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CAN XENOPHON SAVE THE
SOCRATIC METHOD?
Amy R. Mashburn*
Anything forced and misunderstood can never be beautiful.1
INTRODUCTION
A man stands in a large round pen with an untrained horse.
The horse is agitated and uncertain; the man is calm and
confident. He flicks a light cotton line at the horse, but never
actually touches her with it, and sends her away to circle the
perimeter of the pen. The horse becomes fearful and attempts
to flee. The trainer puts pressure on the horse by gently tapping
the rope against the side of his leg. After frantically galloping a
few laps, the horse stops, turns toward him and drops her head.2
He takes the pressure off and allows the horse to rest. Moments
later, he sends the horse away from him. This time, the trainer
asks the horse to change directions by turning with her head to
the rail. The horse tries to turn with her head towards the
center. The trainer helps her make the right choice by keeping
the pressure on and redirecting her efforts. The horse does not
understand what is expected of her, but experiments with
answers and searches for a way to get the relentless questioner
to leave her alone again.
* Professor of Law, University of Florida, Fredric G. Levin College of Law.
For their comments and support, the author thanks Mary Jane Angelo, Patricia
Dilley, Jeffrey Harrison, and Michael Siebecker and is grateful for the
assistance of her teachers, Apache and Charles Schmidt.
1. This is a paraphrased expression attributed to Xenophon. ROBERT M.
MILLER & RICK LAMB, THE REVOLUTION IN HORSEMANSHIP AND WHAT IT
MEANS TO MANKIND 173 (2005). Xenophon writes, ‘‘[f]or what the horse does
under compulsion, . . . is done without understanding; and there is no beauty in
it either . . . .’’ XENOPHON, THE ART OF HORSEMANSHIP 62 (Morris H. Morgan
ed. & trans., Dover Publ’ns 2006) (1893).
2. MONTY ROBERTS, THE MAN WHO LISTENS TO HORSES: THE STORY OF A
REAL-LIFE HORSE WHISPERER, xxiii (Ballantine Books 1999).
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Anyone familiar with horse training recognizes this as a
round pen exercise, but to a law professor, it looks like
something else entirely------an equine version of the Socratic
method.
This Article advances the novel theory that
understanding the conversation taking place between horse and
trainer in the round pen will enable law teachers to acquire a
new language that can be applied in Socratic dialogues with their
students.
In other words, the principles of natural
horsemanship,3 an educational strategy based on cross-cultural
communication, can help law professors teach their students how
to speak Law.
Currently, the Socratic method is experiencing a renaissance
in both popular culture and the academy.4 Since the 1980s,
intense interest has been revived among philosophers.5 Its use in
group and civic decision making and proliferation of the socalled ‘‘Socrates café’’ phenomenon are examples of its broad
applicability in popular culture.6 Small and large groups
participate in both formal and informal Socratic gatherings.7 It
3. The term ‘‘natural horsemanship’’ is defined in discussion at infra note 15.
The terms ‘‘horseman’’ and ‘‘horsemanship’’ are used throughout this Article
because all of the sources upon which it relies use these exclusively, as terms of
art. The modern equine community, however, recognizes that this terminology
is a historical artifact and acknowledges the prevalence and importance of
women in activities involving horses. See generally GAWANI PONY BOY, OF
WOMEN AND HORSES (2000) (exploring the significance of the relationship
between women and horses).
4. Fernando Leal, The Socratic Method: An Introduction to the Essay of
Nelson, in ENQUIRING MINDS: SOCRATIC DIALOGUE IN EDUCATION 121, 125
(Rene Saran & Barbara Neisser eds., 2004) [hereinafter ENQUIRING MINDS].
In 2002, an International Conference on the Socratic Dialogue and Civil
Society was held in Birmingham England. ENQUIRING MINDS, supra, at ix.
5. Scholars attribute the revitalization to the publication of Gregory
Vlastos’ seminal article, The Socratic Elenchus, in 1983. Harold Tarrant,
Elenchos and Exetasis: Capturing the Purpose of Socratic Interrogation, in
DOES SOCRATES HAVE A METHOD?: RETHINKING THE ELENCHUS IN PLATO’S
DIALOGUES AND BEYOND 61, 62 (Gary Alan Scott ed., 2002) [hereinafter DOES
SOCRATES HAVE A METHOD?]. The Socratic Elenchus is reprinted as The
Socratic Elenchus: Method Is All, in GREGORY VLASTOS, SOCRATIC STUDIES 1
(Myles Burnyeat ed., 1994) [hereinafter VLASTOS, SOCRATIC STUDIES].
6. CHRISTOPHER PHILLIPS, SOCRATES CAFÉ: A FRESH TASTE OF
PHILOSOPHY 18-19 (2001). Gregory Vlastos described the Socratic method as
‘‘among the greatest achievements of humanity.’’ Id. at 19. For a short history
of the modern Socratic method and a bibliography of works addressing its
general application, see Fernando Leal, Literature Survey on Socratic
Dialogue, in ENQUIRING MINDS, supra note 4, at 175, 175-80.
7. Dieter Birnbacher & Dieter Krohn, Socratic Dialogue and Self-Directed
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CAN XENOPHON SAVE THE SOCRATIC METHOD
has been used to assist groups with problem solving and reaching
consensus, but has also been advanced as an internal, individual
process.8
One of the Socratic method’s strongest footholds has been
in traditional American legal education, where it has enjoyed
apparent institutional primacy for almost a century and a half.9
Although legal historians and commentators have cautioned that
much of our understanding about the use of the Socratic method
in law schools is myth and lore, it is probably accurate to say that
law teachers extensively practiced the Socratic method in their
classes at least until the early 1980s.10 Since that time, however,
the Socratic method has begun to lose its secure footing in
American legal education. Currently, it is likely that in most
large law school classes, students ask as many questions as their
teachers, and lectures are commonplace.11 Rather than a
Learning, in ENQUIRING MINDS, supra note 4, at 9, 12-14.
8. Rene Saran & Barbara Neisser, Introduction, to ENQUIRING MINDS,
supra note 4, at 1, 3 [hereinafter Saran & Neisser] (defining Socratic Dialogue
as a ‘‘co-operative thinking activity’’ that has as its objectives: ‘‘to answer a
philosophical question’’; ‘‘[t]o engage in the co-operative activity of seeking
answers to questions . . . [by] exploration of concrete experiences, volunteered
by participants’’; ‘‘[t]o deepen individual insights and understandings as the
dialogic process moves towards enabling participants to grasp the moral
perplexities’’; and ‘‘[t]o gain through dialogue greater clarity . . . thus enhancing
self-confidence in our ability to reason and so shaping our approach to life’’);
see also Birnbacher & Krohn, supra note 7, at 10 (giving a history of the use of
the Socratic method in group dialogue); see generally DAVID N. SEDLEY,
PLATO’S CRATYLUS (2003).
9. See generally Orin S. Kerr, The Decline of the Socratic Method at
Harvard, 78 NEB. L. REV. 113, 113 (1999) (calling the Socratic method ‘‘a
defining element of American legal education’’). Educators have continued to
apply Socratic questioning in a wide variety of settings, including, perhaps
somewhat surprisingly, elementary education. PHILLIPS, supra note 6, at 13134.
10. Kerr, supra note 9, at 114 (noting that the Socratic method of the ‘‘1950s
and 1960s is nearly extinct’’).
11. Steve Sheppard, The State of the Art: A Survey of Teaching Practices in
the American Law School Lecture Hall, in 2 THE HISTORY OF LEGAL
EDUCATION IN THE UNITED STATES: COMMENTARIES AND PRIMARY SOURCES
777, 777-811 (Steve Sheppard ed., 1999) [hereinafter Sheppard, The State of
the Art] (analyzing data from a law faculty survey that showed that 45% of law
teachers reported using ‘‘mainly dialogue’’ in their classes and only 3%
reported using ‘‘all dialogue’’); see also Kerr, supra note 9, at 114 (calling the
declining use a ‘‘revolution’’ and citing to supportive sources); Phillip E.
Areeda, The Socratic Method, 109 HARV. L. REV. 911, 911 (1996) (referring to
himself as a ‘‘relic in a declining group of those who use it’’). But see Steven I.
Friedland, How We Teach: A Survey of Teaching Techniques in American
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revitalization, Socrates seems to be dying hundreds of little
deaths, as his method disappears from the repertoires of more
and more law professors.
The question thus becomes, why are willing practitioners
abandoning the Socratic method rather than celebrating its
revival in their law school classes? This Article is the outcome of
an intuition that the answer is not as much a matter of
philosophy or pedagogy, as it is a matter of psychology,
sociology, and politics.
Seldom recognized and rarely
acknowledged, interpersonal forces are pushing law professors in
the direction of altering their approach to teaching,
unfortunately, without strong convictions that the changes are
better for their students.
This Article will demonstrate that the convergence of these
forces exerts tremendous negative pressure on the practice of
requiring students in large classes to engage in involuntary,
dialectic exchanges with their teachers. Outside of legal
education, mandatory participation by adults in Socratic
dialogues is rare.12
In contrast, involuntary classroom
participation has become the prime meridian of legal education;
a law teacher’s distance from it is the professionally definitive
measure of his or her pedagogy.13 Not surprisingly, to its critics,
this technique is one of the most objectionable aspects of the
Law Schools, 20 SEATTLE U. L. REV. 1, 28 (1996) (reporting the results of a
survey of law professors finding that 97% used the Socratic method------an
undefined term------some of the time in first year classes and concluding that the
pedagogy still dominates legal education).
Given the voluminous
commentaries on legal education, remarkably few report the outcomes of
empirical studies and almost none explore what actually goes on in the
classroom, as opposed to surveys of professors’ and students’ subjective
accounts of their experiences. James R. P. Ogloff, David R. Lyon, Kevin S.
Douglas & V. Gordon Rose, More Than ‘‘Learning to Think Like a Lawyer:’’
The Empirical Research on Legal Education, 34 CREIGHTON L. REV. 73, 78
(2000). Notwithstanding this unreliable empirical evidence, a recent critique of
American legal education asserts that ‘‘many law teachers continue to rely
exclusively on the Socratic dialogue and case method, not just in the first year,
but also in the second and third . . . .’’ ROY STUCKEY, BEST PRACTICES FOR
LEGAL EDUCATION: A VISION AND A ROAD MAP 140 (2007).
12. PHILLIPS, supra note 6, at 29 (explaining that participants in a Socrates
Café are not required to talk).
13. WILLIAM M. SULLIVAN, ANNE COLBY, JUDITH WELCH WEGNER, LLOYD
BOND & LEE S. SHULMAN, EDUCATING LAWYERS: PREPARATION FOR THE
PROFESSION OF LAW 23 (2007) (calling the case-dialogue method the signature
pedagogy of legal education).
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classic law school version of the Socratic method. Examining
what happens when the present generation of law teachers
engage their students in these types of dialogues is one way of
determining why legal education------the traditional bastion of
interlocutory inquiry------is witnessing the death, rather than the
rebirth, of Socrates.
To conduct such an analysis, this Article explores an
analogous culture of involuntary participation in interlocutory
dialogues, one seemingly far removed from that of law teaching:
natural horsemanship. After hundreds of years of contrary
dogmatic tradition, horsemanship is probably in the midst of a
true paradigm shift.14 ‘‘Natural horsemanship’’ is a term now
used to describe collective methods of training horses based on
principles of equine behavior and cooperative communication,
rather than domination, force, and mechanics.15
In this Article, Part I compares the growth of the natural
horsemanship movement with the history of the Socratic method
to identify a shared interpersonal student-teacher dynamic that
is largely unexamined in legal education. It argues that a
distinctive type of self-awareness is necessary for positive
direction of the energy dialectic teaching generates. Part II
describes natural horsemanship’s understanding of ‘‘prey and
predator consciousness’’ and uses these concepts to shed light on
the nature of the students’ reactions to involuntary participation
in Socratic dialogues.16 Part III advances the theory that
interlocutory communication with a different species in a
deliberately created, shared ‘‘prey-predator’’ language, promotes
better understanding of legal education. Further, this Part
explains how the Socratic method might be modified, in a
manner consistent with its ancient philosophical roots, to
incorporate these insights. This Part also contends that the legal
academy is rejecting the Socratic method because a critical mass
of otherwise receptive law professors have allowed their students
to teach them not to use it, have erroneously concluded that it is
14. Dirk Johnson, Broncobusters Try New Tack: Tenderness, N. Y. TIMES,
Oct. 11, 1993, at A1 (calling natural horsemanship the ‘‘biggest cultural change
on ranches since the automobile’’).
15. University of Montana Equine Studies Program, http://www.umwestern.
edu/academics/departments/equine (follow ‘‘What is Natural Horsemanship?’’
link) (last visited May 5, 2008).
16. See infra Part II.
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intrinsically oppressive, or have decided that they do not want to
be associated with a pedagogy others see as a patriarchal
anachronism. This Article concludes that an appropriately
reconstituted version of an interlocutory pedagogy should be a
significant component of every legal education, and that the
principles of natural horsemanship provide a legitimate,
systematic way to understand and practice the Socratic method.
Implementing the Socratic method in this manner will make its
benefits available to a generation of law students who
particularly need them.
I. TIPPING POINTS
Horsemanship implicates teaching and learning in two
obvious ways. In learning how to ride, handle, and care for
horses, a human being must assume the role of student. On the
other hand, when trainers school horses to accept riders, they
assume the role of teacher. These roles merge in the ideal
conception of horsemanship as a mutually respectful, functional
One of the
partnership among humans and horses.17
transforming insights of natural horsemanship is that these
student-teacher roles also merge within horses and humans,
unconsciously, at an intrinsic level. Horses teach their trainers
while they are in the process of training the horses, in a neverending synergistic cycle.18 In the past, many failed to understand
this phenomenon and unintentionally created dysfunctional
relationships with their horses. Ironically, one lesson horses
frequently teach humans is not to ride or handle them. An
examination of the genesis of this dysfunctional cycle reveals
subsurface similarities that support the validity of a comparison
between horsemanship and educational interactions among
humans.
A. The Teacher Is a Student and the Student Is a Teacher:
A Revolution in Horsemanship
Horses and humans have a long, shared history of
attempting to communicate with one another. Thousands of
years ago, indigenous populations had to observe horses closely
17. MILLER & LAMB, supra note 1, at 6-7; PAT PARELLI, NATURAL HORSEMAN-SHIP 17 (2003).
18. PARELLI, supra note 17, at 17.
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and develop peaceful means of capturing and subduing them.19
Studies of the relationship between indigenous cultures and
horses indicate that humans understood and exploited horse
psychology, society, and nature to domesticate them.20
Unfortunately, as horse and human interactions progressed, the
relationship became more a matter of intimidation and control
through mechanical devices, shortcuts, and fear.21 Although it
might superficially appear that the early indigenous knowledge
was lost, subsequent periods are more accurately viewed as
equine Dark Ages.
A few trainers kept the ancient
understanding of equine behavior alive, but deliberately
mystified their techniques to make money by training horses.22
Horses are potentially very dangerous animals and all but
the most highly motivated trainers or reckless riders will stop
doing what horses respond to in a consistently negative manner.
Traditional training and riding methods, in the hands of many,
invariably produced what humans considered very negative
responses from horses, including bucking, rearing, head-tossing,
and running away with, or over, their riders and handlers. The
19. ROBERTS, supra note 2, at 79-80; see generally GAWANI PONY BOY &
GABRIELLE BOISELLE, OUT OF THE SADDLE: NATIVE AMERICAN
HORSEMANSHIP (1998) (describing principles of horsemanship derived from
the practices of Native Americans); GAWANI PONY BOY, HORSE, FOLLOW
CLOSELY (1998) (advocating training techniques inspired by Native American
philosophies and practices).
20. ROBERTS, supra note 2, at 79-80. Monty Roberts has observed:
When the Cherokee wanted to capture wild horses on the great plains,
their problem was how to get close enough to rope them. They
overcame this obstacle in a remarkable fashion. Instead of driving
them into the neck of a valley or building other traps of that sort,
difficult given the landscape, they used a much quicker method. . . .
They did not drive them hard, but simply walked after them, pressing
them away. This would continue for a day or two. Then, when the
time was right, the Cherokee would turn and walk in the opposite
direction. Invariably, in a kind of yo-yo effect, the horses would turn
around and follow them. The Cherokee would then simply lead the
wild herd into corrals between two and five acres in size.
Id.
21. MILLER & LAMB, supra note 1, at 22-26.
22. See generally MIM EICHLER RIVAS, BEAUTIFUL JIM KEY: THE LOST
HISTORY OF A HORSE AND A MAN WHO CHANGED THE WORLD (2005)
(describing an African-American ex-slave and Civil War veteran, Dr. William
Key, as a pioneer in the movement to prevent cruelty to animals, who moved
from town to town in the late nineteenth century giving demonstrations with a
famous horse companion called ‘‘Beautiful Jim Key’’).
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naturally close symbiosis between horse and human (including
the horse’s ability to read human emotions and anticipate future
actions) became something that propelled the relationship in a
destructive direction.23
An unfortunate cycle became
commonplace. As riders and handlers encountered undesirable
behaviors, they reacted by increasing the amount of force, pain,
and fear, and sought greater domination and control by
inventing more punishing mechanical devices.24 Although some
horses capitulate to domination early in their training, forgive
the mistakes of their trainers, and comply with the demands
made of them, less acquiescent horses are more common.25
The result of this negative relational cycle is that it is quite
common today for people to keep horses they do not frequently
handle or ride, if at all.26 The stakes for horses in the teachinglearning dynamic are very high because their well-being and
continued existence literally depend upon their ability to learn to
be useful and safe for humans.27 Because selective breeding has
diminished their chances of survival in rapidly disappearing
natural habitats, most horses have no realistic alternative other
than to live with people.28
23. MILLER & LAMB, supra note 1, at 22-26.
24. ROBERTS, supra note 2, at 135; MARY TWELVEPONIES, THERE ARE NO
PROBLEM HORSES, ONLY PROBLEM RIDERS 12, 28 (2001).
25. Tennessee Walking horses must be among the most forgiving breeds.
To obtain an exaggerated and unnatural show gait, these animals have, in
defiance of regulation, been subjected to an abusive process called ‘‘soring,’’
designed to create pain. McCloy v. U.S. Dept of Agric., 351 F.3d 447, 448 (10th
Cir. 2003).
26. PARELLI, supra note 17, at 8; CHRIS IRWIN, HORSES DON’T LIE: WHAT
HORSES TEACH US ABOUT OUR NATURAL CAPACITY FOR AWARENESS,
CONFIDENCE, COURAGE, AND TRUST 39 (2001). An economic study conducted
by Deloitte Consulting LLP for the American Horse Council Foundation in
2005 showed that there were 9.2 million horses in the United States and
estimated the horse industry to have a $102 billion economic impact on the
U.S. economy. http://horsecouncil.org/publications.html (last visited on May 5,
2008).
27. Katherine A. Houpt & Natalie Wara, Horse Welfare Since 1950, in THE
STATE OF ANIMALS II 207-15 (2003), available at http://www.hsus.org/webfiles/PDF/hsp/soa_ii_chap14.pdf (stating that statistics show the fate of
‘‘problem horses’’ is slaughter).
28. STEPHEN BUDIANSKY, THE NATURE OF HORSES: EXPLORING EQUINE
EVOLUTION, INTELLIGENCE, & BEHAVIOR, 39-58 (1997) (discussing the
evolution and domestication of horses). Animal rights advocates argue that
keeping animals in a dependent and captive state is immoral. See generally
PETER SINGER, ANIMAL LIBERATION ix-xvi (1975) [hereinafter SINGER,
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Another distressing reality is that humans tend to neglect or
destroy domesticated animals who are expensive, timeconsuming, dangerous, and from their perspective, useless.29
When horses are not handled because of their poor relationships
with humans, they often suffer serious consequences. Over an
eleven-year period, 56,000 to 345,000 horses were sent to
slaughter each year and many more were neglected, mistreated,
and otherwise made miserable.30 Unsafe horses seriously injure
thousands of humans every year.31 Poor training is not the only
cause for these statistics, but it is a major one.32
The widespread failure of traditional training methods to
make humans and horses safe and confident in their interactions
was the primary reason for the recent rediscovery of gentle,
respectful, and effective ways to create more satisfactory
relationships with horses.33 Another motivation was the desire
to reconnect with horses in a more spiritual way. In the last two
decades, the practitioners and advocates of natural
horsemanship have successfully persuaded thousands of horse
owners and trainers to change their views that horses exist solely
ANIMAL LIBERATION]; PETER SINGER, WRITINGS ON AN ETHICAL LIFE xiii-xix
(2000) [hereinafter SINGER, WRITINGS ON AN ETHICAL LIFE] (arguing that
consideration of the suffering inflicted upon animals is ethically compelled).
29. Peter Singer describes his path-breaking book, ANIMAL LIBERATION, as
a book ‘‘about the tyranny of human over nonhuman animals. . . . [which] has
caused and today is still causing an amount of pain and suffering that can only
be compared with that which resulted from the centuries of tyranny by white
humans over black humans.’’ SINGER, ANIMAL LIBERATION, supra note 28, at
ix. It is ‘‘intended . . . for people who are concerned about ending oppression
and exploitation wherever they occur, and in seeing that the basic moral
principle of equal consideration of interests is not arbitrarily restricted to
members of our own species.’’ Id. at x.
30. Animal Welfare Council, The Unintended Consequences of a Ban on
the Humane Slaughter Processing of Horses in the United States, http://animal
welfarecouncil.com/html/pdf/consequences.pdf (reporting statistics of equine
neglect) (last visited May 5, 2008).
31. Johnson, supra note 14, at A13 (reporting that annually more than
50,000 people are injured in horse-related accidents and about 200 die).
National Ag Safety Database, Horses & Children-Safety Packet: Fact Sheet,
http://www.cdc.gov/nasd/docs/d000901-d001000/d000978/2.html
(reporting
statistics and studies showing the prevalence of equine-related injuries) (last
visited May 5, 2008).
32. Cf. MILLER & LAMB, supra note 1, at 49, 129 (advocating the use of the
‘‘one-rein stop’’ as a training method developed by natural horsemen primarily
as a means of insuring the safety of riders).
33. See id. at 129.
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to serve humans and to consider more humane and effective
methods of training.34 Given the unyielding dogmatism and
aggressively guarded influence of traditional schools of
horsemanship, this is a truly remarkable accomplishment.35
Natural horsemanship practitioners acknowledge that the
revolution they brought about is actually more of a Greek
revival. Indeed, the Greek general, horseman, historian, and
philosophical essayist, Xenophon, identified some of the basic
tenets of natural horsemanship in his treatise, The Art of
Horsemanship (or Hipparchicus). He wrote this work in 360
B.C., and it is widely regarded as the first book on
horsemanship.36 The genesis of natural horsemanship is not the
culmination of a linear or temporal evolutionary progression,
although the wide dissemination of these training techniques is a
relatively recent occurrence. To the contrary, the competing
impulses of domination and accommodation have always coexisted within societies, within training cultures, and even within
individual trainers.
Although enlightened and humane practitioners have
existed throughout history, the dominant paradigm for training
horses in the twentieth century relied heavily upon subjugation
in one form or another. Commentators suggest that several
tipping-point factors are responsible for the recent receptiveness
of so many horse owners and trainers to a radically different
approach.37 Among these factors are: the development of
equine behavior as a field of scientific study; higher levels of
education among horse owners and trainers; the ease of
disseminating information; the dominance of women in the
34. Id. at 3-4, 7-8.
35. Not surprisingly, some traditionalists dismiss natural horsemanship as
nothing new, a marketing ploy and fad. See, e.g., ANNE WILSON, TOP HORSE
TRAINING METHODS EXPLORED 28-30, 56-57 (2004).
36. BUDIANSKY, supra note 28, at 6; MILLER & LAMB, supra note 1, at 171.
To philosophers and practitioners of the Socratic method, Xenophon is known
as the author of one of the historically significant accounts of the Socratic
method. Peter Vernezze, BRYN MAWR CLASSICAL REV. (1995) (reviewing THE
SOCRATIC MOVEMENT (Paul A. Vander Waerdt ed., 1994)), available at
http://ccat.sas.upenn.edu/bmcr/1995/95.06.16.html. Since this time, more than
41,000 books about horsemanship have been written, according to one account.
BUDIANSKY, supra note 28, at 6.
37. MILLER & LAMB, supra note 1, at 80.
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horse industry;38 the decreased acceptance of violence; the
urbanization of society and accompanying transformation of the
horse from beast of burden to companion animal; animal rights
activism; and the primacy of owners’ relationships with their
horses, rather than their competitive accomplishments.39
Perhaps the most important factor, however, was the
willingness of some legendary horse gentlers, the modern
pioneers of natural horsemanship, to share their knowledge in
ways that others could understand.40 The marketing of books
and clinics provides a systematic way for non-professionals to
internalize a consistent, functional, and effective approach to
dealing with horses across disciplines and activities.41 These
training techniques have been used in a wide variety of programs
where horsemanship provides physical therapy, emotional
therapy, and rehabilitation for individuals, such as juvenile
offenders and incarcerated inmates.42 Most notably for the
purposes of this Article, non-horsemen have invited these
clinicians to use their skills with equines in an array of societal
settings to teach people how to relate to each other using the arts
of gentle persuasion, benevolent leadership, and non-verbal
communication.43
38. See id. at 80-81 (calling the current domination of women in the horse
industry ‘‘[p]ossibly the most significant factor in the speed with which this
revolution has spread’’); IRWIN, supra note 26, at 38 (suggesting that women
are generally more receptive to the tenets of natural horsemanship, in part,
because they share with horses a pervasive sense of physical vulnerability); see
also ROBERTS, supra note 2, at xxvii.
