America’s system for training lawyers is in crisis. Law students pay exorbitant prices for an education that does not prepare them to actually practice law. The legal degree, a J.D., is a professional degree. When did a professional education system become so divorced from the profession it supports?
As meticulously detailed in a report last year by a special committee of the Illinois State Bar Association, the “inadequate ‘practice ready’ skills of new graduates” have apparently contributed to “the reality that only 55 percent of the law school class of 2011 had full time, permanent jobs that required a J.D. nine months after graduation.”
Unfortunately, law students do not have the time or the bandwidth to learn “practice ready” skills, because they are too preoccupied with surviving the Socratic method: A law professor randomly calls upon one student in a crowded lecture hall and asks the student a series of questions about a case that the class had read.
“Ms. Liu, what was the procedural posture of this case?”
“Mr. Fitzgerald, did Pierson have possession of the fox?”
“Mr. Smith, how would transaction costs affect the defendant’s decision?”
The professor only asks questions, giving no answers and conveying no information. If in a combative mood, the professor cross-examines the student and attempts to show that the student does not actually understand the case. If feeling merciful, the professor asks a few leading questions that gently prompt the student to anticipate the point the professor has in mind. The process is repeated with other students for the duration of a class.
Among practicing lawyers, the Socratic method is generally regarded as a hazing ritual, a rite of passage that fosters camaraderie among members of the bar. The method also makes its participants feel that they are the recipients of a noble tradition that traces its roots to, well, Socrates. Cherishing their memories of humiliation and abuse at the hands of law-school professors, lawyers sometimes feel that the Socratic method marks their membership in an exalted professional fraternity.
The Socratic method was introduced to American legal education in the 1870s by Christopher Columbus Langdell, at Harvard Law School, who believed that law students learned best by inductive study of actual cases, instead of by rote memorization. To guide them, Langdell shifted the focus from applicable legal skills and hands-on experience to a deep understanding of legal principles and theories.
While arguably useful for training scholars who find legal theory more fascinating than the actual practice of law, the Socratic method now epitomizes the failure of American legal education to equip law students to practice law. It bears no resemblance to the actual practice of law and imparts no concrete skills to law students.
Defenders maintain that even if the Socratic method is far from the most efficient way of conveying information, it teaches law students fundamental intellectual skills, such as the ability to think critically, develop arguments, and rebut opposing arguments. But those same skills can be taught more effectively through mock trials and appeals, legal-writing exercises, mock transactional negotiations, and clinical legal work.
The Socratic method is an ineffective teaching tool in large part because it engages only one student at a time. In a 2003 law-review article, Robin A. Boyle, of St. John’s University School of Law, discussed why the technique leads students to disengage when they are not on the hot seat: It is not an active learning method for the entire class, the line of questioning is hard to follow, and most students find their laptop computer games more entertaining than the grilling of a classmate.
Given the choice, most law students would prefer to learn through exercises that recreate actual legal work. In fact, when law-school graduates return to the classroom for bar-exam-review courses and professional seminars, they are never again subjected to the Socratic method. Bar-exam reviews convey a tremendous amount of information to recent law-school graduates through a conventional lecture format, in which most instructors deliver PowerPoint presentations. Similarly, professional trial-advocacy seminars convey courtroom skills through conventional lectures and mock-trial exercises. If law-school graduates truly felt that the Socratic method were valuable, surely they would demand that format for the courses they take after law school. They never do.
The legal market is glutted with law-school graduates who can handle a professor’s hostile questions but do not know how to competently write a legal document, try a case, or assist in a business transaction. Law students are trained to be legal scholars instead of practicing professionals.
Faced with the new normal of staggering law-school debts, high levels of unemployment and underemployment among newly minted lawyers, and a distressingly underserved clientele, our system of legal education must be redesigned to impart concrete and useful skills to students to make them competent professionals. Toward that end, continued use of the Socratic method by law professors is indefensible.
Grace I. Liu is a patent attorney who works as a research administrator at California State University at Fresno. John M. Fitzgerald is a partner in the Chicago law firm of Tabet DiVito and Rothstein LLC.