VIETNAM NATIONAL UNIVERSITY, HANOI University of Languages and International Studies

THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION

TRƯƠNG HẢI HÀ

THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION

submitted in partial fulfillment of the requirements for the degree of bachelor of arts (TEFL)

Hanoi, May 2011

VIETNAM NATIONAL UNIVERSITY, HANOI

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

TRƯƠNG HẢI HÀ

THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION

submitted in partial fulfillment of the requirements for the degree of bachelor of arts (TEFL)

Supervisor: Nguyen Thi Bach Thao, MA.

Hanoi, May 2011

STATEMENT OF ACCEPTANCE

I hereby state that I: Truong Hai Ha, class 07E1, being a candidate for

the degree of Bachelor of Arts (TEFL) accept the requirements of the

University relating to the retention and use of Bachelor’s Graduation

Paper deposited in the library.

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

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

in accordance with the normal conditions established by the librarian for

the care, loan or reproduction of the paper.

Signature

April 30th, 2011

ACKNOWLEDGEMENTS

First and foremost, I would like to show my deepest gratitude to my

supervisor, Ms. Nguyen Thi Bach Thao, whose constructive comments,

encouragement, guidance, support from the initial to the final step have

enabled me to complete this thesis.

Secondly, I am heartily thankful to Mr. Ngo Huy Cuong, Professor at

the Faculty of Law, Vietnam National University, Hanoi for giving me the

inspiration and confidence to carry out this research.

Thirdly, it is a pleasure to thank the kind-hearted librarians at the

Library and Information Center Vietnam National University, Hanoi for

their helpful services.

Last but not least, I am indebted to my family and friends who have

given me the invaluable support during the completion of the paper.

Truong Hai Ha

ABSTRACT

The casebook method is the usage of casebooks containing court

decisions of actual cases as teaching materials; and the Socratic method is

the in-class dialogue or questioning employed by the teacher. They were

first introduced in American legal education by Former Harvard Law

professor Christopher Columbus Langdell in the 1870s. Although the heated

debate as to the effectiveness of the methods have never ceased since then,

the casebook and Socratic methods remain the predominant teaching

methods in American till the current day. This thesis paper presents a brief

history of how the two methods came into existence in the American legal

education, analyzes the two methods in practice along with their supporting

and opposing critiques, and offers some implications for Vietnamese higher

education. From the information collected and processed by means of

document comparative analysis methodology, it was found that despite all

the critiques, the casebook and the Socratic methods have proved to be

especially effective in preparing students for their future careers. Based on

such analysis, some implications for Vietnamese higher education can be

realized. First, it is necessary for Vietnamese higher education to prepare

students with practical skills to meet the demands of the labor market.

Secondly, teachers and learners’ interaction in Vietnamese higher education

should be increased. Last but not least, Vietnamese learners’ self-study

ability needs to be developed. These can be done by learning the appropriate

teaching methods from more advanced countries. However, Vietnamese

social, economic and other related features need to be taken into

consideration before any adoption and/or adaption is made.

TABLE OF CONTENTS

Acknowledgements

Abstract

Chapter 1: Introduction

1.1. Statement of the problem and rationale for the study

1.2. Aims and objectives

1.3. Scope of the study

1.4. Significance of the study

1.5. Methodology

1.6. Organization of the study

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

in the U.S. legal education

2.1. Legal education before Langdell’s reform

2.1.1. Legal profession in colonial period

2.1.2. Legal training in colonial period

2.1.3. Birth of American law schools

2.2. Langdell’s approach and reform

2.2.1. Langdell’s approach to legal education

2.2.2. Langdell’s introduction of the casebook method

2.2.3. Langdell’s introduction of the Socratic method

2.2.4. The expansion of the casebook and Socratic methods

2.3. Summary

Chapter 3: The casebook method and its critiques

3.1. The casebook method in practice

3.2. Arguments in support of the casebook method

3.2.1. Increasing students’ interest in learning law

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3.2.2. Teaching students how to read cases

3.2.3. Teaching students to think like a lawyer

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

precedents

3.2.5. Enabling students to understand the law making process

3.2.6. Promoting students’ moral imagination

3.2.7. Developing students’ self-study skills

3.3. Arguments in opposition of the casebook method

3.3.1. Encouraging students to view law in an incomplete

conception

3.3.2. Neglecting the fact finding and the legal process

3.3.3. Failing to teach lawyering

3.3.4. Breeding boredom in students

3.4. Summary and conclusion

Chapter 4: The Socratic method and its critiques

4.1. The Socratic method in practice

4.2. Arguments in support of the Socratic method

4.2.1. Teaching legal reasoning

4.2.2. Teaching students analytical thinking

4.2.3. Teaching oral communication

4.2.4. Encouraging active learning

4.2.5. Developing mental toughness

4.3. Arguments in opposition of the Socratic method

4.3.1. Creating anxiety in students

4.3.2. Creating unhealthy relationships in the classroom

4.3.3. Failing to serve the psychological need of law students

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4.3.4. Having adverse impact on female law students

4.3.5. Giving students the impression of uncertainty

4.3.6. Being ineffective and inefficient in teaching lawyering

4.3.7. Inducing boredom in students and laziness in professors

4.4. Summary and conclusion

Chapter 5: Implications for Vietnamese higher education

5.1. Preparing students with practical skills to meet the demands of

the labour market

5.2. Increasing teachers-learners’ interactions

5.3. Developing learners’ self-study skills

5.4. Summary and conclusion

Chapter 6: Conclusion

6.1. Summary of the findings

6.2. Limitations of the research

6.3. Suggestions for further research

References

Appendices

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CHAPTER 1: INTRODUCTION

1.1. Statement of the problem and the rationale for the study

Together with the remarkable development of the American legal

system, legal profession has become one of the most respected and well-

liked careers in the United States. According to the American Bar

Association, there are 1,180,386 active attorneys practicing in the United

States as of December 31, 2008. That means there is one attorney in every

386 Americans, as compared to one attorney in approximately every 20000

Vietnamese (as cited in Huong, 2009, para. 3). To become an attorney, a

typical American law student must study for at least 7 years – 4 years of any

bachelor degree and 3 years of a Juris Doctor degree. Despite this long,

stressful and costly process, the most brilliant American students continue to

compete for a seat in law schools. In 2006, nearly 89,000 people applied for

one of the 46,000 seats that were available at 193 nationally accredited law

schools (Bernstine, 2007, p. 270). To serve this huge demand of legal study,

American legal education has also developed to an extent that it emerges as

one of the most prestigious systems in the world with globally well-known

law schools such as Harvard, Yale and Stanford.

So the question is “What is it that makes American legal education so

distinctive among other legal education systems in the world?” The courses

in American law schools are similar to those in other countries: contracts,

torts, property, civil procedures and criminal law. Yet it is not their

substance that matters. It is that students are taught to “think like a lawyer”

(Maxeiner, 2003, p. 8). This ambitious goal is achieved mainly by the use of

the two major teaching methods in American law schools: the casebook and

Socratic methods. The casebook method (also known as the case method)

requires law students to read court decisions of actual cases that are selected

and positioned in a casebook (Austin, 1965, p. 157). The method originated

in the Harvard Law School under the Langdell’s Reform in the 1870s. The

reading of casebooks is in conjunction with the class discussion - the so-

called Socratic method, in which students are engaged in continual

conversation guided by the professor and required to extract the applicable

rules of law from the unessential facts of a case. Till now, the casebook and

the Socratic methods have been widely used not only in American law

schools but also throughout the common law world’s legal education. The

methods have also been adopted with modification by many business and

medicine schools, in psychotherapy and human resource training and

development.

Taking a look back at our homeland, just as Vietnam's economy has

been transforming itself over the last few decades; it is now the turn of the

country's higher education system. In the past few years, attempts have been

made to introduce the credit system, to enhance the educational facilities and

especially to innovate the teaching methods. However, Vietnamese higher

education system is still constantly criticized for the incapability to produce

graduates that meet the demands of the labour market, especially in this

global environment since Vietnam became a member of WTO. Never before

has the necessity of improving the quality of Vietnamese higher education

system been so urgent. In order to enhance the quality of the legal education

in Vietnam, it is inevitable to learn from the more advanced systems such as

the prestigious American legal education.

Despite this pressing demand, in Vietnam very few insightful studies

have been done on the topic. The researcher of this thesis was astonished to

discover this gap in the Vietnamese legal academia. While legal students and

lecturers tend to drive their attention to specific fields of law such as

constitutional law or commercial law, pedagogic students and professors

lack both interest and legal knowledge to conduct researches in legal

education. That is not to mention the language barrier when it comes to

researching about a foreign nation like the United States. Although a very

small number of articles on the topic of American legal education can be

found on legal journals such as “Journal of Legislation Research” (Tap chi

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

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

education.

The researcher of this paper is a double-degree student who is

fortunate to be exposed to American studies, to have a general understanding

of pedagogy and to experience the reality of Vietnam’s legal education at the

same time. Hence, the researcher feels that she is in a convenient position to

conduct research on the U.S. legal education. In light of the fact that

teaching methods play a deciding role in any education system, and the

widely recognized effectiveness of the two traditional teaching methods of

the U.S legal education, she has made up her mind to choose “The casebook

and Socratic methods in the United States legal education” as the topic for

her graduation paper. With this paper, she wishes to make her own

contribution to the progress of Vietnam’s legal education in particular and

Vietnam’s higher education in general.

1.2. Aims and objectives of the study

This thesis aims at presenting a brief history of how the two methods

were introduced and developed in the U.S. legal education system. Then, it

gives a detailed description of the casebook method in practice along with its

supporting arguments and opposing critiques. The next part of the thesis

carefully describes the Socratic method in practice and identifies its pros and

cons. Finally, based on the analysis, the thesis offers some implications for

Vietnamese higher education. In short, these objectives are specified in the

following research questions.

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

develop in the U.S. legal education?

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

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

4. What are some implications for Vietnamese higher education?

1.3. Scope of the study

As defined by Wikipedia, “Legal education in the United States

generally refers to the education of lawyers before entry into practice.”

However, in this research, the term “legal education in the United States”

should be understood in a narrower scope. It should be understood as “the

post graduate three-year program, staffed by full-time faculty, teaching a

mostly standardized curriculum, using the case method”. (Gordon, 2002).

Pham (1996) in his book “Introduction to Education” states that the

process of teaching and learning consists of five main components which are

lecturer, learner, aims, contents and methods (p.58). Due to the time

limitation, this research cannot explore all of the components of the U.S.

legal education. The researcher would discuss a single component of the

system which is its teaching methods. Although there are a variety of

teaching methods in the U.S. legal education (see Appendix 4), the research

aims at discovering the two traditional methods which are the casebook

method and the Socratic method.

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

of American education is decentralized administration. As a part of the

system, the U.S. legal education and its two teaching-learning methods are

no exceptions. This means that the two methods described in this paper may

not be uniform all over the United States. The adoption of the Harvard

model might slightly vary from state to state, from district to district, from

school to school, even from professor to professor. Nevertheless, according

to Patterson (1951), there are three devices that are deemed essential among

all the variations: “the casebook, the participation of students in class

discussion, and the problem type of examination” (p. 35). Due to time

constraints, only the first two devices are explored in this research.

1.4. Significance of the study

This paper, once finished, would be a useful material for many

readers. First, the paper serves as a reference material about a constituent of

the United States higher education system for teachers and students of the

Faculty of English Language Teacher Education.

Second, the analysis of the American casebook and Socratic methods

in this research provides Vietnamese law lecturers and researchers with a

reliable source regarding law teaching methods in other countries.

