Eden on The Socratic Method
John Eden emails these remarks responding to Brian Leiter on the Socratic Method:
What Would Socrates Say?
In a recent blog Brian Leiter claims that it is high time we put the Socratic Method (SM) to rest. Or, more accurately, that the version of SM that is currently in vogue in many American law schools should be replaced by something that more effectively conveys the skills lawyers and legal academics need. I agree with Leiter that SM has its pitfalls, but I am not convinced that the inefficiencies of legal education are exclusively or even primarily attributable to SM, nor am I completely comfortable with the suggestion that academic philosophers are somehow smarter, on average, than their colleagues in law.
Is the Socratic Method the real problem?
In Leiter’s original post, it is claimed that SM 1) gets in the way of teaching the analytic skills used in legal reasoning and 2) is egregiously inefficient in conveying core course material. Let’s take each claim apart to see what’s inside. In support of both claims, Leiter points out that not only do many – indeed, probably all – law students turn to commercial outlines to learn the law, most bemoan the actual day to day irrelevancies of classroom instruction. I think both types of evidence point in a number of potential directions. For instance, the fact that law students actually learn their chosen trade through commercial outlines could be a result of laziness (Cf. ‘Brush with the Law,’ a book by two law students from Stanford and Harvard, respectively, which provides evidence for this claim.). Laziness, of course, is not alone a sufficient explanation. This is easy to see by considering the fact that in other competitive and intellectually challenging disciplines ambitious and diligent students consistently turn to commercial study aids in an effort effectively to learn the target material. For instance, undergraduates taking organic chemistry often use materials not assigned by their professors in an attempt to get a handle on a body of knowledge that is, at least from their vantage point, too arduous to master without extra guidance.
So what is so different about law school, one might ask? The appeal of the hornbook could, and in many cases primarily is, attributable to the intense pressure law students feel to perform well on exams. This pressure cannot be understood unless the unique nature of the legal market remains in full view: candidates are segmented primarily according to their grades, which results in what many law students feel (somewhat erroneously) is a zero-sum game. The plumb jobs, they assume, will all go to the victors in the grade game, and the so-called lesser jobs will be doled out to those unfortunate individuals which fate did not shine upon. In a context like this, the pressure to become a paper tiger is high, and commercial outlines are seen – irrationally, in my opinion – as an indispensable tool for the never-ending struggle to outmaneuver one’s competition. Like undergraduates taking organic chemistry, many law students feel the need to perform at a high level so that the carrot they’re after – a nice job at Cravath or a clerkship with Posner – will ultimately fall within reach.
But doesn’t substandard teaching exacerbate this problem? In some cases the answer is obviously ‘yes,’ but this is of no particular moment. The real problem which deserves attention is whether the pedagogical deficiencies of your average law professor actually do stem from her use of SM. About this claim I have my doubts. First, to use an arrow from Leiter’s quiver, there’s no firm empirical evidence that SM is an independent variable which negatively affects the degree to which legal skills are conveyed through classroom discussion. While it seems clear from the anecdotal evidence Leiter references that a sufficient proportion of law students find SM to be a loathsome method of transferring knowledge, this does not buttress the conclusion that SM is the bugbear. Hence, it may be quite reasonable to object to the vapid puffery that supporters regurgitate in the course of defending the “merits” of SM. But this sensible objection should not be confused with the controversial claim that SM is an inefficient way of imparting analytic capacities.
Second, there are a number of features of the law school classroom that confound our ability accurately to determine precisely what causes the ineffective transmission of knowledge. I will focus on only two of these features: 1) the tendency of professors to obscure what they expect students to know on an exam, which is sometimes known as ‘hide the ball’ and 2) the proclivity for law professors to don a magisterial, authoritative tone, thus unnecessarily creating an acute hierarchy between instructors and students which undermines free inquiry and fruitful discussion. Under one description, (1) does amount to a variation of hide the ball: By jealously guarding, even to the point of willfully obscuring, the particular point of law to which Jane Law-Professor is directing her students until the time is just right, a certain amount of confusion and irritation is produced in the anxious student body. Much of that confusion will not be remedied before exam time, with the likely result of mediocre or poor performance by students who are actually quite sharp and diligent. But there are two distinct problems here that should not be confused. One is best conceptualized as a failure of truth in advertising, not hide the ball: It is a failure of legal education that professors do not inform students that clever theories and magic words will be of no avail if they’re not able swiftly to apply basic black letter law principles to complex hypotheticals in the space of 3 or 4 short hours. As for the second problem, Leiter is absolutely right: there is something disquieting about keeping law students on the edge of their seats by keeping them ignorant during class meetings – this is the sine qua non of hide the ball. Yet while law professors may indulge in the temptation to hide the ball with greater frequency that your average, say, humanities professor, the law hardly has a monopoly on this repugnant method of instruction. I’ve been in more graduate philosophy seminars than I’d care to remember where the professor was in a position to enlighten her students on a critical question of interpretation but craftily avoided laying her cards on the table. And this is perhaps more worrisome in the academic philosophy community, since much of its collective knowledge is not on paper, but rather contained in the heads of its most illustrious practitioners.
What about (2), the problem of unnecessary hierarchy? I begin with a simple observation: Free inquiry and democratic discussion do not thrive in an environment of intimidation. This is true of forms of physical intimidation, and it is also true of most varieties of intellectual intimidation. Law students tend to think that law school is an unnecessarily hierarchical place. And when pressed to identify the principal cause of the hierarchy which they resent, the factor they identify is the non-collaborative, antidemocratic nature of classroom discussion. According to this complaint, such discussions are non-collaborative in that they do not really invite the full participation of each student. Students are formally free to assert their views with verve and conviction, but this is not the same thing as having the privilege of contributing to a discussion that is genuinely collective. To have that privilege requires a norm of openness according to which professors have a responsibility to take students’ views seriously as potential contributions to the collective judgment of the class about a particular issue.