39. MILLER & LAMB, supra note 1, at 77-86.
40. Particular credit is given to Monty Roberts for his introduction of these
conceptions into popular culture, his observations about equine
communication, and his early and steadfast commitment to non-violence. Id.
at 43. Others, like Pat Parelli and John Lyons, are noteworthy for their focus
on so-called ‘‘backyard’’ horsemen and women, their success at communicating
their approaches as coherent systems, and their ability to break their methods
down into understandable steps and techniques. Id. at 77-86. Some of these
trainers, such as Ray Hunt and Tom Dorrance, became legends during their
lifetimes. Id. at 26-33. Other clinicians have obtained celebrity status in equine
communities around the world. They have hundreds of thousands of devotees
who flock to large arenas to watch them demonstrate their expertise. Id. at 2550.
41. Id. at 1-11.
42. Id. at 14, 159.
43. Id. at 15; ROBERTS, supra note 2, at xiv.
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Four observations drawn from this brief history are
particularly relevant to establishing the legitimacy of a
comparison between horsemanship and legal education
techniques. First, over time, the collective knowledge about
horse training has organized itself around two modalities:
domination and accommodation.44 Second, as time passed,
owners and trainers most often chose a traditional method that
Third, a common
relied ultimately on domination.45
consequence of this choice was the creation of an escalating
cycle of equine misbehavior and increasing human fear and
frustration.46 Fourth, many horse owners and trainers reacted to
these situations by employing either the carrot or stick
approach.47
Trainers using the stick approach would resort to physical
force, pain, and intimidation in an effort to compel a horse’s
compliance with their requests. Predictably, the stick approach
produces horses that are fearful, suspicious, distracted, and
dangerous. The carrot approach is characterized by attempting
to cajole or bribe a non-compliant horse to cooperate, but often
degenerates into accommodation, unintentional reinforcement
of unwanted behavior, and avoidance of upsetting situations.
Although different, the carrot approach is not much more
effective. It produces horses that are disrespectful, demanding,
noncompliant, and dangerous. Both approaches result in owners
being trained or conditioned by their horses to leave them alone;
both approaches result in horses that are untrained, unsafe, and
ultimately unwanted, despite superficial appearances to the
contrary. In sum, a significant number of riders and trainers are
oblivious to their intrinsic dual status as both teacher and
student and, consequently, allow their horses’ negative reactions
to determine which training techniques they use and which ones
they abandon.
Part III describes the natural horsemanship method in
detail, but, in general, it takes a middle path between
MILLER & LAMB, supra note 1, at 77-86; ROBERTS, supra note 2, at xxvi.
ROBERTS, supra note 2, at 135; TWELVEPONIES, supra note 24, at 12.
ROBERTS, supra note 2, at 135.
PARELLI, supra note 17, at 13, 16. Webster’s College Dictionary 218 (2d
ed. 2005) defines ‘‘carrot-and-stick’’ as ‘‘the use of persuasion involving a
combination of rewards and punishments.’’
44.
45.
46.
47.
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domination and accommodation.48 Trainers using this approach
would anticipate the horse’s negative reactions, using them as
opportunities to improve the horse-human relationship and
increase the horse’s confidence.49 This method interrupts the
negative dynamic by consciously reshaping the prey-predator
interaction and communicating with horses in a language they
can understand.50 In essence, this new approach creates a shared
language that recognizes and embraces the constantly shifting
roles in the student-teacher relationship.51 It produces horses
that are likely to retain loving homes throughout their lives. In
the next section, an overview of the history of the use of the
Socratic method in law schools reveals a similar set of juxtaposed
ideals. Studies and commentaries indicate that law professors,
like traditional horsemen, tend to scrutinize their students’
responses to them in isolation, without evaluating their own
unconscious reactions to the students.
B. Sophists, Critics, and Cynics
The teaching technique we universally refer to as the
Socratic method is extraordinary in many respects.52 Most
notably, it has continued to capture our imagination for
millennia even though Socrates, the historical figure, may not
have been the creator or practitioner of the conversation-based
pedagogy that bears his name,53 and, the mythic Socrates may
not have had any definitive or ascertainable method.54 Scholars
48. PARELLI, supra note 17, at 13, 16; MARK RASHID, HORSES NEVER LIE:
THE HEART OF PASSIVE LEADERSHIP xiii (2000) (advocating ‘‘passive
leadership’’).
49. MILLER & LAMB, supra note 1, at 73-75.
50. Id. at 12-13.
51. PARELLI, supra note 17, at 14-15.
52. PHILLIPS, supra note 6, at 18-19.
53. Our understanding of Socrates comes from the portrayal of a character
called Socrates in the philosophical dramas written by Plato, Xenophon’s
Socratic conversations, the comedy of Aristophanes, and the writings of
Aristotle. Gary Alan Scott, Introduction, to DOES SOCRATES HAVE A
METHOD?, supra note 5, at 1; see also THE SOCRATIC METHOD, supra note 36,
at 1 (noting that only three of these------Aristophanes, Plato, and Xenophon-----offer ‘‘firsthand information’’); GARETH B. MATTHEWS, SOCRATIC PERPLEXITY
AND THE NATURE OF PHILOSOPHY 5 (1999) (calling the Socrates of the
dialogues an ‘‘ambiguous figure’’).
54. Scott, supra note 53, at 1-2; JAMES S. HANS, SOCRATES AND THE
IRRATIONAL 1 (2006) (noting that Socratic philosophy has been susceptible to
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agree on little more than the most basic definition: The Socratic
method is an educational strategy conducted through a question
and answer-based dialogue among students and teachers.55 The
lack of consensus is hardly surprising given that the Socratic
dialogues are mediated through the works of four different
authors in antiquity and numerous subsequent interpretations
and commentaries.56
The Socratic method of antiquity combined philosophical
indeterminacy57 with a curious confidence in the definitive nature
of a textually unconscious methodology.58 The inspired and
supple combination of substantive elasticity and formal
minimalism has proven irresistible and is partially responsible
for the vitality and relevance of Socratic inquiry today. A less
apparent reason for its longevity is pragmatic: The intense
interlocutory format of the Socratic method produces dramatic
results in participants and may be employed easily and
efficiently in a variety of settings.59
What accounts for the dramatic difference between the
popularity of the Socratic method in legal education and other
contexts? History suggests an answer. Christopher Columbus
Langdell and James Barr Ames, early architects of the modern
form of legal education in the United States, believed that the
Socratic method fit naturally into a jurisprudence which viewed
law as a science and legal education primarily as training in the
many interpretations over the millennia).
55. Scott, supra note 53, at 1.
56. Id. at xi, 1.
57. Grace M. Ledbetter, Rethinking The Elenchus, 55 THE CLASSICAL REV.
426, 426-28 (reviewing DOES SOCRATES HAVE A METHOD?, supra note 5).
Philosophers disagree about whether the Socratic method has a positive,
substantive, or moral purpose. One commentator characterizes the debate as a
conflict between ‘‘analytic’’ and ‘‘continental’’ styles of interpretation, the
former advocating that the Socratic method has a constructive purpose and the
latter asserting that it aims primarily to ‘‘humble the individual.’’ Id. at 427-28.
58. David K. O’Connor, Does Socrates Have A Method: Rethinking the
Elenchus in Plato’s Dialogues and Beyond, NOTRE DAME PHIL. REV. 1, 2
(2002) (book review) (concluding that Socrates never raised any implicit
methodology to conscious examination).
59. See, e.g., Thomas D. Eisele, The Poverty of Socratic Questioning:
Asking and Answering in the Meno, 63 U. CIN. L. REV. 221, 222 (1994)
(observing that the ‘‘method of questioning is revolutionary, is radical . . . [and]
has radical or revolutionary results . . . [which] we can see . . . in our students’’).
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discipline of legal analysis.60 The accommodation, however, was
never an easy one. The legal version of the Socratic method has
been a controversial changeling from the beginning.61 Initially
conceptualized as a handmaiden to science, the Socratic method
long outlived the demise of its jurisprudential progenitor.62 The
Socratic method’s perseverance in legal education is, to some
scholars, ‘‘an odd legacy,’’ because even after critics ‘‘expos[ed]
the jurisprudential faults of Langdell’s system,’’ they ‘‘left
Langdell’s methodology dangling, still universally used . . .
without good reason, used almost by force of habit.’’63
Given this, one might suspect that legal education has been
foreclosed from participation in the most recent Socratic
renaissance because the method lost its jurisprudential purchase
early on and was never again on a secure philosophical
foundation. This is unlikely for two reasons. First, the Socratic
method is extremely pliable and can function well within any
jurisprudence. Indeed, the Socratic method probably works as
well with modern jurisprudential theories, such as legal realism,
pragmatism, and post-modern deconstructionism, as it did with a
jurisprudence built upon faith in the scientific nature of law.
Second, the center of the pedagogical cosmos of legal education,
as contrasted to law itself, has never been any particular
jurisprudence, but rather the case method.64 Although the
60. Christopher Columbus Langdell, Teaching Law as a Science, in THE
HISTORY OF LEGAL EDUCATION IN THE UNITED STATES, supra note 11, at 51416; ALBERT J. HARNO, LEGAL EDUCATION IN THE UNITED STATES: A REPORT
PREPARED FOR THE SURVEY OF THE LEGAL PROFESSION 51-70 (1980) (1953);
see also Mary Brigid McManamon, The History of the Civil Procedure Course:
A Study in Evolving Pedagogy, 30 ARIZ. ST. L.J. 397, 417 (1998) (describing the
evolution of the case method and the Socratic method and the importance of
James Barr Ames’ contribution). The comparison to the scientific method is
not limited to the context of legal education. See PHILLIPS, supra note 6, at 20
(pointing out that the ‘‘scrupulous and exhaustive form of inquiry . . . resembles
the scientific method’’ in many ways because of ‘‘the sustained attempt to
explore the ramifications of certain opinions and then offer compelling
objections and alternatives’’).
61. William Epstein, The Classical Tradition of Dialectics and American
Legal Education, 31 J. LEGAL EDUC. 399, 400; JOEL SELIGMAN, THE HIGH
CITADEL: THE INFLUENCE OF HARVARD LAW SCHOOL 47 (1978).
62. Epstein, supra note 61, at 399-400 (noting that the scientific basis of the
case method was criticized by O. W. Holmes and other adherents to legal
realism and sociological jurisprudence).
63. Id. at 400.
64. McManamon, supra note 60, at 417.
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Socratic method and the case method are not necessarily the
same or interdependent, thus far, their fates have been closely
intertwined.65
Even if early twentieth-century legal educators had little
true faith in the jurisprudence that discovered the Socratic
method, they likely did not continue to use it ‘‘without good
reason’’ or solely by ‘‘force of habit.’’ On the contrary, law
professors probably used the Socratic method because they were
acculturated to associate it with the case method (the validity of
which few questioned until recently), and their pedagogical
justification for the practice evolved along with their
jurisprudence.
Nor does the decline in usage of the Socratic method seem
to be attributable to a true paradigm shift in legal education, as a
superficial survey of legal scholarship might imply. Although
legal scholars have always been somewhat critical of the Socratic
method,66 in the last three decades the negative assessments have
increased in number, substance, and intensity.67 These criticisms
may be arranged along a spectrum of condemnation that runs
from, at one extreme, a characterization of the Socratic method
as a manufactured, cynical illusion, to a portrayal of dominance,
cruelty, and patriarchy incarnate, at the other end.68
65. Michael Vitiello, Professor Kingsfield: The Most Misunderstood
Character in Literature, 33 HOFSTRA L. REV. 955, 964 n.67 (2004)
(distinguishing the Socratic method from the case method and authorities
cited).
66. Epstein, supra note 61, at 399-400; SELIGMAN, supra note 61, at 47;
Vitiello, supra note 65, at 956 n.5 (observing that early criticisms focused on
inefficiency and a lack of fidelity to philosophical roots).
67. Kerr, supra note 9, at 116; Vittiello, supra note 65, at 959.
68. Arthur D. Austin, The Waste Land of Law School Fiction, 1989 DUKE
L.J. 495, 502-06 (1989). See generally Nancy E. Shurtz, Lighting The Lantern:
Visions of a Virtual All-Women’s Law School, 16 HASTINGS WOMEN’S L.J. 63,
63 (2004) (using a metaphorical all-women’s law school to illustrate the
inequity, oppression and patriarchy of traditional law schools); Kerr, supra
note 9, at 118 & n.19 (identifying three general types of criticism: psychological
harm; pedagogical narrowness; and an objectionable------to some------political and
ideological agenda); Morrison Torrey, You Call That Education?, 19 WIS.
WOMEN’S L.J. 93, 100-09 (2004) (taking positions typical of those
commentators most critical of the Socratic method); SULLIVAN ET AL., supra
note 13, at 56 (charging the Socratic method with obscuring underlying issues of
fairness).
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In between those who deny its existence and those who
advocate its demise, however, are many law professors who
regularly use some form of question and answer technique.69 A
significant number of law professors fall into this category and
consider themselves to be engaging in Socratic dialogues, at least
some of the time, in their classes.70 A genuine paradigm shift
would require, at a minimum, consensus that some other method
of teaching legal analysis is superior to the Socratic method, not
just that the old approach is flawed. Too many law professors,
however, question the effectiveness of a law school curriculum,
particularly a first-year curriculum, devoid of structured and
analytical dialogue, for this to be true. In any event, irrespective
of what law professors actually do, the Socratic method still
dominates as an ideal, albeit one under siege.71
1. The Socratic Paradox
The combination of the classic Socratic method with the
case method produced a technique that does not at first glance
seem stylistically similar to the dialogues Socrates purportedly
conducted.72 Consequently, some have questioned whether the
law school version is valid if it is unfaithful to its philosophical
origins.73 While the classical and the legal versions do not
superficially resemble one another, beneath the surface, their
The legal pedagogy is
close affinity becomes obvious.74
quintessentially Socratic because, as will be shown, it inherited
the essential duality and definitive ambiguities of the classic
method.75
69. Sheppard, The State of the Art, supra note 11, at 777-814; and Kerr,
supra note 9, at 115, 122 (identifying a spectrum of teaching styles at Harvard
including what he calls ‘‘traditionalists,’’ ‘‘quasi-traditionalists,’’ and ‘‘countertraditionalists,’’ but noting that even the traditionalists lecture and use other
non-Socratic teaching methods).
70. Sheppard, The State of the Art, supra note 11, at 777-814.
71. Vitiello, supra note 65, at 972.
72. Some argue that the legal version more closely resembles that of
Protagoras, Socrates’ rival. Vitiello, supra note 65, at 961 n.51 (citing William
C. Hefferman, Not Socrates, but Protagoras: The Sophistis Basic of Legal
Education, 29 BUFF. L. REV. 399, 415 (1980)).
73. Epstein, supra note 61, at 400.
74. Id.
75. The Socratic ‘‘dialectic is traditionally held to have followed two
complementary paths: one destructive of opinions and designed to produce in
an interlocutor a state of perplexity and therefore also a willingness to learn;
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Scholars tend to frame this duality as either: (1) alternative
interpretations of ambiguous text; or (2) an unambiguous
revelation of the distinctly bipolar and paradoxical nature of the
Socratic dialectic. Although many aspects of the Socratic legacy
are the subject of contentious debate, for the purposes of this
Article, four interrelated issues are relevant: whether Socrates
had a positive moral theory; whether Socrates had any purpose
beyond the deconstructive; whether Socrates was sincere or
deceitful; and, in particular, whether Socrates was sincere when
he disclaimed having knowledge and denied being a teacher.
The core ambiguity on the substantive side is whether
Socrates employed his method to demonstrate a moral truth,
philosophy, or definition, or whether it was used solely to
illustrate the falsity of other beliefs. Almost all agree that if
Socrates had a purpose beyond disputation, it is not apparent
until the Platonic transformation,76 and that he ‘‘maintains
epistemological innocence, methodological naivety’’ until the
Meno.77 In the view of some, his methodology is designed not
only to ‘‘destroy[] all false positions,’’ but also to ‘‘lead[] to a true
understanding of first principles . . . [and] ultimate good and
truth.’’78 Others believe that much of what Socrates does is
purely refutational and any demonstration of truth or proof of
something is ‘‘an accidental by-product.’’79
On the one hand, Socrates condemns what he considered
the disreputable Sophist’s art------the pedagogical technique of his
rival, Protagoras------as encouraging use of rhetoric in a
manipulative way to subvert knowledge and truth.80 This implies
that, at a minimum, Socrates believed his dialectic to be in
service of some positive goal, even if it was not the discernment
of what he believed to be ultimate or absolute truths. On the
and a constructive one leading in principle to definite conclusions.’’ Hayden
W. Ausland, Forensic Characteristics of Socratic Argumentation, in DOES
SOCRATES HAVE A METHOD?, supra note 5, at 36, 36.
76. Epstein, supra note 61, at 404.
77. VLASTOS, SOCRATIC STUDIES, supra note 5, at 25.
78. Epstein, supra note 61, at 403-04. Stated otherwise, Socratic dialogue is
more of a ‘‘dialectical investigation, in which truth is the goal and the
questioner and respondent are required to cooperate.’’ Tarrant, supra note 5,
at 75.
79. Id. at 63.
80. Vitiello, supra note 65, at 961-62.
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other hand, although Socrates’ deconstruction of others’ beliefs
may not have been designed to mislead, it does not mean that it
was used to promote the discovery of any particular version of
the truth. In the Memorabilia, Xenophon writes: ‘‘We’ve had
enough of your ridiculing others, questioning and refuting
everyone, while never willing to render an account [of] yourself
to anyone or state your own opinion about anything.’’81
Interestingly, these issues present themselves clearly in the
evolving definition of the word ‘‘elenchus,’’ which has been used
by scholars to designate the Socratic method.82 This leads to the
core ambiguity on the procedural side: Did Socrates employ
humiliation and insincerity for purely destructive purposes------that
is, to demonstrate to others the falsity of their beliefs------or did he
use these Sophistic tools as first steps towards teaching others
how to discern the truth for themselves?83
Assessing whether Socrates viewed elenctic shaming as
justifiable is more difficult than one might imagine. A significant
amount of textual authority exists for the notion that Socrates
engaged in a form of rhetorical jousting that did not seem to
serve any explicit or stated purpose. This has lead some
commentators to conclude that Socratic dialogue was ‘‘designed
to humiliate people as much as it [was] to get to the bottom of
things’’ and that Socrates ‘‘realize[d] the harmful effects [of]
these public hazings,’’ but did not let up because he enjoyed it.84
When viewed from a broad perspective, however, the dialogues,
81. GREGORY VLASTOS, SOCRATES: IRONIST AND MORAL PHILOSOPHER 32
(1991) [hereinafter VLASTOS, IRONIST].
82. ‘‘Elenchus’’ was first used in the mid-1800s and was introduced to
English-language audiences in 1941. Scott, supra note 53, at 3. Initially, it
probably meant ‘‘shame’’ or ‘‘disgrace,’’ of the type associated with failing at a
martial test. Tarrant, supra note 5, at 79. It gradually came to mean ‘‘the
examination of the true nature of some person or thing [and] . . . [then] the
examination itself.’’ Id. Its modern usage is a ‘‘search for moral truth by
question-and-answer adversary argument in which a thesis is debated only if
asserted as the answerer’s own belief and is regarded as refuted only if its
negation is deduced from his own beliefs.’’ VLASTOS, SOCRATIC STUDIES, supra
note 5, at 1, 4. Some believe that ‘‘elencho,’’ as a verb, retained the idea of
‘‘shaming’’ (oneself or another) in a test or contest, and also includes
connotations of ‘‘reveals,’’ ‘‘discloses,’’ and ‘‘impugns the honor of.’’ James H.
Lesher, Parmenidean Elenchos, in DOES SOCRATES HAVE A METHOD?
RETHINKING THE ELENCHUS IN PLATO’S DIALOGUES AND BEYOND, supra note
5, at 24.
83. VLASTOS, IRONIST, supra note 81, at 42.
84. HANS, supra note 54, at 2-3.
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in their entirety and on balance, do not seem to support the
conclusion that questioning others to humiliate was, for Socrates,
simply an irrational sport.85
It is more likely that these conversations served several
constructive purposes. The first of these was to shock his
interlocutors into seeing how fallacious, weak, or biased their
assumptions, beliefs, and prejudices were.
This ‘‘violent
reversal’’ has been compared to a purging and is an essential
prerequisite to further inquiry.86 As one commentator has
stressed, ‘‘[t]he elenchus involved persistent hypocrisy.’’87 The
justification was that dialectic discomfort was also preparatory to
helping students develop into independent thinkers who realize
that truth is within their own power to find. The harsh and
focused questioning was meant to be internalized as a
‘‘safeguard against self-deception.’’88
Socrates also endeavored to show others what ‘‘knowledge’’
does and does not mean, or to use Socrates’ words, that ‘‘wisdom
is not wisdom.’’89 The pain of the dialectic was designed to bring
the interlocutor to Socrates’ realization that ‘‘[i]t looks as
though, while neither of us knows anything worthwhile, he
thinks he does; but as for me, while, as in point of fact, I have no
knowledge, neither do I think I have any.’’90 Most scholars
believe that Socrates was being ironic or distinguishing between
two types of knowledge when he made these statements.91 The
dominant view is that Socrates surely had knowledge, but in a
radically weaker sense92 and this awareness of uncertainty is a
desirable ‘‘higher level of ignorance.’’93 In other words, some
85. Gregory Vlastos contends that this harsh view is a misunderstanding
flowing from the lack of an explicit, textual rationale or justification and that
the Socratic dialectic seems to be ‘‘constrained by rules . . . [Socrates] does not
undertake to justify.’’ VLASTOS, SOCRATIC STUDIES supra note 5, at 1.
86. RICHARD ROBINSON, PLATO’S EARLIER DIALECTIC 18 (1953).
87. Id. at 10.
88. Dieter Krohn, Theory and Practice of Socratic Dialogue, in ENQUIRING
MINDS, supra note 4, at 15, 16; VLASTOS, SOCRATIC STUDIES, supra note 5, at
17.
89. VLASTOS, SOCRATIC STUDIES, supra note 5, at 64.
90. VLASTOS, IRONIST, supra note 81, at 82.
91. VLASTOS, SOCRATIC STUDIES, supra note 5, at 32, 48; Saran & Neisser,
supra note 8, at 4.
92. VLASTOS, SOCRATIC STUDIES, supra note 5, at 58-60.
93. Leonard Nelson, The Socratic Method, in ENQUIRING MINDS, supra
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things may be knowable and perhaps, dialectically demonstrable,
for example, how to calculate the area of a triangle, but others,
such as the definition of justice, are not. What Socrates is
actually making evident through his queries is not knowledge or
wisdom, but expertise.94 His skillful interrogations have the
purpose of revealing whether we may trust the Socratic
questioner to help us map the boundaries between what we can
and cannot know.95 It is doubtful that the process of being
pushed from the certainty of knowledge to ‘‘a higher level of
ignorance’’96 could be accomplished without some discomfort, or
in more contemporary terms, cognitive dissonance.
Finally, the stark difference between the non-conversational
speeches of the practitioners of rhetoric and the cooperative,
radically unassuming nature of Socratic inquiry is designed to
undermine our notion of how the wise teach. Socrates says he
does not teach. Some would say this assertion, like the
disavowal of knowledge, is a type of complex irony97 or an
expression of a paradox.98 Others would say that what does not
look like teaching is, in reality, very effective instruction. As
Kierkegaard has famously said, ‘‘[O]ne can deceive a person
about the truth, and (remembering old Socrates) one can
deceive a person into truth. Indeed, when a person is under an
illusion, it is only by deceiving him that he can be brought into
the truth.’’99 Socrates took pleasure in pointing out the errors of
those who claimed to impart a truth already known to
themselves,100 and he enjoyed ‘‘repay[ing] the Sophists in their
own coin.’’101 His ultimate purpose, however, seems to have
been to create a dynamic exchange that, as one scholar puts it,
‘‘trigger[s] in a learner an autonomous learning process.’’102 To
those who comprehend the intent behind the shaming and
note 4, at 126, 139.
94. Tarrant, supra note 5, at 74.
95. Id.
96. Nelson, supra note 93, at 139.
97. VLASTOS, IRONIST, supra note 81, at 31-32.
98. VLASTOS, SOCRATIC STUDIES, supra note 5, at 48.
99. VLASTOS, IRONIST, supra note 81, at 132.
100. VLASTOS, SOCRATIC STUDIES, supra note 5, at 65.
101. VLASTOS, IRONIST, supra note 81, at 132.
102. VLASTOS, SOCRATIC STUDIES, supra note 5, at 65.
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humiliation of the Sophistic dialectic, Socrates is not only a
teacher, ‘‘but the only true teacher.’’103
Some scholars argue that these conflicting interpretations
may be harmonized if elements of the elenchus are considered
from a particular perspective.104 James S. Hans, for example,
uses the neglected irrational elements of the Socratic dialogues
to posit that the notion of arete (virtue or excellence) and
Socrates’ daimonic (irrational or intuitive) voice are ‘‘the center
of the man rather than reasoning on the one hand and
moralizing on the other.’’105 More than anything, however,
trying to resolve these inconsistencies uncovers a persistent
duality in the Socratic method borne of the indeterminacy and
elasticity inherent in the manner in which the dialect has been
conveyed to us. The dual Sophist and midwife personalities of
the collective we refer to as Socrates are, therefore, not so much
dichotomous, as paradoxical.
