64 JLegal Educ 562
64 JLegal Educ 562
64 JLegal Educ 562
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Reframing the Socratic Method
Jamie R. Abrams
I. Introduction
It might seem surprising to see an article about the Socratic method in a
Journal of Legal Education volume dedicated to innovations that ignite law
teaching. From flipped classrooms to teaching with technology to clinics to
community-based service learning, exciting innovations in legal education
are frenetically swirling around us. Law schools are revamping the length,'
substance,R and format3 of legal education. In this context, the Socratic
Jamie R. Abrams is an Assistant Professor of Law at the University of Louisville Louis D. Brandeis
School of Law. The author thanks participants in the Re-Igniting Law Teaching Conference
(American University Washington College of Law 2014); Anibal Rosario Lebron; Michele
Pistone; Jason Pletcher; and JoAnne Sweeny for feedback and discussion on earlier drafts. The
author also thanks the Brandeis School of Law Library, Carol Allen, Kim Balkcom, Annie Malka,
and Corey Shiffman for invaluable research and editing assistance.
I. See, e.g., Universiy of West Florida and Stetson Universy Partner to Shorten rime to Law Degree, U.
W. FLA. NEWSROOM (Dec. 11 2013), http://news.uwf.edu/index.php/2o 3 /2/university-
west-florida-stetson -university-partner-shorten-time-law-degree/(describing a 3+3 program
allowing high-performing qualifying students to earn their bachelor's and juris
doctorate degrees in six years instead of seven); Advanced Students and International Standing,
ST. THOMAS U. SCH. L., http://www.stu.edu/law/JDAdmissions/ProspectiveStudents/
AdvancedStandingandlnternationalStudents/tabid/ 3 5 83 /Default.aspx (describing how
qualifying foreign attorneys can complete a domesticjuris doctorate in two years by receiving
up to thirty credits of advanced standing credits from a prior institution) (last visited Jan. i,
2015).
2. See, e.g., Bar Exam Preparation, CHAPMAN U. FOWLER SoH. L., http://www.chapman.edu/
law/student-resources/bar-preparation (last visited July 4, 2oI4) (describing an in-house
bar preparation program which complements traditional doctrinal law school courses in
an effort to fully prepare students for the bar exam); Aleatra P. Williams, 7he Role of Bar
PreparationProgramsin the Current Legal Education Crisis, 59 WAYNE L. REv. 383, 402-o6 (2013)
(chronicling the rise in bar preparation courses for credit).
3. See, e.g., Press Release, Vermont Law School, Vermont Law Expands Distance Learning
Program with Courses for JD Credit (June 19, 2014), available at http://vtdigger.
org/2ol 4/o6/ig/vermont-law-expands-distance-learning-program-courses-jd-credit/
(describing expanded online classes); Stephen Colbran & Anthony Gilding, MOOCs and
the Rise of Online Legal Education, 62 J. LEGAL EDUC. 405, 405-07 (2014) (discussing the advent
of MOOCs-Massive Open Online Courses, which are useful for school marketing and
reputational growth, community and outreach programs, and alumni development).
4. See, e.g., Michele R. Pistone & John J. Hoeffner, No Path But One: Law School Survival in
an Age of Disruptive Technology, 59 WAYNE L. REV. 192, 197 (2013) (concluding that "there is
one opportunity to save the traditional place-based law school" and that "to seize that
opportunity law schools must finally and decisively reject what has for over a century
sufficed in legal education and must commit themselves instead to an educational model
that, to a greatly heightened degree, attempts to remedy flaws in the traditional school that
have been identified over and over again in a series of measured and independent studies
ranging across almost a century.").
5. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FORTHE PROFESSIONOOFLAw
50-59 (2007) (hereinafter "CARNEGIE REPORT") (stating that law schools largely uniformly
rely on a single method of teaching-the case-dialogue method, which is accompanied by a
system of competitive grading).
6. See Edward Rubin, What's Wrong with Langdell's Method,and What to Do About it, 6o VAND. L. REv.
6o9, 662-63 (2007) (explaining how experiential programs have developed, however, "these
programs are not integrated with the lecture classes, and they have been marginalized by
their later introduction into the curriculum and by the norms of the professoriate."); Ann
Marie Cavasos, Next Phase Pedagogy Reform for the Twenty-First Century Legal Education: Delivering
Competent Lawyersfora Consumer-Driven Market, 45 CONN. L. REV. 1113, 1128-29 (2013) (describing
how schools supplemented course offerings with specialty programs, classes, and clinics
such as drafting, interviewing, counseling, negotiation, and alternative dispute resolution
following the MacCrate report).
7. See Pistone & Hoeffner, supra note 4, at 222 ("When law schools became the near-exclusive
suppliers of professional legal instruction and the case method became the near-exclusive
method of delivering that instruction, a case of'too much of a good thing' developed.").
8. See Lani Guinier et al., Becoming Gentlemen: Women's Experiences at One Ivy League Law School, 143 U.
PA. L. REV. i, 3 (1994) (noting that the "Socratic Method remains the dominant pedagogy
for almost allfirst-year instruction.").
9. See Rubin, supra note 6, at 613 (explaining how the Socratic method has weathered over a
century of attacks and now "it has ceased to be viewed as a particular approach to legal
Journalof Legal Education
article begins from the premise that the large lecture hall Socratic method
course will continue in legal education for the immediate and foreseeable
future for a variety of reasons. Accepting this reality, but not endorsing it, this
article highlights the unique dimensions of the Socratic method that could be
better leveraged to strengthen other legal education reforms and innovations.
