Truong hai ha QH 2007 f1 e1 DNH the casebook and socratic methods in the united states legal education

VIETNAM NATIONAL UNIVERSITY, HANOI University of Languages and International Studies THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION TRƯƠNG HẢI HÀ THE CASEBOOK AND SOCRATIC METHODS

VIETNAM NATIONAL UNIVERSITY, HANOI

University of Languages and International Studies THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION

TRƯƠNG HẢI HÀ

THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION

submitted in partial fulfillment of the requirements

for the degree of bachelor of arts (TEFL)

Hanoi, May 2011

VIETNAM NATIONAL UNIVERSITY, HANOI

University of Languages and International Studies THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION

TRƯƠNG HẢI HÀ

THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION

submitted in partial fulfillment of the requirements

for the degree of bachelor of arts (TEFL)

Supervisor: Nguyen Thi Bach Thao, MA

Hanoi, May 2011

STATEMENT OF ACCEPTANCE

I hereby state that I: Truong Hai Ha, class 07E1, being a candidate for the degree of Bachelor of Arts (TEFL) accept the requirements of the University relating to the retention and use of Bachelor’s Graduation Paper deposited in the library

In terms of these conditions, I agree that the origin of my paper deposited

in the library should be accessible for the purposes of study and research,

in accordance with the normal conditions established by the librarian for the care, loan or reproduction of the paper

Signature

April 30th, 2011

ACKNOWLEDGEMENTS

First and foremost, I would like to show my deepest gratitude to my supervisor, Ms Nguyen Thi Bach Thao, whose constructive comments, encouragement, guidance, support from the initial to the final step have enabled me to complete this thesis

Secondly, I am heartily thankful to Mr Ngo Huy Cuong, Professor at the Faculty of Law, Vietnam National University, Hanoi for giving me the inspiration and confidence to carry out this research

Thirdly, it is a pleasure to thank the kind-hearted librarians at the Library and Information Center Vietnam National University, Hanoi for their helpful services

Last but not least, I am indebted to my family and friends who have given me the invaluable support during the completion of the paper

Truong Hai Ha

ABSTRACT

The casebook method is the usage of casebooks containing court decisions of actual cases as teaching materials; and the Socratic method is the in-class dialogue or questioning employed by the teacher They were first introduced in American legal education by Former Harvard Law professor Christopher Columbus Langdell in the 1870s Although the heated debate as to the effectiveness of the methods have never ceased since then, the casebook and Socratic methods remain the predominant teaching methods in American till the current day This thesis paper presents a brief history of how the two methods came into existence in the American legal education, analyzes the two methods in practice along with their supporting and opposing critiques, and offers some implications for Vietnamese higher education From the information collected and processed by means of document comparative analysis methodology, it was found that despite all the critiques, the casebook and the Socratic methods have proved to be especially effective in preparing students for their future careers Based on such analysis, some implications for Vietnamese higher education can be realized First, it is necessary for Vietnamese higher education to prepare students with practical skills to meet the demands of the labor market Secondly, teachers and learners‘ interaction in Vietnamese higher education should be increased Last but not least, Vietnamese learners‘ self-study ability needs to be developed These can be done by learning the appropriate teaching methods from more advanced countries However, Vietnamese social, economic and other related features need to be taken into consideration before any adoption and/or adaption is made

TABLE OF CONTENTS

Acknowledgements

Abstract

Chapter 1: Introduction

1.1 Statement of the problem and rationale for the study

1.2 Aims and objectives

1.3 Scope of the study

1.4 Significance of the study

1.5 Methodology

1.6 Organization of the study

Chapter 2: A brief history of the casebook and Socratic methods

in the U.S legal education

2.1 Legal education before Langdell‘s reform

2.1.1 Legal profession in colonial period

2.1.2 Legal training in colonial period

2.1.3 Birth of American law schools

2.2 Langdell‘s approach and reform

2.2.1 Langdell’s approach to legal education

2.2.2 Langdell’s introduction of the casebook method

2.2.3 Langdell’s introduction of the Socratic method

2.2.4 The expansion of the casebook and Socratic methods

2.3 Summary

Chapter 3: The casebook method and its critiques

3.1 The casebook method in practice

3.2 Arguments in support of the casebook method

3.2.1 Increasing students’ interest in learning law

3.2.2 Teaching students how to read cases

3.2.3 Teaching students to think like a lawyer

3.2.4 Enabling students to learn the law through a series of precedents

3.2.5 Enabling students to understand the law making process

3.2.6 Promoting students’ moral imagination

3.2.7 Developing students’ self-study skills

3.3 Arguments in opposition of the casebook method

3.3.1 Encouraging students to view law in an incomplete conception

3.3.2 Neglecting the fact finding and the legal process

3.3.3 Failing to teach lawyering

3.3.4 Breeding boredom in students

3.4 Summary and conclusion

Chapter 4: The Socratic method and its critiques

4.1 The Socratic method in practice

4.2 Arguments in support of the Socratic method

4.2.1 Teaching legal reasoning

4.2.2 Teaching students analytical thinking

4.2.3 Teaching oral communication

4.2.4 Encouraging active learning

4.2.5 Developing mental toughness

4.3 Arguments in opposition of the Socratic method

4.3.1 Creating anxiety in students

4.3.2 Creating unhealthy relationships in the classroom

4.3.3 Failing to serve the psychological need of law students

4.3.4 Having adverse impact on female law students

4.3.5 Giving students the impression of uncertainty

4.3.6 Being ineffective and inefficient in teaching lawyering

4.3.7 Inducing boredom in students and laziness in professors

4.4 Summary and conclusion

Chapter 5: Implications for Vietnamese higher education

5.1 Preparing students with practical skills to meet the demands of

the labour market

5.2 Increasing teachers-learners‘ interactions

5.3 Developing learners‘ self-study skills

5.4 Summary and conclusion

Chapter 6: Conclusion

6.1 Summary of the findings

6.2 Limitations of the research

6.3 Suggestions for further research

CHAPTER 1: INTRODUCTION 1.1 Statement of the problem and the rationale for the study

