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The Socratic Method and "Thinking Like a Lawyer":

Many defend the use of the Socratic method in law school classes on the grounds that it teaches students to "think like a lawyer." There is some merit to this point, though I think it is greatly overstated, for reasons Steve Bainbridge discusses here. It is useful for lawyers to be able to think on their feet, answer difficult questions posed in an oral argument, and so on. At the same time, it's important to realize that classroom SM is only vaguely similar to the work of most real-world lawyers. Transactional lawyers rarely confront SM-like situations at all. And even many litigators spend far more time doing research or writing briefs and motions than answering questions at an oral argument. Nonetheless, SM can help hone advocacy skills that many lawyers will find useful.

But the fact that SM conveys some useful skills doesn't mean that it should be employed in all or most classes. Most law schools have specialized courses devoted to trial practice, oral advocacy, brief writing, and other advocacy skills. It's not necessary for those skills to also be taught in classes where the principal objective is to master a particular body of law. To the contrary, it is usually best if the law school curriculum exploits the benefits of specialization.

Professors whose main expertise is in the subject matter of a given body of law can best serve their students by teaching what they know best, without diverting class time to the teaching of advocacy skills in which they are less expert (if they have any expertise at all). Those who specialize in advocacy skills (e.g. - many clinical faculty), by contrast, can teach courses specifically focused on those subjects. Even if a particular professor has great facility with both a given field of substantive law and advocacy skills, it doesn't necessarily follow that he should teach both in the same course. He might serve the students better if he teaches one class solely devoted to the former and another focusing on the latter.

loki13 (mail):
Prof. Somin,

I think you misunderstand what "thinking like a lawyer" means. It doesn't necessarily mean simply thinking on your feet or having skills at oral advocacy. While it is late, and I may not make this point well, let me try-

There is a difference between giving a man a fish and teaching a man to fish.

In the same way, there is a difference between telling the class something you want them to understand and having the class tell themselves what you want them to understand. The second, skillfully used, is much more powerful.
8.22.2008 4:12am
Ilya Somin:
There is a difference between giving a man a fish and teaching a man to fish.

I agree. But if you want to teach him how to fish, it's usually better to show him how directly rather than to try to elicit the right method from him by asking him a series of questions about fishing.

In the same way, there is a difference between telling the class something you want them to understand and having the class tell themselves what you want them to understand. The second, skillfully used, is much more powerful.

Maybe, but I'd like to see some proof that this is true. Even if it is, the professor is much more likely to screw up an effort to get the class to "tell themselves" than the simpler task of telling them himself.
8.22.2008 4:15am
Displaced Midwesterner:
I don't have a huge amount of sympathy for SM (which I always find amusing when abbreviated, as it makes it easier to see what its kindred are), but I do have some. So, as a nocturnal creature I will try to help out loki13, who is unfortunately feeling tired.

But if you want to teach him how to fish, it's usually better to show him how directly rather than to try to elicit the right method from him by asking him a series of questions about fishing.

This is true, of course. But it is even better to have someone actually practice fishing. That, in theory, is what the SM is suppposed to be. It is the act of learning to fish (which is kinda appropriate really, since often you will just come up with an empty hook). The point of doing this in a class that is teaching a substantive area of law is that being a lawyer is a combination of having legal knowledge, of being able to understand how to find and apply the law, and of using the skills of advocacy.

That's my attempt at defending SM. Of course, really, the true purpose of the SM is not to teach law students to think like laywers, or to give law professors the joy of crushing their charges' souls. It is to give students the chance to get their professors to go silent for a few awkward sentences before they mumble something about "that may well be true, but it's not what I was looking for."
8.22.2008 4:48am
Displaced Midwesterner:
Also, does anyone find it interesting that many law professors say they use the Socratic method to teach students to "think like lawyers," while the Athenians convicted Socrates of using his teachings to "corrupt the youth?"
8.22.2008 4:51am
Public_Defender (mail):
I did some transactional work, and even there, SM techniques are helpful. The partner I worked for used that kind of aggressive questioning when discussing my work product.

I agree that a professor who can't do SM shouldn't do SM. I also agree that "All SM all the time" is silly. But I disagree that "thinking like a lawyer" skills should be relegated to trial practice and legal writing classes. My best professors not only taught us the subject, but taught us how to use the substantive knowledge ethically and strategically to advance a client's interest.

