Un par de semanas atrás, el New York Times publicó una columna editorial opinando sobre las necesarias reformas a la ensñeanza del derecho. A continuación se reproduce dicha editorial. Y, más abajo, varios profesores de derecho de los EEUU opinan sobre cómo replantear la enseñanza de la disciplina y si acaso el método socrático aun tiene una fucnión que cupmlir en las ecsuelas de derecho. Los debatidores son: Guy-Uriel Charles Guy-Uriel Charles, Duke University Law School; Robin West Robin West, Georgetown University Law Center; Robert D. Dinerstein Robert D. Dinerstein, American University Law School; David Wilkins David Wilkins, Harvard Law School; Amanda C. Pustilnik,
University of Maryland Law School
Editorial
Legal Education Reform
Published: November 25, 2011
American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.
Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients. Some schools are moving in promising directions. The majority are still stuck in an outdated instructional and business model.
The problems are not new. In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving “only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.”
Even after the economy recovers, the outsourcing of legal work from law firms and corporate counsel offices to lower-fee operations overseas is likely to continue. Belatedly, some law schools are trying to align what and how they teach to what legal practice now entails and what individuals and institutions need — like many more lawyers who can serve as advocates for the poor and middle class.
Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.
With new legal issues arising from the use of computers in business and government to manage information, some schools are teaching students software code as well as legal code to solve systemwide problems. Some are exploring ways to reduce tuitions and make themselves more sustainable. Potential business models include legal degrees based on two years of classes, followed by third-year apprenticeship programs.
In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.
That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide.

A continuación presentan sus puntos de vista :
Defining What’s Socratic
Guy-Uriel Charles Guy-Uriel Charles, Duke University Law School
A Teaching Style of the Past
Robin West Robin West, Georgetown University Law Center
Limitations to the Method
Robert D. Dinerstein Robert D. Dinerstein, American University Law School
Keep the Method, Not the Focus
David Wilkins David Wilkins, Harvard Law School
It Keeps the Student Thinking
Amanda C. Pustilnik Amanda C. Pustilnik, University of Maryland Law School
Defining What’s Socratic
Guy-Uriel Charles
Guy-Uriel Charles is a professor of law at Duke University and the founding director of the Duke Center on Law, Race and Politics.
Updated December 16, 2011, 11:18 AM
It is not easy to evaluate the continued vitality of the Socratic method because we do not all mean the same thing when we use the term. For some, the Socratic method is defined in opposition to the lecture course. For others, it simply means a performative process by which the professor poses a series of unanswerable questions to a hapless student, the purpose of which is not substantive learning but humiliation and embarrassment. Even among professors supposedly using the same pedagogy, classes can be more or less Socratic. Some professors are Socratic in some classes and not in others. I rarely use the Socratic method in upper-level classes because the pedagogical purposes of upper-level classes are different from those of the first year.
I employ a variety of pedagogical methods when I teach first-year students, but the core of my approach is roughly, though not stereotypically, Socratic. By Socratic, I mean a process by which I pose questions to one student at a time about the characteristics of a case, series of cases, or the area of law under examination. One of the great joys of teaching first-year law students is the privilege of bearing witness to the transformation of their minds during the course of the semester or year. You can almost see the metaphoric light bulbs flash as the students acquire a new set of critical thinking skills. In my view, the Socratic method is the most effective and efficient way of imparting these skills to first-year law students. Among other things, they learn to ask different types of questions; to ask questions in a different way; and to distinguish relevant from irrelevant facts. They learn to be self-sufficient independent thinkers. As a teacher, a law professor, I am always awed by this transformation, which I think is unique to the first year.
I am convinced that a critical component of the transformation is the process of intellectual engagement that is often described as the Socratic method. The case and question method of legal instructions should not be, and is rarely, the only tool in the law professor’s toolkit. But it continues to be useful, particularly in the first year. We can refine it, modify it, update it; but we should keep it.
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A Teaching Style of the Past
Robin West
Robin West is the associate dean for research and academic programs and the Frederick Haas professor of law and philosophy Georgetown University Law Center.
December 15, 2011
Most law professors still teach through questions and answers, call on students randomly, press students for increasingly refined answers to a series of puzzling questions. Almost no American law professors, in contrast to their European, Asian and Central American counterparts, simply lecture in front of a large class. Classes still proceed through dialogue. This is much appreciated by students, who year after year report extraordinarily high levels of satisfaction with the pedagogical dimension of their law school experience. Comparatively few, however, use what law schools traditionally called with some pride the “Socratic method.”
