The Key to Studying Law: Think "Meta"

I am back in the classroom this fall. I am looking forward to teaching again. I will be renewed in enthusiasm for my profession: law. Since we who teach law are routinely accused of obfuscation, I would like to do my best to explain explicitly how to "think like a lawyer."

Law students just starting school might believe they will be called upon to memorize lengthy lists of rules. While it is useful to know the “elements” of a negligence action (duty, breach, causation, damages) or sections of a Model Penal Code provision (murder, 210.2(1)(b)), what is more important is being able to assemble and synthesize those bits of information into arguments and solutions. A baseball player needs to be aware of the regulations that define the game, but that background does not mean he will be qualified to compete at all. As a 1L progresses through the semester, she will realize that among the most important rules are meta-rules — laypeople can be taught to look up rules easily enough, but they will lack the ability to analyze law without the meta-rules.

The concept of “meta” is crucial to all critical thinking. It denotes self-reference.

A meta-movie is a movie about movies (Adaptation, The Player, Scream, Tropic Thunder) ; a meta-book is a book within a book (The New York Trilogy, Pale Fire, The Princess Bride); a meta-play breaks the "fourth wall" (Hamlet, Midsummer Night's Dream, Richard III). Meta-conversation constitutes more of conversation than people usually notice, and it is normal: for example, someone saying to a spouse, “You aren’t listening to me” is talking about how they are communicating. My wife has a meta-bag, a bag of bags, in the trunk of her car, because where we live stores charge for a bag. (For those interested in paradoxical intellectual investigations, “meta” is at the heart of logic and math. It leads to Russell’s Paradox and Godel’s Incompleteness Theorem.)

Meta-rules are rules about rules. They are about who is empowered to interpret rules and how they ought to do so. If the law were a single, consistent, comprehensive, unified body of rules, life would be simple and lawyers would not be needed.

But human beings are human beings. We together have created a complex array of rules. Deserving of respect, our democratic processes produce these quandaries: people in one state disagree with their neighbors in the idealogical subjects such as abortion or same-sex marriage. It’s also true of quotidian matters such as taxation brackets and recycling requirements.

The consequence is that the study of law and the subsequent practice of it is based on multiple sets of rules that not only appear to be incompatible but actually are inconsistent. Some of these discrepancies generate open conflicts of public policy. Others can be used to the advantage of some and the disadvantage of others in private transactions. This type of problem recurs. Profound issues such as the legitimacy of slavery, which the Supreme Court considered in the 1857 Dred Scott case, can end up turning on seemingly technical considerations of jurisdiction. 

That is why meta-rules are paramount. They allow decision-makers to resolve a dilemma between two rules, each of which plausibly could apply. They are not a contrivance of tricksters. They are inherent to a society that is diverse and self-governed; an authoritarian regime has fewer of these difficulties.

The choices that are usually presented include federal law versus state law; one state’s law versus another state’s law; international law versus domestic law; common law versus statutory law; Presidential Executive Order or administrative agency regulation versus Congressional legislation; old versus new; general versus detailed; and so on. The Constitutional clause guaranteeing "full faith and credit" is an attempt to address the muddle, but even its doctrines have not closed the books.

The status of potential sources of authority is contested too. The Bible, a standard dictionary, or statements by public officials sponsoring a proposal have been cited as well as disregarded, depending on judicial philosophy.

Beyond law, “meta” is all about self-reflection. The ability to transcend the structure in which an individual is embedded offers the best means to progress in other disciplines as well. All systems have a level above the system itself. To jump up to that next level is to be able to alter the playing field.

Law turns out to be dynamic and concrete rather than static and abstract. Law students proceed from learning rules to learning meta-rules. That is how they persuade people and perform a service. 

The best leaders likewise adapt. They are always thinking “meta."

This post is part of a series of advice to first-year law students, especially those enrolled in Civil Procedure. Other posts in the series include the following:

• How to Answer Any Legal Question
• Starting to "Think Like a Lawyer"
• Before You File That Lawsuit