Beyond Legal Reasoning: a Critique of Pure Lawyering
The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.
This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.
1.Why a Critique?
2. The Logic of Pure Lawyering
3. Assessing Theory-Making in Pure Lawyering
4. Games and Models
5. Causation and Blame
6. Action, Authority, Rationalization, and Judgment
7. Beyond Legal Reasoning
'Jeffrey Lipshaw combines acute legal and philosophical analysis with prodigious legal experience to explain to us both how lawyers do think and how they should think. He makes clear why lawyering needs a fundamental transformation, and starts us down the path to achieving it. Anyone perplexed or angered by the role of lawyers and lawyering in modern society should read this book.'
Professor Barry Schwartz, author of "Why We Work" and co-author of "Practical Wisdom".
'Jeffrey Lipshaw draws on long experience, first in corporate legal practice, then in teaching, to offer a unique and invaluable guide to legal reasoning: its use in practice and, more importantly, its limits. I would advise all law students who are considering a career in transactional law to read it right away.'
Professor Brian Bix, University of Minnesota, USA.
'Professor Jeffrey Lipshaw, who practiced law for more than 26 years, has written a great and timely book—calling to mind Karl Llewellyn’s efforts to champion "the grand tradition" of law as against "the formal style." Lipshaw leads the reader to recognize that if lawyering is to have any real value, it must shed its narrow self-image as weaponized reason, and achieve self-awareness to understand its language within broader moral, social, and philosophical contexts. It must in short understand itself as not merely a technical profession, but a liberal arts vocation.
This is a distinctive and learned book with a breezy earnest style all its own. Law students should read this after the 1L year, lawyers and academics at any time, and judges right away.'
University Distinguished Professor Pierre Schlag, University of Colorado, USA