Last but not least, based on the analysis of the U.S. casebook and

Socratic methods, the paper offers some pedagogical implications

concerning the importance of teaching methodologies in enhancing the

quality of Vietnamese higher education to meet the requirements of the

labour market.

1.5. Methodology of the study

This paper is a secondary research which is carried out in a

comparative document analysis approach. First, the researcher collected

reliable information about legal education in the United States from books,

newspapers, journals, the Internet, and other relevant documents related to

the casebook and Socratic methods in the U.S. legal education. Then, the

information is synthesized, analyzed, compared, contrasted and evaluated to

find out the precise answer for each research question. As for the last

research question, the researcher collects trusted information on assessing

the reality of Vietnamese higher education, and bases on the answers for the

previous questions to raise some suggestions to improve the quality of

higher education in Vietnam.

1.6. Organization of the study

The study consists of six chapters:

Chapter 1 “INTRODUCTION” presents the rationale, aims and

objectives, scope, significance of the study, methodology and organization

of the study.

In Chapter 2 “A BRIEF HISTORY OF THE CASEBOOK AND

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

researcher summarizes the major turning points of the American legal

education before Langdell’s reform, depicts the reform with the introduction

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

the reform.

Chapter 3 “THE CASEBOOK METHOD AND ITS CRITIQUES”

includes three main parts: how the casebook method works, arguments in

support of the casebook method and arguments in opposition to the casebook

method.

Similarly, chapter 4 “THE SOCRATIC METHOD AND ITS

CRITIQUES” is divided into three main parts: how the Socratic method

works, arguments in support of the Socratic method and arguments in

opposition to the Socratic method.

Chapter 5 “IMPLICATIONS FOR VIETNAMESE HIGHER

EDUCATION” offers some relevant implications that can be learnt from the

casebook and Socratic methods in the U.S. legal education.

In Chapter 6 “CONCLUSION”, the contents and research results of

the study are summed up, the limitations of the study are pointed out and

some suggestions for further studies are given.

CHAPTER 2: A BRIEF HISTORY OF THE CASEBOOK AND

SOCRATIC METHODS IN THE U.S. LEGAL EDUCATION

2.1. Legal education before Langdell’s reform

2.1.1. Legal profession in the colonial period

According to Moline (2004), in colonial America there was no

comprehensive legal system and no need for lawyers. Each colony was

founded separately and functioned independently. Each developed its own

flexible and optional legal system, generally drawn from English common

law, but with an overlay of local customs, usages, and eccentricities.

Lawyers were considered unnecessary and even disadvantageous to such a

simple system of justice. They were viewed as potential political rivals by

the merchants and as agents of landlords by the rural people. Therefore, as of

1706, the entire Bar of Pennsylvania consisted of no more than three or four

English-trained lawyers (Warren, 1911, p.107).

Friedman (1973) has shown that the simplicity of life in colonial

America in the early seventeenth century led to the fact that most disputes

were resolved based largely on the Bible, common sense, and concepts of

fairness (p. 81). With the beginning of the eighteenth century, however, the

American colonies began to grow in wealth and influence. It soon became

evident that law and lawyers played a vital role in protecting property and

developing trade relations. As the colonies developed and prospered, the

demand for lawyers soon surpassed the supply. An underground industry of

amateurs and part-time lawyers, often untrained and even uneducated, filled

the void. Gradually, however, an indigenous bar evolved of full-time, more

or less trained lawyers. Thus, by Independence Day in 1776, there was a

trained bar in nearly every colony (Moline, 2004, p.778).

2.1.2. Legal training in the colonial period

As claimed by Moline (2004), American legal education, like

American law, has roots deep in English history. Unlike the countries of

continental Europe that viewed law as a learned profession to be taught as a

social science in a university setting, English considered law as a craft to be

learned by the handing down of knowledge from master to apprentice.

(p.775). For centuries, English legal education relied entirely on

apprenticeship and affiliation with the respected Inns of Court in London,

which is historically a third university with as much influence as Oxford and

Cambridge.

That explains why in the early eighteenth century, formalized training

for the would-be-lawyer virtually did not exist in the U.S. Early attempts to

promote scholastic method of legal training were unsuccessful. In his book

“Legal Education During Colonial Period, 1663 -1776”, Consalus (1978)

stated that beginning in 1642, Harvard College provided a course entitled

“Ethicks and Politicks” (p. 29). Other colonial colleges also offered courses

with respect to natural law, moral philosophy, and government theory.

Nonetheless, these courses were of little help to young men who were eager

to learn the fundamentals of practicing law.

Some of those who seek to learn law, mostly from the southern

colonies, traveled to England to study at the Inns. For others, there were

basically three options. The first was a reading program of self-study, in

which the student read whatever law books he could borrow and picked up

what practical law he could on his own. Second, he could serve as scribe or

assistant in a government or judicial office. Third, the aspirant could serve as

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

Among them, the most common method of legal preparation in

America was the apprenticeship system. McKirdy (1976) described the

system as a contract in which a practicing lawyer agreed to provide

instruction in the law while the student had to pay a certain amount of fee

and work as clerk or general assistant for the lawyer in return. The student

was supposed to learn both the theoretical and practical aspects of law by

individual study, by observing his mentor and other lawyers in action, and,

hopefully, by direct instruction and supervision. Most importantly, the

mentor was supposed to guide the student through a carefully selected

reading program to absorb the literature necessary for a mastery of the law

(pp. 124-127).

This apprenticeship system worked well because it could be adapted

easily and apprentice labor could fill many necessary functions. Despite the

benefits, apprentice training was unstructured and uneven. Time was often

spent on menial tasks rather than study. Also, most of the mentors were so

busy with their work as a lawyer that they often left pupils on their own.

However, some mentors performed their task admirably. A prominent

example was Theophilus Parsons, one of the most learned and admired

lawyers in Massachusetts. Diligent mentors like Parsons began to spend less

time practicing law and more time educating their students. It was from such

specialized law offices that the first law schools evolved (Friedman, 1973,

p.279).

2.1.3. Birth of American law schools

As previously described, the first law schools grew out of specialized

law offices that employed several apprentices at one time. The earliest law

school is believed to be founded in 1784 in Litchfield, Conneticut, by Judge

Tapping Reeve (Jones, 2006). Moline (2004) acknowledged that Litchfield

granted no degree and for the most part was unconcerned with historical

development or philosophic formulation. It was an entirely practical

program designed solely to teach the student what he needed to know to

practice the law. The course lasted from fourteen to eighteen months of

intensive study; examinations were held every week. Instruction was

through lectures in which students were required to take careful notes and

transcribe them into notebooks. Students’ notes from around 1803 show that

Judge Reeves’s main teaching method was explaining reasons for the rules

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

As many Litchfield’s graduates became citizens of distinction and had

significant social and political impact on the society, the school served as a

model for several other independent law schools in a number of states. By

1835, there were eighteen other law schools independent of a university.

Originally, law schools were a supplement to the apprenticeship program,

and argued that their existence was necessary to provide one phase of a

student’s multi-phased preparation for lawyering. Moline (2004) confirmed

that despite the short lifespan of most of these independent law schools, they

were a continuing phenomenon in the first half of the nineteenth century.

And in spite of the evident narrowness of the Litchfield curriculum, “the

Litchfield School and its imitators were the first step into a slow and

somewhat reluctant recognition that law was a learned profession and not

simply another craft to be learned to self-education or apprenticeship.” (p.

797). In the meantime, most of the colonial universities were unable and

often reluctant to incorporate legal education into their curricula. Slowly but

surely, however, the movement into university-based legal education had

begun.

During the early nineteenth century, it became possible for students to

study at a college or university. In 1826, when Judge David Dagget was

appointed to the vacant professorship in law at Yale, the independent law

school that he served as its head was absorbed by Yale. Beginning in 1826,

Yale offered a complete “practitioner’s course” in law requiring enrollment

for two years, which included practice in the drafting of legal documents.

Slightly earlier than Yale, Harvard University established its own law school

in 1817 (Jones, 2006, p.1080). Classes at Harvard generally consisted of

students gathering in a hall to listen to a professor lecture on the law. Other

universities followed, founding law schools or absorbing other independent

law schools. The growth and development of law schools, however, was

slow because apprenticeship continued to be the preferred method of

preparation. By 1840, the L.B.B. (Bachelor of Law) became the usual form

of the first degree in law awarded by universities. By 1870, thirty-one law

schools had been established. Of those, twelve were one-year program, two

required one and one-half years, and seventeen required two years (as cited

in Moline, 2004, pp. 798-799). For the most part, the schools had no

entrance requirement except a vague “maturity and good moral character”

test, and there was often no examination for the degree. While the

independent law schools provided more practice than university-based law

schools, the universities taught mostly theory, history and philosophy of the

law. Both kinds of law schools, however, used lecturing as their

predominant methods. It required little from the students and offered very

little practical information about how to apply what had been learned. This

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

nowadays.

Despite the movement towards more formalized legal education,

“reading law” continued to be an acceptable and to some even preferable

method of training for a career in law. As a result, Harvard and other law

schools struggled to compete with the education provided through the

apprenticeship system, and they sought to make changes that would promote

their recruitment efforts. In 1870, Christopher Columbus Langdell became

the first Dean of Law at Harvard. During the 1870s, Dean Langdell and

Harvard’s President, Charles William Eliot, began to “segregate legal

education from lawyers and the practice of law.” They developed what

would become the “prototype for model legal education in the United States:

the three-year, postgraduate … curriculum of private-law courses staffed by

a faculty of full-time academics teaching by the ‘case method’” (Gordon,

1995).

2.2. Langdell’s approach and reform

2.2.1. Langdell’s approach to legal education

When Christopher Columbus Langdell

left the practice of law to become a law

professor, he brought about a new era of legal

education, significantly changing the future of

Image 1: Christopher Columbus Langdell

American law schools for generations to come. Up to the mid-nineteenth

century, the bar, not the university, determined the legal education of most

young practitioners through its apprenticeship system. Law school education

lasted eighteen months or less and the curriculum consisted of ungraded,

elementary courses. There were no exams or attendance requirements, and

faculty taught part-time while maintaining full-time legal or judicial work.

Treaties were the written materials from which students were to learn.

Nevertheless, Langdell argued that lawyers should be educated by law

schools, and not exclusively by reading treaties on the law, but rather by

examining the actual, written decisions of the courts. He also proposed that

the job of law professor should be the professor’s full-time job, rather than

practicing full-time and teaching law students as a secondary responsibility.

In addition, Langdell lifted law to a post-graduate level of study and

increased the length of study to three years. He introduced entrance exams,

graduation exams, rigorous coursework and most importantly the casebook

and Socratic methods. Langdell viewed law as a science and the law library

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

“principles or doctrines” of which “law, considered as a science, consists.”

In other words, Langdell constructed the study of law as a science similar to

natural science with the expectation of promoting the convention of legal

study in the eyes of the university community (Sonsteng et al., 2007, p.324).

It was Langdell who introduced the notion of legal formalism – a

common law theory that dominated the second half of the nineteenth

century. Under formalism, “the common law contains a systematic, eternal

array of broad principles and specific doctrines, all interconnected and

logically consistent.” These doctrines were discovered by judges through the

study of judicial decisions and a process of inductive reasoning. To

illustrate, each legal doctrine has arrived at its present state by slow degrees

of development extending in many cases through centuries. This

development can be traced mainly through a series of cases. Hence, the only

way of mastering the doctrine effectively is by studying the cases in which it

is embodied. This notion of legal formalism led to Langdell’s most

significant contribution to legal education, the casebook method.

