April 6, 2011

Thinking Like Lawyers, Or Others

Donald J. Kochan, Chapman University School of Law, has published Thinking Like Thinkers: Is the Art and Discipline of an 'Attitude of Suspended Conclusion' Lost on Lawyers? as Chapman University Law Research Paper No. 11-15. Here is the abstract.

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in lawyering and law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs.

Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains “the attitude of suspended conclusion” when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself.

Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to “shoot first and ask questions later.” The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process.

The Article includes sections on the educator’s role in “thought”; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important.
Download the paper from SSRN at the link.

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