One of the standard defenses of the Socratic method, which I criticized in my last post and here, is adherence to tradition. If American lawprofs have been using the method for decades, there must be something to it. Who are we to question the approach that worked so well for Professor Kingsfield?
I am generally skeptical of the “Burkean conservative” case for traditionalism. But I do recognize that voluntarily adopted (as opposed to coercively imposed) traditions have some value and may be entitled to a measure of deference. Perhaps the Socratic method is an example of this kind of tradition. No one forced lawprofs to use it, and law students could potentially have chosen to attend schools that don’t use it — a preference they might have imposed on lawprofs through market pressure. On other hand, the AALS [update: should have said ABA] certification cartel diminishes competition in the market for legal education and makes it much harder for new schools to enter the field and gain a competitive edge by emphasizing novel teaching methods.
In any event, the tradition-based argument for the Socratic method fails even on its own terms. It ignores the fact that virtually every academic discipline other than law has a long tradition of not using the Socratic method. That includes professors who teach courses on legal issues in political science, economics, history, and philosophy departments. Similarly, the Socratic method isn’t generally used by law professors in other countries, including other Anglophone common law jurisdictions such as Britain, Canada, and Australia. There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties. Relative to the traditions of most of the academic world, the widespread use of the Socratic method in American legal academia is an outlier. That doesn’t by itself prove that the Socratic method is wrong. But it does suggest that it can’t be justified merely on the basis of tradition.
GainesvilleGuest says:
The AALS is a joke of a cartel. It refuses to stop allowing new law schools. What’s the point of lawyers maintaining a cartel if we’re not going to limit supply?
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November 21, 2009, 12:28 amIlya Somin says:
The AALS is a joke of a cartel. It refuses to stop allowing new law schools. What’s the point of lawyers maintaining a cartel if we’re not going to limit supply?
It doesn’t categorically refuse to allow them. But it does make it very difficult for them to get certified, which does indeed “limit supply.”
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November 21, 2009, 1:39 amBruce Hayden says:
There actually would be anti-trust issues if they did refuse to allow new law schools. Making it hard is something else entirely, if for no other reason than that would make the proof that much harder.
My theory is that the ABA and presumably AALS having this sort of problem is because they are trying to regulate lawyers and law schools, and if you do that, you had better be on firm legal grounds, since you are dealing with other lawyers.
The AMA on the other hand likely hates lawyers, and so it is much easier to enforce a cartel over there.
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November 21, 2009, 2:13 amArrowSmith says:
Huh, so we should use liberal feel-good “logic” Instead of real deductive reasoning? No wonder it’s all going to hell.
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November 21, 2009, 2:45 amShag from Brookline says:
Several years after “The Paper Chase” TV series had run its course, a brief item appeared in one of Boston’s newspapers about a problem students at Harvard were having — shortage of toilet paper — that was indeed the real “paper chase.”
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November 21, 2009, 5:55 amDjDiverDan says:
Comparing what teaching methods are used in Law Schools to what teaching methods are used in either undergraduate courses or other post-graduate programs is of limited usefulness without also analyzing the skills that the respective programs are trying to develop. IMHO, the Socratic Method is very useful in developing: (a) the ability to think quickly on your feet; (b) the ability to communicate orally with a much higher degree of precision than is normal for casual conversation; (c) the knowledge that one ought to think clearly through all of the logical consequences of an answer before just blurting it out; (d) the ability to handle (and, through practice, deliver) effective cross-examination to test the limits of your logic; and (e) the ability to perform in front of an audience of one’s peers without letting fear of humiliation turn you mute. All of these are very useful skills for oral advocacy, which would probably not be developed as well with other teaching methods. It’s probably quite true that these skills are most useful for the subset of lawyers who will actually become trial or appellate lawyers, and that it is probably NOT the best teaching method for courses focused on learning certain substantive areas of the law which are more directed to transactional practice — Property Law, Contracts, UCC, Corporations and Business Organizations, Patents, Copyrights & Trademarks, etc. But if you are teaching Evidence, for example, where most of what the student is supposed to learn will be tested in the Courtroom — the ability to recognize and quickly verbalize an objection to evidence, and to respond with lucid arguments on why the evidence ought to be admitted, I’d suggest that the Socratic Method is ideal for best preparing students to deal with the situations where the substance of what they’re learning will be used. IOW, I think that the Socratic Method is probably overused in American Law Schools, but it still has its place. The trick is for the professor to figure out the full set of knowledge and skills his or her course is trying to impart to students, and select a teaching method that is both best suited to develop those skills and with which the professor is most comfortable.
