critical thinking in law pdf

Critical Thinking: An Essential Skill for Law Students, Lawyers, Law Professors, and Judges

Kindle Direct Publishing 2022

17 Pages Posted: 26 Jul 2022

Edwin S. Fruehwald

Independent

Date Written: July 16, 2022

Critical thinking is essential for law students, lawyers, law professors, and judges. Yet law schools have never systematically taught critical thinking to their students. The main purpose of this book is to help law students, lawyers, law professors, and judges become critical thinkers. Chapter One introduces the reader to the need for critical thinking in the law, and it will give two methods of evaluating how critical thinking works within legal education. Chapter Two helps the reader understand the basics of critical thinking. Most scholars think that critical thinking is domain specific, so Chapter Three presents the domain of the law. Chapter Four introduces an important facet of critical thinking–self-regulated (self-directed) learning. Chapter Five applies critical thinking basics to law’s domain, and it presents the details of critical thinking in the law. Chapter Six demonstrates how critical thinking can produce better legal writers. Chapter Seven focuses on judges and critical thinking. Chapter Eight shows how critical thinking can make you a better law professor. Chapter Nine shows how critical thinking processes can improve the use of the Socratic method in legal education. The final chapter brings everything together and highlights the most important aspects of critical thinking for law students, lawyers, law professors, and judges. Two appendices contain sample Socratic dialogues that employ critical thinking. I have included exercises and problems on critical thinking throughout the book.

Keywords: Critical Thinking, Legal Education, Lawyers, Judges

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The study of law : a critical thinking approach

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Developing Critical Thinking Through the Study of Law

By major taren wellman, assistant professor, u.s. air force academy, break it down to build it up.

A Practical Approach to Develop Critical Thinking

For better or worse, the military has a reputation for breaking people down before building them back up.  The military throws recruits into immersive training programs with the end goal of replacing many individual tendencies, assumptions, and behaviors with the professional and technical skills needed to perform their jobs.  Good critical thinking [1] is a trait desired by business leaders [2] and military commanders alike [3] .  But, a gap often exists between what industry needs and what higher education produces for the work force. [4]   Educators are on the front lines of bridging this gap.   

Fig. 1.  Critical thinking’s

“micro-skills” TO DEVELOP Analogical reasoning AND ADVOCACY ¥

• Identify issue(s) in need of solving.
• Seek and summarize relevant information.
• Synthesize information from separate sources.
• Identify assumptions and deficient information.
• Evaluate the strength of an interpretation or argument.
• Evaluate how strongly a relationship or analogy supports a claim.
• Develop alternative explanations.
• Distinguish reasonable from unreasonable inferences.
• Select and apply an appropriate process to develop solutions.
• Evaluate suitable solutions to a problem.
• Explain the best solution.
• Describe how changes to the problem or assumptions may affect the solution.
• Counter anticipated alternative solutions or arguments.

¥ See note 11.

Perhaps ironically, inspiration can be drawn from this “break it down” approach in the development of critical thinking.  By identifying subskills for critical thinking and designing activities to intentionally practice these subskills, immersing students in an environment that routinely practices and requires the essential skills of critical thinking can replace more shallow habits of thought.  By breaking down the skill of critical thinking into smaller, more manageable parts and designing activities to intentionally practice the parts, educators can make real progress in producing more creative problem-solvers and deep thinkers in and out of the classroom. [5]

Critical thinking as a whole is often assessed by being broken into essential sub-skills. [6]   While overlap may exist among the varying discrete skills tested, the exact complement of skills and phrasing varies. [7]   Not all sub-skills collections are created equal—some are more easily understood and put into practice than others.  The important point for educators is that critical thinking is developed by selecting a set of critical thinking sub-skills most applicable to one’s discipline, and then explicitly communicating and reinforcing those skills for students. [8]   In order to maximize applicability to the particular discipline of law, in which analogical reasoning [9] and advocacy is paramount, I have modified one such complement of sub-skills [10] to create the thirteen essential “micro-skills” shown at Figure 1. [11]  

Each of these micro-skills is unique and can be strengthened when specifically targeted and practiced.  The challenge for educators is to design activities and assessments that require students to practice the particular sub-skills of their discipline.  When regularly practiced through activities in the context of the course’s objectives, the overall goal of building better critical thinkers becomes much more natural and manageable than it may initially seem. [12]   The purpose of this article is to provide examples of small, [13] practical steps employed in an undergraduate, core law classroom to iterate the skills that together form robust critical thinking, particularly in the areas of analogical reasoning and advocacy.  While some of these are specific to the law discipline, we believe that analogous examples for other disciplines can fairly easily be created from the ones we share here.

Critical Thinking’s Critical parts

Identify Your Discipline’s Micro-skills to Practice  

While broad definitions of critical thinking vary widely [14] , themes emerge from the varying literature of skills and competencies that combine to form the broader concept of critical thinking. [15]   Generally, these skills are grouped into categories that include evaluating information, self-aware and reflective reasoning, creative thinking, problem-solving, decision-making, and effective communication. [16]   The categories describe habits of inquiry and analysis that serve students well when applied to new and changing contexts in both an academic setting and real world problems. [17]

The thirteen “micro-skills” identified above in Figure 1 were developed by starting with a validated [18] complement of subskills, then were gently modified to maximize applicability to the particular field of law.  For example, the CAT sub-skill of “identifying additional information needed to evaluate a hypothesis/interpretation” was simplified to merely “identifying deficient information”—a condition which naturally exists in trial where perfect information is always lacking but in which the scientific term hypothesis is rarely used.  Additionally, sub-skills which are used infrequently in the field of law were omitted, such as “using basic mathematical skills” and “determine whether an invited inference in an advertisement is supported by information.”  The terminology of sub-skills can be modified, of course, to maximize application in any field of study.  The order of sub-skills matters and should be matched to the particular field as well.  They should be intentionally sequenced to typify a problem-solving methodology within the discipline.  The “micro-skills” sequence developed here generally entails progressing through problem-defining (#1), fact-finding (#2-4), idea-finding and evaluation (#5-8), and solution-finding (#9-13). 