But the Socratic method admittedly has some advantages that none of the
other curricular innovations has. It is repeated hundreds of times in different
courses, whereas a typical student in a law clinic will representjust a handful of
clients on discrete legal issues.'- It is delivered to a large and diverse group of
students allowing for competing perspectives and critical inquiry. It has robust
volumes of existing teaching materials built around it making it the most
economical method of law teaching." It is comfortable for many professors
and law faculties because they were taught this way and they have taught this
way for decades, thus allowing greater buy-in and ease of adaptation.,,
The case-based Socratic method can be refrained to create more practice-
ready lawyers and better align the teaching technique with broader curricular
reforms. Within the existing framework of law teaching-the same casebooks,
professor-to-student ratios, and teaching styles-three straightforward
adaptations can better align with other curricular innovations and create a
more holistic student experience. These adaptations are (i) the consistent
positioning of client(s) at the center of the Socratic dialogue; (2) the
consideration of legal research and weight of authority as a precursor to client
guidance and case outcomes; and (3) the consistent and frequent sensitization
to skills within the Socratic dialogue. These techniques can better position
students within a coherent course of study to prepare practice-ready lawyers in
ways that are inclusive and inviting.
13. See Rubin, supra note 6, at 61o ("Here we are, at the beginning of the twenty-first century,
using a model of legal education that was developed in the latter part of the nineteenth.
Since that time, the nature of legal practice has changed, the concept of law has changed,
the nature of academic inquiry has changed, and the theory of education has changed.");
Daniel R. Coquillette, "The PurerFoundations":Bacon and Legal Education, in FRANCIS BACON AND
THE REFIGURING OF EARLY MODERN THOUGHT: ESSAYS TO COMMEMORATE THE ADVANCEMENT
OF LEARNING (16o5-2O05) 145 (Julie Soloman & Cathering Gilmetti Martin eds., 2005)
(observing that "this system still exercises an incredible grip on elite American law schools.").
For a bibliography of legal scholarship devoted to the process of education in law school
see generally Donald Kochan, "Learning"Research and Legal Education:A BriefOverview and Selected
BibliographicalSurvey, 40 Sw. L. REv. 449 (201).
14. SeeJennifer L. Rosato, The Socratic Method and Women Law Students: Humanize Don't Feminize, 7 S.
CAL. REv. L. & WOMEN'S STUD. 37, 40 (1997) (noting that there is no one definition of the
Socratic method of teaching).
15. See Christopher M. Ford, The Socratic Method in the 21st Century, U.S.
MILITARY ACAD. t (2oo8),
http://www.usma.edu/cfe/literature/ford-o8.pdf (summarizing how Langdell had two
distinct but related contributions: "the introduction of the case method and the Socratic
method"); Coquillette, supra note 13, at 145 (describing the "case book" and "Socratic
Method" as the "classical underpinnings of American legal education.").
i6. See generally Ford, supra note i5, at 2 (documenting the history of the Socratic method in legal
education, which Langdell used as the "engine" to "power his case method").
17. See Rhode, supra note 12, at 1554 (stating that "the dominant paradigm for legal education
remains the quasi-Socratic lecture focusing on doctrinal analysis.").
i8. See generally Bruce A. Kimball, 7he Langdell Problem: Historicizingthe Century of Historiography,i9o6-
2000S, 22 LAw & HIST. REv. 277 (2004) (chronicling the legacy of Christopher Columbus
Langdell). "Langdell thus transformed legal education from an undemanding, gentlemanly
acculturation into an academic meritocracy." Id. at 277. See also Pistone & Hoeffner, supra note
4, at 2o8 (providing a historical chronology of legal education); Barnhizer, supra note 12, at
8 (providing a historical critique of the scientific law school).
Journal ofLegal Education
applaud and revere its intellectual rigor in teaching students to think critically
and analytically.'9 It can be taught to a large lecture hall of students using
casebooks that have been in publication for decades, ° making it highly cost-
effective.
Yet it has also sparked widespread critique from various stakeholders.-
Many have questioned its pedagogical effectiveness.:2 It has been attributed
to the general malaise and depression of modern law students.23 Many have
criticized its disproportionately marginalizing effect on women and minority
law students.24
In response to these criticisms, the Socratic method has certainly become
more individualized across courses and faculty. For some, the Socratic method
remains in its most traditional sense a means of rigorous critical inquisition to
I9. See, e.g., STUCKEY ET AL., supra note io,at 2io (explaining that the Socratic method encourages
students to think logically and then to explain their reasoning and conclusions in the
classroom, which gives "abundant opportunities for putting their own minds into vigorous
action, in order first that they might gain mental power, and secondly, that they might hold
firmly the information or knowledge they have acquired"); Jenny Morgan, he SocraticMethod:
Silencing Cooperation,iLEGAL EDUC. REV. 151, 154 (1989) (nothing that the Socratic method has
many advantages in that it tries to develop key analytic skills and rhetorical skills); Ford,
supra note 15, at 2 (highlighting how the Socratic method helps students look for evidence
to support their positions, understand logical construction of arguments, and draw valid
conclusions); Orin S. Kerr, The Decline of the Socratic Method at Harvard,78 NEB. L. REv. 113, i16-
18 (j999) (summarizing descriptions of the Socratic method "at its best"); Phillip Areeda, The
n
Socratic Method, io9 HARV. L. Rav. 9 (i996).
2o. See e.g., Jeffrey D. Jackson, Socrates and Langdell in Legal Writing: Is the Socratic Method a Proper 7ool
for Legal Writing Courses', 43 CAL. W. L. Rav. 267, 273-74 (2007) (highlighting how the Socratic
method "gives professors the ability to teach large bodies of students in an active manner.").