2.2.2. Langdell’s introduction of the casebook method

In Langdell’s view, only small portion of the cases reported were

useful and necessary. The rest, maybe even the vast majority, were of very

limited use to systematic study. Moreover, the same doctrine appears in

several cases, and vast legal treaties are full of repetition. “If these doctrines

could be so classified and arranged that each should be found in its proper

place, and nowhere else, they would cease to be formidable from their

number.” Subsequently, Langdell’s approach to law, which classifies cases

under a few general principles, turned into the fundamentals for the

organization of all legal knowledge (Patterson, 1995, p. 196).

In the second term of the 1870-1871 academic year, Langdell began to

apply this doctrine to his teaching. Langdell collected an adequate group of

judicial opinions of important cases to employ his new method. His

“textbook” in Contracts and in Sales was his selection of cases that he

considered worthy of examination. In 1870, he published the complete, first

edition of his first casebook, “Cases on Contracts”, and immediately

employed this casebook in his teaching of “Contracts” at Harvard.

The main focus of Langdell’s casebook method was on original

sources of the law and on the methods of case analysis and legal reasoning

in case law. In the casebook method of study, a single correct way of

analyzing or organizing opinions does not exist, while it is a process not the

outcome that is significant. Langdell’s casebook method is considered novel

because it replaced textbooks with appellate cases “arranged to illustrate the

meaning and development of principles of law.” Today, some of Langdell’s

theories about how case law should be taught have been eroded by new

ideas, but even after modification, Langdell’s method is still the basic model

for most modern American law school courses.

2.2.3. Langdell’s introduction of the Socratic method

In addition to the casebook method, Langdell incorporated Socratic

dialogue into classroom discussion. In the book “The Centennial History of

Harvard Law School 1817 – 1917’, the Harvard Law School Association

(1918) described the dramatic effect of the first trial case method in the Fall

of 1870 as follows:

The lecturer opened his [headnotes]:

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

Mr. Fox did his best with the facts of the case.

Mr. Rawle, will you give the plaintiff’s argument?

Mr. Rawle gave what he could of the plaintiff’s arugment.

Mr. Adams, do you agree with that?

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

The Socratic method of instruction engaged students in continual

conversation and required them to extract the applicable rule of law from the

unessential facts of a case. The method motivated students to reason rather

than recite. The professor encouraged intelligent analysis and required

students to determine the principal

legal doctrines. The reason for

utilizing Socratic method instead

of lecture as a method of

instruction is to stimulate the

students to perform the necessary

case analysis and critique

themselves, rather than passively

listening to a lecture showing them

how to do it.

According to

www.lawiki.org, the Socratic

method, named after the Classical

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

is a dialectical method, often involving an oppositional discussion in which

the defense of one point of view is pitted against the defense of another; one

participant may lead another to

contradict herself in some way,

strengthening the inquirer's own point.” Elenchus (the Ancient Greek word

for argument of disproof or refutation; cross-examining, testing) is the

central technique of the Socratic method. Socrates generally applied his

method of examination to concepts that seem to lack any concrete definition;

Image 2: Socrates

e.g., the key moral concepts at the time, the virtues of piety, wisdom,

temperance, courage, and justice. Such an examination challenged the

implicit moral beliefs of the interlocutors, bringing out inadequacies and

inconsistencies in their beliefs, and usually resulting in puzzlement.

2.2.4. The expansion of the casebook and Socratic methods

Back to Langdell’s reform in the 1870s, when he commenced

fundamental changes at Harvard Law School, he faced resistance from both

students and colleagues. Students studying under Langdell’s system had to

get used to the new competitive culture with its entrance exam, rigorous

academic requirements, demanding pace, and an additional year of

schooling. They complained openly and bitterly that they were not being

taught “the law”. Professors had to accept heavier teaching loads due to the

three-year curriculum, and had to get accustomed to the new methods of

teaching. When the three-year curriculum requirement took effect in 1876,

enrollment steadily plummeted from 199 students to 138 in 1882. Harvard

graduates were fewer compared to other law schools, some potential

students were disqualified by the new admission requirements, and others

were persuaded to reject the program by family members who opposed

Langdell’s reform (Sontsteng et al., 2007, p. 326).

While this disturbed Langdell, and drew much criticism, by the end of

the nineteenth century, enrollment increased, the faculty expanded, and the

new legal education culture finally took hold. By the early 20th century,

virtually every American law school had adopted Langdell's method. It also

slowly won acceptance in the schools of business and medicine. Moreover,

the Socratic method has been adapted for psychotherapy and used by

modern management training companies. Although most law schools began

to introduce some form of clinical education to supplement the classroom

study of cases since the 1960s, casebook and Socratic methods continue to

remain at the core of American legal education until the present time.

2.3. Summary

In colonial America, there was no comprehensive legal system and no

need for lawyers. Most disputes were resolved based largely on the Bible,

common sense, and concepts of fairness. However, in the beginning of the

eighteenth century when the colonies developed and prospered, the demand

for lawyers expanded. An underground industry of amateurs and part-time

lawyers, often untrained and even uneducated, filled the void.

American legal education, like American law, has roots deep in

English history. Unlike the countries of continental Europe that viewed law

as a learned profession to be taught as a social science in a university setting,

English considered law as a craft to be learned by the handing down of

knowledge from master to apprentice. That explains why in the early

eighteenth century, formalized training for the would-be-lawyer virtually did

not exist in the U.S. Some of those who seek to learn law traveled to

England to study at the Inns. Others take a reading program of self-study or

serve as an assistant in a government or judicial office. But the most

common method was to work as an apprentice to an established lawyer.

Some of these lawyers began to spend less time practicing law and more

time educating their students. It was from such specialized law offices that

the first law schools evolved.

The earliest law school is believed to be founded in 1784 in

Litchfield, Conneticut. As many Litchfield’s graduates became citizens of

distinction, the school served as a model for several other independent law

schools in a number of states. By 1835, there were eighteen other law

schools independent of a university. After Harvard University established its

own law school in 1817, other universities followed, founding law schools

or absorbing other independent law schools. By 1870, thirty-one law schools

had been established in the U.S. Both kinds of law schools used lecturing as

their predominant methods.

In 1870, Christopher Columbus Langdell became the Dean of Law at

Harvard and carried out a major reform. He introduced the notion of legal

formalism –“the common law contains a systematic, eternal array of broad

principles and specific doctrines, all interconnected and logically

consistent.” This notion of legal formalism led to Langdell’s most significant

contribution to legal education, the casebook method. In 1870, he published

the complete, first edition of his first casebook, “Cases on Contracts”, and

immediately employed this casebook in his teaching of “Contracts” at

Harvard. The main focus of Langdell’s casebook method was on original

sources of the law and on the methods of case analysis and legal reasoning

in case law. In addition to the casebook method, Langdell incorporated

Socratic dialogue into classroom discussion. The Socratic method of

instruction engaged students in continual conversation and required them to

extract the applicable rule of law from the unessential facts of a case.

When he commenced fundamental changes at Harvard Law School,

he faced resistance from both students and colleagues. While this disturbed

Langdell, and drew much criticism, by the end of the nineteenth century,

enrollment increased, the faculty expanded, and the new legal education

culture finally took hold. By the early 20th century, virtually every

American law school had adopted Langdell's method. It also slowly won

acceptance in the schools of business, medicine and many other fields.

CHAPTER 3: THE CASEBOOK METHOD AND ITS CRITIQUES

3.1. The casebook method in practice

Nowadays, in the majority of American law school courses,

casebooks are used as the only texts. The casebook contains judicial

opinions, as well as any relevant statues. It also includes some textual

materials that link the cases together or summarize case law or statutory law

that are not important enough to be read as primary materials (Burnham,

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

no such thing as a fixed set of rules, but only a continuously developing

system of principles. Students are expected to understand the law – in all of

its vagueness – through a critical examination of a series of cases that were

decided according to such principles.

In practical terms, the casebook method normally works like this:

Students are required to acquire a personal copy of the book. For every class

meeting, students will be assigned a number of cases to read. The cases are

the written judicial opinions rendered in court cases that were decided at the

appellate level (See Appendix 1). The reason for reading cases from courts

of appeal or supreme courts is that such cases turn on issues of laws, not of

facts. Following the cases, there are study questions that remind students

which aspects of the case are important, confusing, or questionable.

Students’ assignment simply will be to read the cases and be in a position to

answer questions based on them.

Class sessions are discussion of the principal cases that students were

assigned to read, so the responsibility of the students is to understand the

decision before going to class. The first purpose of class discussion is to

identify the governing rules of law that sustain the case. Then, guided by the

instructor, students learn how to “disassemble” a decision and analyze its

component parts. Students also learn to “relate one case to another, to

harmonize the outcomes of seemingly inconsistent cases so that they are

made to stand together.” This process of training enables students to acquire

not only an approach to thinking and working with cases that constitutes the

fundamentals of legal reasoning, but also knowledge of doctrinal rules

revealed in such cases.

3.2. Arguments in support of the casebook method

3.2.1. Increasing students’ interest in learning law

Advocates of the casebook method emphasize that most students may

be more attracted to the real stories of human behavior that underlie each

opinion than the black letter law. Moreover, these stories describe lawyers at

work, which is what law students have come to law schools to learn about.

Weaver (1991) claimed that under the lecture method, a student is likely to

come into lecture with an empty mind. Meanwhile, in reading cases,

students, whether they approve or not of the decision or are in doubt or

confusion over it, still come into class interested and eager to express their

views, or to have their doubts clarified or their confusion solved (p.548). In

addition, reading cases allows students not only to learn legal rules, but to

see how those rules have been applied. It would be a waste of time for

students to go law schools only to learn the simple legal rules that were

written for the general public.

3.2.2. Teaching students how to read cases

The casebook method is also referred to by advocates as a means to

teach students how to “read” cases. Analyzing cases is an essential skill for

any lawyer; and the casebook method provides a direct way of teaching that

skill. In order to read a case, a student must be able to divide it into its

constituent parts; the relevant facts, the legal issues, the holding, and the

justifications for the decision. A student must also learn to brief a case – to

recognize what the important facts are, what the court decided, and why.

Then, a student considers the arguments of other lawyers and learns whether

the court found those arguments to be sound. In addition, the casebook

method facilitates students’ skills to synthesize cases, fitting several together

to explain what the law is (Rowe, 2000, p. 21). All these techniques are the

crucial foundations of becoming a lawyer.

3.2.3. Teaching students to think like a lawyer

American legal education has also been proud of its ability to teach

students to “think like a lawyer”. Supporters of the casebook method

consider the method as the main tool to achieve this goal. Through analyzing

court opinions, law students learn to recognize bias, assumptions and points

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

in a variety of contexts during their careers, and critical thinking skills are

necessary in many of these contexts. They must be advisers, negotiators,

advocates, judges, arbitrators, and frequently administrators and executives.

Redlich (1914) in his report noted how the casebook method students stood

out strongly in “excellent logical training, capacity for independent study, …

quick comprehension of the actual points of law involved, and indisputable

knowledge of positive law” (p. 29). Sharing the same viewpoint as Redlich,

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

to ‘think like a lawyer’”.

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

Weaver (1991) also claimed that the casebook method was the only

realistic way to learn law in a system based on precedents (p. 553). In a

common law system like the U.S., a judge may announce a “rule” in the

opinion of a case and even provide some words that suggest the rule’s

importance and the necessity of applying it in future cases. Nonetheless, to

confirm the significance of that rule, the only way is to refer to how it has

been applied in subsequent cases. Is the rule followed or is it distinguished?

The casebook method is found efficient and effective for students in

examining the extent to which judges follow, distinguish, or avoid precedent

in determining the “law” in a given area.

