In a post below, Ilya writes:
The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else.
Just as an aside, I wonder, how common is the traditional form of the Socratic Method in law schools? My sense is that the “traditional law school reliance on the Socratic Method” has always been a bit of a myth, fueled in part by the movie The Paper Chase, and that law professors have long used a wide range of different approaches in class. See, e.g., O. Kerr, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. 113 (1999). Further, my sense is that in the two decades or so, the “pure” form of the Socratic Method has become rare: The majority of professors today use a combination of lecture, questioning students, powerpoints, group discussion, and the like.
There are exceptions, of course. The Socratic Method remains widely used at some law schools (the University of Chicago comes to mind). And most professors use some aspects of the Socratic Method, such as calling on students and asking them questions about the reasoning of the cases they have read. But my sense is that what we think of as the traditional Socratic Method was never quite as dominant as is often supposed, and that practices in law schools today vary quite widely. That’s my sense, at least.
troll_dc2 says:
Prof. Somin wrote:
Do you agree? In my experience, one of the most valuable things that I learned in law school was how to think analytically–to focus intensely on judicial or statutory language and see what it really meant, what its underlying assumptions were, and what was not germane. I believe that the Socratic method was useful to me for developing this mindset, which I did not have when I entered law school.
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November 21, 2009, 4:27 pmOrin Kerr says:
Troll,
No, I don’t agree with Ilya on that. In my first year classes, pretty much the entire goal is teaching how to think like a lawyer. (I blogged about what I think that means here.) It’s a somewhat different picture for upper level classes: By then they get how to think like a lawyer, and I’m more focused on teaching the subject matter in the most engaging and interesting way I can.
Part of the difference between how Ilya and I look at this may be due to our different path after clerking. My recollection is that Ilya did not practice law: He went straight from clerking to be an Olin Fellow and then an Assistant Professor. In contrast, I went to the DOJ Honors Program for three years, including time at a U.S. Attorney’s Office.
Three years wasn’t a very long time, obviously. But I think I did draw from it a sense that being a good lawyer is a specific sort of an art and practice that isn’t the same as being a good scientist or some other professional. When I try to teach thinking like a lawyer, I’m trying to teach skills that would have made someone a success in the practice environment that I saw.
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November 21, 2009, 4:41 pmtroll_dc2 says:
Your link makes me regret that I did not discover VC earlier. Some of the comments, such as Posner’s, are priceless.
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November 21, 2009, 4:55 pmCornellian says:
Socratic makes sense in first year Contracts. It doesn’t make sense in third year Advanced UCC.
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November 21, 2009, 6:16 pmDavid Welker says:
My main objection with how law is taught is the focus on appellate cases, rather than the big picture and on more ordinary cases. I think instead of starting with appellate cases and trying to build up the bigger picture from bottom-up using cases as a foundation, it would be better to start with the big picture, which would be taught with a more textbook-like exposition, and only later go to cases to talk about more advanced nuances. That is, students should be able to classify the likely outcome of a lot of basic fact patterns before they go on to more ambiguous and contentious fact patterns.
I think assignments in Calculus textbooks are a good model. Assignments start with easy problems and then advance to more difficult problems. Students should be taught the basics and then advance to more difficult issues in law school too. I think focusing on cases means that students are focused on more challenging issues before they really have a strong foundation in the basics. That is, while grappling with more advanced issues, students are also grappling with the basics, and as the subject matter is new they are not always able to distinguish between the two.
Also, I think it would be much easier to understand how a case fits in when one reads it, if one has an idea of the big picture before reading the case. Often, cases deal with fairly small nuances. For example, most contract cases or personal injury cases in the real world turn on the facts, not issues of law. But obviously, most appellate cases are about issues of law that were either once contentious or are even now contentious. But, when all one is studying is appellate cases, one loses a sense of how the law really works in the more typical case. Also, I think learning about social facts about how law actually affects society would be very relevant before diving into more nuanced doctrine.
Finally, an excessive focus on cases has a tendency to distort the law. The large amount of agreement that exists about the basics is lost when always focusing on appellate cases. After all, if a case arises up to the appellate level, the issue was a matter of contention and is going to tend to be more advanced.