21. See, e.g., Morgan, supra note i9,at 153 (highlighting how critics of the Socratic method have
said that it subordinates students of all genders, manipulates vulnerabilities, alienates
students, and invades autonomy); Jackson, supra note 2o, at 283-84 (summarizing and
analyzing criticisms that the Socratic method humiliates students, establishes hierarchies,
hides the ball, induces boredom, and does not teach skills); Kerr, supra note 19, at i18-22
(summarizing criticism of the Socratic method "at its worst").
22. See, e.g., Ford, supra note 15,at 2 (noting that many critics believe that the Socratic method
is not a very effective way to communicate information); Brent E. Newton, The .Xney-Five
Theses: Systemic Reforms ofAmerican Legal Education and Licensure, 64 S.C. L. REv. 55, ioi (2oi2)
(summarizing how the typical law school course has such a high student-teacher ratio that it
is hard to engage in meaningful pedagogy and student participation, which leaves students
to hook into social media and "check out" of the classroom dialogue).
23. at 3 (highlighting the psychological pressures and overwhelming
See, e.g., Ford, supra note 15,
anxiety attributed to the Socratic method).
24. See, e.g., Guinier et al., supra note 8, at 3 (describing how "many women are alienated by the
way the Socratic Method is used in large classroom instruction" and feel as if their voices
were stolen from them); Elizabeth Mertz, et al., Wat Difference Does Dfference Makehe Challenge
for Legal Education, 48 J. LEGAL Eouc. I, 2 (1998) (unpacking and studying the impact of race
and gender on classroom exchanges and concluding that "race and gender have an impact
on student inclusion in law school classes, but that the patterning is complex, involving the
interaction of a number of other factors.").
Refaiaming the SocraticMethod
develop analytical skills. For others, it is tweaked from its traditional model to
soften the intensity (e.g., volunteer participation, students "on call") and it is
reinforced with professor summaries and reviews. It is also often supplemented
with other teaching techniques such as group work, skills simulations, practice
problems, and professor lecture.25 The technique varies greatly by professor,
class, and institution, but, despite its acknowledged considerable decline in
use, it still persists almost universally.,6
Notably, great innovation in legal education increasingly surrounds the case-
based Socratic method7 Schools built strong clinical programs beginning in
the i96os and continuing to the present for students to represent clients in
legal proceedings under faculty supervision?5 Following the MacCrate report
of 199229 and the Carnegie Report of 2007,30 schools have vastly expanded
skills courses, skills simulations, and skills assessment within the curriculums'
and after graduation.32 The academe has moved to formalize some of these
25. See, e.g., Kerr, supra note 19, at 114 (describing the traditional Socratic method as more
"myth than reality" because modern law school includes "an eclectic mixture of newer
approaches, including toned-down Socratic questioning, student panels, group discussions,
and lectures.").
26. See, e.g., Ford, supra note 15 (noting the decline in the use of the Socratic method).
27. See, e.g., Mary Wood, FLIPPED:ProfModels New Way ofTeaching, UVA LAW. (2012), http://www.
law.virginia.edu/html/alumni/uvalawyer/fi2/flipped.htm (summarizing a professor's flipped
classroom model in which students watched a prerecorded lecture prior to the class meeting
and then participated in more interactive learning while in class); Dan Rodriguez, 7heFlipped
Classroom, WORD ON STREETERVILLE, http://deansblog.law.northwestern.edu/2oi3/og/o6/the-
flipped-classroom/ (last visited Sept. 6, 2013) (stating that the Dean of Northwestern Law
recently discussed the flipped classroom approach and planned expansions of infrastructure
to further support this approach).
28. See, e.g., Fernando Colon-Navarro, Thinking Like a Lawyer: Expert-Novice Differences in Simulated
Client Interviews, 21 J. LEGAL PROF. 107, 109-10 (1997) (explaining that the Socratic method
dominated law teaching until the i96os, when clinical education emerged and changed legal
education).
29. ABA SECTION OF LEGAL EDUC. & ADMISSIONS TO THE BAR, LEGAL EDUCATION AND
PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTINUUM: REPORT OF THE TASK FORCE ON
LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992) (commonly referred to as
"MacCrate Report").
30. CARNEGIE REPORT, supra note 5"
31. Debra Cassens Weiss, NTYU Law School Will Offer New Study and Internship Optionsfor3Is, A.B.A.
J. (Oct. 19, 2012), http://www.abajournal.com/news/article/nyu-law-school-tooffer-
foreign-study-specialty-tracks-and-internships/ (highlighting how third-year NYU law
students will have the option of studying abroad beginning in 2014, pursuing specialized
study in a "professional pathways" program, or spending a semester in Washington, D.C.,
where they will intern in a government agency).
32. Ed Finkel, INCubator-StylePrograms GrowingAmong Law Schools, STUDENT LAW., Oct. 2013, at 28,
available at http://www.americanbar.org/publications/student-lawyer/!o13-I4/october-2o13/
incubatorstyle-programs-growing-among-law-schools.htm (describing CUNY's launch
of an Incubator for Justice project that allows eligible graduates to obtain 18 months of
basic business and practice training); Sherry Karabin, Nonprofit Law Firm Offers Residency
Program to Graduates, AKRON LEGAL NEWS (July 2, 2014), http://www.akronlegalnews.com/
Journal ofLegal Education
Typical Socratic exchanges begin with the question of what happened in the
case or what the issue was in the case. This presents a fictitious context in which
the case begins in the abstract with a set of clearly defined facts and neatly
framed legal issues. The downsides of this appellate case-based approach are
well-documented. In the traditional Socratic approach, students cannot see the
choices that are made by lawyers as they process facts and identify legal causes
of action.35 Appellate opinions in casebooks give students the facts "painlessly
and authoritatively as having been 'found' by the jury."36 Of course, the factual
recitations are "often horribly truncated or even outright eliminated."37 This is
problematic because it means that students never learn how facts are "found"
and never see the "coloring" of facts by outside influences that might have
8
influenced the judge orjury.3
The chart below explains the subtle tweaks to a Socratic exchange that
a professor might make to inject the client(s) perspective into the course
consistently.