Socratic law professors from early 20th century to the three quarter mark challenged students with a series of hypothetical scenarios, changing some facts while holding others constant, with the goal of eliciting increasingly refined statements of a legal principle that might cover the core cases and might point the way, in the marginal. A series of well crafted hypothetical cases might, it was thought, lead a responsive student toward a decent articulation of the principles covering an area of law, and if not that, it might minimally lead to a healthy skepticism regarding their own initial intuitions. Most grandly it might lead to an articulation of a conception of the moral point of an entire legal field, that might guide a judge in the future, when those principles conflict in close cases.
When done well, this teaching was joyful. It was profoundly educational in the best sense. It opened hard questions rather than closed them, and was the vehicle for transmitting a substantial body of knowledge along the way. It was also entertaining, so long as the pressure on the individual student was accompanied by humor and generosity of spirit.
That said, what we once called Socratic teaching in law schools is indeed a thing of the past, for a simple reason: It was premised on two assumptions about the nature of law, which are simply no longer believed by most of the legal professoriate. First, Socratic teaching, as well as the “case method” that accompanied it, was premised on the Langdellian assumption that the “law” consists foremost of the principles and rules explicit in or implied by the opinions generated by appellate courts. Today this strikes many law professors as demonstrably false: whatever was the case in 1900, our law today consists primarily of statutes and regulations generated by democratically elected bodies and administrative agencies, and secondarily of judicial interpretations of those texts by appellate courts. Courts interpret that law, with varying degrees of discretion, but the “common law” originating from, as well as interpreted by judges, is dwindling, both in size and importance.
Second, Socratic teaching was premised upon an assumption that the legal principles imminent in the existing common law were overwhelmingly just, as well as complete. That moral optimism regarding the perfection of the common law now seems quite misplaced. The common law might be improved upon marginally by the principles unearthed through Socratic interrogation. A truly critical legal thinker, however, whether in the law schools or in practice, who entertains the possibility of fundamental or widespread legal injustice, must have the capacity to step outside of even the best possible articulation of the law’s premises.
Socratic law school teaching — the point of which, again, was to guide students toward an articulation of principles of law on the basis of close readings of a few cases — although it had many virtues, did not aim to nor nurture or spark that critical acuity. If our law is basically sound, and just, Socratic teaching can unearth the reasons why, and might encourage the legal thinker to push toward making it all the better. If our law, or sizable chunks of it, is not basically sound, or fundamentally just, it needs to be changed, not revered. The way to do that is not through Socratic dialogue in the classroom (or the appellate courtroom) that is designed to expose the beauty or moral justness of its underlying principles. The way to do that is through democracy.
Contemporary law professors aim to instill in students not only respect for the law, but also critical acuity, and it is for that reason that Socratic teaching in law schools has fallen into disuse. Socratic teaching is not designed to do that, although a healthy spirited dialogue in the classroom, most assuredly is.
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Limitations to the Method
Robert D. Dinerstein
Robert D. Dinerstein is a professor of law and the director of the clinical program at American University’s Washington College of Law.
December 15, 2011
Unlike Mark Antony, I come neither to bury the Socratic method nor to praise it. The version of the Socratic method that many law professors purport to practice has its place in legal education, especially in large first-year classrooms where it can lead to more active student engagement than alternatives like the lecture method.
The Socratic or case method can help students sharpen their analytical and critical reading skills and begin to understand the contingent nature of much legal reasoning. But the limitations of the method as usually employed — its over-reliance on excerpts of appellate cases, the tendency of many of its purveyors to give short shrift to issues of fairness and justice, its fostering of passivity on the part of those students not involved in the dialogue, and its privileging of the professor as the sage on the stage — are serious impediments. Moreover, by their second and third years of law school, students reap decreasing returns from this pedagogical method; the ball cannot stay hidden forever.
Socratic teaching needs to be supplemented by experiential pedagogies, including simulations, role-plays, small-group brainstorming, the problem method and live-client clinical legal education. These methods are better at facilitating the law student’s ability to learn how to solve legal problems, understand the different real-world contexts in which legal problems arise (including non-adversarial and transactional settings), explore the nature of various lawyer-client relationships, consider social justice implications of law and legal relationships, and develop self-reflectiveness and the ability to learn from experience.
