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Please stop hitting me, Professor Kagan

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As Glenn Greenwald points out, skepticism about the Kagan appointment issuing from anyone left of Miguel Estrada (who by the way thinks Kagan is a terrific pick) has been met with the sort of response engendered by essentially tribal loyalties. “Our” team’s captain has made his decision, and now it’s time for everybody to get dutifully on message. All this is natural and predictable; what I find more interesting is the extent to which the tribalism of legal academia is playing a role in the support for Kagan. It’s hardly surprising that Kagan’s friends and colleagues from Harvard and Chicago are leading the charge in her behalf. What’s more notable is the number of conservative legal academics, including Stephen Bainbridge, Eugene Volokh, Charles Fried, and Glenn Reynolds, who are either enthusiastically supportive or at least not opposed to Obama’s pick.

Update: Ken Starr thinks she’s a great pick as well.

One particularly striking feature of the Kagan nomination is the extent to which it threatens to throw an unflattering light on various aspects of legal academia. It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published, especially given that nothing she’s ever published was subjected to a genuine peer review process prior to publication. (Her articles in the Chicago and Harvard law reviews were chosen by Chicago and Harvard law school students, some of them who were in her classes at the time. Her two pieces in the Supreme Court Review were chosen by members of her own current faculty in the first instance, and her former faculty colleagues in the second). This, of course, is not primarily a criticism of Kagan herself, but of the system which has produced her — a system which among other things rewards puerile obsessions with structurally phony citation counts as a substitute for actually reading and evaluating what somebody has written.

Yet the advice to hate the game not the player rings hollow when the time comes to decide whether a particular player should be promoted to a different league altogether. Speaking of that game, consider this vignette about Kagan’s teaching:

As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.

Here’s the thing about the Socratic method: it freaking blows when people are not prepared. Sure, it’s horribly embarrassing for the person who is stumbling through, trying to answer questions based on cases he or she hasn’t read. But it really just slows the whole class down. Yes, 5% of us didn’t read International Shoe, but 95% of us did; can you focus on the ones who did their homework?

I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading. Hell, we were just going to spend half of class rehashing what people already read the night before. In my 1L mind, I was being efficient.

So it came that one Friday morning I was cold-called. I wasn’t even in the ballpark of being prepared. But I didn’t want to waste everybody’s time. So I responded: “Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Bzzt. Wrong answer:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Given that we know so little of substance about Kagan, I suggest this little incident has some evidentiary value. It’s not Kagan’s fault, after all, that the standard publication and evaluation process for legal academics is a bad joke (although of course she can be criticized for the actual content, or the absence of content, of the texts she generated while taking part in that process). But, as even the cowed and terrified Mr. Mystal recognized, not too many law professors today indulge — or at least not to anything like this extent — in the combination of authoritarian browbeating and pedagogical infantilization that are the hallmarks of the classic “Socratic” (sic) method.

That method was (is) a horribly ineffective way to transmit substantive knowledge. If educational theorists agree on one thing it’s that pedagogical terrorism doesn’t work — assuming the point of the exercise is for people to actually learn what you’re claiming to teach them. But of course as critics have been pointing out for many decades now, that was never the real point. Here is a small piece of Duncan Kennedy’s more than 30-year-old critique of the classic method:

The classroom is hierarchical with a vengeance, the teacher
receiving a degree of deference and arousing fears that remind one of high school
rather than college. The sense of autonomy one has in a lecture, with the rule that
you must let teacher drone on without interruption balanced by the rule that
teacher can’t do anything to you, is gone. In its place is a demand for
pseudoparticipation in which one struggles desperately, in front of a large
audience, to read a mind determined to elude you. It is almost never anything as
bad as The Paper Chase or One-L, but it is still humiliating to be frightened and
unsure of oneself, especially when what renders one unsure is a classroom
arrangement that suggests at once the patriarchal family and a Kafkalike riddle
state. The law school classroom at the beginning of the first year is culturally reactionary.

Now as Kennedy goes on to point out, this “method” is not merely culturally reactionary, it’s politically reactionary as well. The whole point is to produce lawyers, which is to say people, who never question the fundamental power relations encoded by the legal, economic, and cultural status quo. And in that sense, it was and remains quite effective. As TT points out in a comments thread below:

How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

Precisely. Indeed that’s what the classic Socratic “method” is all about — it’s a performance designed to demonstrate that the performer is In Charge Here and a Very Serious Person who you had best defer to if you know what’s good for you. In short, it’s authoritarianism at its most straightforward and distasteful — and anyone who currently practices it in 180-proof form in an American law school at this late date should be viewed with suspicion: not merely as an educator, but in terms of that person’s fundamental orientation towards hierarchy, authority, and social power. Which is another way of saying, in terms of her politics.

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  • GeraldY

    Now there’s the smoking gun! Kagan uses the Socratic method. Surely, this revelation will torpedo the nomination!

    • celticdragon

      Indeed. She is something of a hardass in the classroom and expects her students to actually come to class prepared to participate competently.

      She must be an authoritarian fascist!

      We must get this over to Jane Hamsher at FDL stat!

  • Paul,

    You share a tic with Greenwald in that when you are making possibly a good argument, you toss some adjectival sauce on the proceedings like “puerile” then you proceed down the road of RATEMYPROF.COM, last time seen from “academic” Glenn Reynolds and the “Harvard-educated” Alabama Chem Depart shooter.

    It’s all very juvenile. But as a Trollypants I love it!

    • GeraldY

      This is not a “tic” at all. It’s a diagnosable illness that I believe is called “asshole lawyer syndrome.”

  • Scott P.

    Yeah, nobody is saying you can’t be skeptical, but
    the simple fact is that there is almost no role for public participation in this process. We can write to our senators and urge confirmation or rejection, we can primary Obama in 2012, and that’s about it. “God grant me the serenity to accept the things I cannot change” etc.

    Moreover, we’ve had five posts so far on the nomination, and so far there has been very little content to them. This is extremely out of character for this blog, at least over the past three years that I have been reading it. Even battleship blogging had some sort of informative content. Kagan uses the Socratic method? That’s extremely thin gruel, indeed. Do you think the Senate should reject her? if so, on what grounds?

    If you want to predict that she will be to the right of Stevens during her tenure, say so, and then either open an Intrade account or come back in 20 years and we’ll see if you’re right.

  • richard

    I couldn’t disagree more. The best courses I took in law school were those given by professors who were good at the Socratic method. (Professor Choper at Boalt was the best and he was neither authoritarian in his politics nor his manner. I remember far more from his class in civ pro than any other of the first year courses I took). If you’re not prepared to answer questions posed by a professor, maybe, just maybe, you shouldn’t be a lawyer.

    Also if you read the entire post by Mr. Mystal, not just the portion quoted by Campos, you will see that he admits that his problems at law school were not due to Kagan or the Socratic method but himself. Jeez, the guy says he made it a habit NOT to read the civ pro cases and when called into a meeting with Kagan, tells her that civ pro is boring and irrelevant(and mentions that Kagan laughed with him at this). Anybody who thinks this post by Mystal is an indictment of Kagan should read the entire post.

    • Paul Campos

      “Anybody who thinks this post by Mystal is an indictment of Kagan should read the entire post.”

      Kennedy again:

      There even seems to be a connection between classroom manners and substantive views, with the softer teachers willing to be more liberal, perhaps more sympathetic to plaintiffs in the torts course, more willing to hear what are called policy arguments, as well as less intimidating in class discussion. But there is a disturbing aspect to this process of differentiation: it turns out that in most law schools, the tougher, less policy-oriented teachers are more popular. The softies seem to get less matter across, things wander, and one begins to worry that their niceness is at the expense of a
      metaphysical quality called rigor, thought to be essential to success on bar exams
      and in the adult world of practice. Ambivalence reasserts itself. As between the
      conservatives and the mushy centrists, enemies who scare you but subtly reassure
      you may seem more attractive than allies no better anchored than yourself.”

      • richard

        Kennedy’s comments do not match my experience in law school I had four professors who were good at the Socratic method – two were generally liberal, two were conservative (although with the best teacher of them, Choper, you got no sennse of his own beliefs from his teaching in class). There were several other teachers who used the Socratic method but were not adept in it. Kennedy seems to make an assumption that toughnes and/or the Socratic method is incompatible with policy arguments. That was not my experience at all. A good teacher who uses the Socratic method can use it to elicit policy arguments even when discussing civil procedure.

