Is Law An Effective Way To Analyze And Solve Problems?
Using Legal Skills To Analyze And Solve Problems Outside of Law
Since law school is supposed to improve their analytical reasoning and rational decision making skills, some people hope a legal education and law practice will give them useful skills for non-law endeavors. There is some justification for that view; law school does encourage students to spot issues and to apply concepts from one area of law in another. Yet the approach to problems taught in law can also hinder the individuals from seeking and accomplishing their non-law objectives.
Adversity: a lot of successful people accomplish their goals by finding the path of least resistance and adversity. Our litigation situation is premised upon sharpening adversity. Many successful people or social entrepreneurs spend time focusing on how to make their ideas succeed. They are aware of what could go wrong or how someone could object, but they do not become preoccupied by these concerns. Prudent risk avoidance is a better approach.
Dysfunctional System: The adversarial system in its full form as practiced in law is not used outside of law, although sometime a lawyer will tend to gravitate towards that line of thinking. An adversarial system is not used in most business and scientific fact-finding projects. Work in these fields is scrutinized, but there objective of the evaluator is not to make the person fail. Adversarial systems also are not used for internal fact finding - a manager wanting employees to evaluate a proposal would not create two camps of opposing employees, then have each camp research facts, hiding ones that don't support their assigned position, then quibble over procedural details on how the assignment should be done, then each present opposing views to their boss. Some employees may engage in these tactics anyway if they have a lot of pride or reputation invested in a particular position, but most managers would not find those behaviors to be desirable for making good decisions. Many managers instead would rather have the fact-finders be open-minded enough to recognize a coworker's approach to a problem if it works better than theirs.
Lack of Fluid Reasoning: In some scientific and engineering applications, certain underlying mathematic and scientific laws can be learned to the point where they become engrained in the subconscious mind of the professional, to be applied when designing new experiments or inventions. In law, mechanically applying literal rules can also in absurd policy consequences, including policies going against the purpose of the rules. Often in some areas of law, like antitrust law, most laws become “rules of reason”, subject to long balancing tests. This thinking style does not allow one to fluidly learn rules to the point where they can be subconsciously applied, as they could potentially be argued in many cases.
Convention, Precedent, and Prestige: These characteristics of the legal profession hinder its ability to adapt to changed circumstances and opportunities. Some lawyers may therefore be hurt as economy and foreign competition change the economic landscape. For example, laid-off lawyers can face restrictions on where they can work due to conflicts with prior clients. They face limitations on how they can advertise their services. It is risky to be constrained by rigid rules and conventions in a changing world. It is also risky to think in terms of these constraints. Legal training may make people think in terms of what authorities tell them to do, rather than using any innovative approach they can think up. One newspaper columnist recently commented on need for an innovative mindset in order to remain competitive, even in law.
Subconscious, Intuitive Reasoning Not Favored: In many professions, subconscious, instantaneous discoveries and decision making occurs even if not recognized. Any person working in a job with other people must be able to read facial expressions and other emotional clues in customers or coworkers. Even scientists and engineers often use an intuitive understanding of the subject matter to motivate the discoveries that they later document. Books like Malcolm Gladwell's “Blink” discuss the process of subconscious thinking in great detail, along with its benefits and shortcomings.
Yet in law that type of reasoning is not really favored because it is difficult to document and persuade people with. Commentators like Judge Richard Posner have criticized the book above and its advocacy for subconscious thinking as promoting laziness. Some casebooks and class discussion are based on the premise that everything governed by law can be reasoned out until the correct or best answer is found with little emphasis on either empirical evidence or intuition.
Final Thoughts on Using Legal Skills To Analyze and Solve Problems Outside of Law
Many people hope the analytical reasoning and attention to detail taught in law school and law practice will be helpful elsewhere. There is some truth to this view; yet law also comes with its baggage. The adversarial mentality of law, the importance placed on precedent and prestige, and the lack of importance placed on intuitive reasoning can impede former lawyers when they seek other endeavors.