CELL Blog | Center for Engaged Learning in the Law

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.