There is one experience that unites almost all lawyers in an increasingly diverse profession. Practically everyone is taught legal doctrine the same way, by reading cases and being questioned about them via the Socratic Method. This practice, sometimes called the case method of study, was introduced by Christopher Columbus Langdell at Harvard in 1874 and adopted by other schools beginning in the 1890s.
The Socratic Method, which takes its name from the process Socrates used to ascertain philosophical truths, exposes the weakness of arguments through a process of relentless inquiry. It’s a time-honored practice because of its success in achieving a kind of intellectual alchemy best described by Professor Kingsfield in The Paper Chase: “You come in here with a skull full of mush and leave thinking like a lawyer.”
While the Socratic Method forces students to think on their feet, it also replicates the tension of standing before a judge in court, knowing he or she can humble you at any moment. “The tension is a necessary part of the learning experience,” says University of Chicago law professor Richard Epstein, a proponent of the Socratic Method, who is thought to be one of its most skilled practitioners.
In recent years, however, the Socratic Method has come under fire for a host of reasons. In her 1997 book Becoming Gentlemen: Women, Law School, and Institutional Change, Harvard professor Lani Guinier blasted the Socratic Method for being too combative and forcing female students to adopt a style that many found alien to them. Former Secretary of Labor Robert Reich, now a Public Policy professor at the University of California at Berkeley, wrote in a 1998 essay that the method had “morphed beyond recognition” into an exercise in intellectual arrogance in which the professor always had the right answer. “This is a woefully impoverished understanding of the Socratic method, for cold-calling bears no resemblance to Socrates’ pedagogical activities in the Dialogues,” wrote Reich.
University of Texas professor Brian Leiter, who describes himself as a “recovering” practitioner of the Socratic Method, has called it “the scandal of American legal education.” “There is no evidence—as in ‘none’—that the Socratic Method is an effective teaching tool. And there is much evidence that it’s a recipe for total confusion,” Leiter has written in his blog (www.leiterlawschool.typepad.com).
Leiter, who has a degree in philosophy, finds it ironic that the Socratic Method “is almost never used in philosophy courses.” To find out why, just read the dialogues of Plato, which memorialize Socrates’ teaching. Plato was a philosopher and Socrates’ greatest student. Says Leiter, “You can hear [Socrates’] interlocuters getting exasperated and threatening to punch him out. It’s a kind of annoying way to communicate.”
While Leiter prefers to use lecture-discussion methods, other instructors switch back and forth from the Socratic Method to lecture-discussion—a style known as “soft Socratic” that is much more prevalent than the pure form, according to Elizabeth Mertz, a law professor at the University of Wisconsin, American Bar Foundation fellow, and author of The Language of Law School (Oxford Press, 2007).
The newest assault on the Socratic Method is pedagogic and backed up by hard data that suggests the technique isn’t effective with all student populations. Students who’ve mastered the art of “metacognition”—that is, who learn efficiently and feel a measure of control over the learning process—do well with the Socratic Method, notes Robin A. Boyle, a St. John’s University legal writing professor and director of the Academic Support Program.
But some 1Ls are not particularly efficient at metacognition because they’ve never been challenged to the extent they are in law school. Such students can benefit greatly from alternative methods of teaching. Also referred to as “active learning” or “collaborative learning,” these techniques demand a wider degree of class participation.
“Because the Socratic Method engages one student at a time in questioning, it allows the rest of the class to tune out,” notes Boyle. It also caters to students who learn by listening rather than those who need written material or tactile stimuli to imprint information. “It’s not sensitive to students’ learning styles,” she points out.
And Boyle has empirical proof to back this up. In 1995, Boyle was introduced to the work of Rita Dunn, a St. John’s faculty member who did groundbreaking work in the field of learning styles and is associated with one of the most widely used diagnostic tests. A fundamental principle of learning styles theory is that there are critical differences in how students master subject matter. Scholars have come up with many ways of categorizing learning styles, but the most common framework distinguishes between visual, aural, and kinesthetic or tactile learners.
Boyle was intrigued by the application of learning styles theory to legal education. In 1996, she teamed up with Dunn to run a study in which St. John’s University law students were asked to describe their learning styles. Boyle found that only 26.2 percent of the students sampled could be described as auditory learners. She did subsequent studies that validated these findings.
Another reason the Socratic Method may be unsuited to today’s student is that studies show marked differences in the learning styles of the Millennial (often also called Generation Y) and Baby Boomer generations. Baby Boomers amass knowledge in the hopes that they will someday use it. They are “just in case” learners, says Michael Hunter Schwartz, a professor at Washburn University and director of its Academic Success Program.
By contrast, Millennials are “just in time” learners. They’re surrounded by information, much of which can be instantly accessed. They want to learn things when they have a compelling need for them or, at least, understand why information is relevant before committing to learning it.
“They’re also used to a blend of education and entertainment, such as games in the classroom or Sesame Street,” says Schwartz. “Millennials also process visual information much more quickly than their elders,” so Schwartz incorporates graphic images, movie clips, and music into his Contracts class presentations.
So why do so many professors continue to use the Socratic Method? Tradition is one reason. Also, law professors, who typically graduated at the top of their class, may assume that it works well because they had no difficulty with this mode of instruction. When students have difficulties, professors conclude that a failure in intelligence is responsible, says Boyle.
According to Schwartz, law schools, like many other areas of academia, have traditionally valued scholarship over teaching. “Look at how professors are hired—by giving lectures to the faculty. Teaching skills are a relatively minor factor in hiring,” he says.