Professors should integrate advocacy and professionalism into their case discussions. Often, it's as easy as asking, "Do think the lawyer in this case was effective when she did ______? Why?"


. . . without diverting class time to the teaching of advocacy skills in which they are less expert (if they have any expertise at all).

A law professor who lacks advocacy skills is a less useful law professor. If a law school has more than a few professors who lack advocacy skill, it should review its hiring standards. Academic who want to teach a subject without teaching advocacy skills should consider seeking out a PhD program.
8.22.2008 6:04am
gwinje:
Perhaps there's a difference between "soft SM" and a "hybrid" approach.

After a year and two days of law school, I'm not an expert, but I've found that my best (most informative and most enjoyable) classes have been those in which the professor makes the black letter law clear with a brief summary and then challenges students to see that the black letters might be grey (and how to deal with that) using SM with problems from the casebook or other hypos.

It's not "hide the ball" in the traditional sense, but gives students the ball and the rules, and then let's them figure out how to put it in a goal.
8.22.2008 6:39am
gwinje:
lets
8.22.2008 6:40am
Public_Defender (mail):

Transactional lawyers rarely confront SM-like situations at all. And even many litigators spend far more time doing research or writing briefs and motions than answering questions at an oral argument.

But all practicing lawyers must consider how their work would play out in litigation. A transactional lawyer must consider how litigators will tug and pull at a document's language (of course, they can overdo it and create a document that's almost useless outside of litigation). Lawyers writing briefs or preparing for trial must consider how their work will be attacked.

Done correctly, the SM teaches clarity because it gives lawyers an understanding of how their words can be dissected and twisted. We don't need the SM in every class, but every class should stress how lawyers will use the material to advocate for their clients, whether that advocacy is in a trial court, an appellate, a corporation's conference room, or elsewhere.
8.22.2008 6:49am
Vernunft (mail) (www):
Uh, am I the only person who thinks about multiple aspects of a legal issue without my professor grilling me in class about it?

Oh, right, everyone just studies the outlines. "If it's not on the syllabus, it doesn't exist."
8.22.2008 7:20am
Modus Ponens:
I have to admit that, without the Socratic Method, I fail to see what advantage a semester-long series of 1 1/2 hour lectures might have over a 3-hour Bar/Bri teach-in.

What would we talk about for the remaining ~12 weeks of the term? Policy? Our feelings?
8.22.2008 7:59am
corneille1640 (mail):
As someone who has led many a "discussion" section for introduction to history classes, I have to say that the "Socratic Method" has been a failure when I have used it. I think much of the reason lies in the fact that I am incompetent at it.

In other words, I agree with those commenters who say that the Socratic method works well only if the instructor can do it well.
8.22.2008 8:19am
Curt Fischer:
What do lawyers think the Socratic method is? Their definition seems alot different than othes' For example, read the Wikipedia entry. All the initial discussion there details the SM as a method to examine and discard hypotheses. The concept of "elenkhos" -- asking a series of questions with which your interlocutor agrees, but nonetheless leads to a contradiction of your interlocutor's earlier claims, seems to be a main component.

The discussion in this thread makes it sound like lawyers think the Socratic method amounts to asking randomly selected students loaded zingers like "blah blah blah why did the court get it exactly wrong?" Back at the wikipedia entry, the description of the SM at law schools bears little resemblance to the rest of the entry.

Does anyone know why in legal circles the Socratic method has seemingly been made synonymous with "asking lots of questions"?
8.22.2008 9:02am
subpatre (mail):
Aren't teaching methods near-universal? Lectures are pure presentation, whether video-enhanced powerpoint or readings from 20 year-old notes.

In chemistry, there is are lectures to educate what and why etc, and labs to illustrate how what was previously presented works. Like most things, simply 'learning the laws' doesn't work.

In karate -- a closer analog to practicing law-- the instructor uses a Socratic variation so that students can see how what was (previously) presented is actually used.

Students are educated by observing the struggle, looking at arguments' weaknesses and strengths, and how particular methods prevail.
8.22.2008 9:19am
Frog Leg (mail):
A couple of points:

1) Since there is very little black letter law in first year common law courses, the Socratic Method is best fitted for these courses. One of my favorite professors in law school taught Torts and Environmental Law. The Torts class was 90% Socratic, while the Environmental Law course was 90% lecture. In both cases, the style seemed appropriate to the material.

