Law in Contemporary Society

Death to Socrates!

-- By MinaNasseri - 12 Feb 2008

“We use the Socratic method here. I call on you, ask you a question, and you answer it…Through this method of questioning, answering, questioning, answering…you teach yourselves the law, but I train your mind. You come in here with a skull full of mush, and you leave thinking like a lawyer.”

The Socratic method, described above, sounds desirable on its face. An ideal law school classroom would involve this inquisitorial exchange whereby the student’s “skull full of mush” is transformed into a fine-tuned legal mind. But the man quoted above is Professor Kingsfield of The Paper Chase, the archetype of the Socratic method gone wrong. In The Paper Chase, Kingsfield uses the desirable method he describes to create a reign of terror in his classroom. The professor calls on timid students and drills them until they feel helpless and humiliated. In fact, the Kingsfield model of the Socratic method does not aim to teach students how to think like a lawyer, but to accept that the professor is smarter than they will ever be.

Admittedly, Kingsfield is a fictional character meant to exaggerate the harsh aspects of a Socratic instructor. That does not, however, negative the actual pitfalls of the Socratic method. This unique teaching method is desirable, in theory. As applied in a modern law school classroom, however, the Socratic method has no advantageous qualities and is wholly ineffective. It is merely a reliable mode of instruction that professors use because it is comfortable for them to do so. Reliance on the Socratic method prevents the implementation of more effective modes of teaching. As such, the Socratic method should be abrogated by American law schools and replaced by alternative methods of teaching.

The Ideal: The Socratic Method As Intended

The Socratic method was originally a mode of philosophical inquiry. An inquisitor would pose a series of questions concerning a central issue and would continue the questioning until the student contradicted himself. In leading students to contradiction, the instructor showed students the nature of their ignorance. Thereafter, a Socratic teacher posed a new series of questions to help the student construct the knowledge that he had just discovered was lacking. The goal was not to trap students in their own contradictions, but to develop their ability to think independently and analytically.

  • This isn't really a fair philosophic summary of what Plato's idea dramas are about, because it lacks the element of the belief in innate ideas. As the archetypal case is depicted in the Meno, Socrates evoked the Pythagorean Theorem from a slave boy by leading questions, allegedly thus demonstrating that he was intuitively aware of the proof, but only need to have it _educated_--or brought out--from him. What you calling analytic thinking isn't necessarily involved, because the effort is to invoke an innate idea, not--as you suggest--to evolve one.

The Reality: The Socratic Method As Applied

The Socratic method used in law schools today bears very little resemblance to the method expounded by Socrates.

  • We have no idea what Socrates "expounded." (I think you mean "used.") We know Socrates only by reputation, as a character in Plato's dramas, Xenophon's comments, and Aristophanes' Clouds. We know that in 399 BCE he was charged with corrupting the youth of the city and executed. Plato's dramatization of Socrates' thought could have fathered a "method" of speech on him: at least one of the two is among the greatest dramatists of ideas in human history. But if Plato is to have any of the responsibility for his own works' immense dramatic power, why should he not be hypothesized to have it all?

  • If you are interested in these questions, you might find rewarding I.F. Stone's Trial of Socrates, which is a remarkable achievement of late-life scholarship and vernacular historical imagination by one of our greatest free thinkers.

It has become a “watered-down” version of itself, where students are asked the facts of a case and little else. Unlike the Socratic teacher, the modern law school professor does not wish his students to explore their beliefs, but to merely recite the factual absolutes of the case. Instructors make very little effort to guide students’ thought processes during questioning; the emphasis is placed on whether the student read thoroughly enough to remember every minute fact of the case and all aspects of the opinion(s). The Socratic method as applied today focuses on the what - a complete divergence from the why and how -driven inquiries of Socrates.

  • A correct conclusion on wrong premises. The key difference is that there is no supposition that these are innate ideas revealed by questioning, but rather a form of cross-examination of a witness to the assigned reading. What is being elicited is of a fundamental and philosophically relevant difference in kind.

