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What, Why, How? Is Critical Thinking Important in a Law Degree?

As a law student you may well have had feedback on assignments asking you to “explain your reasoning”, “add in more analysis and evaluation” or even “be more critical”. What this means is that your marker is looking for you to demonstrate more critical thinking skills. So, what is critical thinking and how does it relate to the law degree? Emma Jones, lecturer in law and member of the Open Justice team at the Open University explains for Lawyer Monthly.

What critical thinking is…

Put simply, critical thinking is about gathering evidence, ideas and/or arguments and then evaluating (weighing up) their strengths and weaknesses in an objective and methodical manner. For example, when writing an essay you could be presented with an article arguing that the Human Rights Act 1998 should be repealed. To assess its validity you need to spend some time identifying the key arguments contained it in. Depending on their content, you might then have to re-examine parts of the Act (or other relevant Acts and cases) used in the argument, search for counter-arguments in other articles and then decide which provide the most persuasive evidence.

When tackling a problem scenario, it may involve reading the facts with an open mind, identifying key information, comparing the information you have with the facts of relevant cases and considering any arguments the other party or parties may come up with.

… And what it isn’t

Sometimes students think that showing critical thinking involves including lots of quotations from cases or academic articles and putting in a lot of references. This might show you have found plenty of information, but it doesn’t demonstrate that you understand it or can apply it to whatever topic you’re discussing. Some students may go one step further and explain arguments they find in such cases or articles in their own words. However, while it is important to look at all the relevant arguments, critical thinking is more than that. You need to evaluate the arguments yourself and decide how strong you think they are. In other words, you need to put your own spin on them, rather than just describing them.

Using critical thinking in your studies

Here are some suggestions on how to incorporate critical thinking into your legal studies:

• Don’t make assumptions! Always question what you are told and what you are reading.
• Read around a topic. Don’t just focus on the set textbook or case, try to put it into a wider context so you appreciate its importance or relevance.
• Spend time discussing and debating topics with fellow law students. Whether this is in seminars, during coffee or using online forums, this will help you process your own ideas and absorb other points of view.
• Give yourself time to reflect. If you’ve read something, spend some time identifying its key arguments, but then make sure you pause and think about whether or not you agree and why.
• Try to interweave different arguments within your writing. If you write a couple of paragraphs of arguments “for” and a couple of paragraphs “against” it can be quite dull to read and doesn’t help you evaluate their comparative strengths. Taking one argument and exploring the “for” and “against” elements in one paragraph is much stronger.
• Use some key phrases in your writing which demonstrate your critical thinking. For example, “evaluating these points leads to the conclusion that…” or “an analysis of these sources indicates…”.
• Take on board feedback. If you are being told to use more critical thinking, the likelihood is your marker will have included some comments which indicate what that mean by that and how you could have approved. Spend time absorbing these and reflecting on what you can do differently next time.

Hi, I'm Oliver, the Editor for our Online Content. Feel free to email me at [email protected] if you have any questions or interesting content to send over!

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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.

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Critical thinking and the law.

J.P. "Sandy" Ogilvy , The Catholic University of America, Columbus School of Law Follow Dannye Holley

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This article traces the origins, and discusses key features of the Critical Thinking and the Law Program. In addition, this article evaluates and projects the implications of the Critical Thinking and the Law Program for legal education. The first section of the article reviews the rich literature on the teaching of thinking movement, and focuses upon those elements of the movement which have had the greatest influence on the design and execution of the Critical Thinking and the Law Program. This section also reports the findings of a survey formulated to determine the current involvement of North American law schools with the teaching of thinking/critical thinking movement. The second section of the article describes the crucial elements of the program and the specific influences of the critical thinking movement on those elements. Section two concludes by discussing the program’s evaluation plan, including the results of the two types of empirical evaluation in the program.

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J.P. "Sandy" Ogilvy & Dannye Holley, Critical Thinking and the Law, 1 INT’L J. LEGAL PROF. 343 (1994).

