Law & Business | Professor Bainbridge

Why I Don’t Use the Socratic Method

With the start of the new law school semester looming tomorrow, I thought it was time to revisit a favorite issue. From my Rutter Award for Teaching Excellence speech last spring:

When I joined the Illinois faculty 20 years ago, I began a long struggle with the problem of pedagogy. Like a lot of newly minted law professors of a certain age, I thought Professor Kingsfield was the standard to which I had to aspire. But Kingsfield never had to teach Securities Regulation at 3 p.m. on a Friday afternoon to a class consisting of third-year students in their last semester of law school.

Suffice it to say that it was not a success. Perhaps I lacked a certain gravitas or was just too cherubic for my own good. Being a fairly laid back guy informed with laissez-faire sensibilities probably didn’t help.

I began reflecting back on my own law school experience. As I pondered the various teachers I had in law school, it occurred to me that there were only two whose style had been truly Kingsfield-like. One was my contracts professor, Bob Scott, whose command of the classroom was amazing. He could hide the ball and then, like a great magician, pull it out of your ear. Interestingly, however, in the courses I took from Professor Scott in my second and third years of law school he did a lot more talking than he had in first year contracts.

The other Kingsfield-like teacher I had at Virginia was my torts professor, who should probably remain nameless. His idea of snappy Socratic dialogue was to respond to every student statement with “so what?” or “who cares?” Imagine Socrates with Tourette syndrome. The only thing I learned in that class was that the Coase theorem answered any question, which admittedly has served me well.

In contrast, most of my professors used what I’ve come to call the soft Socratic style. Instead of cold calling students, they used panels of students who were on call for a few days per semester. Instead of grilling a specific student at length, each student would be tossed a few questions and then the professor moved on to the next. Students were never told that they had given a wrong answer, let alone told to go and call their mothers as they would never become a lawyer. At most, the professor gently guided the student towards the proper conclusion.

In my early years at Illinois, I frequently sat in on classes taught by colleagues who were said to be great Socratic teachers. Oddly, however, in most of those classes, Socrates did almost all of the talking. Just as at Virginia, the dominant pedagogic style was soft Socratic. In preparing for this lecture, for example, I went back and dug out an evaluation I wrote of one of my Illinois colleagues:

His style is very soft Socratic. He tosses an occasional question out there and waits for answers. If nobody responds, he answers the question himself.

He started today’s session by picking up the thread of a discussion from yesterday. After reviewing the material by lecture, he started the new material As before, he relied on volunteers. He got some participation, but it wasn’t particularly interactive. Students made a comment, he made a comment, and went on.

In fairness, back in those days you could have said much the same thing about my classroom style.

You see, I knew I was not then and never would be Kingsfield-like, but I was still trapped in the mindset that no self-respecting law professor could depart from the Socratic method. So I too became a soft Socratic teacher. But doubts kept intruding. Were the students who were not “on call” prepared? What did they get out of listening to a colleague answer a question but not having to struggle with it, since I typically moved on to another student or lectured if the student struggled?

It is [said] that [the Socratic method] teaches students how to “think like lawyers.” This claim would, of course, require some evidence. For example, in most countries, including other common law countries, law is not taught via anything like the Socratic method. Yet presumptively their lawyers think like, well, lawyers. So somehow they learned. ‘Thinking like a lawyer’ is a matter of learning how to reason and argue, in some ways that lawyers share with everyone else, and in other ways that are peculiar to lawyers (e.g., arguments from authority are not fallacious in the law). But why think that one learns how to do this by being grilled Socratically as opposed to reading examples of lawyerly thinking and hearing lectures explaining lawyerly arguments?[1]

I eventually came to two conclusions. First, if students couldn’t think like lawyers by the time they got to me in their second or third year of law school, there was very little I could do to help them except suggest another line of work.

Second, the Socratic method doesn’t really teach you to “think like a lawyer.” At best, it teaches you to think like a litigator.

Consider a typical law student who accepts a [transactional] job at a large firm. She has spent perhaps ninety-five percent of her time in law school reading and discussing cases and law review articles. Once in practice, she will go days or weeks at a time without picking up a case or a law review article. Instead, her days will be filled with drafting, reviewing, and marking up transactional documents, negotiating language with opposing counsel, participating in conference calls, and composing memos, emails, and letters to colleagues and clients.[2]

“Thinking like a lawyer,” as Kingsfield and his ilk would have our graduate do is not very conducive to success in that environment.

