Frederick Schauer goes to great lengths in his book, Thinking Like Lawyer, to cover many themes of what it is like to think like a lawyer. In his book, he starts by addressing that thinking like a lawyer is about neither learning a bunch of legal rules nor about practicing for the courtroom or writing particular documents. Rather, he insists that thinking like a lawyer is about thinking legal decision—making and reasoning. Furthermore, in the first chapter of his book, he notes that the advocates of legal reasoning being its own type of reasoning argue that precedent, rule of law and analogies in reasoning can be an indicator that legal reasoning is on its own level.
So, Schauer goes on to say that the goal for his book is to “identify, describe, analyze, and at times evaluate the characteristic modes of legal reasoning” which are precedent, rule of law and analogies. In chapter three of Schauer’s book, he begins to comment on precedent and why it is a distinct part of how people think like a lawyerl He begins by saying that “[f]requently in law, but less so elsewhere, it is not enough that a decision produces desirable results in the future; the decision must also follow from or at least be consistent with previous decisions on similar questions”.
This essential characteristic, the characteristic of stare decisis (or use of precedent), separates ordinary reasoning from legal reasoning and thinking like a lawyer Indeed, “[tlhe core principle of decision-making according to precedent is that courts should follow previous decisions”.
This is different, Schauer notes, than learning from the past because learning from the past is not precedential reasoning. Rather, learning from the past is the same as precedent persuading a decision—maker instead of relying on precedent to make decisions. It should be obvious now that “[wlhen courts are constrained by precedent. They are obliged to follow a precedent not only when they think it correct, but when they think it incorrect It is the precedent’s source or status that gives it force, not the soundness of its reasoning nor the belief of the instant court that its outcome was correct”.
To continue, it is the very idea that precedent constrains judges (the legal decision- makers) to past decisions that distinguishes legal reasoning from other types of reasoning. Schauer, later in his chapter, describes some important features of precedent, to include vertical precedent, horizontal precedent and the difference between the holding and the obiter dictum, or dicta that are all essential to legal reasoning and thinking like a lawyer. First, the difference between the holding of a case and dictating the holding of the case is very similar to the rationale behind the decision. As Schauer puts it, the holding is the “legal rule that determines the outcome of the case”. Schauer mentions, however, that the court does not always explicitly say what the holding is. Not knowing what the holding is can be a problem to follow the decision if the holding is unclear, dicta, on the other hand, is something extra to the decision Schauer says that dicta is “something that is not strictly necessary to reach, justify, or explain the outcome of the case”.
In other words, dicta merely give reasons on something broader than necessary to decide the case, and can potentially be used as precedent in the future. On the two different types of precedent, vertical and horizontal precedent, schauer says that the two have different forces. Vertical precedent is precedent made by higher courts and must be followed. Schauer refers to vertical precedent as binding and that “binding precedent obliges a lower court to follow it or distinguish it from the instant case” where the instant case refers to the current case at hand. However, he also notes that sometimes lower courts can argue that a decision made by a higher court is mere dicta, rather than the actual holding of a case. In this instance, lower court can attempt to distinguish the cases so that the lower case may decide the case how it sees fit and not be bound by vertical precedent, Horizontal precedent is similar to vertical precedent with this idea of distinguishing the cases Horizontal precedent is precedent made, and must be obeyed, by the same court from the past.
Schauer notes that, on occasion, courts are allowed to overrule their past decisions if they are able to distinguish the cases, but the distinction must require special justification and the previous decision must be manifestly wrong. For these reasons, Schauer believes that precedent is a distinct feature of legal reasoning and thinking like a lawyer. In general, Schauer discusses how rules relate to legal reasoning in chapter two. To emphasize that rules are an essential part of legal reasoning, Schauer says, “[r]easoning with rules is perhaps the most common image of what lawyers andjudges do”. He goes on to say that “[r]ules actually do occupy a large part of law and legal reasoning” because “lawyers frequently consult [rules], and judges often make decisions by following them”. Throughout this chapter, Schauer emphasizes that rules have background justifications, or rationales, which is the goal that the rule is designed to sen/e and the background justification of the rule is just as important to legal reasoning as the rule itself.
