The Betrayal of Socrates

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socrates-law-nextMy argument here is that there is a stark disjunction between the Socratic ideal and the reality found in the First Year of law school at nearly all institutions. The underlying assumption is simple—the initial foundational phase of an activity is the most important. It provides the basis for all that follows. As such, the most intense and sophisticated methods should be applied at the foundational level so that the more “advanced” learning rests on a deep intellectual base. As a teacher my concern has always been that, if the critical foundation of a law student’s understanding of the analytic and decision making processes said to form the basis for a lawyer’s performance and professional principles are to be developed in the first year of the educational experience, and if that process requires deep immersion in the subject matter and method and frequent interaction with the “Socratic” teacher it is fair to conclude that the structure of the American law school is turned upside down.

Maxine Greene explained the Socratic methodology and its purpose in the following language. “In Plato’s Apology, Socrates compares himself as a teacher with a gadfly and tells the Athenian citizens that he was “always fastening upon you, arousing and persuading and reproaching you. To remain immobile, to refuse to inquire was to be caught napping, to resist being stirred into life. But it was not enough merely to awaken: an individual had to be brought, on his own initiative, to regard virtue. He had to be stimulated to take an active role in the search for his perfection; he had to be courageous enough to turn toward the Good.”[1]

The Socratic quest is a noble educational goal as well as a useful life strategy. Oddly enough, in the midst of all the talk about producing “practice ready” law graduates I argue that the single most important “core”, “foundational” or “meta” skill we teach in law school is the heightened ability to think with analytical precision and integrative strategic skill aimed at problem solving and avoidance along with innovative opportunity creation. I would even go so far as to conclude that law teachers of several generations ago who stated that the goal was to teach law students to “think like lawyers” were absolutely correct in concept even if they (and we) didn’t know exactly what the concept meant, how to do it properly or what “substances” ought to make up the material on which the processes of thought were exercised to produce the desired results.

The Socratic Ideal is an engaged, intimate and intensely personalized strategy aimed at facilitating an individual’s insight and understanding. At its core it is the effort to teach persons how to explore critical levels of awareness through the skills of analysis and introspective thought. It requires a significant amount of direct engagement rather than being a distant and largely vicarious observational enterprise. From the beginning of my teaching career it has struck me that large classes and lectures are not the best method to use in the extremely challenging first year of a law student’s legal education. While lecturing is quite useful for the transmission of large amounts of information at relatively superficial levels of student understanding, well-written books and treatises can also serve this purpose. Even Google probably works quite well at this point, at least for dedicated students.

The Betrayal of Socrates

It is easy to understand why lectures and large classes have long dominated law schools and universities. A major part of the equation is economic more than a choice of the most effective teaching methods. Large classes are cost effective. They generate significant financial return for academic institutions. At the undergraduate levels they are legitimate ways in which to conduct introductory survey courses that have the purpose of presenting organized large-scale volumes of information to new students.

Heavy or even exclusive reliance on the large-class lecture and information transfer methodology was understandable in a world where students’ notes substituted for non-existent or extremely expensive texts. The lecture was “the text”.[2] The presentation of dense masses of otherwise inaccessible knowledge through the lecture medium made complete sense as an efficient method for transmitting large amounts of data to students who otherwise lacked access to the information. The educator’s goal was almost exclusively information transfer. The priority emphasis in such a context is placed on accurate note taking with the teacher’s role being one of providing massive and coherent information transfer that provides form, order and core substance.

This approach also makes sense today when the primary purpose of a course is the introductory presentation of information at largely superficial levels of comprehension. I suggest that information transfer is not and should not be the primary aim of a law teacher in the First Year. There are now many sources of information available for law students that putting heavy priority on “data” as a main responsibility of the teacher is a disservice to students and to the primary responsibility of legal education. It is not that information is irrelevant because analytic skill operates on fact and data, but that intelligent law students should and must be expected to come into the learning process having prepared in depth with the information of the particular sub-discipline of law with which the course is concerned. Assuming that background preparation has been done the key element is application, analysis, distinction, critique and synthesis. Many law teachers would respond that they do precisely this. My response is that we cannot achieve consistent “Socratic” results and deep understanding through large-scale classes with occasional and intermittent participation by students.

“Individualized Intensity” of Engagement

My conclusion has to do with the individualized intensity of the method and with the fact that if we are serious about introducing new students to a foundation of legal analysis on which they can build their skills, systemic knowledge and ability to manipulate law and facts we have been going at it wrong. Given that other than some clinical and “skills” experiences most upper level courses are largely “information transfer” and that the first year represents the most critical phase of a student’s conceptual development in the process of learning how to recognize, distinguish, understand core doctrines and to “think” as a lawyer, the first year of legal education is the stage at which the balance should be directed toward small and highly participatory classes should be the norm, not the upper levels.