In his book, The Terrible Truth About Lawyers, Mark McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that “it’s the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement.” McCormack further observed that, “when lawyers try to horn in on the business aspects of a deal, the practical result is usually confusion and wasted time.” He concluded: “the best way to deal with lawyers is not to deal with them at all.”

All of which is why I emphasize not only doctrine but also economics and business. Transactional lawyers must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowing the law.

I want my students to understand that successful transactional lawyers build their practice by adding value to their clients’ transactions. Instead of thinking like Kingsfield, I want them to learn where the value in a given transaction comes from and how they might add even more value to the deal.

I had always lectured some. I defy even Professor Scott to teach the Capital Asset Pricing Model Socratically. As my teaching became more oriented towards transactions, and business and economics became more important, and identifying sources of value in the underlying deals out of which the cases arose became the key task, grilling law students seemed less and less effective.

Gradually, bit by bit, I freed myself from the trappings of the soft Socratic method. Away with panels! Away with volunteers! Away with questions! Up with PowerPoint!

Once I went through the 12 step program and became what Brian Leiter calls a “recovering Socratic teacher,” I noticed that I had some interesting company. Leiter, for example, has written that: “There is no evidence—as in ‘none’—that the Socratic Method is an effective teaching tool. And there is much evidence that it’s a recipe for total confusion.”[3]

In her 1997 book, Becoming Gentlemen, Lani Guinier blasted the Socratic Method for forcing female students to adopt a style that many found alien to them. Former Secretary of Labor Robert Reich, wrote in a 1998 essay that the method had “morphed beyond recognition” into an exercise in intellectual arrogance in which the professor always had the right answer.

Even so, at first, lecturing was my dirty little secret. I felt like a deacon sneaking out of town to get a snootful. What if my colleagues found out?

Gradually, however, word leaked out … and nothing bad happened. My classes were full to the bursting. Deans patted me on the back for getting good evaluations. Promotions and raises kept coming.

And now the Rutter Award. I’d like to think that this Award in some way validates the evolutionary path my teaching has followed. I’d also like to think that it might encourage some of my younger colleagues who are dissatisfied with the Socratic method to consider alternatives.

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[1] Brian Leiter, The “Socratic Method”: The Scandal of American Legal Education

[2] Victor Fleischer, Deals: Bringing Corporate Transactions into the Law School Classroom.

[3] Leiter, supra note 1.

Posted on Wednesday, August 20 2008 | Permalink

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Transactional lawyers must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowing the law.
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As a 1L I haven’t started taking relevant classes, but do you have any recommendations on what transactional law students can do/read outside of classroom to learn the information they won’t get inside.

Posted by on 08/20 at 08:59 PM

I pretty much agree with all of this. My additional point would be the Socratic method has one of the main drawbacks of Socratic dialogs- a colossal waste of time where bad arguments are treated like good ones. It’s so much better and more useful to just get to the real point or argument. (Plato had a theory to back up his use of the Socratic form on how one gains knowledge. It’s a theory that no one today would find at all plausible, but without this theory there really is no reason to favor a Socratic form.)

Posted by Matt on 08/21 at 09:37 AM

Sir! How can you so cavlierly dismiss the Socratic Method? Why, without “Unjust Discourse” there would be no progressive thought at all…

Posted by on 08/21 at 10:59 AM

Totally and completely wrong. It is the business folks who screw things up--I spend 100% of my time fixing problems, at extraordinarily high rates, that the smallest bit of thought at the outset would have totally avoided. It is idiots like McCormack who gum up the works. They make their money when the deal is done and don’t give a rat’s rear-end what happens afterward. Lucky for me.

Posted by on 08/21 at 11:01 AM

Socratic dialogue isn’t just useless for transactional lawyers; it’s often useless for litigators, as well. (I am a litigator).

The only thing Socratic dialogue seemed to achieve in my studies at Harvard Law School was to force the female students to participate.

In more laid-back classes, male students did almost all the talking, but in socratic classes, female students talked as well (although some of them perceived being forced to engage in socratic dialogue as “harassing").

