Books

THINKING LIKE A LAWYER: A NEW

INTRODUCTION TO LEGAL REASONING by
Frederick Schauer, Harvard University Press,
Cambridge (Ma), 2009, 239pp, ISBN 0–674–03270–5
IRENE BAGHOOMIANS*

It is a safe bet that almost every text on legal reasoning in common law countries
emphasises in one way or the other the salience of thinking like a lawyer which is
ideally acquired when one is a first year student, and is subsequently polished and
perfected throughout the rest of law school and beyond. The authors of these texts
usually set about cataloguing the requisite rules of legal reasoning in a fairly
mechanical way beginning at stare decisis and its complexities and ending on an
explication of common law devices which allow lawyers to make sense of
complex legal questions. In between the pages of these texts, there are a variety of
subjects covered with varying degrees of competency, subtlety and depth; some
issues while arguably relevant are omitted in their entirety.
But an inquiring mind should confront and attempt to answer a number of
pertinent questions at this juncture. To begin this inquiry, we should ask if indeed
there is such a thing as ‘legal reasoning’. And, if so, is this form of analysis so
uniquely and incontrovertibly distinct in nature that one can distinguish it easily
from other forms of reasoning? And why is it important that the collective ‘we’,
law students, lawyers and judges as well as other interested inquisitors, engage in
this discourse?
To his credit, Frederick Schauer, David and Mary Harrison Distinguished
Professor of Law at the University of Virginia School of Law, does not shy away
from addressing these crucial questions at the outset in his new book, Thinking
Like a Lawyer: A New Introduction to Legal Reasoning.1 In his introduction to the
book Frederick Schauer asks the reader to consider what it is to ‘think like a
lawyer’, and posits the hypothesis that legal reasoning as a unique form of
analytical toolbox is a contested claim.
In an interview about the book, Schauer stated that ‘[i]f there is something that
is special about legal reasoning, it is important to [recognise] that it is not totally,
entirely hermetically sealed “special.”’2 Even though he does consider different

1
* Lecturer, Faculty of Law, University of Sydney.
1 Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009) 4.
2 Ashley Matthews, Schauer Charges Students to Ponder Nature of Legal Reasoning (2009)
University of Virginia School of Law <[Link]
schauer_lunch.htm> at 17 August 2009.
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schools of thought, particularly legal realism, at some length, he does not entirely
side with their characterisation of legal analysis as he believes that it is a distinct,
if not unique, form of analysis.
I should note that while this book is a clearly written and analysed book, it
treads a rather conventional path similar to other books in this genre in the United
States where the emphasis is placed on explaining the constitutive elements of so
called ‘legal reasoning’, as opposed to a bolder and more comprehensive text
which engages with the importance of international law to legal reasoning in the
US, as well as lacking sufficient emphasis on the importance of ethical and social
obligations of lawyers.
But why should all of this matter? Are there any overarching objectives, which
are enhanced or diminished by whether or not lawyers have a unique mode of
analysis, or is all of this mostly a scholarly storm in a cup? Are there real world
ramifications arising from how lawyers justify their legal conclusions and, if so, is
it not important that students are schooled in such intricacies? In other words, is
legal education implicated by necessity in this discussion?
These questions matter because, for better or worse, lawyers are integral to the
maintenance of the rule of law in our societies, not because of any inherent,
intrinsic virtues, but because of their historical prevalence and integration into our
systems of government. How lawyers are educated and what they are taught are of
public interest principally because the democratic stakes are very high.
To this end, one needs only to think about the active participation of lawyers in
a number of illegal activities in the last decade both in the United States and in
Australia. Among the former is the so called ‘torture memo’ drafted by John Yoo
(currently a professor at the Boalt Hall School of Law at the University of
California, Berkeley) in 2003 while he was employed as Deputy Assistant
Attorney-General in the Office of Legal Counsel at the Department of Justice. The
recent declassification of this 81 page legal memorandum demonstrates how Yoo
argued for a very narrow definition of what constitutes torture so that
waterboarding of ‘enemy combatants’ was redressed as a legal interrogation
technique despite the fact that it has traditionally been prohibited under both
domestic and international laws.3 According to Martin Lederman:

So the most important thing to [realise] about this, about this legal theory, is how
if one takes it seriously, how truly broad it is, and what it would implicate. The
theory would mean that an entire edifice of 20th century law — Geneva and
Hague Conventions, the Convention Against Torture, the Torture Statute, the
Foreign Intelligence Surveillance Act, the War Crimes Act, the Uniform Code of
Military Justice and many other quite well established and non-controversial
limits on war authority that have been ratified and enacted since the turn of the
century — would be called into question. Whenever the president thought that

3 Memorandum from John C Yoo to William J. Haynes II, 14 March 2003, available at American
Civil Liberties Union <[Link] at 17
August 2009.
2009] BOOK REVIEW 501

those legal norms impinged on the way he thinks [sic] it is the best means of
fighting the enemy. And so it's a theory — whether one thinks it's right or wrong
— that is potentially quite groundbreaking, and quite significant in terms of how
it would rebalance the powers between the branches of the federal government.4

