The Socratic Method and "Thinking Like a Lawyer" Revisited:

In his latest post, Orin argues that the Socratic method can teach students to "think like a lawyer" in ways different from those I discussed in my post on the subject. He suggests that:

I think Ilya and I have a very different sense of what it means to "think like a lawyer." In my view, thinking like a lawyer has little to do with thinking on your feet, answering questions orally, or advocacy skills. Nor does the Socratic Method teach these skills very well.

Rather, "thinking like a lawyer" means having a brain that focuses on what is legally relevant and that puts aside what is not. Legal thinking is a practical art that relies on a set of principles and relationships, and a person thinks like a lawyer when they master that practical art.

Orin is absolutely right that lawyers need to be able to identify what is "legally relevant" in a reading, and that the Socratic method can sometimes help teach that skill. At the same time, I see little that is unique to law about this ability. In studying almost any field that involves reading written material, students have to be able to separate out what is relevant to their studies from that which is not. I focused on advocacy skills in my previous post because those are more clearly specific to law and because many advocates of SM (though not, apparently, Orin) claim that it helps teach them.

That said, Orin is right that effective use of SM can help students identify legally relevant material in their readings. The question is whether it can achieve this goal better than alternative teaching methods, while also achieving the objective of getting them to understand the substantive field of law the class is supposed to be covering. In my view, most of the time other teaching methods will be more effective in achieving both objectives because less class time is wasted on answers by students who may be poorly prepared and because of the problems caused by "hiding the ball." Professors in other fields that require students to identify what is relevant in complex written material seem to do just fine without resorting to SM. The same goes for law professors in virtually every country other than the United States. For me, as for Brian Leiter, it is telling that teachers in these other fields and countries feel no need to resort to SM, and most clearly believe that the skill of separating out relevant from irrelevant can be better taught in other ways.

I don't think that SM is always and inevitably worse than alternative teaching methods. As I suggested here, full-blown SM may be the best method for a few professors, and moderate SM can often be useful as a supplement to other approaches. Nonetheless, I don't believe that SM is an especially good way of learning how to separate out the relevant from the irrelevant.

I'm beginning to fantasize about hosting a bilateral Socratic dialogue on this topic directly between Professors Somin and Kerr. Might be very enlightening.

And in the spirit of pro bono publico service, I may not even demand a cut of the spectators' betting on the outcome...
8.22.2008 3:02pm
I was also thinking how [modified] socratic this all is.
8.22.2008 3:08pm
Ilya Somin:
I was also thinking how [modified] socratic this all is.

I don't know that it is. Orin and I are not posing questions to each other. We are simply explaining our points of view and trying to answer possible objections. This has much more in common with the lecture method than with SM.
8.22.2008 3:14pm
I note that this post still doesn't answer the point that student mistakes, and the horrors for unpreparedness are a valuable part of the learning process. Moreover, I get the impression that "hidding the ball" is just another discriptor of bad SM. Which everyone agrees is, well, bad.
8.22.2008 3:20pm
"lawyers need to be able to identify what is "legally relevant" in a reading"

More than this, and much more complex, they need to know what is legally relevant in life.
8.22.2008 3:23pm
David Warner:
Thinking can be understood as the process of questioning oneself. The questions Socrates asked were just the ones a superior mind would ask itself in following the logic of its own reasoning. In asking his students these questions, Socrates gave them the opportunity to participate in the reasoning process of a superior mind, and thus to improve their own. To learn by doing.

Leiter writes:

"in this guise, the method is less Socratic, than Sophistic, since no one answer to the legal questions presented is deemed to be the correct one"

In my experience as an educator, this is exactly backwards. Can one produce any example where Socrates himself had one correct answer in mind? This ties in with previous suggestions that a variety of methods are effective, but I would add that the effective teacher employs a variety of methods herself, depending on material/learning needs.

Another trend in education, given our increasingly information-rich environment, to to stress discovering over covering material. Research shows that material merely covered is often quickly forgotten. Material discovered by students spurred by the questions an effective socratic method has trained them to ask is more likely to be connected to other knowledge and thus retained.