Within a particular course, students should be provided with multiple, varying opportunities to practice the essential micro-skills, and then reinforced and improved through skill-oriented feedback.    Repetition combined with well-designed assessments and feedback lead to student growth in the areas practiced. [19]   Even if courses vary in their particular selection, phrasing, and order of micro-skills, consistent practice and feedback across multiple courses will reinforce broader critical thinking habits and skill categories.

The discipline of law is ripe for micro-skill repetition.  Law is studied through reading cases—typically a judge’s opinion solving a controversy between two parties in a proceeding.  Many, if not all, of the thirteen micro-skills often appear in sequence in a court’s written opinion.  By dissecting cases, students learn to identify the relevant (or necessary) facts on which a case depends, deduce the rules that emerge from legal precedent, and see how courts select and apply those rules in new contexts.  New law is created by the parties applying and advocating particular lines of analogical reasoning.  As such, the discipline of law is a natural fit for practicing the particular critical thinking micro-skills of Figure 1 in nearly every reading and assignment. 

In law, the problem-finding, fact-finding, idea-finding, and solution-finding process is captured by the universally-utilized “FIRAC” model. [20]   FIRAC, which stands for Fact, Issue, Rule, Analysis, and Conclusion, is the necessary components of every fully developed legal opinion, motion or court filing.  The model captures the relevant information from the controversy, informs which rule(s) apply, and demonstrates the reasoning as to how the rules are applied to solve the problem.  The model can be applied to nearly every assignment in the study of law because it represents a method of organizing thought that is widely accepted in legal writing and oral advocacy.  It is through the lens of this model that law professors are able to exercise creativity in further developing the essential micro-skills by presenting a wide variety of assignments for students.  Whether students identify the FIRAC components of the cases they read, rewrite an opinion in the FIRAC format, or develop a legal argument by delivering an opinion or brief, the model and micro-skills permeate the pedagogy.  Some of our courses’ specific implementation methods of the FIRAC model are further explained below to demonstrate implementation.  A similar model can be utilized in any discipline to aid the iteration of the discipline’s particular micro-skills. [21]

Implementing MICRO-Skill Practice

Real examples from the core law class

  Give them a Model to Apply:  FIRAC Practice

The most common method of developing critical thinking skills in the field of law is by requiring (or otherwise motivating) students to “FIRAC.”  To “FIRAC” means to distinguish the relevant [22] facts, formulate the issue, deduce the necessary rule(s) to apply, understand how the facts are applied to the rules in an analysis, and draw or identify conclusions.  The exercise can mean labeling the parts of a legal opinion, rewriting and summarizing the parts of an opinion, or creating a FIRAC by writing an opinion organized by FIRAC components.  The process necessarily requires practice in each micro-skill as outlined in the table below:

Micro-Skill Practice through the FIRAC MODEL

• FACTS: Students discriminate relevant facts from irrelevant facts, identify when more facts are needed and or reasonable inferences can be drawn, and summarize relevant facts (micro-skills #2, 4, and 8).  A summary of relevant facts are often the starting point for any legal writing or argument.
• ISSUE: Students determine the issue before the court that supplies precedential value or simply solves the controversy before the court (micro-skill #1).  Precisely isolating the issue in need of solving defines the purpose of the exercise and helps to frame the scope of rules which should be applied in the next step.
• RULES: Students identify and often synthesize from precedent the appropriate rule framework and sub-rules needed to solve the problem (micro-skills #3, 9, and 10).  Rules are the concepts which shape legal reasoning.  In a foundational law course, students are typically provided a finite set of cases from which they may derive rules as opposed to seeking rules from all possible sources.  The latter, where legal research skills are required, represents a more advanced step in critical thinking development.
• ANALYSIS: Students must evaluate arguments, draw necessary inferences, anticipate counterarguments, explain or justify an application of a rule, and explain the limits of an application as to how far the precedent extends (micro-skills #5, 6, 7, 8, 11, 12, and 13).  The deeper the analysis, the greater the strength of the overall solution in the next step.
• CONCLUSION: Students must draw conclusions and, when applicable, define the limits of conclusions (micro-skills #10 and 11).  The conclusion(s) drawn must relate back the issue(s) identified in part (b) above.

The skill of “FIRACing” is scaffolded [23] and developed over the course of a semester.  Professors press their students early on to skillfully summarize only the facts on which the case depends and explain why each fact is dispositive.  Professors demonstrate “good” issue statements and help students craft their own.  Rule frameworks are developed together with the students during class.  Analyses are broken into prompted sub-questions to push students to articulate assumptions and anticipate counterarguments.  Cumulatively across a semester in a foundational law course, students may be asked to read between 30 and 40 abridged legal opinions, write or orally deliver at least five arguments in FIRAC format, and are provided targeted feedback as to when the FIRAC is lacking in depth or thoroughness of any components.  The amount of assistance provided by the professor becomes less supportive with each of these opportunities for iteration.  By the end of the course, students are more able to independently compartmentalize the components of a legal opinion.  They can then more aptly use the rules and analyses to advance their own arguments through analogical reasoning. 

Spotlight on Problem-Identification:  Formulating the “Issue Statement”

Perhaps the most important step in complex problem-solving is to identify the issue in need of solving and apply an appropriate process to solve it. [24]   This is just as true in the law.  The “issue statement,” which may be answered as a yes or no, ultimately communicates the precedential value of the case.  A complete issue statement includes a summary of the relevant facts on which the case turns, the framework of law which supplies the rules, and the rule(s) that ultimately solve the problem.  We cannot expect students to create precise, correct issue statements without a significant amount of initial support by using a formula:

The issue in this case is whether [ necessary facts ] is/are/fit within [ the specific rule(s) that solves the problem ] under the [ law that supplies the legal framework of rules ]? 