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November 21, 2009, 9:48 amBABH says:
It seems to me that the Socratic method is good for many things. It motivates students to be prepared for class — a serious problem, I’m told, in other graduate programs. It turns a lecture class of 50, 100, or more students into a seminar. Without it, law schools would have to have much smaller class sizes, which would mean the expense of taking on more faculty. And I agree with DjDiverDan, above: most incoming law students need to practice public speaking and thinking on their feet.
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November 21, 2009, 10:06 amBABH says:
Perhaps I should have read the old post. Prof. Somin is advocating only a retreat from full-blown Kingsfield Socratic teaching, not abandoning the method altogether. I agree: the Socratic method can and should be applied thoughtfully and humanely. One of my favorite approaches was a professor who divided the class in half, with one half on call one day, the other half the next. This kept us on our toes, while giving us a little leeway in managing our workloads.
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November 21, 2009, 10:14 amPensans says:
The example of other countries and other disciplines is irrelevant to a traditionalist argument for American legal education.
The traditions of non-American, non-legal education is irrelevant to the tradition of American legal eduation.
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November 21, 2009, 11:24 amtRE says:
Do they teach thinking like a plumber in plumbing school or do they teach plumbing?
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November 21, 2009, 12:14 pmFûz says:
“(b) the ability to communicate orally with a much higher degree of precision than is normal for casual conversation; (c) the knowledge that one ought to think clearly through all of the logical consequences of an answer before just blurting it out; (d) the ability to handle (and, through practice, deliver) effective cross-examination to test the limits of your logic;”
Seems to me that the use of this method should be more widespread outside of law.
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November 21, 2009, 12:16 pmDoc Merlin says:
In law schools, the socratic method is a way of making sure that students have done the readings and are knowledgeable about the topic. In truth, it is mostly students that teach themselves. The profs exist to make sure they do, and to correct misconceptions and point out what is important
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November 21, 2009, 12:25 pmSandy MacHoots says:
A few points.
First, the Socratic method is the approach that won out in competition with other methods (such as lectures) at the beginning of the century. Students and faculty abandoned other methods. That tenured law professors have been complaining about the SM for decades, but have not developed a similarly effective method, suggests that there is value to the current approach.
Second, law school is not an “academic discipline,” it’s a trade school. A J.D. is like an M.D. or an M.B.A., not like a Ph.D. I’m not aware of any other disciplines who use (for example) the case study approach used in M.B.A. programs. So what? Professor Somin is an academic, not a lawyer. If he were training academics he would be correct. But he’s training lawyers.
Third, American lawyers and American law firms are the best in the world , which is why the most profitable firms in the world are generally U.S. firms. My impression is that there are many more foreign students coming here for training than there are U.S. students going to foreign jurisdictions. That doesn’t argue for adopting the methods used in those other jurisdictions.
Fourth, the abilities to think on your feet, to deal with hostile questions, and to accurately and clearly state a legal argument, are just as valuable in transactional practice as in litigation.
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November 21, 2009, 12:30 pmsbw says:
We don’t need no steekin’ Burkeian traditionalism to justify Socratic questioning.
Socratic Question: Is a law school student a vessel to be filled by lecture or an entity whose skills are refined when nudged to practice using those skills?
Hint: Weightlifting for the brain. Perhaps people only presume they think rationally. Perhaps they come to conclusions and then rationalize how they got there. Teaching someone they are mistaken is not as effective as helping them stumble over their own inconsistencies using the same engine that needs to become humble.
I’ll collect those essays tomorrow.
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November 21, 2009, 1:02 pmyankee says:
If you get a master’s in engineering, do they teach you engineering or do they teach you to “think like an engineer?” Same with medical school, and with less prestigious trade-oriented graduate and undergraduate programs like accounting or nursing. Would we train better doctors if we used the Socratic method?
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November 21, 2009, 1:07 pmyankee says:
And is the best way to practice those skills to be called on two or three times a semester? A professor can only go through a small percentage of a 100-student lecture each day.
Regular writing assignments in which students were given a hypothetical and asked to defend an analysis would be much more effective. But that would mean more work for the professors, and that would be completely unacceptable.
