Law school prides itself on teaching critical thinking, and to some extent it does, but it tends to limit that goal to the examination of texts and words and how to use those materials to make arguments. Law, however, is filled with empirical propositions and suppositions, and legal education does almost nothing to teach a better understanding of thinking about them.
For example, in a famous nineteenth-century case, a barrel fell out of a window and hit someone. The court said that we can assume if you are hit by a falling barrel, it must be because of negligence, and since the defendant controlled the barrel, he was liable. That a falling barrel means negligence is, of course, an empirical proposition. It seemed intuitively right to that long-ago judge, but also to me and my students. But I asked the students, if we are not to act on intuition alone, what would we need to know about falling barrels to make the determination that negligence is the likely cause of the plunge. I would only get blank looks from the students who were eager to opine on many other topics. They did not have a clue about how to begin to think about the question even though a problem following the judicial opinion in the casebook suggested an approach.
It said something like this: Assume that one in a thousand barrels is negligently secured and that nine out of ten negligently secured barrels fall. Assume that one in a hundred non-negligently secured barrels falls. What are the chances that a falling barrel is the result of negligence?
Most of the students assumed that the problem was beyond their abilities even though a solution to the hypothetical was in the book they were using. The problem requires no great mathematical ability—no knowledge of standard deviations or t-tests–only some critical thinking. However, because numbers were involved, these college graduates could not think it through. Their minds simply shut off.
But the problem is not just with those students. I have written some articles about forensic science and scientific evidence that have received attention. When the Supreme Court handed down a decision about scientific evidence, I was invited several times to address lawyers and judges about that case and other aspects of scientific evidence. I usually opened my talk by saying that in my experience lawyers and judges were a reasonably bright, educated group of people who became lawyers partly because they were afraid of math and science. I almost always got a nervous chuckle of recognition. (I said something similar to scientists, usually forensic scientists. Scientists are often people who have been taught to use a technique, but not how to think. This was especially true for the forensic scientists, but that line was only met with outrage.)
I told the lawyers, judges, and students that they could not simply turn off their minds when numbers appear or science is mentioned. Instead, they must be able to think critically about empirical propositions, something that was within their ability. Empirical propositions often require, or should require, the collection and analysis of data. That will mean numbers. That will mean that one needs to understand some basics about good and bad data collection and how to think about those data.
Few I addressed seemed to believe that they could do that and that is a failure of our education. I am not suggesting that mastery of advanced mathematical or scientific concepts is necessary. Instead, we all should learn that intuitions about empirical propositions are often wrong and learn basic methods of examining data and how such data can be interpreted. A good liberal education may encompass much today, but it often does not include this. Learning about the basics of probabilities and statistics is a step on that road.
However, something even more important must be absorbed. We seek certitude, but we must learn to be humble with our certainties and learn to question them. Antoinette Deshoulieres, the French poet, was correct when she said, “Seeking to know is only too often learning to doubt.”