  • But your conclusion won't bear the weight of the next inference. So something that isn't quite the same method isn't being used for the same purpose. This is no proof whatever of the inadequacy of the method until we determine the purpose it is supposed to serve and whether it does so. You skip this step, and the result is that you make no argument whatever on the crucial point. The purpose of conducting a law school class by successive cross-examinations is to require a dialog of the beginning lawyer like the interrogation of an apprentice by the master, both being intended to test the ability to absorb and remember legal detail, and reproduce it intelligently after synthetic recomposition or modification under the pressure of public questioning.

Furthermore, the Socratic method's coupling with the casebook method places an undue emphasis on memorizing court decisions. Due to a fear of being called on, students read the assigned cases with an unwarranted attention to detail. They dwell on the minutia of case law and neglect to focus on the overarching concepts that drive the law. Students also derive little to no practical benefits from the process of factual memorization and regurgitation encouraged by the Socratic method.

  • These are assertions. Nothing is stated to make those assertions more credible, and to the eye of an expert, or even a lawyer (neither one of which you can bring to bear on the situation) they are false. Learning to absorb every detail of a case, from the most salient to the most minute and apparently irrelevant, is necessary training because that's how lawyers learn about the factual strata that surround their matters: intensively, arbitrarily, with a need to learn quickly not only the immediate detail in all its complexity, but a sufficient and yet parsimonious share of all the external details necessary to speak intelligently about the details as called upon. If the system of cross-examination you describe, which you wrongly assert is based on fear, were capable of strengthening people's ability to memorize and recall large bodies of detailed material, it would be a wonderful and very desirable form of instruction. Your speaking slightingly of powers of memory and recall does you no credit for wisdom in the ways of the law. Memory is one of the lawyer's most powerful mental assets.

  • Unfortunately, cross-examination--as every trial lawyer knows--is not a way to teach the perfection of memory. You are wrong to say that one asks questions in a law school classroom in order to instill fear. Every teacher not a moron knows that fear inhibits learning, and that feelings of security significantly increase the mind's ability to retain what it learns. People's stage fright about being called on is the teacher's enemy, which is why some deans and teachers think that public speaking training, including in order to make talking in class seem less frightening, should begin law school. For myself, I was never afraid for an instant to be given an opportunity to express my thoughts in a classroom, as I suspect you will have suspected. Was I less afraid because I was a better student, or a better student because I was less afraid?

The Socratic method as applied, essentially a factual interrogation by an intimidating authority figure, has harmful psychological effects on students. Most students associate the method with feelings of anxiousness, apprehension, and fear. Students hesitate to admit confusion or ignorance--originally considered a Socratic virtue--for fear of sounding unintelligent or unprepared. This negative psychological impact drives students to take drastic measures. Some students prefer to miss class rather than risk being interrogated. Others resort to playing “musical chairs,” hoping that not sitting in their assigned seats will reduce their chances of being called on.

  • Could it be that such people aren't really cut out to be lawyers, and that in a highly-selective system focused on what would produce good law students rather than law students with high aggregate LSAT scores, those students wouldn't be invited to join the class? If you have a problem that requires, among other things, courage, would you really want to go to a lawyer who was afraid to talk in class? Maybe the courage to speak up, as well as a really good memory for lawstuff, are reasonable things to ask for in people who are going to be made members of the legal elite in the United States solely as a result of being admitted to a top-ten law school.

Alternative Methods of Instruction

Since it is an ineffective teaching mechanism, the Socratic method should be abrogated by American law schools. It is currently being used as a “crutch” for many professors, who find it easier to do what has always been done rather than to implement alternative teaching methods. Elimination of the Socratic method will, in turn, drive faculty to develop more effective methods of legal instruction.

  • This is not argument. Now you are addressing those who already agree with you. Given the weakness of the preceding argument, that's not a good idea.

Proponents of the Socratic method argue that it equips students with essential legal skills, such as oral advocacy. However, any skill acquired by students through the Socratic method can be taught through a superior, alternative teaching mechanism - one that does not leave students feeling apprehensive and fearful.

