Friday, April 20, 2012

Socrates goes to law school

The legal profession is littered with lawyers and judges that are unprepared to do their jobs.  Some of us are incapable of understanding even the simplest legal doctrines.  Yet others among us have the ability, but simply are not interested in gaining a deep, working knowledge of our craft.  And many of us are just lazy beyond belief.  All of this manifests itself in inefficiencies and astronomical costs – costs that are borne by the litigants and the taxpaying public.

I recently wrote about one such case in Milwaukee where the judge went to great lengths to avoid giving the defendant his trial.  In the process, he completely botched the law, and, twenty-three court hearings and an appeal later, the case was still unresolved.  (Update: after a few more hearings – about thirty in total – the prosecutor finally dismissed the case.)  More recently, defense lawyers in a Racine case had to spend an astronomical amount of time researching, briefing, litigating, and appealing a simple legal issue, just because the prosecutor and the judge didn’t understand (or refused to accept) the law. 

And these examples are far from anomalous; rather, they are common occurrences.  But where does this incompetence, laziness, disinterest, and cavalier disregard for the law come from?  I’ve given it a great deal of thought, and I think we can blame the ancient Greek philosopher Socrates.

Most law schools use the Socratic Method to teach their students.  This method is based on the practices of Socrates, who taught not by lecturing, but by asking questions.  This, it is said, not only engaged his “students,” but forced them to think for themselves and arrive at the truth on their own.  When applied to the law school setting, a typical Socratic-based class might go something like this, with the professor taking on the role of Socrates:

Ø      “Good morning.  Who wants to give us the facts of State v. Smith?”
·        [No one responds, so a student is called on to recite the facts from the casebook.]
Ø      “Thank you.  Now what is the legal issue the parties are arguing about?”
·        [An emboldened student raises his hand and states the issue for the class.]
Ø      “Excellent.  What is the court’s holding in the case?”
·        [A different student raises his hand to answer.”]
Ø     “Good.  But does the court’s holding make any sense?  Isn’t the outcome unfair to the defendant, Smith?”
·        [A third student agrees, and stands up for Mr. Smith.]
Ø      “Wait a minute, that doesn’t sound right either – who disagrees with that?”
·        [Another student joins the fray.]
Ø      “Okay, okay.  But what if we changed some of the facts of the case.  Let’s assume that . . .”
·      [Unable to assimilate and organize new information, some students now get confused, and yet others “tune out” and start searching the web on their internet-enabled computers—now a common occurrence in law school classrooms across the country.]

As you can see, there is never a right answer.  In fact, conclusions and consensus are rarely (if ever) reached.  And if they are, the facts are quickly changed.  Anything goes.  Every answer, thought, and opinion is respected, or at least not condemned.  And I’m convinced that this type of meandering Socratic dialogue—intended to teach students to “think like a lawyer”—actually breeds the laziness, sloppy thinking, ignorance, and disrespect for the rule of law that plagues our courtrooms today. 

But how can that be?  If Socrates was able to bring his “students” to a place of enlightenment by asking probing questions, why wouldn’t that approach work in law school?  Why doesn’t the Socratic Method produce sharp lawyers who, even if untrained to do practical legal tasks, are capable of quickly grasping the theoretical aspects of some of our more basic laws?

Matthew Stewart, author of The Truth About Everything: An Irreverent History of Philosophy, may provide us with the answer.  Although he doesn’t write about law school, he does write about Socrates.  Stewart argues that, rather than bringing people to the point of enlightenment, Socrates was merely a gadfly, stirring up trouble: He “always declined . . . to take a stand on anything, to offer up any of his own knowledge.”  Stewart further argues that leaving his “students” in a state of confusion through repeated questioning likely didn’t produce enlightenment, or even knowledge.

What Socrates imagined could be learned by befuddling the man on the street is also unclear.  At best, assuming they could recover from the shock, Socrates’ interlocutors might have been motivated to improve the internal consistency of their set of beliefs.  But how consistency should lead to truth no one seems to know.  One might, of course, be consistently false.

Further, Socrates’ value, Stewart argues, is vastly overstated:

He supposedly introduced critical reason so that those around him might reflect on their actions and perhaps improve their way of doing things.  So far as the city of Athens was concerned, this stretches the truth just a bit too far.  In the very age when his home city rose to world prominence . . . Socrates not only did nothing on behalf of his city, but aggressively disdained involvement in public affairs.  The virtue Socrates preached had nothing to do with helping out his fellow men, and everything to do with the private bliss of a small sect.   

So given this, why would law professors continue to cling to the Socratic Method instead of actually teaching the future lawyers that sit captive before them?  Probably for the same reason that Socrates wandered the streets, corrupting the youth of Athens:  He “wanted to go out and play with his friends. . . . He hated to work. . . . Ah, the pleasure of the dialectic!”   

Sign me up. 

3 comments:

  1. My wife, currently finishing her Masters in government, ask an attorney and mutual friend what Law School was like. He did not mention Socrates. He told her to watch Paper Chase.

    My wife intends / intended to go to law school next.

    I have not seen Paper Chase. Have you? If so, do you think this is a fair assessment of what law school is like?

    ReplyDelete
  2. It's been ages since I've seen Paper Chase. But my recollection of it, compared with my experience in law school (now 12 - 15 years ago) is that law school is a much "kinder and gentler" place. Nearly everyone passes, and unless someone falls asleep in class (which happens), no one gets yelled at or embarrassed. (Unpreparedness, ridiculous answers, and even web surfing are now well tolerated.) Both Paper Chase and real law school typically use the Socratic Method, which has its pluses but really only accomplishes half the job, even on a theoretical level. Also, today's legal writing and other drafting courses are probably the most useful by far -- they teach students how to analyze and synthesize the law, and, of course, how to write. Some schools, like Washington & Lee, have gone even further and have redesigned their entire third year curriculum to be more practice-oriented -- something that would be unrecognizable in Paper Chase. Good luck to your wife. Maybe she can get a full scholarship somewhere, which is easier to do today given the recent free-fall in the number of law school applicants. For me, going to MU Law was the best choice I could have made, but today, applicants have to give serious consideration to job prospects, law school costs, and opportunity costs of attending.

    ReplyDelete
  3. Cathy RitterbuschApril 22, 2012 at 8:13 AM

    I teach paralegal studies and can see that after two years of post-high school education including a semester of a required internship), these folks are often better equipped to perform legal work, than lawyers. My perspective after five years on the other side of the podium is that the case law-based socratic method and "one exam" model are highly suspect, and benefit mostly the professors. [The legal research & writing classes are the only exception, as they actually develop a useful and measurable skill.]

    ReplyDelete