Law schools have traditionally purported to teach students how to “think like lawyers” rather than relying on their intuitions. Monday, without having law schools in mind, the Wall Street Journal offered a number of observations that cast doubt on many beliefs that persist in American law schools. The most important was this pair of observations. The number of calculations that the conscious brain can work on at any one time is one, only one. The number of calculations that the unconscious parts of the brain can work on at any one time stretches into the billions.
This is not new, but many law school professors believe that their main job in the first year is to combat emotions (which are invariably preceded by cognition) and intuitions, by demanding conscious rational analytic thought. Don’t get me wrong. Conscious analytic thought is often indispensable. But it is not the main engine of legal analysis, and it is not the primary form of rational thought.
In law school classrooms, despite their assault on intuitions, professors daily challenge students to confront hypotheticals. The hypotheticals work because the unconscious brain tells us that the “rule” we thought was a sound formulation to explain one case does not work at all in other cases. Our unconscious mind gives us answers to the hypotheticals and we are left with the task of consciously formulating the rules with which our unconscious mind has been operating. It is mind numbing to suggest that students cast aside their intuitions.
There is little that is special about legal thinking except that it takes place in a particular community of discourse with particular conventions and a large body of rules. Learning law-speak is more like learning a foreign language than learning how to think. If thinking like a lawyer means squelching emotions and intuitions, law school should abandon the process of teaching students to think like lawyers. Instead, they should encourage students to think like human beings.