Law School Efficiency: the Socratic Method and Completely Irrational Beliefs

Being a good little legal writer, I'm going to follow the CRACK format* for this entry and begin with the conclusion: law school classes are horribly efficient and do not cause people to "think like a lawyer" (which is, itself, an absurd phrase) any more than possible alternatives.

This conclusion should seem obvious, but legal educators continue to brag about their educational techniques as if Pierson v. Post and the Socratic Method are some sort of gatekeepers to being Perry Mason.

Take this typical bucket of hogwash from our friends at the Laverne College of Law (wherever the hell that is):

The true work of a lawyer isn’t memorizing laws, but rather understanding legal principles and how to apply them to a wide range of different factual situations. This ability is called “thinking like a lawyer,” and it is perhaps the most important thing you will learn in law school.

'The Socratic method challenges me to deepen my understanding of legal concepts and develop my legal analysis,' current University of La Verne College of Law student, Shannon Shafron-Perez, shares. 'By engaging in discussions with professors who bring a wealth of knowledge and experience to the conversation, I have gained insight into concepts that would otherwise not be available in the traditional lecture environment.'
...
Law professors use the Socratic Method to help students learn to tease out the reasoning and legal principles that went into a given judicial decision and also to make educated arguments about how that reasoning and those principles would apply if the facts were different.

What utter dribble.

Like I've said many, for a profession ostensibly based in rationality, law has a horrible track record of basing its beliefs on irrational or unproven premises. There is not one shred of empirical evidence that the law school-style Socratic Method (a random, bank-and-forth unprepared question and answer session with a student) and emphasis on casebooks produces people who "think like lawyers." Not one.

In scientific study, rule number one regarding causation is that correlation does not imply causation. Rule number two regarding causation is to always consider alternative causal forces. As philosophers like Popper and Mill showed, causation is incredibly hard to prove.

So when you hear a Law School administrator showering plaudits upon the Socratic Method for how it makes people think like lawyers, or that it's a superior method of pedagogy, the alarm bells of skepticism (ones every lawyer - hell, every educated person - should have) should sound. First, something else may be causing law students to "think like lawyers." Second, where superiority is argued, there may be an alternative to the Socratic Method that may be more efficient in causing the observed phenomenon.

Perhaps a hypothetical would help illustrate what I mean: Let's suppose you have a 1L Property Law class of 60 students. Your topic is easements implied by prior use. You have 30 minutes of in-class time and 30 minutes of out-of-class time to work with. For concreteness, let's say the law school is in Illinois.

You have two options on how to allocate the time:

1. The Traditional Law School Method: Have the students read 10-15 pages of turgid casebook text that may or may not fully explain things, including one case from New York that involved prior use easements from the 1970s. Use the in-class time to work a modified Socratic Method on 2-3 students which discusses the facts and reasoning of the New York case and some hypotheticals to flesh out variations.
2. My Proposed Alternative: Have the students read (a) Dudley v. Neteler, 392 Ill.App.3d 140, an illustrative, memorable, on-point 2009 case from the state where we sit and (b) Am. Jur. 2d's brief section on implied easements. The first few minutes of the in-class time would be spent explaining the facts of a complex hypothetical law suit calculated to flesh out minute points. I would divide the class down the middle and assign each half to a side of the lawsuit. The next five minutes would have the students working on arguments for their side, sketching an outline for their side's trial argument/appellate brief. The remainder of class would be used to discuss the arguments for both sides, occasionally calling on students at random to ensure participation (note: contrary to what many law professors apparently think, mandatory participation is not synonymous with the Socratic Method).

The former approach gives a generic, cursory overview of basic principles and triggers active participation of variable quality in 5% of the students. The latter method would give a generic overview AND show students the governing law in the state a majority of them will practice. The latter approach simulates how an associate at a firm may handle a new problem: consult secondary material, consult on-point primary material, talk with senior partner about the merits when that law is applied to our factual situation. It would generate 95+% active participation on every topic. Furthermore, by giving students 5-10 minutes to prepare a response and asking open-ended questions, you eliminate many of the major drawbacks of the Socratic Method, like the constant fear of unpreparedness and not knowing what will be asked.

Of course the latter method would eliminate bland, standardized, profitable casebooks and require professors to run a Westlaw search every now and then, but I think the advantages would be worth their well-paid time.

In fact, it is my firm belief that 2-3 years of the latter method would far better prepare students to "think like a lawyer" than the former, and that shouldn't be much of a surprise if one looks at things in the abstract.