Spotting and developing the real issue(s) before the Court is a skill developed through iteration, which occurs with every FIRAC.  It is also taught through demonstration and modeling within the cases students read as well as by the professor. 

The pivotal case of Marbury v. Madison [25] is an excellent example of issue identification and formulation.  The opinion describes the issues framed by the parties and then explains how they are not really the issues the Court must decide.  Following the Supreme Court’s identification of the real issues in need of solving, (the real issue was much broader than whether Marbury should receive his position and actually implicated the ultimate power of the Court), students learn to look behind the curtain to identify the true problem underlying the surface presentation of the controversy.  The case itself demonstrates how the arbiter must question the issues presented by the parties, and provides opportunity for students to learn what questions are useful and relevant.  The case shows a situation in which a statute does not present an acceptable solution, and asks where else could the Court look for a process or rule to apply?  Why is the Constitution a viable source for a solution?  How can Art III of the Constitution supply a rule which solves this problem?  In Marbury , the Court examines the assumptions inherent in rules of construction (i.e., a list of objects necessarily implies other objects do not fit within the category), and reframes the issue in need of solving.  This reframing ultimately enables the Court to establish the power of judicial review within the United States’ balance of governmental powers.  The importance of issue framing is thus imparted on students, sometimes on the first day of the semester, because it shaped the course of history in this particular case.

Educators may find it helpful to provide a case study, such as Marbury , early on in a course where assumptions must be explicitly questioned in order to frame and then solve the problem.  Targeting micro-skills #1, 4, and 12 early on may help avoid students framing the wrong problem or solutions based on flawed assumptions later in the course.  

Breaking Down Conclusions to Develop Depth of Analysis

Students often struggle with developing thorough analyses early on in the study of law.  Students may give conclusions based on assumptions they bring to the course without breaking down those assumptions to explain the reasoning underlying them.  An effective way to develop this skill is to identify a student’s conclusions at each step and ask them how or why they drew this conclusion.  Doing so forces the student to articulate their assumptions and inferences so that they can examine them critically. 

The scaffolding for deepening analysis can be customized to meet students where they are.  One might demonstrate to students through feedback what arguments or counterarguments they failed to address for a particular application.  Early on in the course, I may identify, or ask the student to identify, the analogies and differentiations they could have made from precedent (cases they were assigned to read), or other analogous situations from real-life, to strengthen their argument.  A critical question I pose to my students struggling with depth of analysis is, “What is the best argument that your opponent has?”  I then ask them to address that argument while maintaining strong advocacy for their original position. 

I also ask my students to develop more than one line of reasoning, or alternative justifications, for an argument or conclusion.  Often these alternatives are contingent upon their interpretations of a set of facts.  When this is the case, they should describe that contingency.  This enables students to have primary arguments and alternative arguments in the event the primary argument fails or their original interpretation of the facts was flawed.  Law educators can link this idea to real-life examples of judges’ opinions being appealed (or perhaps more pressing for students, developing a thesis in another course or merely winning an argument with a friend), to help students understand the value of evaluating the strength of multiple solutions (thus strengthening micro-skills #5, 6, 7, 10, and 11).

An additional means of teaching depth of analysis is to ask students to define the boundaries of their solution.  Does their solution fall apart when they pull the string to its logical end?  In law, educators may often encounter the “slippery slope” argument from students. [26]   But students can be pressed to draw the line where it does make sense and explain why that line works for one context and results in it not working in another context.  In other words, they must articulate the rationale behind the rule.  For example, a student may be prompted to explain why a routine traffic stop is not considered “custodial” when most drivers would not feel free to leave the interaction and drive away.  If the rule revolves around feeling free to leave, what is the underlying rationale behind this exception?  Exploring the limitations of a line of reasoning causes students to assess their own thinking and criticality.  Students are then more able to exhibit critical creativity, or generate solutions which are useful and insightful. [27]

Socratic Questioning in Class Discussion

Law school professors are notorious for Socratic questioning. [28]   This type of questioning involves calling on students without asking for volunteers, which tends to quickly reveal who has prepared for class and who has not.  The Socratic method can be anxiety-producing for students but effective at examining the process of thought through accountability.  By asking questions rather than giving answers, the educator models the inquiring, probing mind and steps into the role of the inner voice of reason. [29]   In a nutshell, the Socratic method is questioning students “so that they, in turn, analytically question what they read, write, think, and believe.” [30]   The Socratic method can be highly beneficial in non-law disciplines as well.  It encourages students to be responsible for their own learning process rather than rely on passively absorbing material provided to them in a more lecture-based format. 

What does the Socratic method look like in practice?  Students must read a case or other material prior to class and then are called upon to start the discussion (“What are the relevant facts of Marbury v . Madison?”).  Then, the discussion progresses with questions of clarification (“what do you mean by ____?”).  It utilizes questions that probe purpose (“what was your purpose when you said ____?”).  It is questioning that probes assumptions and inferences (“all of your reasoning depends on the idea that _____; why have you based your reasoning on ____ rather than ____?”).  And, it involves questions that probe causes (“why do you think that is true?” or “what led you to that belief?”). [31]   By modeling and subjecting students to Socratic questioning in the classroom, students learn to think deeply about what they read in preparation for class rather than passively attempt to memorize or otherwise absorb the content.  Socratic questioning ultimately develops critical reading in students because it helps students master the content by questioning the purpose of each word and its underlying bases or assumptions. [32]   This skill ties back to developing depth of analysis and directly targets micro-skills #5, 6, 8, 10, 11, 12, and 13.

