Socrates Was Not A Law Professor
Asking five law school professors to debate how best to educate lawyers is like asking a bartender which alcohol best promotes abstinence: So long as the patrons keep buying drinks, the bartenders are happy. A truly sobering debate won’t take place in a bar.
So what was the New York Times thinking today in its thumb-sucker of an on-line piece regarding the Socratic method? Appearing beneath the caption, Room for Debate, appeared five brief pieces by five legal academics about the role of the Socratic method in law school education. Is it any surprise that all five found something to praise in the way things are done now?
The Times is succumbing the imperative to engage its readers at all costs. Every savvy Internet marketer does so; bloggers in search of followers cultivate comments. It is not enough to publish content, one needs to draw readers in, to engage them in an ongoing and endless discussion. Aristotle has gone digital: we all are now free and welcome to deliberate in discussions in as many Internet marketplaces as we have time to visit. There’s nothing wrong with that, I suppose, even if much of what passes for online discussion and debate has the look and feel a knife fight by masked men.
So the Times followed up on one of its own editorials regarding reform of legal education by inviting five folks who teach lawyers to comment on how lawyers are taught. That, too, is sensible, but in a drab and dreary sort of way. If you want to think outside the box, don’t go coffin shopping.
So what did Guy-Uriel Charles, a Duke law professor; Robin West, a dean at Georgetown; Robert Dinerstein, a law professor at American University; David Wilkins of the Harvard Law School; and, Amanda Pustilnik, a law professor at the University of Maryland, have to say? Not much, really. They like the Socratic method, recognize its limits, and favor its retention as part of legal education.
Just what is the Socratic method? Non-lawyers perhaps know it best from the movie, the Paper Chase, starring John Houseman, the ferocious, curmudgeonly Harvard Law School professor who bludgeoned students with questions designed to show that the students knew less than they imagined. The nation’s lawyers know the method as something more than mere humiliation: The question and answer method of teaching forces students to think on their feet while responding to questions designed to show the law’s complexity. As Socrates loved to teach in ancient Athens, appearances are deceiving; the wise man know that he does not know.
Questioning the place of the Socratic method in the legal education is a fake debate. It’s sort of like asking whether law students really need to learn to know how to read. Of course, lawyers need to learn to think on their feet. Of course, lawyers need to comprehend that legal doctrine isn’t geometry. Words don’t work like equations. Ambiguity is built into the very nature of speech. And, of course, lawyers need to be better educated to meet the needs of a changing world.
But why ask five law professors what they think of the lay of the land? Selection bias, anyone? Better to ask consumers of legal services how well legal education succeeds in training young men and women to counsel clients in distress, to advocate for those in trouble, to challenge complacency with well formed arguments capable of withstanding critical scrutiny and honestly recognizing the assumptions upon which legal doctrines rest as the best approximations we can craft in support of the values the law is supposed to promote, values such as a sense of fair play, equity and respect for persons.
Why not ask a more radical and fundamental question: Are law schools necessary at all?
The best legal education I received did not occur in law school. Oh, my professors introduced me to the right books, and they taught me the conventions governing a legal brief. But I didn’t learn law in law school. The more ambitious professors wanted to be theoreticians. I recall one law professor responding to a question with the airy declaration: "That is a mere matter of proof," as though facts came delivered much as does dry cleaning; one need only open the box, select a shirt, and then decide which ties match the day’s ensemble. That’s cookbook lawyering. Facts are clients and their quandaries. Teaching law without clients is singing an atonal song.
No, the best legal education I ever received came in small snatches of conversation with my first boss and first partner in the law, John R. Williams, of New Haven. I would go to court with a client in need. How best to meet that need? How best to respond to the objection of an adversary? What if the judge made a mistake on the law? Does this or that legal doctrine really apply in this sort of case? What if the client insists on a course the law will not follow? Williams taught me well, and what he taught was the result of experience in the courtroom. Our offices were chock full of books, and then online access to databases. But the books were merely decorations until clients with concrete interests arrived to set things in motion.
I’ve now mentored dozens of associates and a younger partner. Most come and stay for a few years. They are attracted to the sort of law a small firm practices. They come. I assign briefs or controversies for them to consider. We reason together about the various landmarks the law recognizes as doctrine. We push, pull and tease the law to make it fit the needs of clients. We succeed, we fail, and we always fight. We learn the law together.
We don’t attend law school lectures.
I’ve coined one aphorism in my life of which I am proud: practice conceived isn’t theory relieved. A law professor stuck behind a podium and armed with a thousand and one reference volumes is of use, to be sure, but it is a small, limited use. Go ahead, teach me the law’s alphabet; teach me to read a case. But I don’t expect a law professor to teach me to read my client’s sorrow. The professorial caste is generally too busy trying to make the law look like something it is not, a science, a philosophic perspective, economics, anything other than what it is and always has been in the struggle between two parties: the manner and means by which we resolve conflict in a principled manner.
Is there a crisis in legal education? Perhaps. We have far too many lawyers graduating from far too many schools with far too much debt to do much good for the far too many Americans who cannot afford to hire a lawyer. We need more lawyers with courtroom experience; lawyers who know how to solve the real world problems of real people. We need fewer theoreticians.
Socrates was a peripatetic wanderer in Ancient Athens. He was put to death on allegations he failed to honor the gods of the city and that he corrupted young people with his perpetual questioning. We need more of Socrates and fewer law professors chirping about shopworn orthodoxy. I’m not sure what this morning’s debate in the New York Times was all about. Now that I’ve read it, it strikes me that its principal purpose was to serve as filler for the already bloated curriculum vitae of scholars who think you can learn the law in a classroom, rather than a courtroom. Pity the poor scholars; pity the Times.