I think the Socratic Method (where contentious appellate-like issues is emphasized), is not the real issue. In fact, the Socratic Method is just fine, if used sparingly and appropriately when a course does dive into more nuanced terrain. Teaching people to “think like a lawyer” (which is really nothing more than teaching them to be a critical and logical thinker within the culture of the law) is fine too. To me, the real issue is an excessive focus on appellate cases and not enough on ordinary cases and the big picture. Appellate cases should be considered advanced, and a basic foundation should be established before one focuses on them.
Oh, one more pet peeve. Case book editors need to be VERY careful when editing cases. It was not uncommon in law school for me to get much more out of a case when I actually read the unedited version rather than the edited version. I definitely made use of my unlimited access to Lexis and Westlaw in law school! Basically, when text is cut, often critical context and logic is cut too, which makes the whole experience of reading the case frustrating. I think it is particularly hard for people with a strong foundation in a subject to see that subject from the perspective of someone without such a foundation and edit the case in the most useful way. Also, it is really hard to tell what the effects of your cuts are, since the case editor has in fact read the parts of the case they cut. There may be critical context in the case editor’s mind that is necessary for the logic of the case, but which they are inadvertently cut from the text. (This is also a problem with paper writing. People when writing a paper are so close to the issue, they often fail to recognize when their are logical jumps in their paper. Those jumps may not exist in their mind, but they exist on the paper. That is often why it is a good idea to put a paper down for a while before editing it and also having someone else look at it.) It is really hard to think from the students perspective. For this reason, I am sympathetic to the idea of assigning unedited cases, although I also recognize that this might be too inefficient to be done often in a lot of courses.
A final point. The law is a creature of history. Not enough historical context (again, in a textbook-like exposition) is provided in a lot of law school courses, especially for the older cases.
Oh, and one more last thing. This REALLY is my final point. It would be great if more appellate briefs were assigned along with appellate opinions more often. It is often extremely enlightening to see cases from the perspectives of the parties, and see the resolution in terms of an appellate opinion.
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November 21, 2009, 6:16 pmMark Field says:
I’m not sure the SM was ever that common. Even when I was in law school (the Dark Ages), only one professor really used it full time (and was really good). The rest used it only occasionally; mostly it was lecture.
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November 21, 2009, 6:35 pmShertaugh says:
As a long-practicing lawyer, I can’t think of anything more valuable than a running dialogue — call it Socratic — in which I’m questioned by, or I question, a colleague, testing the edges of a legal problem.
That experience in law school was invaluable.
The point, I think, is to learn how to see the legal landscape like a Cubist painting.
Of course, it helps to be incredibly smart (like Prof Kerr) to cut fast to the quick. And I’m sure there are law grads who never needed to learn what Socratic thinking is all about.
I sure wasn’t one of them. But learning how to think critically as a lawyer should was a revelation.
Much better than lectures by people with no practice experience about rules, exceptions, and exceptions to exceptions and hypos about the myriad exceptions.
The only thing better at forcing one to focus on options and options on options than forceful (but polite) Socratic thinking is prosecuting a 2-month multi-defendant fraud case. Then preparing to defend the verdict appeal.
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November 21, 2009, 6:45 pmtroll_dc2 says:
Which approach, that of Prof. Kerr or that of Prof. Somin, is more likely to cultivate in a budding lawyer the importance of asking questions that start with the words “What if”?
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November 21, 2009, 6:54 pmThe Volokh Conspiracy » Blog Archive » How Common is the Socratic Method? says:
[...] a recent post, Orin expresses doubts about whether the “traditional” form of the Socratic method is still [...]
Leo Marvin says:
Back in the Mark Field Dark Ages, Phil Johnson once told us the last time he used the SM, students were still commuting to class on dinosaurs.
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November 21, 2009, 9:57 pmLordrobot says:
The Socratic is not Socratic. I preface my remarks by first noting that I have three doctoral degrees: Physics, Medicine, Law. In all but Law, the instructors are first and foremost, physicists, Doctors who actually practice their intellectual crafts. Only in Law does one take the departure from reality in which Law Professors for the most part, don’t practice law and for the most part were not good at it if they did.
So the next obvious question is can they teach? Most of them cannot in fact teach they don’t know anything about teaching, and do not understand the Socratic technique. Their idea of Socratic technique is to embarrass some kid that didn’t read the assigned case. So they spend 15 minutes pretending to get this student to think like a lawyer but it is all about humiliation and a carryover from that silly movie the Paper chase. It is a silly hazing and intellectually tiring. Students would be better off buying a used set of Barbri books and staying at home studying. But of course the ABA requires one to park their tails in the class getting the required hours of hazing.