In a foundational law course, the questions revolve around the nuance of the facts and the reasoning the court used to resolve the case.  A useful line of questioning to hone micro-skills #5, 6, and 12 is asking students to modify the facts as little as possible such that it changes the outcome of the case.  For example, an exam question may present a novel set of facts and ask students to use precedent to analyze and solve the new controversy.  Then, students are asked to change the facts such that they would arrive at the opposite result.  This exercise works in small group settings as well.  For example, I have presented my students with brief scenarios of various homicide offenses from real-life and assigned each scenario to a small group.  I then ask them to collaborate to identify the most appropriate crime and then modify the facts to make them fit the homicide offenses they did not select.  Training students to exercise this skill themselves as they critically read develops the ability to recognize the boundaries of rules and the logical conclusions of their own reasoning.  Understanding the consequences of a solution creates a better problem-solver because the student can anticipate second and third order effects of their reasoning, which ultimately helps to reveal the best solution. [33]

  Collaborative Assignments and Role-Playing

Collaborative learning combines two key goals: learning to work and solve problems in the company of others, and sharpening one’s own understanding by listening seriously to the insights of others, especially those with different backgrounds and life experiences. [34]  Approaches range from study groups within a course, to team-based assignments and writing, to cooperative projects and research. [35]   Collaborative assignments are a high-impact practice to develop critical thinking. [36]   Having multiple perspectives to analyze a problem often produces a deeper, broader, and fairer solution.

A step beyond working collaboratively is imaginatively placing oneself in the shoes of another through role-playing.  Role-playing requires students to demonstrate intellectual empathy and defend beliefs other than their own. [37]  

To combine the power of both high-impact practices, educators can place students into collaborative partnerships but with opposing roles assigned.  In a foundational law course, this might look like assigning one student to advocate a position as the government prosecutor and their collaboration partner as their opposing criminal defense counsel.  The advocacy might take the form of a 5-10 minute oral argument or written essay (or “motion”) to the Court.  The opposing pair of students are explicitly allowed to collaborate on the assignment where normally they would not be permitted to collaborate with any other students.  This kind of collaboration encourages original thought, because each has to bring their own ideas to the table (because each ultimately wants a different outcome).  It also allows students to strengthen each other’s analytical reasoning by exploring and sharing the best arguments for their side.  For example, one of the ways I have taught my students to strengthen their analyses is to address counterarguments.  This particular activity allows them to explore counterarguments by listening to their opposing counsel partner.   It reaps all the benefits of the collaborative exchange of ideas with individual accountability built into the assessment.  The students do not receive the same grade like they would on most group projects, but they are also not in direct competition in a zero-sum game because they can each earn a top score despite wanting different conclusions.  The stronger their contribution to the partnership, the better both of them will likely do on the assignment.  Such a construct allows students to use each other in developing micro-skills #5, 6, 8, 10, and 13. 

An additional benefit is that students directly observe their own growth in these micro-skills because they are more accessible when demonstrated by a classmate of similar skill level as opposed to demonstration or feedback by a professor.  Student A gets to question partner student B while she is working through understanding the scenario and developing her own argument.  Student A then gets to see student B develop multiple possible lines of argument to advance her position, and student A is even able to contribute her own ideas.  They can test each other’s rationale and pose examples to each other from their own experiences.  At the very least, if student A is struggling with breaking down conclusions and explaining rationale, student A is at least able to hear student B’s arguments and ensure she addresses those counterarguments in her own assignment.  By working through this process together but with opposite goals, the analyses both improve from diverse thought and with a much-reduced risk of inequitable work distribution or inflated grading.  Students are also better able to appreciate their own growth by seeing the process at work without any or with less aid from a professor.   

Emphasizing Inclusivity, Diversity, and Examining the Broader Context

While targeting the micro-skills, it is important to periodically and consistently take a step back and encourage students to draw connections between the discipline and the world around them.  This might include asking students to examine their own unique experiences and how these experiences affect their interpretation of the material.  Educators might consider the use of discussion boards, self-reflection journals, or old-fashioned classroom discussion to encourage such metacognition. 

The study of law with its cases and controversies stemming from real-world conflict naturally lends itself to explicitly question the human mind and its “native prejudicial tendencies.” [38]   Examining context surrounding legal controversies creates space for students to develop intellectual courage by fairly examining underlying beliefs and emotions. [39]   This helps students begin to understand and “guard against […] egocentric and sociocentric tendencies.” [40]

An example of putting this into practice is focusing on a particular case with underlying themes or emotions relatable to students.  One such topic in most foundational law courses includes the progeny of cases dealing with diversity in higher education.  What assumptions have your students formed from their own backgrounds and experience in applying for college or law school?  I simply ask my students to think about how their own experiences or emotions complement or conflict with the Court’s evaluation (in which the Court finds that the goal of achieving racial diversity in the classroom is a compelling government interest)?  Despite any personal disagreement, can the student apply the precedential framework and fairly evaluate (and even advocate) for a schema which benefits an applicant based on diversity?  Before we even begin these questions, I introduce my students to the history of equal protection in America.  At the end, I ask them to examine how their initial opinions about controversial topics like affirmative action and equality of opportunity might have changed after studying this block of instruction. 

Examining the broader context that frames a particular substantive topic challenges students to think deeply about the history of the discipline and the controversies within it.  It causes students to question how context shapes outcomes. [41]   This metacognitive work and intentional design in the learning activity fosters connections between disciplines (e.g., law, political science, and history) and reflection with one’s own assumptions and background.  Prior to diving into the nuance of a topic, consider asking students to take a step back and reflect on the context.  Educators can do so with additional readings, short videos, in-class lecture, Socratic questioning, powerful photos or art, or with a salient podcast.  It will foster a more objective view of an interpretation or solution, and in doing so will pay dividends in developing micro-skills #5, 6, 7, and 12.

