December 8, 2010

"You have a steady diet of borderline cases. Is this bending up your mind?"

"Is this having the effect of dulling your sensitivity to the 7 major values of certainty in law? If you’re getting accustomed to life on the borderlines — that's what you're in, life on the borderlines — could that have a prejudicial effect on the general standards that you have with regard to what the law is like? And you just take for granted that the law will be open-ended, spongey, discretion-ridden? Some of you do think there’s value to predictability, determinativeness. There are probably not just 3 ways in which it’s valuable, but probably about 15."

Said the eminent, venerable law professor Robert Summers, according to the verbatim notes of a student in his Contracts class at Cornell Law School. Summers recommended that students try to write everything down, and the student, my son John, followed the recommendation. At the link, you'll find much more about Summers — the ideal of the Socratic law professor, who taught his last class on December 1st.

Professor Summers taught law for 50 years. That's about twice as long as I've taught law, and I see myself as well past the middle of my teaching days. I encountered Professor Summers when I interviewed at Cornell — it was my first law school interview — in the fall of 1983. He went on an oddly long rant about how awful it was to have to grade exams.

If I had a transcript of that now, I'm sure I would see that it was hilarious, but at the time, I was terrified, and I furiously racked my brain to think of some interview-appropriate response. Perhaps if I'd been less tightly wound that day and laughed instead of looking however I looked — mystified? blank? clock-watch-y? — I'd have ended up at Cornell.

But I ended up at Wisconsin. And I'm pleased that my son John grew up in Wisconsin and that he ended up at Cornell — with the presence of mind and the sense of humor to appreciate the great Professor Summers.

John says:
... Summers took the Socratic method to the extreme. He rarely made any direct statement about anything, almost always preferring to ask questions instead.

He mockingly voiced the way he thought students would react:
Isn’t it a pity that you need to analyze cases? You can’t just go around with your mouth open waiting for a spoon that will feed it to you in one big, luscious bite! Students should sue. The teachers should just give you the law.
For me, that is a luscious bite of incentive to keep trying to find the wit and the nerve to go for the Socratic ideal. What if I took a secret vow to teach speaking only in questions? How long would it take the students to notice? And by notice, I mean, notice that I'm using the technique of only asking question, not notice that I am really, really annoying.

Summers talking about another lawprof:
MacNeil was a whale of a law professor! Never uttered a declarative sentence! Never uttered a declarative sentence! Not in 35 years! Best law professor we've ever had! Now he's retired. What a mistake that was. What a mistake that was.

35 comments:

chuck b. said...

"Summers recommended that students try to write everything down, and the student, my son John, followed the recommendation."

You are against this, and have encouraged people to use memory instead, have you not? I think about that a lot. But I'm yoked to the writing down because I'm convinced the act of writing helps me to remember and understand. I would like it to be otherwise because your approach sounds more appealing.

David said...

I definitely remember things I write down better than things I don't write down -- and not just because I have the information written down. It doesn't work, for example, with typing. I'll forget this comment in about five minutes.

Richard Dolan said...

Never uttered a declarative sentence in class in 35 years? Probably a record of some sort.

Some people forget that it's possible to overdo a good thing. It's not true that more is always better. And there's truth in this too: "there’s value to predictability, determinativeness. There are probably not just 3 ways in which it’s valuable, but probably about 15." If "determinativeness" is valuable in at least 15 ways, it's OK after a bout of Socratic non-declarativeness to give the kids a declarative sentence or two, that maybe gets to the "determinativeness" of some aspect of the legal issue under discussion.

The lawprofs I remember most fondly had a way of mixing it up, and knew when to let the discussion meander and when to call off the non-declarativeness for a while.

David said...

The reason profs don't use the Socratic method these days is that they are not good at it.

This guy is good, on the basis of that one quote alone.

Ann Althouse said...

"You are against this, and have encouraged people to use memory instead, have you not? I think about that a lot. But I'm yoked to the writing down because I'm convinced the act of writing helps me to remember and understand. I would like it to be otherwise because your approach sounds more appealing."

I think there are different methods. If you're good at listening and then writing down a summary, you'll have better notes and you'll train your mind well. But writing everything down is a method too, and it's especially good when you have trouble paying attention or where you aren't able to process all that's being said in real time.

David said...

Hey, David. Nice dog. Looks just like my nice dog.

traditionalguy said...

That is an interesting take. We love arguing everything as a professional tactic, but the value of the Law to society is always Finality, along with a good measure of understanding on where the finality comes about in every set of facts.

hombre said...

The loss of certainty in the law is not due to borderline cases. It results from the avant-gardism of arrogant, ideological judges. It is supported by the greed of lawyers, whose employment opportunities are enhanced by uncertainty.

EnigmatiCore said...

