TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Saturday, January 31, 2015

The Betrayal of Socrates in Legal Education

SocraticDavid Barnhizer (Cleveland State), The Betrayal of Socrates:

My argument here is that there is a stark disjunction between the Socratic ideal and the reality found in the First Year of law school at nearly all institutions. The underlying assumption is simple—the initial foundational phase of an activity is the most important. It provides the basis for all that follows. As such, the most intense and sophisticated methods should be applied at the foundational level so that the more “advanced” learning rests on a deep intellectual base. ...

[I]n the midst of all the talk about producing “practice ready” law graduates I argue that the single most important “core”, “foundational” or “meta” skill we teach in law school is the heightened ability to think with analytical precision and integrative strategic skill aimed at problem solving and avoidance along with innovative opportunity creation. I would even go so far as to conclude that law teachers of several generations ago who stated that the goal was to teach law students to “think like lawyers” were absolutely correct in concept even if they (and we) didn’t know exactly what the concept meant, how to do it properly or what “substances” ought to make up the material on which the processes of thought were exercised to produce the desired results. ...

The size of classes in the first year constrains the teacher’s ability to apply active learning methods to the fullest range of students in the most consistent manner. The transfer of information in large bundles, with state-of-the-art expertise, and high economic efficiency in terms of the numbers of students per teacher are all appropriate educational elements when applied within their fields of greatest utility as determined by relatively limited educational goals [transfer of masses of data] and the sophistication and experience of the participating students. The First Year of American legal education has, however, long purported to be less oriented toward the communication of data to new law students than to teaching new students at legal education’s graduate school level how to “think” in the doctrines and nuances of the law. This includes analyzing, distinguishing, refining, differentiating facts from opinions and assumptions, arguing and more.

Achieving these challenging educational goals consistently and for all students requires a dynamic considerably different from lectures. It demands an “analytic intimacy” involving direct, frequent and intense engagement by students with their teachers. This involves the combination of method and scale. Large classes in which the interactions are vicarious and infrequent simply are inadequate educational vehicles for many law students. Those students never achieve the “foundation” we are responsible for providing. The dilemma is that First Year law school classes in American law schools are not primarily about information transfer. Of course information transfer is an important element because our minds need a foundation of data in order to analyze anything. But the professed dominant goal of the First Year is to teach students how to think, question, discriminate, formulate questions and above all, learn how to discover what they need to know in relation to solving problems.

If the “think like a lawyer” educators were serious about what they asserted then law school would be inverted from its traditional form. The First Year of legal education would be mainly comprised of small classes of 20-25 students and the upper levels mainly devoted to larger information transfer classes with an added core that we could call “technical skills” implemented through intensive offerings. The current structure of American legal education is methodologically irrational from the perspective of achieving the goal of teaching new law students how to think about law, legal doctrine, the legal profession, legal strategy and problem solving, i.e., to “think like lawyers.”

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