      • IM

        Nonsense. At least in my experience here in Germany. Some professors used this method, some that, some failed, some not. No correlation with their politics. I will admit that my experience is limited -almost all my professors were right-wingers.

        Is isn’t funny if you are just called up unvoluntary and can’t answer. But up to a point it is your fault and so at least the whole class is engaged and not just the active 10%.

  • cj

    Eh. Color me unimpressed. Use of the Socratic method does not an authoritarian make. You are obviously correct that it reflects authority-subject power dynamics, however it also reflects longstanding tradition so I don’t think participation indicates a political bent in either direction. More likely she’s just a throwback to that prior era of legal instruction. Also you can’t discuss Socratic method without discussing its true value, which is teaching students how to argue in public with lots of pressure (i.e., what litigators do every day), and equally important, teaching students how to bullshit in the spotlight (also what lawyers do everyday, but you already know that).

    As an aside, don’t assume that if some don’t concur with you, it means we’re rallying around Kagan and Obama – hardly the case. I am lukewarm on Obama for a variety of reasons and have no read on Kagan but think her choice reflects the kind of insidery, “Big Tent” Democratic decision-making I thought we’d dodged when Hillary lost the primary. And Diane Wood would have made a great choice, though hard to compare as we just don’t know what Kagan is. Notwithstanding that, I think you specifically and the whole FDL-LGM-Greenwald axis generally are way too worked up over the Kagan pick. Obama picked Kagan for the precise reason that there is not much in the public domain about her – trying to read negative connotations into things like the decade-old recollection of a law gossip rag editor for lack of other content doesn’t seem like an appropriate way to fill that gap.

    • Ed

      In other words, Obama picked Kagan because she’s a blank slate and there’s nothing to talk about, so everyone fall into line and don’t talk about it. Small wonder the admnistration has no fear of the progressive wing. Kagan is probably a done deal and there’s nothing anyone can really say at this point, but it’s no bad thing for bloggers to keep pecking away at whatever there is. How a prof behaves in class is relevant. Not the most important issue to consider, but in light of what there is available to discuss, relevant.

      • cj

        wow, talk about twisting words. at no point did I say “everyone fall in line and don’t talk about it.” I find the criticisms leveled by this blog and others fairly substance free. I’m not alone in that, as a brief review of the comments on this post will disclose. That doesn’t mean that any criticism is invalid, or that its even advisable to nominate Kagan over Wood. I just don’t believe the 10-year old recollection of a bad law student turned law gossip rag editor which discloses that on one occasion in a first year law class Elena Kagan utilized a pure Socratic method and was perhaps a bit of an asshole tells us a damn thing about Elena Kagan (other than that she’s like about half of my 1L professors), and the fact that people like Paul (and you, apparently) are so willing to read negative connotations into it provides far more insight about Paul and his deep antipathy for this woman.

        What’s incredible is, my take on the Kagan nom was and is negative. However I find myself on this blog being forced to defend her against what are really ludicrous arguments.

        • Ed

          Sorry if I misunderstood you. Paul may have gone a bit far with this one, not that he deserves some of the hammering he’s getting here, but the anecdote is worth discussing (and the OP has elicited some excellent responses along with some, well, surprising ones).

  • tulip

    Oy. This is ridiculous. I took three classes with Kagan at U of C and, sure, she used the Socratic method, as did most people at U of C at the time. But she was not authoritarian. She absolutely welcomed — in fact, solicited — comments from people who did not agree with her or with the doctrine being discussed. She was an incredibly well liked professor — one of the most popular in a faculty that included a lot of stars (Sunstein, Epstein, Lessig, McConnell, Obama).

    I note that Ilya Somin also posted about this experience in one of Kagan’s classes at Harvard and he doesn’t support your point.

    • Paul Campos

      I’m curious as to whether you think Kagan’s classroom behavior as described in the vignette above is desirable or for that matter minimally acceptable in a professional setting in which all the parties are adults.

      It is of course highly traditional and even ritualistic — in the sense of a humiliation ritual which marks ascension to a higher status — which makes it easier to understand how lots of law students (including apparently the author of the vignette) have fond memories of similar classroom experiences.

      • Gator90

        I think her behavior in the vignette is fine. The bozo should have been prepared. A judge might have harshed his mellow a lot worse, and with a lot more at stake.

        • Indeed, and that is exactly why the Socratic method has value. Other legal traditions use other methods, but it is pretty widely acknowledged around the world that the quality of advocacy in the US is extremely high, and that one reason for this is that American lawyers are obliged to learn how to think on their feet.

          It is worth noting that the classes which tend to be the most Socratic tend to be the first year classes. I think this is due in part to the necessity of dislodging students from the complacency they frequently fall into over the course of high school and college educations which have been geared to ‘teaching for the test’. The difference between the undergrads I’ve taught and the law students that I teach is marked. The former really want to be spoon-fed the material and are surprised when the class time is not spent with pre-printed notes and PowerPoint. My law students are almost all engaged and lively, prepared to explore tangents and interested in creative thought. I credit the faculty that got Socratic on them before they came to me.

          There is a lot to the Duncan Kennedy article that is valid, but this particular point has always impressed me as off base. I’d much rather get called out in my first year CivPro class than be dressed down by a judge. The one is embarrassing, but the other can have serious consequences for the client.

          • Turbulence

            Um, did you just compare undergrads to law school grads? Can you think of anything else that might differentiate these two groups besides going to law school? Like maybe age? Or even ‘having completed an undergraduate educations’?

          • Curious Jorge

            “…it is pretty widely acknowledged around the world that the quality of advocacy in the US is extremely high…”

            Where did you get this impression? I don’t want to be rude but I’ve lived in the UK, Germany, and Canada and I’ve never come across this supposedly widely held consensus that American lawyers are particularly good.

        • Fiorinda

          Agreed.

          Also, let’s be realistic: women still have a tough time establishing authority in the classroom. And men who don’t respect a female professor’s authority, and show it by deciding that she can’t make him do the assigned reading, are going to put that professor in a position where she doesn’t have a lot of good choices to make: being gentle with this entitled ass would only have made him feel more entitled — and reinforced the lesson for the rest of the class.

          I can’t help but wonder whether he’d still be so whiny about this incident if the teacher had been a man, or if he would have accepted that of course a *guy* had a right to demand he follow the rules.

      • Kurzleg

        As a former educator I view the classroom behavior from this vignette as an attempt to persuade this student to come prepared for class. I don’t think embarrassment is to high a price to pay nor inappropriate. And to flip one of this student’s complaints back toward him, why would you waste your fellow students’ time by coming unprepared?

        • celticdragon

          Exactly.

          • Anderson

            As a lawyer I work with was just saying about this anecdote: if he were a law prof, himself taking the time to prepare for class by studying the cases, etc.,

            … then he would not be real pleased with a student who could not be bothered to put in any effort himself.

      • Anderson

        Jesus H. Christ, the little shit was at HARVARD LAW and blowing off his reading, and Kagan is supposed to shrug and move on?

        God knows there were lots of rejected applicants to HLS who would’ve gladly done every page of reading, every night, could they only have been admitted.

        What a joke this blog is becoming.

        • This blog is just fine, great even. This blogger, on the other hand…

          • Anderson

            You are correct, sir.

      • It’s perfectly acceptable–adults, more than children, deserve to get called out in a public way for failing to be even minimally responsible. Do your work, be prepared, and one can spare themselves the experience. The Socratic method isn’t just about humiliating one’s colleagues, but in this case this particular side effect was indeed warranted.

        • latinist

          Also, and I can’t believe I’m the first one to mention this, I don’t think we should treat a student’s account of being yelled at by a professor as if it were a neutral transcription from a videotape. I guarantee that Kagan’s account of the same incident would be different, and an account from another student present would be different from both. I’ll agree that our system of naming supreme court justices is bad, but if there’s one thing you can say for it, it’s that the fact that one of your students has complained about your teaching methods is not considered serious evidence that you’d be a bad justice.

          • IM

            Indeed. It is the job of a professor to get answers out of his students. Sometimes he or she will got to far. But that also depends on the attitude of the student. Some will happily confess their ignorance. Others like to argue. And a lot of students quickly will feel humiliated.
            But how can the prof know in advance?
            Pethaps this is an example of an over-bearing prof. But perhaps the student is just more touchy than average.

      • SteveS

        Kagan’s behavior was absolutely, totally, 100% fine. She is preparing people to be lawyers for Chrissakes!