  • Two fallacies are now joined. First, anything that can be taught one way can also be taught other ways. This degree of reductivism as to purpose will not convince even a gullible reader, who will know--in whatever areas of social life he functions--that complex tasks such as teaching are carried on in compromise among limitations (of time, resources, amidst a welter of competing considerations), rather than as free choices among multiple perfect options, each better than the last. Second, that the apprehensiveness and fearfulness are the education's fault. Teachers didn't say one should be ashamed not to know. Teachers didn't say that confusion and difficulty of self-expression when first learning a language are disgraceful, or indicative of failure. If you found that in the classroom, you and your colleagues brought it in on your own shoulders. Teachers labored to the extent of their variable talents and understandings to convey to you the rudiments of legal language and its use, in settings that tried to blend instruction in law talk with substantive coverage of basic rules in private liability and procedure. Teachers also--to the variable extent of their powers of intellectual dramatization--tried to model for you the love of legal learning. To be without love of learning is the gravest disability under which a student can labor. All instruction should be designed to create such love, never intentionally to injure it. But students have a responsibility to seek learning avidly, intrepidly, with integrity and willingness to risk. Running away is failure of duty. Of course, if someone enters law school with no sense of duty, responsibility, or risk.....

One potential alternative is the clinical teaching method, which uses simulation and supervised work to equip students with practical legal skills. The clinical mode of teaching, which is lacking in the first year curriculum, would provide students with real-world legal instruction such as how to counsel clients or how to draft legislation. This mode of instruction, coupled with the foundational concepts of the law, would teach students about the real work of a lawyer.

  • "Academic faculty never have to act to deflate a student in public if they don't want to," a valued colleague of mine who has been on both sides of the line once said. "But in the clinic, we shoot one student after another, right between the eyes." Clinics aren't simulations in our world, thank you very much, but live client representation practices, which do what they do at the highest level of skill and effectiveness, because our colleagues, who are absolutely superb lawyers capable of what most practitioners would find to be unattainable levels of constant self-scrutiny, not only handle all the work when the privileged young ones are away earning big money for the summer or laying around the Caribbean in January, but practice with youngsters every other week of the year, patiently working everything the hard way in order to keep it teachable, with unflagging graciousness and enthusiasm. Experimentation with clinics where people don't have some serious law school under them has not convinced skeptics who believe fervently in clinical education. I'm sorry to say I don't think you know what you are talking about here. I don't know what sort of reading you did to decide what your position is, but I have the feeling that it didn't fully inform you on the issues.

Law schools can also focus on fostering a cooperative, communal learning environment where professors engage the entire class rather than just one student. In such a setting, a professor would pose a question for all to discuss and students would feel free to volunteer their opinions. Professors could also assign problems for students to work through in groups and present to the class. A cooperative environment will allow students to learn how to collaborate with one another while equipping them with the skills (oral advocacy, analytical, etc.) that the Socratic method's supporters claim are unique to an interrogative environment.

  • That's what a seminar is. Everybody loves teaching them (though they are very difficult because so much depends on the degree to which students are willing to invest in them), but hundreds of years of experience in universities all around the world have shown that you can't make it work in units of larger than roughly twenty. And the economics of law school make the prospect of holding most classes under twenty in the first year absolutely impossible. The small places, like Stanford, Yale, and Chicago, can get one such class for people in the first semester. Columbia has trouble delivering one class of twice the maximum effective size. You're not writing about the real world here. In the real world, one might try to use technology to provide alternate modes for student interaction, like wikis, just to pick an example.

In sum, American law schools have too long relied on the obsolete and ineffective Socratic method for teaching. They should eliminate the Socratic method and think creatively to produce alternative modes of instruction.

  • Well, as long as one is navigating by assertion, one might as well throw in one more unsupported proposition at the end. You don't suppose that there's someone at the law school who has power to tell us how to teach our courses? That there's a switch that someone can flip on the basis of which talented and dedicated people who have been trying to perfect their craft for decades are going to abandon their own judgment to the judgment of someone else? This talk of "elimination" is just naive, to say nothing worse. Some teachers are doing what they have always done, more or less impervious to changes around them, while some are actively and eagerly experimenting with new possibilities. There are people to work with in every direction, but the positions taken here need much further critical scrutiny before one could make policy on them.


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r7 - 12 Jan 2009 - 23:00:16 - IanSullivan
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