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Teaching South African (LLB) law students legal analysis to ensure critical thinking

2019, Journal for Juridical Science

The aim of this note is to focus on legal analysis as an important skill that law students must learn, in order to be effective lawyers who possess the ability to think critically. The note starts with a list of different methods of legal analysis to give a very broad overview of methods from which not only an individual lecturer, but also a law faculty as a whole, can choose when deciding on teaching legal analysis. The note also aims to examine the different elements of the methods of legal analysis and organisation that need to be taught to South African law students to ensure that they learn to conduct proper legal analysis. From the literature, it is clear that, in the United States of America, legal analysis is most often taught as part of legal writing, but it is also stated that it should form part of doctrinal subjects. This note proposes that this dual approach be followed in the South African LLB. As there is limited research in South Africa on teaching legal analysis, this note aims to provide a South African perspective based on the considerable body of research on this issue in the United States of America.

Related Papers

Elizabeth Snyman-Van Deventer

Neels Swanepoel

Student engagement is the time, effort and energy that students spend on all educational activities that enhance their learning ability. The improvement of student engagement is the principal aim of the Learning in Law project embarked upon by the Department of Mercantile Law at the University of the Free State (UFS), South Africa. One of the aims of the project, which is run in collaboration with the university's Centre for Teaching and Learning, is to help lecturers develop innovative teaching methods and techniques to ensure in-class student engagement. As modern-day students are used to fast access to information, entertainment and social activity via their mobile devices, new teaching methods to catch and hold their attention and promote participation are needed. This contribution not only makes the case for new ways of teaching law in a changing higher education environment, but also suggests specific steps and techniques to be considered, drawing from the experience of the UFS's Department of Mercantile Law.

Journal for Juridical Science

Heeding the call for broader access to tertiary studies for previously disadvantaged students, the University of the Free State (UFS) is one of only a few institutions in the country that offer an extended, five-year Bachelor of Laws (LLB) programme. Its more lenient admission requirements and more manageable distribution of course work across five study years have put access to professional legal studies within reach of students who would not have otherwise qualified for admission. Beyond broader access, however, still lies the challenge of student success. It is a well-documented fact that modern-day students enter higher education ill-prepared for the demands of tertiary studies, and those entering the extended LLB are no exception. The gaps in their skills sets include a lack of academic writing skills, which are among the core competencies required of a law graduate. In an effort to address this challenge, the UFS Faculty of Law has established an innovative collaboration with the Write Site, a writing centre staffed by language specialists who offer students personalised assistance with their writing assignments. This is done as part of the module Legal Skills, one of the foundational modules presented exclusively for students in the extended LLB programme. This article provides the details of the intervention, including its results to date. It concludes that the Faculty of Law/ Write Site collaboration is a model worthy of emulation, teaching students not only to write well, but also to do well in their academic field. Recommendations for fine-tuning the intervention are proposed, including a call for this type of skills assistance to be offered across the curriculum, instead of in a once-off module only. Whilst the current climate of acute human resources and funding shortfalls in higher education may make this hard to achieve, the academic success of our students and the professional success of our future lawyers and other professionals are on the line.

