THE AMERICAN LEGAL SYSTEM AND CIVIC ENGAGEMENT

WHY WE SHOULD ALL THINK LIKE LAWYERS

BY KENNETH A. MANASTER, PROFESSOR, SANTA CLARA LAW, AND SANTA CLARA UNIVERSITY PRESIDENTIAL PROFESSOR OF ETHICS AND THE COMMON GOOD

Ken Manaster book coverEditor’s note: Santa Clara Law Professor Kenneth Manaster is the author of the recently released book The American Legal System and Civic Engagement: Why We All Should Think Like Lawyers (Palgrave Macmillan). The essay below includes some of his thoughts on why he wrote the book as well as a brief excerpt. More information here.

The First Question: Easy to Answer
Do many of us in America actually do a good job of understanding public issues? This is the question that prompted my work on this project. More precisely, it was the answer that got me going. The answer, I’m pretty sure, is no.

I think it is incontrovertible that most people find it very difficult and discouraging to try to understand the content, contending viewpoints, and broader implications of most of the big issues of our time. We are barraged with information about gun control, climate change, the economy, abortion, educational reform, the war on terror, and many other hot-button issues. Adding to the challenge posed by the complexity of these issues are the strident, partisan arguments accompanying many of them and the flood of confusing information emanating from the news and entertainment media, including the Internet.

The Second Question: Not So Easy to Answer
What can be done about this? The answer to this question is elusive. A logical place to look for an answer is in the schools. Many educators are looking closely at ways to breathe new life into civics education, not just in high schools but in colleges as well. Their hope is that more intensive and extensive education about our democracy will help induce more active and informed public participation in democratic processes and discussions. The objective, to use the emerging vocabulary, is greater civic engagement.

As I examined these educational reform efforts, and other sources promoting civic engagement, it occurred to me that there is a gap: Although attention is being given to what issues people should think about, little attention is being paid to how people should think about them. In our democracy, it is a given that we each can have, do have, and should have, opinions on at least some public concerns, and that we should express those opinions in a variety of forums, especially the voting booth. It is hard, however, to find guidance on how to go about forming those opinions.

Ken Manaster with students

Kenneth Manaster (above right) is the Presidential Professor of Ethics and the Common Good at SCU. A respected scholar of environmental law, he joined the Santa Clara Law Faculty in 1972. He is the author of seven books as well as many articles on a variety of issues. Photo by Keith Sutter.

My Question and Answer
In an effort to fill this gap, I ask: does the legal system have any guidance to offer? My answer is that it does. My book’s primary objective is to bring that guidance to light. Hence, the title and subtitle: The book looks at what the American legal system has to offer to promote civic engagement. The subtitle is a shorthand way of highlighting my thesis that we all, as ordinary citizens trying to understand public issues, should think more like lawyers.

To state my perspective a bit differently, I was struck by the fact that we refer to the legal system as such, as a “system.” A big part of that system, in my view, is a well-established set of tools and traditions that are designed more or less methodically to guide all of us working in the law—lawyers, judges, and jurors—toward rational and fair conclusions. I wanted to see whether it was possible to translate those methods of the law into guidance for ordinary citizens that could aid them in reaching more informed, confident, and sensible opinions in the very unsystematic court of public opinion.

As I began to explore my ideas, I was not sure at first that this was a worthwhile inquiry. Fortunately, SCU’s Markkula Center for Applied Ethics offered in early 2011 to bring together faculty from elsewhere in the University to discuss my project. The Center sponsored a workshop session with professors from departments such as political science, communication, and philosophy who already were thinking about how to aid students in becoming more civically engaged. To my pleasant and genuine surprise, their reaction to my approach was encouraging. Spurred by this response, and with the help of some eager and very smart law student research assistants, I persevered. Again in 2012, the Markkula Center brought these professors together in a second workshop to dig in further to my developing manuscript. A law faculty workshop also provided a raft of helpful suggestions from colleagues. All of this input helped convince me that I was on a worthwhile track.

