Written by Oriana Carravetta, Albany Government Law Review Member
Fictional characters like Professor Kingsfield of The Paper Chase have contributed to an image of the quintessential law school professor who puts a student in the “hot seat” and delves into what seems like an intimidating and almost torturous line of inquiry. This pedagogical technique is commonly known as the Socratic method: one of the defining characteristics of the American legal education system, almost universally used during the first year of law school. At the crux of this method is a focus on having the students extract and explore legal theory for themselves. It is often viewed as a coaching method that, when executed properly, assists to develop a student’s ability to think critically and present ideas in an effective manner.
Without a doubt, this pedagogical technique puts an overwhelming amount of pressure on students to prepare well for class, think fast, and have no choice but to speak publicly. According to the authors of Educating Lawyers: Preparation for the Profession of Law, “the case-dialogue method is a potent form of learning-by-doing. As such, it necessarily shapes the minds and dispositions of those who apprentice through it.” The unfortunate reality though, is that the Socratic method has been losing its force over the last thirty years, as it has now been viewed more as a symbol of traditional legal education rather than a classroom technique. American legal institutions are no longer placing any sense of value on understanding its own history. That is to say, embracing history in its pedagogical practice is no longer viewed as an important tool in preserving historical continuity.
There has been ongoing debate between the so-called “traditionalists” and the “pragmatically oriented” legal education reformers as to whether the Socratic method is effective, and if it should continue to be used as the primary teaching method in law school classrooms. First, critics argue that students learn differently. What works for one student may not necessarily work for another; hence, the results of using this dialogue-based tool are sporadic because it “emphasizes certain steps of the cognitive process while ignoring others . . . .” Moreover, it does not provide students with feedback to correct their shortcomings in their attempt at a critical analysis. Second, professors sometimes get carried away during the discourse and often will reprimand students (for lack of preparedness or for simply missing the point) in such a way that is both embarrassing and harsh. The argument then, is that the improper use of the Socratic method can be psychologically abusive to students; the worry of being called on can become “incapacitating.” Third, as stated in the Carnegie Foundation Report, is that the method focuses too much on cases and not enough on clients. The “true work” of a lawyer has to do with solving the problem of clients and not legal theory, and hence the Socratic method is inefficient in teaching doctrinal rules.
However, these arguments seem to highlight the ignominy of (i) the feeble student who cannot handle the pressures that are tied with first year law school, and (ii) the indifferent student who decided to go to law school for the wrong reasons. A Harvard Law professor comments, “‘[m]odern sensibilities . . . make it much harder for classes to accept the pressure. Students won’t tolerate it; a resentment develops.” Simply put, modern society has become soft. It seems that students who are utterly opposed to tough love by their professors are going to their administration furiously complaining about classroom tactics.
The reality is that “‘[n]o one has ever died because of the Socratic method . . .” and the added pressure is pivotal in getting used to what the profession is all about. Thus, to disfavor a practice that has been respected for centuries, precisely because of its tenacity, would completely undermine the law school learning process and make it less rigorous. Another Harvard Law professor reiterates that pure lecturing (which it seems these students would prefer) would mean “the lecturer pumps laboriously into sieves. . . .It treats the student not as a man, but as a school boy reciting his lines.” Law school has a reputation for being so difficult because the professor is not going to hold the student’s hand from start to finish; it is presumed that students already have acquired the skills necessary to adapt to a new world of academia. It would be entirely elementary to expect the professor of higher education to adapt to every student’s individual needs.
In light of the argument that the Socratic method is inefficient because it teaches theory without any focus on “practical” skills necessary in advising clients, it seems this argument reflects the views of those students who attend law school as a default degree. Ironically, it is becoming common that college graduates who don’t know what they want to “do with their lives,” are applying to law schools because they have a false perception that a Juris Doctor is a relatively easy degree obtain, which results in a good salary and instant status. These students have little interest in practicing law; it seems rather, they simply want to learn black letter law, basic procedure, and what they need to know for the final exam.
If we were to accept the idea that the entire law school experience is about learning what is most practical in day-to-day lawyering, then “the study of law is really the study of judges and lawyers, and the apprenticeship model of law teaching is optimal: learn how to influence judges by watching legal proceedings, and whatever you learn (e.g. not to wear red neckties in court . . .)) is what you need to know.” Learning theory before practice, by means of the Socratic method, is at the hallmark of the intellectual tradition of legal education. It makes the law school classroom the starting point, as the challenging forum that turns the fresh young minds of first year students into sophisticated and empowered practitioners of today. If law school only taught practical tactics in lawyering, with no theoretical or philosophical premise to conceptualize the historical underpinnings of what the law is today, law students may as well earn an online degree and call it a day.