  • Bobby Thomson

    Jack Balkin uses the Socratic method and is not authoritarian. Anecdotal, but true.

  • dave3544

    Seriously, Paul. Even if the Mystal’s story happened exactly like he said and it’s possible that Kagan is an evil, evil troll who lives to terrorize students and establish her AUTHORITY and she loves authority and all authoritarians, is it also not possible that Kagan was attempting to teach 1L students that it is not okay to show up to court or a hearing or a meeting completely unprepared? That “I’m sorry, I am unprepared, could you move on to something else” doesn’t fly in the real world?

    The point is that I don’t really know and either do you, but this is some really weak sauce. Any professor willing to judge another professor by one anecdote from a former student is really reaching.

  • You have got to be shitting me.

    Also, I get really annoyed at you (and Greenwald’s) attempts to mind-read people that disagree with you. Clearly, the only reason a person would disagree with the infallible proclamations of the Great Greenwald is the fact that they are an Obama Cultist worshiping Dear Leader! Nothing makes me want to have a discussion on the pro’s and con’s of Kagan’s appointment than a bad faith assumption about my motives!

    Wankers.

    • richard

      The conclusions of Mystal’s post, not quite the searing indictment of Kagan which Campos suggests:

      The My best Kagan story comes from graduation. My year (Class of ‘03) was the last year for HLS Dean Robert Clark. Kagan took over next term, so at our graduation Dean Clark and Dean Kagan were both on the podium. Dean Clark handed me my diploma and smiled (he was a fan of mine because of the HLS parody).

      Kagan? She smiled slowly and shook her head as I walked by. My mother noticed: “That lady doesn’t seem to like you very much.” I said: “Well, Kagan really likes people who like rules, and people who are as passionate about the law as she is. So that makes us natural enemies. But I like her a lot; she’s very smart.”

      My mom said: “So you’re saying you would have gotten along fine, if she never had to meet you?”

      Pretty much.

    • Somerby would have a heart attack at the mind reading.

  • rea

    With all due respect to Prof. Campos, sometiems I have a hard time beleiving that he ever went through law school or practiced law. If he doesn’t like the Socratic method, I can’t imagine how he would handle an appellate oral argument–probably like opposing counsel in one of my cases before the 6th Circuit, who flew to Cincinnati on the same plane as me, and who I watched for the whole flight write out his argument word-for-word on 20 or so pages of a yellow legal tablet. He was reduced to incoherent stammering in response to judicial questions after about 2 minutes. In other words, the Socratic method teaches a real skill that is important to lawyers.

    Why Paul thinks that lecturing is unauthoritarian, while having a real exchange with students over the meaning of the lesson is authoritarian, is a mystery–the truth is just the oppposite. The best practitioners (James J. White was very good at this in my youth) can get educational value out of good faith responses even by relatively unprepared students. Of course, if you do what Mr. Mystal did in the quote above–balk at participating in good faith–it’s not going to work, but I don’t think it’s unreasonable to expect students to cooperate in their education.

    I shudder to think of Mr. Mystal involved in litigation, if he thinks of civil procedure as dull stuff he can’t be bothered to learn, and shouldn’t be required to learn.

    If you’re not interested in law, if you think law school ought to be about absorbing lectures on dull topics and regurgitating on exams, I don’t want you in my profession.

    • Paul Campos

      Do you think your colleague did so poorly in front of that appellate panel because he didn’t get enough of what I call the classic Socratic method — which in its most extreme form involves the sort of ritual humiliation described in the vignette — during law school? That seems wildly implausible.

      I don’t have any problem with classroom discussion as opposed to straight lecture — I do plenty of calling on students myself. Part of the problem here is that people are assuming calling on students = classic Socratic method (hereinafter CSM). That’s not it at all. What I’m arguing is that a taste for engaging in the most obnoxious aspects of CSM may have some value in terms of evaluating someone’s legal and political ideology and orientation. If we had more evidence regarding those aspects of Kagan her classroom antics would be of little interest in terms of the question of the moment.

      I’m also a bit taken aback by the extent to which people are willing to defend authoritarian browbeating and the related willingness to treat adults like very small children. The practical value of doing this is, in my opinion, nil. I don’t believe for a moment that this kind of thing usefully replicates the conditions of an oral argument before an appellate panel, which in any case is something that the vast majority of lawyers never engage in. Its intellectual value is, by contrast, not nil but sharply negative.

      • richard

        I’ve been a litigator for over thirty years. I’ve also argued before the Ninth Circuit and the California Courts of Appeal (although infrequently). I’ve had to deal with rude judges, mean judges, boorish judges, idiots,jerks, pompous jerks,tyrants, authoritarian sorts, you name it. In order to represent my client well -which is my duty and goal as an attorney -I cannot have a thin skin (how dare that judge treat me, an adult, like that) or behave like a wuss (if only the judge had been nicer and asked me gentle questions, he would have realized that I should have won). CSM was great training for the type of work I do on a daily basis. Law schools aren’t there to treat you like an adult, they should be there to train you to be an effective attorney and oftentimes, in the real world and especially in litigation and appellate work, judges don’t treat attorneys as equals and as adults.

        • Paul Campos

          This pushes matters one turtle down as it were. It may be that CSM has some initial practical value for the socialization lawyers undergo while dealing with hyper-rude authoritarian judges, although I tend to doubt it (IMO what teaches litigators what they need to know qua litigating is actually litigating).

          But this of course raises the further issue of why so many judges are both extremely rude and aggressively authoritarian in their professional manner. I more than suspect that their legal education, and in particular CSM, has a lot to do with that.

          Now perhaps producing extremely rude and authoritarian personalities to serve on the bench, and litigators who can deal with those personalities, maximizes something socially desirable (better judicial decisions and opinions?), but I find it very difficult to imagine the mechanism that supposedly produces this outcome.

          • Really? You think that the method some of their professors used to teach some of their classes turned them into pompous assholes and not, say, holding a position of power that (for federal judges) they hold for life and allows them to basically lord over everyone in the room without consequence?

            Did Elena Kagan do something to you personally?

            • Paul Campos

              This is amazingly obtuse. Why do you think there are no negative consequences for that sort of behavior on the part of judges? The laws of thermodynamics?

              The professional personalities of federal judges are an end product of a long process that includes the constant legitimation of those personalities, through the representations of what “practicing law” and “thinking like a lawyer” involve, which students first and most memorably encounter in the law school classroom.

              • “. Why do you think there are no negative consequences for that sort of behavior on the part of judges?”

                Well, for federal judges the answer is that the only way to remove them short of death or resignation is Congressional impeachment, and I don’t think Congress cares much to spend their time impeaching officials for being rude, boorish, assholes. Especially given that most of them are rude, boorish, assholes to varying degrees.

                And you’re calling other people obtuse?

              • Gator90

                Taking the question of rude or mean or authoritarian behavior out of it, the fact remains that judges ask a lot of questions in court and expect quick, responsive, well-informed answers. Judges have a right to expect lawyers to be able to do this, and it is an essential function of an adversarial legal system, particularly an overburdened system where everyone’s time is at a premium.

                Lawyers who are inadequately prepared, or who are unable to deal with questions they failed to anticipate, do a grave disservice to the judicial system and, even more, to their own clients who depend on their skill and professionalism. Such lawyers, who are officers of the courts in which they practice, deserve to be chewed out by the presiding officer (the judge) when they waste everyone’s time with their sloth and incompetence. The sooner these lessons are learned by future attorneys, the better.

              • You are easily amazed. Why not pile on:

                “this is mind bendingly obtuse!”

                “this is skull-f***ingly obtuse!”

                “this is moon rapingly obtuse!”

                “this is everlasting tinnitusly obtuse!”

                “this is barrel of popcorn obtuse!”

              • Other legal cultures– most, actually– train their lawyers by way of straight lecture, but their judges are sometimes pompous assholes too. I don’t think the Socratic method is the vector for the pompous asshole virus.