The preceding examples are a few ways to design instruction and educational activities to maximize micro-skill practice specific to the study of law.  However, educators should not shy away from crafting a set of critical thinking subskills from peer-reviewed and validated sources which are most applicable to their discipline in order to develop critical thinking in students.  Educators can even gently modify the language of the subskills to increase accessibility and application within the field.  Regardless of how educators put their micro-skills into practice, having the intentional objective of practicing one or more of the skills with each activity, and then providing meaningful subskill-focused feedback, will lead to cumulative overall growth in critical thinking in students.  

PA#: USAFA-DF-2020-254

[1] Critical thinking has varying definitions.  The U.S. Air Force Academy defines critical thinking as the process of self-aware, informed, and reflective reasoning for problem-solving and decision-making in the absence of ideal information.  U.S. Air Force Academy, Outcomes: Critical Thinking, https://www.usafa.edu/academics/outcomes/ (last visited Jun. 6, 2020).

[2] Raising the Bar: Employers’ Views on College Learning in the Wake of the Economic Downturn, Ass’n of Am. C. & U. (2010), available at https://www.aacu.org/ sites/default/files/files/LEAP/2009_EmployerSurvey.pdf.

[3] See , e.g. , Carl Von Clausewitz, On War 112 (Michael Howard et al. eds., Princeton NJ:  Princeton University Press, 1976).

[4] Raising the Bar, supra note 2, at 1, 5-6.

[5] Ilea Heft & Lauren Scharff, Aligning Best Practices to Develop Targeted Critical Thinking Skills and Habits, Journal of the Scholarship of Teaching and Learning, Vol. 17, No. 3 (July 2017), 48-49, 64.

[6] See , e.g. , CAT Skills Checklist, Tenn. Tech Univ. Center for Assessment and Improvement of Learning (2019), https://www.tntech.edu/cat/pdf/training/CAT_App_Presentation.pdf; California Critical Thinking Skills Test (CCTST), https://www.insightassessment.com/article/california-critical-thinking-skills-test-cctst-2; and .

[7] Id. ; see also Richard Paul & Linda Elder, Critical Thinking Competency Standards, The Foundation for Critical Thinking (2007), 47-51.

[8] Ilea Heft & Lauren Scharff, Aligning Best Practices to Develop Targeted Critical Thinking Skills and Habits, Journal of the Scholarship of Teaching and Learning, Vol. 17, No. 3 (July 2017), 51-52.

[9] “Reasoning by analogy involves identifying a common relational system between two situations and generating further inferences driven by these commonalities.”  Dedre Gentner & L. Smith, Analogical Reasoning, Encyclopedia of Human Behavior (2d Ed.), (2012), 130.  Available at http://groups.psych.northwestern.edu/gentner/papers/gentnerSmith_2012.pdf.

[10] The sub-skills referenced are those measured by the Critical Thinking Assessment Test (CAT).  The CAT is a standardized critical thinking test created by the Center for Assessment and Improvement of Learning, Tennessee Technological University, funded by National Science Foundation grants.  Additional information is available at https://www.tntech.edu/cat/pdf/training/CAT_Introduction.pdf.

[11] This particular complement of “micro-skills” relies primarily upon the CAT Skills Checklist, Tenn. Tech Univ. Center for Assessment and Improvement of Learning (2019), https://www.tntech.edu/cat/pdf/training/CAT_App_Presentation.pdf.   It is also influenced by Richard Paul & Linda Elder, Critical Thinking Competency Standards (2007), & the Critical Thinking White Page, U.S. Air Force Academy (2018), http://www.usafa.edu/app/uploads/Critical-Thinking-White-Paper-Update-approved-Spring-2018.pdf, citing Essential Learning Outcomes, the Am. Ass’n of C. and U., https://www.aacu.org/sites/default/files/files/LEAP/ EssentialOutcomes_Chart.pdf.

[12] CAT Instrument Technical Information Sheet, Tenn. Tech Univ. (2016), https://www.tntech.edu/cat/about.php.

[13] “Small” refers to “simple, incremental steps” or techniques teachers may implement more easily than dramatic changes or overhauls in pedagogy. James M. Lang, Small Teaching 1, 3 (2016).

[14] Critical Thinking in the Online Classroom, Center for Teaching and Learning (Jun. 6, 2020), https://ctl.wiley.com/critical-thinking-online-classroom/.

[15] See , e.g. , Peter Facione, Critical Thinking:  What It Is and Why It Counts (2020), 11, available at https://www.insightassessment.com/wp-content/uploads/ia/pdf/whatwhy.pdf; and Richard Paul & Linda Elder, Critical Thinking Competency Standards, The Foundation for Critical Thinking (2007), 47-51.

[16] See , e.g., Skills Assessed by the CAT Instrument, Tenn. Tech Univ., https://www.tntech.edu/cat/about.php (Jan. 16, 2020); Critical Thinking White Page, U.S. Air Force Academy (2018), http://www.usafa.edu/app/uploads/Critical-Thinking-White-Paper-Update-approved-Spring-2018.pdf; and Peter Facione, Critical Thinking:  What It Is and Why It Counts (2020), 11, available at https://www.insightassessment.com/wp-content/uploads/ia/pdf/whatwhy.pdf.

[17] Critical Thinking VALUE Rubric, Ass’n of Am. C. & U., available at https://www.aacu.org/sites/default/files/files/VALUE/ CriticalThinking.pdf.

[18] CAT Instrument Technical Information (2014), Tennessee Technological University, available at https://www.tntech.edu/cat/pdf/CAT_Tech_Info_V8.pdf.