Potchefstroom Electronic Law Journal

Andrea Bauling

The Bachelor of Laws (LLB) degree programme should adequately prepare graduates for the demands set by both legal practice and the greater South African society. Law schools are not tasked with producing future legal practitioners, but rather critical thinkers who can engage with the relationship between law and society in a meaningful way, and who recognise their duty to uphold the values of the Constitution of the Republic of South Africa, 1996 when performing their professional duties. Resultantly law teachers should construct learning environments that engage students in ways that help them develop creativity; embedded subject knowledge; and autonomous learning, critical thinking, and lifelong learning skills. A well-structured LLB degree programme should focus on this broader conception of legal education and a dissertation module as capstone course should be closely aligned with this objective. A greater academic influence could result in an academically rigorous degree programme that produces more mature graduates who possess competencies and attributes that exceed that which is demanded of them by legal practice. One way to establish a greater academic influence in a degree programme would be to include a final year dissertation module which demands that students illustrate the ability to think critically. The final year of a degree programme should provide the student with several opportunities aimed at culminating the learning experience and consolidating the skills and knowledge acquired throughout the preceding years of study. Capstone courses facilitate in-depth learning and should be employed to teach crucial skills related to the purpose of the degree. A compulsory dissertation module as capstone course, which embodies the pedagogical approach of transformative legal education, should be included in the revised curriculum of all law schools in South Africa. This dissertation module should demand that students engage critically with the principles of transformative constitutionalism in order to facilitate thinking that goes beyond traditional and conservative constructions of the South African legal system and its purpose. Such a dissertation could develop a student's metacognitive ability and result in the development of new legal skills, and the sharpening of existing skills. When producing a dissertation a student is learning to write as well as writing to learn. Crucially, the process of disserting also requires legal research skills and the ability to formulate effective research strategies. A law student who is capable of utilising various sources of law, synthesising the information found therein and presenting it effectively is illustrating elements of authentic learning. But this form of authentic learning in will be near impossible to achieve without the active guidance of a willing supervisor. Law teachers perpetuate legal culture and the supervisor-student relationship creates the opportunity to sculpt the culture instilled so that it may have the desired impact on the student. The supervisor could advance this process by empowering the student to construct critical and transformative views of South African law. A dissertation module presented in this manner could produce students who are able to engage with law constructively and who will graduate as responsible citizens and aspiring legal professionals who are excited about inspiring social justice and transformation in their communities.

Elizabeth Snyman-Van Deventer , Neels Swanepoel

SUMMARY Stakeholders in South African legal education have been clear on the need for a legal ethics module as part of the LLB degree programme. In this contribution, the authors draw on relevant literature, particularly regarding the American experience, as well as their own observations as legal practitioners and lecturers to advance the conceptualization, design and presentation of such a potential fully-fledged legal ethics module (or modules). Some reflections on the conceptual points of departure for a legal ethics module are followed by a discussion of the more pragmatic aspects associated with legal ethics teaching, namely the goals and objectives pursued (the " what and why ") and the methods used (the " where, when and how "). The article argues that although a stand-alone module is urgently needed, legal ethics need not be taught in isolation, but should ideally be incorporated throughout the curriculum using a mixed-method approach. Such an approach will inculcate in students the realization that ethical issues are not restricted to a lecture or a set of notes: Ethics – whether based on students' personal moral values and philosophy, or the professional and disciplinary rules and codes of conduct of the legal profession – are and will remain an integral part of their everyday and future working lives. " We should not only introduce concepts of ethics and professionalism in class, but we should make these concepts a pervasive theme of our curriculum and pedagogy. " 1

Annie P E R U M P O Y K A I L Gomez , Ankur Gupta

With technological advances in the practice of law, the relevance of legal support professionals (paralegals/law clerks) is being increasingly questioned. These advances are likely to be a death knell to the traditional role of the paralegal as the ‘backbone’ of legal support services. Such disruptive trends necessitate a deep and honest look at the way paralegals are trained. The focus should be on identifying relevant skills which will ensure that both experienced paralegals and aspirants are aptly equipped for the workplace of the future. There is a need to commence a serious discussion on how paralegal training ought to be re-configured to continue supporting the legal profession. This exploratory paper focuses on the relevant skills which lie at the heart of preparing the paralegal and proposes a possible agenda for transforming paralegal training. This includes re-evaluating current skills and forecasting the skills needed for enhancing paralegal employability. The proposed agenda for the curriculum reform is: (1) identifying ‘evergreen’ skills in the current curriculum; (2) recognizing and teaching new skills in light of paralegal job profiles of the future; and (3) analyzing the opportunities and roadblocks in transforming paralegal training.