2. The Socratic Method in Law Schools
If one does not attribute the co-existence of these
alternatives as a product of the multiplicity of Socratic voices, it
becomes apparent that, when the Socratic method was imported
into legal education, Christopher Columbus Langdell and James
Barr Ames necessarily made both the Sophist and midwife roles
available to law school practitioners of the dialectic.106 For this
reason, any attempt to pin down the definitive elements of the
paradigmatic version of the method in law schools is doomed to
fail. Old Socrates is, even in law school, simply too slippery and
adaptive.
A similar duality of co-existing strategies of
deconstructive domination and nurturing accommodation was
historically present in horsemanship.107
Prior to the informal and widespread acceptance of the
Socratic ideal, legal education relied upon lectures and
103. VLASTOS, IRONIST, supra note 81, at 32.
104. For example, some scholars have observed that much of the
disagreement settles around the tools Socrates used: rhetoric, aporia, and
irony. See, e.g., VLASTOS, SOCRATIC STUDIES, supra note 5, at 13, 21-22, 31;
HANS, supra note 54, at 5, 131.
105. HANS, supra note 54, at 57, 97.
106. See Robert P. Schuwerk, Reflections on Ethics and Mediation, 38 S.
TEX. L. REV. 757, 766 (1997).
107. See supra notes 44-51 and accompanying text.
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apprenticeships.108 Langdell discovered the Socratic method
because he was searching for something more distinctive, which
would make law more of a discipline and a law school class more
like a science laboratory.109 The following were among the a
priori principles of this new professional pedagogy. First, the
focus of legal education was teaching students how to practice
law and to think like lawyers.110 Because of this emphasis, firstyear students would only incidentally encounter information
about the operation of law in society, the history of law, the
philosophy of law, and jurisprudence. Such exposure would not
be systematic, in contrast to the graduate school or European
model. Second, educators considered legal reasoning, analysis,
and argument to be at the heart of lawyering and therefore,
made acquisition of these skills, rather than other aspects of law
practice, the centerpiece of a legal education.111 Third, using the
Socratic method for in-class scrutiny of appellate cases was an
effective and efficient way for students to learn how to perform
legal analysis in a participatory manner. Although the presumed
consensus on the distinctive nature of legal reasoning and the
legitimacy of law as a sui generis discipline disappeared with the
advent of legal realism, few law professors challenged the
importance of legal analysis to lawyering, and hence, to legal
education. 112
Beyond these principles, it is impossible to determine how
much consensus there was then, or at any other time for that
matter, about precisely how to practice the Socratic method in a
law school class. Although variability was presumably evident
from the beginning, accounts in legal commentaries and the socalled ‘‘lore of the profession’’ suggest that a law professor
practicing the classical version of the law school Socratic method
108. McManamon, supra note 60, at 405 n.25, 405-06.
109. Id. at 417; STUCKEY, supra note 11, at 133.
110. Steve Sheppard, Introduction: Why Study the History of Law School,
in 1 THE HISTORY
OF LEGAL EDUCATION IN THE UNITED STATES:
COMMENTARIES AND PRIMARY SOURCES, supra note 11, at 1, 2-3.
111. John Henry Schlegel, Between the Harvard Founders and the
American Legal Realists: The Professionalization of the American Law
Professor, in 2 THE HISTORY OF LEGAL EDUCATION IN THE UNITED STATES:
COMMENTARIES AND PRIMARY SOURCES, supra note 11, at 955-65.
112. SELIGMAN, supra note 61, at 36 (expressing the modern view that
‘‘[b]ound up with Langdell’s curriculum and methods were political beliefs
every bit as conservative as those of Joseph Story’’).
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should: hide the methodology from the students; expect all
students to be prepared and on call; call on students without
advance notice; give very little direct feedback on the quality of
the students’ responses; treat all arguments as equally valid for
purposes of advancing the dialogue; refuse to let poorly
prepared or unprepared students off the hook; discourage the
use of canned briefs or commercial outlines; radiate comfort
with ambiguity in law and facts; ensure that the students
confront ambiguity in law and facts; expect other students to
listen actively to the exchange; convey neutrality as to legal
policies; conceal personal ideology; ruthlessly play devil’s
advocate; make the students’ assumptions and biases apparent;
highlight differences of kind and degree; point out logical
consistencies and inconsistencies; and finally, remember that a
Socratic dialogue is not a discussion where assertions of
students’ personal views are welcomed. 113
The Socratic method, in general, has the goals of teaching
students how to read cases and extract principles of law from
them, use legal reasoning and analysis to apply law to fact
patterns different from those of an assigned case, make
persuasive legal arguments, and understand the nature of legal
decision making.114 Ideally, the student internalizes the Socratic
dialectic and is ultimately able to do these things for herself
113. Vitiello, supra note 65, at 965; Epstein, supra note 61, at 407. The
Socratic method, according to one law teacher, is not: the case method; a
simple recitation of the assignment; an ‘‘antiphonal catechism’’ of the ‘‘Who is
God?’’ variety; an opinion survey of the ‘‘what do you think?’’ variety (unless
the premises of each opinion are examined for consistency and the implication
of the opinion with related propositions is explored); the non-followed-up
vague, or big-picture rambler of the ‘‘what is justice?’’ mega-question variety,
(unless instructors use it to move dialogue forward); a token mid-lecture pause,
(i.e., a twenty minute lecture with a ‘‘What is X?’’ question thrown in); or a
Critical Legal Studies Invention to demonstrate indeterminacy. Areeda, supra
note 11, at 911-14. It does, however, show students that nothing is as clear as it
first seems, that every maxim cited to support a conclusion is offset by a
counter-maxim, that precedents often seem and may actually be contradictory
and that few generalizations remain authoritative at the margins. Id.
114. See also James Jay Brown, Forging An Analytical Mind: The Law
School Classroom Experience, 29 STETSON L. REV. 1135, 1139-40 (1999)
(defining the goals of the Socratic method as ‘‘knowledge of the substantive
law’’; ‘‘understanding of the legal process and public policy aspects’’; ‘‘[a]n
ability to recognize and develop legal issues inherent in the subject’s
difficulties’’; ‘‘analytical reasoning skills’’; ‘‘[a]n ability to . . . communicate all of
the above’’; ‘‘and [a]n assumption of responsibility for one’s own education’’).
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without someone else prompting the next step in the analysis.115
In classical Socratic terminology, therefore, the ideal law teacher
assumes both the Sophist and midwife roles. If one considers the
previously identified Socratic justifications for subjecting
interlocutors to the discomfort of the dialectic (to shock them
into recognizing the flaws in their reasoning, to prepare them to
discern truth for themselves, to use expertise to assist them in
attaining ‘‘a higher level of ignorance,’’ and to inspire and
facilitate an autonomous learning process), the law school
version seems designed with precisely those objectives in mind.
a. Changes in Law Schools
We cannot know to what extent law professors attempted to
balance Sophistic and midwife techniques in the past. We do
know that they increasingly blended the Socratic method with
other, less confrontational approaches, such as lectures,
discussions, simulation exercises and problem-solving sessions, in
part, to soften the relentless demands involuntary participation
makes of both teachers and students. Even though it is
impossible to prove, for the purposes of the following analysis,
we will assume that prior to the 1970s, a majority of Socratic law
professors adopted a hard-edged deconstructive style, were not
overtly nurturing during their classes, did not play either part
with much sympathy, and justified it all as the best way to pursue
intellectual rigor.116
This description of the presumably
dominant paradigm has been called the ‘‘Professor Kingsfield’’
paradigm.117
The 1970s, however, introduced new and different elements
into the relatively stable and homogeneous world of Professor
Kingsfield.118 Decades of modifying influences have culminated
in a tipping point situation similar to that in horsemanship, in the
sense that the combined effects of these sociological, political,
115. Epstein, supra note 61, at 418 (describing the ‘‘internal point of view
that comprises a lawyer’s esoteric knowledge’’).
116. SULLIVAN ET AL., supra note 13, at 5 (characterizing the dominant
analytical style as ‘‘a distinctly cool stance of detached criticism’’).
117. Vitiello, supra note 65, at 955-67. The fictional professor is widely used
in legal scholarship to refer to the classic version of the Socratic method.
SULLIVAN ET AL., supra note 13, at 23, 48-49.
118. See SULLIVAN ET AL., supra note 13, at 1.
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and psychological forces appear to be putting tremendous stress
on the dominance of the Professor Kingsfield paradigm.119
During this critical period, law schools proliferated.120 The
substantial expansion in the number and type of teaching
positions also created opportunities for experimentation and
change in methodology.121 Although they may have joined a
tradition-bound sector of higher education, new law schools
could create their own local teaching culture, as long as they
complied with standards for accreditation.122 These new cultures
did not always elect to incorporate the Professor Kingsfield ideal
into their institutional philosophies.123
At the same time, a contemporary approach to higher
education was gradually becoming more pervasive.
‘‘Consumerism’’ began to reshape the relationships among the
administration, faculty, and student bodies.
The label
‘‘consumerism’’ has been used to describe a point of view that
equates education with business and advocates treating students
as consumers of products and services.124 A consumerism
philosophy would make the desirability of a law degree and its
value relative to those of other law schools high priorities.
However, this perspective would also pay close attention to a
potentially inconsistent goal------the happiness and comfort levels
of the students. Because of this interest in keeping students
satisfied, universities embracing this philosophy will likely
119. See generally id. (describing the history and status of legal education);
STUCKEY, supra note 11 (strongly advocating the need for fundamental change
in pedagogy).
120. SULLIVAN ET AL., supra note 13, at 7; Joan MacLeod Heminway,
Caught in (or on) The Web: A Review of Course Management Systems for
Legal Education, 16 ALB. L.J. SCI. & TECH. 265, 270 (2006).
121. SULLIVAN ET AL., supra note 13, at 12, 18-20 (identifying
encouragement of ‘‘imaginative dialogue about teaching’’ and stimulation of
interest in ‘‘better teaching and more effective programs’’ as goals of the
report).
122. Id. at 12-13; Heminway, supra note 120, at 275.
123. SULLIVAN ET AL., supra note 13, at 33-43.
124. See Robert M. Lloyd, Consumerism in Legal Education, 45 J. LEGAL
EDUC. 551, 551-56 (1995) [hereinafter Lloyd, Consumerism]; John L. Lahey &
Janice C. Griffith, Recent Trends in Higher Education: Accountability,
Efficiency, Technology and Governance, 52 J. LEGAL EDUC. 528, 529, 537
(2002).
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require student evaluations of professors, which elicit a broad
range of subjective impressions from the students.125
The expansion of information about learning styles and
studies into the psychology of education, have become important
perspectives that are being used to reshape legal education.126 A
significant number of law professors have been exposed to and
endorse the belief that students have different styles of learning,
which should be considered when choices are made about
teaching techniques, materials, and counseling.127 These types of
reformers also use psychology to detect and explain the causes of
law school-related stress in their efforts to reduce its effects,
which they presuppose to be deleterious.128
Within law schools, faculty governance has become more of
a practical reality. Many deans now serve at the pleasure of the
faculty, and the faculty is often a very factionalized group.
Deans tend to defer to the factions they view as influential and
powerful. The result has been a significant increase in the ability
of the faculty to resist administrative interference with teaching
performance under the rubric of academic freedom. The level of
control exercised by some faculties is so extensive that one
commentator has analogized it to capture of an industry by a
self-interested group acting contrary to the best interests of the
125. Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L.
REV. 667, 684 (2004) [hereinafter Lloyd, Hard Law Firms].
126. SULLIVAN ET AL., supra note 13, at 100, 125; Eric A. DeGroff &
Kathleen A. McKee, Learning Like Lawyers: Addressing the Differences in
Law Student Learning Styles, BYU EDUC. & L.J. 499, 547 (2006) (asserting
that have demonstrated ‘‘for the first time, a significant link between cognitive
learning styles and law school performance’’).
127. See, e.g., Heminway, supra note 120, at 279-80; Paul Bateman, Toward
Diversity in Teaching Methods in Law Schools: Five Suggestions from the
Back Row, 17 QUINNIPIAC L. REV. 397, 399 nn.9-10 (1997); Carolyn J. Nygren,
Starting Off Right in Law School, 29 STETSON L. REV. 1121, 1125-28 (1999)
(classifying the learning styles of law students as deductive, inductive, auditory,
visual, morning learners, and evening learners). See generally Joanne Ingham
& Robin A. Boyle, Generation X in Law School: How These Law Students
Are Different From Those Who Teach Them, 56 J. LEGAL EDUC. 281 (2006)
(presenting the results of a multi-year study examining the learning styles of
law students).
128. Bonita London, Geraldine Downey & Shauna Mace, Psychological
Theories of Educational Engagement: A Multi-Method Approach to Studying
Individual Engagement and Institutional Change, 60 VAND. L. REV. 455, 459,
475-76 (2007); Robert P. Schuwerk, The Law Professor As Fiduciary: What
Duties Do We Owe to Our Students, 45 S. TEX. L. REV. 753, 753-66 (2003).
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stakeholders, for example, students and taxpayers, in that
enterprise.129
b. Changes in Law Professors
Finally, the most influential factor in creating a tipping point
situation has been the introduction of a new generation of law
professors. The transformation of law faculties is the result of
the accretion of employment and tenure-conferring decisions
over a period of several decades. In particular, in the early
1980s, women and minorities began to enter the legal teaching
profession in significant numbers.130 For the limited purpose of
determining why so many law professors are abandoning the
Socratic method, one may make some supportable
generalizations about the traits shared by faculty hired since the
1970s.
Like their predecessors, law professors tenured since the
1980s are overwhelmingly graduates of elite schools that
emphasized creativity and independent critical thinking.131 Their
education typically produced an anti-authoritarian attitude that
equates rules and institutional restraints with conservatism,
totalitarianism, and formalism. Such a mind-set bridles at
enforcing imposed structures, restrictions, and rules because it
sees them as dictatorial and unnecessarily rigid. To the
intellectually free-spirited, treating students like adults means
not imposing constraints on them or requiring teachers to be
enforcers.132
129. Jeffrey L. Harrison, Faculty Ethics in Law Schools: Shirking, Capture
and ‘‘The Matrix’’, 82 U. DET. MERCY L. REV. 397, 397-99 (2004); see also
STUCKEY, supra note 11, at 284 (citing faculty control as an obstacle to
curricular reform); CHARLES SYKES, PROFSCAM: PROFESSORS AND THE DEMISE
OF HIGHER EDUCATION 7, 11 (1988).
130. Richard E. Redding, ‘‘Where Did You Go to Law School?’’
Gatekeeping for the Professoriate and its Implications for Legal Education, 53
J. LEGAL EDUC. 594, 606 (2003) (noting the improvement ‘‘in minority hiring
since the 1980s’’); Jo Anne Durako, Second-Class Citizens in the Pink Ghetto:
Gender Bias in Legal Writing, 50 J. LEGAL EDUC. 562, 563-64 (2000)
(discussing the disparity between the number of women attending law school
and women holding faculty positions, but noting the increase in the percentage
of women in tenured positions and from 1980 to 1986 an increase in women in
non-tenured faculty positions).
131. STUCKEY, supra note 11, at 134; Redding, supra note 130, at 594-95,
599-603; SULLIVAN ET AL., supra note 13, at 89-90.
132. See Redding, supra note 130, at 599-603 (presenting the results of an
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The elite legal educations of young law professors tended to
focus on law as an intellectual endeavor.133 Their own law
professors seldom explicitly cast the classroom experience as
preparation for the actual practice of law.134 Their patrician
heritage manifests itself in subtle ways, such as a breezy lack of
concern for bar passage rates, employment placement statistics,
or the relative value of the non-elite law degrees they confer on
their own students.135 Because law schools striving to be more
like those from which these professors graduated are likely to
reward productivity in publication, rather than excellence in
teaching, professors focus their ambition in that direction.136
Indeed, evidencing a real interest in the nuts and bolts of
classroom teaching (as opposed to an interest in analyzing
pedagogy in law review articles) is, from an elitist perspective,
academically plebeian.137
Professors hired in the last three decades are likely to have
been heavily influenced by 1960s and 1970s political and social
liberalism.138 It is hardly surprising that many chose law teaching
as a means of advancing political, ideological, and social
agendas.139 Today, law professors are less likely to be committed
to ideological neutrality in the classroom or to refrain from
allowing their personal beliefs to influence hiring and other
faculty governance decisions.140
empirical study that showed that although the race and gender of law teachers
have diversified, the overwhelming majority are graduates of a small number of
elite law schools and that this remains a professionally determinative factor).
133. Schlegel, supra note 111, at 961-62 (describing how James Barr Ames
rejected the suggestion that case books should include state law by criticizing
the idea that the ‘‘main object is knowledge’’ rather than ‘‘the power of legal
reasoning’’); SELIGMAN, supra note 61, at 123-26 (observing that, historically,
faculty appointments at Harvard Law School were made on the basis of
academic brilliance rather than knowledge of or proficiency at practicing law);
see also SULLIVAN ET AL., supra note 13, at 89.
134. SULLIVAN ET AL., supra note 13, at 89-90.
135. STUCKEY, supra note 11, at 8 (identifying the need for a higher
commitment to bar passage by law schools); SULLIVAN ET AL., supra note 13, at
90.
136. STUCKEY, supra note 11, at 107.
137. SULLIVAN ET AL., supra note 13, at 89-90.
138. See CHARLES J. SYKES, THE HOLLOW MEN: POLITICS AND CORRUPTION
IN HIGHER EDUCATION 19-35 (1990).
139. See Lloyd, Hard Law Firms, supra note 125, at 678-79.
140. SYKES, supra note 138, at 33; John O. McGinnis, Matthew A. Schwartz
& Benjamin Tisdell, The Patterns and Implications of Political Contributions
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The tenets of individualism, self-actualization, and other
psychological orientations have exerted influence over the
contemporary view of our relations with one another. Young
professors are more inclined to identify with their students’
perspectives and to make governance decisions in an
unapologetically self-referential manner, relying upon their own
experiences as law students, rather than empirical studies or
claims of expertise.141 More professors want to be liked by their
students and to receive good evaluations from them.142 Many
consider validation and self-esteem boosting to be legitimate
goals for professional education. These professors strive to
reach the ‘‘learning should be fun’’ generation by creating a
positive, entertaining, supportive, non-threatening atmosphere
Grades are a way to affirm and
in their classrooms.143
by Elite Law School Faculty, 93 GEO. L. J. 1167, 1191-98 (2004); see also Lloyd,
Hard Law Firms, supra note 125, at 678-79. One commentator has observed
that ‘‘[w]hile today’s academic elite ballyhoo their ‘Socratic heritage’ at every
opportunity, . . . ‘the way they teach’ is the antithesis of the Socratic way.’’
PHILLIPS, supra note 6, at 159. But see Gerald Fetner, The Law Teacher as
Legal Reformer: 1900-1945, 28 J. LEGAL EDUC. 508, 508-09 (1977) (describing
early twentieth century law professors as unconstrained ‘‘by the responsibilities
of impartiality and respect for precedent’’).
141. SULLIVAN ET AL., supra note 13, at 165 (discussing law professors’
heavy investment in the summation evaluation approach used in first year
courses); see also, e.g., Kerr, supra note 9, at 129-30 (discussing a survey of
faculty finding that those modifying or rejecting the Socratic method also
tended to have developed a distaste for it as students); David P. Bryden & E.
Christine Flaherty, The ‘‘Human Resumes’’ of Great Supreme Court Justices,
75 MINN. L. REV. 635, 656 (1990) (reporting the results of a study showing that
the characteristics law professors find desirable in Supreme Court justices are
the attributes characteristic of elite law professors).
142. See Lloyd, Consumerism, supra note 124, at 555; Deborah J. Merritt,
Bias, the Brain, and Student Evaluations of Teaching, 82 ST. JOHN’S L. REV.
235, 240-53 (2008) (reviewing psychological research demonstrating a strong
link between student evaluations and a professor’s nonverbal behavior).
Studies of student teaching evaluations show that students give higher ratings
when they expect higher grades and find the teacher’s presentations
entertaining. Lee C. Rice, Student Evaluation of Teaching: Problems and
Prospects, 11 TEACHING PHIL. 329, 335-36 (1988); Robin Wilson, New
Research Casts Doubt on Value of Student Evaluations of Professors, CHRON.
HIGHER EDUC., Jan. 16, 1998, at A12; Anthony G. Greenwald & Gerald M.
Gillmore, Grading Leniency is a Removable Contaminant of Student Ratings,
11 AM. PSYCHOL. 1209, 1214 (1997); Nalini Ambady & Robert Rosenthal, Half
a Minute: Predicting Teacher Evaluation from Thin Slices of Nonverbal
Behavior and Physical Attractiveness, 64 J. PERSONALITY & SOC. PSYCHOL.
431, 431-34 (1993).
143. Murray Sperber, How Undergraduate Education Became College
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acknowledge the students’ efforts, rather than a measure of their
performance, and consequently, grade inflation has become
rampant in legal education.144
Even though their own legal education probably involved a
considerable amount of Socratic instruction, law professors
entering legal education today are nevertheless willing to
question the legitimacy of old methodologies.145
These
professors have been largely responsible for the expansion of
and experimentation with new teaching techniques, such as roleplaying, group exercises, simulations, and live-client clinics.146
On the substantive side, some professors openly espouse
applying postmodern jurisprudential theories, such as Critical
Legal Studies, to the content of classroom instruction.147
Putting together all that we have assumed up to this point, a
composite picture of these traits would describe the following
type of law professor. He will have faith in the inevitability of
progress and believe that practices naturally evolve in a positive
direction------new methods are better than old ones. Although he
likely owes his job to his traditional elite legal education, he will
be willing to experiment with different techniques and eager to
Lite------and a Personal Apology, in DECLINING
BY DEGREES: HIGHER
EDUCATION AT RISK 138 (Richard H. Hersh & John Merrow eds., 2005)
(concluding that a ‘‘non-aggression pact exists between many faculty members
and students: Because the former believe that they must spend most of their
time doing research, and the latter often prefer to pass their time having fun, a
mutual non-aggression pact occurs with each side agreeing not to impinge on
the other. The glue that keeps the pact intact is grade inflation.’’).
144. See generally Steve Sheppard, An Informal History of How Law
Schools Evaluate Students, with a Predictable Emphasis on Law School Final
Exams, in 2 THE HISTORY OF LEGAL EDUCATION IN THE UNITED STATES:
COMMENTARIES AND PRIMARY SOURCES, supra note 11, at 815 (describing the
advent of grading curves and distributions, reduced rigor in grading, and
diminishment in academic attrition); Harvey C. Mansfield, Our Coddled
Students: How Harvard Compromised Its Virtue, CHRON. HIGHER EDUC., Feb.
21, 2003, at B7 (comparing grade inflation to parents spoiling their children);
SELIGMAN, supra note 61, at 13-14 (describing the history of grade inflation at
Harvard Law School).
145. Friedland, supra note 11, at 37 (finding a positive correlation between
years of experience and a lack of willingness to incorporate new teaching
techniques).
146. See STUCKEY, supra note 11, at 134 (describing use of the case method
to ‘‘think like a lawyer’’ rather than just ‘‘substance’’); SULLIVAN ET AL., supra
note 13, at 91.
147. See Jerry L. Anderson, Law School Enters the Matrix: Teaching
Critical Legal Studies, 54 J. LEGAL EDUC. 201, 201-15 (2004).
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apply some postmodern concepts in the classroom, but, in
general, will adopt a laissez faire attitude. Otherwise, however,
his identity will be closely tied to his own education experience,
to which he will make reference in the classroom as a means of
gaining status and credibility with the students.148 He will
continue to employ this highly self-referential perspective when
making pedagogical decisions. For example, if he preferred
take-home exams as a student, these are the exams he will tend
to give as a teacher. If he disliked the Socratic method as a
student, he is unlikely to use it as a teacher.149
This type of professor will demand and receive a great deal
of deference from the law school’s administration. They, in turn,
will mostly allow him to do as he pleases in the classroom, as
long as he prioritizes publication, does not make the students too
unhappy or rebellious, and is not too derelict in his basic duties:
meeting classes (most of the time), giving exams (increasingly
more likely to consist of multiple choice or take home
questions), and turning in generous grades, (mostly B+s and As).
He will promote the employment of professors like himself, and
these similarities will likely include his elite background and
liberal political ideology.150
In the classroom, this law professor will strive to keep the
stress level low and the entertainment value high. He will be
friendly and approachable to students and will not harass them
about rules regarding absences and tardiness. He will do what
he can to make the students feel good about themselves. His
class will include well-organized presentations of black letter
law. He will solicit students’ personal views and opinions in
class, but will control the tone and flow of the discussion just
enough to make sure that those with unpopular or upsetting
beliefs do not feel comfortable expressing them. Sometimes he
will communicate his personal assessment of the desirability of
legal policies and the correctness of judicial opinions, although if
he is skillful and subtle, the students will mistake it for analysis.
To be sure, this portrait may be as much of a stylized
exaggeration as portrayals of the ubiquitous Professor
Kingsfield. Even if this portrait is an accurate likeness of very
148. SULLIVAN ET AL., supra note 13, at 90.
149. Kerr, supra note 9, at 129-30.
150. SYKES, supra note 138, at 21.
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few actual professors, the collective concentration of these
characteristics in legal education has undoubtedly increased.
During the last three decades, more and more law professors
possess at least some of these traits and would, therefore, be less
likely to use an undiluted version of the Socratic method. This
disinclination, however, would not necessarily result in an
abandonment of the Socratic method in its entirety. To the
contrary, a kinder, gentler version of the Socratic method can be
very stimulating and fulfill student expectations of experiencing
this professional rite of passage.151 The aspect most likely to be
watered down or eliminated is involuntary participation over
which the students have little control, that is, they do not know
the day the professor will call on them, cannot pass, and will be
held accountable, in some sense, for poor performance.
