[The previous essays in this series are here, here, here, here, here, here, here, here, here, here, and here.]
One of the nine “Core Lists” that I recommend that law students construct is “an ABC list of Arguments, Building Blocks, and Clauses. . . that you encounter in your classes and assigned reading.” I’ve suggested, “[Y]ou might even keep and organize [it] on index cards.”
Beyond my book’s initial list of thirteen themes, three authors in particular supply entries for such a “starter deck,” which you can expand and customize during your law school journey.
If—as the titles of two of their books indicate—these practical and theoretical elements constitute the “tools” of law students and practitioners, then a list, table, diagram, or deck would be a handy pegboard with which to neatly separate and organize them.
● Joel P. Trachman’s The Tools of Argument: How the Best Lawyers Think, Argue, and Win (2013) collects, introduces, and explains dozens of arguments (and their corresponding counter-arguments, and even counter-counter-arguments) in the categories of: procedure; interpretation; use of precedent; facts and evidence; and standards of legal responsibility.
These tactics, and his examples, range across the law school curriculum, including civil procedure, torts, contracts, evidence, constitutional law, international law, and jurisprudence.
Trachtman, a professor of international law at Tufts University’s The Fletcher School of Law and Diplomacy, carefully states in the book’s introduction that “Lawyers are the modern heirs of the ancient Greek sophists, the worst of whom sought to ‘make the weaker argument appear the stronger.’”
However, he provides no source for this quotation, despite his declaration that “Citations allow the reader to see, and to evaluate for himself, the quality of the support for the author’s statements.”
In fact, he ultimately adopts the more pejorative, and “ethically unappealing,” meaning of the word: “This book is not intended to school sophists. But it does include a taxonomy of the tools of sophistry so they can be identified and countered.”
Thus, Trachtman might to some degree contradict his book’s emphasis on clarifying the meaning of terms, especially to preclude disputes about the drafter’s “original intent.”
(The current popular understanding of sophist, like that of stoic, cynic, and epicurean, actually departs considerably from the tenets and techniques of the ancient Greek schools of philosophy known by the respective (capitalized) name.)
● Ward Farnsworth’s more complex The Legal Analyst: A Toolkit for Thinking About the Law (2007) focuses on “ideas that can be introduced effectively with a bunch of good examples in a short chapter.”
The author, a professor at the University of Texas at Austin School of Law, thus acknowleges “notable omissions [that] include ideas from moral theory, from critical legal studies, and from legal realism [and] theories of constitutional interpretation. . . . “
Farnsworth’s thirty-one chapters, most of which conclude with a helpfully annotated list of related law review articles and books, are “grouped into five parts”: “incentives: the effects that legal decisions have on the choices people make afterwards”; “trust, cooperation, and other problems that arise when people work together”; “subjects from jurisprudence”; “cognitive psychology” and “the ways that people may act irrationally”; and, “problems of proof.”
Most useful to the beginner might be the jurisprudence section’s discussion of “Rules and Standards,” “Slippery Slopes,” “Property Rules and Liability Rules,” and “Baselines.”
Those without a background in economics should appreciate much of the first section, which presents such concepts as efficiency, waste, rent seeking (“wasteful efforts to gain a prize,” or “competition over the way some good thing ought to be distributed”), and Coase’s Theorem (“in a world with no transaction costs. . . . rights naturally flow into the hands of whoever will pay the most for them”).
The second section examines game theory situations, like the prisoner’s dilemma and the stag hunt, without demanding mathematical skills or a calculator.
Throughout, The Legal Analyst includes examples and illustrations of the concepts, and clearly analyzes their practical import for lawyers, clients, the court, and the public.
● Parts of Farnsworth’s fourth section (and some elements of his fifth)—like Trachtman’s discussion of such “Rhetorical Tricks” as misleading logical or causal connections—are more deeply explored in Nobel Prize laureate Daniel Kahneman’s magisterial Thinking, Fast and Slow (2011).
Kahneman, an emeritus professor of psychology at Princeton (and also of Psychology and Public Affairs, at The Princeton School of Public and International Affairs), pioneered with Amos Tversky the field of “behavioral economics” (sometimes referred to as “neuroeconomics”). His longtime best-seller summarizes for non-specialists the findings and implications of his earlier and more technical articles (some of which Farnsworth cites).
After reviewing an unsettling and humbling catalog of psychological pitfalls to which even the most (subjectively) careful decision-maker might succumb, the author concludes modestly that, in general, “[M]y intuitive thinking is just as prone to overconfidence, extreme predictions, and the planning fallacy as it was before I made a study of these issues. I have improved only in my ability to recognize situations in which errors are likely. . . .” and thus to “slow down, and ask for reinforcement from System 2” (his shorthand reference to one’s non-intuitive, deliberative, and effortful mental processes).
Lawyers might well educate themselve and their individual and corporate clients about these potential vulnerabilities, and help develop cognitive countermeasures, including decision-making processes.
In particular, “Organizations are better than individuals when it comes to avoiding errors, because they naturally think more slowly and have the power to impose orderly procedures.”
Appendix B of my own book lists, categorizes, and summarizes dozens of such traps, and offers a starter set of “Preventive Procedures, Policies, and Protocols.”