EXISTING PROPOSED
Rule-Based Socratic Approach Client-Based Socratic Approach
What are the facts of the case? Who is the plaintiff?
What happened to the plaintiff?
Why did the plaintiff seek counsel?
What is the issue in the case? What recourse does the plaintiff seek?
What cause of action is she using?
How does the cause of action address
her injury?
What is the court's holding? How does the court's holding meet
the client's objectives?
What is the rationale? Why did the court side with (or
against) the plaintiff?
further the interests of wealthy married couples. The Connecticut statute also
harmed other prospective clients, but their interests were not prioritized in this
litigation. This realization might invite consideration of the historic, socio-
economic, and racial implications of the client representation. Before jumping
to a litigation-based strategy, the professor might also inquire if and how the
statute might be modified to better meet the client's objectives, revealing that
litigation is not always the first recourse to address client needs.
Beginning the Socratic dialogue with the client's initial problem and
understanding why she retained a lawyer would help ground the Socratic
dialogue in a lawyering perspective that is more transparent and transferable.
This still illuminates the facts, but it does so utilizing a client-intake lens that
launches a client relationship instead of a fictional appellate lens that is abstract
and rule-based. This approach helps offset the fiction of using appellate cases
to teach rules that are applied to messy indeterminate facts in trial courts. It
begins where all cases begin-with a client-and the facts derive from the client
relationship, extracted with lawyering skills. It also helps students reframe
their law school perspective around the client's perspective(s) instead of the
judge's perspective. It eliminates the "Langdellian notion of education [that]
treats its subject matter as a pre-established set of rules of methodologies that
exists 'out there' in a passive realm separate from and independent of the
students."9 This retains the analytical rigors of the Socratic method, but it
grounds the rigor in a concrete set of tasks and relationships.
These minor tweaks are simply about the framing of the traditional Socratic
dialogue. They can easily be injected in existing teaching materials and notes
with minimal effort. As explained below, doing so would greatly increase
the coherence of the law school curriculum for students, their acquisition of
practice-ready skills, and the inclusiveness of the law school classroom.
b. PositioningStudents as Attorneys
The corollary to the client-based focus is the students-as-attorneys
focus. The typical Socratic dialogue is outcome-based. It is focused on the
outcome of cases in the abstract. What argument wins? What is the holding?
Refraining the dialogue around the work that led to certain client outcomes-
legal research and other lawyering skills-would create more coherence in the
legal education curriculum, more practice-ready lawyers, and more inclusive
and inviting classrooms.
By positioning the client at the center of the Socratic dialogue, students are
instead called upon to lawyer on behalf of that client using governing authority.
Both practitioners and law teachers agree that current instruction of
legal research is not as effective as it needs to be to prepare law students for40
practice, although they may disagree regarding the underlying reasons.
While the ubiquitous presence of computer-assisted legal research has likely
exacerbated these issues, complaints regarding the instruction of legal research
have existed since law schools began teaching legal research. Legal research
is generally introduced as a component of a stand-alone research and writing
skills-based course in the first-year curriculum. 4I It may at the students' election
be supplemented with upper-level courses, but such advanced coursework is
rarely required or sought.42 Students often find it less stimulating than their
other course offerings,43 and inflate their sense of research skill mastery so as to
undermine their perceived need for instruction.
The Socratic dialogue might inject some of the following questions to
reframe it around a research-based approach:
40. See Barbara Glesner Fines, Out of the Shadows: Wat Legal Research Instruction Reveals About
IncorporatingSkills Throughout the Curriculum, 2013 J. Disp. R-ESOL. 159, 163 (2013) (summarizing
an LSAS study concluding that most hiring partners consider competent legal research
essential for new graduates and roughly half indicated that law schools need to do more to
train law students in effective and efficient legal research); Yasmin Sokkar Harker, "Information
is Expensive": BuildingAnalytical Skill into Legal Research Instruction, 1o5 LAw LIBR. J. 79, 80 (2013)
(documenting increasing dissatisfaction among judges, attorneys and law-firm librarians
with the researching capabilities of new lawyers and law students); Sarah Valentine, Legal
Research as FundamentalSkill: A ifeboatfor Students and Law Schools, 39 U. BALT. L. REv. 173, 173-74
(2oo9) ("Beyond laments about the lack of general lawyering skills, the bench and bar also
routinely highlight the inadequacy of the legal research skills of recent law graduates.").
41. See Valentine, supranote 40, at 203 (highlighting concerns with teaching legal research as part
of a first-year writing course because the writing assignments are selected to help students
grasp concepts easily and there is "little chance for students to grapple with open-ended
research problems that replicate the indeterminacy of the law.").
42. Matthew C. Cordon, Beyond Mere Competency: Advanced Legal Research in a Practice-Oriented
Curriculum, 55 BAYLOR L. REv. ', 2 (2003) (law schools have placed more emphasis on
"preparing students to conduct legal research by placing more emphasis on research courses
in their curricula" in response to criticisms of existing instructional methods); Valentine,
supra note 40, at 187 (noting that law schools are starting to "address the shortcomings of
first year legal research education" with advanced legal research courses, but they are rarely
mandatory and enrollment is limited).