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November 21, 2009, 1:11 pmVermando says:
Professor, you are doing God’s work with these posts. Thank you.
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November 21, 2009, 1:48 pmDod says:
Nothing says law school like S&M.
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November 21, 2009, 2:56 pmNowMDJD says:
I’ve been using the Socratic method (without humiliation) for many years in teaching medical students and residents. Taking students through a diagnostic or treatment problem by asking them a series of questions in front of a group is an excellent way to teach clinical reasoning.
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November 21, 2009, 3:00 pmSandy MacHoots says:
This is absolutely true, although I think a mix is useful. The problem isn’t that law professors are too lazy, it’s that teaching by way of critiquing memos and briefs is extremely time-consuming, and thus doesn’t leave time for the “research” which is the “important” part of the job. A law school whose entire faculty was made up of LR&W professors teaching subjects by writing memos would be far superior to the current approach, but it would be expensive and would get very low ratings from U.S. News.
I may have been unclear. I think I said that training lawyers is different from training doctors and MBAs. I wouldn’t recommend training lawyers by working on cadavers or cutting hair. And I do believe that thinking like a diagnostician or an engineer is different than thinking like an economics or history Ph.D.
If you doubt this, some time read a brief written pro se by a physician or an aeronautical engineer. The fact that you’re smart and can reason well and can read a legal text doesn’t mean that you can put a legal argument together.
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November 21, 2009, 3:14 pmOrin Kerr says:
My sense is that the Socratic Method in its 1950s version is almost nonexistent in law schools today. A handful of law schools still have a few teachers that teach that way, but most do not: Most professors today teach using a mixture of lecture, powerpoint, case study, and the like. There are some Socratic aspects to it, but the “pure” Socratic approach hasn’t been common for decades at most schools. (And even in the 1950s, it was far from universal.)
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November 21, 2009, 3:42 pmCommenter says:
“There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties”
This sort of argues against the notion of academia/education itself. Are there really any advantages in paying exorbitant sums to sit in a lecture hall to learn material versus purchasing the relevant treatise and self-learning? The modern mythos in regards to education is ultra prescientific.
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November 21, 2009, 3:44 pmRobert Goodman says:
I used a combination of methods in teaching undergrad sci. students. I was mostly trying to avoid duplication of material, encourage the students to read the assignments, and make things interesting. Most of the students seemed to hate the Socratic method, and were uncomfortable being asked questions, asking me questions, and asking each other questions as part of class, but I tried to stay with it as time allowed, resorting to lecture when time pressed, and then only when I wanted to cut thru excess in the textbook, cover material not covered there, or just cover topics differently. Often I used a student seminar approach to more or less force them to say things and ask each other questions. Trickiest was when we did this by audio-video conference linking multiple locations.
What bothered them about answering questions was either being told their answer was wrong or being told there was no correct answer, which in the latter case made them feel they’d wasted their time. Plus, they never wanted to read the material in advance, thinking they would understand it only after I’d explained it, while I always wanted to have the last word as against the textbook, because it’d be their last chance to ask questions if they didn’t understand something, and they couldn’t ask questions of a book.
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November 21, 2009, 5:55 pmCornellian says:
On other hand, the AALS certification cartel diminishes competition in the market for legal education and makes it much harder for new schools to enter the field and gain a competitive edge by emphasizing novel teaching methods.
I think you’re confusing the AALS with the ABA and show me the law school that ever lost its accreditation for being insufficiently Socratic.
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November 21, 2009, 6:19 pmShertaugh says:
Ilya:
At the trial-court level, at least, fast thinking is essential as the factual landscape is constantly changing. I think your students would be well served — even if they’re headed to a life buried in the tax code — by being forced to think quickly, on their feet, under pressure, and facing changing facts.
I don’t know how you teach — your post is not clear on that point. And I’m not suggesting any sort of humiliating or abusive questioning. In fact, the exercise can be fun.
But, IMHO, your students will be indebted to you if you in the long run — as very, very few will stand in your shoes in the future and have the luxury of not needing to needing to think quickly without the luxuries you have.
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November 21, 2009, 6:57 pmIlya Somin says:
At the trial-court level, at least, fast thinking is essential as the factual landscape is constantly changing. I think your students would be well served — even if they’re headed to a life buried in the tax code — by being forced to think quickly, on their feet, under pressure, and facing changing facts.