English for Specific Purposes

Christopher Candlin

Although in recent years we have seen a significant increase in the development of resources for legal writing, very few of them are targeted at second language learners. This article reviews currently available legal writing books in terms of their suitability for use in EALP writing contexts. It concludes that, although certain aspects of the available books can be useful, most are generally unsuitable for use in such contexts. Three approaches are then offered for developing legal writing materials that will meet the criteria of suitability. First, the materials can be customized in various ways to meet the needs of second language users studying law in the medium of English. Second, the materials can adopt a more language and discourse-based approach. Third, rather than packaging materials exclusively in book form, they can be made available as a computer-mediated resource bank. This article derives from ongoing work in a 3-year, university-funded project entitled “Improving Legal English: Quality Measures for Programme Development and Evaluation”, based at the City University of Hong Kong.

Asian Journal of Management Sciences & Education

Christiaan Prinsloo

This paper is the first of two integrative reviews on the ameliorating initiatives for legal education. Part I departs from the general motivation for the study rooted in the globalization of higher education that has led to the transformation of legal education across international borders. Universities in Asia have been reforming their legal education by drawing on foreign inspiration, in particular on American-based legal pedagogy. However, American legal education has endured an unabated onslaught of criticism that accentuates the pedagogic challenges of law schools and their instructional methods. While the transpositioning of American-based legal pedagogy to Asian universities advances the internationalization agenda, it also initiates the associated challenges but in different sociocultural contexts. Therefore, the purpose of the study emanates from the lack of a comprehensive diachronic review of the ameliorating initiatives for legal education. The study makes two primary contributions: firstly, it identifies which challenges of legal education the ameliorating initiatives address and neglect, and secondly, it integrates clinical legal education, pedagogic principles, and law school academic support programs into a holistic pedagogic framework for informed curriculum development. An integrative literature review provided the holistic methodological underpinnings for the method to analyze and synthesize the relevant scholarship. The review indicates that four phases of ameliorating initiatives emerged relatively diachronically. Part I focuses on the period between the 1960s through 1990s during which clinical legal education, pedagogic principles, and law school academic support programs proliferated. Part II is dedicated to the period beginning in the 1990s and the burgeoning of thinking like a lawyer rooted in skills-based pedagogy.

… of Business Law, Vol. 12, p …

Joan Heminway , Michael Woronoff

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Generative AI is changing the legal profession – future lawyers need to know how to use it

Lecturer in Law, University of Salford

Disclosure statement

Craig Smith does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

University of Salford provides funding as a founding partner of The Conversation UK.

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Generative AI – technology such as ChatGPT that creates content when prompted – is affecting how solicitors, judges and barristers work. It’s also likely to change the work they are being asked to do.

This means that the way lawyers are trained needs to change , too. In education, there can be a tendency to see generative AI as a threat, including as a means for students to cheat . But if lawyers are using these technologies in practice, the training of future law graduates must reflect the demands of the profession.

Lord Justice Birss, a judge of the Court of Appeal of England and Wales specialising in intellectual property law, has described using ChatGPT to write part of a judgment, in particular, to generate a summary of a particular area of law. Finding the content generated acceptable, Lord Justice Birss described ChatGPT as “jolly useful” and explained that such technologies have “real potential”.

Specific generative AI technologies have been created for lawyers. Lexis+ AI can be used to draft legal advice and communications, and provides citations that link to legal authorities.

And as the use of AI grows, so too will the advice clients seek on AI-related legal issues. Areas of law already well established – such as liability or contract law – could be complicated by AI technologies.

For example, if generative AI is used to draft a contract, lawyers will have to be versed in how this works in order to address any disputes over the contract. It might, for instance, be inaccurate or lack important terminology.

It would be even more concerning if the generative AI had been used by a legal professional and the drafted contract not checked due to an over-reliance on the accuracy of the technology.