Together with the remarkable development of the American legal system, legal profession has become one of the most respected and well-liked careers in the United States According to the American Bar Association, there are 1,180,386 active attorneys practicing in the United States as of December 31, 2008 That means there is one attorney in every

386 Americans, as compared to one attorney in approximately every 20000 Vietnamese (as cited in Huong, 2009, para 3) To become an attorney, a typical American law student must study for at least 7 years – 4 years of any bachelor degree and 3 years of a Juris Doctor degree Despite this long, stressful and costly process, the most brilliant American students continue to compete for a seat in law schools In 2006, nearly 89,000 people applied for one of the 46,000 seats that were available at 193 nationally accredited law schools (Bernstine, 2007, p 270) To serve this huge demand of legal study, American legal education has also developed to an extent that it emerges as one of the most prestigious systems in the world with globally well-known law schools such as Harvard, Yale and Stanford

So the question is ―What is it that makes American legal education so distinctive among other legal education systems in the world?‖ The courses

in American law schools are similar to those in other countries: contracts, torts, property, civil procedures and criminal law Yet it is not their substance that matters It is that students are taught to ―think like a lawyer‖ (Maxeiner, 2003, p 8) This ambitious goal is achieved mainly by the use of the two major teaching methods in American law schools: the casebook and

Socratic methods The casebook method (also known as the case method) requires law students to read court decisions of actual cases that are selected and positioned in a casebook (Austin, 1965, p 157) The method originated

in the Harvard Law School under the Langdell‘s Reform in the 1870s The reading of casebooks is in conjunction with the class discussion - the so-called Socratic method, in which students are engaged in continual conversation guided by the professor and required to extract the applicable rules of law from the unessential facts of a case Till now, the casebook and the Socratic methods have been widely used not only in American law schools but also throughout the common law world‘s legal education The methods have also been adopted with modification by many business and medicine schools, in psychotherapy and human resource training and

development

Taking a look back at our homeland, just as Vietnam's economy has been transforming itself over the last few decades; it is now the turn of the country's higher education system In the past few years, attempts have been made to introduce the credit system, to enhance the educational facilities and especially to innovate the teaching methods However, Vietnamese higher education system is still constantly criticized for the incapability to produce graduates that meet the demands of the labour market, especially in this global environment since Vietnam became a member of WTO Never before has the necessity of improving the quality of Vietnamese higher education system been so urgent In order to enhance the quality of the legal education

in Vietnam, it is inevitable to learn from the more advanced systems such as the prestigious American legal education

Despite this pressing demand, in Vietnam very few insightful studies have been done on the topic The researcher of this thesis was astonished to discover this gap in the Vietnamese legal academia While legal students and lecturers tend to drive their attention to specific fields of law such as constitutional law or commercial law, pedagogic students and professors lack both interest and legal knowledge to conduct researches in legal education That is not to mention the language barrier when it comes to researching about a foreign nation like the United States Although a very small number of articles on the topic of American legal education can be found on legal journals such as ―Journal of Legislation Research‖ (Tap chi

Nghien cuu Lap phap) or ―Journal of Legal Science” (Tap chi khoa hoc

phap li), most if not all of them are written within the limited scope of legal education

The researcher of this paper is a double-degree student who is fortunate to be exposed to American studies, to have a general understanding

of pedagogy and to experience the reality of Vietnam‘s legal education at the same time Hence, the researcher feels that she is in a convenient position to conduct research on the U.S legal education In light of the fact that teaching methods play a deciding role in any education system, and the widely recognized effectiveness of the two traditional teaching methods of the U.S legal education, she has made up her mind to choose ―The casebook and Socratic methods in the United States legal education‖ as the topic for her graduation paper With this paper, she wishes to make her own contribution to the progress of Vietnam‘s legal education in particular and Vietnam‘s higher education in general

1.2 Aims and objectives of the study

This thesis aims at presenting a brief history of how the two methods were introduced and developed in the U.S legal education system Then, it gives a detailed description of the casebook method in practice along with its supporting arguments and opposing critiques The next part of the thesis carefully describes the Socratic method in practice and identifies its pros and cons Finally, based on the analysis, the thesis offers some implications for Vietnamese higher education In short, these objectives are specified in the following research questions

1 How did the casebook and Socratic methods come into existence and

develop in the U.S legal education?