In the late 1980s, despite a culture of collegial deference and
academic freedom, law review articles began to appear with
increasing frequency in which legal educators argued that the
Socratic method was intrinsically flawed in ways that made its
use by anyone undesirable.152 It is beyond the scope of this
Article to convey all of the offenses with which Feminists and
others critics have charged the Socratic method in this
voluminous ‘‘Carthago delenda est’’ literature.153 However,
some shared themes have emerged.154 These critiques contend
that the Socratic method is necessarily hierarchical, replicates
patriarchy, perpetuates a narrow, adversarial view of law,
forecloses other methods of teaching, devalues other nontraditional ways of speaking Law, encourages incivility, exposes
students to ridicule, emotionally traumatizes students, and fails
151. Bailey Kuklin & Jeffrey W. Stempel, Continuing Classroom
Conversation Beyond the Well-Placed ‘‘Whys?’’, 29 U. TOL. L. REV. 59, 63-64
(1997).
152. Vitiello, supra note 65, at 956 (summarizing many of the criticisms of
the Socratic method).
153. See, e.g., Schuwerk, supra note 128, at 757 (alluding to the ‘‘destructive
impact of the current dominant legal education pedagogy on vast numbers of
law students’’). ‘‘Carthago delenda est’’ refers to the annihilation of Carthage,
here referring to the eradication of all use of the Socratic Method. JOHN C.
TRAUPMAN, THE NEW COLLEGE LATIN & ENGLISH DICTIONARY 87, 134 (1995).
154. See STUCKEY, supra note 11, at 134-41 (summarizing the perceived
defects in and criticisms of the Socratic method); SULLIVAN ET AL., supra note
13, at 187 (noting that the ‘‘signature pedagogy’’ of legal education has
‘‘strengths, but also unintended consequences’’).
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to accomplish its pedagogical goals.155
Among the most
disturbing claims are that it has a disproportional negative
impact upon women and minorities.156
These critics believe that women participate less in class
discussions, do not do as well academically as their similarly
situated male peers, report greater dissatisfaction, and are
generally alienated from law school in greater numbers than
non-minority males.157 The leap these studies make is that most
of this discomfort and disaffection is caused by the Socratic
method. When law students are asked to describe how they
experience their classes, their responses are necessarily a
mediated version of reality.158 Although empirical studies have
155. Vitiello, supra note 65, at 967-70 (describing the criticisms: the method
discriminates against women, is ineffective, makes students cynical, and
disadvantages students who have different learning styles); STUCKEY, supra
note 11, at 73 (asserting that the Socratic method undermines students’ selfworth and teaches them that what they believe is unimportant or irrelevant);
John Mixon & Robert P. Schuwerk, The Personal Dimension of Professional
Responsibility, 58 LAW AND CONTEMP. PROBS. 87, 97 (1995) (accusing legal
education of teaching students to conceal or denigrate their deepest personal
and professional values, rendering them ‘‘virtual professional cripples’’);
Stephen C. Halpern, On the Politics and Pathology of Legal Education, 32 J.
LEGAL EDUC. 383, 388-89 (1982); Roger E. Schechter, 10 GEO. J. LEGAL
ETHICS 367, 381-83 (1996) (arguing that ‘‘there may be a subtle message of
incivility inherent in our educational methodology that may condition our
students to be tolerant and accepting of incivility in the workplace after they
graduate’’); Peggy Cooper Davis & Elizabeth Ehrenfest Steinglass, A Dialogue
About Socratic Teaching, 23 N.Y.U. REV. L. & SOC. CHANGE 249, 250 (1997)
(asserting that ‘‘the Socratic method has so dominated thinking about legal
education that other teaching methods have been marginalized or precluded’’).
156. See SULLIVAN ET AL., supra note 13, at 56-57 (identifying a ‘‘shadow
pedagogy’’ omitted from the case dialogue method, including consideration of
issues of fairness, experience with clients, and ethical substance); Lani Guinier,
Michelle Fine & Jane Balin with Ann Bartow & Deborah Lee Stachel,
Becoming Gentlemen: Women’s Experiences at One Ivy League Law School,
143 U. PA. L. REV. 1, 98-100 (1994) (asserting that survey data showed that
many women are alienated by the Socratic method). But see Vitiello, supra
note 65, at 958 (concluding that the studies identifying the Socratic method as
the cause of students’ negative feelings about law school have been discredited
in part because they rely on surveys of students’ feelings and impressions).
157. Sari Bashi & Maryana Iskander, Why Legal Education is Failing
Women, 18 YALE J.L. & FEMINISM, 389, 437 (2006) (speculating that although
an all-volunteer format might be dominated by men, women may ‘‘keep quiet,
not because they have nothing to say, but because the type of speech solicited,
accepted, and rewarded in class is limited and reflects a bias in favor of men’’).
158. See, e.g., London et al., supra note 128, at 467-70 (positing a ‘‘diary
study’’ methodology as useful to determine law student engagement). See
generally Shurtz, supra note 68 (presenting a feminist critique of law school).
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been attempted, for the most part, they do not appear to be
scientifically designed, nor have the variables been sufficiently
defined.159 Furthermore, it is not clearly evident that the
authors’ standards for impact on the students’ performances
were related to the effectiveness of teaching either in the short
or long run.160 Therefore, even assuming disparate reactions to
the Socratic method do exist, it is not at all clear that they stem
from the status of being female or a minority or that the often
unexamined forms of essentialism the surveyors assume are
valid.161 Whatever the extent of the disparity or the sources of
the discomfort, the reactions of those students who are especially
vulnerable or anxious in the classroom should be highly relevant
in any cost-benefit analysis of the Socratic method.162 As
explained in the next section, any professor using the Socratic
method should attend to heightened fear responses, especially if
the anxiety is related to the particular types of vulnerability
previously described.163
The collective effect of these harsh accusations is to collapse
the Socratic ideal into the most extreme elements some have
identified with the classic philosophical method: intimidating,
shaming, deconstructive, mocking, sly, and deceitful.164 This is
not, however, an accurate picture of Professor Kingsfield (who
does not engage in many of the bad acts ascribed to Socratic
teachers by these critics), but rather another literary figure,
Professor Clapp, the ignoble Sophist.165 No one can prove
159. Vitiello, supra note 65, at 972-79.
160. Id.
161. Shurtz, supra note 68, at 81 n.71 (citing a study that found LSAT scores
predicted performance in law school for men and women equally); Banu
Ramachandran, Note, Re-reading Difference: Feminist Critiques of the Law
School Classroom and the Problem with Speaking From Experience, 98
COLUM. L. REV. 1757, 1792-93 (1998).
162. London et al., supra note 128, at 473-75.
163. See, e.g., Ellen Nakashima, Harsh Words Die Hard on the Web: Law
Students Feel Lasting Effects of Anonymous Attacks, WASHINGTON POST,
Mar. 7, 2007, at A1 (describing the internet bullying of women and minorities
by fellow law students); SELIGMAN, supra note 61, at 17 (quoting Duncan
Kennedy as saying that law school is a ‘‘degradation ceremony’’ and the
students are ‘‘as cruel if not crueler’’ than their professors).
164. But see Saran & Neisser, supra note 8, at 4 (pointing out that
arrogance, conceit, and hostility also jeopardize the classic philosophical
progress).
165. Professor Clapp is a literary character who ‘‘hated the students’’ who
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whether these extreme behaviors were isolated or widespread,
frequent or sporadic.166 The truth may not matter much in any
event, because legal education may already have transformed
the Socratic ideal into antithesis.167 Some cynics believe that not
only did the critics accomplish this by inventing a straw man, but
they did so with the assistance of their less radical colleagues and
cooptation of the students.168
c. Changes in Law Students
Thus far, the reasons not to use the Socratic method are
piling up, and the list does not yet include any contributions
from the students. Again, generalizations are distorting and
must be well-grounded to be useful. Many law students adapt
easily and well to the Socratic method and enjoy the challenge.
Many, however, are poorly prepared for it, and if they do adjust
quickly, it is more of a testament to their intelligence than to
their pre-law educations. A significant number of entering
students are likely to have insufficient experience in
independent, critical thinking and possess poorly developed
powers of prolonged and intense concentration on written
materials.169
return his ‘‘dislike in full measure.’’ MICHAEL LEVIN, THE SOCRATIC METHOD
3, 11 (1987). His students view their Socratic classroom exchanges with him as
‘‘intellectual muggings.’’ Id. This impression of the Socratic method is not
limited to its critics or those taking literary license. Some of its practitioners
apparently understand the method as traditionally practiced to require these
behaviors. See, e.g., James Boyle, The Anatomy of a Torts Class, 34 AM. U. L.
REV. 1003, 1014 (1984) (revealing that he believes abandoning the traditional
method and making his classroom less hierarchical, stereotypically male, and
alienating, means ‘‘doing without the perverted adrenaline rush of the
authoritarian-Socratic classroom,’’ which is ‘‘driven by fear,’’ and foregoing the
‘‘seductive mantle of infallibility that first year students confer on their
teachers, no matter how demonstrably rude, inept, and narrow those teachers
might be’’).
166. See supra note 11.
167. STUCKEY, supra note 11, at 139 (asserting that the most important
reason to reconsider use of the Socratic method is not ‘‘its limitations as a
teaching tool’’ but rather that ‘‘too many law teachers abuse it and contribute
to the damage that the law school experience unnecessarily inflicts on many
students’’).
168. Austin, supra note 68, at 502-07 (calling the Socratic method an illusion
of oppression for the contemporary ‘‘fun’’ generation of law students).
169. Erik Vance, College Graduates Lack Key Skills, Report Says, CHRON.
HIGHER EDUC., Feb. 2, 2007, at A30; Michael Jordan, Law Teachers and the
Education Continuum, 5 S. CAL. INTERDISC. L.J. 41, 61-64 (1996).
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Many law students attended mostly large, anonymous
undergraduate classes, in which they may not have been
required to attend or participate in any manner and from which
they received little personalized feedback.
In those
undergraduate classes, many students spend time taking
verbatim notes of their professors’ lectures and readily seek out
a variety of instructional shortcuts, including prepared outlines,
class notes and other study aids.170 As a consequence, some
students enter law school unaccustomed to taking the initiative
in educational matters and unmotivated to seek aids that are not
reductive in nature.
Despite all of this, because of grade inflation at the
undergraduate level, these students likely received high grades
for relatively little effort, but nonetheless grew up fearing
competitive judgment, represented by not excelling on objective
tests. Unlike many of their professors, most students view their
education instrumentally, as a series of hurdles to be cleared to
obtain goals, rather than education for its own sake.171 At a
minimum, one can fairly say that a combination of these traits
does not prepare students to participate in Socratic dialogues,
which requires strengths in the very skills their undergraduate
educations did not emphasize. What happened when this
generation of students, perhaps the least prepared to engage in
Socratic dialogues, met the generation of professors least willing
to use it? The answer is that the same type of negative relational
dynamic observed in horsemanship became commonplace in
legal education and the carrot and stick approaches crystallized.
Those who attempt to adhere to the dominance or stick
modality of the Professor Kingsfield variety find it simply is not
working well by any measure. A substantial number of law
students are deeply resistant to efforts to use intimidation and
170. SYKES, supra note 129, at 48-50 (describing the evolution of the ‘‘mass
class’’ phenomenon in undergraduate institutions).
171. Jonathan D. Glater, Colleges Chase as Cheats Shift to Higher Tech,
N.Y. TIMES, May 18, 2006, at A1 (reporting that two-thirds of 62,000
See generally DAVID
undergraduates surveyed admitted to cheating).
CALLAHAN, THE CHEATING CULTURE: WHY MORE AMERICANS ARE DOING
WRONG TO GET AHEAD 196-224 (2004) (describing a number of studies which
indicate that widespread cheating in high school and undergraduate colleges is
the result of the pressure to do well).
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harsh consequences to force their compliance.172 Their hostility
is likely to be more pronounced if the professor is young,
inexperienced, or a minority. These students suspect that the
professor is the problem, the method unfair, the presentation of
material unclear, and the effort to participate frustrating. Even
in smaller, less virulent quantities, the resentment in class is
often a serious impediment to developing the cooperative spirit
required for the dialectic to function well.
In effect, Professor Kingsfield finds himself bulldozed to the
far end of the rigor spectrum, even though he might have been
classified as a moderate just a decade ago. This type of professor
may respond by tightening up on the students and attempting to
punish their lack of preparation by chastising them publicly or
promising to call on non-compliant students again. These
reactions may seem proportional measured by the standards of
another era, but today’s students, for reasons explained in the
next section, will experience them as extreme and punitive.173
One professor has captured the atmosphere by observing that
‘‘‘[m]odern sensibilities’ . . . ‘make it much harder for classes to
accept the pressure. Students won’t tolerate it; a resentment
develops. You feel it might lead to outright revolution.’’’174 To
students, their non-Socratic professors are likely to appear kind,
helpful, and more effective by comparison.
Most students probably prefer classes that present the law
in pre-packaged, pre-digested, and well-organized units, like the
bar exam review materials they are pressured to purchase during
their first year of law school.175 Why, the students wonder, don’t
all of their professors do it this way? From the perspective of an
old-school Socratic teacher, once law students taste fruit from
the poisonous lecture tree, they look upon the Socratic method
with knowing suspicion. The students resist the rigors of the
172. Mansfield, supra note 144, at B7 (observing that it is difficult for
professors ‘‘to give demanding assignments, make unsympathetic comments,
enforce deadlines, and be sparing of praise and tough to impress’’).
173. London et al., supra note 128, at 475 (noting that students perceive the
slightest criticism from their teachers); Schuwerk, supra note 128, at 768
(observing that students take these exchanges personally).
174. Kerr, supra note 9, at 127.
175. Ingham & Boyle, supra note 127, at 288-95 (explaining that Generation
X students want learning to be fun); Friedland, supra note 11, at 28-29
(reporting on survey data indicating use of lectures by law teachers).
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Socratic classroom, find comfort elsewhere in the community,
and this affirmation further exacerbates their sense of being
treated unfairly.
Consequently, they may convey their
frustration with what appears to be deliberate and uncaring
obfuscation by giving their Socratic professors negative
evaluations.176
Those who have not rejected the Socratic method for
ideological reasons, receive subtle and not-so-subtle signals from
administrators and other professors not to use it.177 Among the
most significant of the forces pushing against use of the Socratic
method is the risk of being accused of insensitivity to the plight
of women and minorities in law schools. This is a powerful
accusation at odds with the ideals most law teachers profess.178
Students understandably question whether it is fair to test them
on material that the instructor, from their perspective, has not
presented clearly or comprehensively.179 The overvaluing of
good teaching evaluations and mandatory grade distributions
rob professors of some of the traditional means of motivating
students.180 As a result, students often end up, in effect, teaching
the teacher to stop using the most frightening and confusing
aspects of the Socratic method, to abandon the method
altogether, or suffer professional consequences.
Obviously, some law professors reject the Socratic method
for sincerely held pedagogical, ideological, or psychological
176. Ruth Buchanan & Sundhya Pahuja, Using the Web To Facilitate
Active Learning: A Trans-Pacific Seminar on Globalization and the Law, 53 J.
LEGAL EDUC. 578, 587 n.25 (2003).
177. See generally SULLIVAN ET AL., supra note 13; STUCKEY, supra note 11,
at 111-12, 132, 146, 286 (strongly urging legal educators to abandon adherence
to the classic version of the Socratic method).
178. Patrick M. Garry, A Half-Century Since Brown: The Legal Academy’s
View of Racism, 42 IDAHO L. REV. 209, 213 (2005) (noting that ‘‘no group in
society [is] more committed to racial diversity than the nation’s higher
education faculty’’).
179. STUCKEY, supra note 11, at 235-39.
180. Stanley Fish, All in the Game: Who’s in Charge Here? CHRON.
HIGHER EDUC., Feb. 4, 2005, at C2 (criticizing the use of teaching evaluations
in faculty promotion decisions because they do not seek useful data and allow
‘‘transient students with little or no stake in the enterprise . . . free[dom]
(because they [are] anonymous) to indulge any . . . grievance’’). But see
Deborah Jones Merritt, Research and Teaching on Law Faculties: An
Empirical Exploration, 73 CHI.-KENT L. REV. 765, 815-16 (1997) (legitimizing
the receipt of teaching awards as an appropriate measure of excellence in
teaching).
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beliefs.
This Article is not an effort to disprove their
assumptions or change their convictions. Its focus is on those
professors who want to use the method, at least some of the
time, but nevertheless find themselves giving more lectures and
moderating more discussions. One reason is the aforementioned
negative cycle of resistance and faculty frustration.181 Another is
its converse, an increasing spiral of accommodation, the teaching
equivalent of horsemanship’s carrot approach. This attitude
begins with the desire to teach students how to do legal analysis,
but not to cause them any discomfort in the process.
These professors believe that the old ways of doing things
were overbearing and needlessly intimidating and try to ease the
students’ fears by giving them more control over the process of
Socratic questioning.182 These professors might adopt a system
where only certain rows of students are on call for one day of the
week and allow students to pass, either before or during class.183
These professors spend a significant amount of class time
responding to students’ questions and volunteered comments.
They encourage the students by asking straightforward ‘‘softball’’ questions, praising their responses, and welcoming
expressions of personal opinions and feelings. Gradually, the
amount of time spent on Socratically questioning students who
have been called upon decreases, and these professors begin
giving more mini-lectures to move the class along without
cutting the discussions short. The students may take verbatim
notes during lectures, but will probably write almost nothing of
their classmates’ comments in their notes.
Over time, students learn that if they make a half-hearted
effort to respond to questions, the professor will fill in the gaps.
The professor usually works hard to make the classes
stimulating, and the students are mostly learning only about law,
unless the professor also uses other methods such as problem
solving, role-playing, or group interactions. This type of
professor may believe, however, that law classes are primarily
for the transmission of information.184 On the substantive side,
181. Lloyd, Hard Law Firms, supra note 125, at 681; Lloyd, Consumerism,
supra note 124, at 555.
182. STUCKEY, supra note 11, at 221.
183. Lloyd, Hard Law Firms, supra note 125, at 683.
184. Kerr, supra note 9, at 124 (reporting that so-called counter636
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the professor gradually begins to do more and more of the work.
He may be modeling legal analysis for his pupils, but the
students are not being asked to do very much of it themselves in
class. One might assume that this would make the students
anxious about their ability to do legal analysis on their exams,
but these professors reassure them with praise for their efforts
and guaranteed high grades.185 The desire to be perceived by
students as a generous grader has produced a grade inflation
arms race that has pushed law school grades higher and higher.186
The more accommodating professors are likely to encounter
more problems than their classically Socratic colleagues with
students being tardy, missing a lot of classes, talking while others
are speaking, blurting out comments, and surfing the internet
during class.187
From a broader perspective, law schools are
Modern law school
accommodating students more.188
administrations are more receptive to student complaints, more
likely to validate them in decision making, and more open to
making law schools kinder and gentler.189 Unfortunately, these
reactions may be based on erroneous assumptions about the best
interests of the students.190 In the long run, implicitly or
explicitly discouraging use of the Socratic method may not be in
the best interests of the students. It cannot serve the best
interests of the students until legal education has come up with a
traditionalists were more likely to categorize themselves as transmitters of
information); see also STUCKEY, supra note 11, at 8, 45-49 (noting that in legal
education elsewhere in the world, the trend is away from content-focused
education and towards outcome-oriented instruction).
185. Lloyd, Hard Law Firms, supra note 125, at 680-83 (discussing the
‘‘water[ing] down’’ of ‘‘Hard courses’’ and offering of ‘‘Soft courses’’ to
accommodate the weak analytical skills of many law students).
186. Lloyd, Consumerism, supra note 124, at 552-53. Studies show that the
expectation of a good grade is a predictor for how highly a student will
evaluate a teacher. See supra note 142.
187. Lloyd, Hard Law Firms, supra note 125, at 682-85.
188. Lahey & Griffith, supra note 124, at 534.
189. Deborah L. Rhode, Feminist Perspectives on Legal Education, 45
STAN. L. REV. 1547, 1563 (1992) (calling for law schools to be more committed
to ‘‘cooperative, collaborative, and empathetic lawyering’’ and to place ‘‘far less
reliance . . . on large lectures or quasi-Socratic discussion [with] greater
emphasis [on] legal clinics, simulations, . . . and other settings for interactive,
experiential learning’’).
190. Lloyd, Consumeism, supra note 124, at 553-54, 556.
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more effective way of assisting them in mastering legal analysis,
which remains the skill legal employers value most.191
Furthermore, many of the suggested reforms, such as smaller
classes, more contact with clients, and simulation courses, are
expensive from a resource standpoint and might require law
professors to teach more hours, something they are likely to
resist because of the emphasis placed on publication.192
The dynamic becomes apparent.193 The students we have
created have in turn, created their professors. Professor
Kingsfield has bifurcated into the ignoble Sophist and his
converse, the accommodating nurturer.194 Law teaching seems,
at least as far as the Socratic method is concerned, to be
reorganizing itself around two seemingly inconsistent, competing
ideals: the dominating deconstructionist and the accommodating
nurturer.
This bipolarity, however, like the dominationaccommodation schism in horsemanship, is illusory. These
approaches are flip sides of the same coin. The dominance side
errs too much in the direction of control and discounts the
students’ anxiety and discomfort; the accommodation side
misapprehends the need for leadership and guidance. Neither
may be a professionally responsible approach. 195
191. STUCKEY, supra note 11, at 66-67 (conceding that reformed curricula
should emphasize self-reflection and analytical skills). Stuckey also reports the
results of a survey of members of the Arizona Bar which, among other things,
asked lawyers to assess the importance of various professional skills and found
that 96% of those responding found legal analytical and reasoning skills of the
highest importance). Id. at 78.
192. SULLIVAN ET AL., supra note 13, at 89-91.
193. One might justifiably view the use of the Socratic method as a norm
that has lost a Darwinian struggle with the nurturing norm and, consequently,
will disappear within a relatively short period of time, like footbinding in
China. Gerald Mackie, Ending Footbinding and Infibulation: A Convention
Account, 61 AM. SOC. REV. 999, 999 (1996).
194. A similarly fictionalized caricature of the antithesis of the ignoble
Sophist is Professor Rebecca Shepard. LEVIN, supra note 165, at 17. She
entered law teaching ‘‘with an abhorrence of law school professors who called
on students at random, as a means of insuring preparation and attentiveness,’’
and instead seeks ‘‘volunteers to answer her well-crafted questions’’ because
she believes that ‘‘living with constant tension was demoralizing and ultimately
psychologically damaging.’’ LEVIN, supra note 165, at 33, 105; see also
STUCKEY, supra note 11, at 30-32 (stating that the philosophies and practices of
many law teachers cause emotional harm).
195. Contrary to the assumptions of consumerism, law students’ preferences
will not ensure that they receive the type of classes they need. Although some
might voluntarily seek out intense, participatory Socratic instruction, many will
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Parts II and III deal with each of these issues, respectively,
and apply the insights that paved the way for natural
horsemanship to transition to a paradigm which merged its
juxtaposed ideals. Part II addresses the nature of fear and how it
affects participation in classroom dialogues. Part III suggests a
way to restructure the Socratic method by analogizing the legal
dialectic to a prey-predator conversation.
Xenophon,
overshadowed by Plato in the Socratic dialogues, may help
resuscitate the Socratic method in law schools, not because of his
Socratic dialogues, but rather because of his conversations with
horses.
II. UNDERSTANDING CULTURE CLASH
Equine society and human society are obviously very
different, but they are alike in less obvious ways that make
domestication possible. Each possesses the ability to understand
the signs and signals of dominance and submission.196 Horses
can understand and interpret human non-verbal, communicative
behavior, which evolution has made important to horses’
survival. And much more of human communication is nonverbal than is commonly assumed.197 As one commentator has
noted, humans were able to domesticate horses without much
difficulty because of a ‘‘common ‘language’ of dominance and
submission that was intuitively and mutually intelligible.’’198
Monty Roberts calls this language ‘‘Equus’’ and says:
What I can do with horses . . . is the result of long hours
observing them in the wild. It’s essentially a simple thing
not and among those will be students who are unable to teach themselves after
they graduate. One commentator has observed:
It is easy for dogmatic instruction to soar into higher regions.
Indifferent to self-understanding, it purchases its illusory success at the
cost of more and more deeply rooted dishonesty. It is not surprising,
then, that the Socratic method is compelled to fight a desperate battle
for integrity of thought and speech before it can turn to larger tasks.
Leonard Nelson, supra note 93, at 148.
196. BUDIANSKY, supra note 28, at 61.
197. Jansen Voss, The Science of Persuasion: An Exploration of Advocacy
and the Science Behind the Art of Persuasion in the Courtroom, 29 LAW &
PSYCHOL. REV. 301, 316 (2005) (reporting that ‘‘[p]sychologists have found that
non-verbal communication accounts for 65-70% of the total communication
between humans’’).
198. BUDIANSKY, supra note 28, at 61.
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based on common sense. There is something magical about it,
but it’s the magic of an undiscovered tongue------primitive,
precise, and easy to read.
The silent language uses
movements of the body------’signs’ that can be read. I’ve called
it Equus but I believe this is a universal tongue understood
not just by all wild and domestic horses, ponies, mules, and
even donkeys but also by other ‘flight’ animals such as deer.