Perhaps more importantly, the student gains experience in how and where to find relevant knowledge instead of having it handed to them, an increasingly commodified service.
8.22.2008 3:27pm
"and trying to answer"

For there to be an answer, there must be a question. So yes, you are posing questions, at least implicitly, to each other. And you are having a [written] dialogue, which is not any part of a lecture.
8.22.2008 3:41pm
Ilya Somin:
I note that this post still doesn't answer the point that student mistakes, and the horrors for unpreparedness are a valuable part of the learning process.

The answer is twofold:

1. There is no proof that this is true. If it were, we should use whatever method maximizes the number of mistakes so that students could learn more. In reality, I think learning occurs faster and more efficiently if the number of mistakes is minimized.

2. Even if there is some value to this process, you have to consider the opportunity cost. In many SM classes, flawed student answers take up a huge chunk of class time. That time could be used for other purposes that contribute to education far more.
8.22.2008 3:43pm
loki13 (mail):
I'm confused---- with all these posts on SM (I'd like to credit myself for that abbreviation!), where do I post? I have, like, four running arguments and a possible discussion about House going on.

To add substance to this, I still disagree with Ilya. The best SM class (for many, but not all, areas of the law) is superior to a lecture. I think he is misunderstanding what it takes to for students to learn to think flexibly (as opposed to being told what flexible thinking looks like). But that's me, and my own experience.
8.22.2008 3:44pm
"student mistakes, and the horrors for unpreparedness are a valuable part of the learning process.

The answer is twofold:

1. There is no proof that this is true."

The last two or three generations of educators, and studies into the learning process, following Piaget, would strongly disgree that this is not true. Rather, there is no "proof" to your supposition that being that fed the correct answer causes anyone to learn anything.
8.22.2008 3:58pm
David Warner:
One last caveat: It should come as no surprise that an authoritarian mind like Leiter's with little practice questioning itself should find the Socratic Method relatively fruitless, as it assumes the teacher's mind, like Socrates', has itself undergone a great deal of such practice.
8.22.2008 4:20pm
Richard Ragsdale (mail):
The Socratic Method was a revelation for me in the first year of law school but thirty-five years of practice has taught me that imagination and creativity are more important to success in the difficult cases that have no clear cut answers. Now if someone knew how to teach creativity . . .
8.22.2008 4:27pm
Suzy (mail):
I take it the great benefit of the real Socrates' method was that it exposed ignorance by showing that the "victim" was committed to contradictory or absurd theses. If students simply read black letter law and never had their assumptions shattered, concerning how to apply or interpret the law, I don't think they would understand as much. The method is not just about giving students helpful practice at answering questions on their feet; it's about seeing in action the process of reasoning that supports (or destroys) different interpretations. Being able to ask the devastating question that exposes the weakness in the answer is also a skill the students will have to cultivate, so they get to see it practiced before and on them every day, and they start to think about what questions they themselves want to be asking.

Not everyone can use this method well, and a variety of approaches from different professors might be helpful. However, I think a legal education without significant exposure to this method would be lacking something absolutely vital.
8.22.2008 4:32pm

Now if someone knew how to teach creativity . . .

Some teacher try.

They teach that the first phase is brainstorming in which ideas are collected without judgment to whether they are good or not. In a later phase, they are evaluated.

SM has a lot in common. "Socrates" expands a problem so that it can be seen in many different ways (brainstorming), and evaluates the the various thoughts as to importance, accuracy, relevance, etc.
8.22.2008 5:01pm
David Warner:
Well put, Suzy.

"it's about seeing in action the process of reasoning that supports (or destroys) different interpretations"

Not just seeing it, which can be easily forgotten, but also participating in it, which is more likely to stick.

In Cog Sci/Ed theory, there is something known as Bloom's taxonomy of knowledge. From simplest to most difficult:

practical, procedural, conceptual, analytic, synthetic, evaluative

I'd say as one moves to the right on this scale, teaching practices that employ the Socratic Method are more applicable.
8.22.2008 6:53pm
Not that I'm a big fan of the Socratic method, but isn't it's purpose two-fold? In any given case, there may be an arguable best reading of it, the phrasing of the issue, etc. but as practicing lawyers, we also have to be able to pull out of the same case broader or narrower or contradictory points/issues/frames that may be lurking in the same case. That seems to be a blend of analysis, different perspectives, and grappling with the text without a pre-defined answer that the method allows in a way that lecturing does not.

