A Review of Tactics of Legal Reasoning by Pierre Schlag and David Skove

Reich, Charles A.

English

bepress Legal Repository

All The Right Moves

University of Michigan School of Law

Michigan Law Review Volume 85 Issue 5 Issue 5&6 1987 All The Right Moves Charles A. Reich University of San Francisco School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Legal Education Commons Recommended Citation Charles A. Reich, All The Right Moves, 85 MICH. L. REV. 1201 (1987). Available at: https://repository.law.umich.edu/mlr/vol85/iss5/34  This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. ALL THE RIGHT MOVES Charles A. Reich* TACTICS OF LEGAL REASONING. By Pierre Schlag and David Skover. Durham: Carolina Academic Press. 1986. Pp. x, 105. Cloth, $12.95; Paper, $6.75. This very brief and lucid book offers an outline of the most com-mon flaws in legal arguments and how such flawed arguments may be effectively attacked. Usually the student will encounter these forms of bad reasoning during ordinary law school work. The special contribu-tion of Professors Schlag and Skover is to assemble and organize all of these reasoning errors so they can be studied, and the skill of answer-ing them practiced, independently of substantive courses. The authors hope to encourage students to think of attacking weaknesses in reasoning as being similar to learning "moves" in sports. The lawyer's craft of argumentation is broken down into its component units so that these can be mastered by drill, just as the basketball player's flowing play of a game has previously been prac-ticed in units such as dribbling or blocking. Can this approach accom-plish any educational purpose that is not already served by the many debates and discussions that take place in classrooms, in the hallways, over meals, or wherever two or more law students are found? _ Law school teachers frequently say that nothing can be done to change the fact that some students are bright, some are not bright, and most occupy a middle ground in between. It is assumed that there is a sort of legal intelligence, or lack of the same, that does not change much despite the best efforts of teachers. This is an assumption that must be challenged if we want a broadly based legal profession. Tac-tics of Legal Reasoning may be a good way to bring about improve-ments in legal intelligence that might not occur as the result of classroom experience alone. Too many things happen in the classroom: the study oflegal rules, exceptions, and distinctions, the analysis of cases, the use and misuse of precedent. Often students who make mistakes are given little chance to practice a correct response, certainly not at their own pace. One could hardly learn to type if after a mistake the task was quickly transferred to someone else. Schlag and Skover offer a way of leisurely practicing one "move" at a time. It seems a promising way to learn. * Marshall P. Madison Visiting Professor of Law, University of San Francisco School of Law. A.B. 1949, Oberlin College; LLB. 1952, Yale University. - Ed. 1201 1202 Michigan Law Review [Vol. 85:1201 It is also helpful to see common errors in reasoning organized by general headings, such as faulty premises or improper levels of ab-straction. The headings are accompanied by illustrations or examples. Thus, under the subheading "Improper Combination of Levels of Ab-straction," the example is given of a court undertaking to balance "the value of a particular speaker's speech, and see if it is offset by the gen-eral societal interest in regulating this type of speech" (p. 42). This is an error we hear quite commonly today, as when would-be drug test-ers say that an employee's right to privacy must yield to the public's concern with safety. But while we hear the error often, we seldom hear it identified as an error, and almost never do we hear the error described by its generic name as a wrong combination of levels of ab-straction. A student who learns to recognize and classify a form of mistaken thinking in this way should be able to increase his or her "legal intelligence." The ability to identify logical errors by name and example may require not only comprehension, but also practice and drill. Here too, this book is valuable, because it encourages the notion that drill may be appropriate and advantageous. Athletes practice the same moves hundreds or thousands of times. No athlete would imagine that it would be enough to hear the coach describe a move, watch a demon-stration by another player, and wait to try the move in the midst of play. But law students are led to believe they must either successfully jump into the middle of legal argument or think themselves unintelli-gent. The middle way of drill, on this level of learning to think, is seldom presented as an available method of helping intelligence to grow. Some law students have in fact been practicing arguments all their lives. If one, or both, of their parents are lawyers, they may have grown up in a home where verbal and logical skills are in use every day. Other students come from backgrounds which are much less ver-bal. This can be a severe disadvantage, and law schools are hard put to help students to compensate. The more that the discrepancy can be seen as one of practice, and not of innate ability, the more disadvan-tage is likely to be overcome. In his essay on "Power" in The Conduct of Life Emerson says that although personal power derives from qualities that are inborn, power may nevertheless be improved by two "economies": concentration and drill. This advice, so frequent in the case of nonintellectual abili-ties, is too seldom offered to those who are not, or do not consider themselves, gifted thinkers. "Practice is nine-tenths. A course of mobs is good for orators. All the great speakers were bad speakers at first. . . . A humorous friend of mine [Thoreau?] thinks that the reason why Nature is so perfect in her art, and gets up such inconceivably fine sunsets, is that she has learned how, April-May 1987] All The Right Moves 1203 at last, by dint of doing the same thing so very often."1 Some of the fallacious arguments that the authors dispose of in a page have held sway over courts for years, and continue to mislead editorial writers, officials, and the public. For example, the category "False Dichotomy" is illustrated by the "right-privilege" distinction. The false statement is that a legal entitlement is either a right, which is protected, or a privilege, which the state can take away at will. The authors observe that "a legal entitlement may fall somewhere in be-tween an absolute right and a privilege" (p. 34). If, in the future, the law of entitlements continues to develop more and more complexity, lawyers will need all the training they can get in escaping from the danger of inadequate reasoning due to false dichotomies. The outline of arguments and responses takes up about half of this book. In the second half, the reasoning in four judicial opinions, all casebook classics, is analyzed. The cases are from four areas: prop-erty, constitutional law, criminal law, and torts. Students are likely to remember these cases for almost anything except the type of reasoning at issue. Once the error of reasoning is pointed out, the familiarity of the case makes it easier to remember its particular type of fl.awed thinking. In the property example, Pierson v. Post, 2 a saucy intruder was allowed to make off with the quarry of some fox hunters, because their pursuit, while close, had not yet become "occupancy." The au-thors call this an example of "ideological overstatement" because "there are standards other than occupancy that could well serve to define the point at which one acquires a property right in a wild animal" (pp. 56-57). We do not usually associate "ideological over-statement" with Pierson v. Post, being more likely to remember the learned and humorous dissent by Livingston, J., as a gem of legal wit. It seems a good move by the authors to make sure that if we ever have to think about ideological overstatements, we can remember the rea-son for the decision against the frustrated gentlemen hunters who pur-sued "the windings of this wily quadruped."3 Tactics of Legal Reasoning is an unpretentious book with a simple aim. In these days when the catalogues of our leading law schools offer such courses as "Anarchy, Liberty, and Community," or "The Tyranny of Kant," this book may seem unsophisticated. On the other hand, the basics still matter. For those who want to learn and practice the fundamental "moves" of legal argument, this unique book should offer welcome help. Clear thinking will always be in short supply, in the law and else-where. Professors Schlag and Skover offer a valuable tool toward a commendable end. 1. R. EMERSON, Power, in THE CONDUCT OF LIFE 78 (1860). 2. Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). 3. 3 Cai. R. at 180. 

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