Once learned, the language allows a new understanding
between human and horse.199
Like members of early indigenous societies, Roberts
realized through intense, patient observation, that he ‘‘could
effectively cross over the boundary between human (the
ultimate fight animal) and horse (the flight animal). Using their
language, their system of communication, . . . [to] create a strong
bond of trust [and] . . . achieve cross-species communication.’’200
The desire to bridge the gap between species, what Roberts calls
‘‘[t]he longing for kinship with a horse,’’ is still pervasive and
powerful in modern times, suggesting it is deeply ingrained, even
though it is no longer useful from an evolutionary perspective.201
Natural horsemanship has unpacked and identified the
components of this language and made them accessible for use
by non-professionals in a systematic way.202 One may view
Socratic dialogues in law schools as a similar effort at
communication between beings on opposite sides of the preypredator divide. The Socratic method implicitly analogizes the
acquisition of legal reasoning skills to learning to speak a new
language, by a law school version of deep immersion in a foreign
culture. The structural essence of the Socratic method is the
professor’s engagement of his or her students in conversations
that deliberately put students in the position of having to use the
vocabulary of law and the rules of legal grammar before they can
reasonably be expected to know them.203
199. ROBERTS, supra note 2, at xxii.
200. Id. at 27.
201. Id. at xiv. See generally EDWARD O. WILSON, BIOPHILIA: THE HUMAN
BOND WITH OTHER SPECIES 1-2, 138-40 (1984) (studying the connections that
human beings subconsciously seek with the rest of life).
202. See generally MILLER & LAMB, supra note 1, at 5-40 (describing the
various training techniques designed for use by amateurs); JOHN LYONS with
SINCLAIR BROWNING, LYONS ON HORSES 14-15 (1991).
203. Elizabeth Mertz, Teaching Lawyers the Language of Law: Legal and
Anthropological Translations, 34 J. MARSHALL L. REV. 91, 103, 110 (2000).
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The dialogues function primarily as language games, the
purpose of which is to bring contextual meaning to the critical
terms of the legal vocabulary, terms that are highly ambiguous
because of their many uses in the law and the language of
everyday life.204 The professor’s purpose is to show that meaning
shifts constantly in the face of the students’ search for an
appropriate response. By this technique, students learn how to
use language intelligently, which is the basic skill of lawyering.205
In this respect, the Socratic method is both true to its
philosophical heritage and, as Langdell and Ames surmised, a
perfect fit for law school.206 Some commentators say Plato wrote
dialogues because of an intuition that ‘‘conversation, in the form
of question and answer, is the structure of thought.’’207 A critical
difference exists between rhetoric and conversation-based
learning. According to one scholar, ‘‘Socrates . . . replaced [a]
war of words [with] dialogue.’’208 Socrates’ idea was ‘‘that
individuals could not be intelligent on their own, that they
needed someone else to stimulate them.’’209 Before Socrates,
‘‘the model . . . was the monologue: the wise man or the god
spoke and the rest listened.’’210 ‘‘His brilliant idea was that if two
unsure individuals were put together, they could achieve what
they could not do separately: they could discover the truth, their
own truth, for themselves.’’211
The Socratic strategy is to ‘‘put language in play while
focusing it through a question [and create an opportunity for the
204. SULLIVAN ET AL., supra note 13, at 55 (describing law as initiation into
a language); Epstein, supra note 61, at 417.
205. SULLIVAN ET AL., supra note 13, at 13 (recognizing the priority of
analytical thinking in preparing students to practice law); Epstein, supra note
61, at 418.
206. See supra note 60.
207. SEDLEY, supra note 8, at 1. This is not linguistic determinism (a theory
that our thoughts are determined by the categories made available by our
language) or its weaker cousin, linguistic relativity (which posits that
differences among languages cause differences in the thoughts of their
speakers). STEVEN PINKER, THE LANGUAGE INSTINCT: HOW THE MIND
CREATES LANGUAGE 57-82 (1994). SULLIVAN ET AL., supra note 13, at 52
(explaining how questions and answers relate to the deep structure of the
Socratic method).
208. THEODORE ZELDIN, AN INTIMATE HISTORY OF HUMANITY 33 (1994).
209. Id.
210. Id.
211. Id. at 33-34.
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participants in the dialogue to] learn about the process of
language, [and] the mysterious means through which the world
reveals itself to us.’’212 Like the domineering horsemen of the
past, however, law professors ignore the fact that their students
simply do not understand the purposes and justifications for the
Socratic method. They fail to recognize how profoundly this
lack of understanding alters its effectiveness.
A. Prey Consciousness in Horses
Scientific studies have explored how different species relate
to one another and how these relationships might have affected
their evolution. From a Darwinian perspective, no relationship
is more fundamental and determinative than that of prey with
predator.213 Prey-predator roles or consciousness, like those of
student and teacher, merge within species and within
individuals.214 Although it is accurate to say that humans are,
generally speaking, predators and horses prey, some advocate
that it is more useful to classify certain behaviors as predatory in
nature.215
The prey consciousness of horses, from the perspective of
natural horsemanship, manifests in a cluster of behaviors.
Horses run when frightened, are highly perceptive, react quickly,
learn quickly, have an excellent memory, crave company,
communicate with body language, base social relationships upon
dominance and submission, need clear signals of their social
position, and can be rapidly desensitized to fearful things.216 For
purposes of comparing natural horsemanship training techniques
to an involuntary Socratic dialogue, three of these traits warrant
a closer look: fear, comfort-seeking, and learning style.
1. Fearfulness
Horses are defined by their fear and their adaptive
strategies to survive in a dangerous world.217 They have evolved
212.
213.
214.
215.
216.
217.
HANS, supra note 54, at 13-14.
IRWIN, supra note 26, at 32.
Id. at 32-38.
Id.
MILLER & LAMB, supra note 1, at 88-103.
TEMPLE GRANDIN, ANIMALS IN TRANSLATION: USING THE MYSTERIES
OF AUTISM TO DECODE ANIMAL BEHAVIOR 217-25 (2005); BUDIANSKY, supra
note 28, at 156-67; IRWIN, supra note 26, at 32.
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to be continuously alert to threats. Their prey consciousness
compels a broad focus on their environment, close observation
of objects, and constant alertness to changes and movements.218
Among other things, prey consciousness is an orientation toward
overall awareness, rather than a more narrow focus.219 A
predator’s interest will be captured by a grazing deer, whereas, a
horse will use its broad range of vision to scan the entire field.220
Their alertness to danger is combined with extremely fast flight
reflexes and near instantaneous reactions to fright.221 An
untrained horse’s reaction to a perceived threat often seems
disproportional, but is understandable if one imagines how
hesitation might have reduced the horse’s chances of survival.222
They are also extremely sensitive to threats perceived by other
horses in the herd, and consequently, a horse’s first impulse is to
run when the other horses do.223 Despite their power and
dangerousness, horses are vulnerable, frightened, and lack selfconfidence. This is a combination of traits humans find both
alien and compelling.224
2. Comfort Seeking
Horses are lazy and seek relief from stimuli.225 They react
by moving in whatever direction will give them relief, comfort,
and safety.226 When they feel safe, they stop moving and
conserve energy.227 They do not like ambiguity; they want to
know with certainty whether they may safely relax.228 Their
body language and set of dominance-submission signals are
based on movement.229 As prey, horses show submission by
218. IRWIN, supra note 26, at 34, 113-14.
219. GRANDIN, supra note 217, at 26, 39-67; IRWIN, supra note 26, at 34, 113-
14.
220. IRWIN, supra note 26, at 114.
221. MILLER & LAMB, supra note 1, at 88-91; BUDIANSKY, supra note 28, at
156-67.
222. MILLER & LAMB, supra note 1, at 89.
223. JENNIFER M. MACLEAY, SMART HORSE: UNDERSTANDING
SCIENCE OF NATURAL HORSEMANSHIP 15-16 (2003).
224. IRWIN, supra note 26, at 161.
225. LYONS, supra note 202, at 11-12.
226. ROBERTS, supra note 2, at 24-25.
227. LYONS, supra note 202, at 12.
228. ROBERTS, supra note 2, at 25.
229. IRWIN, supra note 26, at 46-57.
THE
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movement.230 They flee from predators, but they also move
away from or in the direction they are pushed by more dominant
members of the herd.231 When they have responded by showing
the appropriate level of submission, they are allowed to stop
moving.232 Similarly, when they want to assert dominance, they
do not move and seek to make others uncomfortable enough to
move away from them.233 Curiously, horses are also what
horseman call ‘‘into pressure’’ animals that have an ‘‘opposition
reflex.’’234 If pressure is applied to an untrained horse’s flank, it
will cause the animal to push back against the pressure.235
3. Precocial Learning
‘‘Precocial’’ refers to species, such as grazing mammals, who
Misunderstanding and
begin learning at birth.236
underestimating this type of intelligence may be the source of
the belief that horses are stupid and stubborn.237 Prejudice
makes it difficult for humans to assess the intelligence of another
species without making ourselves the referent and judging others
as deficient.238 In reality, horses learn quickly, easily incorporate
new information into their behavior, and have excellent
memories (but only for things they find important enough to
remember).239
Their owners, trainers, and riders often
underestimate their powers of observation and overlook the fact
that horses are learning all the time, including lessons we do not
want them to learn, for example, how many refusals it takes
before we will stop asking them to do something.240 Another
230.
231.
232.
233.
234.
235.
236.
LYONS, supra note 202, at 9-11.
IRWIN, supra note 26, at 46-50.
Id.
Id. at 49.
ROBERTS, supra note 2, at 27; MILLER & LAMB, supra note 1, at 129
ROBERTS, supra note 2, at 27; MILLER & LAMB, supra note 1, at 129.
BUDIANSKY, supra note 28, at 171; MILLER & LAMB, supra note 1, at
102-04.
237. LYONS, supra note 202, at 17.
238. BUDIANSKY, supra note 28, at 158; MACLEAY, supra note 223, at 14-15;
GRANDIN, supra note 217, at 288-90.
239. MILLER & LAMB, supra note 1, at 94; BUDIANSKY, supra note 28, at
148-50 (discussing the difference in assessing intelligence in other species);
MACLEAY, supra note 223, at 17-19.
240. JOHN LYONS & MAUREEN GALLATIN, COMMUNICATING WITH CUES:
THE RIDER’S GUIDE TO TRAINING AND PROBLEM SOLVING PART I, at 15
(1998).
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aspect of horse intelligence relevant to natural horsemanship is
‘‘cellular compartmentation.’’241 Trainers have observed that if a
horse is taught, for example, how to trot to the right on a lunge
line, he is unlikely to know how to trot to the left, until he is
trained on that side as well.242 In other words, the information
horses learn is stored in compartments corresponding to parts of
their bodies and, ordinarily, they do not transfer what they learn
from one box to another.
In many ways, horses are the antithesis of humans.243
Natural horsemanship’s founding principle is that horses regard
us as a predator.244 To them, we behave, smell, and move like a
predator.245 Many of our actions, such as staring horses in the
eyes and moving directly and rapidly towards them in a straightline, are viewed by the horse as dominance threats and
intimidation.246 Predators are linear thinkers with a singular
focus and powers of intense concentration.
Predatory
consciousness is goal-oriented. In contrast, prey species do not
approach directly, but use advance and retreat strategies. When
humans are frightened, our predatory character is manifest in
our body language, and hence, easily discernible by horses. We
tighten our muscles, suck in our breath, stop blinking, and
instinctively bare our teeth, shout, growl, grab, hit, pull, and
jerk.247
Predators do not show submission by giving way.248 Instead,
they submit by assuming a submissive body posture (such as that
of a dog rolling on its back) and remaining still. As one
horseman explains, [i]n predator land, challengers work out
who’s going to be the leader by trying to immobilize each other .
. . [a] wolf flips another over and holds him still with his teeth on
his neck . . . [saying], if you move I’ll kill you . . . I’m boss.’’249
Unfortunately, the first response of a human to equine
241.
242.
243.
244.
245.
246.
247.
MILLER & LAMB, supra note 1, at 131.
Id.
Id. at 319.
IRWIN, supra note 26, at 33; PARELLI, supra note 17, at 22-23.
PARELLI, supra note 17, at 22-23.
MILLER & LAMB, supra note 1, at 22; IRWIN, supra note 26, at 33, 36-57.
Cf. PARELLI, supra note 17, at 41 (describing how humans react to the
prey responses of horses by pulling on the reins and squeezing the horse).
248. IRWIN, supra note 26, at 46.
249. Id.
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misbehavior is often to try and keep them from moving, and in
particular, to control their heads through immobilizing
devices.250
Finally, humans are altricial, meaning helpless at birth. We
have a long infancy and fail to understand how much our horses
are learning in the first two years of their lives.251 Unfortunately,
what horses traditionally begin learning soon after birth may not
prepare them well for their interactions with humans.252
Sometimes they are indulged (for example, allowed to nibble
their handlers and crowd into them), other times, they are not
handled at all or are treated harshly (for example, tied down or
physically reprimanded). This negative relational dynamic
results in horses that have trouble understanding what we are
asking of them, do not trust us, lack self-confidence, and use the
reactive, rather than thinking, sides of their brains.
Comprehending these aspects of prey consciousness makes it
possible for their human companions to understand ‘‘how much
transformation needs to take place for that frightened prey
animal to become the confident, trustworthy’’ animal we want
and to exercise informed judgment, tempered by respect,
‘‘empathy and patience’’ in our handling of them.’’253
B. Prey Consciousness in Law Students
To understand how much of a transformation law students
must make to become lawyers, one need only consider their prelaw educations and the basic skills they will need as soon as they
enter the legal profession. Among other things, they should
have: an ability to recognize and analyze legal issues (which
includes being able to distinguish cases and interpret statutory
and rule-based language); knowledge of substantive law and
legal policies; an understanding of legal processes; oral and
written communication skills; and an on-going capacity to
educate themselves about legal matters (which requires
independent, critical thinking). To practice law in any capacity,
250. Id. at 46-48 (criticizing the effort to train by stopping a horse’s
movement and pointing out that ‘‘attempting to control [a horse’s] head and
neck [is a real predator move . . . that] create[s] fear, not trust’’).
251. MILLER & LAMB, supra note 1, at 94; BUDIANSKY, supra note 28, at
148-50; MACLEAY, supra note 223, at 17-19.
252. MACLEAY, supra note 223, at 17-19.
253. IRWIN, supra note 26, at 37-38.
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most will have to pass a bar exam, surely the lowest common
denominator of professional qualification. In both the essays
and the multiple choice questions, this test requires not only
knowledge of black letter law, but also the application of those
principles to fact patterns.
Critics of the Socratic method often presuppose legal
analysis and argumentation to be a skill somehow limited to
litigation or the adversarial aspects of other legal contexts.254
While lawyers do indeed perform many services for clients that
do not necessarily require legal analysis (for example, some
types of problem solving, mediation, deal making, negotiation,
counseling), it is likely that clients pay lawyers, rather than
another type of skilled professional, to do these things because
of their knowledge of the law and its potential impact upon their
affairs. Even lawyers representing clients in non-litigation
matters must be able to conduct an inner Socratic dialogue. Will
these documents successfully transfer ownership of this
property? Do these filings comply with federal regulations?
Which form of business entity is best for this enterprise? The
answer to these questions depends on the content of the law and
its applicability to the facts at hand. At every level, practicing
law requires lawyers to be able to interpret language and to
anticipate how others might do so.
Additionally, lawyers must have confidence in the
recommendations they make to clients and the decisions they
make on their behalf. Ideally, lawyers should be able to inspire
their clients to trust them, and this requires awareness of the
limits of one’s knowledge. This self-awareness cannot be
finessed or faked because it requires not only projecting
confidence and inspiring it, but genuine inner conviction. Above
all else, a professional education prepares students to serve
others in a fiduciary capacity. Therefore, legal educators must
consider not only their students’ needs, but also the well-being of
their future clients and employers, who will pay the price for
inadequacies in their training.255
254. SULLIVAN ET AL., supra note 13, at 187; STUCKEY, supra note 11, at 136-
38.
255. SULLIVAN ET AL., supra note 13, at 22, 50-51 (reporting the results of a
survey of legal education and maintaining throughout a focus on preparation
for practice, a rare exception to the absence of consideration of clients and the
public in the literature).
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Fortunately, with the assistance of the lawyers who employ
them, many law students are able to teach themselves to do
these things soon after they enter practice. Their ability to
educate themselves may account for the surprising absence of
protest from students about the increasing inadequacy and
irrelevancy of their legal education. Diminished use of the
Socratic method may be contributing to the number of students
who will not be able to hit the ground running when they
graduate or who will have trouble with bar exams. Even with
the best choices in methodology, however, legal education will
not accelerate the transformation from law student to lawyer if
the techniques chosen are not tailored to the student’s level of
preparation and attitude towards learning. The stick approach
seems better adapted to earlier generations of law students; the
carrot approach goes too far in the direction of accommodating
the untenable expectations of today’s students and their
professors. This conclusion prompts consideration of whether
the Socratic method should be reconstituted to approximate the
blended approach of natural horsemanship. The first step is to
examine the law student version of prey consciousness.
1. Anxiety
Just as the horse is a fear-based being, so too has a certain
type of fear become characteristic of modern society.256 This is
not simply the fear of speaking publicly or the ordinary ‘‘fight or
flight’’ stress response. Theodore Zeldin explains that
an ever-increasing proportion of humanity is worrying about
what others think of them, no longer about how their
ancestors might react looking down from heaven, nor what
will be said about them in the history books, but how every
act, every day, will be criticised and judged, both by those
who know them and by those who do not. Creating a false
impression is the modern nightmare. . . . The more a society
thinks of itself as democratic, the more reputation matters in
it and the more fear of other people’s criticism, however
petty, becomes obsessive.257
So widespread is our obsession with being humiliated in front of
others that a literary description of the Socratic method, which
256. ZELDIN, supra note 208, at 171.
257. Id. at 171-72.
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implies that students killed themselves after they were
humiliated by their law teachers, does not seem farfetched.258
The power of the Socratic method, at least as a matter of
mythology, is such that the public shaming it is perceived to
inflict is not only intense, but long-lived.259
Many law students care very much about what others think
of them. When one adds to this angst the worries law students
have about competing with their peers on examinations, winning
places on law reviews and moot court teams, and finding
employment, it is no wonder that insecurity and competitiveness
are pervasive.260 The situation is made worse by the behavior of
a small percentage of students who gang up on vulnerable
members of the class by subjecting them to the humiliation and
harassment of becoming the target of their classmates’
ridicule.261 Evidence suggests that some groups of students are
more vulnerable to this treatment: women, minorities, gays,
lesbians, and other gender non-conformists.262 In addition, some
students are particularly vulnerable for other reasons, such as
extreme shyness, unclear speech, or differences in appearance.
Intervening to the fullest extent legally possible, to create an
atmosphere where everyone feels safe to participate in
classroom discussions, is one way law school administrations
could support faculty who choose to require students to
participate involuntarily.
The Socratic method produces some discomfort that is, for
the reasons explained below, desirable, but not if it is
unjustifiably or unjustly exacerbated. Responding to a series of
questions that might, for example, reveal that one has
258. LEVIN, supra note 165, at 16, 165-67, 182; see also Schuwerk, supra note
128, at 756, 764 n.25 (implying a relationship between substance abuse, mental
illness, and the Socratic method).
259. LEVIN, supra note 165, at 104. This fictionalized account of the
Socratic method cautions that ‘‘students [who] have the misfortune of being
called upon to recite . . . their confusion and subsequent ignominy can take
weeks to live down [and that] [s]uch embarrassment is occasionally recalled at
the tenth and twentieth class reunions.’’ Id.
260. STUCKEY, supra note 11, at 73; London et al., supra note 128, at 559
(describing law school as a ‘‘culture of competition’’).
261. See, e.g., Nakashima, supra note 163, at A1.
262. Id. Lesbians seem to be particular targets, and students report that
their fear of being called lesbians, if they defy gender stereotypes, is one type
of classroom oppression. See, e.g., Ramachandran, supra note 161, at 1786-87.
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unconsciously made debatable assumptions; ascribed fixed
meanings to indeterminate language; failed to account for
differences in the factual circumstances of cases; misunderstood
the rationales for decisions; or erroneously assumed that issues
had easy, better, or indisputably correct solutions, in a large
roomful of people, will produce unavoidable anxiety.263
Moreover, because of this generation’s obsession with
appearances and the ethos of respect, law students are likely to
agree that being forced to publicly ‘‘contradict oneself [through
Socratic questioning], is to be negated.’’264 All of these effects
are heightened in a population of students including a significant
number who have been excessively parented and extravagantly
praised in a well-meaning, but wrong-headed, effort to raise
their self-esteem and confidence.265 Ironically, children overvalidated in this manner mature into young adults who have low
self-esteem, lack self-confidence, are unaccustomed to thinking
for themselves, and cannot accept even constructive criticism.266
Law students also appear to be particularly sensitive to the
panicked responses of other students. One cannot imagine a
professional school environment where the educational
equivalent of the urban legend has a more vigorous life than law
schools. If the rumor mill says some students possess alchemy
that will spin their notes into gold (such as a certain outline, flash
cards, bar review materials, or the secret to getting an A from a
particular professor), others will seek out these materials, even if
their professors advise them otherwise.267 In essence, law
students, like horses, run when they see others running.
Unfortunately, they tend to run in the direction of comfort in the
form of ineffective shortcuts.
263. Kerr, supra note 9, at 119.
264. HANS, supra note 54, at 2-3.
265. Erica Goode, Deflating Self-Esteem’s Role in Society’s Ills, N.Y.
TIMES, Oct. 1, 2002, at F1 (citing studies debunking the myth of the benefits of
high self-esteem and advocating instilling self-control instead); Ingham &
Boyle, supra note 127, at 288-300 (positing that Generation X students need
more ‘‘hand-holding’’).
266. See generally CHARLES J. SYKES, DUMBING DOWN OUR KIDS: WHY
AMERICA’S CHILDREN FEEL GOOD ABOUT THEMSELVES BUT CAN’T READ,
WRITE, OR ADD (1995) (reporting an inverse relationship between self-esteem
and academic accomplishments).
267. Lloyd, Hard Law Firms, supra note 125, at 683.
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Prey consciousness also manifests itself when students
encounter the tidal waves of information with which law schools
inundate initiates. Like horses, they see the entire pixilated
meadow, rather than the single deer that is the predatory focus
of the Socratic dialogue with the professor. To students, the
materials they are asked to study rarely seem to tell a
comprehensible story or to be organized into coherent pictures.
Any coherence they managed to discern on their own seems to
crumble when the classroom questioning begins. One goal of
law school is to teach students how and when to have a more
predatory focus. Making professionally competent judgments
about which details are relevant (what students might describe
as guessing what their professors are thinking) can be very
bewildering and among the most difficult tasks for first year law
students.
It should now be apparent why a student might see being
involuntarily subjected to a professor’s Socratic questioning as a
predatory or dominating act. The professor’s questions hone in
on the student in an aggressively linear manner, with the
professor persistently steering the student in the direction of the
desired line of analysis, which may seem arbitrary to the student.
The student might try to escape verbally, but will feel pinned
down by the fear of being perceived as performing poorly.268 In
turn, the professor might misinterpret the student’s reaction as
defiance, when in fact the student is experiencing insecurity and
stress and using bravado or diffidence as a face-saving tactic.269
The comparison to round penning horses seems obvious.
Another relevant source of anxiety is students’ perception
of their professors’ judgment. Some students look for approval
and affirmation in their exchanges with their professors.270 Law
professors engaged in Socratic dialogues may inadvertently send
signals of disapproval or poor performance to students, when in
reality, they mean nothing of the sort, just as a human walking
rapidly, straight towards the head of a horse, may be sending an
268. London et al., supra note 128, at 459.
269. Vitiello, supra note 65, at 995.
270. Ingham & Boyle, supra note 127, at 288-300 (arguing that Generation
X students prefer authority figures whose demeanor is collegial rather than
authoritative); B. Glesner Fines, The Impact of Expectations on Teaching and
Learning, 38 GONZ. L. REV. 89, 89-122 (2002) (discussing the relationship
between the expectations of teachers and their students’ engagement).
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unintended dominance or threat signal.271 Because there is little
individualized feedback in law school and this generation is so
attentive to the reactions of others, these interactions and
impressions, which may be fleeting and insignificant to the
professor, can take on more meaning in the minds of some
students.272
2. Passivity
While law students are undoubtedly very energetic and
motivated with respect to some aspects of their legal education,
such as their involvement in co-curricular activities, where their
classroom education is concerned, many are remarkably
passive.273 Many sit quietly in class pouring their energy into
taking verbatim notes of what the professor says, rarely
participating voluntarily or engaging in active listening. When
their professors tell them that they would do better to listen
actively and engage the issues under discussion, they react as if
they are being set up like so many Charlie Browns, with
Professor Lucy waiting to yank the ball away during their
exams.274 One problem with lecturing and letting too many
students off the Socratic hook is that more students will come to
class unprepared. If too many are unprepared, the lack of
energy and engagement can infect the entire class. The
professor may resort to pitching the class at a level low enough
so that everyone can access at least some of the issues. Being
non-reactive, appearing bored, and surfing the Internet are
among the ways students gradually direct the professor to do
more and more of the work of synthesizing and predigesting the
materials for easy, entertaining, reassuring consumption.
271. IRWIN, supra note 26, at 29-50.
272. London et al., supra note 128, at 285.
273. Ronald H. Silverman, Weak Law Teaching, Adam Smith and a New
Model of Merit Pay, 9 CORNELL J.L. & PUB. POL’Y 267, 348-54 (2002)
(addressing the need to cope with the passivity of law students).
274. See generally CHARLES M. SCHULTZ & JUDY KATSCHKE, KICK THE
FOOTBALL, CHARLIE BROWN! (2001) (a book based on the running gag in the
Peanuts comic strip in which a gullible Charlie Brown always tries to kick a
football being held by a reassuring Lucy, even though she always removes it at
the last possible moment, causing him to fall); SULLIVAN ET AL., supra note 13,
at 165 (describing the gap students perceived between class content and final
examinations).
