by David M. Phillips, Professor of Law
“What will I learn in the first year of law school?,” is a frequently asked question directed at a law professor. There are many answers to this question. Without pretending to be exhaustive, let me tender a partial answer, one focusing upon a changing conception of what we mean by law and one related to a skill that the first year of law school enhances.
Like other lay people, many students entering law school think that law consists of a rule, for example, that is illegal to drive in excess of 30 mph on a particular city street. Open the “right” book and find the “law.” But one who thinks like a lawyer will want to know why one is asking the question about the speed limit. In most settings we want to know what the law is because we want to predict how a decision maker will react to some action that we want to take or have taken. The decision maker, in this very simple example, might be a police officer or, if we were to challenge a traffic ticket, a magistrate that might decide whether the ticket was warranted.
Consider a more complex example: one corporation (an “acquirer) wants to acquire another corporation (the “target”), and the board of directors of the target wants to take measures to defend against the takeover attempt. May it defend, and, if so, are all measures or only some measures acceptable if challenged in court? In this case the decision makers are likely to be judges if either the acquirer or the target’s own shareholders challenge the defensive tactic in court. How is a court likely to decide whether the defensive tactic is “lawful?” The judge is likely to consult a variety of sources. Is there a constitutional issue? Is there a statute that deals with or relates to the defensive tactic? Have other courts previously considered the issue and, if so, how have these courts decided? What have scholars said about the legitimacy of the takeover tactic? Are long-standing public policies implicated in deciding the issue? In short, students soon learn that the “law” is only infrequently a simple rule. Rather, it is more accurate to speak of “sources of law” that decision makers would consult in making a decision about an action or challenged action. There is a hierarchy among these sources, but the key point is that knowing the “law” is rarely as simple as looking in one place at one source.
One skill that a law student who successfully completes the first year acquires is the capacity to think more critically. What does this mean? Not all “facts” a client relates to a lawyer are of equal relevance. Nor does a client initially reveal to a lawyer all that the lawyer might think relevant to a case. And not all possible arguments are of equal value. Despite the client’s impression, some arguments might even be counterproductive. Selecting or eliciting those facts that are relevant, making a reasoned argument that helps rather than hurts one’s client, asking questions that cut through a variety of facts or arguments – all of these skills are aspects of what can be called “critical thinking.” By the end of the first year, a student will be a much more critical thinker than when the student began law school.