"How long would it take the students to notice? "

I thought this was your primary style already.

Ann Althouse said...

"I thought this was your primary style already."

What? Being annoying? Or speaking in nothing but questions?

Mark O said...

I had the misfortune of having to take Contracts from Ian MacNeil, but not at Cornell.

That year he uttered many declarative statements. Unfortunately, he failed to utter any cogent statements. He had published his own casebook, subtitled "Exchange Transactions and Relationships." He had a new vision of the law of contracts that did not include most of the concepts that still govern the law.

His utterances in that contracts class did not include the word "consideration." He spoke with the type of incoherence that might pass for insight, but he did not teach the law of contracts whatever else he might have done.

traditionalguy said...

Old Socrates kept them thinking for themselves, but he did not have to produce actual knowledge of legal precedents that govern the outcome of cases. It helps to have an anchor to keep lawyers and judges from floating away into an alternate legal system.

E.M. Davis said...

The Professor should keep the law-blogging to a minimum ... the page views are drying up!

c3 said...

I guess I'll never get the law school vibe

(doctors are to lawyers as dogs are to cats)

Jay said...

Off topic, but this is rather rare:

The Senate on Wednesday convicted a Louisiana federal judge on corruption and perjury charges, the first time in more than two decades the chamber has voted to remove a public official after an impeachment trial.

The vote to remove Judge Thomas Porteous was unanimous on one of the four articles of impeachment; the charges were brought against Porteous in unanimous votes by the House of Representatives in March.

He becomes the eighth federal judge removed from office. The Senate also voted to bar him from ever holding public office in the future.


Also, the DOJ declined to prosecute.

He was appointed by Clinton.

kathleen said...

He was a bit clumsy with words, apparently.

kathleen said...

in fact that syntax reminds me of Sarah Palin. Too many prepositions.

Sigivald said...

Socrates (as presented by Plato, at least, but that's all we have) is a terrible model to choose.

The Dialogues annoyed me as a Philosophy major, and they still do.

Yes, it's easy to appear wise when one gets to write both the questions and the answers the puppet gives you; but outside of that model (and in the real world where you don't get to be taken seriously when you ignore counter-arguments) it just makes you a jerk, and not very good at arguing or teaching.

Declaratives are perfectly good things and are often far more apt than questions.

My suspicion is that a lot of legal teaching could use more questions and less declaration, but going to nothing-but-questions is not a good thing.

(After all, the point of law school is to train lawyers, not (primarily) to train law professors, is it not?

richard mcenroe said...

"(doctors are to lawyers as dogs are to cats)"

Actually, doctors are to lawyers as plankton are to blue whales...

EnigmatiCore said...

"What? Being annoying? Or speaking in nothing but questions?"

Would not it be handy to annoy the right people?

Jay Retread said...

Well Ann, you just did not get the opportunity to sleep with the right people at Cornell. At least you did not have to do much in the way of publishing at UW.

Chip Ahoy said...

What a mistake that was. What a mistake that was.

Is that two declaratives sentences where none is the thing being lauded? Then what has Summers learned from McNeal? <-- See what I did there?

mrs whatsit said...

At Cornell in the early 1980s, I did not have Summers for first-year contracts -- but I did have Ian MacNeil. He was a whale of a law professor, indeed. He was terrifying, intimidating, and absolutely fascinating; among other things he was the laird of a clan in Scotland.

He did teach almost entirely in questions -- and such questions -- he'd call your name and just waaaait, bright eyes lit with an expectant, predatory gleam, while you floundered in the dim confusion of your first-year mind looking for something -- anything -- to say. Nothing was more rewarding than to stammer out some kind of uncertain answer and have him cry, "Exactly!" Still, even then you weren't safe; he'd just go on to ask a new, harder question.

I could not disagree more completely with Mark O's opinion that MacNeil's "relational" theory of contract law did not adequately address the fundamental precepts of the subject. I had that casebook (I probably still have it somewhere) and decades later, I'm still using the concepts I learned in his contracts class. It is quite true that his teaching style depended more on leading us to discover ideas for ourselves than on feeding them to us in pre-digested bites. This forced us to acquire analytical skills that -- for me at least -- turned out to be far more useful in the years that followed law school than the more conventional approach of professors who told me what to think rather than demanding that I do so on my own.

I do recall at least one occasion when MacNeil uttered a declarative sentence in class, although he was not exactly teaching at the time. With an assignment due in another class, too many of us chose the same day to sign our names on the sheet he kept on his desk that allowed us -- just one time all year -- to admit unpreparedness and avoid being called upon. He glared at the long line of students waiting to scribble our names on the sheet, announced, "This class is canceled for the day," and stalked out of the room.

Gabriel Hanna said...