2 How does the casebook method work and what are its pros and cons?

3 How does the Socratic method work and what are its pros and cons?

4 What are some implications for Vietnamese higher education?

1.3 Scope of the study

As defined by Wikipedia, ―Legal education in the United States generally refers to the education of lawyers before entry into practice.‖ However, in this research, the term ―legal education in the United States‖ should be understood in a narrower scope It should be understood as ―the post graduate three-year program, staffed by full-time faculty, teaching a mostly standardized curriculum, using the case method‖ (Gordon, 2002)

Pham (1996) in his book ―Introduction to Education‖ states that the process of teaching and learning consists of five main components which are lecturer, learner, aims, contents and methods (p.58) Due to the time limitation, this research cannot explore all of the components of the U.S

legal education The researcher would discuss a single component of the system which is its teaching methods Although there are a variety of teaching methods in the U.S legal education (see Appendix 4), the research aims at discovering the two traditional methods which are the casebook method and the Socratic method

It is essential, however, to keep in mind that a notable characteristic

of American education is decentralized administration As a part of the system, the U.S legal education and its two teaching-learning methods are

no exceptions This means that the two methods described in this paper may not be uniform all over the United States The adoption of the Harvard model might slightly vary from state to state, from district to district, from school to school, even from professor to professor Nevertheless, according

to Patterson (1951), there are three devices that are deemed essential among all the variations: ―the casebook, the participation of students in class discussion, and the problem type of examination‖ (p 35) Due to time constraints, only the first two devices are explored in this research

1.4 Significance of the study

This paper, once finished, would be a useful material for many readers First, the paper serves as a reference material about a constituent of the United States higher education system for teachers and students of the Faculty of English Language Teacher Education

Second, the analysis of the American casebook and Socratic methods

in this research provides Vietnamese law lecturers and researchers with a reliable source regarding law teaching methods in other countries

Last but not least, based on the analysis of the U.S casebook and Socratic methods, the paper offers some pedagogical implications concerning the importance of teaching methodologies in enhancing the quality of Vietnamese higher education to meet the requirements of the labour market

1.5 Methodology of the study

This paper is a secondary research which is carried out in a comparative document analysis approach First, the researcher collected reliable information about legal education in the United States from books, newspapers, journals, the Internet, and other relevant documents related to the casebook and Socratic methods in the U.S legal education Then, the information is synthesized, analyzed, compared, contrasted and evaluated to find out the precise answer for each research question As for the last research question, the researcher collects trusted information on assessing the reality of Vietnamese higher education, and bases on the answers for the previous questions to raise some suggestions to improve the quality of higher education in Vietnam

1.6 Organization of the study

The study consists of six chapters:

Chapter 1 ―INTRODUCTION‖ presents the rationale, aims and objectives, scope, significance of the study, methodology and organization

of the study

In Chapter 2 “A BRIEF HISTORY OF THE CASEBOOK AND

SOCRATIC METHODS IN THE U.S LEGAL EDUCATION‖, the

researcher summarizes the major turning points of the American legal education before Langdell‘s reform, depicts the reform with the introduction

of the two methods, and finally briefs the development of two methods after the reform

Chapter 3 ―THE CASEBOOK METHOD AND ITS CRITIQUES‖ includes three main parts: how the casebook method works, arguments in support of the casebook method and arguments in opposition to the casebook method

Similarly, chapter 4 ―THE SOCRATIC METHOD AND ITS CRITIQUES‖ is divided into three main parts: how the Socratic method works, arguments in support of the Socratic method and arguments in opposition to the Socratic method

Chapter 5 ―IMPLICATIONS FOR VIETNAMESE HIGHER EDUCATION‖ offers some relevant implications that can be learnt from the casebook and Socratic methods in the U.S legal education

In Chapter 6 ―CONCLUSION‖, the contents and research results of the study are summed up, the limitations of the study are pointed out and some suggestions for further studies are given

CHAPTER 2: A BRIEF HISTORY OF THE CASEBOOK AND

SOCRATIC METHODS IN THE U.S LEGAL EDUCATION

2.1 Legal education before Langdell’s reform

2.1.1 Legal profession in the colonial period

According to Moline (2004), in colonial America there was no comprehensive legal system and no need for lawyers Each colony was founded separately and functioned independently Each developed its own flexible and optional legal system, generally drawn from English common law, but with an overlay of local customs, usages, and eccentricities Lawyers were considered unnecessary and even disadvantageous to such a simple system of justice They were viewed as potential political rivals by the merchants and as agents of landlords by the rural people Therefore, as of

1706, the entire Bar of Pennsylvania consisted of no more than three or four English-trained lawyers (Warren, 1911, p.107)

Friedman (1973) has shown that the simplicity of life in colonial America in the early seventeenth century led to the fact that most disputes were resolved based largely on the Bible, common sense, and concepts of fairness (p 81) With the beginning of the eighteenth century, however, the American colonies began to grow in wealth and influence It soon became evident that law and lawyers played a vital role in protecting property and developing trade relations As the colonies developed and prospered, the demand for lawyers soon surpassed the supply An underground industry of amateurs and part-time lawyers, often untrained and even uneducated, filled the void Gradually, however, an indigenous bar evolved of full-time, more

or less trained lawyers Thus, by Independence Day in 1776, there was a trained bar in nearly every colony (Moline, 2004, p.778)

2.1.2 Legal training in the colonial period

As claimed by Moline (2004), American legal education, like American law, has roots deep in English history Unlike the countries of continental Europe that viewed law as a learned profession to be taught as a social science in a university setting, English considered law as a craft to be learned by the handing down of knowledge from master to apprentice (p.775) For centuries, English legal education relied entirely on apprenticeship and affiliation with the respected Inns of Court in London, which is historically a third university with as much influence as Oxford and Cambridge

That explains why in the early eighteenth century, formalized training for the would-be-lawyer virtually did not exist in the U.S Early attempts to promote scholastic method of legal training were unsuccessful In his book

―Legal Education During Colonial Period, 1663 -1776‖, Consalus (1978) stated that beginning in 1642, Harvard College provided a course entitled