[19] Linda Elder & Richard Paul, The Thinker’s Guide to Analytic Thinking 6, The Foundation for Critical Thinking (2012); George D. Kuh, High Impact Educational Practices:  What They Are, Who Has Access to Them, & Why They Matter 18 (2008) (“repeated practice—at progressively higher levels of challenge and engagement—is the surest key to high levels of achievement”).

[20] The model may have slight variances like reversing the order of issue and fact, or including a rule explanation component.  The variances depend, for example, on the rules of court or simply a professor’s preferences.  See , e.g. , The IFRAC Structure of Court Opinions, Case Briefs, and Essay Writing, Nathenson (2016), https://nathenson.org/docs/civpro/IFRAC.pdf.

[21] The model, regardless of particular phrasing or terminology within the discipline, should help students to isolate the problem or question to be answered, identify the purpose of addressing the problem, describe the information needed to answer it, identify the important assumptions or concepts underlying the problem, develop potential solutions and implications of the solutions, and select the best solution.  Richard Paul & Linda Elder, Guide to Critical Thinking 34-35, The Foundation for Critical Thinking (2009).

[22] “Relevance” in this context are the facts on which the court’s opinion depends.  If a relevant fact is changed, it could change the outcome of the case.

[23] The process of adding supports to enhance learning by building upon skills and experiences and then gradually removing the supports as the students master tasks.  IRIS Center Module, Vanderbilt U. (2020), available at https://iris.peabody.vanderbilt.edu/module/sca/cresource/q1/p01/.

[24] Richard Paul & Linda Elder, Guide to Critical Thinking 22, The Foundation for Critical Thinking (2009).

[25] 5 U.S. 137 (1803).

[26] The argument is essentially that a rule is incorrect because while it makes sense in one context, it no longer makes sense in other context.

[27] Paul, Richard & Linda Elder, Critical & Creative Thinking, The Foundation for Critical Thinking (2012).

[28] See , e.g. , The Paper Chase.  Twentieth Century-Fox Film Corp.  New York, N.Y.:  CBS/Fox Video (1973).

[29] Richard Paul & Linda Elder, How to Improve Student Learning:  30 Practical Ideas 44, The Foundation for Critical Thinking (2014).

[30] The Foundation for Critical Thinking:  Workshop Descriptions (Jun. 6, 2020), available at https://www.criticalthinking.org/pages/professional-development-workshop-descriptions/437#3130.

[31] Richard Paul & Linda Elder, The Art of Socratic Questioning 20-23, The Foundation for Critical Thinking (2007).

[33] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[34] George D. Kuh.  High-Impact Educational Practices:  What They Are, Who has Access to Them, and Why They Matter . Ass’n of Am. C. & U. (2008), 9-10.  Available at https://www.aacu.org/leap/hips.

[36] “High impact” means widely tested and proven beneficial.  Id.

[37] Richard Paul & Linda Elder, Critical Thinking Competency Standards 29, The Foundation for Critical Thinking (2007).

[38] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[39] Richard Paul & Linda Elder, Critical Thinking Competency Standards 28, The Foundation for Critical Thinking (2007).

[40] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[41] Ken Bain.  What the Best College Teachers Do 25 (2004).

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Thinking Critically About Law

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So you’ve arrived at university, you’ve read the course handbook and you’re ready to learn the law. But is knowing the law enough to get you the very best marks? And what do your lecturers mean when they say you need to develop critical and analytical skills? When is it right to put your own views forward? What are examiners looking for when they give feedback to say that your work is too descriptive?

This book explores what it means to think critically and offers practical tips and advice for students to develop the process, skill and ability of thinking critically while studying law. The book investigates the big questions such as: What is law? and What is ‘thinking critically’? How can I use critical thinking to get better grades in assessments? What is the role of critical thinking in the work place? These questions and more are explored in Thinking Critically About Law.

Whether you have limited prior experience of critical thinking or are looking to improve your performance in assessments, this book is the ideal tool to help you enhance your capacity to question, challenge, reflect and problematize what you learn about the law throughout your studies and beyond.

TABLE OF CONTENTS

Chapter 1 | 19  pages, introduction, part i | 77  pages, thinking critically about law in theory, chapter 2 | 23  pages, what is ‘critical thinking’, chapter 3 | 52  pages, what is ‘law’, part ii | 104  pages, thinking critically about law in practice, chapter 4 | 35  pages, putting critical thinking into legal practice, chapter 5 | 33  pages, thinking critically about assessments, chapter 6 | 27  pages, thinking critically in the workplace and beyond, chapter 7 | 7  pages.

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Critical Legal Reading: The Elements, Strategies and Dispositions Needed to Master this Essential Skill

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Critical thinking and the law.

J.P. "Sandy" Ogilvy , The Catholic University of America, Columbus School of Law Follow Dannye Holley

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This article traces the origins, and discusses key features of the Critical Thinking and the Law Program. In addition, this article evaluates and projects the implications of the Critical Thinking and the Law Program for legal education. The first section of the article reviews the rich literature on the teaching of thinking movement, and focuses upon those elements of the movement which have had the greatest influence on the design and execution of the Critical Thinking and the Law Program. This section also reports the findings of a survey formulated to determine the current involvement of North American law schools with the teaching of thinking/critical thinking movement. The second section of the article describes the crucial elements of the program and the specific influences of the critical thinking movement on those elements. Section two concludes by discussing the program’s evaluation plan, including the results of the two types of empirical evaluation in the program.

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J.P. "Sandy" Ogilvy & Dannye Holley, Critical Thinking and the Law, 1 INT’L J. LEGAL PROF. 343 (1994).

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What Kamala Harris has said so far on key issues in her campaign

As she ramps up her nascent presidential campaign, Vice President Kamala Harris is revealing how she will address the key issues facing the nation.