It had no benefits for me, since it was a game of hiding the ball, leading me to be bored and apathetic in class (if you’re a bored student, and you’re not fearful of being put on the spot, the possibility of being called on in socratic dialogue won’t make you prepare for class. I could usually say something deliberately vague and confusing just to drive the socratic professor away and discourage him from calling on me ever again. I didn’t much care if I looked obtuse for a minute or two in the process).

Posted by on 08/21 at 11:05 AM

I enjoy you blog very much, and I realize my experience is not that of a law student, but I found the style of Socratic teaching practiced at Thomas Aquinas College (modeled after the great books programs started at the University of Chicago and continued at St. John’s College) not only enabled me think with clarity and master with confidence new material (even in the absence of a teacher), but also in an interesting way helped me to understand and remember the material better than when I simply had it presented to me at a lecture. I do not mean to suggest that such a style of education is appropriate for law school—your post seems to clearly show otherwise—but in my experience those who have received a truly Socratic undergraduate education have a great advantage over their peers when they move on to getting a professional degree. They are able to think quickly, clearly, able to analyze complex and difficult texts on their own, and end up consistently leading class discussions. Do you think there are certain bodies of knowledge or certain times of life to which the Socratic method would be appropriate?

Posted by Mike on 08/21 at 11:14 AM

This is both right and wrong at the same time (how’s that for Socratic?)—the Socratic method is useful for both litigators and transactional lawyers because it teaches quick and dirty issue-spotting, which has the practical benefit to clients of advising them how to steer clear of litigation, which is generally way less expensive than not having a lawyer review the transaction. The best transactional lawyers (I work with two of them) understand the interplay between the transaction and potential litigation arising from them, and the Socratic method in more litigation-oriented classes (contracts, torts, constitutional law, property) is extremely valuable in making transactional lawyers think like litigators—there is more for lawyers to do in transactions than simply writing things up or getting in the way.

Posted by WT on 08/21 at 01:14 PM

Bravo! Given that most law profs aren’t Socrates, and most law students aren’t as bright as Socrates’ students, it’s no surprise that using the Socratic method results in three years of law school transmitting significantly less useful information than a six-week bar review course.

Posted by on 08/21 at 01:18 PM

The man (I forget his name) who argued with Socrates in those famous dialogs was always the perfect foil to promote whatever idea Socrates was posing.

Winning arguments and enlightening are two different things, and being quick or witty in the moment is only good for the former.

Posted by on 08/21 at 01:27 PM

Professor Bainbridge, there’s a lot of meat in this post. I do remember the Socratic method at Boalt Hall in the late 60’s; some first year teachers were good at it, some weren’t.

My own particular embarassing moment occurred in a third year estate taxation course where I pounced on another hot shot’s answer to the lecturer’s question, pointing out that it was wrong, as indeed it was. The lecturer then asked me what I would do if faced with that particular thorny question. I was at a loss--and the lecturer then sank the harpoon saying “I know what you’d do. You’d call a lawyer!” Justified hilarity, at my expense, ensued.
The lecturer had a point; it’s not enough to know when something can’t be done.

I spent 30 plus years as a transactional lawyer--being in house for a good part of the time. Knowing your client’s business and goals, and being able to add value to a transaction is the difference between success and failure. It’s an interesting dance between offering useful advice and simply getting in the way.

Posted by on 08/21 at 01:33 PM

So I guess you never had Federal Procedure with John McCoid. He was the ONLY prof that stuck with the full Socratic method the entire 1st semester of school. Soft Socratic for the rest of the 1L classes, and very little of that for 2L and 3L. When I had Secured Transactions with Bob Scott, it wasn’t even close to being Soft Socratic.

Posted by on 08/21 at 01:36 PM

As a commercial litigator who has dabbled in transactional work from time to time, I want to echo what Lucius said. Lawyers only “screw up” deals in that we force the business people to think about things that they weren’t smart enough to realize might happen, thus sometimes causing them to slow down and sometimes back out. But if the details are going to ruin a deal, better before it’s consummated than after everyone has invested money and then everything falls apart.