These forms of experiential education are not new. They have not completely supplanted the Socratic method, but their proven value has enabled us to think about the Socratic method in a more intentional way, using it when it meets our teaching goals and eschewing it when it does not.
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Keep the Method, Not the Focus
David Wilkins
David B. Wilkins is the Lester Kissel professor of law and vice dean for global initiatives on the legal profession at Harvard Law School.
Updated December 15, 2011, 7:08 PM
Of all the important changes that ought to be made to legal education in the coming years — and let me be clear, I believe that there are many — eliminating the Socratic method is not one of them.
By the Socratic method I simply mean the traditional process in which the professor engages students in an interactive classroom dialogue designed to get them to test their own assumptions and values and to see and critique alternative points of view. Of course, like any pedagogical tool, this kind of give and take can be done well or badly. And even when done well, the Socratic method can certainly be overused.Students need to learn how to collaborate as well as to criticize.
But for more than a century, the critical thinking skills inculcated by the Socratic method have been the great strength of American legal education. Over the last 25 years I have interviewed literally thousands of lawyers in virtually every kind of legal practice — including those who are not practicing law at all — and while many did not enjoy law school, the vast majority point to the critical thinking skills that they developed there as being the single most important and lasting value of their legal education. It is not surprising that country after country — and many other parts of the university — have abandoned the passive lecture method of instruction in favor of something like the participatory and interactive classroom dynamic developed in U.S. law schools.
The real question, therefore, is not whether students should be taught to think critically and self-reflectively, but instead what they should be thinking critically about. American law schools’ traditional focus on U.S. court decisions and legal doctrine no longer adequately reflects the increasing global complexity of law, legal problems and legal institutions — including the institutions in which lawyers themselves work and build careers. It is this real-world complexity that professors need to get students to think critically about through Socratic dialogue and other methods if we want to help them to build successful, productive and socially responsible careers in the 21st century.
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It Keeps the Student Thinking
Amanda C. Pustilnik
Amanda C. Pustilnik is an assistant professor of law at the University of Maryland Francis King Carey School of Law. She teaches criminal law, evidence, and law and neuroscience.
Updated December 16, 2011, 11:19 AM
“Question everything.” This maxim is radical in the original sense: Questioning everything takes us to the root of what we know and how we know it. Often, it shows us how much we don’t know and the uncertain foundations of what we thought we knew. In a world awash in information, knowing how to question and challenge our own certainties are the most important disciplines anyone can master.
While questioning everything sounds subversive (and maybe it is), it has a most august pedigree: Thomas Jefferson, Galileo, Buddha, Euripides and Socrates have all been credited with the phrase and the spirit of inquiry it expresses. Although Jefferson and Buddha are no lightweights, Socrates has the best claim, in my view. Rather than issuing a command to engage in questioning, Socrates developed questioning into a teaching practice. His “elenctic” method consists of asking questions – of others and oneself – until one discovers the limits of one’s knowledge or arrives at some new understanding.
Radical, question-based inquiry takes place anywhere critical thinking takes place, from corporate governance committees to kindergartens. (Five-year-olds may be the original Socratics, showing us our limits with their endless “Why?”) American law schools are self-consciously Socratic. Classes start with questions, not answers. I start with “What’s a ‘crime’?” and “What is ‘evidence’?” My colleagues incorporate elenctic questioning into every aspect of our curriculum, from classes on doctrine to client interactions to domestic and foreign clinical projects. This guides students from easy certainties to appropriate inquiry as they learn lawyering skills. It keeps us honest, too, since they learn to turn around and ask us great questions!
This kind of teaching and learning is hard. Our minds fill in blanks with what we expect to see — so students reading a criminal case will “remember” a gun that wasn’t there. This is natural, but dangerous. Imagine a doctor who assumes that a child’s swollen glands mean strep instead of leukemia, delaying treatment. Now translate that to law: Instead of a doctor, imagine a prosecutor. Or a judge. Life can be at stake in the law, too. Liberty and property almost always are.
Challenging through questioning is the living practice of teaching critical thinking by modeling it as an instructor. It is the heart of the elenctic method. It is how we teach new lawyers to compose with the language of the law, not just how to bang out a few tunes.