The Decline of the Socratic Method at Harvard

• Publication year: 2021
• Citation: Vol. 78

78 Nebraska L. Rev. 113. The Decline of the Socratic Method at Harvard

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Orin S. Kerr*

The Decline of the Socratic Method at Harvard

TABLE OF CONTENTS

I. Introduction .......................................... 113
II. The Debate Over the Socratic Method ................... 116
A. The Socratic Method at Its Best .................... 116
B. The Socratic Method at Its Worst ................... 118
III. First Year Law Teaching at Harvard Today .............. 122
A. Traditionalists .................................... 122
B. Quasi-Traditionalists .............................. 123
C. Counter-Traditionalists ............................ 124
IV. Explaining Differing Approaches to the Socratic
Method: Why Professors Teach the Way They Do........... 126
A. Traditionalists .................................... 126
B. Quasi-Traditionalists .............................. 128
C. Counter-Traditionalists ............................ 129
V. Rethinking the Decline of the Socratic Method ......... 131

I. INTRODUCTION

The Socratic method has long been considered a defining element of American legal education. Among both lawyers and laypersons, Socratic questioning is perceived as a rite of passage that all law students endure in their first year of law school.(fn1) Fictional characters

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such as Professor Kingsfield of The Paper Chase and Professor Perini of One-L have helped foster an image of the archetypal law school professor who challenges, probes, and even humiliates students in a repeated exchange of questions and attempted answers.(fn2)

Despite this perception, the traditional Socratic method is today more myth than reality. In the last thirty years, legal pedagogy has changed dramatically: the Socratic method as it was known in the 1950s and 1960s is nearly extinct.(fn3) Although student participation in the law school classroom remains the norm, the experiences of today's students are very different from those of students a generation ago. In the place of the traditional approach is an eclectic mixture of newer approaches, including toned-down Socratic questioning, student panels, group discussions, and lectures.(fn4)

The purpose of this paper is to explore this revolution in legal pedagogy by examining the teaching styles, attitudes, and classroom influences of the faculty at one leading law school. Because Harvard

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Law School has often been considered the citadel of the Socratic method,(fn5) I chose to focus on Harvard and conducted interviews with twelve members of the faculty in the spring of 1997. (fn6) The interviews focused not only on how today's Harvard professors teach, but also why they teach as they do in light of their experiences as law students and young law teachers. Because Socratic teaching is known to be concentrated in first-year classes, I focused on professors who regularly teach first-year classes. From their collective experiences I hope to develop an understanding of the current state of legal pedagogy, as well as an understanding of the forces that have shaped the law school classroom experience of today as compared to that of a generation ago.

To create a full picture of the pedagogical range experienced by first-year students at Harvard, I interviewed as diverse a group of professors as possible. Of the twelve professors interviewed, two are African-American, and three are female. Their ideologies span the spectrum from traditionalism to critical legal studies, and range from the most junior faculty to the most senior. They also teach a broad cross-section of first-year classes. Of the twelve faculty members interviewed, three teach property, three contacts, two criminal law, two torts, and two civil procedure. Together, these professors represent approximately half of the faculty members who regularly teach first-year students at Harvard.

By interviewing a broad cross-section of faculty members, I hope to add a much-needed empirical perspective to the vigorous academic debate over the Socratic method. Within this debate, the Socratic method is often treated less as a classroom technique than as a potent symbol of traditional legal education. Accordingly, some present the Socratic method as a weapon used to oppress students and eradicate independent thinking, while others celebrate it as a talismanic key to knowledge, truth, and morality.(fn7) The views of the Harvard faculty that emerge from this article suggest that the Socratic method in practice bears only a casual resemblance to these descriptions. Rather, the view emerges that the Socratic method is simply one teaching technique among many that has both positive and negative aspects de-

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pending on the skill, personality, and purposes of the professor who chooses to use it.

This article is divided into four sections. Section II summarizes the debate over the Socratic method that has appeared in both academic journals and popular culture. The discussion explores the strengths and weaknesses of the method and provides a context for understanding the various approaches to its use. Section III presents the results of interviews I conducted and explores how today's Harvard professors teach law. There, I group each of the twelve professors into one of three categories: traditionalists, who derive their style from the traditional Socratic method; quasi-traditionalists, who combine significant elements of the Socratic dialectic with substantial innovations; and counter-traditionalists, who expressly reject the Socratic paradigm. Section IV profiles the professors in each of the three categories, focusing on how they reacted to the Socratic method as students, and how their teaching styles have changed since they began teaching. Section V concludes the article by offering an explanation for the decline of the Socratic method at Harvard, and by suggesting how the results of this Article might lead to a rethinking of the contemporary debate over the Socratic method.

II. THE DEBATE OVER THE SOCRATIC METHOD

Although criticism of the Socratic method in American legal education is as old as the method itself,(fn8) the late 1960s ushered in a period of sustained attacks against it that continues today.(fn9) During that time, a substantial body of literature critiquing the method has developed, and has been matched by literature defending the method. To understand the role of the Socratic method in legal education today, an understanding of the debate over the merits of the method is essential.

A. The Socratic Method at Its Best

Proponents of the Socratic method extol its capacity to teach sophisticated legal reasoning effectively to a large class of students. According to the late Professor Philip Areeda, the strength of the method is that the risk of being questioned induces all students in a large classroom to participate vicariously in an exploration of the strengths

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and limits of legal arguments.(fn10) Students learn legal analysis by doing it, either in their own minds or in an oral exchange with the professor. (fn11) By posing questions to students that force them to confront the weaknesses of each position, the Socratic professor ultimately trains students to assess the strength of legal arguments on their own:

The student sees that he could have asked himself those questions

before class; that the kinds of questions the instructor asked can be

self-posed after class. The internalization of that questioning

process is not an illusion. It is the essence of legal reasoning and

the prize of the [Socratic method].(fn12)

With the Socratic reasoning process internalized, students become experts at critiquing their own prejudgments, leading to open-minded, bifocal, and sophisticated understandings of law.(fn13)

According to the Socratic method's proponents, the collateral benefits of this dynamic and interactive classroom technique are considerable. Class discussions become lively and stimulating, encouraging students to prepare for class and engage in exciting and illuminating debates.(fn14) At the same time, students speak frequently, helping them develop and hone rhetorical skills that are critical to effective advocacy. (fn15) Finally, some have argued that the way that the method

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forces students to construct their own view of law (rather than discover a preexisting body) aids in the development of moral imagination. (fn16) According to this view, students who learn the law via Socratic dialogue are likely to appreciate the social construction of law, and thus feel a strong moral responsibility for making sure that the law is used wisely.(fn17)

B. The Socratic Method at its Worst

Critics of the Socratic method levy a diverse set of attacks against it. These attacks criticize the method for three perceived faults: first, the psychologically harmful effect it has on students; second, the method's inability to teach the range of skills that lawyers need; and third, the political and ideological agenda that the method's use tends to advance.(fn18)

The most common complaint against the Socratic method is that it is cruel and psychologically abusive. Socratic professors are quick to criticize imperfect student answers, subjecting students to public degradation, humiliation, ridicule, and dehumanization.(fn19) This torture often scars students for life.(fn20) Even among students who do not speak in class, the possibility that they will be called on can be incapacitating. (fn21) Non-traditional students such as women and minorities are particularly vulnerable, both because they are likely to be used as 'spokespersons' for their race or gender, and because many have al-

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ready internalized stereotypes of inadequacy in the combative and mostly white and male atmosphere of traditional law schools.(fn22)

Beyond the anxiety...