3.2.5. Enabling students to understand the law making process

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

be used to provide students with knowledge about the law making process

(Weaver, 1991, p. 554). Undoubtedly, the rules and doctrines contained in

legal precedents are a fundamental part of the American legal system.

However, mere knowledge of precedents, doctrines, and rules are not

enough for students to practice law. No legal system in the world, no matter

how complete, can provide enough rules to apply to all circumstances in its

constantly changing society. Therefore, more often than not, analyzing

existing law, judges have to exercise discretion in reaching a decision, hence

essentially engage in “law making” or “law creation.” This flexible aspect of

law can be revealed by the casebook method.

3.2.6. Promoting moral imagination

According to Kronman (1993), because the casebook method uses real

cases as a basis for exploring the different positions embodied in the case,

students develop their imagination as they cannot avoid considering different

perspectives. Over time, the practice of paying attention to different sides of

a case becomes “habitual.” This process, as carried out through the casebook

method, “works simultaneously to strengthen both the student’s power of

sympathetic understanding and his ability to suppress all sympathies in favor

of a judge’s scrupulous neutrality” (p.113).

3.2.7. Developing students’ self-study skills

The students of the casebook method may soon find themselves

trapped in a dead end. “He is given no map carefully charting and laying out

all the byways and corners of the legal field, but is left, to a certain extent, to

find his way by himself” (Garner, 2000, p. 327). In this process, a student’s

self-study skills are also developed. If he successfully overcomes the

obstacles, he experiences the feeling that he has acquired this knowledge of

the law on his own. The legal content of his mind has a personal nature; he

has made it himself.

3.3. Arguments in opposition of the casebook method

3.3.1. Encouraging students to view law in an incomplete conception

Sometimes the casebook itself is ineffective as a teaching device.

Langdell’s casebooks exclude decisions that were not sufficiently faithful to

the “fundamental” rules and doctrines. The overemphasis on principles and

doctrines implied that, in a given case, lawyers and judges were searching

for one true rule. This view ignored the realities of law. Decisions that did

not completely fall in line with fundamental rules are as important as those

that are faithful to the fundamental rules. In fact, they must be considered in

order to fully understand the law (Weaver, 1991, p.570). That is not to

mention that many casebooks are a gigantic collection of facts and

judgments with no connecting trend of legal doctrines.

Moreover, according to Maxeiner (2007), the casebook method can

undermine or even drive out all other considerations in legal education (p.

31). It leads to the inadequate attention to the socio-ethical side of law. It is

doubtful whether a rigid and narrow casebook method can help law students

acquire a complete awareness of the social, economic and political

implications involved in resolving a contemporary legal conflict. On the

other hand, the casebook method is incapable of developing a theoretical

understanding of the law, and the historic processes that shape it (Grossman,

2002, p.820). The result of this is that the students never obtain a general

picture of the law as a whole, not even a picture which includes only its

main features.

Also, students study nothing but principles and doctrines of the

common law which are deemed answers for all legal questions. Statutes and

legislative documents, an obvious and significant source of law, are paid

very little or no attention (Dow, 2004, p.585).

3.3.2. Neglecting the fact finding and the legal process

Dow (2004) also pointed out that the casebook paid no attention to

fact finding, a process in which courts are regularly engaged. The facts of a

case are set out by the judge in the written decision. To illustrate, the

casebook method captures only a small picture of the legal process, typically

the level of decision-making in courts. Although casebook method has the

benefit of bringing out the legal issues in a case, which is helpful in the time-

limited classroom, such reason alone should not abolish the opportunity, in

some legal cases, to examine all of the documents involved. The legal

process is more complex than the restricted portrayal of legal facts within

appellate decisions. The issues within a lawsuit that most affect its outcome

may be present in the pre-appellate stages of a case, and typically lawyers

first confront a legal problem from its beginning, not at the appellate level of

the legal process. Students who study only appellate decisions do not have

access to reality and hence enter other stages of a legal problem without

necessary skills. Unfortunately, in most cases, the disagreements do not exist

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

268).

3.3.3. Failing to teach lawyering skills

Critiques have it that the casebook method is too theoretical. In the

real world, before there are cases, there are human beings with problems.

According to Kerper (1998), every practicing lawyer realizes that clients do

not present themselves in lawyer’s offices with well-defined fact patterns,

clear adversarial positions, or precisely formulated objectives or goals (p.

353). In short, real life clients look nothing like appellate cases. Instead, they

often provide information that is incomplete or distorted by self-interest or

intense emotions such as anger, fear or shame. Their immediate aims may be

not the same as their long-term interests. Parties whom they regard as their

adversaries may in fact be their allies, and parties they believe to be their

allies may in fact be adversaries.

In the early stages of representation, successful lawyering needs skills

in various aspects including listening, fact investigation, interest

clarification, negotiation, and planning. However, the casebook method

totally ignores to address these skills. Certainly, lawyers read cases, but the

case reading aims mainly at helping to solve the clients’ problems. Despite

that the main purpose of the casebook method is to train students to “think

like lawyer,” Langdell and his followers were criticized for escaping from

the real practice of law and attempting to teach students to “think like a law

professor.” Therefore, the replacement of the casebook method with the

“problem method” is gradually obtaining market share in recent years.

3.3.4. Breeding boredom in students

Many scholars have argued that students’ interest cannot be

maintained at a high level for three years. Most students, especially in their

first year, are not mature enough to make a good synthesis of legal doctrines

or concepts, based upon case materials. Yet, weeks after weeks, they are

asked to read twenty to thirty pages a night for each class. The repetition is

likely to lead to boredom and numbness. In addition, the casebook method

can decrease students’ creativity as the casebook method results in students’

“obedience” to the selected decisions (Garner, 2000, p.337). The law

students need to be exposed to more sophisticated legal doctrines that the

casebook method, because of time limitations, cannot offer (Austin, 1965,

p.164).

3.4. Summary and conclusion

The casebook contains judicial opinions, as well as any relevant

statues. Under the casebook method, students are assigned to read a number

of cases that were decided at the appellate level, and to study questions that

remind them which aspects of the case are important, confusing, or

questionable.

Advocates of the casebook method argue that it is useful in increasing

students’ interest in learning law, teaching students how to read cases, how

think like a lawyer, enabling students to learn the law through a series of

precedents and to understand the law making process, promoting moral

imagination and developing students’ self-study skills.

On the other hand, the opponents of the method criticize the method

for encouraging students to view law in an incomplete conception,

neglecting the fact finding and the legal process, failing to teach lawyering

skills and breeding boredom in students.

These critiques appear to deviate from the original focus of the

casebook method. In fact, these skills are not the primary aims of the

casebook method, and can be acquired by law graduates after a few years of

legal practice.

CHAPTER 4: THE SOCRATIC METHOD AND ITS CRITIQUES

4.1. The Socratic method in practice

The Socratic method is widely used in contemporary legal education by

many law schools in the United States. Today, the method is used in many

ways, but at its core is the idea that the professor best spends class time by

leading a probing discussion, not by lecturing (Schneider, 2001, p.80).

Typically, the professor asks a question and calls on a student. Then, the

professor might continue to ask that student other questions or call on

another student (See Appendix 3). The first step is to ask the student to

summarize the case and paraphrase the court’s arguments. After that, the

lecturer asks whether the student agrees with the arguments. The lecturer

then tries to force the student to defend his or her position by refuting

arguments against it. The student is then examined on specific details that

may have been overlooked or unresolved. Very often, the lecturer may

propose a hypothetical situation that may or may not have demanded a

different decision by the court. Finally professors use the Socratic method to

guide students to come to legal principles on their own through carefully

worded questions. Sometimes, the class ends with a discussion of legal rules

to boost the students’ contemporary legal understanding of an issue. At other

times the class ends without such discussion leaving students to figure out

the legal rules or principles on their own (See Appendix 2). Such a

discussion is preferable pedagogically, because the method encourages

students to reason critically rather than to appeal to authority or use other

fallacies.

For this method to be effective, the students are supposed to prepare for

class in advance by reading the assigned materials (case opinions, notes, law

review articles, etc.) and by getting to know the general outlines of the

subject matter. Additionally, the lecturer must be knowledgeable and skillful

enough to spontaneously ask questions that induce conclusions and

principles etc. from the students.

4.2. Arguments in support of the Socratic method

4.2.1. Teaching legal reasoning

According to Stuckey (2007), the possibility of being questioned

stimulates all students in the class to participate enthusiastically in an

exploration of the limits and strengths of legal arguments. Students can learn

legal analysis by performing it in their own minds or in an oral exchange

with the professor. Questioning students forces them to tackle the

weaknesses of each position, and in the end trains them to assess the

strengths of legal arguments on their own. Therefore, when preparing for

class, a student could have asked himself/herself potential questions, and the

he or she can also re-ask himself/herself such kinds of questions after class.

The internalization of that questioning process is the core of legal reasoning

and the achievements of the Socratic method (p. 210).

The only way people learn to reason well is by practicing consistently.

Socratic teaching gives students that practice – day after day for three years

– by making them think like a lawyer under the guidance of an experienced

legal analyst. Each class is an exercise in building and criticizing legal

arguments. The professor shows students what a good questions is by

requiring them to answer one, and shows them what a good answer is by

asking more questions about it. Gradually, students acquire an awareness of

which kinds of arguments work and which do not (Schneider, 2001, p.82).

4.3.1. Teaching students analytical thinking

The Socratic method enhances the learning process by teaching

students analytical thinking. The professor typically asks students to

examine a decision from many different angles. For example, they might be

asked to think about the limits of a decision or to examine the judgments

that influenced the decision. Students can also be asked advanced questions

such as “what motivated a court to reach a decision,” “what policy

considerations did it mention,” “what unstated considerations may have

been present,” and so on. This process of examination via dialogue provides

students the opportunity to attain many new insights about the decisions

they read, to develop their independent thought and critical analysis

(Weaver, 1991, p. 548).

4.3.2. Teaching oral communication

One of the aims of the Socratic method is to give students practice in

oral communication. Undergraduate education normally does not equip

students with verbal communication. Legal training is far too short for

students to be fully exposed to it. If law schools do not teach students these

skills, they are likely to enter the legal market completely unprepared to

face the challenges that await them. In the real world of practicing law,

lawyers regularly have to defend the interest of their clients before strangers

in a public setting with little advance preparation. Therefore, it is the

requirement for a lawyer to be comfortable with spontaneous public

speaking, and the Socratic method seems to be the best pedagogy to teach

this skill (Abramson, 2006, p. 273).

4.3.3. Encouraging active learning

Compared to the lecture method, the Socratic method is superior. In

the class taught by the lecture method, students tend to obediently take

notes from the professors’ lectures and have no motivation to read them

until a week before exam. Then, two weeks after the exam, what students

learned from the notes has been completely forgotten (Powel, 1995, p. 957).

Conversely, the Socratic method awakens students’ interests and

encourages discussion and learning. Socratic teaching makes the study of

law highly demanding; it gives students the incentive to prepare everyday –

the satisfaction of success and the embarrassment of failure. Marshall

(2005) found that the Socratic method promotes active student participation

in the learning process:

It is a pedagogy based on the premise that active learning almost always

produces understanding of a higher quality than passive learning. It is

recognition of the wisdom conveyed by the old saw: ‘Tell me, and I will

forget. Show me, and I will remember. Involve me, and I will understand.’

(p. 9)

4.3.4. Developing mental toughness

Lawyers sometimes have to perform under difficult circumstances.