Adapting teaching

This change in the profession means that law lecturers must also bring generative AI into their teaching. This is necessary to expose law students to the types of situations they will encounter and the tools they may end up using in the profession.

For example, mooting – conducting a mock trial debating a point of law – could incorporate generative AI in the role of a judge, providing real-time feedback to students. Generative AI could also feature in debates, challenging a student’s understanding and position on a topic.

These examples foster not only the legal knowledge of the activity, but also the practical application of legal knowledge and critical thinking in an environment where generative AI is familiar.

When assessing student knowledge , I give my own law students the option to use generative AI in answering an essay question. This, to a limited extent, simulates how the legal profession might use generative AI in their practice. The students must make sure that their response is accurate, and so the task requires academic rigour and digital skills but also the understanding that generative AI is both an opportunity and a risk.

I also ask students to reflect on their use – or decision to not use – the technology. This promotes discussions around the ethical and safe use of generative AI. It allows students to examine their use of a tool that is often viewed with suspicion in higher education.

Benefits and risks

Reflection like this is important because there are many potential pitfalls in using these tools. Guidance on artificial intelligence released for judges in England offers a reminder that generative AI is often public, meaning there is little confidentiality for any information entered.

The Bar Council has also supplied guidance for barristers on navigating the growing use of ChatGPT and other similar tools. The Bar Council says that using generative AI tools to enhance legal services isn’t wrong, but it is important that barristers thoroughly understand these tools and use them responsibly.

This gives more substance to the notion that being legally qualified and trained to practice law is essential, but so too is the digital skill needed to use such technologies.

The legal profession must balance the potential benefits and risks of the widespread use of generative AI, but also make sure that future lawyers have the knowledge to understand it. Law graduates and future legal professionals need to dedicate proper attention to digital skills around AI and the ethical considerations that arise from its use. They’ll need this to navigate the law in a society where the use of AI is already ubiquitous.

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Undergraduate Minor in Legal Studies

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Introduction

The Undergraduate Minor in Legal Studies, designed and taught by Vanderbilt Law faculty, offers a comprehensive introduction to law for Vanderbilt undergraduate students. Through five courses and supplemental programming, students will be able to make an informed judgment about pursuing law school and/or a legal career, gain knowledge and skills that will give them a leg up in law school or non-legal career paths, and graduate with a better understanding of how the law shapes our society. 

Students are required to take Introduction to American Law, which is offered each semester. They must also take four additional minor-specific Law School courses, of which at least one will be offered every semester. One of these four additional courses may be taken from an approved list of non-Law School Vanderbilt University courses. 

To view the Minor of Legal Studies courses available for registration, students should consult YES .

Course Descriptions

How do lower-income people navigate and experience the civil and criminal legal systems? This course will consider what “access to justice” means and requires, both for the structure of our legal systems and at a practical level. Students will be introduced to a range of topics that may include the right to counsel, the role of non-lawyers, the use of technology, legal design, and legal literacy.

Artificial Intelligence and law are closely linked. For example, discussions abound in the legal profession about the extent to which AI will replace lawyers with respect to some of the work they do. But the relationship between AI and law is far more complicated. This course will discuss the diverse ways in which AI, law and society influence one another, including questions of how law should regulate AI and which institutions should enforce any such regulation, as well as theoretical questions about personhood, agency, and autonomy. The course will explore these issues using the examples of military robots and self-driving cars.

Economic analysis of law has long influenced discussions of law, whether to explain how the law works or shape how it should work. Traditional principles of law and economics make certain assumptions about human behavior, positing that people function as rational actors in making decisions in the market. The role of law is to address the effects of such behavior on markets and participants. But human behavior is more complex, which has consequences for law. Behavioral law and economics concerns the psychological and cognitive biases that affect decision-making by consumers in markets as well as decision-making by lawyers, judges, and juries. This course will introduce traditional principles of law and economics to explore the importance of behavioral law and economics to law.