43. Paul Douglas Callister, Beyond Training: Law Librarianship's Quest for the Pedagogy of Legal
Research Education, 95 LAw LIB. J. 7, 1i (2003) ("Although the literature is replete with 'new'
methodologies for [legal] research instruction, none of it has demonstrated that even the
best taught and most innovative of legal research courses can compare with the excitement
and intellectual interest that often can be found in the 'substantive' first-year courses.").
JournalofLegal Education
EXISTING PROPOSED
Outcome-Based Socratic Precedent-Based Socratic
Approach Approach
What was the court's holding? What precedent would the lawyer
have found had she researched the
issue after the lawyer was retained?
Various hypotheticals to test the What are the strengths and limits of
limits of the holding. the precedent?
How confident would the lawyer be
in predicting a legal outcome?
How would the defendant marshal
the same precedent?
How does the court use the
precedent here?
What is the outcome of the case?
How will the precedent in the case
be used going forward? What are its
limitations?
Students might then collaboratively assess the likelihood of success for the
clients. This exercise quickly reveals the absence of clear supporting precedent
and the absence of an unequivocal constitutional hook. This assessment,
in turn, positions students to thoughtfully and objectively discuss how the
majority, concurrences, and dissent actually marshaled the precedent to
support their varied positions in Griswold.
This depth of analysis is particularly beneficial for paradigmatic iconic
cases that shift the landscape in unique ways. The telltale indication of the
appropriateness of this technique is embedded in existing casebooks' areas
of emphasis. Where existing casebooks have taken the time to provide
historical background and retain internal citations, this technique would
bring the historical research and precedent to life in a simulation that allows
46. Samuel D. Warren & Louis D. Brandeis, 7he Right to Privacy, 4 HARV. L. REv. 193 0890).
JournalofLegal Education
the students to retain a more transferable research skills. 47This research focus
will dramatically strengthen students understanding of legal research and its
relevance to law practice and synergize the existing instruction of legal research
within the law school curriculum.48
47. See Valentine, supra note 40, at 200 (describing how legal research is "directly linked to legal
thought, and should be taught as the complex set of skills it entails").
48. See id. at 2!6 (concluding that legal research needs to be rebuilt to "increase student success,"
"support bridges to other first year courses," and "help create the holistic view of education").
49. Newton, supra note 2, at 84 (concluding that law school courses should emphasize problem-
solving, risk management, and strategic thinking, not just the pedagogical "think like a
lawyer" training).
50. See Pistone & Hoeffner, supra note 4, at 2oi (describing how the "system-wide concentration
on an extremely limited range of legal skills has assured mediocrity in legal education.").
51. Rubin, supra note 6, at 616 (summarizing how Langdell believed that "real law was common
law, and that only 'real' law should be allowed in the crucial first-year program.").
5!2. Rubin, supra note 6, at 615-31; see also Valentine, supra note 40, at 174 (noting that "all law
students need training in statutory and regulatory research earlier and at a level not often
undertaken in the past.").
Reframing the Socratic Method
EXISTING PROPOSED
Outcome-Based Socratic Approach Skills-Based Socratic Approach
Triggers to Skills Sensitization Lawyering Skills Sensitization
Jury trial Role of narrative and storytelling to
achieve a favorable client outcome
Damages Role of settlement considerations
This skills sensitization need not occur in every case or for every skill, but
the general goal should be for students to leave a course in family law, criminal
law, or environmental law with a sense of the skills necessary to succeed in
these fields. Absent any conscious skills sensitization, for example, a torts
student could leave a course seeing tort law through the lens of appellate
law, which distorts the critical role of fact gathering, client narrative, damage
calculations, and settlement considerations. Or a family law student could
leave a course thinking that family law is about litigation, without seeing
the central role of contracts, mediation, negotiation, financial valuation, and
client counseling in the field. Other skills that could receive more sensitization
within the larger Socratic dialogue would vary by discipline, but might include
drafting, negotiation, mediation, administrative processes, local rules, time
management, professionalism, and more. While it is not feasible to teach the
skills fully, great value would come from sensitizing students to the concepts,
terminology, and role of broad lawyering skills to inform their future course
JournalofLegal Education
selection, shape the professional job search, and connect the larger pieces of
law school into a coherent whole.53
53. See Rubin, supra note 6, at 658 (describing how law school should progress from the first year
to the third because education is a development process). "The first year should be broadly
contextual; it should provide students with a general picture of the legal system, expose
them to basic legal materials, and introduce them to the basic modes of legal thought." Id.
Reframingthe Socratic Method
important point indeed. Students may seek more information to consider the
merits of the case and realize that appellate opinions are very thin on facts and
human context.
Students can then do some research planning and brainstorming. Inevitably
students' first instincts are to jump to the Constitution as the governing
authority. Taking the time to develop a more rigorous research methodology
like the one employed by Ms. Reed's lawyer will develop students' lawyering
skills.54 First, her lawyer would likely have consulted the probate order and
the state administrative statutes before the Constitution because they were the
basis for the underlying probate court's decision. The Idaho probate statutes
worked in tandem. The first statute required probate courts to select the father
or the mother as the possible administrator from a list of eleven classes of
persons. 5 The other statute stated "of multiple individuals equally entitled,
males must be preferred to females." 6 These materials would reveal at least
two revelations to the students: (i) that the distinctions in the statute were,
in fact, based on gender, and (2) that the probate court had no discretion
under this statutory scheme. These revelations generate discussion regarding
the legal remedies available to challenge a discriminatory legislative scheme
on the basis of gender.