In my physics department the Socratic method was used extensively (not exclusively naturally), but it takes a while for the students to catch on. Every question has a hook; when you figure out why the question was asked, then you know how to answer it and the next couple of questions.

Some students never catch on and it is painful to watch. I had my moments but there were times when I didn't get it either, and just floundered. It's embarrassing for everyone when that happens.

soupmonkey said...

Does Sarah Palin figure into everything?

mtrobertsattorney said...

Re: Socrates "is a terrible model to choose."

The real Socrates (the Socrates of the Apology) would question important people who claimed to have a great deal of knowledge about whatever the topic of the cconversation happened to be.

The only way to expose such people as not knowing nearly as much as they think they do is by sharp questioning. Most law students, of course, do not claim to have such knowledge--that's why they're in law school. If Socrates happened to wander into a law school class today, it would be the law professor who would be asked the questions, not the students.

Milwaukee said...

Ann: How do you manage to be "kind and supportive" and still ask lots of questions?

In my previous life as a high school math teacher, one year I had 2nd block for preparation, and some of my students opted out of study hall and into the office as office aides. I would always tell them they could come and get help, as it was my preparation period. They never did. They did, however, complain to an assistant principal about my teaching. One day, the assistant principal said to me "Well, the students complain that you always answer their questions with a question." With a straight face I replied "Mrs. A, isn't that what we are supposed to do?" I don't remember the rest of the conversation, but it didn't go very far after that.

I too have had teachers who used lots of questions, and felt it was a very effective way to teach a class.

Jennymoose said...

Professor Summers taught my first year Contracts and Ethics courses, and second year UCC class at the University of Oregon school of law in 1966-1968. He was far and away the best, and most demanding, professor I've had in my life.

Although hardly Socratic, his tales of the heroic Kleinschmidt grade, spiraling up from Hell's Canyon on the Idaho side, and the lack of written contracts in Halfway's Pine Creek Valley, because everyone knew everyone else, and if you didn't keep your word you were henceforth useless in that agraian society, remain seared in my memory after 42 years of law practice in Oregon.

Your readers probably don't know that at least one of the reasons he left Oregon Law for Cornell, was his displeasure at the gyrations of a stripper our class brought to his UCC class on a warm Spring day in 1968 on Law Day [when the administration winked at such hijinks (within limits)]which he found inconsistent with the subtleties of Article 9.

His son, Brent, is a prominent Portland lawyer, and here's hoping he returns to the verdant ranch with its drop dead view of the south side of the Wallowas.

David R. Graham said...

The Socratic method also maintains control of the process of a situation: questions, not ansers, control outcomes. Answers (declarations) are implicit in questions, which stand on their own, having aseity.

Therefore, the questioner is in the power position, as every flummoxed or caught-out student knows, and also prepared and articulate ones.

IANAL, but I'm sure every lawyer knows this about the controlling role of questions. It's how courts operate.

Once I asked my Andover/Yale/Harvard Law friend if he is a Mason. His answer: "Are you?"

EnigmatiCore gets it ... :-)

@mtrobertsattorney, that's a fact!

The Socratic method is an element of the Classical Greek School of Philosophy cum monastic order called Skepticism, the Greek base of which means living like dogs (a long story). Skeptical epistemology was at pains to demonstrate that nothing is knowable and accomplished that revelation via questioning. A modern relative is Godel's "Proof."

A difference between Greek Skeptics and modern skeptics is that whereas the former tended to live the consequences of their insights (often literally living like dogs, thus their name, Skeptics, which was awarded them by ordinary citizens as a term of abuse), modern skeptics tend to be mere anarchists who like to raise hell through indiscriminate challenges while loving their lattes (e.g., Bill Ayers and Bernadine).

Allison said...

Sigivald,

You are so right.

Forcing a student to puzzle out things is not bad. Forcing them to puzzle out things too far in front of them is, because they will become ashamed or hopeless and give up. But what's worst is when the puzzling is really just a set up for showing what a fool someone was.

When I read the Dialogues, all I saw was Socrates setting up people with "surely you think.." to people who would never have thought that except for Socrates implying they should in the first place, and he only did it to lead them to a cul de sac and make fun of them. Sucker!

The Socratic method is good for those who are given digestible steps, and led along a path to the Truth. If you're going to use it to show the lack of truth in anything, you're not helping someone at all. they will not ever understand what they were supposed to take away.

Mr. Hanna, I was a physics major too, and awfully bad at this method. It's a mite bit uncomfortable for the observers, sometimes it's painful, but it's soul-destroying for many of the questioned. I don't think you should equate the experience of the audience to the person under siege.

Palladian said...