This course will offer an introduction to Constitutional Law. Students will study issues related to the structure of our federal government, including the powers of the three branches (Congress, the President, and the Courts) as well as the relationship among them and with the States. Students will also study the individual rights protected under the 14th Amendment, with a focus on equal protection of the law. [3]

A contract is an agreement between parties that creates a duty enforceable by law. Contract law, which consists of the legal principles that govern contracts, is among the most important to institutions and individuals alike. This course will cover various principles of Contract Law, including whether a contract exists, what makes it legally valid, how is it interpreted when questions arise, and what happens when a party breaks or “breaches” it?

This course will provide an introduction to Corporate Law. The course will focus on the core legal principles that govern the foundation of business entities. What is a “corporation”? What obligations or “fiduciary duties” do corporate directors and officers have to the corporation? What legal protections exist for shareholders of the corporation? In addition to covering the fundamental legal principles, this course will also consider theoretical issues such as whether corporations should prioritize maximizing economic value for shareholders over the interests of other stakeholders.

This course will consider the role of courts in our governmental system. Are they overstepping their boundaries when they take an active role in public policy formation and institutional management? Are they interfering with the proper functioning of other government institutions, such as Congress, the Presidency or state governments? Are they acting on the basis of law or merely expressing the political preferences of the judges? Are they upholding or violating the rule of law? Are they supporting or undermining democratic government? With the nation waiting in anticipation to see what the current Supreme Court will do, this is a crucial time for us, as a nation, to address these questions.

This course will acquaint students with the basic pillars of the criminal justice system: why we have criminal punishment, how we define crime, and the process we use to punish it. Criminal law subject matter will include the elements of crime, defenses (such as self-defense, the insanity defense, and defenses based on neuroscience), the death penalty and sentencing more generally, and whether we criminalize too much conduct. Criminal procedure subject matter will include an examination of police stop and frisk and surveillance practices, pretrial detention, how plea-bargaining works, and the operation of the jury. The course will also cover the system’s impact on people of color, the phenomenon known as mass incarceration, and the current movement to abolish aspects of the criminal legal system.

This course will address treaties, human rights, climate change and trade from the perspective of both domestic U.S. law and international law.

This course will study the rules, institutions, and legal theories that seek to protect basic liberties for all people in connection with the interrelated field of international humanitarian law. The course will emphasize (1) specific "hot button" subjects within human rights law (including the death penalty, hate speech, refugee rights, and gender rights); (2) judicial and legislative authorities that interpret and implement legal rules relating to these subjects; and (3) public and private actors who seek redress for those whose rights have been violated.

This course will introduce students to the study of American law. It is a required course designed to give students the knowledge and skills that will prepare them for the other courses that contribute to a Minor in Legal Studies, as well as applying to and succeeding in law school. What are the institutions (such as the legislature and the courts) and sources of law (such as statutes and judicial decisions) that comprise the American legal system? How do you read a judicial decision and understand how law develops over time? How do you “think like a lawyer”? This course may focus on a particular subject matter, such as administrative law or negotiations, to introduce the basic concepts.

Is the Constitution just? To what extent does the Constitution embody and protect justice to individuals and groups in our society? To answer these questions, this course examines the ways in which the Constitution advances and protects different aspects of justice, including procedural justice, retributive justice, distributive justice, libertarian justice, and racial and gender-based justice. The materials will include foundational philosophical work on these different aspects of justice and Supreme Court doctrines that bear on these issues. The overriding goal is to understand the Constitution’s account of justice.

This course will offer an introduction to “juvenile justice” systems in the United States. Juvenile justice refers to the legal mechanisms for responding to children who violate the criminal law—thefts, assaults, even homicides—or who break rules that apply only to children—such as running away, truancy, or possessing alcohol or firearms. Juvenile justice systems aspire to reflect the deep differences between children and adults, and to preserve children’s ability to grow into healthy, responsible adults. Those systems also frequently fall short, both reflecting and exacerbating racial disparities. Students will learn to understand and critique concepts such as the “school-to-prison pipeline,” as well as the societal choice to treat some children as legal adults subject to serious criminal sentences such as life without parole.