The problem is that in contrast to the Socratic ideal of personal illumination, deep insight and growth, the large-scale educational format used in virtually every American law school in law students’ first year of learning bears scant relationship to the method we understand to have been used by Socrates. While in the abstract the First Year approach might claim to apply some variant of the Socratic method it does so in a context foreign to the individualized and interactive Socratic culture that characterized that peripatetic teacher’s mode of instructing. Socrates engaged in direct dialogue with individuals in small groups rather than “professing.” This intimate Socratic interaction was required so that the participants’ ignorance could be dispelled and wisdom sought on an individual and highly interactive basis. The primary parallel is that the object of the dialogue needed to be brought to the point of accepting his ignorance, biases and ungrounded assumptions so that true understanding was possible.

Even if a teacher is skilled in the Socratic technique–which can be a very interactive and dynamic device–the large numbers of students in first year law courses means that most students are passive observers most of the time. In some classes some students are passive observers all the time and never engage with the Socratic inquisitor and facilitator. When this occurs the students are not actively engaged in the learning process even though active participation is at the center of the most effective learning.

“It’s the Economics, Stupid”

If we are being honest about how law school is organized it is clear that the structure and methodologies of the First Year developed for two reasons. One is the economic benefit to law schools and their host universities derived from teaching large classes with a limited number of teachers. Nor was the large class structure that still dominates the law schools chosen primarily for pedagogical reasons. Law schools needed to teach significant numbers of students inexpensively so that universities could make money. [3] Such economic compulsions are fully understandable and still dominate law schools. Unfortunately the economics of legal education are becoming worse rather than improving in ways that are likely to allow the kinds of reforms required. The law school structure resulted from 19th century universities’ economic desires that allowed proprietary law schools and lawyers to buy the more prestigious stamp of university legitimacy compared with proprietary schools for profit and apprenticeships. This history has little relationship to a carefully designed educational strategy.

“It’s also Faculty Self-Interest”

The second reason the First Year has remained largely “frozen” is that this structure allowed law faculty to design the upper level curriculum to suit their own interests and preferences while in effect being subsidized by the economic efficiency and revenue generation of the First Year. In a sense the process is similar to the use of associates in large law firms where the work of the associates generates the majority of billable hours that sustain the firms and allows the senior partners to extract quite large salaries and bonuses. This system does not guarantee to clients that they will receive the highest quality legal service, but until quite recently results in clients paying a premium for over-billed volumes of legal services provided by junior lawyers using the process of representation to create their own “intellectual capital” and experience and subsidize the economic entity of the law firm. Much of the First Year of law school operates in the same way.

Seminar-Size First Year Classes

The size of classes in the first year constrains the teacher’s ability to apply active learning methods to the fullest range of students in the most consistent manner. The transfer of information in large bundles, with state-of-the-art expertise, and high economic efficiency in terms of the numbers of students per teacher are all appropriate educational elements when applied within their fields of greatest utility as determined by relatively limited educational goals [transfer of masses of data] and the sophistication and experience of the participating students. The First Year of American legal education has, however, long purported to be less oriented toward the communication of data to new law students than to teaching new students at legal education’s graduate school level how to “think” in the doctrines and nuances of the law. This includes analyzing, distinguishing, refining, differentiating facts from opinions and assumptions, arguing and more.

Achieving these challenging educational goals consistently and for all students requires a dynamic considerably different from lectures. It demands an “analytic intimacy” involving direct, frequent and intense engagement by students with their teachers. This involves the combination of method and scale. Large classes in which the interactions are vicarious and infrequent simply are inadequate educational vehicles for many law students. Those students never achieve the “foundation” we are responsible for providing. The dilemma is that First Year law school classes in American law schools are not primarily about information transfer. Of course information transfer is an important element because our minds need a foundation of data in order to analyze anything. But the professed dominant goal of the First Year is to teach students how to think, question, discriminate, formulate questions and above all, learn how to discover what they need to know in relation to solving problems.

If the “think like a lawyer” educators were serious about what they asserted then law school would be inverted from its traditional form. The First Year of legal education would be mainly comprised of small classes of 20-25 students and the upper levels mainly devoted to larger information transfer classes with an added core that we could call “technical skills” implemented through intensive offerings. The current structure of American legal education is methodologically irrational from the perspective of achieving the goal of teaching new law students how to think about law, legal doctrine, the legal profession, legal strategy and problem solving, i.e., to “think like lawyers”

[1] Maxine Greene, Teacher as Stranger 72 (1973).

[2] On these issues see, David Barnhizer, “The University Ideal and the American Law School”, 42 Rutgers L. Rev. 109 (1989).

[3] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).

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