For example, they have to deal with questions from a judge or argue against

opposing counsel at a hearing. When encountering these situations, lawyers

need to think quickly and respond immediately. Through the class vigorous

questioning of the Socratic method, students’ views become subject to

critical examination by their professors and peers, preparing them for these

situations. This is the reason why the Socratic method is sometimes referred

to as a “friendly assault” (Weaver, 1991, p. 569).

4.4. Arguments in opposition of the Socratic method

4.4.1. Creating anxiety in students

The strongest critique against the Socratic method is that it harms

students by fostering severe anxiety (Abramson, 2006, p. 273). Instructors’

immediate criticism of students’ imperfect answers leads to the student’s

public degradation, humiliation, ridicule and even dehumanization (Kerr,

1999, p. 118). This cruel and psychologically-abusive process may wound

students for a very long time, even among the students who do not speak in

class because the possibility that they may be called on is intimidating. The

stress students tolerate during Socratic questioning is considered a side

effect of this method that can overshadow the entire learning process.

4.4.2. Creating unhealthy relationships in the classroom

At its worst, the Socratic method puts an unprepared student under

pitiless inspection and fosters an unhealthy adversarial relationship between

the instructor and the students. Moreover, students can be treated

disrespectfully by their peers. There are “students who roll their eyes at

answers they deem unacceptable, throw pencils down in disgust, and resort

to crude name-calling” (Gerrett, 1998, p.199). This kind of behavior is an

indication of competition that inevitably occurs in a Socratic classroom.

Students usually find ways to distinguish themselves from their equally

outstanding peers, and some will use strategies that offend other students,

rather than finding more constructive ways to stand out.

4.4.3. Failing to serve the psychological need of law students

Law schools usually attract people who have the passion for justice.

One of the most comprehensive reports of the American legal education,

the MacCrate Report, stated that the Socratic method emphasizes on

qualities that have little to do with justice, fairness and morality in daily

practice. Students easily have the impression that wit, sharp responses and

dazzling performance are more important than personal moral values that

lawyers are supposed to possess and promote. As a result, students are left

with the impression that law is nothing but a series of arguments and that

the ultimate result does not relate to the earlier belief of justice or fairness

(Moore, 2003, p. 507).

4.4.4. Having adverse impact on female law students

Feminist legal scholars have developed a related critique of the

method based on its adverse impact on female law students. According to

their arguments, Socratic classrooms are male-oriented, competitive

environments that are against women and their more cooperative and

communal styles of learning. Because women often feel intimidated and

alienated in “patriarchal and hierarchical Socratic classrooms,” women

often feel they do not have anything to contribute and their voices are

excluded from the debate. The dominant male voice in the classroom may

cause female students to under-perform on the examinations that later

determine their career prospects (Kerr, 1999, p. 121).

4.4.5. Giving students the impression of uncertainty

Law students are typically those who like certainty and being in

control over their environment. As the goal of the Socratic method is to

understand the conceptual framework of legal rules and doctrines, students’

task is to attempt to gain control of the course material while the professors’

job is to challenge students’ assertion. The Socratic method often gives

students the impression that the law is not as certain, predictable, and

ordered as they expect. Rather than presenting a set of clear, unchanging

rules that can be immediately applied to produce a just result, professors

demonstrate that rules contain ambiguities, courts disagree on the law, and

application of a particular rule can produce undesirable effects when facts

are changed. Confusion and anxiety are students’ common reactions to this

process (Moore, 2003, p. 508).

4.4.6. Being ineffective and inefficient in teaching lawyering

The Socratic method focuses merely on the abstract, and the skills of

case-based legal reasoning are often considered as being overly academic

and library-based. Nevertheless, the true work of a lawyer consists of

solving the real problems of real clients. It relies very little on the abstract

legal rules, principles, and theories explored in Socratic dialogue. It is also

criticized for its lack of efficiency because of the very limited material that

can be covered in a given period of time (Kerr, 1999, p.199).

4.4.7. Inducing boredom in students and laziness in professors

The argument that Socratic method induces boredom in students is a

new critique. According to Torrey (2004), one of the flaws of the Socratic

method is that “it is boring to try and follow someone else’s conversation

that seems to have no conclusion, just more questions” (as cited by Jackson,

2007, p.304). Dallimore (1998) argued that this boredom is more acute in

second- and third-year students because “the method provides no new

challenge after the initial learning period” (as cited by Jackson, 2007, p.

304).

On the other hand, there are critiques that the Socratic method

encourages professors to be lazy. Dallimore (1998) said that the picture

painted by this critique is one in which the professor is able to rely on the

same materials year after year, confident in the knowledge that if students

ask questions on topics not covered, he or she can avoid answering by

simply asking them back to the students as questions (as cited in Jackson,

2007, p.303).

4.5. Summary and conclusion

4.5.1. Summary

There are several variables of the Socratic, but at its core is the idea

that the professor spends class time by leading an inquisitive discussion.

Typically the professor calls on a student, asks him or her to brief the case

and paraphrase the court’s arguments, then asks whether the student agrees

with the arguments. The lecturer then tries to force the student to defend his

or her position by raising questions. The lecturer may also propose a

hypothetical situation. Finally professors use carefully worded questions to

allow students to come to legal principles on their own. The class might end

with or without a discussion of doctrinal foundations (legal rules).

Similar to the casebook method, since its first application in legal

education, the Socratic method has drawn a lot of criticisms. Arguments in

support of the Socratic method have it that the method is effective in

teaching students legal reasoning, analytical thinking and oral

communication, encouraging active learning and developing mental

toughness.

Meanwhile, arguments in opposition of the Socratic method consist of

creating anxiety in students and unhealthy relationships in the classroom,

failing to serve the psychological need of law students, having adverse

impact on female law students, giving students the impression of

uncertainty, being ineffective and inefficient in teaching lawyering, inducing

boredom in students and laziness in professors.

It can be seen that most of these “drawbacks” are not in the nature of

the method. Whether the Socratic method is efficient or not is a subjective

matter; and it lies more in the ways a particular professor uses the method.

4.5.2. Conclusion

To conclude, the harmonious combination of the casebook method –

the reading of the court decisions, and the Socratic method – the in-class

dialogue or question boosts each other’s strengths and fills in each other’s

limitations. Using the casebook method in conjunction with the Socratic

method enables the professor to develop students’ abilities of critical

analysis, legal reasoning and active learning.

Although critiques against the casebook and the Socratic methods

have never ceased, they are still the most commonly used pedagogy among

law schools in the U.S. Even the New York University School of Law,

currently recognized as one of the most innovative of the American law

schools, stated through its then Dean, Sexton (1999) that:

Despite profound changes in the legal profession, the dominant mode of teaching

continues to be the traditional casebook method, developed in the late 1880s by

Christopher Columbus Langdell…We did not propose that the traditional

casebook and Socratic methods be abandoned. To the contrary, we affirmed that

what traditional legal study aimed to do, did it excellently. (p. 43)

CHAPTER 5: IMPLICATIONS FOR VIETNAMESE HIGHER EDUCATION

5.5. Preparing students with practical skills to meet the demands of

the labour market

Section 1 of Article 39 of the Vietnam Education Law 2005 provides

that “The objectives of higher education are to educate learners in acquiring

political and moral qualities, endeavor to serve the people, professional

knowledge and practical skills relevant to the educational levels, and

physical health, meeting the needs of construction and defense of the

Fatherland.” However, in reality, Vietnamese higher education is nowhere

near these goals, and has not been able to meet the demands of the labor

market.

According to a survey by the Ministry of Education and Training,

only 20% of the Vietnamese graduates find a job relevant to their specialty

(as cited in Pham, 2008). They do not only lack professional knowledge but

also practical skills such as communication, negotiation, computer and

languages. In a study on Vietnam’s socioeconomic development carried out

by the Harvard University in 2008, the researchers pointed out that both the

foreign and domestic firms report that recent university graduates have

virtually no economically relevant skills (p. 22). As a result, almost all of the

new graduates need some form of training from their recruitment firms in a

period of half to one year. This places a huge burden on the firms who have

to consume much time, effort, expenditure and sometimes even business

opportunities of the employers. What Vietnamese higher education needs to

achieve is a future in which most of the university graduates can work in

their relevant jobs and meet the basic requirements of the jobs.

If we have a look again at the casebook and Socratic methods used in

American legal education, it is apparent that they both aim at preparing

students with practical skills for their future professions. Whether an

American law graduate becomes an arbitrator, a judge or a lawyer, he/she is

well-equipped with such practical skills as reading cases, legal reasoning or

oral communication vital for their careers. This perhaps results from one of

the most important American values of practicality. On the other hand,

Vietnamese law graduates are not equipped with sufficient “professional

knowledge, complimenting knowledge such as languages and IT, and

especially lawyering skills”, said Hoang (2009) – standing Deputy Minister

of Justice, President of the Hanoi Law University (as cited in Xuan, 2009).

These are often neglected in class; and students are supposed to acquire

them during their three-month internship or their conduct of the graduation

paper. This leaves the law graduates unprepared, lost and puzzled when they

step into the labour market.

Therefore, it is essential to balance between the professional

knowledge and the practical skills in Vietnamese university and college

courses. The fundamental theoretical knowledge and practical skills that the

Vietnamese graduates need must be critically identified and analyzed. Then,

research on the best methodologies to equip students with such knowledge

and skills ought to be carried out. In this process, with considerations for

Vietnamese specific conditions, it is possible for Vietnamese higher

education to learn from the other countries’ experience.

5.6. Increasing teachers-learners’ interaction

The traditional teaching method in Vietnamese higher education is

lecturing, in which lecturers typically delivers an organized, one-way

presentation. Interactions between a lecturer and his/her students are rare.

Lecturers do not regularly question students in class; and students are not

expected or encouraged to speak, ask questions or challenge their lecturers.

Discussions, if any, usually aim at providing a chance for students to raise

questions about unclear problems, and for professors to check students’

understanding.

This method breeds boredom in students, and fails to train students’

critical thinking and creativity. Many students express their disappointment

in the lecture method with very few seminars, workshops and students’

presentations, which is not much different from high school. In a research

conducted by Nguyen, nearly 55% of the students being asked stated that

they are not really interested in studying, over 82% prefer the teachers to

give questions and encourage students to raise questions, guiding students to

think insightfully, rather than to lecture the whole lesson (as cited in Mai,

2008).

In fact, teaching is one of the most essential forms of the

communication arts. It involves two people—teacher and student—

exchanging ideas, building knowledge, and influencing attitudes. Finding

ways of connecting with and responding to students is critical for good

teaching and learning. What is important for Vietnamese higher education

now is to create learner-centered classrooms in which students

enthusiastically interact with teachers and other students.

The Socratic method in American legal education provides a shining

example for a method that maximizes teacher-learners’ interactions in the

classroom. In fact, this method is appropriate for many fields of study, not

only legal education. It teaches students oral communication and analytical

thinking, and most importantly encourages active learning.

Nevertheless, Vietnamese university classes can be too large for the

Socratic method to work. In addition, if the method is applied immediately,

there is a high chance that Vietnamese undergraduates would find it

excessively stressful and disappointed in themselves. Last but not least, for

the teachers, the method requires much time and effort to prepare; and much

knowledge about interactive teaching methodologies that many teachers

lack. Consequently, certain steps such as lowering student – faculty ratio

and enhancing teachers’ pedagogical skills must be made before the method

can be applied successfully.

5.7. Developing learners’ self-study ability

Section 2 of Article 40 of the Vietnam Education Law (2005) states

clearly that: “Methods of college and university education must pay

attention to the advancement of self-consciousness in study, of ability for

self-study, self-taught, developing creative thinking, drilling of practical

skills, facilitating students in participating in research, experimentation and

application.”