―Ethicks and Politicks‖ (p 29) Other colonial colleges also offered courses with respect to natural law, moral philosophy, and government theory Nonetheless, these courses were of little help to young men who were eager

to learn the fundamentals of practicing law

Some of those who seek to learn law, mostly from the southern colonies, traveled to England to study at the Inns For others, there were basically three options The first was a reading program of self-study, in which the student read whatever law books he could borrow and picked up

what practical law he could on his own Second, he could serve as scribe or assistant in a government or judicial office Third, the aspirant could serve as

an apprentice to an established lawyer (Consalus, 1978, pp 30-37)

Among them, the most common method of legal preparation in America was the apprenticeship system McKirdy (1976) described the system as a contract in which a practicing lawyer agreed to provide instruction in the law while the student had to pay a certain amount of fee and work as clerk or general assistant for the lawyer in return The student was supposed to learn both the theoretical and practical aspects of law by individual study, by observing his mentor and other lawyers in action, and, hopefully, by direct instruction and supervision Most importantly, the mentor was supposed to guide the student through a carefully selected reading program to absorb the literature necessary for a mastery of the law (pp 124-127)

This apprenticeship system worked well because it could be adapted easily and apprentice labor could fill many necessary functions Despite the benefits, apprentice training was unstructured and uneven Time was often spent on menial tasks rather than study Also, most of the mentors were so busy with their work as a lawyer that they often left pupils on their own However, some mentors performed their task admirably A prominent example was Theophilus Parsons, one of the most learned and admired lawyers in Massachusetts Diligent mentors like Parsons began to spend less time practicing law and more time educating their students It was from such specialized law offices that the first law schools evolved (Friedman, 1973, p.279)

2.1.3 Birth of American law schools

As previously described, the first law schools grew out of specialized law offices that employed several apprentices at one time The earliest law school is believed to be founded in 1784 in Litchfield, Conneticut, by Judge Tapping Reeve (Jones, 2006) Moline (2004) acknowledged that Litchfield granted no degree and for the most part was unconcerned with historical development or philosophic formulation It was an entirely practical program designed solely to teach the student what he needed to know to practice the law The course lasted from fourteen to eighteen months of intensive study; examinations were held every week Instruction was through lectures in which students were required to take careful notes and transcribe them into notebooks Students‘ notes from around 1803 show that Judge Reeves‘s main teaching method was explaining reasons for the rules

of law and supporting the rules with case citations (p 795)

As many Litchfield‘s graduates became citizens of distinction and had significant social and political impact on the society, the school served as a model for several other independent law schools in a number of states By

1835, there were eighteen other law schools independent of a university Originally, law schools were a supplement to the apprenticeship program, and argued that their existence was necessary to provide one phase of a student‘s multi-phased preparation for lawyering Moline (2004) confirmed that despite the short lifespan of most of these independent law schools, they were a continuing phenomenon in the first half of the nineteenth century And in spite of the evident narrowness of the Litchfield curriculum, ―the Litchfield School and its imitators were the first step into a slow and somewhat reluctant recognition that law was a learned profession and not

simply another craft to be learned to self-education or apprenticeship.‖ (p 797) In the meantime, most of the colonial universities were unable and often reluctant to incorporate legal education into their curricula Slowly but surely, however, the movement into university-based legal education had begun

During the early nineteenth century, it became possible for students to study at a college or university In 1826, when Judge David Dagget was appointed to the vacant professorship in law at Yale, the independent law school that he served as its head was absorbed by Yale Beginning in 1826, Yale offered a complete ―practitioner‘s course‖ in law requiring enrollment for two years, which included practice in the drafting of legal documents Slightly earlier than Yale, Harvard University established its own law school

in 1817 (Jones, 2006, p.1080) Classes at Harvard generally consisted of students gathering in a hall to listen to a professor lecture on the law Other universities followed, founding law schools or absorbing other independent law schools The growth and development of law schools, however, was slow because apprenticeship continued to be the preferred method of preparation By 1840, the L.B.B (Bachelor of Law) became the usual form

of the first degree in law awarded by universities By 1870, thirty-one law schools had been established Of those, twelve were one-year program, two required one and one-half years, and seventeen required two years (as cited

in Moline, 2004, pp 798-799) For the most part, the schools had no entrance requirement except a vague ―maturity and good moral character‖ test, and there was often no examination for the degree While the independent law schools provided more practice than university-based law schools, the universities taught mostly theory, history and philosophy of the

law Both kinds of law schools, however, used lecturing as their predominant methods It required little from the students and offered very little practical information about how to apply what had been learned This

is, in fact, very similar to the situation of Vietnam‘s legal education nowadays

Despite the movement towards more formalized legal education,

―reading law‖ continued to be an acceptable and to some even preferable method of training for a career in law As a result, Harvard and other law schools struggled to compete with the education provided through the apprenticeship system, and they sought to make changes that would promote their recruitment efforts In 1870, Christopher Columbus Langdell became the first Dean of Law at Harvard During the 1870s, Dean Langdell and Harvard‘s President, Charles William Eliot, began to ―segregate legal education from lawyers and the practice of law.‖ They developed what would become the ―prototype for model legal education in the United States: the three-year, postgraduate … curriculum of private-law courses staffed by

a faculty of full-time academics teaching by the ‗case method‘‖ (Gordon, 1995)

2.2 Langdell’s approach and reform

2.2.1 Langdell’s approach to legal education

When Christopher Columbus Langdell

left the practice of law to become a law

professor, he brought about a new era of legal

education, significantly changing the future of

Image 1:

Christopher Columbus Langdell

American law schools for generations to come Up to the mid-nineteenth century, the bar, not the university, determined the legal education of most young practitioners through its apprenticeship system Law school education lasted eighteen months or less and the curriculum consisted of ungraded, elementary courses There were no exams or attendance requirements, and faculty taught part-time while maintaining full-time legal or judicial work Treaties were the written materials from which students were to learn

