The Decline of the Socratic Method at Harvard

Nebraska Law Review Volume 78 | Issue 1 1999 The Decline of the Socratic Method at Harvard Orin S. Kerr George Washington University Law School, Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Orin S. Kerr, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. (1999) Available at: https://digitalcommons.unl.edu/nlr/vol78/iss1/6 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Article 6 Orin S. Kerr* The Decline of the Socratic Method at Harvard TABLE OF CONTENTS I. Introduction .......................................... II. The Debate Over the Socratic Method ................. A. The Socratic Method at Its Best ................... B. The Socratic Method at Its Worst .................. III. First Year Law Teaching at Harvard Today ........... A. Traditionalists .................................... B. Quasi-Traditionalists .............................. C. Counter-Traditionalists ............................ IV. Explaining Differing Approaches to the Socratic Method: Why Professors Teach the Way They Do ...... A. Traditionalists .................................... B. Quasi-Traditionalists .............................. C. Counter-Traditionalists ............................ V. Rethinking the Decline of the Socratic Method ......... 113 116 116 118 122 122 123 124 126 126 128 129 131 I. INTRODUCTION The Socratic method has long been considered a defining element of American legal education. Among both lawyers and laypersons, Socratic questioning is perceived as a rite of passage that all law students endure in their first year of law school.1 Fictional characters © Copyright held by the NEBRASKA LAW REVIw. * Honor Program Attorney, Computer Crime and Intellectual Property Section, United States Department of Justice, Washington, D.C. B.S.E., Princeton University, 1993; M.S., Stanford University, 1994; J.D., Harvard Law School, 1997. I would like to thank Professor Daniel Coquillette for his generous support and enthusiasm, and the twelve Harvard Law School professors who graciously agreed to be interviewed for their time and patience. The views expressed in this article in no way reflect the position of the Department of Justice. This article is dedicated to the memory of Benedict I. Lubell, Kent Scholar, Columbia University Law School Class of 1932. 1. See Scorr Tuow, ONE L 294 (1977) ("For nearly a century now, American lawyers have been bound together by the knowledge that they have all survived a similar initiation; it is something of a grand tradition."); John Yeimma, Lawyers' Adversarial Schooling Undergoes Cross-Examination, BosToN GLOBE, May 3, NEBRASKA LAW REVIEW [Vol. 78:113 such as Professor Kingsfield of The Paper Chase and Professor Perini of One-L have helped foster an image of the archetypal law school professor who challenges, probes, and even humiliates students in a re2 peated exchange of questions and attempted answers. Despite this perception, the traditional Socratic method is today more myth than reality. In the last thirty years, legal pedagogy has changed dramatically: the Socratic method as it was known in the 1950s and 1960s is nearly extinct. 3 Although student participation in the law school classroom remains the norm, the experiences of today's students are very different from those of students a generation ago. In the place of the traditional approach is an eclectic mixture of newer approaches, including toned-down Socratic questioning, student 4 panels, group discussions, and lectures. The purpose of this paper is to explore this revolution in legal pedagogy by examining the teaching styles, attitudes, and classroom influences of the faculty at one leading law school. Because Harvard 1997, at All ("[Ailmost every law school classroom is a place where ritual interrogation is a rite of passage."); see also, e.g., MICHAEL G. LEVINE, SOCRATIC METHOD (1982); JOHN JAY OSBORN JR., THE PAPER CHASE (1971). 2. See, e.g., Yemma, supra note 1, at Al (describing the continuing prevalence in American law schools of "the pain-inducing Socratic method of grilling students to the point of humiliation in front of their classmates"). 3. See Philip E. Areeda, The Socratic Method (SM) (Lecture at Puget Sound, 1/31/ 90), 109 HAxv. L. REV. 911, 911 (1996) (describing the author "[als a relic in a declining group of those who use [the Socratic method]"); Clark Byse, Fifty Years of Legal Education, 71 IOwA L. REV. 1063, 1064 (1986) ("A... major unplanned change in legal education is the decline of the Socratic method . . . ." (quoting Roger Cramton, Report to the President of the University for the Year 1975-6, 3 CORNELL L.F. 2, 5 (1976))); Burnele V. Powell, A Defense of the SocraticMethod. An Interview with Martin B. Louis (1934-1994), 73 N.C. L. REV. 957, 967 (1995) ("It is clear to me that the Socratic method is dying."). For the purpose of this article, I consider the "traditional" Socratic method to be a teaching style in which the professor selects a single student without warning and questions the student about a particular judicial opinion that has been assigned for class. Often the professor begins by asking the student to state the facts of the case and then asks the student to explain how the court reasoned to an answer. The professor might then test the student's understanding of the case by posing a series of hypotheticals and asking the student to apply the reasoning of the case to the new fact patterns. The purpose of this questioning is to explore the strengths and weaknesses of various legal arguments that might be marshaled to support or attack a given rule of decision. To that end, the professor's inquiries are often designed to expose the weaknesses in the student's responses. See Karl N. Llewellyn, The Current Crisis in Legal Education, 1 J. LEGAL EDUC. 211, 212-13 (1948); TURow, supra note 1, at 41. 4. See Steven I. Friedland, How We Teach: A Survey of Teaching Techniques in American Law Schools, 20 SEATTLE U. L. REV. 1, 27-31 (1996). Friedland found that only 30% of the first-year professors surveyed claimed to use the Socratic method most of the time. See id. at 28. In upper level classes, 94% of the professors lectured for at least some of the time. See id. at 29. Friedland concluded that "a restlessness with the Socratic method is taking root," id. at 32, especially among younger and female professors. See id. at 39-40. 1999]DECLINE OF THE SOCRATIC METHOD AT HARVARD 115 Law School has often been considered the citadel of the Socratic method,5 I chose to focus on Harvard and conducted interviews with twelve members of the faculty in the spring of 1997.6 The interviews focused not only on how today's Harvard professors teach, but also why they teach (...truncated)