Legal Commentary

If it's August, law professors must be talking about teaching. Much of the discussion this time around has focused on the Socratic method, and almost all of it is negative (Orin Kerr offers that it should at least be part of the mix). This definitely makes me feel a little retrograde and unimaginative, since I use some modified version of the "Socratic method" in almost all of my classes. (Well, I think I do; I suppose there's a question of definition here.) It's not through lack of interest in doing something different; I've been searching teaching materials for a while now looking for new ideas. But I have to admit I think it works tolerably well. Here's my response to the standard critiques:

1. "Socratic method" is a demonstrably poor teaching technique. I think the answer to this depends on what we're talking about. If it's Kingsfieldian grilling, I agree, particularly if the aim is to purposefully confuse or intimidate the students. But if the objection is to any in-class discussion, I disagree. I started off teaching in another field (history). Specifically, I led discussion sections for a large history class, and quickly came to the conclusion that producing a good discussion is really hard. But it also seemed to me a good way to teach, if pulled off correctly.

It works best, I think, for exploring complicated readings where there is no clear right answer -- in other words, just about everything I teach. The trick in history was to find good discussion topics that didn't just recite the facts from the readings. But in law, at least the subjects I teach (civ pro, copyright, Internet law), good questions are all over the place. If the reading is a case, the relationship between the reasoning and the facts is almost always rife with gaps or hidden premises. Figuring out the reasoning itself is often a challenge. And then sometimes it's fun to apply it to different facts (i.e., the standard Socratic model), or ask if the case was correctly decided and get a counter-argument going.

From the studies I've seen, I have no doubt that this is a good exercise for the students who participate in any given discussion. The question, particularly for large classes, is whether there are other methods that could be used on a daily basis that would better engage that day's listeners. I'm aware of "pair and square" and other such breakout session techniques, and I should probably be using them more, but I have my doubts that they could be used effectively to cover every case or statute or article, even if supplemented with lecturing. If anyone wants to point me to some descriptions of specific alternative techniques I should be using, I'd be very grateful.

There's an obvious downside to discussion-centered class sessions, which is it's a bit hard to pull it all together and emphasize the points that have right answers (e.g., what current Supreme Court doctrine is). Last year in Civ Pro I fell into a habit, which I think I'll stick with in that class, of summarizing the key points from the last class at the beginning of the next class. It would probably be even more effective to do that at the end of class, but that would require more time management skill than I have.

2. Professor-led discussion is just "hide the ball." There's bad ways to lead a discussion, and this is one of them. In a sense all discussion is "hide the ball" if there are particular points the professor wants to draw out. But the more obvious points should emerge on their own. I take the common student refrain, "I'm not sure if this is what you're driving at, but..." as a red flag that the point I'm after may be too obscure/complicated/unnecessary.

3. It's too intimidating. There's a certain amount of intimidation just from public speaking, but I think students for better or worse need to overcome that -- so why not in a nice, safe environment like law school? But I would agree that intimidation beyond that is unlikely to be effective, and the prof needs to remove it as much as possible for a good discussion. Intimidation might be a good learning tool when speedy execution of simple tasks is crucial to survival (e.g., boot camp), but I doubt it's a good way to encourage creative problem-solving, a skill that lawyers actually need.

4. Students who haven't done/understood the reading waste everyone's time. This is tricky to handle, certainly, but for some reason I haven't found this to be a big problem. Usually it's possible to find someone else to pick up any slack. A separate issue are the students who don't believe they should have to listen to other students talking, whether they are right or wrong. But it seems to me a crucial lawyering skill is listening to someone speak, not completely coherently (like a client, or a judge, or opposing counsel), and trying to figure out if anything is wrong with it.

But like I said, I'm open to suggestions, other than 100% lectures.