Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (1970); Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986); Jerry Frug, Argument as Character, 40 Stan. L. Rev. 869 (1988).

(1) Write a brief account of how legal reasoning works, at least as you have been taught it in law school?

(2) Write a brief account of how you think moral reasoning works.

(3) What similarities and differences do you find in your accounts of legal and moral reasoning?

(4) Over the course of several years, the case of Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (1970) was distributed to incoming first year students to be read and discussed during orientation. For many students, this case was, we might assume, the first law they had ever read.

Can you speculate about what it was, in the way of moral and legal reasoning, that the law school was teaching in the use of this case?

(5) How does Jerry Frug, in his essay, "Argument in Character" ask you to link moral and legal reasoning?

(6) How does Duncan Kennedy's explanation of legal reasoning square with the one you have been taught in law school?

(i) What claims and argument do you find in Kennedy's phenomenology of judging about judging as a moral enterprise?

(ii) What kind of "freedom" does Duncan Kennedy identify for a judge to decide a case, a so-called hard case (a case where the rule seems to dictate a contrary result) so that it accords with his or her sense of justice? Is it this freedom that makes judges moral actors?

(iii) What kind of constraints does Kennedy describe for the liberal activist (or radical) judge who seeks to reach an outcome in a particular case that accords with her sense of justice?

(iv) How would you describe the "work" of judging as Kennedy presents it? Kennedy says "I have presented the activity of argument as a kind of work, undertaken in a medium, with a purpose." [544]

In law school, there is talk (at least), behind the scenes) of teaching you to "think like a lawyer." Our concern here is how thinking like a lawyer implies thinking like a good lawyer in the Socratic, Platonic, sense of good.

The implication in the notion that you are being taught to think like a lawyer is two fold: First, lawyers do their work, use law, and employ their skills, by a process of reasoning, that is, a way of thinking, peculiar to lawyers. To think like a lawyer is to reason like a lawyer, to think using law as our guide. (When we think like a lawyer we may also talk like one, and even learn to look like one, but that is another story.) The second implication is that lawyers, when they think like lawyers do something that other folks don't do. But do they?

If we mean by "think like a lawyer" only that lawyers think about subjects that plumbers, accountants, and elementary school teachers don't have to think about, this is undoubtedly true. But we probably mean something more than this when we talk about thinking like a lawyer. Otherwise, the study of law would be like the study of accounting, and advocates and critics alike would not talk about legal education the way they do. Lewis H. LaRue, an astute observer of legal education, comments that "[i]n law schools, as in courtrooms, most arguments proceed from within the system; one of the skills that students must learn is how to jump into the system and argue from within. However, the experience of 'jumping in' can be baffling and disorienting." [Lewis H. LaRue, A Student's Guide to the Study of Law: An Introduction 4 (New York: Matthew Bender & Co., 1987)]

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