Becoming Gentlemen: Women, Law School, and Institutional Change
By Lani Guinier, Michelle Fine, and Jane Balin
Beacon Press; 208 pages; $22
One of the few impressions that has stuck with me from my freshman-year philosophy class is that Socrates was not a very fun guy to have around. The pestering questions, the false modesty, the pundits of Athens inevitably reduced to crying uncle: “Yes, you are right, Socrates,” “True, Socrates, ” “How could I have missed that, Socrates?” Anyone attempting to use the “Socratic method” today would surely be hounded out of the public square.
But, of course, the method is not extinct. It has one remaining habitat (apart from the catechism)–the lecture halls of America’s great law schools. There, the Socratic technique has survived in more or less its ancient form: Professors call upon unwitting students to answer devious questions, leading them step by step from humiliation to Truth. The only element missing is the false modesty: Most law professors don’t bother to pretend that they lack access to wisdom.
Ageneration ago, the method was used in virtually every law school course, Paper Chase-style. It is still a fixture of the first-year curriculum at most top schools. The University of Chicago Law School, which I attended, is like one of those Pacific islands where people are still fighting World War II; Socratic teaching is pervasive there, right through the second and third years, with students “cold-called” by their last names from a preset seating chart.
In the right hands, the question-and-answer style is a bracingly effective teaching tool, not only frightening students into keeping up with their reading but also forcing them to put their knowledge to active use. In the hands of most law professors, however, the method degenerates. Perhaps the most common corruption of the method is the What-Am-I-Thinking Game, in which students must read the professor’s mind and finish the sentences of his prepared lecture. (My favorite example comes from my first day of law school, in a Contracts class: “The two most important elements of any society are … Mr. Jones?” I think Jones ventured, “Coffee and sleep.” The professor was looking for labor and capital.) Another favorite is the Hide-the-Ball Game, where the professor allows one hapless student to lead all the others down a plausible but incorrect blind alley through an extended volley of questioning, usually ending with, “Would you now like to explain to your classmates why everything they’ve written down for the last 15 minutes is worthless?”
I n a law review article that was recently expanded into a book called Becoming Gentlemen, Lani Guinier and fellow professors Michelle Fine and Jane Balin ask why law school seems to be such a miserable experience for many women, and they end up laying much of the blame squarely at the feet of Socrates. The authors label the Socratic method “ritualized combat,” “emotionally draining and intellectually debilitating” for many women. What the authors don’t mention, however, is that most male students don’t much like the method either. In fact, the students (mostly men) who do revel in Socratic repartee are mocked and derided by their peers.
Guinier and her co-authors adopt a “mend it, don’t end it” attitude toward the method. But, like the cumulative voting schemes for which Guinier was unfairly pilloried a few years back, most of the recommendations in this book are the stuff of corporate consultants rather than radical rethinkers; as solutions, they’re too tame. History shows that the Socratic method–and indeed much of upper-tier legal education in America–is an anachronism, reflecting elitist 19th-century notions about the nature of law.
The Socratic method was developed in the 1870s by Christopher Columbus Langdell, then dean of the Harvard Law School. Until the middle of the 19th century, would-be lawyers learned their trade by “reading law” at the office of a private attorney, but Langdell sought to elevate legal education to the level of a true academic discipline. “If law be not a science,” Langdell wrote in 1887, “a university will consult its own dignity in declining to teach it. If law be not a science, it is a species of handicraft, and may be learned by serving an apprenticeship to one who practices it.” But to Langdell, law was a science, one whose postulates could be manipulated in an ideal geometrical space outside the messy world of practice. Langdell thought the Socratic method was the perfect tool for drilling students in those postulates, all of which could be derived from a handful of great English common-law cases. Today, of course, no one shares Langdell’s faith in the law as a seamless and self-contained science. So how come the Socratic method hasn’t joined the dunce cap and the birch rod on the ash heap of pedagogical gimmicks?
To put it simply: it’s cheap. Langdell’s genius, it turns out, lay in devising a system in which one professor could keep a hundred or more students awake and paying attention for an entire hour without the aid of teaching assistants. Law schools, like business schools, are profit centers for cash-strapped universities, and have always been more tuition-driven than, say, medical schools. Overhead costs are low, financial aid is the exception rather than the rule, and high-earning alumni give a lot back. The Socratic method allows law schools to maintain a high student-to-teacher (tuition-to-salary) ratio. In Langdell’s time it was 75-to-1, though it has come down quite a bit since then. (Another money-making scam is the three-year duration of the law program. It’s no coincidence that the mandatory minimum for a law degree jumped from two to three years during Langdell’s tenure at Harvard.) A related benefit of the Socratic method is that the professor doesn’t need to know much. Far less ground is covered in the typical Socratic session than in the typical lecture, and professors can take comfort in the fact that they are asking the students questions rather than the other way around.
The Socratic method persists also because, more than a century after Langdell, the top law schools still haven’t reconciled themselves to the mundane notion that they are essentially vocational programs. Elite law schools view themselves not as pre-professional training grounds, but as an extension of a classic liberal-arts education pursued through the materials of the law. Although clinical programs in which students represent real clients have increased in recent decades, in general, law is still taught in a hands-off and un-lifelike way, mostly through appellate opinions. As one commentator quoted by Guinier observes, law schools prepare the top 1 percent of their students to be law professors, and the other 99 percent for nothing much at all. The proof can be seen every spring, as graduating JDs teem from their final law-school classes into crammer courses for the bar exam, to digest by rote all of the practical stuff they should have learned during the previous three years.
It is time for drastic steps. Here are a few possibilities: Abolish the third year of law school, or replace it with apprenticeships and clinical practicums, like medical residencies. Hire professors who have had lengthy experience as practitioners, not twentysomethings fresh from Supreme Court clerkships. Focus less on appellate cases and more on ground-level realities of the law, including discovery, settlement negotiations, and plea bargaining.
These suggestions are not new; a similar program for reform was advanced as long ago as the 1930s by Yale Law School Professor Jerome Frank. Although law-school curricula have diversified a lot since then, the basic orientation of the top schools remains the same–focused on abstractions rather than skills, ways of thinking rather than tools of practice. And these tendencies are at least as pronounced among liberals as among conservatives. For instance, Guinier and her co-authors write that their ideal classroom is “one in which the theoretical, practical, and ethical notions of justice and injustice are discussed, critiqued, and imagined anew.” But this is just Langdellism dressed up in the self-congratulatory argot of the academic left: legal education as free-range bull session. Women in law schools–and men too–would be better off learning how to do something about justice, not just how to talk about it.