This course will invite student to explore the various ways in which law as a system reflects theories of human behavior, is driven by human behavior, and shapes human behavior. This underlying human element in how law is made, enforced, and experienced is often implicit, resting on folk theories that may be out of sync with the psychological sciences. Students will examine important concepts in criminal and civil law in light of scientific studies that bear on the behaviors at issue—such as what conditions actually cause a person to confess to a crime they didn’t commit. We will also explore the way that ordinary humans decide legal issues—for example, how judges’ emotions may affect their work. Students will gain valuable insight into law as a human enterprise.

This course will introduce students to the basics of legal research and writing. Students will learn how to find relevant caselaw and analyze legal issues. They will learn how to draft documents in diverse areas of the law and legal practice. Written assignments may include preparing a legal brief for a court, a memorandum to a senior law partner, a letter to a client, and a request from a public agency.

This course will provide a broad overview of U.S. patent law. The course will explore the structure and theory of the U.S. patent system, what types of inventions can be patented, the requirements for a valid patent, the patent application process, how to read a patent document, and the scope and enforcement of patent rights. Knowledge of patent law can be a tremendous advantage for scientists, engineers, doctors, entrepreneurs, and other professionals who regularly interact with technology and innovation.

Political philosophers have long posited that the powers of the state should be divided into different institutions. The course begins by surveying foundational theories of division of state authority, culminating in theories that inspired the framers of the U.S. Constitution. It then considers the extent to which contemporary constitutional doctrines of separation of powers reflect these theories. Finally, the course engages contemporary work in political science which describes the dynamics among the branches of government in practice. The course aims to provide an understanding of the goals of separating governmental powers and an appreciation of the ways in which our current doctrines and institutions do and do not achieve those goals.

Additional Programming

Students pursuing the Undergraduate Minor in Legal Studies will have access to specialized programming throughout the school year on a variety of Law School topics, including the admissions process, legal career paths, and the graduate student experience.

CfP: Routledge Handbook on AI, Law and Society

by Matilda Arvidsson | 3 Apr 2024

This is a call for submissions for abstracts for the Routledge Handbook on AI, Law and Society (forthcoming in the Routledge book series on AI, Law and Society). We are now open for submissions of abstracts.

Deadline for abstract: 1 May 2024 . After all submissions are reviewed all selected submissions will be asked to proceed to submit a first draft (see the time plan  for this further down in this text). Submit your abstract (400 words), with a title, author name(s), contact information, and affiliation(s) to: [email protected] with “AI Handbook abstract” as subject line.

What is the Handbook and what are we looking for?

The Handbook is looking for shorter chapters of ca 4-5000 words of critical scholarly interventions focusing on a specific topic or approach to AI, law and society. The texts will be comprehensive and give an overview of the research field of the topic/approach. The text can build on your previous scholarship, but it can also be an entirely new contribution.

The Handbook especially (but not exclusively) welcomes submissions on the following themes:

• Socio-legal and legal-political implications of AI in a variety of geographies, spaces and jurisdictions
• AI, law and fundamental values/principles in society
• Legal-political organisation of societies through and/or in resistance to AI (e.g. distributive, anarchist approaches, non-capitalist approaches, rights-based approaches)
• Environmental and embodied normativities and AI
• Posthuman, speculative aesthetics, new materialist, more-than-human, indigenous, decolonial, TWAIL, critical race, feminist, and other critical legal approaches to AI
• Historical analyses of, and approaches to, law, AI and related technologies
• AI, law and archival practices
• AI, law and political economy
• AI, automation and decision-making in law and governance
• AI, law, and the changing politics of digital and cyber space
• AI, digital twinning, and the regulatory and experiential challenges they give rise to
• AI, human and more-than-human rights
• AI, law and the (re)configuration of life
• Food security/food, AI and law
• AI (distribution of) global resources and law
• AI, law and discipline (Foucauldian and otherwise)/criminal law
• AI, law, and artistic praxis (intellectual property and beyond)
• All kinds of theoretically bent analyses (new/experimental or based on established theories) of the use, regulation, experience, and the socio-political impact of AI
• New challenges and methodological approaches to the legal study, use and regulation of AI
• Empirically based socio-legal analysis of/through AI