2) In general, students will get out of a class what they put into it, but this is especially true in classes with the Socratic method. If one student is being called upon, what are the others doing? Are they just passively listening to the banter (or not listening to the banter)? Or are they engaged in active listening--critiquing the answers, coming up with better ones in their head? A student who is actively engaged in the material will get much more out the class.
8.22.2008 9:59am
Curmudgeon:
My two cents . . . the Socratic Method only works when the Professor is exceptional. Unfortunately, my experience is that about half the population is below average ;-)
8.22.2008 10:05am
Modus Ponens:
Curt:

See this.

The overall effect is generally "Socratic," though not every question in the series need not challenge pre-existing hypotheses.

Also, in the example I've cited, the students answers each question correctly. The average first-year/semester law student would have been led down the garden path, as it were, several times in the exchange because the case(s) at issue "clarified" the applicable statute in a non-literal manner, and the statute itself arguably deviated from a strict interpretation of the common law. Therefore, a student who reasoned directly from the common law would have reached a conclusion contrary to point of law at issue.
8.22.2008 10:06am
John C:
The phrase 'think like a lawyer' irks me to no end. Perhaps it's because I came from a philosophy background and was familiar with basic verbal argumentation, but if you managed to graduate from a university without any exposure to argumentation then you should go get a refund. On my first day of law school we had professors gushing to us about their own law school transformation from blind neophyte to enlightened lawyer as they learned to 'think like' such. Sitting on the other end of two years, although I am now well acquainted with the domain-specific conceptual content of law and can therefore 'talk' like one, I have never noticed any particular changes in the way I think. To me the phrase has cachet because it smears a heaping dose of elitism in all who hear it. "You can not solve your problems with basic and universal human reason; only lawyer-thinking can save you!"

At my (top 20) law school the SM consists of: "what are the facts of this case?" and "what was the court's reasoning?" Largely a waste of time and money I feel.
8.22.2008 10:25am
FantasiaWHT:

I agree. But if you want to teach him how to fish, it's usually better to show him how directly rather than to try to elicit the right method from him by asking him a series of questions about fishing.


But lectures are less "show you how" than "tell you how". SM seems to be a combination of "show you how" with "watch you do it and correct the mistakes you made", whereas lecture is just "tell you how and walk away assuming you know it"

Lecturing, in other words, gets no immediate feedback on how well the class is actually learning something. Especially in a class setup where there are no intermediate tests of knowledge (quizzes, midterms, etc.) and everything is based on one final exam, pure lecture is a very poor and inefficient teaching method. How does the lecturer actually know his or her students are learning what he or she wants them to learn?
8.22.2008 10:26am
guest:
"Transactional lawyers rarely confront SM-like situations at all."

I take it that Ilya hasn't negotiated many deals. I would say transactional lawyers on a daily basis face as many or more SM-like situations than your average litigator, who rarely spends time in court. Personally I think the SM is very useful. It forces you to get over your discomfort with public speaking and prepares you for the barrage of on-the-spot questions you will get from clients in practice.
8.22.2008 10:38am
Fan of Kingsfield:
And you wonder why we continue to churn out students who don't know how to practice law. Professors who let students pass when called upon, or only be called upon when they affirmatively sign up for a list, are turning law school courses into undergraduate courses.
8.22.2008 10:39am
Houston Lawyer:
As I recall, the law professors we liked the most were the ones who were most unmerciful on unprepared students. Having a big mouth myself, professors were more than willing to make an example out of me when I said something unsupportable. When you hear obvious "attorney speak", you can bet it is a direct result of the speaker having been subject to being grilled by a law professor.

As someone above noted, there is not much black letter law in first year classes. The socratic method is good for those classes even though it may be less appropriate for more code-based classes.
8.22.2008 10:51am
Curt Fischer:
Modus Ponens: Thanks for the link, very interesting. To the decidedly non-expert me, it seems to me all of the professor's questions amount to more specific versions of "Did you do the reading for this case?" Maybe I'm just being dense, but I don't see anything in your link that requires the students to produce arguments, as opposed to reciting the ones given in the reading. So in the end I'm still confused by the disconnect between various definition of the "Socratic method".