          • richard

            I brought up the issue of rude,pompous jerk judges. The reason there are many of them (I wouldn’t go so far as to say “so many”) is simple. They have a lot of power and with federal judges a job for life no matter what they do short of indictment for corruption. I don’t think there are more jerk judges than there are jerk corporate CEOs and I don’t think the reason has anything to do with law school training.Law school training in other countries is often far different than law school training in the US but if you talk to foreign lawyers, you will get the same complaints about jerk judges. What Paul’s argument about Kagan is coming down to is that she is a product of elite law schools, believes in the education offered at elite law schools and that this, almost alone, should disqualify her from a Supreme Court appointment (notwithstanding the undisputed fact that she was an incredibly popular professor at both U of C and Harvard -stupid law students don’t know how they should really feel about things)

      • rea

        Do you think your colleague did so poorly in front of that appellate panel because he didn’t get enough of what I call the classic Socratic method — which in its most extreme form involves the sort of ritual humiliation described in the vignette — during law school? That seems wildly implausible.

        I don’t accept your comments about ritual humiliation, and I don’t know what kind of law school experience this guy had, but the point is, he was prepared to give a lecture, not to engage in an exchange. Law school ought to prepare you for the latter.

        ritual humiliation described in the vignette

        I don’t see ritual humiliation there–I see someone who wasn’t interested in learning about the subject of the class, and who was wasting his own and everyone else’s time.

        • I think Paul has revealed more than he probably wanted to here.

        • larryb33

          First, if this is true– if this person was not interested in learning, I’m not sure how Kagan’s actions will change that. To me, her methods seem a little infantilizing. I’m not sure why everyone seems to be jumping to the defense of the Socratic method. Really, at the age of 23 or 24 should your chief motivation for being prepared and reading be that you may be humiliated in class?
          But, my point was really about all theKagan posts and comments. It seems odd to me that there is so much outrage to what is seen as a piling on by Paul and that outrage manifests itself as, well, piling on. The way I see it Paul has many good reasons to shine a spotlight on Kagan’s shortcomings, the chief being that she is going to replace John Paul Stevens for a spot on the highest court in the land. I am not sure what others have invested in Kagan’s nomination. There is no compelling reason, in my opinion, to jump to her defense.

          • larryb33

            this ended up in the wrong place in case anyone is reading.

      • JoshA

        I had one professor who used the Socratic Method during law school. That was the only class where I made sure I read all the cases, not just outlines of them.

        • larryb33

          To me, this says more about you than the superiority of the Socratic Method.

      • David Nieporent

        I’m a bit taken aback at the notion that embarrassing an unprepared student in class is “authoritarian.” I hear that Khalid Sheikh Mohammed had to be waterboarded 150 times, but that he broke after just 20 seconds of being subjected to the Socratic method.

    • Glenn

      Let me preface this comment by saying, I don’t really think that anecdote about Kagan is in any way related to whether she should be on the Supreme Court. Judges are authoritarian sometimes. Maybe some more than they should be — well, OK, no maybe about it — but it’s hardly a disqualification. In fact, I think it’s a bit silly to even bring it up.

      But since this thread has devolved into a discussion of the pedagogical merits of her style, at least as represented in that snippet, let me just say that the comparison between that anecdote and being unprepared for an oral argument is fucking ridiculous. The point in the anecdote was, this kid didn’t know he would be called upon and happened to be unprepared. For oral arguments, you know well in advance that you’re going to be arguing and you naturally prepare. In my 13 years of practice, I have never gotten a “surprise” oral argument. Surprise questions, yes. But I always knew I’d be on and knew I’d better be at least minimally prepared.

      But c’mon, law school? Occasionally you’re going to come to class without having read. Maybe you had a paper in another class. Maybe you were just out partying. Who gives a fuck. All of you who are tut-tutting that any student would EVER come to class unprepared are just absurd and have obviously either never been in law school (or college, even), or are just being hypocritical. Pull the sticks out of your asses, people.

      And so the point was not that this kid faced hostile questioning like he would in court, it’s that he was caught unprepared and rather than move on, Kagan (if what is reported is true) insisted on wielding her power to humiliate him. For no valid pedagogical reason that I can see. I never had a prof in law school who would have behaved the same way. Never.

      • Paul Campos

        Thank you. This particular aspect of the comment thread stuns me when I consider that we’re talking about the readership of a progressive blog.

        • Because progressives don’t think that the people who get admitted to prestigious, competitive educational institutions should be expected to be bothered to do the work associated with the course?

          • Anderson

            Right. We’re beyond that, Brien.

            He was admitted to Harvard, so Kagan should’ve just given him an A and not gotten all in his business. (I mean, who did she think she was?)

            You know, like happens in Campos’s classes, evidently. I am looking forward to his next book, Teaching Law the Progressive Way. Should be a hoot.

            • Jeez, what a couple of insufferable douchebags. Nobody said that in general, you shouldn’t bother to do your homework; all that’s being said is that at (yes, even Harvard) sometimes for whatever reason you don’t. And just because you didn’t, it doesn’t follow that you should be publicly humiliated in a way that only further wastes your classmates’ time. Dock the kid’s grade if you must, move on to the next victim dutifully prepared future Latham and Watkins associate, and move the fuck on.

              • And sometimes you mail it in at work too. Problem is, when you’re a lawyer and you do that, your client is the one who gets fucked.

                Either way, this is a silly point to stand on. He admits he couldn’t be bothered to do the reading, or even follow along in class, ona regular basis, and his professor didn’t take pity on him. Big deal.

        • mark f

          I like that you took a throw-away joke from some obnoxious asshole’s Rebel Without a Cause story and made it the title of a post about Elena Kagan’s authoritarianism. That was very progressive.

      • Anderson

        happened to be unprepared

        No. False.

        I hated the Socratic method, and while many people in my section were so terrified of Kagan that they did their Civ Pro reading before anything else, I quickly fell into the habit of not doing my Civ Pro reading.

        Please do not misrepresent the content of a quotation that is not only linked, but quoted in Campos’s post.

      • richard

        I never had a prof in law school who would have behaved the same way. Never.

        You went to the wrong law school then. Although I don’t remember any professor having the student read from the case book, I remember several, upon being confronted with a student saying he had not read the assignment, say:

        Mr. Smith, let me summarize the case for you then. (And after summarizing it) With this in mind (and then asking the student the same question he was going to ask if the student had read the assignment)

        • Anderson

          Notice that Mystal not only didn’t do the reading, he wasn’t even troubling to sit there with his casebook open, trying to follow along. Kagan caught that — “Do you think you could be bothered to OPEN your casebook?” — and quite rightly didn’t care for it, it seems.

          You can’t teach someone how to read a case if they won’t read the case.

          • mark f

            But bro, it was so booorrrring that even the professor got major lulz out of it.

        • rea

          I never had a prof in law school who would have behaved the same way.

          I saw Yale Kamisar do almost word-for-word the same thing.

      • rea

        In my 13 years of practice, I have never gotten a “surprise” oral argument. Surprise questions, yes. But I always knew I’d be on and knew I’d better be at least minimally prepared.

        You’ve been awfully lucky, though, because I’ve had a number of cases take shockingly surprising turns while I’ve been up on my feet in front of a judge/judges. Admittedly, most of the examples I can think of involved trial-level hearings rather than the Court of Appeals, but not all.

      • David Nieporent

        But c’mon, law school? Occasionally you’re going to come to class without having read. Maybe you had a paper in another class. Maybe you were just out partying. Who gives a fuck. All of you who are tut-tutting that any student would EVER come to class unprepared are just absurd and have obviously either never been in law school (or college, even), or are just being hypocritical. Pull the sticks out of your asses, people.

        Uh, did you actually read the anecdote? Mystal didn’t just happen to be caught the one night he was busy writing that brilliant article for law review that Paul Campos would one day dismiss as irrelevant because it happened to be for his own school’s law review.

        Rather, Mystal had a habit of not doing the reading because he didn’t like the subject of the class and didn’t feel like it.

  • This is just getting tiresome. Paul clearly has no intention of entertaining or engaging people who don’t see exactly as he does on this question, preferring instead to devolve to Greenwaldian standards of hyperbole, obtuseness, argument-by-repetition, and insults. To put it bluntly, it gives the impression of someone very much unconcerned with good faith interactions with opposing viewpoints. I expect that from Greenwald, it’ how he pays the bills, but I’ve never really seen it here. Scott’s criticisms are much sounder, even if I don’t totally agree with them.

    But whatever, Scott’s posting a lot of this at TAP, so maybe I’ll just check out of here until Kagan’s confirmation is done with.

  • Gator90

    Having been a litigator and appellate lawyer for a number of years, I would say that the Socratic method was the most useful aspect of my law school experience in terms of preparation for the practice of law.

    Many judges ask difficult questions that a lawyer may or may not expect, and they can be more merciless than the toughest professor when a lawyer is unprepared. Some judges are jarringly rude and mean.