To explain, Schauer gives a great example of driving safely and its relation to the speed limit, essentially, the example is that the speed limit is 55 miles per hour and schauer questions why that might be. He explains that because some authority sets the speed limit for drivers of all experience, for cars of all natures, and for traffic of all weight the logical explanation of the speed limit is to achieve safety. Next, Schauer goes to give a hypothetical. “Suppose that you are driving your new and carefully maintained care one clear, dry, traffic-free Sunday morning. Because you are a good driver and because the conditions are ideal, you decide to drive 7 perfectly safely 7 at 70 [miles per hour]”. The hypothetical continues and a police officer pulls the driver over. The driver then explains to the police officer that while the speed limit is 55, the speed limit is in place to achieve safety, and because the driver was driving safely at 70, he should not receive a ticket for speeding.
Of course, the police officer in the hypothetical points to the speed limit sign says the speed limit is 55, and writes the driver a speeding ticket. This example goes to show that “these concrete rules are designed to serve the background justifications, but it is the rule itself that carries the force of law, and it is the rule itself that ordinarily dictates the legal outcome”. In other words, what the rule actually says really matters even though the rule may bejust trying to serve its rationale another central feature of rules that distinguishes legal reasoning from other types of reasoning is the formality of the law. In this section of Schauer’s book, he describes the difference between the letter and the spirit of the law, and how neither are more dominant than one another. The letter of the law merely means the literal language of the law, while the spirit of the law means what the intentions behind the law may be.
Although nonformal (is. realistic or the spirit of the law) thinking of the law may be important in some cases, “the formality of the law is what distinguishes law from many other decision-making contexts” A great example of the two in action is in a case called Hunter v. Norman. In this case, Hunter is going to run for political office and if he wants to run for political office he must turn in his petition by 5:00pm on the day it was due. When that day came around, he turned in his petition at 5:03pm and because of such, he was not able to run Well, Hunter took this to court where he argued that the intention of the law was not to be taken so literally that he must turn it in at or before 5:00pm. The judge in this case ruled that Hunter could no run for office because he turned in his petition late according to the regulation that he must turn his petition in by 5:00pm on the day it was due.
Therefore, the judge interpreted the letter of the law very seriously in this case. On appeal, however, Hunter was allowed to run because the appellatejudge ruled that precedent offered Hunter an escape route in which the S200pm due time was not so binding. This is a clear and excellent example of how the letter and spirit of the law are distinctive features of legal reasoning Another ubiquitous feature of legal reasoning is reasoning by analogy. First, in chapter five, Schauer distinguishes the difference between arguing by analogy and arguing from precedent. He says that most analogies drawn in legal argument are from comparing the current case to a past case, but resisting the link between precedent and argument from analogy is necessary. More specifically, Schauer states that “law’s use of precedent thus differs substantially from law’s use of analogy, for in the latter a previous decision is selected in order to support an argument now, while in the former a previous decision imposes itself to preclude an otherwise preferred outcome”.
The biggest difference, according to Schauer, between precedent and argument by analogy is that precedent constrains and freedom of decision is absent whereas argument by analogy has choices among a variety of sources. To put it differently, an argument by analogy creates a choice where the use of precedent creates no choice at all, Schauer goes on in this chapter to explain “[t]he crux of an analogical argument is the claim that some act or event or thing that we encounter now is similar to something we have encountered previously“. Furthermore, it is important to note that, with analogies, determining what is legally relevant is essential to the argument. Thus, what distinguishes the good arguments from the bad ones is not that the good arguments are based on similarity whilst the bad ones are not, because both are based on similarity. Rather, the good arguments appear to draw on a relevant similarity, while the bad arguments draw on similarities that are not legally relevant at all, even if those similarities might be relevant for other purposes.
For example, Schauer gives the example that a lawyer might argue “that gun dealers should be liable to anyone injured by a gun illegally sold to a minor” because it is analogous to “sellers of alcoholic beverages, especially to minors, are often liable to those injured or killed as a result of the actions of an intoxicated purchaser”. It is important to see here that argument by analogy, while it may not be completely distinctive to the law (as argument by analogy is used elsewhere), argument by analogy is a pervasive feature of legal reasoning and should be regarded just as important as other characteristics of legal reasoning. In sum, Thinking LikeALawyer by Frederick Schauer is an outstanding account of what legal reasoning and thinking like a lawyer really is, Moreover, Schauer presents a clear and concise argument for why legal reasoning is a distinctive form of reasoning, separate and important from others. It is through the aforementioned modes and characteristics of legal reasoning (Le, precedent, rules, and argument by analogy) that make it is exceptional and unparalleled.