I occasionally apply a modified version of the Socratic method to critiques in my college-level art classes, with varying degrees of success. The trick is to try to get the students to emotionally separate themselves from their work and understand that criticism of artwork in a classroom environment is designed to help them strengthen their arguments, strengthen their work and make them better advocates for their work and their artistic vision. This is complicated, because I also don't believe in "explaining" visual (or other) artwork and I think the "artist's statement" is one of the greatest blights on artistic discourse in the modern era. I try to get the students to generalize the specifics of their work and learn to argue around what I call the "central mystery of art" rather than attempt with futility to explain it away.

AST said...

I don't think Socrates was as Socratic as this guy, but I really do like the point of the first statement. One of the reasons I didn't do better in law school (I still graduated cum laude.) was that I thought that what they wanted was discussions of the borderline aspects of the exam scenarios. As I practiced law, however, I almost never encountered the kind of problems we spent all our time discussing in law school.

One of the things wrong with jurisprudence these days is precisely what he says here, it's too open-ended, spongey and discretion-ridden, which means that who the judges are is more important than the law itself. The judiciary becomes a third political branch in essence, but without any accountability to the people like the other two. Hence we get ugly battles over confirmation, like Bork's or Thomas'. It's all about their political views and whether they will overturn one or two major cases, rather than their overall understanding and approach to law.

BTW, what are the 7 major values of certainty in law?

realwest said...

I had the misfortune of having Robert Summers teaching Criminal Justice in my first semester at Cornell. I had that class as my very first class at Cornell Law School and I was, literally, 8 days out of Vietnam (Infantry). I'd never heard of the "Socratic Method" and was accordingly stunned to see it in use when he humiliated a student so badly that the student actually started to cry! Then Summers mercifully went on to another student and did the same thing. I packed up my books, stood up and walked the loooong staircase out of the lecture hall, and had Summers call out my name, asking me where I thought I was going. I responded that I was going to the nearest blankety blank bar and get blankety-blank shit faced (as I said, I was 8 days out of Vietnam and not yet, ah, civilized).
We ended up in a shouting match during the course of which I let it be known that it wouldn't bother me in the least to terminate his life. It was the only time he shut up.
Professor MacNeil, on the other hand, was a true gem - someone who truly challenged your intellect, did not raise the fear factor in every student he called upon and would recognize if you were correct! And his method of teaching Contract Law was then so new that our textbook was a photocopy of his "working draft" textbook. It and he were brilliant. I cannot pass judgment on Prof. Summers ability to teach as I am still 40, years later, hostile to him for humiliating those students SO much.
Indeed, in 1973 or so, after I'd graduated, I'd heard that Prof. Summers taught some undergraduates in a "pre-law" class and used HIS version of the Socratic Method. Undergraduates cried, parents were called, the University President was called and suddenly Professor Summers no longer taught undergraduates.
I truly think Professor Summers will not be missed by many students.

mrs whatsit said...

realwest, there was something fundamentally respectful about MacNeil's approach to students. The only times I ever saw students come near humiliation in his class was if they were unprepared -- which, he had warned us on the first day, was an unforgivable sin in his eyes. If being unprepared wasn't the reason you couldn't answer him, he drew out of you what you COULD say and moved on, leaving you embarrassed but not wrecked.

In Constitutional Law that year, on the other hand, we had a professor whose name I mercifully can't recall at the moment who seemed genuinely to delight in using the Socratic method to humiliate. He was confrontational, bellicose, and even disdainful in his interactions with students. we heard he was going through a bad divorce; perhaps that was the reason. He regularly reduced students to tears -- on one occasion, a black woman whose sin was to gasp out loud when he stated that Plessy v Ferguson was rightly decided.

I did learn from him, I'm rather sorry to say (his reason for thinking Plessy was rightly decided was not the racism that superficially seemed likely, though all these years later I could not tell you any more exactly what it was -- some structural theory he had of the Constitution)-- but certainly not the way I learned from MacNeil. Students walked out sometimes, but as a group, we had another way of fighting back: we hissed him, en masse, like a roomful of angry snakes. Do law students still hiss? Do they still need to?

Gabriel Hanna said...

@mtrobertsattorney:

If Socrates happened to wander into a law school class today, it would be the law professor who would be asked the questions, not the students.

Damn right. And the Socrates of "Republic" would BE the law professor.

@Jennymoose:

Although hardly Socratic, his tales of the heroic Kleinschmidt grade, spiraling up from Hell's Canyon on the Idaho side

Been there. Go if you haven't. I loved the Snake River and I will miss it forever.

@Allison:

Mr. Hanna, I was a physics major too, and awfully bad at this method. It's a mite bit uncomfortable for the observers, sometimes it's painful, but it's soul-destroying for many of the questioned. I don't think you should equate the experience of the audience to the person under siege.

I've been on both ends, and I expect to use it in my teaching. It takes some skill and sensitivity, which Socrates didn't always exhibit, hence the hemlock.