Chancellor Jack Weiss welcomed 226 new 1Ls into the Law Center community at First-Year Orientation held on August 12–13. “Today – here, now – is where it all starts,” said Weiss. His remarks focused on the importance of thinking critically and making sound, ethical professional judgments about the law and legal matters.
Weiss discussed U.S. Supreme Court cases in the 1800s and a pivotal battle in military history to drive his points home. “As for good legal judgment…a very wise lawyer once said to me that practicing law is all about knowing when to fight…You got know when to hold ‘em, know when to fold ‘em – know when to walk away and know when to run.”
“All the legal training in the world is worthless if it leads you, in Judge Alvin B. Rubin’s words, to follow “impeccable chains of logic that lead inexorably to the wrong conclusion,” said Weiss.
Excerpts from the Chancellor’s Remarks
This morning, I want to convey to you a couple of perspectives on your studies here that I hope will surprise you and even shake you up a little:
First: I want to emphasize the importance of thinking critically about the law, in fact, the importance of thinking critically about everything you read and hear in the course of your studies.
Second: I want to focus on the ultimate aim of your studies, which is to be able to make sound (and of course ethical) professional judgments about the law and legal matters.
1- Let’s start with thinking critically.
You’ve all heard that the first year of law school is about learning to “think like a lawyer”. Well, just what does that mean?
Before I attended law school, I assumed that lawyers learned by rote a whole lot of complicated rules called “the law” and on those rare occasions when they didn’t know the rules by heart, they went to some heavy books and looked up the rules—like going to the dictionary to look up the meaning of an unfamiliar word.
By the same token, when there was a disagreement among lawyers or their clients about what the rule really was, and the parties went to court to resolve it, I thought a judge either knew the rules better or was more gifted at finding the rules. The judge pronounced what the rule really was, and that was that.
Judges, in other words, were like Greek oracles; when the lawyers weren’t able to figure out the answers to legal questions, judges did, and, by definition, they got it right. It was the right answer because a judge said it was right.
Well, guess what? More often than not, the answers to legal questions aren’t clear at all.
And far from being infallible, judges often get it wrong or if they do get it right, they often don’t explain their answers very well or always even correctly.
We have only to look to history to know that very important judges got very important interpretations of very important law, including the U.S. Constitution, very wrong, with disastrous consequences for lots of real people. I am thinking of the famous Dred Scott decision of the U.S. Supreme Court in 1857 reinforcing the institution of slavery and the Court’s 1896 decision in Plessy v. Ferguson upholding the constitutionality of state laws requiring racial segregation under the doctrine of “separate but equal”.
What this means for the study of law is that your job isn’t just (or even primarily) to memorize a lot of rules and citations but to use those rules and those citations to figure out what the right answer to a legal problem should be and to be able to explain why (both in writing and orally).
You should also be able to choose among different rationales that lead to the same result and be able to explain why the rationale you have chosen is the soundest choice.
How to develop this skill of critical thinking? One of my law professors suggested in a first year class that you will develop this skill most readily not to assume that everything you read and hear about the law is right, but that everything you read and hear is WRONG.
You then consider how the matter might have been decided or explained differently, and reexamine whether your initial assumption of “wrongness” is “right”.
In other words, you take Humpty Dumpty apart and then put him back together again.
So for Pete’s sake don’t be shy. Don’t be afraid to question or to doubt. You have not been brought here to worship before the shrine of infallible law but rather to use your own education and your own critical facilities to understand the law as articulated by others, to come to grips with the strengths and weaknesses of their vision of the law, and to be able to improve the law through your own independent thinking.
2- But I have another surprise for you. The business of great lawyering and great judging doesn’t end with critical thinking. Critical thinking is just the prelude to Exercising sound judgment.
Thinking critically is just the beginning of what you must learn to do. It is only a means to an end.
And what is that end? It is being able to make, after you have taken a critical view of the law and all relevant facts and circumstances into account, a real world, sound, practical judgment about your client’s chances of success and best course of action.
There are many different ways to describe good judgment.
My father, who graduated from Tulane in 1938, was told on his first day there that the purpose of a college education is to teach you to know a good person when you see one.
That’s a pretty useful general standard.
As for good legal judgment, specifically, a very wise lawyer once said to me that practicing law is all about knowing when to fight.
Or as the song goes, “you gotta know when to hold ‘em, know when to fold ‘em—know when to walk away and know when to run.”
In June, I had the privilege of attending the Army War College in Carlisle, PA for a weeklong seminar on national security issues.
I was interested to see how our nation’s military leaders study strategy and leadership, and whether those subjects could be incorporated into the law school curriculum in some way.
All students at the War College take a strategic tour (“staff ride”) of the Civil War battlefield at Gettysburg. It was my own first visit to Gettysburg, and I found it a very moving, as well as a very educational, experience.