Nevertheless, Langdell argued that lawyers should be educated by law schools, and not exclusively by reading treaties on the law, but rather by examining the actual, written decisions of the courts He also proposed that the job of law professor should be the professor‘s full-time job, rather than practicing full-time and teaching law students as a secondary responsibility

In addition, Langdell lifted law to a post-graduate level of study and increased the length of study to three years He introduced entrance exams, graduation exams, rigorous coursework and most importantly the casebook and Socratic methods Langdell viewed law as a science and the law library

as the laboratory, with the cases providing the basis for learning those

―principles or doctrines‖ of which ―law, considered as a science, consists.‖

In other words, Langdell constructed the study of law as a science similar to natural science with the expectation of promoting the convention of legal study in the eyes of the university community (Sonsteng et al., 2007, p.324)

It was Langdell who introduced the notion of legal formalism – a common law theory that dominated the second half of the nineteenth century Under formalism, ―the common law contains a systematic, eternal array of broad principles and specific doctrines, all interconnected and logically consistent.‖ These doctrines were discovered by judges through the

study of judicial decisions and a process of inductive reasoning To illustrate, each legal doctrine has arrived at its present state by slow degrees

of development extending in many cases through centuries This development can be traced mainly through a series of cases Hence, the only way of mastering the doctrine effectively is by studying the cases in which it

is embodied This notion of legal formalism led to Langdell‘s most significant contribution to legal education, the casebook method

2.2.2 Langdell’s introduction of the casebook method

In Langdell‘s view, only small portion of the cases reported were useful and necessary The rest, maybe even the vast majority, were of very limited use to systematic study Moreover, the same doctrine appears in several cases, and vast legal treaties are full of repetition ―If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number.‖ Subsequently, Langdell‘s approach to law, which classifies cases under a few general principles, turned into the fundamentals for the organization of all legal knowledge (Patterson, 1995, p 196)

In the second term of the 1870-1871 academic year, Langdell began to apply this doctrine to his teaching Langdell collected an adequate group of judicial opinions of important cases to employ his new method His

―textbook‖ in Contracts and in Sales was his selection of cases that he considered worthy of examination In 1870, he published the complete, first edition of his first casebook, ―Cases on Contracts‖, and immediately employed this casebook in his teaching of ―Contracts‖ at Harvard

The main focus of Langdell‘s casebook method was on original sources of the law and on the methods of case analysis and legal reasoning

in case law In the casebook method of study, a single correct way of analyzing or organizing opinions does not exist, while it is a process not the outcome that is significant Langdell‘s casebook method is considered novel because it replaced textbooks with appellate cases ―arranged to illustrate the meaning and development of principles of law.‖ Today, some of Langdell‘s theories about how case law should be taught have been eroded by new ideas, but even after modification, Langdell‘s method is still the basic model for most modern American law school courses

2.2.3 Langdell’s introduction of the Socratic method

In addition to the casebook method, Langdell incorporated Socratic dialogue into classroom discussion In the book ―The Centennial History of Harvard Law School 1817 – 1917‘, the Harvard Law School Association (1918) described the dramatic effect of the first trial case method in the Fall

of 1870 as follows:

The lecturer opened his [headnotes]:

Mr Fox, will you state the facts in the case of Payne v Cave?

Mr Fox did his best with the facts of the case

Mr Rawle, will you give the plaintiff‘s argument?

Mr Rawle gave what he could of the plaintiff‘s arugment

Mr Adams, do you agree with that?

And the case system of teaching law had begun (pp 34-35)

The Socratic method of instruction engaged students in continual conversation and required them to extract the applicable rule of law from the unessential facts of a case The method motivated students to reason rather than recite The professor encouraged intelligent analysis and required students to determine the principal

legal doctrines The reason for

utilizing Socratic method instead

of lecture as a method of

instruction is to stimulate the

students to perform the necessary

case analysis and critique

themselves, rather than passively

listening to a lecture showing them

how to do it

www.lawiki.org, the Socratic

method, named after the Classical

Greek philosopher Socrates, was originally utilized in the ancient times ―It

is a dialectical method, often involving an oppositional discussion in which the defense of one point of view is pitted against the defense of another; one participant may lead another to

contradict herself in some way,

strengthening the inquirer's own point.‖ Elenchus (the Ancient Greek word for argument of disproof or refutation; cross-examining, testing) is the central technique of the Socratic method Socrates generally applied his method of examination to concepts that seem to lack any concrete definition;

Image 2: Socrates

e.g., the key moral concepts at the time, the virtues of piety, wisdom, temperance, courage, and justice Such an examination challenged the implicit moral beliefs of the interlocutors, bringing out inadequacies and inconsistencies in their beliefs, and usually resulting in puzzlement

2.2.4 The expansion of the casebook and Socratic methods

Back to Langdell‘s reform in the 1870s, when he commenced fundamental changes at Harvard Law School, he faced resistance from both students and colleagues Students studying under Langdell‘s system had to get used to the new competitive culture with its entrance exam, rigorous academic requirements, demanding pace, and an additional year of schooling They complained openly and bitterly that they were not being taught ―the law‖ Professors had to accept heavier teaching loads due to the three-year curriculum, and had to get accustomed to the new methods of teaching When the three-year curriculum requirement took effect in 1876, enrollment steadily plummeted from 199 students to 138 in 1882 Harvard graduates were fewer compared to other law schools, some potential students were disqualified by the new admission requirements, and others were persuaded to reject the program by family members who opposed Langdell‘s reform (Sontsteng et al., 2007, p 326)