We are specifically looking for submissions from the following themes, topics and encounters:

• Decolonial perspectives on Law and AI
• Indigenous and other-than-Western approaches to AI, law and society
• Empirically based chapters showcasing other-than-Western AI, law and society in specific countries, regions, and geographies.

Background:

AI is a field of technologies rapidly growing in use and impact in society. At times it is envisioned as responding to pressing problems and human concerns, and at other times it is perceived as a probing problem and threat to humanity. The transition in a range of areas towards the implementation of AI technologies – for example in legal tech, med-tech, reg-tech, automated decision-making, consumer goods, and warfare technology – has fundamentally changed the social and political landscape in which legal norms emerge and are implemented. It has also changed how legal and political governance is designed, carried out and put under scrutiny. While scholars and practitioners disagree on the use, usefulness and problematics emerging through this transition, most agree that AI is not an a-political technology. Rather, it comes with its own political and legal normativity, as well as with demands for new types of regulatory frameworks governing – and indeed curbing – its legal and political power and impact. Moreover, AI has moved the legal imaginaries of what subjectivity, agency and legal personhood is or can be. The latter include areas of artistic practice as well as the question of what the defining elements of what and artificially intelligent system is – and therefore also what a human or non-human non-AI agent in contrast is or can be.

While AI is often understood as a question mainly concerning tech-intensive societies and such areas of political and legal normativity its increased use and implementation also carries with it renewed concerns about global extraction of resources – such as mineral and metals – from parts of the globe already made vulnerable through colonialism, global economic inequalities. This also includes the labour conditions through which extraction is carried – conditions that are for the most part illegal in the jurisdictions where the goods of the technologies enabled by such labour are enjoyed. The social and political implications of AI are thus affective on a global and even extra-planetary scale.

The present Handbook invites new ways of thinking about the various connections between AI, law, politics, and society. More broadly the Handbook is concerned with addressing the normative fields of the emergence, use, regulation, experience, and impact of AI and related emerging technologies.

The Handbook on AI, Law and Society adopts an open approach to AI. This means that the Handbook welcomes analyses of AI and related technologies and technological phenomena – such as blockchain, DAOs, and digital twins – from any institutional setting. This is inclusive of technological, political, legal, financial, and governmental designs of which AI is part.

Contributions can be theoretical, analysing conceptually the use, regulation, experience, and the socio-political impact of AI; they can be historical, outlining changes in how AI and related technologies have emerged and are governed; they can be material-empirical oriented, tracing or mapping the geo-political legal realities and labour embedded in AI; and they can assume a more contemporary-diagnostic approach, exploring, for example, the emergence of post-national or post/hyper-capitalist AI-governed spaces, agencies, and new subjectivities. The Handbook is committed to inviting abstracts that discuss AI-human-non-human links and formations, not only from “Western” perspectives and legal traditions, but also from de-colonial, TWAIL, and related perspectives.

The book Handbook is intended as a critical intervention at the interface of law, social and political theory, and AI studies. The Handbook’s interest in the social and political implications of AI in relation to law and normative power suggests a re-thinking of what and where law is, as well as what role AI plays – or indeed should play – in the making of law, politics, and society. The Handbook does not prescribe specific methodological approaches but invites and encourages a plurality of methodological strategies that can shed light on the intersection of law and AI and related emergent technologies.

1 May 2024                 Abstract submissions deadline

1 October 2024           Submissions first draft

15 January 2025         Submission final draft

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