Of course the truly grand paradox is how an instructor that isn’t even a lawyer is going to teach someone else to “think like a lawyer.” Perhaps a good auto mechanic could teach me to operate like a surgeon because that is exactly how much in common law instructors have with lawyers.
So I ask students should a man have to pay money for plucking a man’s eye out with an ice pick.
One student will say, “Of course.”
Then I remark, “In war?”
Student says, “War’s an exception.”
Then I say, “I guess surgery is an exception too.”
Then I say, “Why don’t we just pluck the eye out of the guy who plucked the eye out with an Ice pick so he can see how it feels to have his eye plucked out.”
Eventually we will get to the point in a very round about way, whether this was an intentional tort or an act of negligence, and how we practically arrive at cash compensation v. just plucking the other guys eye out to even up the score in a plea in equity.
This approach is hardly the fastest way to the goal line and quite frankly, I don’t remember a single Socratic attempt in Law School that didn’t just drone on with a stumbling oral rendition by a student that read about as well as a fourth grader. But the great news is that everyone who sat there, comatose or asleep, achieved the ABA goal of verifiable accountable certifiable hours of classroom lecture. And we are all better for it too. Sorry I am so cynical... but then again, I’m a lawyer.
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November 21, 2009, 11:51 pmDavid Welker says:
Lordrobot,
Excellent post. The Socratic method is at its worst when it comes to basic issues.
At the very least, professors should save it for the issues that are actually interesting to have an argument/discussion about. The basic foundation (i.e. the distinction between unintentional versus intentional torts) should just be explained in a straightforward manner.
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November 22, 2009, 12:19 amTweets that mention The Volokh Conspiracy » Blog Archive » How Common is the Socratic Method in Law Schools Today? -- Topsy.com says:
[...] This post was mentioned on Twitter by Peter Black, Sean Mulcahy. Sean Mulcahy said: RT @PeterBlackQUT: reading some more on the socratic method ... “how common is the socratic method in law schools today?” http://j.mp/6ev42x [...]
Lordrobot says:
David,
Thank you for your concise on point post. I have come up with a discussion idea that would lend itself to the Socratic Method. I agree with you that simple legal concepts run afoul with the Socratic Method. Rather than just advancing the legal education, I think the Socratic Method would be most useful where the answer is unknown or extremely complex. With that in mind, may I introduce one of the more interesting legal noir conundrums to hit the news in a long time?
Alyssa Bustamante is 15 years of age. Several weeks ago, she dug two significant holes in the ground. To fill the voids that she created, she lay in wait for 9 year old Elizabeth Olten. Apparently Alyssa became obsessed with this idea, like the child who is waiting for snow. She lured Elizabeth into a remote wooded area, not far from the graves she had dug. Alyssa then applied the use of a sharp knife and slit the throat of Elizabeth and according to her confession, said she was curious and “wanted to know what it felt like to kill someone.” It is my understanding that Alyssa, then hid the body in the remote grave and resumed her normal day to day living processes without any outward sign of concern.
My assumption is that her curiosity was satisfied and she then possessed the rare knowledge of what it felt like to kill someone; rare knowledge indeed; for a 15 year old girl.
So what do we do with Alyssa? She is not insane. She has come here to tinker with the tumblers of our legal minds and our legal system. She will not be tried in a juvenile court, because the thought of a maximum 12 month confinement and then to be walking to school again with her back pack filled, minus her mom’s steak knives of course, past the home of the Oltens doesn’t sit well with the juvenile judges. That means the juvenile court system failed. So Alyssa will be tried as an adult. A plea was entered for her by the judge as “not guilty.” So even now the rules of law are bending like creaky floor planks.
I presume Alyssa will now be evaluated by a team of Psychiatrists whose mind tumblers will also meet the tinkerer. Is she sick? Are all killers sick? Or do we just want to believe that so it makes us rest better at night as we watch the school kids with back packs wander our streets at night and wonder if they have concealed cutlery and some empty holes dug in the ground in a wooded area not far from our back porches.