In speeches and rallies, she has voiced support for continuing many of President Joe Biden’s measures, such as lowering drug costs , forgiving student loan debt and eliminating so-called junk fees. But Harris has made it clear that she has her own views on some key matters, particularly Israel’s treatment of Gazans in its war with Hamas.

In a departure from her presidential run in 2020, the Harris campaign has confirmed that she’s moved away from many of her more progressive stances, such as her interest in a single-payer health insurance system and a ban on fracking.

Harris is also expected to put her own stamp and style on matters ranging from abortion to the economy to immigration, as she aims to walk a fine line of taking credit for the administration’s accomplishments while not being jointly blamed by voters for its shortcomings.

Her early presidential campaign speeches have offered insights into her priorities, though she’s mainly voiced general talking points and has yet to release more nuanced plans. Like Biden, she intends to contrast her vision for America with that of former President Donald Trump. ( See Trump’s campaign promises here .)

“In this moment, I believe we face a choice between two different visions for our nation: one focused on the future, the other focused on the past,” she told members of the historically Black sorority Zeta Phi Beta at an event in Indianapolis in late July. “And with your support, I am fighting for our nation’s future.”

Here’s what we know about Harris’ views:

Harris took on the lead role of championing abortion rights for the administration after Roe v. Wade was overturned in June 2022. This past January, she started a “ reproductive freedoms tour ” to multiple states, including a stop in Minnesota thought to be the first by a sitting US president or vice president at an abortion clinic .

On abortion access, Harris embraced more progressive policies than Biden in the 2020 campaign, as a candidate criticizing his previous support for the Hyde Amendment , a measure that blocks federal funds from being used for most abortions.

Policy experts suggested that although Harris’ current policies on abortion and reproductive rights may not differ significantly from Biden’s, as a result of her national tour and her own focus on maternal health , she may be a stronger messenger.

High prices are a top concern for many Americans who are struggling to afford the cost of living after a spell of steep inflation. Many voters give Biden poor marks for his handling of the economy, and Harris may also face their wrath.

In her early campaign speeches, Harris has echoed many of the same themes as Biden, saying she wants to give Americans more opportunities to get ahead. She’s particularly concerned about making care – health care, child care, elder care and family leave – more affordable and available.

Harris promised at a late July rally to continue the Biden administration’s drive to eliminate so-called “junk fees” and to fully disclose all charges, such as for events, lodging and car rentals. In early August, the administration proposed a rule that would ban airlines from charging parents extra fees to have their kids sit next to them.

On day one, I will take on price gouging and bring down costs. We will ban more of those hidden fees and surprise late charges that banks and other companies use to pad their profits.”

Since becoming vice president, Harris has taken more moderate positions, but a look at her 2020 campaign promises reveals a more progressive bent than Biden.

As a senator and 2020 presidential candidate, Harris proposed providing middle-class and working families with a refundable tax credit of up to $6,000 a year (per couple) to help keep up with living expenses. Titled the LIFT the Middle Class Act, or Livable Incomes for Families Today, the measure would have cost at the time an estimated $3 trillion over 10 years.

Unlike a typical tax credit, the bill would allow taxpayers to receive the benefit – up to $500 – on a monthly basis so families don’t have to turn to payday loans with very high interest rates.

As a presidential candidate, Harris also advocated for raising the corporate income tax rate to 35%, where it was before the 2017 Tax Cuts and Jobs Act that Trump and congressional Republicans pushed through Congress reduced the rate to 21%. That’s higher than the 28% Biden has proposed.

Affordable housing was also on Harris’ radar. As a senator, she introduced the Rent Relief Act, which would establish a refundable tax credit for renters who annually spend more than 30% of their gross income on rent and utilities. The amount of the credit would range from 25% to 100% of the excess rent, depending on the renter’s income.

Harris called housing a human right and said in a 2019 news release on the bill that every American deserves to have basic security and dignity in their own home.

Consumer debt

Hefty debt loads, which weigh on people’s finances and hurt their ability to buy homes, get car loans or start small businesses, are also an area of interest to Harris.

As vice president, she has promoted the Biden administration’s initiatives on student debt, which have so far forgiven more than $168 billion for nearly 4.8 million borrowers . In mid-July, Harris said in a post on X that “nearly 950,000 public servants have benefitted” from student debt forgiveness, compared with only 7,000 when Biden was inaugurated.

A potential Harris administration could keep that momentum going – though some of Biden’s efforts have gotten tangled up in litigation, such as a program aimed at cutting monthly student loan payments for roughly 3 million borrowers enrolled in a repayment plan the administration implemented last year.

The vice president has also been a leader in the White House efforts to ban medical debt from credit reports, noting that those with medical debt are no less likely to repay a loan than those who don’t have unpaid medical bills.

In a late July statement praising North Carolina’s move to relieve the medical debt of about 2 million residents, Harris said that she is “committed to continuing to relieve the burden of medical debt and creating a future where every person has the opportunity to build wealth and thrive.”

Health care

Harris, who has had shifting stances on health care in the past, confirmed in late July through her campaign that she no longer supports a single-payer health care system .

During her 2020 campaign, Harris advocated for shifting the US to a government-backed health insurance system but stopped short of wanting to completely eliminate private insurance.

The measure called for transitioning to a Medicare-for-All-type system over 10 years but continuing to allow private insurance companies to offer Medicare plans.

The proposal would not have raised taxes on the middle class to pay for the coverage expansion. Instead, it would raise the needed funds by taxing Wall Street trades and transactions and changing the taxation of offshore corporate income.

When it comes to reducing drug costs, Harris previously proposed allowing the federal government to set “a fair price” for any drug sold at a cheaper price in any economically comparable country, including Canada, the United Kingdom, France, Japan or Australia. If manufacturers were found to be price gouging, the government could import their drugs from abroad or, in egregious cases, use its existing but never-used “march-in” authority to license a drug company’s patent to a rival that would produce the medication at a lower cost.