Posted by David Nieporent on 08/21 at 02:06 PM

To value Socratic dialog, one must appreciate that no one can teach anyone anything; from feedback, excellent teachers discern where a student is headed and set up obstacles for them to tumble over in their own good time.

A worthwhile method for one to nudge a student to learn something is to turn that students intellect against itself by asking questions.

Now, I could have told you this, or I could have asked you, “Why do you suppose Socrates used questions instead of telling you the answer?”

Posted by sbw on 08/21 at 02:09 PM

This is a very enjoyable and useful article for me. But you are far too polite.

I have argued against dialectics in the classroom for years. At best, it is a waste of time and source of confusion. More often, it is the method of charlatans to bamboozle and humiliate their victims. Others see it as a form of cowardice, for those lacking the strength to address duality.

In fact, Socratic teaching can only be inflicted on young people, who are not paying for it. Adults learners never tolerate it. They demand respectful instructors who take the shortest path to delivering actionable information.

Posted by on 08/21 at 02:16 PM

Er, and what WT said.

Posted by David Nieporent on 08/21 at 02:22 PM

Socrates was asked if ethics can be taught. Paraphrasing, he replied, not in the manner that geometry can be taught, but it can be taught in a way.

I think he meant that some things lend themselves to instruction, and other things are processes that have to be practiced to be mastered.

I surely don’t want to learn about covalent bonding by socratic method, but neither could I master what leads to character without exercising my own mind.

If we don’t disaggregate the different kinds of learning, we’ll talk past each other on this.

Posted by sbw on 08/21 at 02:33 PM

The Socratic method itself is not a poor way to instruct. Indeed, it is a quite excellent way for the student to be taken step-by-step through a particular problem to the answer.

The problem with the Socratic method is that all too many professors do a lousy job at it. Socratic method does NOT equal grilling and gotcha and who-can-I-embarrass-today?

The word “education” comes from the Latin educare, to draw out. That is what the question-and-answer method is intended to do. That is what lawyers do—lead witnesses step-by-step down a path, drawing out particular facts, so that the jurors will learn whatever point the lawyer is trying to make. Especially with the law, which once upon a time was based on things like reason (at least the common law was), rather than judicial arbitrariness, this method is appropriate because you are simply trying to draw out from the student what is already known in their hearts and minds as a matter of right reason and common experience.

It is a skill that far too many law professors lack.

Posted by on 08/21 at 03:56 PM

God I wish I was accepted into UCLA Law School to take some of your classes!

Posted by on 08/21 at 03:57 PM

Don’t get me wrong. I do not suggest that proper Socratic question-and-answering should be used exclusively, 100 percent of the time. To be effective, there must be some base of knowledge already in the student.

Indeed, after three years of head-scratching dealing with “hide the ball” counterfeit Socraticism, I was delighted to learn three years of law school in about 12 weeks in a bar review class—learning in three days what took a semester to learn in law school. Some amount of spoon-feeding like this is also a very good thing.

Hence, whenever I teach something (not law, but other stuff), I basically take this approach --
(1) Right off the bat, tell them all the essentials that they need to know. In other words, have the course review, not at the end, but in the very first three days of class, as they do with bar review classes. Nothing but pure spoon-feeding, hiding nothing.
(2) Then go back to the beginning and go over everything again, but slowly, and here is when the step-by-step questions can be asked, but still with a good dose of lecture to move things in the right direction, to stimulate students’ thinking and to prevent utter boredom. In short, a discussion with questions designed to facilitate the discovery of new insights and knowledge, as well as an understanding and appreciation of the raw facts that were spoon-fed. Such proper Socratic questioning is meant, not to hide the ball, but to lead them to the ball, and to tell them when they have found the ball.

Posted by on 08/21 at 04:28 PM

"not to hide the ball, but to lead them to the ball...”

[Grin] Develop motor skill memory.

Posted by sbw on 08/21 at 04:46 PM

IANAL (thank God), but I do have thoughts. In order for the Socratic method to work, the students have to be very well prepared, and have to be highly engaged in class.

Rather than wasting class time “pussy-footing” around with an unprepared student, the professor should dismiss said student and move on to another. Doing so brutally serves to engender fear of being caught unprepared, which improves the overall class preparedness, and so the overall effectiveness.

That said, the instructor has to be effective as well, and I might add, has to be EXCEEDINGLY well prepared.