In addition, the involvement of other lawyers such as David Addington in making

the case for the illegal invasion of Iraq under international law have been
documented.5
The above actions by these lawyers as well as many others and countless other
documented ethical lapses surely must raise the question of whether we should re-
examine ‘thinking like a lawyer’.
Schauer’s book is marketed as a ‘primer on legal reasoning aimed at law
students and upper-level undergraduates.’6 He has also stated that ‘this book is
intended to provide somewhat of a sophisticated introduction and comprehensive
look at what it is that law schools claim to do, which is to teach students how to
think like lawyers’.7
The book is divided into a number of chapters, all of which are well
complemented with succinct and informative cases.
Notwithstanding the Introduction noted previously, the first part of the book
briefly addresses rules, their literal meaning and how what a rule states is not
usually the last word. Schauer deftly introduces the tension between the language
of statutes and their purpose and elaborates on statutory interpretation in much
more detail and nuance in a later chapter.
The second chapter focuses on the practice and problems of precedent. In
introducing the doctrine of stare decisis, Schauer highlights its counter-intuitive
nature, even if noting its importance in promoting consistency and stability, though
at times at the expense of achieving justice. The chapter also discusses the
intricacies of a holding (the legal rule that determines the outcome of a case) and
dicta (obiter dicta). The chapter has a particularly good discussion of the
difficulties law students and lawyers encounter when a court does not clearly
identify its holding. This can create a number of possible formulations of the
holding, which creates confusion both for the readers as well as future courts.8
The third chapter focuses on the idea of authority and the kinds of authorities
upon which US courts do rely. The concept of authority, he says, is displayed by
the Catholic church’s view of the Pope. In a subsection on prohibited authorities,
Schauer briefly touches upon the reasons of the opponents of the citation of foreign
or international law, including Justice Scalia. Their reasons are predicated upon the

4 Interview with Martin Lederman (Documentary interview, 2 November 2007), edited transcript
available at The George Washington University –Torturing Democracy <[Link]
~nsarchiv/torturingdemocracy/interviews/martin_lederman.html> at 17 August 2009.
5 Ibid.
6 Schauer, above n 1.
7 Ibid.
8 Ibid 55.
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concern that reference to such authorities would progressively legitimise their

use.9 In contrast to Justice Scalia’s views, Schauer notes that in the seminal
decision of Lawrence v Texas, Justice Kennedy cited comparative laws from other
countries that have decriminalised homosexual conduct.10 It should be noted that,
in the United States, the Circuit Courts of Appeal have been divergent in citing
international law as an authoritative source in their judicial opinions. This is
particularly important in light of the fact that the majority of important legal issues
are dealt with at these appellate courts, where less than 100 cases annually are
accepted for determination by the Supreme Court. Hence, in light of the continuing
importance and relevance of international human rights norms to litigation in
national courts in the United States, a much more in-depth and comprehensive
discussion is merited with regard to these sources.
Chapters five and six focus on the use of analogies and the provenance of
common law respectively. In the former chapter, Schauer deftly navigates the
vagaries of analogical reasoning and cautions the readers that the best way to use
analogical reasoning is to ensure that only relevant similarities are included in
arguments. The latter chapter on common law is unremarkable as Schauer briefly
outlines the antecedents of the US legal system, the nature of common law, how it
changes and what it represents.11
Chapter seven deals with the challenge of legal realism and its empirical
claims. Schauer introduces the reader to the essential tenets of the realist thought
in the United States by briefly outlining the influential scholars and their
contributions. This is a particularly well written section that renders accessible
complex ideas for a novice reader. He begins the discussion by framing the
question at the heart of the realist inquiry as: ‘What factors other than legal
doctrine played the major role in determining what judges would in reality actually
do?’12 This chapter ends with a very brief overview of the impact of the critical
legal studies movement and its thematic differences and similarities with the legal
realists.
The remaining chapters of this book focus on statutory interpretation, the
difference between rules and standards, law and fact and legal presumptions.
Overall, these remaining chapters are in similar vein to other chapters in such
similar books and are not particularly distinctive.
It is logical to assume that a comprehensive book of this kind should also
include what facets of legal reasoning, as taught in US law schools, have had
shortcomings. To this end, it does not in any substantive way engage with the
criticisms levelled at the status quo, which are echoed in a 2007 Report by the
Carnegie Foundation for the Advancement of Teaching.13 The Report, Educating

9 Ibid 80.
10 Lawrence v Texas, 539 US 558 (2003).
11 Schauer, above n 1, 103–118.
12 Ibid 127.
13 William M Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond and Lee S Shulman,
Educating Lawyers: Preparation for the Profession of Law Summary (2007) 6.
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Lawyers, is the culmination of a two year study of legal education involving a

reassessment of teaching and learning in 16 law schools in the United States and
Canada during 1999–2000. Educating Lawyers identifies the paradigmatic nature
of the ‘legal reasoning’ construct taught at US law schools and identifies its
strengths as well as its shortcomings. Regarding what is lacking, Educating
Lawyers has the final word:

Law schools fail to complement the focus on skill in legal analyses with effective
support for developing ethical and social skills. Students need opportunities to
learn about, reflect on and practice the responsibilities of legal professionals.14

14 Ibid 6.
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