While this disturbed Langdell, and drew much criticism, by the end of the nineteenth century, enrollment increased, the faculty expanded, and the new legal education culture finally took hold By the early 20th century, virtually every American law school had adopted Langdell's method It also slowly won acceptance in the schools of business and medicine Moreover, the Socratic method has been adapted for psychotherapy and used by

modern management training companies Although most law schools began

to introduce some form of clinical education to supplement the classroom study of cases since the 1960s, casebook and Socratic methods continue to remain at the core of American legal education until the present time

2.3 Summary

In colonial America, there was no comprehensive legal system and no need for lawyers Most disputes were resolved based largely on the Bible, common sense, and concepts of fairness However, in the beginning of the eighteenth century when the colonies developed and prospered, the demand for lawyers expanded An underground industry of amateurs and part-time

lawyers, often untrained and even uneducated, filled the void

American legal education, like American law, has roots deep in English history Unlike the countries of continental Europe that viewed law

as a learned profession to be taught as a social science in a university setting, English considered law as a craft to be learned by the handing down of knowledge from master to apprentice That explains why in the early eighteenth century, formalized training for the would-be-lawyer virtually did not exist in the U.S Some of those who seek to learn law traveled to England to study at the Inns Others take a reading program of self-study or serve as an assistant in a government or judicial office But the most common method was to work as an apprentice to an established lawyer Some of these lawyers began to spend less time practicing law and more time educating their students It was from such specialized law offices that the first law schools evolved

The earliest law school is believed to be founded in 1784 in Litchfield, Conneticut As many Litchfield‘s graduates became citizens of distinction, the school served as a model for several other independent law schools in a number of states By 1835, there were eighteen other law schools independent of a university After Harvard University established its own law school in 1817, other universities followed, founding law schools

or absorbing other independent law schools By 1870, thirty-one law schools had been established in the U.S Both kinds of law schools used lecturing as their predominant methods

In 1870, Christopher Columbus Langdell became the Dean of Law at Harvard and carried out a major reform He introduced the notion of legal formalism –―the common law contains a systematic, eternal array of broad principles and specific doctrines, all interconnected and logically consistent.‖ This notion of legal formalism led to Langdell‘s most significant contribution to legal education, the casebook method In 1870, he published the complete, first edition of his first casebook, ―Cases on Contracts‖, and immediately employed this casebook in his teaching of ―Contracts‖ at Harvard The main focus of Langdell‘s casebook method was on original sources of the law and on the methods of case analysis and legal reasoning

in case law In addition to the casebook method, Langdell incorporated Socratic dialogue into classroom discussion The Socratic method of instruction engaged students in continual conversation and required them to extract the applicable rule of law from the unessential facts of a case

When he commenced fundamental changes at Harvard Law School,

he faced resistance from both students and colleagues While this disturbed Langdell, and drew much criticism, by the end of the nineteenth century,

enrollment increased, the faculty expanded, and the new legal education culture finally took hold By the early 20th century, virtually every American law school had adopted Langdell's method It also slowly won acceptance in the schools of business, medicine and many other fields

CHAPTER 3: THE CASEBOOK METHOD AND ITS CRITIQUES 3.1 The casebook method in practice

Nowadays, in the majority of American law school courses, casebooks are used as the only texts The casebook contains judicial opinions, as well as any relevant statues It also includes some textual materials that link the cases together or summarize case law or statutory law that are not important enough to be read as primary materials (Burnham,

2002, p.121) Indeed, students will learn that in many areas of law there is

no such thing as a fixed set of rules, but only a continuously developing system of principles Students are expected to understand the law – in all of its vagueness – through a critical examination of a series of cases that were decided according to such principles

In practical terms, the casebook method normally works like this: Students are required to acquire a personal copy of the book For every class meeting, students will be assigned a number of cases to read The cases are the written judicial opinions rendered in court cases that were decided at the appellate level (See Appendix 1) The reason for reading cases from courts

of appeal or supreme courts is that such cases turn on issues of laws, not of facts Following the cases, there are study questions that remind students which aspects of the case are important, confusing, or questionable Students‘ assignment simply will be to read the cases and be in a position to answer questions based on them

Class sessions are discussion of the principal cases that students were assigned to read, so the responsibility of the students is to understand the decision before going to class The first purpose of class discussion is to

identify the governing rules of law that sustain the case Then, guided by the instructor, students learn how to ―disassemble‖ a decision and analyze its component parts Students also learn to ―relate one case to another, to harmonize the outcomes of seemingly inconsistent cases so that they are made to stand together.‖ This process of training enables students to acquire not only an approach to thinking and working with cases that constitutes the fundamentals of legal reasoning, but also knowledge of doctrinal rules revealed in such cases

3.2 Arguments in support of the casebook method

3.2.1 Increasing students’ interest in learning law

Advocates of the casebook method emphasize that most students may

be more attracted to the real stories of human behavior that underlie each opinion than the black letter law Moreover, these stories describe lawyers at work, which is what law students have come to law schools to learn about Weaver (1991) claimed that under the lecture method, a student is likely to come into lecture with an empty mind Meanwhile, in reading cases, students, whether they approve or not of the decision or are in doubt or confusion over it, still come into class interested and eager to express their views, or to have their doubts clarified or their confusion solved (p.548) In addition, reading cases allows students not only to learn legal rules, but to see how those rules have been applied It would be a waste of time for students to go law schools only to learn the simple legal rules that were written for the general public