Ah yes, where is Socrates when you need him to sort out the unsortable. So what will we do with Alyssa, shy of giving her a Girl Scout merit badge for taking the life of a 9 year old neighbor? She will probably never kill again. Get her a book deal in a few years, she can say she is sorry for what she has done, send Christmas presents each year to the Oltens, meet God, and in ten years be out just in time to start a family of her own; creating perhaps less curious children. One thing is certain whether we like it or not; Alyssa Bustamante isn’t going to just walk away from the legal system. When she finally goes it will be, as they say, with your intestines in her teeth because there is no legal education that can provide, in any remote sense, a reasonable way to dispense justice that will allow us to walk past the Olten’s home and smile and say, “Ain’t life great… our judicial system has restored the earth back to its proper orbit.”
So what do we do with Alyssa Bustamante?
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November 22, 2009, 5:30 pmColin in CA says:
Quite a few of my profs used the Socratic Method (aka “cold-calling”), but only one of them used it basically full-time. Profesor Robin Feldman uses a random number program to come up with a list of names for each lecture. I believe that *everybody* in my 1L section read *all* her material.
The rest of my profs were either semi-random or went in alphabetical order.
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November 22, 2009, 9:20 pm2 cents says:
I am surprised by the question (though, the qualifier of “today” may make a difference– I graduated law school in 2001). My first two years of classes were almost exclusively taught with SM (though, one professor may have deviated by injecting a lot of humor to liven up Propery and Trust and Estates; the explanation of the fertile octogenarian and his hypotheticals where all families have a lot of sex and then kill each other off were priceless). It was only third year elective courses taught by practitioners that veered into more SM plus lecture. Sports and Entertainment and Medical Malpractice were both peppered liberally with “real world” applications (who knew about “deep pockets” when figuring out whether a case was worthwhile to pursue?).
Of course, “practical” courses, like Trial Practice and Legal Writing, relied on other methods. But the bulk of my legal education was SM. I think it was an appropriate teaching method. At least for me.
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November 23, 2009, 6:09 amLordrobot says:
Colin,
What you have described is not the SM but a method of ambush. Socrates invited answers from those with something to contribute. I think the ambush technique you describe is precisely what many of us are arguing against as masquerading under the pseudonym SM when in fact, it is just an ambush and a waste of time.
Ambush begins and ends with a strange set of presumptions: 1) students don’t read assignments. 2) Ambush will keep them in line. 3) That an Ambushed student is somehow of equal worth to a student that already participates with a spring loaded right arm. 4) That simple legal concepts can be taught by Ambush and 5) Drum roll, that Ambush is much more than a waste of time in order to establish the ground rules of compliance. [IRS methods of instilling fear to achieve compliance.] 6) That every student must contribute or else.
The fact that you actually believe in the concept of “cold calling” as the foundation of your legal education’s worth, I don’t wish to break the soap bubble over your head and ruin the illusion of value. Carboxyl weak forces do make beautiful bubbles. However if we just explore my #6 above, I think that puts the Ambush theory in the tank. Some students don’t wish to participate.
It is a wild accusation for an instructor to assume a student is unprepared for class merely because they don’t want to participate with a stupid game. In law school students are easily brainwashed into compliance. Not so with students in advance physics classes at Cal Tech where the professor knows without doubt that many of his students are beyond measurable means of intelligence scales most particularly their own.
You see, Colin, you never see anything in the world until you take it to the extremes of hot and cold. No significant information is every gleaned until you blow the wings off entropy in a wind tunnel or freeze a few space shuttle o-rings. Do you really think that the universe is composed of Ambush accountants that give us check boxes and raise eyebrows with the amount of “passes” we take? Do you think any professor on earth could pry anything out of my thoughts that I did not want to indulge? If I have no interest in showing off my intellectual apple polish in Hunt v. Washington State Apple does that mean I don’t get it? That is quite a jump in reasoning.
More importantly as a fellow student, why oh why am I obligated to save a drowning instructor at The Little Big Horn Law School? Do I have a duty to participate? Do I have a duty to rescue the class from the indians, or can I sit back and smoke a good cigar and watch the bubbles rise from the lakebed when you head goes below the surface and just blow smoke rings as the beautiful sun sets?
Colin, I wish you would invite your former instructor to come out here and give us another viewpoint. Thank you by the way for your comment; best wishes. Lordrobot
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November 23, 2009, 6:51 pm