Three responses. First, most trial practice involves extensive preparation ahead of time, often weeks or months of it. It doesn’t consist of being asked “cold” questions about material you read a day or two ago. Second, I teach subject matter courses, not trial practice courses. Skills specific to the latter are best taught by specialists in legal writing, trial practice, and clinics. Just because a given skill may be valuable for lawyers doesn’t mean it has to be taught in every law school class. Third, only a minority of modern lawyers regularly do trials.
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November 21, 2009, 7:18 pmDoc Merlin says:
Um, we do use the socratic method to train doctors in their first few years out of medical school, and when they are interning.
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November 21, 2009, 8:08 pmDoc Merlin says:
Actually lectures are just about the worst possible way to learn information. The reason cold calling works is that it forces students to study the material before hand and actually learn it. Its less useful for very high level classes where the material is hard to teach one’s self.
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November 21, 2009, 8:10 pmDoc Merlin says:
Yes, in physics, generally close to 0% of the students (graduate or otherwise) have read the material beforehand.
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November 21, 2009, 8:12 pmDoc Merlin says:
The whole point is to apply it inhumanely, it make it as painful as possible to not be prepared. Its the modern equivalent of the old style piano instructor’s ruler. I’ve seen it work and I’ve also seen it fail miserably. When it worked the teacher was as cruel as possible and when it failed was when the teacher tried to be humane about it. When they were cruel everyone in the room remembered the right answer and when they were nice we tended to remember the mistaken answers the student had without remembering they were mistaken.
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November 21, 2009, 8:17 pmChrisTS says:
Hmm. Undergraduate professors, in small colleges, are not allowed to be ‘cruel.’ It might be better for our students if we were.
Do law schools currently use student evaluations of professors? In what ways are they used?
I do not, really, want to be cruel to a student, ever. I would like to feel freer to challenge them, particularly as they are more and more unprepared to be challenged — the offspring of helicopter parents and the ‘we are exceptional’ and ‘your worth as a human being depends on your grades’ thinking.
I sincerely hope that graduate and professional schools will not go down the same garden path. Being able to honestly assure my undergrads that they will have to be prepared and think on their feet at some point is about the last resort I have.
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November 21, 2009, 9:24 pmSandy MacHoots says:
Yes, but it varies greatly from school to school. At some schools (mostly down in the lower tiers where teaching is important) evaluations are extremely important. Bad evaluations over time can adversely affect or even terminate your career. At other schools they have very little impact.
About half of American law schools (though none of the elite ones) participate in the Law School Survey of Student Engagement, which provides feedback to schools on how students react to what they’re experiencing in law school.
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November 21, 2009, 10:56 pmMonday Reading Madness #26 « Cornell Insider says:
[...] piece that defends lectures over discussion-oriented seminars. Similar discussion about the Socratic method in law [...]
Widmerpool says:
Ummm, why stop with abolishing the Socratic Method? Why not abolish law school altogether and go back to the tradition of having potential lawyers “read the law” as apprentices under practicing attorneys? It would have the added benefit of alleviating the intolerable burden on law professors to have to teach one class (which they actually have to prepare for due to the continued use of the Socratic Method) and maybe a seminar per semester with only the odd sabbatical to look forward to.
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November 23, 2009, 8:35 amharmon says:
I took my tax law courses from Wally Blum at the U of Chicago law school. Wally’s approach was what might be called “Extreme Socrates.” He treated the class as one giant student, and mowed us down with his questions. No answers, just questions.
I got mediocre grades in his courses. (Of course, 90% of the student body got the same, or worse.) And then, I more or less accidentally wound up being a tax lawyer.
Funny thing. I could actually pick up the Code, read a section, and know how to think about it. Better than most
of my contemporaries, even if I say so myself.
I say, the more Socratic, the better. I learned more in his classes than in any of the others, with the possible exception of Bernie Meltzer’s labor law course, where I retained much more than I should have, based on my dislike of the subject.
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November 23, 2009, 5:08 pmharmon says:
Ii should add that Wally was never mean. If you hadn’t done
the reading, he just moved on, not embarrassing you any more
than you had already done for yourself.
He was a man of infinite humor, or so it appeared to
me as a student, and in the superficial social contacts I had
with him later.
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