3.2.2 Teaching students how to read cases

The casebook method is also referred to by advocates as a means to teach students how to ―read‖ cases Analyzing cases is an essential skill for any lawyer; and the casebook method provides a direct way of teaching that skill In order to read a case, a student must be able to divide it into its constituent parts; the relevant facts, the legal issues, the holding, and the justifications for the decision A student must also learn to brief a case – to recognize what the important facts are, what the court decided, and why Then, a student considers the arguments of other lawyers and learns whether the court found those arguments to be sound In addition, the casebook method facilitates students‘ skills to synthesize cases, fitting several together

to explain what the law is (Rowe, 2000, p 21) All these techniques are the crucial foundations of becoming a lawyer

3.2.3 Teaching students to think like a lawyer

American legal education has also been proud of its ability to teach students to ―think like a lawyer‖ Supporters of the casebook method consider the method as the main tool to achieve this goal Through analyzing court opinions, law students learn to recognize bias, assumptions and points

of view, and gradually acquire critical thinking skills Lawyers must perform

in a variety of contexts during their careers, and critical thinking skills are necessary in many of these contexts They must be advisers, negotiators, advocates, judges, arbitrators, and frequently administrators and executives Redlich (1914) in his report noted how the casebook method students stood out strongly in ―excellent logical training, capacity for independent study, … quick comprehension of the actual points of law involved, and indisputable knowledge of positive law‖ (p 29) Sharing the same viewpoint as Redlich,

Sullivan et al (2007) agreed that the method is ―designed to prepare students

to ‗think like a lawyer‘‖

3.2.4 Enabling students to learn the law through a series of precedents

Weaver (1991) also claimed that the casebook method was the only realistic way to learn law in a system based on precedents (p 553) In a common law system like the U.S., a judge may announce a ―rule‖ in the opinion of a case and even provide some words that suggest the rule‘s importance and the necessity of applying it in future cases Nonetheless, to confirm the significance of that rule, the only way is to refer to how it has been applied in subsequent cases Is the rule followed or is it distinguished? The casebook method is found efficient and effective for students in examining the extent to which judges follow, distinguish, or avoid precedent

in determining the ―law‖ in a given area

3.2.5 Enabling students to understand the law making process

An important justification for using the casebook method is that it can

be used to provide students with knowledge about the law making process (Weaver, 1991, p 554) Undoubtedly, the rules and doctrines contained in legal precedents are a fundamental part of the American legal system However, mere knowledge of precedents, doctrines, and rules are not enough for students to practice law No legal system in the world, no matter how complete, can provide enough rules to apply to all circumstances in its constantly changing society Therefore, more often than not, analyzing existing law, judges have to exercise discretion in reaching a decision, hence essentially engage in ―law making‖ or ―law creation.‖ This flexible aspect of law can be revealed by the casebook method

3.2.6 Promoting moral imagination

According to Kronman (1993), because the casebook method uses real cases as a basis for exploring the different positions embodied in the case, students develop their imagination as they cannot avoid considering different perspectives Over time, the practice of paying attention to different sides of

a case becomes ―habitual.‖ This process, as carried out through the casebook method, ―works simultaneously to strengthen both the student‘s power of sympathetic understanding and his ability to suppress all sympathies in favor

of a judge‘s scrupulous neutrality‖ (p.113)

3.2.7 Developing students’ self-study skills

The students of the casebook method may soon find themselves trapped in a dead end ―He is given no map carefully charting and laying out all the byways and corners of the legal field, but is left, to a certain extent, to find his way by himself‖ (Garner, 2000, p 327) In this process, a student‘s self-study skills are also developed If he successfully overcomes the obstacles, he experiences the feeling that he has acquired this knowledge of the law on his own The legal content of his mind has a personal nature; he has made it himself

3.3 Arguments in opposition of the casebook method

3.3.1 Encouraging students to view law in an incomplete conception

Sometimes the casebook itself is ineffective as a teaching device Langdell‘s casebooks exclude decisions that were not sufficiently faithful to the ―fundamental‖ rules and doctrines The overemphasis on principles and doctrines implied that, in a given case, lawyers and judges were searching

for one true rule This view ignored the realities of law Decisions that did not completely fall in line with fundamental rules are as important as those that are faithful to the fundamental rules In fact, they must be considered in order to fully understand the law (Weaver, 1991, p.570) That is not to mention that many casebooks are a gigantic collection of facts and judgments with no connecting trend of legal doctrines

Moreover, according to Maxeiner (2007), the casebook method can undermine or even drive out all other considerations in legal education (p 31) It leads to the inadequate attention to the socio-ethical side of law It is doubtful whether a rigid and narrow casebook method can help law students acquire a complete awareness of the social, economic and political implications involved in resolving a contemporary legal conflict On the other hand, the casebook method is incapable of developing a theoretical understanding of the law, and the historic processes that shape it (Grossman,

2002, p.820) The result of this is that the students never obtain a general picture of the law as a whole, not even a picture which includes only its main features

Also, students study nothing but principles and doctrines of the common law which are deemed answers for all legal questions Statutes and legislative documents, an obvious and significant source of law, are paid very little or no attention (Dow, 2004, p.585)