Harris has been a champion on climate and environmental justice for decades. As California’s attorney general, Harris sued big oil companies like BP and ConocoPhillips, and investigated Exxon Mobil for its role in climate change disinformation. While in the Senate, she sponsored the Green New Deal resolution.

During her 2020 campaign, she enthusiastically supported a ban on fracking — but a Harris campaign official said in late July that she no longer supports such a ban.

Fracking is the process of using liquid to free natural gas from rock formations – and the primary mode for extracting gas for energy in battleground Pennsylvania. During a September 2019 climate crisis town hall hosted by CNN, she said she would start “with what we can do on Day 1 around public lands.” She walked that back later when she became Biden’s running mate.

Biden has been the most pro-climate president in history, and climate advocates find Harris to be an exciting candidate in her own right. Democrats and climate activists are planning to campaign on the stark contrasts between Harris and Trump , who vowed to push America decisively back to fossil fuels, promising to unwind Biden’s climate and clean energy legacy and pull America out of its global climate commitments.

If elected, one of the biggest climate goals Harris would have to craft early in her administration is how much the US would reduce its climate pollution by 2035 – a requirement of the Paris climate agreement .

Immigration

Harris has quickly started trying to counter Trump’s attacks on her immigration record.

Her campaign released a video in late July citing Harris’ support for increasing the number of Border Patrol agents and Trump’s successful push to scuttle a bipartisan immigration deal that included some of the toughest border security measures in recent memory.

The vice president has changed her position on border control since her 2020 campaign, when she suggested that Democrats needed to “critically examine” the role of Immigration and Customs Enforcement, or ICE, after being asked whether she sided with those in the party arguing to abolish the department.

In June of this year, the White House announced a crackdown on asylum claims meant to continue reducing crossings at the US-Mexico border – a policy that Harris’ campaign manager, Julie Chavez Rodriguez, indicated in late July to CBS News would continue under a Harris administration.

Trump’s attacks stem from Biden having tasked Harris with overseeing diplomatic efforts in Central America in March 2021. While Harris focused on long-term fixes, the Department of Homeland Security remained responsible for overseeing border security.

She has only occasionally talked about her efforts as the situation along the US-Mexico border became a political vulnerability for Biden. But she put her own stamp on the administration’s efforts, engaging the private sector.

Harris pulled together the Partnership for Central America, which has acted as a liaison between companies and the US government. Her team and the partnership are closely coordinating on initiatives that have led to job creation in the region. Harris has also engaged directly with foreign leaders in the region.

Experts credit Harris’ ability to secure private-sector investments as her most visible action in the region to date but have cautioned about the long-term durability of those investments.

Israel-Hamas

The Israel-Hamas war is the most fraught foreign policy issue facing the country and has spurred a multitude of protests around the US since it began in October.

After meeting with Israeli Prime Minister Benjamin Netanyahu in late July, Harris gave a forceful and notable speech about the situation in Gaza.

We cannot look away in the face of these tragedies. We cannot allow ourselves to become numb to the suffering. And I will not be silent.”

Harris echoed Biden’s repeated comments about the “ironclad support” and “unwavering commitment” to Israel. The country has a right to defend itself, she said, while noting, “how it does so, matters.”

However, the empathy she expressed regarding the Palestinian plight and suffering was far more forceful than what Biden has said on the matter in recent months. Harris mentioned twice the “serious concern” she expressed to Netanyahu about the civilian deaths in Gaza, the humanitarian situation and destruction she called “catastrophic” and “devastating.”

She went on to describe “the images of dead children and desperate hungry people fleeing for safety, sometimes displaced for the second, third or fourth time.”

Harris emphasized the need to get the Israeli hostages back from Hamas captivity, naming the eight Israeli-American hostages – three of whom have been killed.

But when describing the ceasefire deal in the works, she didn’t highlight the hostage for prisoner exchange or aid to be let into Gaza. Instead, she singled out the fact that the deal stipulates the withdrawal by the Israeli military from populated areas in the first phase before withdrawing “entirely” from Gaza before “a permanent end to the hostilities.”

Harris didn’t preside over Netanyahu’s speech to Congress in late July, instead choosing to stick with a prescheduled trip to a sorority event in Indiana.

Harris is committed to supporting Ukraine in its fight against Russian aggression, having met with Ukrainian President Volodymyr Zelensky at least six times and announcing last month $1.5 billion for energy assistance, humanitarian needs and other aid for the war-torn country.

At the Munich Security Conference earlier this year, Harris said: “I will make clear President Joe Biden and I stand with Ukraine. In partnership with supportive, bipartisan majorities in both houses of the United States Congress, we will work to secure critical weapons and resources that Ukraine so badly needs. And let me be clear: The failure to do so would be a gift to Vladimir Putin.”

More broadly, NATO is central to our approach to global security. For President Biden and me, our sacred commitment to NATO remains ironclad. And I do believe, as I have said before, NATO is the greatest military alliance the world has ever known.”

Police funding

The Harris campaign has also walked back the “defund the police” sentiment that Harris voiced in 2020. What she meant is she supports being “tough and smart on crime,” Mitch Landrieu, national co-chair for the Harris campaign and former mayor of New Orleans, told CNN’s Pamela Brown in late July.

In the midst of nationwide 2020 protests sparked by George Floyd’s murder by a Minneapolis police officer, Harris voiced support for the “defund the police” movement, which argues for redirecting funds from law enforcement to social services. Throughout that summer, Harris supported the movement and called for demilitarizing police departments.

Democrats largely backed away from calls to defund the police after Republicans attempted to tie the movement to increases in crime during the 2022 midterm elections.

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