to students the intellectual exercise enveloped in this phrase. However, how many of us have considered the phrase itself as part of the communication problem.

I met a law faculty colleague last summer at the Institute for Law Teaching conference in Boston. She is faculty at a Canadian law school with a student population that includes a large percentage of aboriginal students. After participating in a discussion on teaching students to “think like a lawyer” she remarked to me that this phrase lent nothing to discussions with her aboriginal students. Those students viewed the phrase as a suggestion they should become more white, more like the traditional picture of a lawyer, to succeed in law school and in the profession.

This phrase is best known as part of a statement made by the fictional Professor Kingsfield to his first year Harvard Law students: “you come in here with a skull full of mush, and, if you survive, you leave thinking like a lawyer.” Kingsfield’s words come from the novel “The Paper Chase” by John Jay Osborn, a 1970 graduate of the Harvard Law School. Although the exact origin of the phrase before Kingsfield and Osborn is undocumented, the idea of a method of thinking unique to lawyers roots itself in the teachings and methods of Christopher Columbus Langdell, the ubiquitous Dean of Harvard Law School in the late nineteenth and early twentieth centuries. Langdell essentially created the study of law through his development of the case method, elevating law study to the level of a science, comparable to the study of medicine and other physical sciences. Langdell viewed the law library as a large laboratory where students work to develop themselves as learned intellectuals - elites. In Langdell’s time and for many years following, law school was a world of study and intellectual pursuit that belonged exclusively to privileged white males.

I teach now in a private southern University and we struggle to recruit and retain minority students. As a faculty, we are aligned in our desire to create a diverse student and faculty environment and we acknowledge the importance of diverse ideas in the academy of legal study. However, despite our best efforts, I wonder sometimes if we are missing the mark as we set our sites on the text and not the sub-text of our situation.

Recently, a minority student was talking with me about some of his law school experiences. He was struggling with how a black man would fit into the apparently white world of the legal profession. He commented that if “thinking like a lawyer” meant thinking like a middle-aged white man, he was not sure he really wanted any part of it. The phrase suggested to him also a picture of an elite, white, male world where the privileged prevailed.

Honestly, the phrase suggests the same to me. I cannot forget that the elite idea of an intellectual club for legal thinkers predates any time when I would have been allowed to attend law school or accepted as a legal professional. If we want to introduce our students to the world we value, the world of reading and understanding the law, perhaps we should reconsider the label we have placed upon the very goal of our guidance. What we really want students to do is to engage in learning the law for their own goals, not ours. We want students to find a sense of themselves in law school, as individual intellectuals and professionals, not to convert themselves to better match the idea of a lawyer. When we phrase their goal as we have heard it, as it has always been phrased, we are cutting them off from themselves and from a vision of themselves in the new context of law.

Thus, I have resolved to bury the phrase “thinking like a lawyer.” This comment will serve as its eulogy and as a public promise to my students that I will examine my words carefully as I stand before them advocating diversity and learning. I will still endeavor to guide students, as Professor Bergman suggests, to look at what a case or ruling stands for, then understand the role the law’s particular phrases and words play in the arguments lawyers make for their clients. I will try, however, to teach students to think as themselves … only better.
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Over the course of my career in legal education, I’ve developed positive relationships with colleagues at other schools. Several of my distant colleagues have become my friends. But for purposes of this post, my focus is on my professional relationship with them as teachers.

I speak monthly or so with several law teachers from around the US and Canada. My “teaching partners” teach a wide variety of courses – first-year requirements, upper level electives, clinics, legal writing, and seminars.

My teaching partners facilitate my professional development in several ways.

• First, each of my “teaching partners” is a dedicated, thoughtful legal educator. In every conversation with them, I get insight into teaching and learning.
• Second, since they teach at other schools, they often have a perspective that is shaped by the culture at their schools, which may be quite different from the culture at my school. Their perspectives give me a broader view of legal education.
• Third, because they are not at my school, I can whine and vent in ways I may not want to do with colleagues at my school.
• Fourth, when I hear about their interactions with their students and colleagues, I learn more about my relationships at my school.
• Fifth, we help one another brainstorm potential responses to the professional challenges come with being a teacher.
• Sixth, they offer generous feedback on my scholarship about teaching and learning.
• Seventh, they have become my co-authors for books and articles on legal education and my co-presenters in faculty development activities.