    Good trial and appellate lawyers must be well-prepared, thick-skinned, quick on their feet, and able to think and speak under pressure. The Socratic method helps develop these essential qualities.

    • frankly0

      If teaching the Socratic method possesses all the wonderful virtues you attribute to it, it’s passing strange that Kagan herself seems to have profited so little from it — witness her entirely flat-footed and rather inept response at the SC when she was quizzed by the Scalia and Roberts on the government’s case in Citizens United.

      Perhaps Scalia and Roberts should have had her read aloud from some case book until she got the point?

  • David Nieporent

    As long as we’re psychoanalyzing: there’s an undercurrent of jealousy in Campos’s posts, seen in his desperate and feeble attempts to prove she’s unqualified, something along the lines of “My c.v. looks better than hers; how come she got nominated and not me?”

  • nadezhda

    Wow. Just, wow. This is so wrong and so prejudiced and so whiny and so fundamentally ridiculous.

    I was privileged to have one of the models for “Paper Chase” for 1L Contracts at Harvard. It was the most rewarding, stimulating learning experience of my life. Clark Byse was superbly prepared every class — he’d been teaching the course for nigh on 30 years and still closeted himself preparing for 4 hours immediately before each 1 hour session. And he conducted the proceedings like a maestro orchestra conductor.

    In Byse’s classroom, the 100+ students sat on the edge of their seats for the entire session, intensely engaged, if for no other reason than you could be called on at any moment to respond to what another student had just said, or said 20 minutes previously. It could get a bit cruel if someone clearly was not just slacking a bit but not trying, not engaged with the discussion. But a student who wasn’t prepared or engaged wasn’t just short-changing himself, he was short-changing the other students.

    To be clear, everybody got challenged — no favorites, even though some students’ responses were repeatedly better than others. On the other hand, Byse could get good stuff out of folks whose initial response was feeble. There was, however, no “punishment” for being “wrong” because the entire point of the Socratic method is that everybody’s answer is challenged in order to examine the thinking implicit in an answer. “So it seems to apply in the given case, but how well does it hold up when we change just this one fact? Now let’s take this case apart, tease out what are the real questions or issues, and look at them from different angles. etc…”

    So the method actually takes a lot of the sting out of being shown “wrong” in front of 100 of your peers. You know your response is going to be taken apart, often with a bit of humorous, mocking wit — Byse was nothing if not immensely entertaining — so there’s demonstrably nothing personal. Each person who is called on “fails” at least a little bit, but the students as a whole all win because all those little “failures” add up to something big.

    Now, it takes an excellent and committed teacher to handle the Socratic method well. In the hands of someone who isn’t skilled at the method, it can be a painful, plodding approach. And there are certainly lots of other ways to teach, and Duncan Kennedy had a rep as a pretty decent teacher, so I agree him that the Socratic method shouldn’t be imposed in all 1L classrooms.

    But I disagree profoundly with Kennedy and Paul’s “authoritarianism” and “terrorism” critique. Yes, it requires the teacher to “control” the discussion and to expose the potential weaknesses in each student’s response. But the method itself, in the hands of a good practitioner, is a simply fabulous learning experience, and particularly appropriate for teaching law. Clark Byse taught me Contracts, most of which I’ve long forgotten in detail, but what he really taught me was a particular way to think, applicable far beyond the confines of law school or even the legal profession, which became part of me and for which I’m exceedingly grateful. I’m glad to learn that at least some professors are continuing to try to keep the method alive.

    • richard

      But I disagree profoundly with Kennedy and Paul’s “authoritarianism” and “terrorism” critique. Yes, it requires the teacher to “control” the discussion and to expose the potential weaknesses in each student’s response. But the method itself, in the hands of a good practitioner, is a simply fabulous learning experience, and particularly appropriate for teaching law.

      I heartily agree. This mirrors my experience with Professor Choper. Some 35 years later, I still remember a class with him where he called on someone to answer a question about some topic in civ pro and the person offered an adequate response. He then turned to me and said “Mr. Richard, when we were discussing International Shoe several weeks ago, you made the point that …………………. How does that apply to the point that Mr. Y just made. I then had to reply on the spot, trying to remember what I had said several weeks ago. Great intellectual challenge and great training.

  • Hogan

    I just wanted to say that “Kafka-like riddle state” is the best thing I expect to read all day.

  • I don’t understand where your overall case against Kagan is going.

    I understand the “strange time for a blankish slate” arguments and by and large agree with them. His political situation is as favorable as it’s likely to get for 3 years or so (from current indication) so presuming that Kagan is, in fact, good and, in fact, more confirmable, it’s strange to put a highly confirmable blank slate in instead of a harder to confirm paper trailed person. Many variants thereof (including that it’s really annoying that he doesn’t throw reasonable red meat to his base; “trust me, my base” on faith is valuable political capital; or so I believe.)

    But you seem to be trying to build an argument that she is, on her merits, bad. You think her scholarship is thin at best but in this post you don’t argue against them directly on the merits, but indirectly by insinuating that they were rubber stamped and so clearly (?!) weren’t sufficient to merit tenure. But surely, esp. with a comparatively small publication sample, the tenure committee had to, you know, read the articles and judge them on their merit. And that’s a kind of peer review. If the committee read them and thought they were top notch (or sufficient for tenure) and the venues of publication were acceptable (which, I take it, they are), then, uh, what’s the problem?

    Clearly it’s possible that the fix was in there too, but this is hardly a surprising aspect of tenure across the academy. Her academic career is somewhat nontraditional and one good thing that’s happened in recent decade is that nontraditionality isn’t a career killer any more.

    You may, of course, disagree with citers and people like Volkh on the quality of the articles, but it’s pretty clear that they aren’t out-of-bounds ridiculously non-scholership. Actually, from a quick Wikipedia glance, I find:

    While at Harvard, she authored “Presidential Administration,” a law review article on administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law. That 2001 Harvard Law Review article was honored as the year’s top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press.

    Is the award giving group also stuffed with Kagan pals?

    So, that’s still odd. But now we have a story, admittedly unpleasant, about her teaching. Let’s grant that she taught in the problematic form of “Socratic method”. And that she did so in at least 2000 (the date indicated). My quick search about this issue led me to this interesting Leiter post. This was 2003.

    The Socratic method is not as ominpresent as it once was in law schools, but it is still widely used, more or less, in most law schools, by most professors, at least some of the time.

    The Guinier article came out in 1997. In 2008, I find a post which indicates that the debate about it is still quite live. In Leiter’s article, it’s clear that he expects a gradual phase out if only due to its omnipresence.

    Now, you do say “180-proof form” but it still seems that there’s a reasonable set of alternative explanations for why she taught that way including, it was how she was taught and how people taught around her, she honestly believed it was good pedagogy in a number of ways, she wasn’t a particularly good teacher or interested in pedagogy, her experience was that if she wasn’t so aggressive students (esp. male students) treated her poorly or didn’t take her seriously, she genuinely enjoyed verbal sparring, etc. Actually, for all we know, she may have abandoned it! (That’s the cipher problem.)

    The simplest explanation is that it is still very standard and that she got a lot of peer encouragement and praise for her teaching. One might conclude that she should have known or thought better and that that indicates at least a passive acceptance of authoritarianism (though, it’s pretty thin gruel and somewhat counterbalanced by her rep as Dean). But that’s a far cry from her feverishly clinging to sadistic practices for the sheer love of dominion over powerless students. I mean, it’s a stretch to go from classroom style to personal politics in the best case, and this is nowhere near the best case.

    • rea

      You think her scholarship is thin at best

      The odd thing is, he hasn’t really attacked the substance of her scholarly work–instead, he’s attacked the entire legal educational system as unscholarly, and condemns her on the basis of her being a representative figure.

      • Exactly. Say what you want about Voloch, but he did examine aspects of Kagan’s published work in an attempt to determine their weight, and concluded that they were substantial in quality and quantity, given the actual amount of time spent in academia. He may be right or wrong, but it’s impossible to learn that from Paul because he simply refuses to engage constructively with people who don’t see things his way. He’s just asserting it over and over as if it’s supposed to be taken for granted.

      • While I’ve not gone back and reread all of Campos’ articles on Kagan’s scholorship, this one, at least, seems to be judging exactly on what he condemns: Puerile numbers and similar junk.