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Many students who are not very engaged do not expect to
be penalized in any sense for their lack of participation.275 They
assume that they should be able to ask questions, without
censure or disapproval, when they are unprepared, even though
this slows the class down and punishes their classmates. They do
not expect attendance requirements to be enforced. Those who
are inattentive may prefer to have their laptops with them so
that they can spend time on the internet, often instant messaging
other students in the class, in a manner that can be distracting
and inconsiderate.276 Finally, and most tellingly, because of
undergraduate grade inflation, they want to know, up front, that
they will almost certainly receive a grade of B+ or better for the
course, no matter how little effort they put into the class, how
many classes they miss, or how poorly they perform on the
exam.277 In other words, like horses, they seek comfort and
freedom from the uncertainty of educational risk taking.
Law professors should not be shocked by their students’
expectations of obtaining licenses to practice law without having
to exert much effort in their classes. They are exactly the
students that their educators have collectively created. If
students seriously expect to receive meaningful high grades
without attending class, participating, or doing much work
during the semester, somewhere along the line, those
expectations have been made realistic by their previous
professors.278 The problem is that the Lake Woebegone
illusion------that all the children are above average------cannot be
maintained in law school. The students want their high grades to
assist them competitively in obtaining the things to which many
aspire (such as limited places on law review, summer clerkships,
job offers, and judicial clerkships), but realize that to do this,
grades must somehow distinguish them from their peers.279 To
have grades perform this function, however, students must risk
275. Sperber, supra note 143, at 138; Lloyd, Hard Law Firms, supra note
125, at 677-84.
276. Brock Read, A Law Professor Bans Laptops From the Classroom,
CHRON. HIGHER EDUC., Apr. 7, 2006, at A43 (commenting on the problems
presented by the presence of laptops in law school classes).
277. Lloyd, Consumerism, supra note 124, at 553.
278. Id.
279. London et al., supra note 128, at 457.
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getting meaningful low grades.280 This dilemma may be one of
the reasons why law students report experiencing so much stress
in law school. For reasons previously explained, they greatly
fear not only the consequences of poor grades, such as
limitations on opportunities, but also the humiliation of not
doing well academically after years of apparent successes.281
Another aspect of the students’ prey consciousness, in
addition to their tendency to conserve energy, is an aversion to
ambiguity. They are averse to ambiguity in the operative rules
of the class and more importantly, in the substantive material
they are expected to learn. Most want the material served up
static-free, organized, and in an accessible, non-intimidating,
preferably entertaining, format.
Again, their desires are
inconsistent and unrealistic, but if they persist after the first
semester of law school, at least some of their professors must be
validating them in some fashion. To be prepared for the practice
of law, students must become comfortable dealing with
ambiguities------they are everywhere in the law. Indeed, a
professor can present material in a way that minimizes or
obscures these uncertainties, but in that event, the student’s
mastery of the sanitized material will be an empty illusion, as the
student may soon discover during the bar exam or the first
dialectic exchange with a partner in a law firm. As one scholar
has concluded, in this respect, law students are no different from
the rest of society:
The ambiguous attitudes people have toward the Socratic way
of life reinforce the problem Socrates poses for the
Athenians. They want to keep things simple. They think
there must be a root to cure every ailment. They dislike
things that are too complicated, that are mixed, that are both
attractive and yet difficult at the same time, that are plausible
ways of construing experience yet elusive as well.282
To become a lawyer, however, one must experience the
dissonance of confronting uncertainty and ambiguity. The
280. Lloyd, Consumerism, supra note 124, at 553; Mansfield, supra note 144,
at B8 (concluding that ‘‘[s]tudents want an unblemished grade record not so
much because they like being lazy as because they are ambitious’’).
281. See supra note 265.
282. HANS, supra note 54, at 65-66.
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question is whether students do this for the first time in law
school or when they enter practice, not whether they do it at all.
Horses push into pressure, and law students possess a
similar opposition reflex to varying degrees. As many have
observed, some law students do not easily see or readily accept
the ambiguities and uncertainties that permeate law. How
quickly law students learn to give in to pressure by going
willingly in the direction their professors are pushing them, is an
indication of how long it will take them to transition successfully
from other forms of education to law school pedagogy. In some
students, the opposition reflex is very strong, and they expend a
tremendous amount of energy resisting their professors’ efforts
to guide them towards the realization of how little in law is
certain, clear, unbiased, or unequivocally correct. Sometimes,
these students are masking insecurity and a lack of selfconfidence by excessive defensiveness. As the next section
demonstrates, the Socratic dialectic can be particularly useful to
help these students, who are often among the most engaged and
diligent, redirect their energies in more productive directions.
3. Preparation
Even though law students are intelligent and perceptive,
many, like precocial foals, have learned unintended lessons from
their early educations. Consequently, they are poorly prepared
for law school and have study habits that may be
counterproductive and difficult to break.283 For the following
reasons, they are especially unprepared to engage in Socratic
dialogues.284
Many first year law students have limited experience with
prolonged and intense concentration. If the stereotypes are true,
283. W. Keith Campbell & Jean M. Twenge, Age and Birth Cohort
Differences in Self-Esteem: A Cross-Temporal Meta-Analysis, 5 PERSONALITY
SOC. PSYCHOL. REV. 321, 341-44 (2001) (reporting the results of a study
showing that, although college students’ general self-esteem had increased,
their competency-based self-esteem had stagnated, and suggesting that their
‘‘elevated self-views may be built on a foundation of sand’’). ‘‘Many law
teachers have been forced to conclude, unhappily, that college education leaves
the law school applicant generally unprepared for the rigors of the law
program.’’ Brown, supra note 114, at 1136.
284. Lloyd, Hard Law Firms, supra note 125, at 681.
AND
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many are easily distracted and have short attention spans.285
They are quickly bored and do not like long reading
assignments. They have not been trained to read material
closely and carefully to ensure comprehension.286 Their prior
education may not have emphasized or reinforced independent,
critical thinking and if they took written exams, they could
probably do well by memorizing and restating their lecture
notes. Their mostly large, anonymous classes and objective tests
did not assist them with learning how to communicate orally and
in writing. Finally, as one Socratic scholar has observed,
students are missing ‘‘that critical ‘fourth R,’ namely reasoning,
[which is necessary for them] to become probing, expert
questioners.’’287
Perhaps the greatest obstacle, however, is the level of
commitment students must make to their education to realize
the full benefits of the Socratic method. Obviously, students
must do a great deal of preparation outside of class and must
take the initiative to seek out other sources of assistance in
putting the materials together, so-called schema building.288
Early in their legal education, however, law students manifest a
version of ‘‘cellular compartmentation,’’ familiar to professors.
Without assistance, they do not transfer what they have learned
and placed in one box, (such as the elements of material
misrepresentation in contract law), to another box (such as the
requirements for a breach of warranty claim). We trust that the
students are using the presentation of legal issues, dot by dot, to
fill in a Monet-like portrait of the subject matter. Instead, to
more than a few students, the course has been just one obscure
285. Heminway, supra note 120, at 287, 288 n.77; Vitiello, supra note 65, at
984-85.
286. Cathaleen A. Roach, Is the Sky Falling? Ruminations on Incoming
Law Student Preparedness (and Implications for the Profession) in the Wake
of Recent National and Other Reports, 11 J. LEGAL WRITING INST. 295, 307-08
(2005).
287. PHILLIPS, supra note 6, at 134; HANS, supra note 54, at 13 (contending
that ‘‘the dialogue relies on various skills,’’ including: ‘‘the acutely focused
question and the determination to follow it’’ wherever it goes; ‘‘analysis and
reason, the ability to sort through what comes up’’ and decide what is pertinent;
‘‘conscious attention to those details . . . to establish what has taken place’’; and
insistence ‘‘on submission to the irrational processes at the center of both
language and thought’’).
288. Paul L. Caron, Back to the Future: Teaching Law Through Stories, 71
U. CIN. L. REV. 405, 406-07 (2002).
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dot after another. The heart of the Socratic method is
approaching an issue from many directions and allowing the
analysis itself, rather than some comforting organizing artifice, to
dictate the flow. This can be very taxing. Even for those highly
motivated to participate, ‘‘the elasticity required to face a
problem again and again, to stay with it until it is solved, and not
to succumb to disintegrating doubt . . . is achieved only through
the power of an iron will.’’289 Furthermore, the Socratic teacher
‘‘can enforce intellectual discipline only if the students are
possessed of a disciplined will.’’ 290
Law professors seem to be the antithesis of their students
much in the same way that humans are the antithesis of horses.
They underestimate their students’ confusion and fear because
they have an entirely different, more predatory, consciousness.
Professors enjoy searching for, pointing out, and taking apart
specific legal issues. They are able to maintain an intense focus
on those issues, embrace and enjoy the uncertainty and
ambiguity of the law, and are confident and comfortable
speaking law publicly. This explains why law professors often
fail to account for how profoundly fear interferes with learning
when they adopt the stick approach, and why more nurturing
professors overestimate the effectiveness of the carrot approach.
Just as very few law professors resemble the composite in
the preceding section, very few law students present with all of
these generalized attributes.291 Many students are smart enough
to transform themselves into lawyers with relatively little
assistance from their professors.
This Article, however,
addresses how to reach students who are not as adept at selfeducation. To do this, professors must make an unsparing
appraisal, not only of themselves, but also of their students.
Similarly, a natural horsemanship approach emphasizes that
nothing is to be gained by blaming the inadequacy of the
students’ prior education, and insists that professors focus
initially and primarily on themselves and their contributions to
289. Nelson, supra note 93, at 152.
290. Id. at 151.
291. But see Epstein, supra note 61, at 400 n.3 (quoting Karl Llewellyn’s
conclusion ‘‘that legal education is ‘blind, inept, factory-ridden, wasteful,
defective, and empty;’ and of law students, ‘They sit. Dough without yeast.’’’).
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the negative dynamic.
wrong.292
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As horsemen say, the horse is never
III. BEYOND ANIMAL ANALOGIES
Xenophon declared long ago that ‘‘[i]t is the same with
horses and with men.’’293 The notion that animal cultures can
teach us something about human society, law, and learning is
hardly unprecedented.294 This Article, however, goes beyond
exploring other cultures and searching for meaningful
comparisons------beyond animal analogies. It not only asserts that
knowledge acquired by understanding one animal culture has
direct relevance and applicability in another, but also advances a
more radical thesis: that natural horsemanship enables a teacher
to acquire a cross-cultural ‘‘language’’ that will assist educators in
teaching law, a subject entirely unrelated to horsemanship. In
other words, knowing how to speak Equus can assist law
professors in teaching their students how to speak law.295
This type of comparison is vulnerable to misunderstanding
if taken out of a carefully qualified context.296 Even with
appropriate qualifications, some may be skeptical of a serious
suggestion that we can learn something from our relationship
with animals that would be directly applicable to graduate
292. MILLER & LAMB, supra note 1, at 28.
293. Eve Brown, Xenophon on the Minds of Horses, http://www.d.umn.edu
/~ebrownin/Xenophonpaper.htm (last visited May 12, 2008). ‘‘Though this
particular passage is about physical ailments . . . the theme of animal-human
commonality which it strikes also appears on the psychological plane.’’ Id.
Brown observes that the ‘‘relative neglect of Xenophon in academic books and
journals . . . is counterbalanced by his enormous popularity among actual horse
trainers and riders, including both theorists of training and of so-called
‘classical’ riding principles and expositors of the ‘natural horsemanship’
methods associated primarily with western riding.’’ Id.
294. David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L
L. 85, 111 n.93 (2004) (citing EDWARD O. WILSON, SOCIOBIOLOGY: THE NEW
SYNTHESIS (1975)). ‘‘[M]any legal scholars have fallen in love with human
sociobiology as a way of explaining moral and social phenomena.’’ Id. at 112
n.93.
295. IRWIN, supra note 26, at 146-64; MILLER & LAMB, supra note 1, at 31321.
296. Luban, supra note 294, at 111 n.93. Equating humans and animals for
some purposes is, however, from the perspective of some moral philosophies, a
defensible position. Peter Singer, for example, believes that the ‘‘mere
difference of species is surely not a morally significant difference.’’ SINGER,
WRITINGS, supra note 28, at xvi-xvii.
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education.
An unthinking rejection of the validity of a
comparison between theories of horsemanship and techniques of
legal education may result from a failure to value animals
sufficiently.297 For others, a negative reaction may be borne of a
conviction that people are sui generis and may not legitimately
be compared to any other species.298 However, recent scientific
inquiries into human society’s relationship with domesticated
animals and humanity’s sustained efforts to communicate with
them are evidence of the diminishment of this hubris and shortsightedness.299 When we stop focusing on differences among
species, the parallels become apparent and instructive.300
A. Equus Rediscovered
Natural horsemanship is a collective term for a cluster of
training techniques tied to the practices of individual trainers.301
The methodologies of these trainers are not identical, but do
share an approach based on an understanding of equine body
language and a system of positive and negative rewards.
Common precepts can be extracted from their written materials
and clinical presentations.302 This approach can be defined as a
language-based, conditioned-response training program, based
on using the attributes of the horse to communicate.303 The first
297. See DAVID DEGRAZIA, TAKING ANIMALS SERIOUSLY: MENTAL LIFE
MORAL STATUS vii, 9-10 (1996) (analyzing whether equal treatment
should be extended to non-humans from the perspective of biomedical ethics);
JOHN RAWLS, A THEORY OF JUSTICE 136-42 (1972) (advocating a theory of
justice that would judge the moral legitimacy of actions from behind a veil of
ignorance).
298. See SINGER, WRITINGS, supra note 28, at xvii-xviii (observing that this
belief is most often premised on the conviction that humans possess immortal
souls and is much more difficult to defend if one does not share this belief).
299. BUDIANSKY, supra note 28, at 4-5.
300. See generally GRANDIN, supra note 217, at 1-67; TEMPLE GRANDIN,
THINKING IN PICTURES AND OTHER REPORTS FROM MY LIFE WITH AUTISM 1924 (1995) (comparing her autism-based visualization abilities with the picturebased perspectives of animals); L. Misha Preheim, Note, Biophilia, The
Endangered Species Act, and a New Endangered Paradigm, 42 WM. & MARY
L. REV, 1053, 1057-58 (explaining Edward O. Wilson’s concept of ‘‘biophilia’’
as a belief that the reward for humans is in observing animals and nature, not
in controlling them). According to Peter Singer, ‘‘[m]ost human beings are
speciesists.’’ SINGER, ANIMAL LIBERATION, supra note 28, at 9.
301. MILLER & LAMB, supra note 1, at 28-50.
302. Id. at 28-33.
303. Id. at 12, 103-108; see also MACLEAY, supra note 223, at 7-9.
AND
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step for trainers is to focus primarily on the only entity over
which they ultimately have any control------themselves.304 One is
not changing the horse, but one’s approach to the horse.305 What
horsemen mean by this is that trainers should strive to attain and
maintain a certain mindset when they work with their pupils.306
Pat Parelli calls the proper attitude or orientation
‘‘justice.’’307 Justice in this context is a commitment to see things
from the horse’s perspective and reduce the level of inequality in
one’s interactions with the horse.308 Natural horsemen endeavor
to free their minds of preconceived notions about horses in
general or a particular horse with which they are working. They
concentrate on how their present actions are influencing the
horse’s behavior.309 Dwelling on the past, including a horse’s
history of being abused or spoiled, encourages handlers to
rationalize and tolerate undesirable behavior and project human
emotions and motivations onto the horse. One of natural
horsemanship’s precepts is ‘‘no excuses,’’ and this prohibition
applies to both the horse and the trainer. Rather than avoiding
an activity because it will produce a blow-up, the method
requires both horse and trainer to face their fears.310 The goal is
to create a partnership built on mutual trust and respect through
communication and benevolent leadership.311
Several other general precepts are also relevant to law
teaching. First, strive for balance. A trainer should aim for
moderation rather than swinging between the extremes of
domination and accommodation. For example, dominating and
accommodating urges are moderated by the principle that a
trainer should ‘‘[b]e as gentle as possible, but as firm as
304. MILLER & LAMB, supra note 1, at 33.
305. Id.
306. LYONS & GALLATIN, supra note 240, at 22. Natural horsemen believe
that ‘‘[a]ttitude is 80% of horse training. . . . You can’t afford to call your horse
a jerk, or to be disrespectful to him in your language or actions. You will
destroy the partnership you are hoping to build. Impatience or anger toward
your horse will work against what you are hoping to accomplish.’’ Id.
307. PARELLI, supra note 17, at 16.
308.
309.
310.
311.
Id.
LYONS, supra note 202, at 4-6.
Id. at 69-73; MILLER & LAMB, supra note 1, at 49.
MILLER & LAMB, supra note 1, at 15. Horseman Pat Parelli calls the
elements of his approach ‘‘love, language and leadership,’’ and advocates equal
doses of each. Id. at 39.
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necessary.’’312 In the saddle, this method has a physical
dimension: A rider should use a ‘‘soft firmness,’’ rather than a
‘‘hard tightness.’’313
Second, all learning is intrinsic. It seems even horses are
self-taught.314 Natural horsemen accept that they can do no
more than create an environment conducive to learning. The
horse’s response to that environment controls what the horse
learns and how quickly.315 For example, if a trainer wants to
teach a horse to load into a trailer, he would not attempt to whip
or pull the horse in, or use a chute to rob her of any other choice.
A trainer does not try to force compliance or prevent
misbehavior. Instead, he uses leadership and expertise to let his
idea become the horse’s idea.316 Similarly, one cannot teach a
horse to be unafraid, but one can help the horse gain confidence
and learn how to relax quickly after a fright.317 Blow-ups and
meltdowns, therefore, become welcomed teaching opportunities,
rather than something to be avoided at all costs.
Third, less is more. This axiom finds expression in several
common maxims, such as ‘‘sometimes the less you do, the more
you can accomplish’’; ‘‘the slower you go, the quicker you’ll find
it’’; ‘‘you may not have the time to do it right, but you’ll find the
time to do it over’’; and, perhaps the one most applicable to law
teaching, ‘‘act like you have an hour and it will take fifteen
minutes, act like you have only fifteen minutes and it will take an
hour.’’318 This attitude has a substantive component as well,
which is the notion that the horse dictates how the lesson
proceeds. If you are rushing to get through three steps in a
lesson plan and the horse is having trouble with the first, you do
not push on to the other two. The horse has decided that the
day’s lesson will be about step one, and the trainer should not
get angry or frustrated, but instead go with the flow of the
dialogue. More often than not, when the trainer rids herself of
312. Id. at 28.
313. Id. at 33.
314. See ROBERTS, supra note 2, at 277-85 (describing a step-by-step process
to ‘‘starting horses’’).
315. Id. at 277.
316. MILLER & LAMB, supra note 1, at 28-33.
317. TWELVEPONIES, supra note 24, at 111-14.
318. RASHID, supra note 48, at 13.
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the desire to push ahead, the horse will rapidly find the right
response to the first question.
Fourth, focus on the positive. The science behind these
training methods is a system of creating and reinforcing cues that
trigger responses in the horse using positive and negative
rewards and absolutely no punishment or pain infliction for
punitive reasons.319 Pain distorts the learning process for horses
and convinces them that humans are frightening and
untrustworthy. According to natural horsemanship, the ideal
mental and physical approach to the horse is soft, not just in
one’s hands, legs and seat, but also in educational philosophy
and emotional orientation.320 One should undertake training
horses only if he or she truly enjoys the interactions and is not
overly critical and impatient. A trainer should also be able to
commit to redirecting the horse’s negative behavior, rather than
preventing or punishing it.321
Part II identified three fundamental aspects of prey
consciousness that horses and law students share in analogous
forms: fear, comfort seeking, and learning style.322 The following
is an explanation of the means natural horsemanship uses to
address these particular traits with a view towards considering
the applicability of these therapeutic methods to legal education.
1. Advance and Retreat
Assume that a trainer wants to teach a horse how to load
into a trailer, an activity the horse finds particularly terrifying
because a previous handler whipped the horse during this
process. In addition, the horse’s prey consciousness views the
trailer as a small, dark, cave-like place that could be a trap or
harbor a predator. One natural horseman has three rules for his
sessions: the trainer does not get hurt; the horse does not get
319. MILLER & LAMB, supra note 1, at 68. See generally MACLEAY, supra
note 223 (explaining the science behind the training techniques of natural
horsemanship).
320. RASHID, supra note 48, at 129.
321. MILLER & LAMB, supra note 1, at 49.
322. Those who study eastern religions see similarities in these sensibilities.
See generally INGRID SOREN, ZEN AND HORSES: LESSONS FROM A YEAR OF
RIDING 13-15 (2002); Learning to Give Up the Reins (Commentary by Gretel
Ehrlich on Morning Edition, National Public Radio, Mar. 10, 2005); Johnson,
supra note 14, at A1.
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hurt; and each lesson has an arc.323 The arc begins with the
trainer requesting something from the horse that he is already
willing to give, progresses to a request with which the horse is
either unable or unwilling to comply, and ends with the horse
being calmer at the end of the session than he was at the
beginning.324 This sometimes means dropping back to requesting
something the horse readily offers.325 Modern horsemen, in a
process very similar to one advocated by Xenophon thousands
of years ago, begin by breaking trailer loading into four phases:
acquisition (the horse willingly steps into the trailer); fluency
(the horse almost always steps into the trailer when asked);
generalization in a different environment (the horse will also
respond to ‘‘load’’ cue when the trailer is off the property and
will respond to it to walk into stalls, etc.); and finally,
maintenance (the horse will reliably respond to the ‘‘load’’ cue in
a variety of settings and requires only occasional
reinforcement).326
Teaching the horse to load will require breaking the big
question down into little ones. When I slowly lift my left arm
with a rope in it towards the open trailer, will you move towards
the trailer? If I keep my arm elevated, will you place your front
feet on the edge of the trailer? If I continue to elevate my arm,
will you walk all the way in? The trainer tells the horse that he is
not a predator and will not hurt him through variations of the
advance and retreat technique. Predators do not walk away
from prey, nor do dominating horses. This is a submissive act
that says in Equus ‘‘I will not hurt you.’’327 Suppose the trainer
elevates his left arm towards the open trailer and the horse walks
up to it and begins to rear? The advance and retreat technique
would make the wrong things difficult and the right things
323. LYONS, supra note 202, at 7-8; LYONS & GALLATIN, supra note 240, at
42-45.
324. LYONS, supra note 202, at 7-8.
325. Id.; MILLER & LAMB, supra note 1, at 49.
326. MACLEAY, supra note 223, at 29-32; MILLER & LAMB, supra note 1, at
49. These four steps closely correspond to four teaching techniques commonly
observed in law classes: modeling (making cognition visible); coaching
(guidance and feedback); scaffolding (support for mastery); and fading
(students proceeding on their own). SULLIVAN ET AL., supra note 13, at 60-61.
327. ROBERTS, supra note 2, at 24-27 (explaining that the ‘‘key ingredient in
the equine language is the positioning of the body and its direction of travel’’).
Cf. IRWIN, supra note 26, at 47-50.
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easy.328 If the horse moved away from the trailer, the trainer
would not try to stop this behavior or reward it by abandoning
the lesson. Instead, he would ask the horse to lunge around him
in a circle (thereby giving the horse the relief of flight) and then
ask him again to stop at the trailer.
The horse should have been previously trained to
understand what the raised arm cue means, but he may not be
able to generalize the cue. If so, the horse might start trotting
near the trainer and, using body language, ask the trainer a
question: ‘‘Is this what you want?’’329 The trainer should not
change his posture. He has created an environment for the
horse to learn by putting the horse in the position of making a
choice and should allow him to choose. The question is on the
floor and the teacher waits. Sometimes, the horse gets it, moves
towards the trailer and eventually, steps into it willingly. If so,
the trainer immediately backs off and rewards the horse by
retreating. He may also reward the horse by allowing him to rest
near him, stroke the horse, and speak to him reassuringly. A few
minutes later, the trainer asks a follow up question.
Assume the horse does not understand what he is being
asked. He attempts all kinds of evasive maneuvers and gets
himself into a state of emotional upheaval, but does not go
towards the trailer and stop. At all times, the trainer must
control the physical manifestations of his own fear, or he risks
sending a message to the horse that there must be something to
be afraid of because the predator is also afraid.330 The trainer
does not try to stop the horse, nor does he try to coax or
encourage the horse to get in the trailer. Instead, he begins
looking for ‘‘the try.’’331 The instant the horse places his front
feet anywhere near the edge of the trailer, even if it is only in
passing, the trainer immediately takes the pressure off. He lets
the horse come in to him, praises him, and allows the horse to
calm down. The release says to the horse in Equus: ‘‘When you
give, I’ll give. When you’re soft, I’m soft. When you yield, I’ll
328. MILLER & LAMB, supra note 1, at 28-33.
329. MACLEAY, supra note 223, at 98-99 (describing the phenomenon of
watching a horse engaging in searching behavior).
330. TWELVEPONIES, supra note 24, at 113.
331. MILLER & LAMB, supra note 1, at 12, 28-33; RASHID, supra note 48, at
93.
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yield.’’ The horse, a precocial learner, notices the release from
pressure and registers what caused it. The next time, he will not
waste so much energy before he does the thing that made the
human stop bothering him. The horse’s choice makes no
difference to the trainer, but each choice has different
consequences and they are made or allowed to become apparent
to the horse.332
Another basic tenet of natural horsemanship is that we
teach through the release. There is no escalation or fighting, but
the trainer does not stop asking the question. The so-called
‘‘negative rewards’’ for the horse are release, relief, relaxation,
and praise.333 The goal is to make it safe and pleasant to be near
the trainer, easy to do what she asks, and more work to be away
from, or out of sync with, the trainer.334 The trainer must be
extremely attentive to her own body language, because it is this
to which the horse is paying attention. Subtle movements are
the horse’s vocabulary,335 and the better the trainer is at this type
of communication, the smarter the horse seems to get.336
Finally, assume that the horse is so emotional, out of
control, or defiant that he will not go anywhere near the trailer
and rears and flails wildly when asked. Another principle of
natural horsemanship is to increase the horse’s comfort level so
that he can deal with his fear and lack of control.337 He should
be exposed only briefly to the fearful things and then returned to
a place where he can calm down. The trainer would go through
all the steps mentioned above and then ramp down and ask the
332. RASHID, supra note 48, at 12, 92-94.
333. MACLEAY, supra note 223, at 50-54; MILLER & LAMB, supra note 1, at
106-08.