Yet, as Schwartz himself points out, there’s growing interest in looking at how professors teach as well as whether current curriculums are preparing lawyers for practice in the 21st century. The Association of American Law Schools and Gonzaga University’s Center for Law Teaching hold annual conferences that focus on improving teaching methods and making use of classroom technology.
The Carnegie Foundation assigned a team of scholars, all but one of whom came from outside the legal field, to assess the effectiveness of legal education. In February 2007, the foundation released “Educating Lawyers,” a two-year study of legal education based on data collected from 16 U.S. and Canadian law schools. The report concluded that the first-year use of the case study method is remarkably effective in helping students master legal reasoning, but its approach tends to be abstract and intellectual.
“The task of connecting [legal] conclusions with the rich complexity of actual situations that involve fully dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside of the case-dialogue method,” notes the report’s conclusion. Much of the report sets the stage for curriculum reform by recommending that clinical and ethical skills be integrated into the first year of study. But the report also indicts legal education for implementing piecemeal rather than comprehensive change and for not collecting the sort of data that educators routinely use to test the effectiveness of their methods.
The Clinical Legal Education Association (CLEA) has just published Best Practices for Legal Education, available online at www.cleaweb.org/resources/bp. html and in development since 2001 under the guidance of Professor Roy Stuckey, a professor of Clinical Legal Education at the University of South Carolina. Even though the project was shepherded by a clinicians’ group, the 303-page book looks at instruction in all types of classes. It even contains a section on the proper use of the Socratic Method.
Urging reduced reliance on the Socratic Method, Stuckey’s book recommends using it only when it can achieve objectives that other methods can’t. The book notes that the method is excellent for simulating the tension of a courtroom and providing a model for legal analysis but cautions that it never be used “as a tool for humiliating or embarrassing students.” It also suggests that the questioning should progress beyond eliciting known facts about the case to posing inquiries that have no set answer. The best practice, as noted by Reich, is requiring the professor to act as a facilitator and seeker of the truth rather than an authority figure who has all the answers.
On a more general level, Best Practices attempts to break down the elements of good teaching and mirrors many of the insights contained in What the Best College Teachers Do, the best-selling and widely influential book by Montclair State University Professor Ken Bain (Harvard, 2004). Professors should encourage collaborative learning projects such as break-out groups or in-class group tasks, make students “self-directed” learners rather than ones who are dependent on grades or praise from teachers, provide contextual learning opportunities such as bringing in clients to interview, and finally “do no harm” to students—a precept that underlies all law teaching, according to Gerald Hess, director of Gonzaga’s Center for Law Teaching.
Hess is encouraged by the flurry of activity but cautious about the likelihood of implementation: “There’s clearly more interest in teaching across the board but much of it is being generated by learning support professionals at less elite law schools.”
The field of learning support, notes Hess, dates back to the 1980s as concomitant to law schools’ push for diversity and admission of nontraditional students. The field has rapidly grown in the last decade so that now just about every law school has a learning support specialist on staff, he says. While brought in originally to work with students, learning support specialists are also emerging as “teaching coaches,” who present seminars for faculty and act as consultants throughout the profession.
Working with students one-on-one, learning support specialists, who typically have dual expertise in educational research and law practice, will try to identify a student’s learning style and then suggest coping skills. The advice is very detailed and specific. For example, Amy Jarmon, assistant dean for Texas Tech University’s Academic Success Program, advises visually oriented learners, who are uncomfortable sitting through lectures, to make such study aids as lists, Venn diagrams, flowcharts, tables, decision trees, and even PowerPoint presentations.
For professors, learning support specialists advise making use of “smart classrooms,” chatrooms, computer simulations, podcasts, and visuals that act as a counterpoint to what’s being communicated verbally. When Washburn’s Schwartz teaches Contracts, he poses hypothetical questions to the class, which uses “clickers” to relay answers electronically. He also directs questions at individual students but has other students keyboarding their answers onto a webpage at the same time. “They’re learning by writing, which is a very important skill,” says Schwartz.
Professor Norman Deutsch of Albany Law School heard Schwartz explain the procedure at a law conference last year and then added a flourish of his own. Deutsch excerpts individual answers from his class chatroom and projects them onto a screen during class. “I choose the ones that are pedagogically useful—either because they’re very good or very bad.”
Other teachers are bringing computer simulations into the classroom. While teaching Property at the University of Seattle’s law school last year, Tulane University professor Elizabeth Townsend-Gard asked students to do team presentations on an aspect of property law based on their experiences in Second Life (www.secondlife.com), a 3-D computer-generated community in which people structure complex personal and business relationships through an avatar—a character who represents them on their journey through virtual reality. “It was a small part of the class—the rest was taught very traditionally,” says Townsend-Gard. “I felt a special freedom to experiment because I was at Seattle as a visiting scholar rather than on tenure track.”
Student presentations were so polished that one student, an aspiring gaming lawyer, was given an internship at Linden Lab, the website’s proprietor and creator.
When classes engage in collaborative learning experiments, things “appear noisier and more disorganized from the outside,” says St. John’s Boyle. “It’s a much harder class to teach because it’s open-ended and less predictable. You hear a lot of laughter, but there’s a lot of learning going on.”
It’s a far cry from Professor Kingsfield’s class, where gales of laughter meant a student had just been humiliated—the antithesis of “do no harm.”
“In the final analysis, the aim isn’t to create a better teacher,” says Hess. “It’s producing students who learn the things they need to during law school.”Stephanie B. Goldberg, a lawyer and freelance writer, teaches Media Law to journalism students at Columbia College Chicago.