Thinking Like a Lawyer: Seriously?
The core of the book is a detailed exploration of the fundamental tools and traditions underlying legal decision making. In the principal concluding chapter, I attempt to translate them into guidance for the ordinary citizen. In exploring these methods of the law, I found myself dissecting the various components of “thinking like a lawyer,” a catchy, popular phrase with uncertain meaning. I grouped those methods into four broad categories, each of which describes a broad goal for how legal work should be done. Within these categories, I found a total of 12 more or less specific tools and traditions.

Lawyers, judges, and jurors use these methods in various ways, and in my conclusion I urged that similarly they can be used in various ways at various times by almost anyone. Devoting a chapter to the American legal system’s expectations for how jurors should perform their role, I posited that if we can expect jurors to address these tools responsibly in a court of law, we can expect ordinary citizens to do so as well day-to-day, albeit in the very different context of the court of public opinion.

The four categories and 12 tools are explained in the book in the following sequence:

  1. Focusing on the task
    1. Defining the issue
    2. Separating facts from standards and evaluations
  2. Taking an organized approach
    1. Respecting procedure
    2. Taking time
  3. Finding reliable information
    1. Gathering the facts
    2. Recognizing incomplete facts
    3. Dividing labor
    4. Using expertise
    5. Identifying bias
  4. Keeping an open mind
    1. Arguing and persuading
    2. Listening and negotiating
    3. Making hard choices in gray areas

Although it might not be universally agreed that all of these methods are components of thinking like a lawyer, I have no doubt that many of them are. In the book, I first try to explain the significance of each one within the legal system before attempting to extrapolate from them in the conclusion. Realizing that this extrapolation may seem quite abstract—even fanciful or naïve to some readers—I tried to buttress the effort by suggesting how various tools could be applied to specific, controversial public issues. I focused special attention on gun control and climate change, but also included same-sex marriage, teen pregnancy, the death penalty, legislative term limits, and others.

Although I did not firmly say so in the book, and did not suggest any ranking of the law’s methods, I believe that some of the tools and traditions are more valuable than others for adaptation to broader public arenas. The flavor of such emphases may be reflected in statements such as the following, from the section on the “Keeping an open mind” category:

Just as the legal system operates at its best when the people working within it are receptive to new and differing aspects of the problems before them, so too is the ordinary individual best prepared to be a responsible contributor to public discourse when she embraces that approach. The law’s tools most directly designed to assist in this way focus on arguing and persuading, listening and negotiating, and making hard choices in gray areas.

Obfuscation through uncivil disputation is of no benefit to anyone, except a speaker or media outlet that seeks to draw more attention to itself. Citizens who hear such speakers should be prepared to distinguish argument addressed to the merits from argument addressed to peripheral considerations such as publicity for its own sake or the venting of personal hostility. The former type of argument can help us learn more about what is really at stake, while the latter does not.

If citizens…could remind themselves that their positions on public issues involve choices, and that other positions usually express different but not necessarily irrational or irresponsible choices, the quality and civility of public dialogue could be substantially enhanced. Disagreement on issues could be more readily accepted as normal and productive, just as it is in the law.

If citizens develop a stronger grasp of the hard choices public issues present, the issues will not magically become less complex and the flood of information will not be reduced. Nonetheless, the individual’s competency in understanding the issues may be improved. Furthermore, her level of trust and respect for those with whom she disagrees may be raised. She may be more inclined to listen to them, learn from them, and develop her own views in a more informed manner.

Will it Help?
As the book is new, I wonder—as any author would—whether it will be received positively or negatively or simply ignored. At a minimum, I hope that some professors in undergraduate courses in American government, or other subjects focusing on civic responsibilities, will pay it some attention and have their students work with it. I do not really expect the book to be used in law school courses, although I would like to think that my taxonomy of the law’s key tools and traditions could be helpful to law students, as well as to lawyers generally.

One More Question
Finally, one more question deserves brief mention here, though it is not raised in the book: Is there any reason to believe that lawyers themselves, being familiar with the law’s methods of arriving at conclusions, already do a better job in developing their opinions on public issues? Although the difference may not be great between how lawyers function as citizens and how nonlawyers discharge their civic duty, I suspect that at least some of the methods identified in the book are so deeply engrained in most lawyers that they cannot help but take a more careful, open-minded approach to hot-button topics in the public arena. I certainly hope so.

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