334. ROBERTS, supra note 2, at 284.
335. Id. at 25. Roberts explains there is
a rich code of signs and subsigns. Keeping my mouth closed invited
the horse’s discomfort, opening it slightly was fine. Opening a fist on
the side of my body away from the horse drew him in, while opening a
fist close to him sent him away. Fingers open stirred one response,
fingers closed, another. Hands above my head with fingers splayed
provoked true panic. . . . The key ingredient in the equine language is
the positioning of the body and its direction of travel. The attitude of
the body relative to the long axis of the spine and the short axis: this is
critical to their vocabulary.
Id.
336. LYONS, supra note 202, at 18.
337. MILLER & LAMB, supra note 1, at 49.
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horse to do something he will do, such as lunge around the man
at a place farther away from the trailer and less stressful. He
should reward the horse for listening to him. The trainer may
try to move this exercise closer and closer to the trailer, but if it
is too much to ask that day, he stops. They end on a positive
note and the horse begins to trust the trainer, who has told the
horse in a language he understands, ‘‘I will not ask you to do
anything that you cannot do without getting hurt.’’ As the horse
confronts and overcomes his fears, his confidence builds.
From the trainer’s perspective, realistic goals are important.
The progression through the steps of the training should be
purposeful and the skill acquisition exercises broken down into
the smallest possible units. The purpose, however, is not
additional knowledge, or even more sophisticated knowledge,
but rather one little perfected step at a time.338 Trainers should
not focus on advancing at any particular rate because the belief
that one is not progressing rapidly enough causes anxiety and
frustration, and leads to shortcuts and bad habits.339
The process of allowing a horse to search for his own
answers undeniably involves deliberately stressing the horse, and
therefore, advocates of natural horsemanship, like law
professors, should question whether the discomfort of the equine
dialectic is justified. Recall that the Socratic dialogues offer four
justifications for the upheaval the classical method produces.
The first of these is that a ‘‘violent reversal’’ is necessary to make
clear to interlocutors what they do not know, to startle them out
of their self-deception.340 Natural horsemanship is premised on a
similar rationale. The horse and its owner must be made to see
what the horse does not know, how many questions he cannot
answer. Because of the modern predicament of horses being
dependent upon humans, it is a life and death realization for the
horse and, possibly, for those who handle him. The second
justification is to prepare others to find their own truth.341
Natural horsemanship is also designed to teach horses that their
trainers will not supply the answers for them, either in the form
338.
339.
340.
341.
666
LYONS, supra note 202, at 20.
Id. at 21.
See supra notes 86-88 and accompanying text.
See supra note 88 and accompanying text.
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of force or bribery. They must make the choices themselves and
cope with the consequences.
Scholars offer a third reason for creating an intellectual
crisis: to allow the interlocutor to recognize and accept the
Horse trainers, as Socratic
assistance of an expert.342
questioners, use the methods of natural horsemanship to make
their expert guidance available to their pupils. As explained
below, if horses recognize their trainers as leaders, they will
follow their suggestions, and the ensuing partnership makes it
much easier for the horses to solve their ‘‘people problems.’’
The final and most important Socratic justification for putting
horses through this type of stress is that this deconstructive
exchange is an efficient way to trigger an autonomous learning
process------perhaps, the only way.343 As we shall see in the next
section, natural horsemanship is founded on the notion that
generating intellectual, emotional, and physical movement in the
horse is precisely how a trainer creates an opportunity for the
horse to teach himself.
2. Using Movement
The second trait natural horsemanship uses is the comfortseeking nature of the horse. The horse must be motivated to do
something other than seek the path requiring the least effort on
his part. Because horses are continuous grazers, forward motion
is a natural and necessary behavior for them.344 Also, as
explained above, their status in the herd is determined by which
horses they can and cannot move.
The entire natural horsemanship learning dynamic is based
upon movement and the horse’s desire to be comfortable, that is,
to stop moving when she wants to.345 The trainer creates
movement by applying pressure and then redirects the horse’s
behavior to one she can reward.346 Not only is movement the
first step, but the trainer must generate it to allow the horse to
make the mental connections she needs to make. Movement is
also the cure for compartmentalization. The trainer must make
342.
343.
344.
345.
346.
See supra notes 89-94 and accompanying text.
See supra notes 97-101 and accompanying text.
IRWIN, supra note 26, at 47.
LYONS & GALLATIN, supra note 240, at 17.
LYONS, supra note 202, at 38-45.
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sure both sides of the horse’s brain register the lesson, which,
literally, means the horse must be made to move in all directions
by stimuli from all directions.
In the field, a dominant horse will move the other horses
around at will, but does very little work himself.347 The herd
leader should not be running around, but rather making others
run around. This is the reason why one will see horsemen
standing in the center of the pen making very few, small
motions, while the horse does the mental and physical work of
searching for the correct answers. Thus, movement is also the
cure for ambiguity of role and status. The horse understands this
message very clearly: ‘‘Most of the time, the trainer asks the
questions, and I search for the answers.’’
Finally, combining teaching through release with movement
is also the way to deal with the horse’s opposition reflex.
Assume an owner is attempting to teach a foal to move in the
direction she is pushed when hand pressure is applied to her
shoulder. The foal pushes back. The owner attempts to muscle
the horse over, but fails. The horse’s instinct to brace against the
pressure has been reinforced. A natural horseman would get a
rigid cane about three or four feet long. He would stand next to
the horse’s shoulder and apply a slightly uncomfortable amount
of constant pressure with the end of the cane. If the horse
pushed against the cane, the trainer would not move it, nor
would he increase the pressure. This will eventually become
uncomfortable for the horse and, at some point, the horse will
move away from the cane. The instant the foal breaks contact
with the cane, the trainer should let it fall to the ground.
Repeatedly removing the pressure in this manner rewards the
horse. The horse will eventually become so responsive or
‘‘light,’’ as horsemen say, that her trainer need only look at her
shoulder, applying the lightest possible pressure, for her to move
it in the opposite direction.
Moreover, a natural horsemanship approach would
prioritize teaching the foal to give to pressure because it is a
crucial step in the horse’s mental training. Giving to pressure is
not just a physical reaction, but is also a psychological state of
347. RASHID, supra note 48, at 58.
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willingness to follow the lead of a human.348 It is an emotional
reorientation that allows the horse to benefit from the trainer’s
guidance without much resistance or emotional upheaval. This
is one of the first things knowledgeable horsemen check out in
an unfamiliar horse. A horse that will not give to pressure on
the ground will resist her rider’s cues from the saddle.
3. Leadership Creates Partnership
As is true for many prey animals, horses find safety in the
herd. They do not want to be alone and do not want to be
without direction. A shared language allows us to be more of a
partner to a prey animal, which we need to teach to partner with
a predator.349 This is not the relentlessly dominating type of
leadership that looks like a dictatorship.350 Instead, it is a crossspecies relationship with mutual respect, devoid of fear.351 One
horseman calls this ‘‘passive leadership,’’ a phenomenon he
discovered after many hours of watching his herd of horses.352
According to Mark Rashid, a truly dominating horse is arbitrary,
violent, bothersome, and causes the herd to be uneasy: ‘‘The
atmosphere goes from one of calm camaraderie and mutual
respect to one of strong, palpable uneasiness’’ because he is
mean and unpredictable.353 Rashid originally thought that other
horses looked up to this horse with awe and respect, but then
realized it was more likely that they mistrusted and feared him
because they avoided contact with him whenever possible.354
The horse they actually gravitated towards and followed was
more easy-going and nurturing, but also dominant. This was the
horse they looked to for reassurance and guidance in a crisis.
Natural horsemen strive to be the human equivalent of the
equine passive leader. The leader has emotional authority and
exudes a special type of confidence, one that
purge[s] itself of conflicting desires, . . . knows clearly what it
wants, . . . [and] is calm and still. Because it is reflected in
348.
349.
350.
351.
352.
353.
354.
LYONS & GALLATIN, supra note 240, at 24-25.
PARELLI, supra note 17, at 15, 22, 40-42.
MILLER & LAMB, supra note 1, at 18, 116-19.
Id. at 73-75.
RASHID, supra note 48, at xii-xiii, 37.
Id. at 50.
Id. at 37, 49-50.
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every word and gesture, it is consistent.
Because it
understands that there will be setbacks, it doesn’t get easily
rattled. Because it reflects the mind’s desires clearly through
the body, it’s transparent.355
Not only does the horse make an astounding transformation
from a terrified student to a confident partner, but the trainer is
also transformed:
This new person observes, remembers, and compares. He
listens more and talks less. He takes responsibility rather
than assigning blame. He controls his emotions. He becomes
aware of his body language. He tries to improve himself. He
commits himself to acting justly. He cultivates patience. He
forgives. He lives in the moment rather than stewing over the
past or waiting for the future. And of course, he places the
wants and needs of another living creature ahead of his
own.356
B. The Elenchus Redefined
The principles of natural horsemanship can be used to
modify the Socratic method to address the prey consciousness of
students and help bridge the communication gap between Law
and non-Law speakers.357 The equivalent in legal education to
the justice ethos of natural horsemanship is the unfortunately
loaded term, ‘‘responsibility.’’ Both teachers and students have
responsibility for what transpires in the classroom, but the
teacher has the power to determine the agenda and superior
knowledge; she knows the extent and nature of the
transformation the student must make to become a competent
lawyer. Her primary responsibility in a traditional course is to
create an environment conducive to learning, that is, one that
will move the students in the direction of proficiency in legal
reasoning and analysis. This requires self-awareness about the
pedagogical choices she makes and a willingness to ask herself
some difficult questions, such as: whether she is rationalizing
what is easy for her as being in the best interests of the students;
whether she is confident that her methods are effective; and
355. IRWIN, supra note 26, at 106.
356. MILLER & LAMB, supra note 1, at 314.
357. See ROBERTS, supra note 2, at xiv (discussing how Roberts’ approach
can change not only ‘‘the way we communicate with animals,’’ but also ‘‘how
we communicate with each other’’).
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whether she is avoiding using a particular technique primarily
because of resistance from the students, thereby allowing them
to teach her not to teach them.
Remember that both the stick and carrot approaches
produce horses that may appear to be well-trained, especially in
situations where they either are given no choices or have all of
the choices made for them. Similarly, all may appear to be going
very well for law students on the surface, especially with grade
inflation, but in reality, the accumulation of flaws in their legal
education------the failure to acquire critical skills------is likely to show
up long after the pleasant, affirming exchanges in their nonSocratic classrooms are over.358 Law professors should be
concerned that a significant number of their students who
graduate with B and sometimes better grade point averages are
unable to pass a bar exam. Self-delusion can be a powerful
reinforcement and disincentive to improvement. Adoption of a
‘‘no excuses’’ approach means law professors should assume
responsibility for changing their pedagogy if they know it is not
working or could be improved. As horseman John Lyons has
said, ‘‘[t]he biggest mistake is to succeed at doing nothing.’’359
Some philosophers suggest that ‘‘[t]he problem of restoring
the mental balance which humanity has obviously lost in this age
is not psychiatric, or religious, or pedagogical, but
philosophical.’’360 They say that the solution to the problem is
the production of ‘‘a generation of vigorous thinkers.’’361 Insights
from natural horsemanship offer a systematic method for
making the benefits of Socratic rigor available to this generation
of law students. A blended approach requires an honest
confrontation of the classroom dynamic, but would counsel
against rigid adherence to any one role. Ideally, law professors
should balance a hard-edged, deconstructive approach and
dialectic
educational
strategies
with
various,
more
358. Lloyd, Hard Law Firms, supra note 125, at 678-84; see also Thomas C.
Brickhouse & Nicholas D. Smith, The Socratic Elenchos?, in DOES SOCRATES
HAVE A METHOD?, supra note 5, at 145, 156-57 (commenting that ‘‘[o]n this
quest, we must not be seduced into thinking that there are wonderful special
steps we can take or ‘unique methods’ we can master to shortcut the impossibly
long distances to be traveled’’).
359. LYONS, supra note 202, at 5.
360. PHILLIPS, supra note 6, at 197.
361. Id. at 197-98.
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accommodating modes of presenting legal principles combined
with occasional deference to student desires for flexibility and
comfort.
Since all education is self-education, the natural
horsemanship approach compels a commitment to putting the
students in situations where they must articulate choices and
allowing the consequences of those choices to become evident to
them. This process takes time and means that the Socratic
teacher must have clear goals for the students, but not be
obsessed with coverage of content. If the teacher elects to
lecture through material, the sole purpose should not be
coverage, because, the lectures may become addictive, and
largely ineffective shortcuts. For professors and students, letting
go of the need to get through a certain amount of material is the
educational equivalent of horsemanship’s concept of ‘‘giving to
pressure.’’362 It is a critical psychological reorientation for a law
professor.
When a professor accepts, without negative judgment, that
she must give the students the time they need to master each
discrete step in the process of analysis, she is letting go of the
illusory possibility of presenting the subject matter in a perfectly
efficient and comprehensive manner. More importantly, she is
also letting go of the desire or quest for the perfectly prepared
student. Relinquishing those desires is one way for law
professors to avoid the fatalism that comes from believing that
the Socratic method simply cannot work with such poorly
prepared and unmotivated students, and the defeatism that
comes from believing that efforts to teach the students how to be
critical, independent thinkers while they are in large law school
classes is futile. The challenge, of course, is to balance the
commitment to ‘‘taking the time it takes’’ with assuming
responsibility for keeping the class moving forward.
The last element of the overall attitude suggested by natural
horsemanship is that despite the need to motivate students, the
teacher should keep the classroom interactions as light and soft
as possible, without compromising purposeful guidance. The
teacher will occasionally need to be firm, but should endeavor at
all times to correct negative behaviors through redirection of the
362. See supra notes 30-31, 235-236 and accompanying text.
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students’ efforts and energy. Reorienting their approach and
adequately addressing students’ anxieties through these
techniques makes revival of the true Socratic spirit, an
intellectually exhilarating experience, possible.363
The preceding sections identified certain traits------anxiety,
passivity, and lack of preparation------that interfere with the
proper functioning of the Socratic method. This Article has
previously explained how natural horsemanship manages to
engage horses, who possess analogous traits, in educationally
productive dialectic conversations.
What follows is a
consideration of how those equine solutions might be applied to
legal education.
1. Questions and Responses
Recall the four-step training process of natural
horsemanship: acquisition of a skill; fluency in using the skill;
generalization of the ability to use the skill in other
circumstances; and maintenance of the skill with only occasional
reinforcement from an expert.364
When applied to legal
education, this process may function both as a method to assist
students with acquiring a particular legal skill and also as a way
for educators to define what they mean by ‘‘mastering’’ a legal
skill in precise and specific terms. For example, consider the
ability to distinguish one case from another. Law professors and
lawyers know, without further explanation, what we mean by the
word ‘‘distinguish’’ in this context. Law students do not know
and neither telling them in more detailed terms what it means,
nor having someone who is proficient demonstrate how to do it,
will allow the student to learn what it means so that she can do it
for herself. The four-step process is one way to accomplish this.
Initially, the professor should break the skill of
distinguishing cases into its smallest parts. She should walk the
student slowly through the process of identifying the facts in
each case that the courts found relevant, noticing those facts the
courts disregarded or minimized, and grasping the relationship
363. PHILLIPS, supra note 6, at 23 (commenting: ‘‘[T]hat is all to the good. If
it never touches any nerves, if it doesn’t upset, if it doesn’t mentally and
spiritually challenge and perplex, in a wonderful and exhilarating way, it is not
Socratic dialogue.’’).
364. See supra note 326.
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between the facts and the courts’ stated rationales. The student
should be able to extract the black letter rule of law each court
applied to reach its result and determine whether they are the
same, comparable, or different. The professor’s questions will
prompt the student to consider the ways in which the cases are
alike or different and evaluate whether the differences would or
should make a difference in the outcome. At the next level of
proficiency, the professor will ask fewer leading questions and
expect the student to be able to not only examine the cases
based on what is explicitly stated, but also to read between the
lines and extrapolate more explanatory and predictive
information. At this level, the student should become more
aware of the malleability of language, facts, policies, and results
and be able to mold these arguments for different purposes with
less and less assistance from the professor. After becoming
proficient at distinguishing cases in one substantive context, for
example torts, the student should perceive that the same
analytical process can also be applied in an entirely different
substantive area of law, such as contracts, and comprehend that
the technique is the same even though the factual settings,
policies, and legal principles are different. Thereafter, the
student should be able to distinguish cases in almost any legal
context with only occasional assistance from experts, that is,
those especially familiar with certain specialized areas of law.
Similarly, using the arc lesson format365 as a means of
moving the class through the skill acquisition process is very
useful and something many professors already do intuitively and
unconsciously. This suggests that professors should begin classes
by restating a consensus from the previous day’s class or by
asking a student a question they are fairly certain the student can
easily handle. Many professors will ask the students to recite the
facts of a case for exactly this reason; it relaxes the student and
gives the professor the opportunity to start off on a positive note.
The real work of the lesson is done in the next phase when
the professor begins to place more pressure on the students.
Assume that a Civil Procedure professor intends to teach her
students how to read Sections (a) and (b) of Rule 19 of the
Federal Rules of Civil Procedure together, a task about as
365. See supra note 323 and accompanying text.
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difficult for law students as trailer loading is for horses.366 The
professor knows from experience with classes in the past that the
students have trouble comprehending what the first sentence of
Section (b) is attempting to accomplish, in part, because it is
awkwardly phrased. The professor asks a student to define what
the word ‘‘indispensable’’ in the first sentence means. She is
hoping the student will say something along the following lines:
‘‘It has a special meaning that is explained in the first part of the
sentence. It describes a person who meets the criteria set forth
in Section (a) and therefore, should be joined, but who cannot
be joined, and in whose absence, the lawsuit should not go
forward.’’ Instead, the student responds: ‘‘I suppose it means
someone who should be in the lawsuit.’’ Natural horsemanship
techniques would suggest that the law professor evince no
censure or impatience, but also should not say: ‘‘Well, look
closely at Sections (a) and (b). Is it not likely that they are
meant to describe different types of potential parties?’’ Nor
should the professor quickly leave this student to try and find
one who spots that the two sections are describing different
joinder scenarios, so that the class might move on to cover other
aspects of the rule during that session.
Instead, she should break the question down into its
component parts, and ask the student to make other choices.
For example, the professor could follow up by saying: ‘‘What has
to be true for a person to meet the requirements of Section (a)?’’
Through subsequent questioning, she should guide the student
to realize that the consequence of her choice is that the
difference between Sections (a) and (b) is obscured or
obliterated and that this is an argument less likely to be accepted
by a court than one which harmonizes the two provisions. This
is the equivalent of lunging the horse near the trainer. The
student has had to do more work because she was not more
366. Rule 19, Federal Rules of Civil Procedure, provides, in relevant part:
(a) Persons Required to be Joined if Feasible. A person who is
subject to service of process and whose joinder will not deprive the
court of subject matter jurisdiction must be joined as a party if . . . (1)
or (2).
(b) When Joinder is not Feasible. If a person as described in
subdivision (a)(1)-(2) hereof cannot be made a party, the court shall
determine whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed, the
absent person being thus regarded as indispensable.
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attuned to the use of language in the rule when she was
questioned the first time.
She has also discovered the
consequences of differences in rule-based language for herself
and is more likely to be able to discern these distinctions in other
rules. If the professor had left the student soon after her first
attempt to analyze the language in the rule, the student would
likely have experienced this as humiliating, to one degree or
another.
By sticking with the student, the professor
communicates trust and confidence in her and allows her to
discover that, even though she is inexperienced, she can reason
her way through to her own truth of how the rule should be
interpreted.367 No matter how far the professor intended to get
that day, perfecting this one little step may become the focal
point of the class.368
Natural horsemanship would say that we ‘‘teach through the
release,’’369 and this concept can also be applied to deal with
students’ anxieties and lack of confidence. Letting a student off
the hook, depending on the student’s perspective and how the
professor does it, can be either a positive punishment
(humiliation------the infliction of pain) or a negative reward
(removing pressure). Every situation should be considered in
context. Generally, a professor should search for ways to reward
students who are well prepared and responding productively to
questioning. This may take the form of praise (a positive
reward), provided that the professor is sparing with it and has
not rendered it meaningless by being too generous (like giving
too many grades above a B). The praise should be very specific
and will have the ancillary benefit of encouraging students to pay
close attention to what their classmates say. Because the
professor should be committed to calling on several students
during every class, she may also give the student a negative
reward, by taking the pressure off almost immediately and
367. STUCKEY, supra note 11, at 72-73 (observing that studies show a
significant relationship between ‘‘self-efficacy,’’ students’ beliefs about whether
they can succeed, and academic performance, even with differing abilities
controlled for); Fines, supra note 270, at 92-127; see also ZELDIN, supra note
208, at 33-34 (describing the Socratic method as two people ‘‘questioning each
other and examining their prejudices, dividing each one of these into many
parts, finding the flaws, never attacking or insulting, but always seeking . . .
moving in small steps from one agreement to another’’).
368. Epstein, supra note 61, at 418.
369. See supra text accompanying note 333.
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moving on to other students.370 Remember, the goal is not to
cover more material or to prevent the equivalent of equine blowups to give the illusion that ground is being covered. Instead, the
Socratic method conducted from a horsemanship perspective
welcomes students’ mistakes as opportunities for instruction
where it is likely to be most needed. As one observer of the
Socratic method has said, ‘‘the cycle keeps repeating itself------not
in a vicious circle, but in an ever-ascending and ever-expanding
spiral.’’371
Law professors are not accustomed to thinking about their
exchanges with students in this manner and should be creative in
coming up with ways to ‘‘teach through the release.’’ Perhaps, a
professor might give a student who has done well immunity from
being called on for some meaningful time period. Another
approach might be to allow the student who has done well to ask
the professor questions, including requests for straightforward
descriptions of black letter rules, as a reward. Because a natural
horsemanship approach envisions that the professor should ask
most of the questions, allowing students to ask questions is a
reward. As most practitioners know, the Socratic method breaks
down if a professor takes too many questions from students. Not
only do the questions guide the class in directions the professor
may not think best, but, more importantly, it puts the professor
in the role of being the source of definitive knowledge and
allows the students to escape confronting these difficulties for
themselves.372 It is one of the ways students teach their teachers
to give them the lectures they want. Curtailing questions from
the class is one of the more radical aspects of applying natural
horsemanship principles to legal education and something many
370. In my experience, the student who has been released will often become
a confident voluntary participant in the remainder of the dialogue, even though
that same student would not have participated at all without initially being
called upon. In these cases, the teacher should allow these students to get back
into the dialogue if they seem to view continued participation as a reward or
acknowledgment of good performance.
371. PHILLIPS, supra note 6, at 12.
372. Epstein, supra note 61, at 420. ‘‘This then, is how the spirit of Socrates
lives in legal education: by the constant challenging of students’ assumptions
and generalizations, the teacher develops in the students the skill of selfcriticism and the equally important habit of questioning the assumptions and
generalizations of others, including such seemingly authoritative sources as
judges and teachers.’’ Id.
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teachers have difficulty doing. Taking questions from students
should be viewed as a positive reward------like giving apples to
horses------a treat and not their steady diet.
Critics of the Socratic method fault it for not welcoming
discussions of students’ personal beliefs and opinions except in
connection with the policies behind legal rules.373 Unless they
are very carefully restrained and contained, these discussions are
time-consuming and often of dubious educational value.374 They
also trap the professor in an ideological vise: If one purports to
welcome expressions of feelings and opinions, one must
welcome them from all, and some students are likely to have
views the professor finds objectionable or which members of the
class may find controversial, and possibly upsetting. Now what
should she do? She will be violating the rule of maintaining
neutrality as to the student’s choice if she prefers one set of
views over another or risks exposing the students to views the
majority oppose and inadvertently validating those statements or
opinions. If she tries explicitly to distance herself from these
views, she cannot avoid the class becoming about her personal
beliefs and convictions.375
373. By ‘‘personal beliefs’’ and ‘‘opinions’’ in this context, we mean
something other than what most recognize to be the emotional, ideological,
and political values and convictions bound up with the rules of law which are,
essentially, under discussion at all times.
374. Some argue that allowing students to express their personal opinions in
class is somehow the key to unlocking the ability of poor performers to do well
in law school and the discontented to find fulfillment in the legal profession.
One could argue to the contrary, that the allocation of the scarce resource of
time in the classroom to remediate this generation’s pressing educational needs
will produce greater happiness in the long run. Providing students with
opportunities to discuss their reactions to the study of law and their adjustment
to law school may be an effective stress reducer, but, if it is to be done in class,
it should be controlled and directed. See, e.g., Areeda, supra note 11, at 91318.