Just a thought.
8.22.2008 9:05pm
If I may come to this discussion a bit late, having reviewed the multiple posts on the subject, I have to say, as student who underwent 100% SM at U fo C law school, that the purpose is entirely about learning how to argue (what prof Somin calls advocacy skills).

Some day, our eminent yet young profs of the VC may be able to join the ranks of the level of a David Currie, who only taught his con law through SM. When he really got going, when the class really started to gel, he didn't need to do much. He pitted to students against each other and stepped back. "Mr. So-and_So, is Ms. Whoseiwhat correct that Mr. Filburn's wheat never entered interstate commerce?"

That was all it took. At some point, he could have asked whether it was correct that McDonald's sauce really was special. The point was to get to people in a room to defend the opposite position, regardless of their true feelings, and argue. That's what law school and the SM are all about. Prof Kerr's point about separating relevance from irrelavance only mattered for deciding who won.
8.23.2008 1:20am
Larry Fafarman (mail) (www):
"Thinking like a lawyer" does not do any good if the judges' thinking is different from the lawyers' thinking. That is why judges should issue tentative opinions prior to oral hearings so that the lawyers can see in advance how the judges are thinking. A California appeals court issues these tentative opinions, and other courts should follow this court's example:

Tentative Opinion Program

Every court of appeal in California, and most intermediate appellate courts throughout the country, prepare a "bench memorandum" prior to oral argument. These memoranda often take the form of draft opinions and often become the final opinion of the court with little, if any, modifications. The great majority of appellate courts do not send the draft opinion to counsel prior to oral argument, and, as a result, counsel are completely unaware of the court's initial response to the arguments in their briefs and do not know how to focus their oral argument. Consequently, oral argument is often a dry, meaningless ritual in which counsel merely review the arguments set forth in their briefs.

To improve the quality and relevance of the oral argument experience, the justices of this court in October 1990 started mailing the preliminary draft of the opinion, which they called the "tentative opinion," to counsel seven to ten days before oral argument.

For further info, click on the link.

IMO, in some situations there should be public comment periods for tentative opinions.
8.23.2008 5:05pm
A study that impressed me as an undergrad was that in psychology, the therapist, rather than the school of [talk] therapy, was the greatest factor in helping people. I think this is absolutely true of professors. Their choice of method is virtually irrelevant. The socratic method may be the preferred and most effective method for some, while, for others, laying out the reasoning may be equally enlightening to the students. I still fondly remember a college philosophy professor who made the reasoning of a dense writer spectacularly clear and elegant with a lecture and a blackboard. On the other hand I, like Josh, certainly enjoyed and found effective many of the socratic sessions I had in law school. But at the end of the day, I have to say that the dichotomy between methodologies is false. The real difference is the individual professor.

I think this "controversy" also stems in part from the fact professors forget that their purpose is to make themselves obsolete. By the third year, a student is just learning areas of law, not a method of thinking. Hence the old law school saw: "First year: scare you to death. Second year: work you to death. Third year: bore you to death."

By a third year class--the place where Professor Bainbridge abandoned the socratic method--either students have "gotten it" or not. The actual material is more an exploration of interesting legal areas and where one might want to concentrate a practice rather than the fundamental training that law school aims to provide. So, whatever special merits are claimed for the socratic method in terms of teaching legal reasoning, the argument becomes increasingly attenuated as law school progresses.

Second in terms of learning the process of reasoning or thinking on one's feet, even in the socratic setting, most of one's time is spent listening to others. A good professor should be able to do the former, and the latter can be more intensively taught in moot court or trial practice. I emphasize that the socratic method is a good method when properly done. But give me a good lecturer over the hamhanded practice of the socratic method, or vice versa. It seems to me that neither has an exclusive virtue.
8.23.2008 6:52pm