However, in fact, the current Vietnamese university students still do

not possess enough self-study skills. In the aforementioned research on

students’ learning styles, over 40% of the surveyed students think they do

not have self-study ability; over 70% think they do not have self-research

ability. It is the teachers’ undemanding teaching methods that result in the

students’ passiveness in learning. If the teacher simply lectures everything in

the textbook, students have no motivation to prepare for class or to revise

them after class even if the teacher asks them to.

In recent years, Vietnam has applied the credit system in many

colleges and universities. In a credit system, students are generally expected

to spend another hour or two doing homework outside of class for each hour

in class. In other words, students under a credit system are required to have

strong self-study ability. Never before has the necessity to develop students’

self-study ability been so urgent.

Vietnamese higher education can learn from the American casebook

and Socratic methods which strengthen students’ self-study ability. The

possibility of being humiliated in class triggers American law students to

read the assigned cases as carefully as they can. A real-life court decision is

often so complicated that students have to spend hours reading to fully

comprehend. Moreover, as not all of the Socratic classes end with a

discussion of contemporary legal rules, students are left to figure out for

themselves. In this process, the students’ self-study skills are developed.

If the teaching method in Vietnamese higher education is more

interactive, and the teachers’ guidance for self-study is more effective,

Vietnamese students’ self-study skills will gradually develop. This prospect

coincides with Vietnamese students’ needs. In the above research, nearly

86% of the surveyed students want the teacher to set the requirements,

explain the learning methods, introduce the reference materials and the way

to exploit them. 79% wish to have more self-study lessons with teachers’

guidance and explanation for the unclear issues.

5.8. Summary and conclusion

From the analysis of the two teaching methods in American legal

education, some implications for Vietnamese higher education can be

realized.

First, it is necessary for Vietnamese higher education to prepare

students with practical skills to meet the demands of the labor market. In

order to achieve this goal, teaching methods in Vietnamese higher education

need to be innovated. For instance, while Vietnamese law graduates are

unprepared, lost and puzzled when they step in the labour market without

enough lawyering skills, the American law graduates are well equipped with

practical skills such as reading cases, legal reasoning or oral communication

mostly thanks to the casebook and Socratic methods used in American law

schools.

Secondly, teachers-learners’ interaction in Vietnamese higher

education should be increased. The traditional teaching method in

Vietnamese higher education is lecturing, in which lecturers typically

delivers an organized, one-way presentation. This method breeds boredom

in students, and fails to train students’ critical thinking and creativity. The

Socratic method, which maximizes teachers and learners’ interaction in the

classroom, can be applied in many fields of study, not only legal education.

It teaches students oral communication and analytical thinking, and most

importantly encourages active learning.

Last but not least, Vietnamese learners’ self-study ability needs to be

developed. Students, under the credit system which has been recently

introduced in Vietnam, are required to have strong self-study ability. Never

before has the necessity to develop students’ self-study ability been so

urgent. It is possible for Vietnamese higher education to learn from the

American casebook and Socratic methods which strengthen students’ self-

study ability. If the teaching method in Vietnamese higher education is more

interactive, and the teachers’ guidance for self-study more effective,

Vietnamese students’ self-study skills will gradually develop.

In order to make Vietnamese higher education meet the demands of

the labour market, to increase learners- teachers’ interactions, and to develop

students’ self-study ability, it is imperative to innovate the teaching

methodologies. This can be done most effectively by learning from the other

nations’ experience. However, it is impossible to mechanically apply the

methodologies of another nation directly into Vietnam. Vietnamese social,

economic and other features need to be taken into consideration before any

adoption and/or adaption is made.

For instance, although the casebook method prepares American law

students with essential skills, they might not be equally effective if applied

in the specific conditions of Vietnam. The principal source of Vietnam law

is statutory law; and court decisions are not considered a source of law.

Hence, the casebook method in Vietnam does not help students to learn the

law through a series of precedents or to understand the law-making process.

Moreover, the casebook method would hardly help Vietnamese students to

have an overall picture of the legal knowledge; it focuses too much on

understanding the case law while neglecting to train students the methods of

applying laws to similar cases. Therefore, certain changes must be made to

the American casebook method to fit into Vietnamese legal education. The

objective of the Vietnamese “casebook method” should be to illustrate how

the rules are interpreted and applied, not to discover the rules and doctrines.

Also, to prevent students from getting lost in the middle of nowhere, it is

necessary to teach the rules and principles (from a textbook, by the lecture

method) first, then the application (from a casebook, by the Socratic

method). Similarly, the Vietnamese Socratic method might change from

guiding students to analyze courts’ opinions to interpreting the law and

properly applying them to the given situation.

CHAPTER 6: CONCLUSION

6.1. Summary of the findings

In the colonial period, the legal profession and legal education were

considered unnecessary. It was not until 1784 that the first law school was

founded in Litchfield. Law schools at that time used the lecturing as their

predominant methods. In 1870, Christopher Columbus Langdell became the

first Dean of Law at Harvard and carried out a reform in which the casebook

and Socratic methods were introduced. Although the reform received

resistance from both students and colleagues at first, gradually the new legal

education culture took hold. Casebook and Socratic methods continue to

remain to be the predominant teaching methods of American legal education

until the present time.

Although the casebook method has been constantly criticized for

encouraging students to view law in an incomplete conception, neglecting

the fact finding and the legal process, failing to teach lawyering skills and

breeding boredom in students, its importance in American legal education

has yet to be shaken. The apparent advantages of using the casebook

method, on the other hand, include increasing students’ interest in learning

law, teaching students how to read cases and to think like a lawyer, enabling

them to learn the law through a series of precedents, enabling them to

understand the law-making process, promoting moral imagination and

developing students’ self-study skills.

As for the Socratic method, critiques against it consists of creating

anxiety in students, creating unhealthy relationships in the classroom, failing

to serve the psychological need of law students, having adverse impact on

female law students, giving students the impression of uncertainty, being

ineffective and inefficient in teaching lawyering and inducing boredom in

students and laziness in professors. However, the unchanged use of this

method in American legal education has proved its unarguable effectiveness

in teaching students legal reasoning, analytical thinking and oral

communication, encouraging active learning and developing mental

toughness. Despite the ongoing battle concerning the casebook and the

Socratic methods in the legal academia, they are still the most commonly

used pedagogy among law schools in the U.S.

From the analysis of the two teaching methods in American legal

education, some implications for Vietnamese higher education can be

realized. First, it is necessary for Vietnamese higher education to prepare

students with practical skills to meet the demands of the labor market.

Secondly, teachers and learners’ interaction in Vietnamese higher education

should be increased. Last but not least, Vietnamese learners’ self-study

ability needs to be developed. These can be done by learning the appropriate

teaching methods from more advanced countries. However, Vietnamese

social, economic and other related features need to be taken into

consideration before any adoption and/or adaption is made.

6.2. Limitations of the research

Firstly, the researcher lacks the first-hand experience as a law lecturer,

which is necessary to conduct this research. Consequently, many points in

the research are presented from the viewpoint of a law student rather than a

lecturer.

Secondly, as the researcher does not have sufficient conditions to

examine the information by the questionnaire, interview or observation

methods, she has to opt for secondary research as the methodology.

Thirdly, because of the lack of access to reliable materials, most of the

information in the research is taken from online journals, not books or

dissertations. The data is often too general; some is even incomplete or not

updated.

Due to the time constraint and the limited knowledge of the

researcher, the two teaching methods are analyzed separately from the

remaining components of the American legal education, which leads to an

incomplete view of the overall picture.

6.3. Suggestions for further researches

Firstly, based on the fundamental framework the two methods

presented in this research, law professors can apply the methods in a small

group of students and carry out research on the effectiveness of these

methods to see if they can be applied on a large scale.

Secondly, researchers with sufficient conditions can carry out

questionnaires, interviews or observation to verify the information provided

in this paper.

Thirdly, researches on other aspects of American legal education such

as its aims and contents, on other teaching methods such as problem method

or clinical legal education (See Appendix 4) would give a more complete

picture of the American legal education.

Fourthly, the similarities and differences between top American law

schools such as Harvard or Yale is also an appealing and worth-researching

topic.

Lastly, it is also possible for English-Economics students to do a

research on how the casebook and Socratic methods have been adapted in

business schools.

REFERENCES

Abramson, K. (2006). Art for a better life: A new image of American legal

education [Electronic version]. Brigham Young University Education

and Law Journal, 2006(1), 227-293.

Am, D. B. (2006). In Adams, M., AM, D. B. & McGolrick, S. (Ed.) The

American case method and its influence on modern legal education.

Paper presented at the 61st Annual Australian Law Teacher

Association Conference, Sydney: ALTA Secretariat. Retrieved

February 11, 2011 from

http://www.austlii.edu.au/au/journals/ALRS/2006/4.html

American Bar Association. (2008). Lawyer Demographics. Retrieved

October 1, 2010 from

http://www.americanbar.org/content/dam/aba/migrated/marketresearc

h/PublicDocuments/Lawyer_Demographics.pdf-2011-03-14.

Austin, A. D. (1965). Is the casebook method obsolete? [Electronic version].

William and Mary Law Review, 6(2), 164.

Bernstine, D. O. (2007). Legal education in the United States and the

importance of critical thinking. Paper presented at IALS Conference

on Learning from Each Other: Enriching the Law School Curriculum

in an Interrelated World. (269-271). Retrieved November 10th, 2010

from http://www.ialsnet.org/meetings/enriching/papers.html

Burnham, W. (2002). Introduction to the law and legal system of the United

States (3rd ed.). St. Paul, MN: West Group.

Consalus, C. E. (1978). Legal education during the colonial period, 1663-

1776 [Electronic version]. Journal of Legal Education, 29, 30-37.

Dow, S. B. (2004). There’s madness in the method: A commentary on law,

statistics, and the nature of legal education. [Electronic version].

Oklahoma Law Review, 57, 579-599.

Free Legal Encyclopedia (n.d.). Case method - Further readings. Retrieved

November 22, 2010 from http://law.jrank.org/pages/5049/Case-

Method.html.

Friedman, L. M. (1973). A history of American law. New York: Touchstone.

Retrieved November 20, 2010 from

http://www.google.com/books?hl=vi&lr=&id=JndnEiydTiYC&oi=fn

d&pg=PR9&dq=Friedman,+L.+M.+%281973%29.+A+history+of+A

merican+law.&ots=gvSSrOQm-

d&sig=hgzosY4NWSTOTwXFHl7gTrPvTO4#v=onepage&q&f=fals

e.

Garner, D. D. (2000). The continuing vitality of the case method in the

twenty-first century [Electronic version]. Brigham Young University

Education and Law Journal, 2000, 327,337.

Gerrett, E. (1998). The role of the Socratic method in modern law schools

[Electronic version]. Green bag, 1, 199.

Gordon, R. W. (1995). The case for (and against) Harvard [Electronic

version]. Mitchell Law Review, 1231, 93.

Gordon, R. W. (2002). Legal education in the U.S.: Origin and development

[Electronic version]. Electronic Journals of the U.S Department of

State, 7(2), 9.

Grossman, C. (2002). Building the world community: Challenges to legal

education and the Washington college of law experience [Electronic

version]. American University International Law Review, 17, 815-

820.

Harvard Law School Association. (1918). Centennial history of Harvard law

school, 1817-1917. Boston: Faculty of the Harvard Law School.

Retrieved November 11, 2010 from

http://www.archive.org/stream/cu31924018020523/cu3192401802052

3_djvu.txt.

