Best of Wolters Kluwer Law School Tips: Week 2

The Mysterious Socratic Method

Week 2: The Mysterious Socratic Method

Using the Socratic method, the professor asks sustained and increasingly penetrating questions of students rather than lecturing on the cases that the students have read. In its paradigmatic form, the Socratic method involves calling on a student without warning. The student is usually first asked to “state” (or “recite”) the case—to describe as succinctly and precisely as possible  the facts of the dispute, the issue addressed by the court’s decision, and the resolution of this issue.

The professor then asks a series of follow-up questions, each building on the student’s answer to the prior question. “Why?” is the most common question. The professor will eventually focus on the bases for the court’s decision, and slowly and carefully try to unpack the court’s reasoning by revealing its assumptions and implications. The court is unlikely to have answered most of these questions—at least not explicitly. To answer them, then, you will have to read the court’s opinion actively and critically.

The pattern of questioning also might vary. Here are some examples of the questions a professor might ask in a class discussing a Landlord v. Tenant case:
• What is the issue? (A: Must the tenant pay the rent?)
• What is the holding? (A: The tenant need not pay the rent because the landlord did not try to find a replacement tenant.)
• What is the legal rule or principle? (A: A landlord must try to mitigate damages by finding a replacement tenant.)
• Does the legal rule extend to other types of parties or contracts? For example, what should happen if a parts supplier breaches a sales contract with a manufacturer by failing to supply parts needed in the production of the manufacturer’s goods? (A: Maybe the manufacturer should have to try to find the parts elsewhere before suing for breach. It depends on how broadly the principle reaches—which is likely to be the next questions, regardless of how you answer this one!)
• How is the judicial case different from the statute? (A: One important difference is that the statute applies only to landlords and thus does not apply to other types of parties like the manufacturer in our example above. By contrast, the legal principle expressed in the court’s opinion may be relevant in other contract disputes including the hypothetical dispute between the parts supplier and the manufacturer.)
• Why should a landlord (or other non-breaching party) have to take steps to mitigate—does such a rule let the breaching party off too easy? (A: It depends on what the law governing breach of contract should be trying to accomplish—again, a natural follow-up question.)

Some professors might start with the first of these questions, or with even more basic questions; others might jump directly to later questions. All of these questions—from the simplest to the most sophisticated—require you to think—to actively engaged with ideas—at two different points in time. First, you should come to class with having thought about the reading and having tried to anticipate the professor’s questions. But you will also have to think in class before answering a question. You should not assume that the answer to a question is somewhere in the casebook or in your notes. A Socratic class is not about regurgitating what you have read or learned; it is to help you “think like a lawyer.” The professor’s job is to direct and channel your thinking.

Extracted from: What Every Law Student Really Needs to Know: An Introduction to the Study of Law, by Tracey E. George and Suzanna Sherry.

Coming next week: Talking in Class

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