The Legal Analyst: A Toolkit for Thinking about the Law

The Legal Analyst: A Toolkit for Thinking about the Law

The Legal Analyst: A Toolkit for Thinking about the Law

The Legal Analyst: A Toolkit for Thinking about the Law

Synopsis

There are two kinds of knowledge law school teaches: legal rules on the one hand, and tools for thinking about legal problems on the other. Although the tools are far more interesting and useful than the rules, they tend to be neglected in favor of other aspects of the curriculum. In The Legal Analyst, Ward Farnsworth brings together in one place all of the most powerful of those tools for thinking about law.

From classic ideas in game theory such as the "Prisoner's Dilemma" and the "Stag Hunt" to psychological principles such as hindsight bias and framing effects, from ideas in jurisprudence such as the slippery slope to more than two dozen other such principles, Farnsworth's guide leads readers through the fascinating world of legal thought. Each chapter introduces a single tool and shows how it can be used to solve different types of problems. The explanations are written in clear, lively language and illustrated with a wide range of examples.

The Legal Analyst is an indispensable user's manual for law students, experienced practitioners seeking a one-stop guide to legal principles, or anyone else with an interest in the law.

Excerpt

This book is a collection of tools for thinking about legal questions. It attempts to gather the most interesting ideas one learns about in law school—or should learn, or might wish to have learned—and explain them in plain language with lots of examples of how they work. The result is a kind of user’s guide meant to be helpful to a wide range of people: law students, lawyers, scholars, and anyone else with an interest in the legal system. An alternative title for the book, Thinking Like a Law Professor, might have been more descriptive but was rejected by the focus groups as ambiguous, as it might be construed as a threat rather than a promise.

That is a short account of this book and its purpose. A more detailed one has to begin with the way law usually is taught, which often seems to me to be upside down. There are, in general, two sorts of things one learns at a law school. First, there are lots of legal rules—principles that tell you whether a contract is valid, for example, or when people have to pay for accidents they cause, or what the difference is between murder and manslaughter. Second, there are tools for thinking about legal problems—ideas such as the prisoner’s dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias. Some of them are old matters of jurisprudence; a larger share have been imported into the law schools more recently from other disciplines, such as economics or psychology. In either event, these tools for thought are by far the more interesting, useful, and fun part of a legal education. They enable you to see more deeply into all sorts of questions, old and new, and say better, more penetrating things about them.

The problem is that law schools generally don’t teach those tools carefully or systematically. One might imagine it otherwise: law school courses could be organized around tools rather than legal subjects, so that in the first year everyone would take a course on the prisoner’s dilemma and other ideas from game theory, a little course on rules and standards, a course on cognitive psychology, and so on, and in each of those classes one would learn, along the way, a bit about contract law, a bit about tort law, and a bit about all the other major subjects. But instead law school is carved up the other way around: by legal topics, not by tools. There . . .

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