Law, literalism, and the LSAT

You read the rule, and it’s there, and you are spared the agony of thought. (Jan Vetter, 1994)1

 

We interpret things we’ve heard or read all the time — for most of us, probably a hundred times or more in a  typical day. And by “interpret” I mean thinking about what is behind the words we see or hear — what the speaker means or is getting at, or often why (s)he made the statement at all. Anyone who didn’t do this would soon find himself stuck in neutral, as most of our communication involves unstated premises and conclusions, hidden meanings, subtleties that never make it to the page because they don’t have to, because everyone else is used to communicating that way. It’s… well, frankly it’s human not to take everything literally. (If you don’t agree and you happen to be a Star Trek fan, imagine either Mr. Spock or Lieutenant Commander Data, depending on which generation you prefer, trying to be as logical and literal as possible. That logical, literal extreme is what I’m talking about. Imagine it; how human does it seem?)

It’s human. It’s how we communicate. It’s the basis of most communication, and thus of most social interaction. But it’s not how law usually works.

Most of the time, law is written as precisely as possible, and is meant to be read as literally as possible. The statute applies if it says it applies, and it applies exactly as it says. The contract means what it says, exactly. The appellate decision is to be taken so literally that every court that cites it will do so verbatim, and woe to the attorney who paraphrases.

In this precision lies the essence of law, or at least law as usually practiced in the United States. When everything is subject to interpretation, everything is effectively subjective; that may be fair, but it isn’t what most of consider law. There are exceptions, of course — contracts get reformed, legislative history gets analyzed to determine the intent of Congress — but for the most part the “black and white” law is what’s going to matter to almost everyone. And it’s what’s going to matter to you when you’re in law school… and before you get there. Because that’s where I’m actually going with this: the black and white, literal text is what matters on the LSAT.

I’ve long contended that the LSAT is a very good test, possibly the best of the standardized tests for which I regularly tutor. By that I mean not that it’s fair and unbiased (it isn’t), or that someone with extensive (and expensive) preparatory help won’t be helped by that (because prep work certainly does help), or that it is a measure of moral worth or some such thing. No, I mean that it’s a pretty good test of how well suited the test taker is for law school, and (to a lesser extent) for the practice of law. And the most important reason is its literalism.

Most of my students have at least some difficulty with this when they first start doing LSAT questions, because as I said, humans aren’t used to taking communication literally. When asked what the conclusion of an argument is, they tend to tell me what they think the speaker was getting at. When asked the point of a reading comprehension passage they similarly go to why they think the writer wrote it. They attack LSAT questions they way the attack everything else, by understanding them.

This would be (and is) a fine approach to reading on many standardized tests, such as the GRE and the GMAT. And it’s flat out necessary on MCAT reading comprehension, which they call “verbal reasoning” as a signal that they really do want test takers to look beyond the words on the page. But on the LSAT it works imperfectly at best. It’s fine on the easier questions but it starts to break down when the questions get trickier, because the “trick” is exactly what I’ve just said. The trap answer on many difficult LSAT questions, in both the reading comprehension and the arguments section, is exactly the thing the LSAT writers expect a smart person to think is the important thing about whatever is being asked about, even though it’s not written down. It makes sense. It’s probably the basis for the passage or argument. But it isn’t the answer.2

I’ve said before that more students come to me for help on LSAT games (technically, “analytical reasoning”) than any other section. But a majority wind up gaining more points in the arguments sections (“logical reasoning”), and the single most important source of that improvement is learning to take the text literally. On many argument question types (and this is also true, with some tweaks, on reading comprehension) the answer is there. It is in the text, and if you haven’t found it yet you have to keep looking. This can be difficult and frustrating to people who are used to understanding what they read, not simply reading it, but it’s a necessary component of a good LSAT score.

Notes

  1. Professor Jan Vetter of UC Berkeley was one of the two best teachers I’ve ever had, not least for his ability to make even the driest subject — and into that category, most law students would agree that civil procedure falls — worth paying attention to. I don’t know how many of my classmates remember the above quotation, which is about the Federal Rules of Civil Procedure but could just as well apply to a hundred other sets of rules, but it has stuck with me. It’s amazing how often it seems to be apposite; luckily I’ve learned not to quote it too often, lest people take it wrong (or perhaps right).
  2. When I first started teaching I was taught not to say “the answer”; there was “the credited response”. The goal was to avoid debates about what’s correct and incorrect, or perhaps (it’s happened) about what “correct” even means. I understand the thrust of this approach but I don’t agree with it. When you know the rules, the correct answer is the one that is correct by those rules; you may have your own way of looking at things but when you’re taking the LSAT, following your own way is silly if you know that’s not the way the test is going to be graded.