Harvard Vietnam Program. (2008). Choosing success: the lessons of East

and Southest Asia and Vietnam’s future. Massachusetts: Perkins, D.,

Nguyen, X. T., Vu, T. T. A, Huynh, T. D, Pincus, J., & Saich, T.

Retrieved March 4, 2011 from

http://www.innovations.harvard.edu/download-doc.html?id=98251

Hoang, T. L. (2009). The issue of educating legal human resource: teacher

and student in company. Retrieved 5th March, 2011 from

http://thongtinphapluatdansu.wordpress.com/ 2009/ 11/22/4072-2/

Huong, G. (2009). The lawyer career in Vietnam: Development for the

future. Retrieved October 6, 2010 from

http://vbqppl.moj.gov.vn/ct/tintuc/Lists/ThongTinKhac/View_Detail.a

spx?ItemID=3896

Jackson, J. D. (2007). Socrates and Langdell in legal writing: Is the Socratic

method a proper tool for legal writing courses? [Electronic version].

California Western Law Review, 43(2), 267-307.

Jones, M. L. (2006). Fundamentals dimensions of law and legal education:

An historical framework – A history of U.S. legal education phase I:

From the founding of the Republic until the 1860s [Electronic

version]. John Marshall Law Review, 39, 1041-1203.

Kerper, J. (1998). Creative problem solving vs. the case method: A

marvelous adventure in which Winne-the-Pooh meets Mrs. Palsgraf

[Electronic version]. Carlifornia Western Law Review, 34, 353.

Kerr, O. S. (1999). The decline of the Socratic method at Harvard

[Electronic version]. Nebraska Law Review, 17, 118-121,199.

Kronman, A. T (1993). The lost lawyer: Failing ideals of the legal

profession. Cambridge, MA: Belknap Press of Harvard University

Press. Retrieved November 11, 2010 from

http://www.google.com/books?hl=vi&lr=&id=pLz-

nNWw6ssC&oi=fnd&pg=PA5&dq=Kronman,+A.+T+%281993%29.

+The+most+lawyer:+Failing+ideals+of+the+legal+profession.&ots=

wTkEzrDzIW&sig=efAWy_e14NpxWp6iA9OLrL3isu0#v=onepage

&q&f=false.

Le, T. C (2005). The current situation of training law undergraduates in

Vietnam [Electronic version], Journal of Legal Science, 4, 20-22.

Le, T. C. (2005). Building the teachers staff at law training institutes

[Electronic version]. Journal of Legal Science, 5, 11-13.

Mai, M. (2008). Over 50% of the students are not interested in learning.

Retrieved April 25, 2011 from http://dantri.com.vn/c25/s25-

252276/hon-50-sinh-vien-khong-hung-thu-hoc-tap.htm

Marshall, D. G. (2005). Socratic method and the irreducible core of legal

education [Electronic version]. Minnesota Law Review, 90, 9.

Maxeiner, J. R (2007). Educating lawyers now and then: Two Carnegie

critiques of the common law and the case method [Electronic

version]. International Journal of Legal Information, 35, 31.

Maxeiner, J. R. (2003), American Law Schools as a Model for Japanese

Legal Education? [Electronic version]. Kansai University Review of

Law and Politics, 24, 37-51.

McKirdy, C. R. (1976). The lawyer as apprentice: Legal education in

eighteenth century Massachusetts [Electronic version]. Journal of

Legal Education, 28, 124-130.

Moline, B. J. (2004). Early American legal education [Electronic version],

Washburn Law Journal, 42, 775-802.

Moore, A. (2003). Conversion of the Socratic method in legal education:

Some advice for prospective law students [Electronic version].

University of Detroit Mercy Law Review, 80, 507 .

Patterson, D. (1995). Langdell’s legacy [Electronic version]. Northwestern

University Law Review, 90, 196-203.

Patterson, E. (1951). The case method in American legal education: Its

origins and objectives [Electronic version]. Journal of Legal

Education, 4(1), 35.

Pham, T. H. (2008). Vietnamese higher education: From the labour market

persepective. Retrieved April 25, 2001 from

www.vdf.org.vn/Doc/2008/VDFConf_WIPHuyenVie.pdf

Pham, V. V. (1996). Introduction to education. Hanoi: Vietnam National

University Hanoi.

Powel, B. V. (1995). A defense of the Socratic method: An interview with

Martin B. Louis (1034-94) [Electronic version]. North Carolina Law

Review, 73, 957.

Redlich, (1914). The common law and the case method in American

university law schools: a report to the Carnegie Foundation for the

Advancement of Teaching (1914). New York: New York. Retrieved

November 11, 2010 from

http://www.archive.org/stream/cu31924076568272/cu3192407656827

2_djvu.txt

Rowe, S. E. (2000). The brick: Teaching legal analysis through the case

method [Electronic version]. Perspectives: Teaching Legal Research

and Writing, 7, 21-22.

Schneider, C. E. (2001). On American Legal Education [Electronic version].

Asian – Pacific Law and Policy Journal, 2(2), 80.

Sonsteng, J., Ward, D., Bruce, C., & Petersen, M. (2007). Legal education

Renaissance: A practical approach for the twenty-first century

[Electronic version]. William Mitchell Law Review, 34(1), 321 – 330.

Stuckey, R. (2007). Best practices for legal education: A vision and a road

map. New York: Clinical Legal Education Association. Retrieved

November 10, 2010 from

http://www.law.sc.edu/faculty/stuckey/best_practices/best_practices-

full.pdf

Sullivan, W. M., Colby, A., Wegner, J.W, Bond, L, & Shulman, L. S.

(2007). Educating lawyers: Preparation for the profession of law 6.

San Francisco: Jossey-Bass. Retrieved November 10, 2010 from

http://www.ntlf.com/html/lib/lawyers.pdf.

To, V. H (2010). Legal case and the case method in teaching law. Retrieved

March 3, 2011 from

http://luattaichinh.wordpress.com/2010/01/25/tnh-

hu%E1%BB%91ng-php-lu%E1%BA%ADt-v-

ph%C6%B0%C6%A1ng-php-s%E1%BB%AD-d%E1%BB%A5ng-

tnh-hu%E1%BB%91ng-trong-gi%E1%BA%A3ng-d%E1%BA%A1y-

lu%E1%BA%ADt-h%E1%BB%8Dc/.

Warren, C. (1911). A history of the American Bar. New York: Cosimo.

Retrieved October 15, 2010 from

http://www.archive.org/stream/cu31924060126996/cu3192406012699

6_djvu.txt.

Weaver, R. L. (1991). Langdell’s legacy: Living with the case method

[Electronic version]. Villanova Law Review, 36. 548- 570.

Xuan, H. (2009). The issue of educating law labour force: teachers and

learners’ cooperation. Retrieved April 25, 2011 from

http://moj.gov.vn/ct/tintuc/Lists/ThongTinKhac/View_Detail.aspx?Ite

mID=4142

APPENDICES

APPENDIX 1

CASEBOOK METHOD EXAMPLE

Arcane v. People

825 Fic. 3d 777 [ Fictitious case citation]

Monk, Associate Justice

The sole issue on this appeal is whether the evidence at trial was sufficient to

support appellant Maud Arcane’s conviction for possession or control of a

narcotic drug or controlled substance (marijuana) within F.R.S. § 18-2-104.

We find insufficient evidence upon which the trier of fact could determine

beyond a reasonable doubt that appellant was guilty of the charged offense,

and we therefore reverse.

Viewing the evidence at trial in the light most favorable to the People, the

facts in this case are as follows:

Appellant was arrested at the Blue Spruce Motel in Dusty Cow Town and

charged with violating the narcotics statute. Appellant was traveling through

D.C. T. and decided to stop and call some friends she knew. Her two friends

came to the Blue Spruce Motel, where appellant had rented a room.

Appellant fell asleep while her two friends, watched television. They also

amused themselves by smoking an amount of marijuana with a few beers

that they had brought with them.

After having seen appellant’s friends walking across the parking lot several

times to a car, from the car, and back to the room, the motel manager called

the local police. Early in the morning, the police entered appellant’s room,

where they found four marijuana cigarettes, eight marijuana cigarette butts,

and a water pipe. The police searched the car driven by Appellant’s friend

and found three plastic bags of what apparently was marijuana. The police

arrested the three women and charged each under the above referenced

statute. Appellant contended that she did not violate the law, although she

admitted knowing that her friends brought marijuana into the motel room.

Appellant was convicted by a jury and she appealed.

The critical portion of the statute, Section 18-22-104, provides:

“[A]ny person who shall knowingly possess or have under his or her control

any narcotic drug, shall be guilty of a felony.

a) the term narcotic drug for purposes of this section includes.marijuana..

b) the term possess for the purposes of this section means to hold physically

or to carry on one’s person..

c) the term control means the ability to exercise dominion over a narcotic

drug..”

There is no evidence in this case that suggests that appellant knowingly

possessed narcotic drugs. Accordingly, this conviction may be affirmed only

if there is sufficient evidence that appellant knowingly had narcotic drugs

under her control. In Nasdy v. Fremen, in a similar factual circumstance, this

court had occasion to interpret the legislature’s definition of control as “the

ability to exercise dominion.” In Fremen we stated that the exercise of

dominion meant that one had “the power to move, locate, dispose or use the

narcotic drug or designate its disposition, movement, location or usage,” 725

Fic.2d 1297, 1300 (1979).

It is not a crime under the language of the statute to be in control of a room

where marijuana is found. In this case, there was no evidence that appellant

ever transported the marijuana into the room, handled it, used it, or directed

others to transport, handle, or use it. Nor is there any evidence that appellant,

because she rented the room had any special power over the disposition,

location or usage of the marijuana. It is, therefore, not reasonable to infer

from the appellant’s control of the room that she rather than one of the other

people in the room, was in “control” of the marijuana in the room.

The legislature made control of the marijuana a crime. It is not a crime for

one in control of a motel room to invite guests possessing marijuana into a

room or fail to evict guests who smoke marijuana. The legislature has not

yet made a citizen responsible for the indulgence of others in his presence.

Accordingly, the judgment of conviction in this case is reversed. The matter

is remanded to the trial court for proceedings consistent with this decision.

Retrieved December 20th, 2010 from http://law.du.edu/index.php/law-school-

learning-aids/the-classroom-experience/examples/arcane-v-people-example

APPENDIX 2

SOCRATIC METHOD EXAMPLE

Prof: Let us apply the concepts that we learned about a completed criminal

act. We know first that there must be a voluntary act and we have defined

the nature of the act both with respect to common-law cases and the Model

Penal Code.

Ms. Smith, please brief for us the case of Arcane v. People. What happened

in the lower court?

Ms. Smith: The Defendant was convicted of possession of marijuana in the

lower court after a jury trial.

[NOTE: The Professor’s point in asking this question was most likely to

emphasize the need to understand the procedural posture and background of

the case. This is an important case-reading skill.]

Prof: What were the arguments of the parties on appeal?

Ms. Smith: The state apparently argued that, by renting the room in which

the marijuana was present, she possessed the marijuana. The defendant

argued that merely renting a room in which marijuana was present did not

constitute possession under the statute.

[NOTE: The case does not set forth the parties’ arguments. The professor

expected the student to deduce the arguments that each party probably made

from the context of the court’s discussion. Understanding the arguments

made by each party is essential in the Case Method .]

Prof: What is the voluntary act — the actus reus that is claimed as a

criminal act in this case?

Ms. Smith: Knowing and voluntary possession or control.

[What DOES the professor want from Ms. Smith here? The professor is

testing Ms. Smith’s knowledge of the terminology of the law. Knowing and

voluntary possession or control of a controlled substance is generally

considered a voluntary criminal act.]