        Clearly, someone could have 90 minimal publishable unit papers in good journals, or 1 superimportant paper published in a crap journal, or 5 great papers papers published in a journal where a friend is an editor, or…Many of these combinations can be worth tenure or not worth tenure. Even as a prima facie case, it’s weak.

        Oh, I just went to reread some of the back articles. I found this amazing bit:

        Several people have referenced Eugene Volokh’s defense of Kagan’s writing. Leaving aside for the moment the question of its quality, one issue that’s not, I think, in dispute, [emph added] is that it doesn’t actually answer precisely those questions a person would want answered under these circumstances — that is, normative questions about her view of the law, rather than issues of descriptive categorization.

        The quality isn’t in dispute? Then wtf? What does it matter that they were published in her “home” journals? Quality doesn’t count unless it’s been pressed in the face of a hostile audience? What’s the point of saying they haven’t been peer reviewed unless to cast doubt on their quality? Why not mention the award? (Big article, published in a prestigious journal, highly praised, won an award, highly cited…yeah, uh, this screams “doesn’t deserve tenure”.)

        Now, of course, the real point I see Campos making is the blank slate one: That scholarship doesn’t tell us about Kagan’s normative legal views and those views are critical for evaluating her for the Court. But then all the insinuations look really ugly.

        • Paul Campos

          What I said wasn’t in dispute is that her articles don’t answer almost any of the questions those evaluating her nomination would like answered. For example when she analyzes first amendment doctrine she goes out of her way to avoid stating a view on either the legal correctness or political desirability of what she’s analyzing.

          • Oops! Sorry, I misread. Comma confusion.

            One hackery point against me.

          • rea

            The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

            I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.

            I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider — a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.-0-O. W. Holmes, The Path of the Law, 10 Harvard L Rev 497 (1897)

        • Oh, and here’s a funny bit. We have Campos:

          Update: I just did an NPR segment with conservative law professor Stephen Bainbridge, who supports Kagan’s nomination for exactly the same reason I oppose it: because in both of our estimations she’s a best-case scenario for the GOP, in that there’s a significant chance she’ll move the court to the right.

          And we have Bainbridge:

          I don't know very much about Elena Kagan other than that a couple of Harvard folks for whom I have a lot of respect think highly of her. When I look at some of the lefties who are opposing her and their reasons for doing so, however, I'm tempted to conclude that she's the most acceptable–from my perspective–candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are.

          Yes, Bainbridge is citing Campos’s opposition as evidence that Kagan is a best-case scenario for him and Campos is citing Bainbridge’s support for Kagan as validating his opposition!

          (To be fair, in the NPR segment Bainbridge may have raised some substantive points! But still, this sure looks like hackery to me.)

  • While Mr. Campos makes a good point, he doesn’t go nearly far enough and the rare air being breathed by most of the commenters is suffocating.

    American law schools are a disgrace and Ivy League law schools are worst of all because they are, for the most part, exercises in back scratching.

    Let’s move on to the main event: If Ivy League law schools (and the University of Chicago, as well) as such hot spit, then why is the legal profession full of fee churners. hoodlums and other ethically challenged shingle hangers who seldom are called out, let alone disciplined by peer associations (are you paying attention John Yoo?), while the American criminal and civil justice systems are only marginally functional and the case law made by the Roberts court an orgy of judicial activism?

    Shouldn’t Harvard Law and its ilk be setting the standard in real-world legal scholarship, legal accountability and legal reform and ethics? Of course they should, but as the search through Kagan’s academic record shows, Harvard Law might as well be called La La Law.

    We know little of substance from Kagan’s years in Cambridge because there was little of substance.

    • Matt L

      Right on. The best comment on the thread.

      • Anderson

        Well, maybe the first baby step in accountability is expecting a 1L to do his work and read his assignment?

        Is someone who can’t bother to read the cases for his *own* benefit, going to read them for someone else’s benefit when he’s a lawyer?

        Or is he just going to trust that the West headnotes tell him what the law is?

      • larryb33

        Me too.

    • SteveS

      There are ethically challenged people in the legal profession! OMG! The entire legal profession is a disgrace and its all Elena Kagan’s fault!

      • mayberrymachiavellian

        Agreed: this is the best comment here. For more enlightenment, go to http://www.fredrodell.com and read Yale Law professor Fred Rodell’s “Woe Unto You Lawyers“, which can be downloaded and read in its entirety, free.

  • Evil Parallel Universe

    Reality vs. CLS Critique of the Evils of the Socratic Method: How Even Prof’s Who Rail Against the Socratic Method Nonetheless Can Seek to Elude and Embarrass Students.

    Duncan Kennedy was my 1L Contracts Law Prof. And Prof. Kennedy, for all his CLS street cred, didn’t seem to come across in his teaching methodology as that different from my other profs (though you could “Pass” if called upon, which was nice). And though in your quote above he rails against the Socratic Method, it doesn’t mean he didn’t try to nonetheless elude and/or embarrass the class (let alone particular students) in his own, special, and, to this day, still unfathomable way. Which allows me to tell this story:

    Prof. Kennedy asked the entire class (a room filled with about 150 students) ‘who has seen the movies “Z,” “Battle of Algiers” and “Hearts and Minds.” I raised my hand. I saw “Z” when I was a teen on very late night TV, and was a Poli Sci major in College and saw “Battle of Algiers” and “Hearts and Minds” for a class I took. No one else in the class raised their hand. But, after asking the question, he didn’t really seem to have any follow up, and he even seemed annoyed (or taken aback, one of the two, it was awhile ago) that someone (me) had actually seen all the films, and he seems to have lost why he asked the question in the first place (which assumes he had a point other than embarrassing the students – it IS an odd question for Contracts class).

    To this day, I still believe he asked the question to embarrass the students, that somehow their (our) not seeing these films made some larger point he was trying to make about CLS critique and the role of the law of contracts in oppressing The People, and that we, b/c we hadn’t seen the films, were destined to become oppressors while the smarter people, like him, saw through the ruse of Contract Law as anything other than class struggle (or something like that). Though where he was actually going with the question eluded me then, and 20 years or so later still eludes me.

    Was that Socratic? I guess not. Though his reasons or aims in asking the question were, IMO, for the same purposes as those he takes the Socratic Method to task.

    And since I don’t often get to tell that story in an appropriate context, I thank you!

    • IM

      Answering a pointless anecdote with a pointless anecdote is indeed the appropriate context.

      Z and contract law? Z has a judge as hero, a rare thing in movies.

  • I went to a Canadian law school which was desperate to imitate the Ivy League/U of C. I agree with Kennedy and Campos that the “Socratic method” is about as connected to pedagogy as fraternity hazing. Oral advocacy is better taught in moot trials and appeals. Generally, the standard of teaching at law schools with big reputations is very low.

    • Anderson

      I don’t think that’s fair. 1L classes tend to be quite large and reading-intensive.

      So how do you ensure that the students do the reading?

      The prof can simply shrug and say that they’re adults, they must sink or swim on their own.

      But the only practical alternative to that is to spot-check students’ reading. Which thus turns out to be the *more* humane and student-friendly approach, compared to simple indifference how the students fare.

      • Matt L

        So how do you ensure that the students do the reading?

        do the reading. Its grad school. You either show up and do the work or your don’t. There are no brownie points for doing your job and there shouldn’t be.

        • The stakes are higher in law school than in plain old grad school. If I blow off my Chaucer reading maybe I won’t be as well-rounded a scholar. If I decide that I’m not so into CivPro I may find myself screwing up a case that is important to a client. And if I decide that I don’t care to engage in Socratic reasoning?

          Up thread someone comments that there is no such thing as a surprise oral argument. Maybe so– although I’ve seen plenty of people who seemed surprised. The point is that the Socratic method isn’t supposed to be a Gotcha! game. It can be– it is surprisingly easy to play Gotcha! when you are in the front of the room and that’s the point that Prof. Kennedy is making. Done right, however, the Socratic method is a form of thinking aloud, and fosters the sort of creative thought that good lawyers should engage in. I’ve had to field plenty of questions I hadn’t anticipated in my time. These come ;not just from judges; clients ask hard questions, and partners, and associates and students. It is an important lawyer skill to be able to field these sort of queries, and not just by bullshitting.

          • djw

            If I blow off my Chaucer reading maybe I won’t be as well-rounded a scholar. If I decide that I’m not so into CivPro I may find myself screwing up a case that is important to a client.

