'A Heretical View of Teaching: A Contrarian Looks At Teaching, The Carnegie Report and Best Practices' by Gary Shaw in (2012) 28(4)
Touro Law Review argues that
Once again, law school pedagogy is the subject of close scrutiny and intense criticism. In 2007, two reports, the Carnegie Foundation for the Advancement of Teaching Report, Educating Lawyers and Best Practices For Legal Education were published. Both of these publications have triggered extensive re-evaluation of the pedagogy in law schools. As Robert MacCrate states in the Foreword to Best Practices, the Carnegie Report and Best Practices share a central message. That message has three components. Law schools should:
1. broaden the range of lessons they teach, reducing doctrinal instruction that uses the Socratic dialogue and the case method;
2. integrate the teaching of knowledge, skills and values, and not treat them as separate subjects addressed in separate courses; and
3. give much greater attention to instruction in professionalism.
Both reports recommend that these changes be implemented throughout the entire curriculum, with the result that if their recommendations were followed substantial changes in the first year curriculum would occur. Indeed, the Carnegie Report states that "[a]lthough our discussion ranges considerably beyond the first-year experience, because that experience is so significant in shaping the whole of legal education, it is our emphasis". Best Practices concludes that in the first year, "[t]he Socratic dialogue and casebook method should be used sparingly. Context-based instruction, especially discussion of problems should be the prevalent method of instruction. "
The two reports differ to some extent in the deficiencies they find in the Socratic dialogue and their emphases on these deficiencies. The Carnegie Report states that the pedagogy absent in Socratic dialogue—what it terms the shadow pedagogy—has two components: experience with clients and concern that the legal profession lacks ethical substance. The Report also argues that law schools‘ overemphasis on legal analysis can color or even undermine their attempt to teach professionalism and ethics to such an extent that later attempts by law schools to inculcate these perspectives and skills may inevitably fail.
Best Practices, on the other hand, not only shares the concerns of the Carnegie Report that Socratic dialogue has "significant defects as an instructional tool" and that it teaches "only a small part of the skills and knowledge needed to practice law effectively and responsibly", but goes on to state that the "most important reason to limit the use of Socratic dialogue is because too many law school professors abuse the method with the result that students‘ sense of "self-worth, security, authenticity, and competence" are unnecessarily undermined.
Although the reports have much to recommend them, I believe that their position with respect to the first year curriculum is in error, and perhaps into part of the second year as well. In essence, their argument is two-fold. First, that Socratic dialogue intrinsically results in the problems mentioned and second, that experiential learning will teach analytical and synthesis skills, as well as fostering professionalism, better than Socratic dialogue. This article will address both these points. First, I argue that Socratic dialogue does not intrinsically cause the harms claimed above. This argument has two components. First, much of the harm attributed to Socratic dialogue is misguided and is in fact a critique of bad teaching technique rather than any flaw intrinsic in Socratic dialogue. Second, to the extent that some of the observations regarding the nature of Socratic dialogue are accurate, they should not be considered as flaws but rather as strengths with respect to the pedagogy that Socratic dialogue fosters.
My second point, that in the first year, experiential learning does not teach analytical and synthesis skills better than Socratic dialogue, nor does it do a better job of fostering professionalism, also has two components. First, analysis and synthesis are foundational skills that are more effectively taught by focusing primarily on these skills by use of Socratic dialogue. Second, I argue that the inculcation of professionalism is not a function of method of instruction but rather a function of the entire culture created by the law school environment rather than the specific curriculum. Thus, within the first year curriculum, experiential learning is not intrinsically superior to Socratic dialogue for the purpose of inculcating professionalism. Rather, again, problems with respect to inculcating professionalism are a function of the quality of teaching rather than the curriculum.
Finally, I argue that the failure of the Carnegie Report and Best Practices to recognize that many of the problems they are trying to address are due to poor teaching rather than the Socratic dialogue means those reports‘ recommendations cannot achieve the results hoped for. Current law school hiring practices do not select for good teachers. Instead, they select for qualities that are not predictive of quality teaching. Until law schools start selecting for teaching skills, the quality of law school faculty teaching is not likely to improve. And if the true problem is the ability of law school faculty to teach, then changing the curriculum without improving the quality of the teachers is unlikely to improve the law school educational experience.