I could go on. Suffice it to say that my teaching partners are highlights of my professional life.

For those committed to continuous improvement in teaching, like-minded colleagues at other schools can be a wonderful asset. Our willingness to connect and support one another on a regular basis is a gift we give and receive.

The Center for Engaged Learning in the Law (CELL) plans to publish a short book on law teaching and learning this fall with the Carolina Academic Press. The goal of the book is to provide a handy and concise reference guide from the perspectives of practitioners, students and teachers. While much of the book will be taken from posts on this blog, additional contributions are sought. Comments on the following topics are especially desired:

I. Before Class Begins – Course "Under Construction"
a. Syllabus
b. Materials
c. Resources – Phone Numbers, Web Sites, Books and People
d. Evaluation
e. What Students Say
f. What Practitioners Say
g. "To Do" Lists

II. During Class
A. Communicating With Your Mouth Shut
a. Physical Layout
b. Other Mechanical Issues
B. Communicating With Your Mouth Open:Questioning Techniques
C. Innovation
D. What Students Say: Do’s and Don’t’s
E. What Practitioners Say: Do’s and Don’t’s

III. After and Outside Class
h. Mobile learning
i. Other learning
j. Innovations
k. What Students Say
l. What Practitioners Say
m. Technology Tips and Resources

IV. Inspiration

V. What Practitioners Say Law Schools Should and Should Not Do

VI. Helpful Resources: Helpful Law Teaching Web Sites; and
Helpful Books & Articles

Comments should range from one sentence to one page and can be submitted as a comment to this post or to sfriedland2@elon.edu or jlaw@elon.edu. You will be notified by September 1st if your contribution will become part of the book.

thanks,

Steve Friedland

Like many entering law students today, I came to law school with the understanding that its purpose was not to teach me rules, but to teach me how to think like a lawyer. This puzzled me because we seemed to spend a lot of class (and exam) time on rules. And I was never sure if or when I was thinking like a lawyer.

If you are or are about to be a 1L and you share my understanding of the purpose of law school, I hope what I'm about to say here is helpful. You do have to learn a lot of rules, but knowing rules is not an end in itself. You learn rules so that you can make arguments about their application to novel factual situations, and the process of making such arguments (in the classroom and on exams) is what you may consider thinking like a lawyer.

Because rules are helpful to you only insofar as you can use them to support or undermine their application to new factual contexts, you should also be suspicious about the advice to identify an opinion's "holding." All holdings are contingent, because their meaning depends on how they are interpreted in future cases. In other words, what a case "stands for" is a matter of argument, and an appellate court judge can no more forever determine what a case "stands for" than an author or a painter can forever determine how readers or viewers will interpret their works.

I hope that this general perspective on what law school is all about, particularly for 1L's, is helpful to you.

Ok, guilty as charged - it is really easy to critique others' performances. When a student speaks in class, or writes out analysis, my default is to look for what is missing or ineffective - for ways to improve the student's work. We do this a lot in law school. But what if we shifted this approach?

My bet is that world-class athletes don't get better by watching novices do their sport, or by watching others mess up. Sure, they probably review and critique their own performance, and then watch as many outstanding athletes as they can. If I am a mediocre golfer, wouldn't it be better for me to watch Tiger Woods play than to critique someone at my level?

No question that developing a critical and analytical eye is crucial to improve performance. But perhaps we need to balance this approach with emphasizing good examples and noticing what people are doing right. A clinical colleague tells me about lots of videos that can be used to teach clinical skills. But most of these movies show bad examples. Turns out, it is hard to find good examples. As my colleague pointed out, it is really scary to put yourself out there as a good example. What if people disagreed? What if colleagues and students found flaws in your performance?

This brings up a question. If we the educators have a hard time putting together a video or sample document, how hard it is for the student? Perhaps we might need to adjust our expectations a tad.