Only after students explore the state statutes and their interpretive case
law would the United States Constitution be a likely source of authority to
address Sally Reed's client objectives. Even within the Constitution, the Equal
Protection Clause is not the clearest constitutional hook historically. Rather,
using the notes and context already provided in the casebook, students as
researchers on behalf of Ms. Reed can explore the viability of the Privileges
and Immunities and Equal Protection clauses of the s4 th Amendment,57 the
i9 th Amendment, 5 and the proposed Equal Rights Amendment as possible
vehicles to challenge these probate provisions. This exercise will allow the
instructor to move efficiently through a considerable amount of case precedent
54. See Valentine, supra note 40, at 204 (current pedagogy "often imbue[s] students with a
dangerous naivety in the face of the ever-growing wave of information they will be expected
to find, sort, manage, and understand on behalf of their clients.").
55. IDAHO CODE ANN. § 15-312 (repealed 1972), citedin Reed v. Reed, 404 U.S. 71 (1970.
56. IDAHO CODE ANN. § 15-314 (repealed 1972), cited in Reed v. Reed, 404 U.S. 71 (1971).
57. U.S. CONST. amend. XIV, § i ("No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States . . . nor deny to any person
within its jurisdiction the equal protection of the laws.").
58. U.S. CONST. amend. XIX ("The right of citizens of the U.S. to vote shall not be denied or
abridged by the U.S. or by any state on account of sex.").
Journalof Legal Education
viable, but "the principle was viable" and "she felt strongly."" This difficult
precedential framing is consistent with many iconic cases, and this realization
for students can inspire new lawyers.
Thus, there must be something more going on here. Indeed the client
narrative is far more compelling than the book would suggest. 9 Sally Reed had
a stormy relationship with her ex-husband, Cecil. She had two miscarriages
before she adopted Richard ("Skip") over Cecil's objections. When Skip was
three or four years old, the father deserted the family. Sally had to support
herself by caring for disabled veterans in her home. Skip worked mowing
lawns and doing other odd jobs to raise money for college. By the time Skip
was sixteen his father had remarried and had two grown stepsons. Skip was
reluctant to go to his dad's for visitation. On the day of Skip's death, he
was at his dad's for visitation. He called home asking to return to Sally's
house. She persuaded him to stay. The police later informed her that Skip
shot himself with his father's hunting rifle in the basement of his dad's house.
The combined value of his estate was less than $1,ooo, but it was money that
Skip was saving for college. This client narrative, like many others for iconic
cases, is readily available in the casebook or teaching materials and illuminates
critical context to how precedent was marshaled to a successful legal victory.
After reviewing the full facts and historical circumstances, students can
then explore and discuss the Reed legal advocacy. What arguments did the
lawyer make? This research-driven analysis of Reed sets up the conclusion that
after 103 years of upholding such sex-based classifications, the court's decision
to unanimously strike down this administrative statute was extraordinary.
Through this research-driven and skills-based analysis, students will see
the role that legal research, predictive legal advice, client counseling, client
storytelling and narrative played in the successful lawyering by Ms. Reed's
lawyers.
This is just one example of how the refrained Socratic method might work
for iconic cases. The next section explores some of the benefits of refraining
the Socratic method.
69. Id.
70. See Cavasos, supra note 6, at 1128-29 (chronicling the ABA's work to reform the link between
legal education and practice beginning with the 1992 MacCrate report, stressing that law
schools needed to reinstate lawyering skills into the curriculum).
7. Ethan Bronner, Law Schools'ApplicationsFallasCosts Rise andJobsAreCut, N.Y. TIMES,Jan. 31, 2013,
at Ai ("Law school applications are headed for a 3o-year low, reflecting increased concern over
soaring tuition, crushing student debt and diminishing prospects of lucrative employment
upon graduation."). Low enrollment has caused layoffs and speculation regarding law
Journal ofLegal Education
7
high tuition costs, weak job placement, depressed salaries,73 and scathing
criticism from insiders and outsiders alike. Much of the work in response to
these reform movements, however, has occurred around the Socratic method
and on top of the existing Socratic approach. Modern reforms should also
address the Socratic method itself, recognizing pragmatic limitations.74
school closures. See Ashby Jones & Jennifer Smith, Amid Falling Enrollment, Law Schools are
Cutting Faculty; Tims Send Grim Message to Elite Group Long Shelteredfrom Economy's Ups and Downs,
WALL ST. J. ONLINE (July 15, 2013), http://online.wsj.com/news/articles/SBIoooI424I 7 88 7
323664204578607810292433272 (describing a rise in layoffs, buyouts, early retirements, and
canceled contracts for non-tenured faculty, particularly for middle- and low-tiered schools);
Adam Cohen, Just How Bad OffAre Law School Graduates?, TIME (Mar. 1I, 2013), http://ideas.
time.com/2oi3/o3/II/just-how-bad-off-are-law-school-graduates/ (describing how some law
schools have reduced class sizes and noting that there has been speculation of closing law
schools).
72. See Williams, supra note 2, at 393-94 (describing how law schools' costs have risen and job
placement has declined).
73. Elizabeth G. Olsen, Law School Jobs FalloutApproaches New Low, FORTUNE (Sept. II, 2013, 2:10
PM), http://fortune.com/oi 3/o9/Ii/law-school-jobs-fallout-approaches-new-low/ ("With
the legal job market foundering, fewer students are willing to take on the significant cost
of a juris doctorate, and the waterfall of tuition dollars is slowing."); Bronner, supra note
71 (several law schools, such as the Vermont Law School, have begun layoffs and buyouts
of staff because of a nationwide decrease of applicants as students are doing the math on
increasing tuition and an unimpressive prospective job market).