On this model, the class owns the discussion, not the professor alone or the professor along with a small cadre of vocal students. And once we conceptualize hierarchy in this way, it becomes impossible to see it as having a necessary connection to, or correlation with, the Socratic Method. SM can surely be employed by a law professor in a non-collaborative, anti-democratic fashion; but then again, some professors of philosophy and history and comparative literature are quite adept at subtly undermining a collective approach to deliberation and problem solving in the classroom. Expunging the Socratic Method will not, unfortunately, automatically transform the hierarchical classroom into a fair, collaborative environment.
In addition, since Leiter expresses skepticism about the existence of “legal skills,” abilities allegedly somehow distinct from the analytical and critical capacities that non-lawyers possess, one might wonder why he disparages SM, a particular method of instruction, before determining what particular set of skills ought to be conveyed in law school. After all, if our primary objective is teaching generalized analytical skills – on the theory that there simply is no bundle of cognitive habits or skills that is unique to the legal profession – then it would be an open question whether our first priority should be selecting the optimal methods for inculcating such skills. Consider in this connection the following: Many who have been through law school claim that the most academically gifted law students fail to shine in practice, and they explain this pattern by claiming – probably in an exaggerated fashion – that there is a sharp dissonance between the skills one needs to make law review, on the one hand, and the more varied set of abilities required for becoming a great attorney, on the other. The suggestion here is that the classroom probably isn’t where great lawyers learn most of the skills they need to become exceptional members of the bar, and hence what goes on during class is of less long-term value than one might suppose. Of course, even if this were true it might still be meaningful to inquire as to the best method of conveying the distinctively academic skills one needs while in law school.
Are philosophers really smarter?
But regardless of which specific set of skills we’re trying to teach, Leiter believes we can do much better:
[The exceptional philosophical lecturers I’ve had he pleasuring of listening to in one class or another over the years – Paul Boghossian, Philip Kitcher, Peter Railton, David Velleman, Crispin Wright, among others – are, as thinkers and dialecticians, heads-and-shoulders above all but two or three law professors in this country. They could surely have taught the Socratic way, but they didn’t. They are, to repeat, the norm among philosophers.]
It is not entirely clear what is meant to follow from these remarks. However, if we assume that smarter people convey information more efficiently, and we want law schools to convey information in a more, rather than less, efficient way, then the philosophers should be in charge of instruction – since on average they’re clearly “head and shoulders” above the academic lawyers that fill the halls of our esteemed law schools. Setting aside the question of whether Leiter would countenance this little syllogism, is there anything wrong with this argument? Yes: It fails to recognize that although law professors and philosophers tend to share discursive and analytical capacities, they deploy these capacities to solve problems 1) under widely different constraints 2) using significantly different sets of doctrinal tools. Some might say that (1) and (2) do not get in the way of evaluating the respective intellectual virtues of law professors and philosophers, and hence Leiter’s claim that philosophers are “head and shoulders” above law professors could in principle be made simply by sitting in on a sufficient number of academic philosophy and law seminars or lectures, and then making a judgment call.
I don’t think it is at all easy to answer this question, and I’d like to illustrate what makes the question particularly challenging with an example from legal history. In The Common Law, Holmes famously argued that negligence is the lodestar of tort law for two reasons. First, it represents the golden mean between strict liability and a strict blameworthiness standard, and second, negligence is more effective than any other competing principle in providing publicly knowable norms of conduct to which agents with epistemic limitations can adhere to limit their liability.
Now, with the exception of folks like Ronald Dworkin and Liam Murphy who are familiar with and enamored of the methods of analytic philosophy, law professors use different tools to assess broad brush claims like these. But how are their tools different? Law professors have a tendency to approach Holmes’ claim from a theoretical perspective that does not treat the normative justification of the principle of negligence as the primary question in need of exploration. Of course providing a good justification for the principle of negligence is of some importance to the average law professor, but not for the same reasons as providing such a justification is important to a philosopher. To oversimplify greatly, a philosopher will be more interested in whether the norms of conduct that the principle of negligence recommends are themselves consistent with our moral psychology, and in whether those norms are morally justifiable to citizens on some highly technical and abstract theory of justice. An academic lawyer will place greater emphasis on how those legal norms have developed, whether they made sense given other social, political and economic changes, and, perhaps most importantly, whether those norms are likely to support or undermine policy objectives favored by a given school of legal theory. The philosopher’s aims are narrow, yet require a great deal of care, patience, and raw intellectual horsepower to adequately address; the academic lawyer’s concerns are wide, and require evaluating diverse types of information with care, pragmatic judgment, and a sensitivity to the challenges inherent in understanding and synthesizing historical, legal and economic data.
Insofar as this picture, which admittedly needs further development, captures something important about the methodological differences between law and academic philosophy, I think we ought to tread very carefully in endeavoring to compare intellectual prowess across disciplines which i) ask questions that sometimes look similar (but which are often very different upon closer examination) ii) by applying methods that only bear a rough family resemblance to one another (and hence are marked more by diversity than sameness). Leiter could retort that it is only by employing the methods of analytic philosophy that one can obtain the most elegant and defensible solutions to the core problems of legal theory; this, I take it, is an assumption that animates much of his own excellent work in the philosophy of law (e.g., Legal Realism and Legal Positivism Reconsidered, Ethics, Vol. 111, No. 2 (Jan., 2001)). But this riposte could only amount to a clever attempt to change the subject, for the issue under consideration here is whether philosophers are smarter than law professors, not whether law professors have all the tools they need.
posted by Lawrence Solum 5:39 PM