Prof: How does this “act” differ from the criminal acts we have seen in the

earlier cases?

[NOTE: Here the professor wants Ms. Smith to examine factual behavior

and compare it to a legal definition. The idea is to reinforce knowledge,

which is necessary for comprehension .]

Ms. Smith: An act for the purpose of criminal law definitions is usually a

voluntarily bodily movement, whereas possession or control is passive, a

circumstance rather than an activity.

Prof: What is the issue in the case?

[Based on your case brief the professor wants an answer something like

this:]

Ms. Smith: The issue is whether an individual may be convicted of

possession and control of a controlled substance or narcotic when she, while

controlling the room where it is located, has no special ability to use or

handle or direct others to use or handle or dispose of the substance as

distinct from anyone else in the room.

Prof: What did the court hold?

[NOTE: The holding is generally an answer to the issue(s) posed. For

example:]

Ms. Smith: No. An individual may not be convicted of possession and

control of a controlled substance in the absence of evidence that she, in

addition to controlling the room in which the substance was located,

possessed (definition of possession) or controlled the substance by

exercising dominion over it through transporting, handling or using it or

having the power to transport , handle, use or dispose of it.

Prof: Thus the law concerning a particular element or factor of this legal

test, for example, whether the defendant had any narcotic drug “under his or

her control” often can be understood only when one considers a number of

rules read together. The synthesis of a statute and several cases in which the

courts have applied the words of the statute to a particular set of facts may

generate a rule of law. In the situation in Arcane neither the statute, nor the

earlier Fremen case provides a straightforward definition of “knowingly

under his or her control.”

Now, let’s try to take this concept a step further. Would a delivery person or

a professional courier, or a postal employee, who delivered a package

containing marijuana, be within the scope of the statute?

[NOTE: The professor here wants you to apply the rule you have derived to

other situations. Analysis and application of the rule.]

Ms. Smith: Each of these persons will have simple possession e.g. physical

possession (in their hands, in their delivery pouch, etc and some dominion

and control), but they are unaware of the nature of the contents (no knowing

possession) and are controlled by the directions for the delivery or the

specifics of their jobs that limit their exercise of dominion i.e. power to use,

locate, dispose or designate usage. Thus, this type of unknowing possession

and restricted control is beyond the reach of the statutory language and

policy.

Prof: Do you think it was the legislature’s purpose to attempt to control this

type of possession? Why or why not?

[Here the professor wants you to again recall the “mens rea” provision of the

statute” — knowingly” — to emphasize the general goal of criminal

sanctions: to punish harmful acts done with “evil intent.” The point is again

to reinforce knowledge and comprehension of these concepts. The professor

also seeks to have you look more broadly at the policy reasons underlying

the law, and how those reasons influence the application of the rule to

different facts.]

Ms. Smith: The legislature’s purpose was most likely to attempt to deter

certain conduct, specifically the use and trafficking in narcotics. This is the

point behind the mens rea requirement. Thus, in situations like this, where

there is little chance of deterrence, the legislature’s purpose would not be

satisfied.

Prof: To whom does this rule apply?

[NOTE: Here the professor wants to see if you understand the scope of an

appellate decision in an individual case for the purpose of precedent in

future cases. Knowledge of basic concepts.]

Ms. Smith: To this defendant and others accused in the future whose factual

and relational circumstances cannot be reasonably distinguished or

contrasted from this situation.

Prof: We can see that legal rules are not applied abstractly to a group of

nameless, faceless persons, but rather to specific people in factual

circumstances and within the context of the goals or policies that the rule is

intended to serve in the those circumstances.

What are the objectives that the Court infers that are not within the policies

and goals of this statute?

[Here the professor wants again for you to read the case carefully to explore

the scope of the statute and the rule that has evolved from the synthesis of

the statutory language and the two interpretive cases. Reinforcing analysis .]

Ms. Smith: The court seems to be particularly concerned that freedom of

association not be infringed upon saying that the legislature has not seen fit

to require a citizen to control others who may be engaging in criminal

activity.

[NOTE: Think back to the concept of synthesis stated earlier and then think

about how the language of the statute here might be augmented to construct

a new rule that reflects both the statute itself, its discussion of possession

and the clarified meaning of control provided by the Supreme Court and the

earlier Appellate Court decision.]

Prof: What rule would emerge from the synthesis of this statute, this case

and the earlier case?

[NOTE: Here the professor as she stated wants you to state in your own

words the developed rule. Comprehension, analysis, synthesis.]

Ms. Smith: The synthesis of this statute and this case provides a rule

something like this:

One can be convicted under the narcotic statute where 1) she possesses

marijuana; that is, holds it physically or to carries on one’s person, or 2)

controls the marijuana— exercises dominion by means of (the Court’s

interpretation in Fremen and Arcane), transporting the marijuana into the

room, handling it, using it, directing others to transport, handle or use it or to

designate its usage, movement, location, or disposition.

Prof: Why is it insufficient to show control that the defendant rented the

room?

[NOTE: Here the professor wants to reinforce a careful reading of the case

and statute and to demonstrate your understanding of the limits of the rule.

Reinforcing analysis.]

Ms. Smith: Control of the room did not necessarily imply control over the

substance because there was no evidence that the defendant could exercise

dominion over it by using it, handling it, transporting it, disposing of it, or

directing others to do any of those things.

Prof: Why is it insufficient to show “control” that the defendant knowingly

invited the people into the room who possessed marijuana and smoked it?

Ms. Smith: For the same reasons. There was no showing that the defendant

could control or had an obligation to control the behavior of the other people

in the room.

[Ms. Smith gets an A+ for participation today. She demonstrated not only

amazing knowledge and comprehension, but an ability to analyze, synthesize

and apply the rule to new factual situations as well; through evaluation, she

understood the essential attributes of the rule, including its policy, and how

those attributes — and thus the rule — would differ under a new fact

scenario.]

Prof: Accordingly, “control” has a more definite meaning that suggests

transporting, handling, using, or directing others to do so, in addition to the

language of the statute in which control is not precisely defined. In this way

do you begin to understand the variety of broad or narrow rules that may

emerge from a statute and its specific interpretation by the Courts?

Thus the final state of the legal rule is a synthesis of both the language of the

statute and the interpretation of that statute through cases involving real

people involved in a specific factual circumstance.

Retrieved December 20th, 2010 from http://law.du.edu/index.php/law-school-

learning-aids/the-classroom-experience/examples/socratic-method-example.

APPENDIX 3

SIX TYPES OF SOCRATIC QUESTIONS

The taxonomy of Socratic questions was created by Richard Paul. While it is

not a hierarchy in the traditional sense and the categories build upon each

other, simplifying, we can distinguish the following six types of Socratic

questions:

1. Probing underling concepts

2. Probing Assumptions

3. Probing evidence

4. Probe implications and consequences

5. Questioning underling position

6. Questions about the question

They probe six distinct but interconnected areas: concepts, assumptions,

evidence, implications/consequences, underling position and the question

itself.

Probing underling concepts

Get them to think more about what exactly they are asking or thinking about.

Prove the concepts behind their argument. Basic 'tell me more' questions that

get them to go deeper.

Here are some useful examples:

• Why are you saying that?

• What exactly does this mean?

• What do we already know about this?

• Can you give me an example?

• Are you saying ... or ... ?

Probing assumptions

Probing of assumptions makes them think about the presuppositions and

unquestioned beliefs on which they are founding their argument. Dig into

that reasoning rather than assuming it is a given. People often use un-

thought-through or weakly understood supports for their arguments.

Here are some useful examples:

• What else could we assume?

• You seem to be assuming ... ?

• How did you choose those assumptions?

• Please explain why/how ... ?

• How can you verify or disprove that assumption?

• What would happen if ... ?

• Do you agree or disagree with ... ?

Probing the evidence

When they desribe the evidence behind the arguments, prove if those are fact

are fiction. Facts are stubborn things. People often use weak, refutable

evidence to support for their arguments.

Here are some useful examples:

• Why is that happening?

• How do you know this?

• Show me ... ?

• Can you give me an example of that?

• What do you think causes ... ?

• What is the nature of this?

• Are these reasons good enough?

• How can I be sure of what you are saying?

• Why is ... happening?

• What evidence is there to support what you are saying?

• On what authority are you basing your argument?

Questioning underling position

If arguments are given from a particular position you can try not attack the

arguments directly but attack the underling foundation -- the position on

which they are explicitly or implicitly based. It is important that there might

be other, equally valid, viewpoints.

Here are some useful examples:

• Does this approach is reasonable, justifiable?

• What alternative ways of looking at this are there?

• Why it is ... necessary?

• Who benefits from this?

• Why is it better than ...?

• What are the strengths and weaknesses of...?

• What are similarities between ... and ... ?

• What are differences between ... and ... ?

• How could you look another way at this?

Probe implications and consequences

The argument that they give may have logical implications/consequences

that can be predicted. Do these make sense? Are they desirable?. Here are

some useful examples:

• Then what would happen?

• What are the consequences of that assumption?

• How could ... be used to ... ?

• What are the implications of ... ?

• How does ... fit with what we learned before?

• Why is ... important?

• Why this approach is considered to be the best ... ?

Questions about the question

Sometimes it is useful to become reflexive about the whole thing, turning the

question in on itself.

Here are some useful examples:

• What was the point of asking that question?

• Why do you think I asked this question?

• What does that mean?

Retrieved March 1st, 2011 from

http://www.engin.umich.edu/~cre/probsolv/strategy/cthinking.htm

APPENDIX 4

LEGAL TEACHING METHODS

Legal training involves the learning of principles through discussion and of

skills by practice. The student must be, by definition, an active participant in

that process.

Socratic or Inductive Teaching

The "case method" is the basic tool of traditional American legal education.

This method involves the study and discussion of litigated cases.

The teacher calls upon the student to respond in a stimulating question-and-

answer dialogue, frequently involving several class members and often

including more questions than answers. The learning experience occurs not

only in the interchange between teacher and student, but also among the

students themselves. The perceptive student will soon learn that a key to the

realization of maximum benefit from these interchanges is the ability to

listen with discrimination.

This process, applied skillfully by expert teachers and by students possessing

a sense of awareness and curiosity, hones the minds of students, develops

their respect for facts, and creates a sensitivity to essential differences

among issues, policies, reasons, and arguments.

Intensive and consistent daily preparation is necessary for students to

participate effectively in this process.

Problem Solving

In a portion of the first-year course, and in later courses, students are given

practical legal problems. These problems may involve the drafting of legal

documents or the formulation of a course of action for a hypothetical client.

Seminars

By the time students reach their third year, and sometimes earlier, they will

be prepared to engage in significant legal research in selected areas of

specialization. A primary source for such experience will be seminars taught

informally in small groups by professors who are experts in the selected

subjects. Frequently, a student will be expected to defend a seminar paper

before classmates under circumstances that provide lively and constructive

discussion. Each student is required to complete an upper-level research and

writing project. Seminar papers may be used to satisfy this requirement.

Clinical Experience

Of increasing importance in legal education is the role of practical, on-the-

job training involving the legal problems of actual clients. Legal Clinic

courses provide valuable client counseling experience, as well as

participation in actual trials and appeals under the supervision of a member

of the faculty and a licensed attorney.

Individual Research

During the second and third years, students will be permitted to engage in

research and writing projects for credit under the supervision of, and in

consultation with, a selected faculty member, in an area of particular interest

to the student. Research papers may be used to satisfy the upper-level

research and writing requirement.

Retrieved February 13th, 2011 from

http://catalogofstudies.uark.edu/1997/08/04.html.