74. CARNEGIE REPORT, supra note 5, at 187-88 (noting how the case method does not consider the
complexity of people, situations, social needs, moral implications, etc.).
75. See Cavasos, supra note 6, at 1156 ("The pedagogy of the first year of law school is that
students must study the foundational areas of law and master issue spotting" like a "boot
camp" submersion into a "new world complete with its own languages: Latin and legalese.").
76. See Newton, supra note 22, at 81 (explaining that law students graduate with only a broad and
basic understanding of common legal careers, in addition to whatever specific knowledge
they happened to have gained during internships, externships, and summer jobs).
Reframing the Socratic Method
In this model, skills mastery is often separated from doctrinal rule mastery.77
Doctrinal rule mastery occurs in the abstract without a client to whom the
rules apply. Legal outcomes just exist and they do not affect actual clients with
actual problems. Very few students can successfully piece together the various
components to see a coherent training for the practice of law or a holistic
8
course of study.7
The three techniques described above would greatly improve the continuity
and coherence of legal education for law students. It would position the
Socratic method to simulate for students the lawyering process and see it as a
holistic curriculum involving clients, research, and skills in every component.79
This makes the material more relevant and dynamic for studentsOs
Instead of studying concepts in the abstract, they can see the client as central
to the entirety of legal education and the centrality of legal research to client
representations. They would see how facts, history, and policy can marshal
"bad" facts and precedent to a positive client outcome. They would see how
the various skills that are taught in upper-level courses are interconnected to
all subject matters.
This would help make students more effective when selecting courses or
setting professional goals in the upper-level curriculum. It would shift the
focus from "do I want to be a tort lawyer or a contract lawyer?" to "do I
like drafting, objective or persuasive counseling, fact-intensive lawyering, or
complex research?" Finally, it would add more coherence and continuity to a
student's course of study by syncing up first-year and bar courses with other
experiential and innovative programs.
77. See id. at 81 (concluding that most law students do not have a realistic understanding of what
most lawyers do or how to be a lawyer).
78. See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. LEGAL EDUc. 591,
596 (1982) (stating that law schools teach rudimentary essential skills in "a way that almost
completely mystifies them for almost all law students").
79. See Newton, supra note 22, at 91 (arguing that the typical law school curriculum today fails
to sufficiently develop "learning for transfer," which "refers to the extent to which one is
able to transfer skills and knowledge from one context to another"). Adult learning in the
context of legal education strongly supports the "movement away from empty mimicry of
the traditional casebook method and Socratic Method," which have failed to provide law
students "systematic training in effective techniques for learning law from the experience of
practicing law." Id.
8o. See Fines, supra note 40, at i 6 o (highlighting how the Carnegie Foundation recently suggested
that law schools need to develop a "shadow structure" to complement the Socratic method
consisting of clinical or practice experience of lawyering, which is the "contextualizing of the
classroom's legal analysis and doctrine.").This enhances the teaching of legal knowledge and
analytical skills by "placing analysis and doctrine in the context of real-world applications."
Id.
JournalofLegal Education
b. 2rainingPractice-ReadyLawyers
Reframing the Socratic method would also help prepare practice-ready
lawyers consistent with critical challenges from various stakeholders.' Students
would be more practice ready in their client focus, their understanding of
the relevance of research, and their sensitization to the role of broad legal
skills. Designing the modern Socratic method around the professor-student
interaction achieves little in preparing practice-ready lawyers.12 Some critics
have stated that good Socratic teaching is about the students and bad Socratic
teaching is about the professor and how smart she is. 8 3 I argue that good
Socratic teaching should be about neither the professor nor the student, but
the client(s).
The Socratic method brings great repetition, consistency, and continuity
to the consumption of legal rules across subject matters. 4 By reframing the
Socratic method around the clients in the cases, their competing objectives,
and their quest to find legal remedies to solve actual problems, students see
the client as central to every aspect of law school. 85 They see the critical work
that lawyers do to bridge client harms to actionable causes of action. This
approach debunks the myth that a client arrives in an attorney's office with a
clear "torts" problem or "criminal law" problem.
81. See, e.g., CARNEGIE REPORT, supra note 5, at 78-84 (describing how law schools, compared
with other professional educations, do not train students for professional practice); David
Segal, What They Don't 7each Law Students: Lauyering, N.Y. TIMES, Nov. 19, 2oi, at Ai, available
at http://www.nytimes.com/2oIi/ii/2o/business/after-law-school-associates-learn-to-be-
lawyers.html?pagewanted=all&.r=o (criticizing law schools' emphasis on the "theoretical
over the useful" and antiquated teaching techniques that leave students unprepared to
perform basic professional tasks in their field); A. Benjamin Spencer, The Law School Critique
in HistoricalPerspective, 69 Wasti. & LEE L. REv. 1949, 1958 (2012) (concluding that modem
law schools are not designed to prepare students for practice upon graduation because
they focus mainly on legal doctrine and place very minimal emphasis on core competencies
needed to be a successful lawyer); Williams, supra note 2, at 392-93 (explaining that judges
and employers alike have concluded that law school graduates leave school unprepared to
practice law and concluding that students need to be ready to hit the ground running upon
graduation).
82. See generally Pistone & Hoeffner, supra note 4, at 226 (chronicling the history of critics' arguing
that legal education does not train lawyers for practice and noting that after a century of this
critique, many students will still complete eight-five to ninety credit hours with only three to
five hours' teaching skills).