3.3.2 Neglecting the fact finding and the legal process

Dow (2004) also pointed out that the casebook paid no attention to fact finding, a process in which courts are regularly engaged The facts of a case are set out by the judge in the written decision To illustrate, the

casebook method captures only a small picture of the legal process, typically the level of decision-making in courts Although casebook method has the benefit of bringing out the legal issues in a case, which is helpful in the time-limited classroom, such reason alone should not abolish the opportunity, in some legal cases, to examine all of the documents involved The legal process is more complex than the restricted portrayal of legal facts within appellate decisions The issues within a lawsuit that most affect its outcome may be present in the pre-appellate stages of a case, and typically lawyers first confront a legal problem from its beginning, not at the appellate level of the legal process Students who study only appellate decisions do not have access to reality and hence enter other stages of a legal problem without necessary skills Unfortunately, in most cases, the disagreements do not exist

in the accuracy of rules and doctrines but in the facts (Abramson, 2006, p 268)

3.3.3 Failing to teach lawyering skills

Critiques have it that the casebook method is too theoretical In the real world, before there are cases, there are human beings with problems According to Kerper (1998), every practicing lawyer realizes that clients do not present themselves in lawyer‘s offices with well-defined fact patterns, clear adversarial positions, or precisely formulated objectives or goals (p 353) In short, real life clients look nothing like appellate cases Instead, they often provide information that is incomplete or distorted by self-interest or intense emotions such as anger, fear or shame Their immediate aims may be not the same as their long-term interests Parties whom they regard as their adversaries may in fact be their allies, and parties they believe to be their allies may in fact be adversaries

In the early stages of representation, successful lawyering needs skills

in various aspects including listening, fact investigation, interest clarification, negotiation, and planning However, the casebook method totally ignores to address these skills Certainly, lawyers read cases, but the case reading aims mainly at helping to solve the clients‘ problems Despite that the main purpose of the casebook method is to train students to ―think like lawyer,‖ Langdell and his followers were criticized for escaping from the real practice of law and attempting to teach students to ―think like a law professor.‖ Therefore, the replacement of the casebook method with the

―problem method‖ is gradually obtaining market share in recent years

3.3.4 Breeding boredom in students

Many scholars have argued that students‘ interest cannot be maintained at a high level for three years Most students, especially in their first year, are not mature enough to make a good synthesis of legal doctrines

or concepts, based upon case materials Yet, weeks after weeks, they are asked to read twenty to thirty pages a night for each class The repetition is likely to lead to boredom and numbness In addition, the casebook method can decrease students‘ creativity as the casebook method results in students‘

―obedience‖ to the selected decisions (Garner, 2000, p.337) The law students need to be exposed to more sophisticated legal doctrines that the casebook method, because of time limitations, cannot offer (Austin, 1965, p.164)

3.4 Summary and conclusion

The casebook contains judicial opinions, as well as any relevant statues Under the casebook method, students are assigned to read a number

of cases that were decided at the appellate level, and to study questions that remind them which aspects of the case are important, confusing, or questionable

Advocates of the casebook method argue that it is useful in increasing students‘ interest in learning law, teaching students how to read cases, how think like a lawyer, enabling students to learn the law through a series of precedents and to understand the law making process, promoting moral imagination and developing students‘ self-study skills

On the other hand, the opponents of the method criticize the method for encouraging students to view law in an incomplete conception, neglecting the fact finding and the legal process, failing to teach lawyering skills and breeding boredom in students

These critiques appear to deviate from the original focus of the casebook method In fact, these skills are not the primary aims of the casebook method, and can be acquired by law graduates after a few years of legal practice

CHAPTER 4: THE SOCRATIC METHOD AND ITS CRITIQUES 4.1 The Socratic method in practice

The Socratic method is widely used in contemporary legal education by many law schools in the United States Today, the method is used in many ways, but at its core is the idea that the professor best spends class time by leading a probing discussion, not by lecturing (Schneider, 2001, p.80)

Typically, the professor asks a question and calls on a student Then, the professor might continue to ask that student other questions or call on another student (See Appendix 3) The first step is to ask the student to summarize the case and paraphrase the court‘s arguments After that, the lecturer asks whether the student agrees with the arguments The lecturer then tries to force the student to defend his or her position by refuting arguments against it The student is then examined on specific details that may have been overlooked or unresolved Very often, the lecturer may propose a hypothetical situation that may or may not have demanded a different decision by the court Finally professors use the Socratic method to guide students to come to legal principles on their own through carefully worded questions Sometimes, the class ends with a discussion of legal rules

to boost the students‘ contemporary legal understanding of an issue At other times the class ends without such discussion leaving students to figure out the legal rules or principles on their own (See Appendix 2) Such a discussion is preferable pedagogically, because the method encourages students to reason critically rather than to appeal to authority or use other fallacies

For this method to be effective, the students are supposed to prepare for class in advance by reading the assigned materials (case opinions, notes, law review articles, etc.) and by getting to know the general outlines of the subject matter Additionally, the lecturer must be knowledgeable and skillful enough to spontaneously ask questions that induce conclusions and principles etc from the students

4.2 Arguments in support of the Socratic method

4.2.1 Teaching legal reasoning

According to Stuckey (2007), the possibility of being questioned stimulates all students in the class to participate enthusiastically in an exploration of the limits and strengths of legal arguments Students can learn legal analysis by performing it in their own minds or in an oral exchange with the professor Questioning students forces them to tackle the weaknesses of each position, and in the end trains them to assess the strengths of legal arguments on their own Therefore, when preparing for class, a student could have asked himself/herself potential questions, and the

he or she can also re-ask himself/herself such kinds of questions after class The internalization of that questioning process is the core of legal reasoning and the achievements of the Socratic method (p 210)

The only way people learn to reason well is by practicing consistently Socratic teaching gives students that practice – day after day for three years – by making them think like a lawyer under the guidance of an experienced legal analyst Each class is an exercise in building and criticizing legal arguments The professor shows students what a good questions is by requiring them to answer one, and shows them what a good answer is by