            Pretty much all the lawyers I know say that about 90% of what they learned that’s helpful and relevant in the actual practice of law they actually learned on the job or in the bar cram course.

            • Anderson

              That’s true, tho you do hopefully come out with a few things internalized, like “first make sure the court has jurisdiction” and “answer requests for admission within 30 days or else.”

              But what you *do* learn is “how to think like a lawyer” — how to grasp what a case holds and what it doesn’t, how to distinguish its holding on different facts, stuff like that.

              And *that* is what you learn by reading cases and being popped on them by your 1L law prof.

          • larryb33

            Considering the typical client of the “liberal” Harvard trained lawyer, I am not convinced that screwing up is such a bad thing.

  • rea

    when she analyzes first amendment doctrine she goes out of her way to avoid stating a view on either the legal correctness or political desirability of what she’s analyzing.

    In other words, you think legal scholarship ought to be focused on what the law ought to be, rather than what it is.

  • Paul Campos

    How does avoiding a discussion of the legal correctness of judicial assertions regarding what the law is equal focusing on what the law is rather than it ought to be?

    • Anderson

      avoiding a discussion

      Tendentious bullshit. Let’s see some proof that she “goes out of her way to avoid stating” an opinion … as opposed to, simply not writing that kind of article.

      For someone complaining vehemently about the lack of evidence for Kagan’s suitability, Prof. Campos has very little evidence of his own to offer.

      • Paul Campos

        How about scrolling down a little farther on this blog:

        Consider the Private Speech, Public Purposes article Volokh likes so much. Volokh emphasizes that it’s in his view a sophisticated analysis of the relevant legal doctrines. But Kagan quite self-consciously avoids any critical evaluation of those doctrines. For example, the thesis of the article is that the Supreme Court’s First Amendment doctrine “constitutes a complex scheme for ascertaining the governmental purposes underlying the regulation of speech.” Of course the questions a reader wants answered when considering Kagan’s potential elevation to the court is whether Kagan believes this scheme correctly interprets the First Amendment, and whether — to the extent Kagan believes this is even a different question – it’s a good method for regulating speech. Kagan flatly refuses to address these issues: “I have never proposed to show,” she notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does . . . I leave for another day the question of whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.” (That day is apparently not yet here).

        • Anderson

          Of course the questions a reader wants answered when considering Kagan’s potential elevation to the court is whether Kagan believes this scheme correctly interprets the First Amendment

          My goodness! It’s as if she didn’t write that article expecting it to be used to evaluate her for the Supreme Court!

          She must’ve had some other, inscrutable, unguessable motive for writing an article. What could it be?

        • rea

          “the thesis of the article is that the Supreme Court’s First Amendment doctrine “constitutes a complex scheme for ascertaining the governmental purposes underlying the regulation of speech.” Of course the questions a reader wants answered when considering Kagan’s potential elevation to the court is whether Kagan believes this scheme correctly interprets the First Amendment, and whether — to the extent Kagan believes this is even a different question – it’s a good method for regulating speech.”

          Th Holmes quote I posted above ought to be here. The point is, to a practical lawyer, what the law is ranks far above what the law ought to be in terms of importance. I can’t blame someone who writes a lengthy article analyzing complex doctrine, for not spending most of the article on what the doctrine ought to be if judges were only smarter.

          • Joe

            It might be fine as an academic exercise, but it underlines how much of a black box being put on the Court.

            Also, her supporters readily admit she has avoided taking positions since doing so is dangerous in the current environment.

            Campos isn’t just blowing out of his ass here.

            • Some of us are trying to keep the issue of what her legal scholarship tells us about what kind of justice she’d be (not much, esp. on how she’d rule on key issues or in general) from whether her legal scholarship is sufficiently scholarly and significant to make her a non-empty suit.

              Campos definitely claims that you can’t discern her normative legal views from her articles (as does most everyone). He also claims that, at least as a body of work, it is undistinguished at best. Disqualifying for tenure, even. It does also seem that, at least here, the fact that you can’t figure out her substantive normative views is part of what makes the work undistinguished.

              That just doesn’t seem reasonable. Is it really the case that you can’t be a purely analytical scholar and yet be distinguished or, at least, be granted tenure?!

  • BJ

    For what it’s worth (exactly as much as this blog post …) I have a neighbor who took the same class from Prof Kagan and described her manner completely differently.

  • Matt L

    I think the larger point is that a mediocre coat holder from an Ivy League school is going to get the nod from other mediocre coat holders from other Ivies.

    Its not Kagan personally. Its the fact that Obama has decided to perpetuate the same system he promised to change during the election. Hopeychangey… hopeychangey… more of the same.

    • Ed

      Well, some of it is Kagan personally, in that it’s legitimate for progessives to wonder about this “fan of presidential power.” Kagan’s record is distressingly skimpy, but even so there are enough qustions about her views on free speech and the national security state for liberals to question and yes, even oppose this nomination.

    • Obama promised not to nominate Ivy Leaguers to the Supreme Court? I must have missed it. Where did he promise to get them from?

      • Anderson

        Kenya, as part of his effort to replace the U.S. Constitution with international law and tribal ritual. There are a few witch doctors VERY unhappy not even to’ve gotten a phone call when Stevens retired.

        Don’t you watch ANY Fox? You would know all this.

  • Kevin

    I think many law profs use the Socratic method for the same reasons many people still don’t wear white after Labor Day–either through slavish adherence to tradition or fear that enough of their peers will do it that they’ll stick out if they don’t. In any case, I don’t think it has much bearing on whether they would make a good judge.

    And, if we’re disqualifying SCOTUS picks who love them some Charles W. Kingsfield Jr., then can we at least add bowties and Mid-Atlantic English accents to the list as well?

    • Paul Campos

      “And, if we’re disqualifying SCOTUS picks who love them some Charles W. Kingsfield Jr., then can we at least add bowties and Mid-Atlantic English accents to the list as well?”

      I agree, and have passed your request on to Scott Lemieux for executive action.

    • rea

      My contract professor, Beverly Pooley, wore bowties, had an English accent (being an Englishman) and had been technical advisor to Houseman when the movie was made. He was known to offer students dimes to call their mothers, too.

  • anniecat45

    I am a paralegal with 25 years in the legal system, and I was HORRIFIED by the attitude of laziness and unwillingness to be prepared that was expressed in Elie Mystal post about his experience in Elena Kagan’s class. For anyone on this thread who seems to think she was too harsh on him —

    WHAT DO YOU THINK OPPOSING COUNSEL AND A JUDGE WOULD DO TO THIS KID IN A COURT HEARING?

    Unless he was lucky enough to find an opposing counsel who also hadn’t bothered to do their prep, he’d get his clock cleaned, meaning his client is screwed. And although I agree with him that civil procedure is boring, that’s one of the things a client is buying when they hire a lawyer — KNOWLEDGE OF LEGAL PROCEDURES, in other words, trivia like filing a lawsuit on time so you don’t miss a statute of limitations.

    As for showing up late — I’m now a court clerk and in my state, if you show up late for a hearing and miss the roll call, the judge does not have to let you present an argument.

    And none of this stuff just happens. People have to learn it, which is what law school is partly for.

    I’m betting that Kagan picked up on this kid’s casual attitude and reacted accordingly — as I’ve reacted when attorneys I’ve worked for were slopping off on their jobs — which is, GET IT TOGETHER AND DO YOUR WORK.

  • Anderson

    Via Volokh, someone who troubled to read Kagan’s long “Presidential Administration” article finds some normative judgments:

    In Clinton v. City of New York, the Court reviewed a challenge to the Line Item Veto Act…. [T]he Court held that the Act violated the “finely wrought” procedures of Article I, Section 7 of the Constitution by authorizing the President unilaterally to repeal parts of enacted statutes. The two dissenting opinions in the case, however, demolished this claim by pointing out the technical adherence of the Act’s cancellation mechanism to this constitutional provision….

    Amusingly, Clinton and the other op she rags on, were both penned by Stevens.

  • JoeBob

    Preface: I am not now, nor have I ever been, either a lawyer or law student.

    I don’t particularly get all the criticism of the Socratic method, so-called, in law schools. At both the MS and PhD levels, I had to show I could think on my feet in both oral qualifying exams and oral thesis defenses. And the same has been expected in every public presentation I’ve ever given in my (scientific) field. The qualifying exam is to test whether the student knows how to develop a doable research project and has the requisite skills. The defense is to test whether the research was actually carried out properly. It sure sounds similar to the law-school Socratic method, and it seems like a reasonable method.