83. Stephen L. Carter, Review Essay, The Emperor of Ocean Park: The Quintessence of LegalAcademia, 92
CALIF. L. REv. 585, 591 (20oo4) (explaining how it is a breach of trust between the student and
professor to ask questions for which no answer exists).
84. STUCKEY ET AL., supra note 1o, at 142 (noting that "it takes time to develop expertise in legal
problem-solving," which can be developed only by actually working through the process
of resolving problems "as against the hard world of consequences, of repeated success and
failure, and some inductive efforts at understanding what works and what does not, what
seems important and what does not.").
85. See CARNEGIE REPORT, supra note 5, at 75-78, i85-88 (explaining that law schools teach
students to think like students and competitive scholars rather than attorneys engaged with
the problems of clients).
Reframing the SocraticMethod
Students will therefore graduate more prepared to tell the clients actual
answers to actual questions in search of actual results. Far too often the
Socratic dialogue leaves students with an exaggerated sense of indeterminacy
because it values the intellectual exchanges built around the "maybe" answer.8 6
This "maybe" approach complicates the transition to clinical lawyering. In-
class simulations and problem sets can also be problematic because they are
neatly structured with only clearly relevant information provided.5 7 Existing
approaches position students to graduate unable to translate indeterminacy
into meaningful client advice. The refrained Socratic method would bridge
indeterminate precedent to meaningful client counseling.
Students will also graduate more sensitized to the heavy lifting of legal
research in client lawyering. Typical law students struggle to learn legal
research because they are overconfident in their research abilities and they
struggle to see the importance of legal research to their practice success. They
likely recognize that this is a skill that they need prospectively when they are out
in practice or writing an upper-level paper, but they likely see the skill set as
largely divorced from the daily law school rule mastery of their first year.
Refraining the Socratic dialogue to inject a research-based perspective
would help students to transition from law school to practice more effectively.
They would see that the first step of every client representation after client
intake is competent and comprehensive legal research. The authority cited
within the case-based Socratic textbooks provides the perfect springboard to
this practice-ready sensitization. Doctrinal faculty can push students to take
that additional step between "what is the issue" and "what is the outcome"
to see how lawyers marshaled precedent to yield a particular result. Students
would regularly and consistently analyze the role of hierarchy of authority.
They can consider how rules change as lawyers marshal changing social,
political, and economic conditions to achieve new legal solutions that were
previously discarded.
Finally, skills sensitization throughout the Socratic dialogue can help
students see the holistic range of tasks that lawyers complete.88 It would
alleviate the distorted overemphasis on appellate cases and litigation. It
would help students to see the predictive, persuasive, and preventive roles
86. Carter, supra note 83, at 593-94 (criticizing the tendency of professors to "dwell too long on
indeterminacy" leaving students "without the recognition that most legal results are actually
relatively predictable (and not uniformly unjust) the truly significant lessons of lawyering
are lost.").
87. Fernando Colon-Navarro, Thinking Like a Lawyer: Expert-Novice Differences in Simulated Client
Interviews, 21 J. LEGAL PROF. 107 (1997) (real-world problems present relevant and irrelevant
information).
88. See, e.g., Newton, supra note 22, at 84-85 (concluding that the typical law school curriculum is
focused disproportionately on litigation topics and needs to reflect what lawyers actually do
in their practice area, including business, transactional, and regulatory perspectives, as well
as practical skills like courtroom navigation, client counseling, negotiation, and practice
management).
JournalofLegalEducation
that lawyers play. It would help students to see lawyers active in legislative,
judicial, and executive branches.
V. Conclusion
Legal education is struggling and stagnating. Dynamic and exciting reforms
are underway at law schools throughout the country, but these reforms are
built around and limited by the ancient architecture of the case-based Socratic
89. Michael T. Gibson,A Critique ofBest Practicesin Legal Education:Five 7hingsAll Law Professors Should
Know, 42 U. BALT. L. REv. I, 44 (2012) (noting that while faculty expect that all students listen
to and think carefully about all peer participation, Socratic dialogue directly affects only one
student at a time, and students know the odds of having to speak in class are slim).
o
9 . Morgan, supra note 19, at 162 (arguing that the Socratic method models competition, not
cooperation, "reminiscent of a court-the judge speaks directly to the prosecution and
defense lawyers, not they to each other").
i
9 . Id. at 155 (concluding that one of the "most impressive aspect[s] of the law school milieu is
the unpleasant quality of interpersonal relationships among students."). Morgan argues that
the professor has to "take responsibility for what occurs in the classroom and cannot rely on
student activity outside to remedy the classroom experience." Id.
92. See Newton, supranote 22, at 89-9o (encouraging the use of discussion to engage students and
help them retain information, develop problem-solving and thinking skills, and understand
diverse viewpoints, and noting that it is more motivating and engaging).
93. See Rosato, supra note 14, at 43 (explaining that legal education need not be so isolating or
marginalizing, and that it can be "empowering").
94. Morgan, supra note 19, at 154 (criticizing the lack of student-student interaction).
Refraining the Socratic Method
method approach, which still persists and endures.95 Refraining the Socratic
method in a client-based, research-based, and skills-based approach would
help catalyze other innovations in legal education.96 It would create more
client-conscious and practice-ready graduates learning in more inviting and
inclusive classrooms.
95. See Robert J. Rhee, On Legal Education and Reform: One View Formedfrom DiversePerspectives, 70 MD.
L. Riv. 310, 327-98 (2011) (noting that very little has changed in the past several decades of
law teaching, particularly in the first-year curriculum: some form of Socratic dialogue in
conjunction with the traditional law school casebook method dominates).
96. See Pistone & Hoeffner, supra note 4, at 2 ("The only way forward is to innovate.").