Let me emphasize that I never personally knew Socrates, so I don't know which of the eponymous "methods" were actually his. I'm also not making claims about which forms of classroom education are better or worse than others.
8.22.2008 11:27am
Floridan:
The SM method is most useful in producing future politicians.
8.22.2008 11:34am
Floridan:
Oops "The SM method . . . "
8.22.2008 11:35am
loki13 (mail):
Let me throw in (hopefully) my final two cents on this subject:

I still don't understand the distaste that Prof. Somin seems to have ((I can only guess, based on his comments) for SM. No, not all Professors can do it well. But done well, it is great. As pointed out above, I think it goes to a general trend of mollycoddling the law students. As someone who was recently in school, I was shocked to find out that there were parents (PARENTS!) who called to complain about their child's grades. Are those parents going to call the name partner the first time their precious snowflake gets chewed out on the job? (Uh, hello, is there a Mr. Cravath working today????).

So it goes with the Socratic method. It takes more work for the professors, and more work for the students. But amazingly enough (again, for the professors that could do it well) those were always the classes in demand and the classes I still rave about (obviously!). I am ashamed for the current generation that the reason given for dropping SM is that the students aren't prepared. If it's a hindrance to class, move on and call on them the next day. Most students don't like the embarrassment, and learn quickly to be prepared.

Is it too much to ask students to prepare for class today?
8.22.2008 12:13pm
Golda:
This whole discussion seems odd, as I doubt there was ever SM, all the time, in any law school. As everyone seems to agree, SM in bad hands is bad. But so is lecture. So is demonstration. There are undoubtedly some students who will never appreciate or learn from SM (as others won't learn by other methods), which is obviuosly a challenge for a Professor but judging by the comments most find it useful.
8.22.2008 1:00pm
Golda:
(Fn) SM meaning socratic method, and not the other SM
8.22.2008 1:04pm
zippypinhead:
"Is it too much to ask students to prepare for class today?"
I fear that some would [erroneously] argue "yes." But they're wrong, of course. Nor is it too much to ask professors to prepare for class. And as Orin Kerr pointed out in his post, doing the Socratic Method well takes more prep work than doing a straight lecture. It works best in common law courses or other subjects that are based on "fuzzy logic" development of principles over time, rather than on a code. I'm guessing not very many tax professors successfully use Socratic dialogue.

At bottom, however, if a professor is neither comfortable with nor skilled at using Socratic dialogue as a teaching tool, he shouldn't use it. Sort of like how folks who aren't comfortable or skilled with a gas-powered chainsaw shouldn't use that tool either. And even if you're really good with the Socratic method, if the topic doesn't lend itself to that technique or your students don't seem to be able to play their part effectively, you should probably switch to a different tool. Even the best chain saw user shouldn't use that tool to trim steel poles.
8.22.2008 1:05pm
zippypinhead:
does anyone find it interesting that many law professors say they use the Socratic method to teach students to "think like lawyers," while the Athenians convicted Socrates of using his teachings to "corrupt the youth?"
Makes total sense. The reasoning is entirely consistent with this well-known Shakespearean maxim:
"The first thing we do, let's kill all the lawyers."
- Dick the Butcher, Henry VI, Part 2, ACT IV, scene ii.
The Athenians just decided to be more efficient about handling the problem by eliminating it at the source! ;~)
8.22.2008 1:15pm
T.J.M.:
"The first thing we do, let's kill all the lawyers."
- Dick the Butcher, Henry VI, Part 2, ACT IV, scene ii.

Yes, because without lawyers we can impose the reign of a tyrant.

I am sure you know the context Zippy but I find it useful to point out that Shakespeare's line is a complement to lawyers, or at any rate, the law.
8.22.2008 1:41pm
Kal:
I would challenge the posts notion that SM is overused. Really? What evidence is there of this. This seems counterintuitive, as its a difficult technique to prepare for and pull off.
8.22.2008 1:46pm
loki13 (mail):
T.J.M.

First take- "kill all the lawyers" is against lawyers.

Revision- "kill all the lawyers" is pro-lawyer.

Re-revision- "kill all the lawyers" is, in fact, a lawyer joke.

Analysis
8.22.2008 3:24pm
Golda:
First take- "kill all the lawyers" is against lawyers.

Revision- "kill all the lawyers" is pro-lawyer.

Re-revision- "kill all the lawyers" is, in fact, a lawyer joke.

Contra: It's a "back handed compliment" perhaps

8.22.2008 7:52pm