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  • Thinking Like A Lawyer: A New Introduction to Legal Reasoning
  • John Q. Stilwell (bio)
Frederick Schauer, Thinking Like A Lawyer: A New Introduction to Legal Reasoning (Cambridge, MA: Harvard University Press, 2009), 256 pp.

“I don’t give a damn how you feel! I want to know what you think!” So roared Julius Goebel, Jr., Columbia law professor, to a trembling first-year student in the fall semester of 1961. Goebel had inquired of the novice, “Have you read the opinion in [X vs. Y ] and, if so, what did you think of it?” “Well, Professor,” the student had begun, “I feel . . .” — but while the student’s feelings might have been interesting, even relevant in another setting, what was wanted was evidence of his “thinking like a lawyer.” Schauer’s book shows how thinking like a lawyer is not like anyone’s accustomed patterns of thought. While the book blazes no trails, it deftly navigates the avenues of (generally speaking) legal realism as it continues in one form or another throughout the American federal system — and Schauer also explores the approaches of ideologues and followers of the Critical Legal Studies movement. Despite its subtitle, this book is generally not for those with no prior experience in the law, though it can be profitably consulted by lawyers, judges, teachers, legislators, and legal historians. For a study of “legal reasoning,” at this level, the book is short on ethical rigor. An excellent supplement for most readers might be Stephen Toulmin’s durable The Place of Reason in Ethics, which clarifies what good reasons are and why they matter to the integrity of a legal system committed to justice for all. Still, the ineluctable truth about Anglo-Saxon legal systems (and virtually every other legal system, for that matter) is not a [End Page 199] truth of ethics. The law is what judges say it is, until overruled — possibly by the same judge who had earlier made the law. Remember the barrister of legend who, urging a proposition on Lord Mansfield (1705–93), was met with the demurral: “That is not the law, Counselor!” To which, the barrister, an exemplary legal reasoner, replied: “Begging your pardon, M’Lord; it was the law, before M’Lord spoke.” [End Page 200]

John Q. Stilwell

John Q. Stilwell, a lawyer and mediator of complex business disputes, teaches moral philosophy and the history of ideas at the University of Texas, Dallas. He is presently completing a monograph titled Just Conversation: Justice Under America’s Post-World War II Social Contract.

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