The Socratic Method - as it's used by Socrates in Plato's Meno - is only fully effective for logical reasoning, that is, problems solvable through application of formal logic. Law problems, which often involve interpretation of fact and application of policy preferences, are not solvable through formal logic.
Thus, what law professors use is an inauthentic Socratic Method. Instead of making students reason their way to logical conclusions (like the laws of geometry, for example), professors force students to reason their way to legal conclusions based on lines that are drawn from non-logic-based sources (like sound social policy). As a result, students - the 2% of class time they're each "on call" and respond to a professor's cycle of back-and-forth questions - aren't really learning how to apply logic or really "how to think" (the purpose of Socrates' method) at all. They're learning where the lines are drawn, which isn't a process, but an observable fact, which their teacher could just tell them (or they could read in a well-written book).

With that in mind, the Socratic Method shouldn't be expected to teach a damned thing more than any other method of mandatory participation. Since mandatory participation can be achieved in a variety of ways other than the Socratic Method, law professors' and administrators' claims that there's something special about the Socratic Method are baseless bullshit.

So why do law administrators and professors continue to extol the virtues of this thing as if it were a religious rite of passage?

I present but one explanation among many possible causes.

The ABA requires that every single law student is subjected to 45,000 minutes of classroom, desk-and-chalkboard instruction time, independent of the knowledge or skills of the student. (Standard 304(b)). That's 750 hours. Since going through outlines and basic concepts of relevant material would only take a fraction of that time, law instructions have to find ways to fill the remainder of the time. Given all the possible alternatives, law schools have chosen their version of the Socratic Method, since telling students that they are wrong and steering them back to correctness eats up time. Additionally, the casebook /large-class /Socratic Method routine is cheap to produce and easy for professors to implement, as anyone with a good outline can conjure up hypotheticals to illustrate points.

And what's more is that the Socratic Method has the force of history behind it. Generation after generation of lawyers have faced this same half-baked pedagogicial tool. They graduated, and did well, and credited the Socratic Method and promoted its increased use. It becomes a self-fulfilling prophecy that one "thinks like a lawyer" after navigating a Socratic argument.

At one point in time, with smaller class sizes and inaccessible courts, before Westlaw or widespread secondary sources or commercial outlines, it may have had quite a bit of utility in leading students to see the lines while actively participating and interacting with their professors. It may have been genuinely-good preparation for being a lawyer, possibly the best there was.

But in today's environment that simply isn't the case.

Imagine how that 750 hours could be spent instead of sitting in a sterile classroom while other students back-and-forth it with the professor. They could be spent going over actual appellate court briefs and discussing why the attorneys argue it the way they do. They could be spent going to actual courthouses and watching real trials, or in watching trial footage on video tape. They could be spent discussing actual modern law that's relevant to real attorneys working today rather than random cases from 1965.

Many law school syllabi make some claim about how reading an outline won't teach you the law; only classroom attendance will. Given that reading an outline takes maybe an hour and sitting in a 3-credit class takes 45 hours, why would anyone expect otherwise?!? Comparing apples to apples, let's put that 45 hours (and the 45 hours used to prepare for them) to different use. I'm pretty sure most anyone with any connection to the legal world could put that 90 hours to significantly better, more efficient use than the Socratic Method and casebook song-and-dance, even a lawyer with a damaged capacity for imagination.

When one considers these more efficient alternative uses of time, defending the teaching format of current law schools as being a sound pedagogical tool worthy of continuation - especially given the damaging psychological effects it produces - becomes a Herculean task, an apt word given that most beliefs regarding the effectiveness of the Socratic Method stem from mythology and not empirical evidence.

I shudder to think what would happen if medical school pedagogy were run this way.

*CRACK = mnemonic device for remembering a sure-win organization for written legal arguments: Conclusory introduction, Rule of Law, Application to Facts, Conclusion, Kill self with alcohol for adhering to a dull writing format.

What's the Big Deal with SUCOLitis?

For non-lawyers, lawyers have a perception of being horribly unfunny, stuffy, alien, etc. In other words, lawyer jokes are much, much funnier than jokes told amongst lawyers. First-year law students regularly laugh at things that are not, under any objective standard, funny (reasonable person jokes, blackacre jokes, etc.), and the level of humor does not improve much from there. To wit, from Skilling v. United States' oral arguments:

MR. SRINIVASAN: In the Martha Stewart case, for example . . . the only reason you needed an extended voir dire was because of the celebrity status of the defendant. You didn't have the deep-seated community passion and prejudice that characterized the Houston venue in this case. So, I think it's not at all unusual to have that kind of extended voir dire, and, in fact, we would say it's absolutely necessary to assure that the defendant receives the fair and impartial jury to which he's entitled.