Posted by on 08/21 at 08:04 PM

Waht a great article - provocative and entertaining.

I had never thought about why Mr. Scott’s 8 a.m. UCC class was so great, even for the 3rd years who flocked to it. I just knew that they were terrific classes - and I still remember a good deal of the material 25 years later. I will admit to trying to channel Mr. Scott while teaching undergrads business law. The “all right, then, let’s do it!” did not go over all that well (only Bob could pull that off), but the mostly-lecture style seemed to work best for me, particularly with that Power Point at the ready to keep the conversation moving.

However, I still called on people, in addition to seeking volunteers, even with undergrads at the accounting school who were unlikely to go on to law school. I did that that mostly to keep commuter-U students awake during a night class (after most worked all day). Did that make my style “soft” Socratic?

I wonder how many 1st year law professors have the courage to bag the pure Socratic method. It does make an impression. I still remember the first words that I heard in law school, from Mr. Jeffries: “Mr. G___, could you please tell us the facts of Rex v Manley?” I could not tell you the facts of Rex v Manley, but I remember both professor and student quite well. Of course, make no mistake, had Mr. G not been up to the task, Mr. Jeffries would not have wasted a class “hiding the ball.”

In any event, thanks again for an excellent article.

Posted by on 08/21 at 08:27 PM

I agree that many law faculty use the Socratic method badly, so I was eager to learn what method Prof. Bainbridge uses in its place so successfully. Unfortunately, all this post offers is “Up with PowerPoint!” Sigh. PowerPoint (as it is commonly abused) is a more effective engine of tedium and obfuscation than the Socratic method.

Posted by on 08/22 at 10:17 AM

As a third-year law student, what I can say in defense of the Socratic method is that, at the very least, it keeps students interested and engaged to a greater degree than if the professor just dimmed the lights and turned on powerpoint each class (especially when that powerpoint is available for download as well). Yes, some students will still fail to be prepared and will waste the time of the class, and others will surf the internet the whole time no matter what, but I think it’s probably a bad idea to abandon questioning, or even just non-volunteer questioning. A mix of lecture and questions? Sure! Nothing but lecture? A snoozefest in Civil Procedure for all but the diehards.

Posted by on 08/22 at 06:44 PM

The term “Socratic Method” is used too broadly. Hiding the ball may not be good teaching, but calling on students sure is good for them:
1. They prepare because they are scared. I get this comment on evaluations a lot (mostly,but not always, positive). I don’t humiliate; the student concern is fear of embarassment if unprepared when called upon.
2. They pay more attention in class.
3. They get experience speaking in front of a critical audience. This is not just for litigators; transactional lawyers also need this skill.
4. They get experience thinking on their feet.
5. They get spontaneity, which is far more stimulating then other methods.

Calling on students also works well, maybe better, in problem courses.

The last post by CG, a student, got it right.

Posted by wlr on 08/23 at 02:27 PM

It’s enlightening to go back and read some of Plato’s Dialogs. These quasi-transcripts of Socrates’ lessons read like parodies of the “Socratic Method”. If Socrates couldn’t do a very good job using method, it’s no surprise that few other people do well with it either.

Posted by on 08/24 at 12:32 AM

I came over hoping for something interesting. Silly me. This discussion could have come straight out a nineteen-sixties issue of the Journal of Legal Education. Eliminating social impediments to “publishing” is one of the sad accomplishments of the blog culture. Now, one person’s approval is enough. Soon there will be no audiences, only texts. “How much can a poor nation stand.”

Posted by on 08/24 at 12:52 AM

Good Sir, Bravo! I praise your intuition. Without an understanding of business and economics, young transactional attorneys are at a loss. Speaking from experience, comprehension of the transactional elements assists attorneys in diagnosing potential problems. In addition, by being conversant in the elements of the transaction, counsel can gain the trust of her clients and, hence, more effectively advise the parties.

Your bravery in venturing beyond the Soft Socratic method is inspiring. As one who has witnessed your teaching-style firsthand, I can honestly say that you are one of the most remarkable instructors I have ever encountered. As I teach my own students this upcoming year, I will heavily weigh your rheuminations while developing my own style of lecturing.

Posted by on 08/25 at 01:30 AM

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