I want to share some of that experience with you today in the hope that long after you have forgotten my remarks today you will remember the lessons of Gettysburg.
How many of you are familiar with the battle of Gettysburg? The battle took place on July 1, 2 and 3, 1863, and it resulted in a disastrous defeat for the Confederate Army under the leadership of General Robert E. Lee. In time, the battle has come to be viewed as the turning point in the Civil War.
Gettysburg is especially relevant to law school and law study (just as it is to students of military strategy) because Lee chose to fight there—made the judgment to fight there– over the strong advice of his senior corps commander, Lt. General James Longstreet.
After the first day of fighting on July 1, 1863, the Union forces occupied a series of elevated ridges above the town of Gettysburg. Lee’s forces were arrayed on much lower ground on what amounted to a series of fields. This difference was strategically critical because it enabled the Union forces to fire their artillery and rifles down at the attacking Confederates and forced the Confederates to attack uphill against defensive Union positions.
Here is what the terrain occupied by the Union looked like from Lee’s and Longstreet’s vantage point after the fighting on July 1: [SHOW SLIDE]
Lee was not trapped. He was forced to stand and fight. To the contrary, he could have withdrawn his forces to the south, occupied high ground there in Maryland or Virginia, and tried to lure the Union army in to an uphill fight against Lee’s own defensive position.
Most historians believe that Longstreet strongly urged Lee to disengage in this manner and not continue the fight at Gettysburg.
In Hallowed Ground: A Walk at Gettysburg, the great Civil War historian James McPherson recalls Longstreet’s later account of this critical battlefield decision-making session between Lee and Longstreet. In my mind’s eye, I see this conversation taking place as Lee and Longstreet look up at the high ground occupied by the Union forces:
“General Lee,” Longstreet quotes himself as saying, “I have been a soldier all my life. I have been with soldiers engaged in fights by couples, by squads, companies, regiments, divisions, and armies, and should know as well as anyone what soldiers can do. It is my opinion that no fifteen thousand men ever arrayed for battle can take that position.”
Lee, however, had extraordinary confidence in the fighting ability of his men, and persisted in his plans for an offensive assault on the Union position. He ordered Longstreet himself to lead the uphill attack on the Union.
McPherson again quotes Longstreet’s account: “My heart was heavy,” Longstreet later recalled. “I could see the desperate and hopeless nature of the charge and the cruel slaughter it would cause. That day at Gettysburg was the saddest of my life.”
And so it came to pass that the Confederate army was decimated by its uphill attacks on July 2 and July 3, 1863, including the infamous and murderous Pickett’s Charge on July 3.
Here is a statue of Longstreet at the battlefield: [SEE SLIDE]
And here is a short clip from the Hollywood movie Gettysburg recreating the key discussion between Lee and Longstreet: (I take no responsibility for Martin Sheen’s portrayal of General Lee) [SEE CLIP]
So what do Lee and Longstreet at Gettysburg have to do with the study of law? In law as in war, just knowing a lot of stuff won’t get you where you want to go. It’s all about judgment. Yes, you need to understand the cases, the statutes you will read, the established “black letter” principles of law. It is essential that you use your powers of critical thinking to interpret the meaning, the nuances and limitations, of the hundreds if not thousands of cases and statutes you will read, here in law school and after you get out. (Think here of Longstreet’s reference to having been in fights ranging from hand to hand combat to conflicts involving entire armies of thousands of men.) And yes, you need to dissect and understand the relevant facts shaping any legal choice, just like military leaders need “intel”—battlefield facts—to guide them in combat.
But ultimately the success or failure of the best lawyers and judges—like the best generals—turns on their judgment. It turns on their ability to synthesize their technical training, their prior experience of the world and of human nature, and the reality of the situation before them and to get the big decisions right when there is ambiguity and uncertainty about the proper course of action—as inevitably there is in important and complex matters. In military lore, this uncertainty is often referred to as “the fog of war”, but similar uncertainty and ambiguity likewise applies to all but the simplest legal disputes and judgments.
The legal training on which you embark today, then, is not an end in itself. It is a foundation for the exercise of sound judgment. I urge you to cultivate that skill from this day on and to consider in all of your work here the judgments—of lawyers, judges, and clients—that underlie the materials you will study. Make no mistake, however: you cannot possibly exercise sound judgment without immersing yourself in the raw materials of our profession—cases, statutes, facts, and critical thinking about all of them—just as Longstreet’s prophetic judgment on July 2, 1863 was framed by his education at West Point and his technical knowledge and long experience of military conflict.
To summarize, then:
1- Learning to think like a lawyer is learning to think critically, not learning to ingest and regurgitate huge amounts of rote material.
2- The ultimate aim of legal education is to enable you to make sound and ethical professional judgments. All the legal training in the world is worthless if it leads you, in Judge Alvin B. Rubin’s words, to follow “impeccable chains of logic that lead inexorably to the wrong conclusion.”