JUSTICE SCALIA: So either this was too little or Martha Stewart's was too much?
(Laughter.)

Or this, from Florida v. Powell's oral arguments:

MS. BRUECKHEIMER: ...[the Florida S.C.] starts out talking about Traylor and our constitution at the beginning, and they . . . never say that -- that our constitution isn't insignificant or that it's not important. If they did, they wouldn't have felt the need to cite Traylor.

JUSTICE GINSBURG: I think you would have had a much weightier argument if it hadn't been for Michigan v. Long. If you could have said --

MS. BRUECKHEIMER: It -- it would have been nice.
(Laughter.)

JUSTICE GINSBURG: We could have then remanded to ask the Florida Supreme Court: Was it independently ruling under its constitution?

MS. BRUECKHEIMER: I -- I will keep that in mind.
(Laughter.)

For the non-legal-minded reading this, these snippets are as unfunny to you as they should be. You're not missing anything. Incidentally, both of these were criminal cases where the "laughter" moments came during the criminal defendant's turn to argue, both of whom more or less lost. I'm sure if you did a widespread correlation of "laughter" moments, you'd see similar patterns, but I digress.

The real reason for this entry is the satirical blog SUCOLitis. Although it is now been taken down, SUCOLitis purported to be an Onion-style blog concerning the goings-on at second/third-tier Syracuse College of Law. It was ostensibly run by a group of 2Ls and 3Ls, but for the time being school administrators are apparently investigating 2L Len Audaer for "harassment." Syracuse considers this a violation of their honor code based on "complaints from un-named students."

I understand fully that as a private institution* punishing a student, Syracuse's actions have no First or Sixth Amendment issues. But for the love of Johnny Marshall, if you're going to be an institution instilling students with legal ethics and respect for the Constitution that keeps some of us employed, maybe - and perhaps this is just me - but maybe you could respect the values behind Freedom of Speech or the Confrontation Clause? Perhaps you could not punish someone on anonymous tips for expressing themselves in an outside forum?

More importantly, maybe you could allow your students to try having a sense of humor. Although I can't access the blog currently, these are some of the titles I can find in archived items:

• Beer Bong Elected 2L President in Recall Election
• Senate President Elected SU's Sexiest Semite
• New Chipotle Praised for Spike in 3L Employment
• Class of 2013 Named Most Attractive In History

Brilliant, Swiftian satire? Aside from the 3rd one, no, but who can blame them given the Supreme Court's feeble attempts? In good taste? Of course not, but what satire is?

But what in the hell is the problem here? Oh, yes, because it's "bullying" just like that which leads gays and lesbian teenagers to kill themselves.

Dear heavens. This is exactly the type of behavior people make fun of lawyers for. If we expect law students to go out into the world and be social and political leaders, god willing, they're going to have to deal with indecent satirists. If we expect lawyers to interact with their clients like real people instead of greedy trolls who crawl out from under bridges when there's a remedy to be had, we should encourage this sort of creative outlet. My opinion of Syracuse went up as a result of the blog and down as a result of the backlash. I can't imagine I'm in the minority of Americans on that front.

If individual students are having their reputations harmed, they have a remedy in the civil courts with a plethora of defamation and modern privacy claims** - and possibly with the school's disciplinary body. But anonymous complaints of generic offensiveness? That's cause for Syracuse to investigate a wordpress blog? Really?

No wonder lawyers are miserable. Our institutions are set up to warp their senses of humor away from genuine attempts at satire and towards finding lifeless Supreme Court banter worthy of laughter.

*It's rather curious that institutions like Syracuse Law are still considered "private" when the overwhelming portion of their income comes from federally-backed loans to pay exorbitant tuition fees, most of which will be eaten by federal taxpayers. Differentiating between public and private law schools on this point is little more than an exercise in semantics, but hey, isn't that much of law?

**...which in turn may employ Syracuse alums. By acting and sending a highly-paid professor on a goose chase to investigate this kid and shut down the blog, Syracuse may have prevented legitimate legal work from developing that may help graduate solo practitioners trying to pay off their debts. Is it really smart of a law school to go out of its way to reduce demand for legal services? I think not.