375. Ironically for feminists, studies show that males are perceived to
dominate volunteer discussions and increase involuntary participation. See,
e.g., Guinier et al., supra note 156, at 14-15 nn. 41-42 (citing and analyzing
studies purporting to show lower rates of classroom participation by women);
Bashi & Iskander, supra note 157, at 405, 405-11 nn.65-83, 437-38 (reporting
the results of a study at Yale Law School showing that women participated less
in classroom discussions, men volunteered more often, that relying upon
volunteers will produce male-dominated class discussions, and calling on
students will ensure more diverse participation); Celestial S. D. Cassman &
Lisa R. Pruitt, A Kinder, Gentler Law School? Race, Ethnicity, Gender and
Legal Education at King Hall, 38 U.C. DAVIS L. REV. 1209, 1247-49, & n.162
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Finally, a professor unravels much of her good work if she
maintains Socratic neutrality during class, but doles out black
letter answers or indicates which arguments she thinks are
stronger at the podium after class or in her office. After having
their confidence shaken during class, some students seek the
professor out afterwards to reassure themselves that the
difficulties with which the class grappled result from a
misunderstanding that can be cleared up or explained away by a
black letter rule or an overlooked fact. This awkward situation
requires careful handling. The professor should avoid responses
which could be construed as assent to oversimplifications, but
may be able to use the exchanges as opportunities to let the
students know that they are on the right track if they perceived
the difficulties and suggest supplemental materials, such as
hornbooks, that may be helpful.
As previously noted, students do not experience Socratic
dialogue the way their professors do, and therefore, professors
should address students’ anxiety by increasing their comfort,
which is one of the ways natural horsemanship alleviates fear.
One strategy for increasing their comfort is to make the Socratic
method visible and understandable. Many professors already
elect to spend at least part of the first day of class explaining how
class will be conducted or prepare an explanation for students to
read in advance of class.376 The professor should also, as Pat
Parelli says, let the horse have his say some of the time. This
may consist of allowing the class to take a breather after a
particularly difficult case, not calling on anyone and taking
volunteers, or perhaps, synthesizing and restating the issues
discussed in class for them. The thing to remember is that it
should be something the students see as a concession to them or
an acknowledgment of their feelings and concerns. Giving them
a review lecture now and then is one way to communicate
respect for the students and a willingness to meet them half-way;
in effect perhaps, to teach by not teaching.
However it is accomplished, the professor must make it
crystal clear that Socratic exchanges are intended to be, as one
(2004) (describing a study showing that women perceived men to be
participating more than women).
376. See, e.g., Epstein, supra note 61, at 409 n.11 (describing the justification
for and the manner in which class is conducted Socratically for students).
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scholar says, ‘‘strife-encompassed refutation . . . [and a] very
contentious challenge . . . .’’377 Law students are being trained to
participate effectively on behalf of their clients in disputatious
discussions of issues, a necessary skill they must master at some
point.378 Otherwise, after graduation, they would soon discover
that clients, other lawyers, and judges do not walk on eggshells
around them as some of their professors and law school
administrators may have done.379 To be sure, some students may
seek out kinder, gentler arenas within which to practice, but
their opportunities in law will be severely limited if they
graduate unable to function in any other environment.
Conversely, law professors should let students know that they
themselves are willing to submit to the test of Socratic inquiry
and welcome spirited exchanges with students who rise to the
challenge. Openness of this kind cannot be feigned; students
know in an instant whether professors are truly comfortable
when students challenge them.
Law professors should remember that their students are
vulnerable and that as professors, they have an advantaged
position in all classroom exchanges. Socrates made concessions
and allowed others around him to save face and deflect scrutiny
that became too painful.380 Sarcasm, arrogance, conceit, and
hostility ‘‘jeopardize the philosophical process’’ and have no
place in the classroom.381 Because so much communication is
non-verbal, law professors should endeavor to control the
messages their body language and facial expressions send to
students.382 Recent research shows that humans uncontrollably
377. Lesher, supra note 82, at 21.
378. See, e.g., PHILLIPS, supra note 6, at 3-4. ‘‘Here we subscribe to the
ethos that it is not enough to have the courage of your convictions, but you
must also have the courage to have your convictions challenged.’’ Id.
379. An equine analogy exists. Inexperienced horse handlers often choose
to deal with their horses’ natural tendency to spook or shy by avoiding putting
the horses in environments where the unexpected is likely to happen. This
approach severely limits the circumstances under which these horses are safe.
Natural horsemen, in contrast, deliberately introduce frightening objects and
sounds into their training sessions and purposefully teach horses how to deal
with their emotional reactions in a less cloistered environment. MILLER &
LAMB, supra note 1, at 110.
380. Lesher, supra note 82, at 21; see also Nelson, supra note 93, at 153
(noting that students should know what is being demanded).
381. Lesher, supra note 82, at 24.
382. See supra note 197 and accompanying text.
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manifest ‘‘fleeting facial expressions’’ called ‘‘micro-expressions,’’
which unconsciously reveal what we are really thinking.383
Professors should be mindful of how easy it is to inadvertently
subject students to their peers’ censure and ridicule.384
Finally, natural horsemanship counsels that we deal with
extreme fear, reticence, or vulnerability, by ‘‘riding where we
can,’’ and ‘‘looking for the try.’’385 Assume a law teacher is
dealing with a law student whose fear of speaking in class is
equivalent to a horse’s pathological fear of trailers. From a
natural horsemanship perspective, a professor should seek to
gradually desensitize the student to the most frightening aspects
of the experience, just as one might ask the horse to stand closer
and closer to the trailer. This student might be given more
control over the process, for example, by allowing him to pick
the day that he will be called on, or providing him with the
questions the professor will ask in advance. The philosophy of
natural horsemanship would caution, however, against
automatically accommodating these fears by letting the student
off the hook completely. Horsemanship’s insight is that selfesteem and confidence are created by facing one’s fears and
overcoming them, even if only in incremental steps.386
These types of situations are also opportunities for Socratic
questioners to ‘‘look for the try.’’ If a student appears to have
frozen up and is not able to respond, instead of moving on to
another student, the professor might ask the student more
leading questions to which the student can give ‘‘yes’’ or ‘‘no’’
answers and work from there. The professor should search for
ways to minimize the differences between her treatment of this
383. Press Release, Univ. at Buffalo, State Univ. of N.Y., Lying is Exposed
by Micro-Expressions We Can’t Control (May 5, 2006), available at http://
www.buffalo.edu/news/7930.
384. STUCKEY, supra note 11, at 111-23 (advocating creating an
environment more conducive to learning by making the students feel safe,
welcomed and included).
385. See supra note 331 and accompanying text.
386. One scholar believes that the history of the Vikings, who feared loss of
their reputations more than anything else, suggests two ways their
contemporary counterparts may overcome their obsession with humiliation.
The first, according to Zeldin, is to ‘‘escap[e] from one fear to another, which
contains more hope. The second has been through curiosity about something
quite different, which has temporarily blotted out the awareness of danger.’’
ZELDIN, supra note 208, at 169.
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student and others. Another method is, at the beginning of the
class, when it is not personalized, a professor may advise the
students that if they get stuck they can ask her for a hint, such as
‘‘does the response to your question have something to do with
the arguments in the dissenting opinion?’’ This is just like when
a horse trainer allows a horse to look to her with a small
questioning movement of its body that says, ‘‘is this what you are
looking for?’’ Often, the students are unable to frame any
question even to help themselves with the dialogue. This may be
an indication of how difficult critical, independent thinking is for
some students------without prompting, they are literally rendered
speechless. The professor may seek to diminish the isolation of
the student by saying something such as, ‘‘I’m sure many of you
are finding this aspect of the case difficult,’’ thereby enlisting the
assistance of other students as allies. Law professors often ask
the class what was wrong about a student’s response to a
question. They should take care, however, to make certain that
the student herself, rather than her argument, does not become
the object of her peers’ criticism. The professor should
remember that one is looking for something to reward, a way to
end the questioning, as well as the class, on a positive, affirming
note.
2. Understanding Perplexity
Recall that Socratic dialogues implicitly offer four
justifications for putting students through the stress and
discomfort of involuntary participation. The first of these is that
a ‘‘violent reversal’’387 is necessary to make clear to interlocutors
what they do not know, to startle them out of their selfdeception.
The process described above is designed to
accomplish precisely this. As one scholar has said, Socratic
questioning leads students to
confess their ignorance and thus cuts through the roots of
their dogmatism. . . . [A] lecture, too, can stimulate
spontaneous thinking, . . . [but] it is not irresistible. Only
persistent pressure to speak one’s mind, to meet every
counter-question, . . . to state the reasons for every assertion
transforms . . . into an irresistible compulsion. This art of
387. See supra note 86 and accompanying text.
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forcing minds to freedom constitutes the first secret of the
Socratic method.388
Preparing others to find their own truth is the next justification
for engaging in dialectic educational strategies. Inducing a state
of Socratic perplexity is the means by which the dialectic paves
the intellectual path for critical, independent thinking.
A misunderstanding of Socratic perplexity is one of the
primary reasons why students find the method so difficult and
critics find it so objectionable. The same is true of induced
movement in horsemanship. To the uninitiated, round penning
looks like a captive animal is being deliberately frightened and
forced to run around in circles for no reason other than to break
its spirit. Just as the notion of redirecting movement is an
essential component of natural horsemanship’s training
methodology, so too is a deliberately induced state of perplexity
or aporia389 essential to the proper functioning of the legal
version of the Socratic method.390 When a horse moves its feet,
its brain is engaged, and the horse is forced into a dialogue with
the trainer. Trainers do not make the horse do anything.391 The
388. Nelson, supra note 93, at 139.
389. MATTHEWS, supra note 53, at 45 (arguing that Socratic perplexity is
designed to make us realize that ‘‘matters we all assume we understand
perfectly well may be philosophically problematic’’). The word ‘‘aporia is
derived from aporos, which means ‘without a means of passing a river,’ or,
more generally, ‘having no way in, out or through,’’’ but it has come to mean
‘‘being at a loss, embarrassment, perplexity,’’ and also a ‘‘question for
discussion, difficulty, puzzle.’’ Id. at 30.
390. Scholars regard the following passage from the Meno dialogue as the
canonical expression of Socratic perplexity:
Socrates, before I even met you I used to hear that you are always
being perplexed . . . and that you make others perplexed . . . and now I
think you are bewitching and beguiling me, simply putting me under a
spell, so that I am full of perplexity . . . you seem . . . to be like the
broad torpedo fish, for it too makes anyone who comes close and
touches it feel numb, you seem to have that kind of effect on me, for
both my mind and my tongue are numb, and I have no answer to give
you. Yet I have made many speeches about virtue before large
audiences on a thousand occasions, very good speeches as I thought,
but now I cannot say what [virtue] is.
MATTHEWS, supra note 53, at 51. To which Socrates responds: ‘‘Now if the
torpedo fish is itself numb, and so makes others numb . . . then I resemble it,
but not otherwise, for I am not myself free of perplexity . . . when I make
others perplexed . . . ; but I am more perplexed . . . than anyone when I make
others perplexed. . . .’’ Id. at 51-52.
391. See ROBERTS, supra note 2, at 277.
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equivalent of movement for humans is cognitive dissonance or
the nagging sense that the conceptual pieces are not fitting
together properly. That discomfort promotes learning by
encouraging us to engage in schema building to come up with a
way of understanding and organizing these new insights.
Two aspects of the state of being perplexed are relevant to
the process of learning legal reasoning. First, law students must
attain a ‘‘higher level of ignorance’’392 and be made to see what
they do not yet know. Far more troubling for students is the
second type of perplexity, which occurs when students confront
issues that are inherently and insolubly uncertain and
ambiguous. This is what the Socratic method is best designed to
provoke: the deeply unsettling realization that the professor is
not hiding the ball. Rather, there is no ball.393
When Socrates induced philosophical perplexity, he made
‘‘his otherwise perfectly articulate interlocutors numb, baffled,
even speechless,’’ unable to explain what they ‘‘thought they
understood very well.’’394 They ‘‘begin to lose confidence that
they can even use the ordinary words they had earlier used to
express their easy going intimations of knowledge.’’395
Philosophers describe this phenomenon as ‘‘having one’s own
words slip and slide around until one isn’t sure any more what
one is saying,’’ thereby ‘‘undermin[ing] one’s confidence that one
even knows how to use the language.’’396 This is strikingly
similar to the effects of Socratic dialogue on law students, an
experience few would seek out voluntarily.
Although this process might not be pleasant, it is desirable
at both of the levels at which it functions. First, perplexity
compels students to unpack their unqualified assertions of facts
and categorical beliefs and to confront how contingent,
irrational, and debatable they often are. Second, and more
fundamentally, inducing perplexity forces students to grapple
392. See supra text accompanying note 93.
393. Pierre Schlag, Hiding the Ball, 71 N.Y.U. L. REV. 1681, 1683-85 (1996).
‘‘Questions, questions, questions. They disturb. They provoke. They
exhilarate. They intimidate. They make you feel a little bit like you’ve at least
temporarily lost your marbles, [s]o much so that at times I’m positive that the
ground is shaking and shifting under our feet.’’ PHILLIPS, supra note 6, at 2-3.
394. MATTHEWS, supra note 53, at 90.
395. Id. at 44.
396. Id. at 44, 91.
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with the plasticity and frailty of language, the impossibility of
factual certainty, the absence of fixed legal principles, and the
scarcity of social policies that are absolutely preferable. In short,
perplexity forces students to see for themselves that law is not,
and can never be, a science. Thus, ironically, the very effects
that critics identify as some of the worst flaws of the Socratic
method, are to its advocates, among its greatest strengths.397
If a law student’s desire to push against the realization of
both types of uncertainty is strong, the Socratic method can be
used to ensure that the student eventually comprehends the
weaknesses of her arguments. As always, this should be done
with softness and redirection of movement, rather than
attempting to force or drag the student along. It may be true
that defenders of the Socratic method place too much faith in
the power of such discomfort to promote learning, but it is
difficult to see how students’ passivity could be overcome by an
alternative method that similarly spurs them to intellectual
movement and does not cause at least some discomfort along the
way.398
As one commentator has observed, a teacher ‘‘who lacks
the courage to put his pupils to the test of perplexity and
discouragement not only deprives them of the opportunity to
develop the endurance needed for research but also deludes
them concerning their capabilities and makes them dishonest
with themselves.’’399 One wonders whether law professors are
unwilling to subject their students to the rigors of the undiluted
Socratic method in part because, deep down, they are not sure
the students can meet its demands and are uncertain of their
ability to teach them how to do better. One reason for law
professors to stay on the Socratic path, even in the face of
undermining doubts and easy ways out, is that the students need
397. Nelson, supra note 93, at 148 (discerning that ‘‘one of the sources of
error that provoke the familiar unjust criticisms of the Socratic method . . . [is
that it] is charged with a defect which it merely reveals and which it must reveal
to prepare the ground on which alone the continuation of serious work is
possible’’).
398. Vitiello, supra note 65, at 981-87 (summarizing research that shows that
high demands lead to greater learning and the Socratic method is highly
effective even though it causes anxiety, the absence of which was shown to
reduce learning).
399. Nelson, supra note 93, at 148.
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opportunities, particularly in their first year of law school, to
prove to themselves that they are up to the challenge of learning
how to think like lawyers. As horsemen say, you cannot expect
your horse to trust you, if you do not trust your horse.400
3. Socratic Midwifery
The final component of a shared prey-predator language is
establishing the appropriate tone for the conversation. In
horsemanship and in legal pedagogy this is largely a matter of
addressing the power disparity among interlocutors. Natural
horsemanship balances dialectic power in an inherently unequal
relationship through passive leadership.401 The trainer respects
the horse’s dignity, but also acknowledges that the two are not
equals.402 The trainer’s job is to create an environment where
the horse can learn, their interactions are purposeful and
productive, and where the trainer can be a source of safety and
reassurance when the horse needs it.403 The horse feels secure
because she knows a kind and competent herd leader is in
control and acting in her best interests.404 The leader uses her
superior power and ability to induce movement to pull her
interlocutor close to her when it is necessary and to push her
away when that is best.405
The classic version of the Socratic method is in alignment
with the natural horsemanship approach and relies on a similar
push-pull dynamic. The philosophical version is captured in the
final two justifications the Socratic dialogues offer: The dialectic
allows an interlocutor to recognize and accept the assistance of
an expert,406 and it triggers an autonomous learning process.407
The pedagogical equivalent of pushing a student away is
speaking in a Sophistic tone, which is hierarchical, detached,
neutral, and deconstructive. As the previous section explains,
this generates perplexity.
400.
401.
402.
403.
404.
405.
406.
407.
686
RASHID, supra note 48, at 103.
See supra Part III.A.3.
MILLER & LAMB, supra note 1, at 118-19.
See ROBERTS, supra note 2, at 277-85.
See supra Part III.A.3.
ROBERTS, supra note 2, at 277-81.
See supra notes 95-96 and accompanying text.
See supra note 102 and accompanying text.
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Using the Socratic method to foster and promote learning is
called maieutics, which is a reference to the role of midwives
during childbirth.408 Scholars portray perplexity as the labor of
philosophical childbirth, induced and guided by a skilled
midwife. A professor employing the maieutic method pulls the
student into her, but only to the extent needed to provide
guidance as the student works out his own solutions.409 To do
this, the midwife must ‘‘remain[ ] steadfastly in the perplexity as
it occurs, . . . [and should not] hasten towards a transcending of
the enigmatic paradox’’ because this robs the student of the
opportunity to do this for himself.410 This maieutic tone is
egalitarian, involved, and indirectly positive and constructive.
Using a natural horsemanship approach would require a
Socratic teacher to know when to shift between the Sophistic
and maieutic voices. Insights from contemporary critics of the
Socratic method identify the perils of over-reliance on the
Sophistic voice.411 As previously explained, using only the
maieutic tone is just as problematic.412 An appropriate balance
will depend upon the circumstances, but the teacher should be
able to speak both dialects fluently. Horsemanship’s notion of
passive leadership is instructive in this regard.413 The teacher
accepts responsibility for controlling the tone and flow of the
conversation, but understands that, ultimately, students must
take responsibility for teaching themselves.414 Achieving a
proper balance is the mark of a true Socratic expert, to whom
408. Francois Renaud, Humbling as Upbringing: The Ethical Dimension of
the Elenchus in the Lysis, in DOES SOCRATES HAVE A METHOD?, supra note 5,
at 192-93 (defining ‘‘maieutics’’ as ‘‘the art of bringing out new insights from
within the interlocutor’’).
409. Birnbacher & Krohn, supra note 7, at 9.
410. Olyvin Olsholt, Book Review, http://www.olsholt.no/works/matthews.
html (select hyperlink for English version) (last visited May 10, 2008)
(reviewing MATTHEWS, supra note 53); SULLIVAN ET AL., supra note 13, at 6061 (labeling a similar approach ‘‘cognitive apprenticeship’’); STUCKEY, supra
note 11, at 134-41, 207-31 (outlining ‘‘best practices’’ approach to the casedialogue method).
411. See supra notes 155-156.
412. See supra Part I.B.2.c.
413. See supra Part III.A.3.
414. IRWIN, supra note 26, at 44 (noting that although seeking control is
politically incorrect, we need to acknowledge that this is required in an
educational setting, but is attained more through study of the teacher’s
shortcomings, rather than those of the student).
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the students will look for leadership in searching out their own
versions of the truth.
Thus, Socratic expertise is procedural rather than
substantive. It is mastery of this rebalanced version of the
dialectic, rather than the ability to transmit information or to
create the illusion that knowledge has been shared. Because of
its deep commitment to the teacher’s substantive neutrality, it
offers a much-needed defense of intellectualism. At its core, this
approach to education is not only anti-dogmatic, but is also a
great equalizer, because it acknowledges the validity of different
versions of the truth and validates intellectual equality among
teachers and their students.415 The defense of intellectualism is,
therefore, the ultimate justification for the continuing use of the
Socratic method in law schools.
CONCLUSION
Studying natural horsemanship is a reminder that useful
insights sometimes come from unlikely sources. Xenophon, ‘‘the
poor relation of classical Athenian philosophy,’’ and early
natural horseman, may be helpful to legal educators in
determining whether the Socratic method has a future in law
To be sure, one must be mindful that our
schools.416
understanding of companion animals is deeply influenced by our
strong emotional desire to have meaningful relationships with
them.417 Although law students may feel like prey, they
415. PHILLIPS, supra note 6, at 49.
416. Robin Waterfield, The Return of Xenophon, THE PHIL. MAG. 27, 27
(2007); Bertrand Russell has famously said of Xenophon:
There has been a tendency to think that everything Xenophon said
must be true, because he had not the wits to think of anything untrue.
This is a very invalid line of argument. A stupid man’s report of what
a clever man says is never accurate, because he unconsciously
translates what he heard into something he can understand. I would
rather be reported by my bitterest enemy among philosophers than by
a friend innocent of philosophy.
BERTRAND RUSSELL, A HISTORY OF WESTERN PHILOSOPHY 83 (1945). But see
Vernezze, supra note 36 (arguing that Xenophon’s depiction of Socrates as a
teacher is actually consistent with Plato’s).
417. This affinity is so strong that Monty Roberts reports that when he does
rehabilitation demonstrations with abused horses, human victims of abuse,
watching the terrified animals struggle, have intense reactions, including
fainting. Astonishingly, abusers (not only of horses, but also of women and
children) have approached Mr. Roberts after these sessions to ask for help.
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obviously bring many other attributes to dialectic exchanges,
which must be taken into consideration. This Article offers a
method for law professors to guide self-teaching and a
pedagogical and philosophical justification for continuing to use
the Socratic method.
Natural horsemanship provides a
memorable way to organize, understand, access, and consistently
apply these methods to advance the purposes of Socratic
dialogues.
This approach is not premised on the notion that teaching
students to do legal analysis cannot occur in any other manner,
that the Socratic method should be exclusively used or even
dominate the curriculum, or that law schools should discontinue
efforts at diversifying their educational strategies.
Legal
educators and law school administrations should experiment
with different teaching techniques, try to make law school more
relevant to practice, encourage students to consider the ethical
dimensions of law and lawyering, examine the curriculum,
rethink the third year of law school, address differences in
learning styles, endeavor to reduce stress, and promote nonadversarial legal problem-solving.418 These objectives, however,
should not be purchased at the expense of the beleaguered
Socratic method.419
Reformers of legal education commonly assume that the
classic version of the Socratic method is pervasive, that equally
effective alternative techniques exist, and that law schools can
afford to redistribute some of the resources currently allocated
to the task of teaching legal analysis to other forms of
instruction. None of these assumptions has been proven.420
Most of these studies are actually opinion surveys that show only
ROBERTS, supra note 2, at 293-95.
418. See SULLIVAN ET AL., supra note 13, at 185-202; STUCKEY, supra note
11, at 275-87.
419. STUCKEY, supra note 11, at 286-87 (concluding that reorienting the
goals of legal education to be more outcome oriented requires that the Socratic
method must give way to other pedagogies).
420. Andrea A. Curcio, Gregory Todd Jones & Tanya M. Washington,
Developing an Empirical Model To Test Whether Required Writing Exercises
or Other Changes in Large-Section Law Class Teaching Methodologies Result
in Improved Exam Performance, 57 J. LEGAL EDUC. 195, 196 n.3 (2007)
(noting that only a few empirical studies have even been designed to show
whether pedagogy affects performance).
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that students have a negative reaction to the Socratic method.421
Educators should be careful not to act solely on the basis of
subjective impressions or assumptions because they will not
necessarily be borne out by appropriately structured empirical
studies.422 Its critics, therefore, run the risk of making a
sacrificial lamb (or perhaps, lion) of the Socratic method before
they have provided law teachers with a pedagogy as effective
and efficient.423
One hopes the generation that had ‘‘Question Authority’’ as
one of its mottos does not stop asking questions because it now
has authority.424 A common criticism of legal education is that it
over-emphasizes the adversarial role and fails to train lawyers to
be policy makers or to evaluate the morality of the policy
choices implicit in legal decisions. In reality, because use of the
Socratic method is diminishing, its commitment to content
neutrality is eroding and law classes run the risk of being
consumed by discussions of policy. This trend mirrors the
tendency of ideology to dominate more and more decision
making in society. Some would argue that ‘‘the demise of a
certain type of philosophy has been to the detriment of our
society, . . . [a] type of philosophy in which questions are the
answers.’’425 The legal academy should take care not to
compromise transmission of the shared, content-neutral values
of the legal profession in its efforts to assist law students with
their individual moral, political, and psychological choices. In
these times, legal education should embrace the renaissance of
421. SULLIVAN ET AL., supra note 13, at 76 (reporting the results of a survey
showing that recent law school graduates do not find the case method helpful).
422. See, e.g., Curcio et al., supra note 420, at 197-98, 200-02 (reporting the
unexpected result that written practice exams with written feedback, a
recommended pedagogy, provided the most statistically significant benefit to
students who had above-the-median LSAT scores and undergraduate GPAs).
The authors of this carefully crafted study noted that they ‘‘cannot claim with
scientific certainty that it was the writing interventions and accompanying
feedback, per se, that were responsible for the differences’’ in performance. Id.
at 201.
423. STUCKEY, supra note 11, at 132-33 (positing that ‘‘[t]he main
impediment to improving law school teaching is the enduring over reliance on
the Socratic dialogue and case method’’).
424. PHILLIPS, supra note 6, at 159 (observing that ‘‘[i]n the Athenian’s case
every answer raised a question,’’ whereas ‘‘[w]ith contemporary elites every
question produces an answer’’).
425. Id. at 7-8.
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the Socratic method because ‘‘[t]he Socratic sensibility is as
important and relevant today as it was thousands of years
ago.’’426 ‘‘[T]he dialectic of dialogue . . . is the equivalent of a
divining rod, . . . a process through which truths come to light, in
which human character reveals itself, and through which the
rhythm of the world manifests itself.’’427
426. Id. at 205-07 (describing the continuing relevance of the Socratic
sensibility).
427. HANS, supra note 54, at 13.
691
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