Earlier today, I led a discussion of faculty at my law school on the topic, "What is Legal Method?" Working as I do in an interdisciplinary group, I observe research methods used by economists, sociologists, management scholars, etc., and I am often asked whether legal scholarship employs a distinctive method. My task was not to provide a definitive answer to that question, but to generate conversation that might be useful as we "reimagine" the first-year curriculum. (So far, imagining is all that we have done, but I am hopeful that some of this imagining will lead to real innovation.) In preparation for the discussion, I read many sources that touch on this issue, and two stick in my mind.

First, Kathleen Sullivan published a Foreward to a book review edition of the Michigan Law Review in 2002. The title of her short piece was "Interdisciplinarity," in which she argues that law is simultaneously a separate discipline and multidisciplinary. Law is a separate disclipline, Sullivan contends, because it has a unique content: "Legal rules, documents and judgments comprise a rich and complicated body of texts distinct from novels, equations, or musical scores. And law involves a rich and complicated body of institutional arrangements that structure and regulate social order, distinct from the institutional structures of markets, cultures, and religions." While we might quibble around the edges, I largely agree that the study of law deserves a special place in the university because legal texts and legal institutions are distinctive. But do lawyers have a distinctive method? Sullivan claims that we do:

But a discipline, as the term itself suggests, also represents a technique, a method of analysis, a way of working. Here too, law is distinctive. It is a branch of rhetoric that gives normative force to interpretation and analysis. It is a set of interpretive techniques of problem-solving that disaggregate and order the messy jumble of facts through which conflict presents itself. And it is an amalgam of argumentative and decisional conventions, engrained through repetition, teachable only through reiterated practice and critique, as with etiquette, musical performance, or sport. (emphasis added)

This I find less convincing. In my view, good legal reasoning is simply good reasoning applied to legal questions. That is not to imply that good reasoning is easy. It's not. But lawyers do not have a corner on the market.

The most common form of legal reasoning is analogical reasoning, and the second source that I relied on heavily in my discussion was an article by my professor and one-time employer Cass Sunstein, published in 1993 under the title "Analogical Reasonsing." In that piece, Sunstein identifies "four different but overlapping features [of analogical reasoning]: principled consistency; a focus on particulars; incompletely theorized judgments; and principles operating at a low or intermediate level of abstraction." While analogical reasoning may not be unique to law, it is as good a candidate as I know for the title "legal method."

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