Let’s not forget that law school is a three-year journey, the first year of which is strategically carved out for core classes that form the fundamental basis for the remainder of a successfully completed Juris Doctor. To enforce the Socratic method to be utilized in first year classes in no way detracts from ones law school education. There is plenty of time to acquire practical skills that are necessary in day-to-day lawyering in the subsequent two years. Classes are available to students during their 2L and 3L years that offer the “essential practical skills” that reformers seem to be fixated on. Moreover, to assert that the Socratic method in no way provides students with practical skills is wholly ignorant: it prepares students for trial, for dealing with the pressures of a hot appellate bench, or a hardcore trial judge, and even learning how to speak properly as an associate to a senior partner.
Some legal scholars believe that just because the legal academic institution is hesitant to adopt “progressive” methods means that the Socratic method is “archaic” and devoid of any true significance. This belief is alarming. The Socratic method has been used for over centuries and there is a reason for it: the risk of being questioned invokes classroom participation in such a vicarious way that it explores the strengths and weaknesses of the student’s legal arguments. These students are more apt to learning legal analysis by actually doing it, cold, with questions thrown at them rapid fire, strengthening their oral dialogue. In essence, if a student finds the material to be so intellectually challenging that being questioned about it Socratically contributes to overtaxing psychological pressure, chances are, that student will have a hard time practicing law. The reality? “If you can’t stand the heat, get out of the kitchen.”
 John Jay Osborn Jr., The Paper Chase (1970).
 Joseph A. Dickinson, Understanding the Socratic Method in Law School Teaching After the Carnegie Foundation’s Educating Lawyers, 31 W. New Eng. L. Rev. 97, 104–05 (2009) (explaining that the professor calls on a student at random and begins a discourse with that student in front of the rest of the class, in the form of continuous questioning aimed at solving the legal problem at hand); See also, Orin S. Kerr, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. 113, 132 (1999).
 Dickinson, supra note 2, at 104–05.
 Id. at 107 (quoting William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007)).
 Kerr, supra note 2, at 114–16.
 Ryan Patrick Alford, How Do You Trim the Seamless Web? Considering the Unintended Consequences of Pedagogical Alterations, 77 U. Cin. L. Rev. 1273, 1275 (2009) (explaining that there is a more historical rationale for this continuing tradition: the primary role of the Socratic method is that it derives principles of law from cases and “casuistry” on the basis of these holdings that are ten centuries old; It was initially developed during the eleventh century Renaissance and in turn, brought back scholasticism and Western legal tradition.)
 See Kerr, supra note 2 (“Traditionalists” derive their style from the Socratic Method).
 Alford, supra note 7 (Pragmatically oriented groups are legal reformers who seek to move away from purely Socratic teaching).
 See Kerr, supra note 2.
 Benjamin V. Madison, III, The Elephant in Law School Classrooms: Overuse of The Socratic Method as an Obstacle to Teaching Modern Law Students, 85 U. Det. Mercy L. Rev. 293, 301 (2008).
 Kerr, supra note 2, at 118.
 Alford, supra note 7, at 1283.
 Kerr, supra note 2, at 119.
 Id. at 127.
 Id. at 127–28.
 Madison, supra note 11, at 303–04. (Opponents of pure Socratic method teaching style believe that academia should shift away from Socratic style teaching, and move more toward purely lecture-based teaching, or using more fashionable teaching techniques (e.g. using maps, power points, in-class assignments, group work, handouts, presentations, and quizzes)).
 Alford, supra note 7, at 1319.
 James B. Levy, As a Last Resort, Ask the Students: What They Say Makes Someone an Effective Law Teacher, 58 Me. L. Rev. 49, 63–64 (2006).
 Alford, supra note 7, at 1321.
 Core classes meaning: Contract Law, Federal Civil Procedure, Tort Law, Property Law, Constitutional Law, and Criminal Law.
 These classes include: negotiation, client counseling, advanced legal writing, trial advocacy, among others. In addition, most law schools offer students an opportunity to work in pro-bono clinics and to do field placement work. Such experience gives law students an opportunity to do “real life” lawyering and gain “hands on” experience under the supervision of an attorney or authorized staff person.
 Madison, supra note 11, at 304.
 Alfrod, supra note 7, at 1324–25.
 Kerr, supra note 2, at 116–17.