    In other news, I’m glancing around nervously because I’ve had the bad judgment to occasionally agree with my ex-Democrat, currently crypto-Republican neighbor about municipal politics in my West Coast city (which probably voted for Obama by a 3-to-1 margin in 2008). I now see that my failure to automatically reject anything my neighbor has to say makes me Politically Unreliable.

    • Anderson

      Mutatis mutandis, David Rees’s reaction to a Bush presser will do pretty well for this thread’s consensus about whether a law student should be able to endure questions about assigned reading.

      “East Coast elitist?” Fuck it, sure — is that what you call it? Fine. All I know is I’m from New York City, I can think on my feet, I can actually string two fuckin’ sentences together without notes, and I could answer some motherfuckers’ questions about a war without just spitting out eleven different permutations of the same goddamn “goo-gah boogaloo freedom” phrase! So sue me — that makes me elitist? Good! If “elitist” just means “not the dumbest motherfucker in the room,” I’ll be an elitist!

      Please stop hitting yourself, Prof. Campos.

  • Paul, you’re responding in this thread. Yay. I’d really like some response to the following points/questions:

    1) Do you think that if several years after being granted tenure a professor has an article which won an award as “[2001’s] top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice” provide any prima facie evidence that her record wasn’t merely a matter of cronyism? (I can imagine how it wouldn’t, e.g., if the rest of the field was crap, etc.)

    2) Do you believe that it was universally unto the point of standard best practice in legal academia to reject the Socratic method, at least in its extreme forms, in 2000?

    3) Would you vote to deny tenure to someone who did use the Socratic method? Would you regard it as out of bound to not vote to deny her tenure on that ground?

    4) Do you think that her scholarship is bad on the merits, purely and simply, as scholarship? Do you think it’s so bad that it would be an overriding argument against granting tenure? (This is distinct from whether it is helpful for evaluating her as a nominee.)

    Or to put it another way, if a bring young assistant prof who just graduated from Harvard wrote such an article, would you say, “That’s really not good work and won’t help your tenure case.” and “Well, if you must publish it, don’t send it to Harvard Law Review! That will look like you shopped venue for an easy accept and you won’t get good feedback.”

    5) Given the fact that Kagan’s substantive nomination relevant views are not clearly and plainly disclosed in her record and that there’s a pretty good case to be made (as, e.g., Scott has done repeatedly) that that’s not a happy move on Obama’s part for progressives, what additional value is there in, well, vilifying her on rather slender evidence (e.g., a blog post with a ten year recollection of an encounter in the classroom)?

    6) Would you be ok with her nomination if the political circumstances were more unfavorable to a sane confirmation process, e.g., after the midterms and let’s say that the Senate has 49 Republicans? Or is she unsuitable all things considered?

    Thanks!

    • Paul Campos

      1) Do you think that if several years after being granted tenure a professor has an article which won an award as “[2001’s] top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice” provide any prima facie evidence that her record wasn’t merely a matter of cronyism? (I can imagine how it wouldn’t, e.g., if the rest of the field was crap, etc.)

      I’ve never said her record was merely a matter of cronyism. I’ve suggested that her professional promotions are somewhat out of wack with her actual achievements, at least in re scholarship (she may be a great teacher and administrator. She’s certainly a popular one. I don’t think the Harvard article is bad — it’s just been praised way more than it merits IMO.

      2) Do you believe that it was universally unto the point of standard best practice in legal academia to reject the Socratic method, at least in its extreme forms, in 2000?

      I don’t know. I do know the described incident (I acknowledge we’re just getting one version of it by an interested party) would be considered fairly extreme by most law professors in 2000 as opposed to in 1960.

      3) Would you vote to deny tenure to someone who did use the Socratic method? Would you regard it as out of bound to not vote to deny her tenure on that ground?

      Of course not. Again the problem isn’t the Socratic method per se, since that term encompasses a lot of teaching techniques, some of which are actually good. What was described here was bad. I’m not saying the incident is disqualifying or anything absurd like that. I’m saying it’s suggestive in a context in which — again this is the main problem! — we don’t have much evidence regarding the candidate.

      4) Do you think that her scholarship is bad on the merits, purely and simply, as scholarship? Do you think it’s so bad that it would be an overriding argument against granting tenure? (This is distinct from whether it is helpful for evaluating her as a nominee.)

      I don’t think it’s up to Chicago’s normal tenure standards. It’s probably not up to Harvard’s normal standards for lateral hires, although Harvard’s tenure standards have tended to vary a lot, sometimes for dubious reasons.

      5) Given the fact that Kagan’s substantive nomination relevant views are not clearly and plainly disclosed in her record and that there’s a pretty good case to be made (as, e.g., Scott has done repeatedly) that that’s not a happy move on Obama’s part for progressives, what additional value is there in, well, vilifying her on rather slender evidence (e.g., a blog post with a ten year recollection of an encounter in the classroom)?

      I’m not vilifying her. I’m asking some tough questions. She’s the Solicitor General not a cowed 1L. I’m pretty sure she can handle it.

      6) Would you be ok with her nomination if the political circumstances were more unfavorable to a sane confirmation process, e.g., after the midterms and let’s say that the Senate has 49 Republicans? Or is she unsuitable all things considered?

      I can imagine circumstances in which she would be a perfectly acceptable nominee. For example if she were nominated by a moderate Republican president. Then I’d consider her a best case scenario. She would be far less objectionable if the GOP had a majority in the Senate. I still wouldn’t be happy about the blank slate but politics is about compromise. In this situation she’s way too much of a compromise.

      • Thanks for the replies. You sound much more reasonable to me there due to the more restrained tone.

        If I can focus down on three points:

        A) Let me grant that her record was merely promising (at best, and to spin it positively) at the time of tenuring, the traditional (to my knowledge) considerations for tenure are research, service, and teaching. Nominally, distinguishing excellence in one can compensate for thinest in another, although this has typically been primarily used to favor research over the others (this is, of course, a common complaint about tenuring). (Indeed, you acknowledge this in your reply.)

        So, is it really the case that “It’s no doubt coming as a surprise to lots of people in other precincts of academia that it’s possible to get tenure at two of America’s top universities while publishing as little as Kagan has published”? I’m in another precinct of academia and my first thought (given the fact that she doesn’t seem incompetent or ideological and people praise her teaching and admin) is that they actually weighed those other pillars and found that the research didn’t drag her down enough to deny tenure. Obviously, all sorts of subjective stuff could have been in the mix (e.g., collegiality), but these are quite normal across academia.

        (Rereading your The Next Harriet Miers? I see you do engage the quality of Kagan’s work. But that’s at odds with other people’s judgement such as Volkh (ok conservative), Tushnet (who cited her and discussed her in his book, but was on her Harvard faculty), Horton ( who doesn’t seem to have a connection, as is liberal, afaict, “owever, several of her works deal with presidential power, particularly her article “Presidential Administration”. This is a beautiful, extremely perceptive work, closely observed, brilliantly reasoned, and cautious.”), and Levinson (her instructor and on her faculty). So quite a few people, with and without connection or need to suck up to her, view that article as brilliant. That doesn’t make it brilliant, of course, but I think, at this point, you need a far stronger case than you’ve made to distinguish it merely not being to your taste and it not being brilliant.

        Also, given that she’s a supreme court nominee and was dean of Harvard Law, I’d say granting her tenure at Chicago was a pretty smart move, qua academic politics. Yes, obviously that helped her get to where she is, but, of course! That’s part of the point, yes? Giving tenure to someone who will do well with that tenure.)

        So I still don’t get the hyperbole. A perfectly reasonable guess about the Chicago tenure judgement was 1) the scholarship was regarded as high quality, extremely promising, and at least not embarrassing though not voluminous, 2) she was (seen as) a great (and popular) teacher, 3) she was very collegial, 4) she was a great administrator, and 5) she was ambitious, so likely to bring glory to the school.

        That seems a reasonable case for tenure. I can imagine a member of the committee disliking her scholarship as you do and being appalled by some teaching anecdotes voting against her. But…so?

        B) Can you point me to some evidence that “most law professors” in 2000 would have found her teaching method fairly extreme? (Do you mean a majority?)

        I reread that post and she did not personally attack Elie. The first incident report doesn’t contain any personal attacks (she didn’t call him stupid, lazy, hopeless, never gonna be a lawyer). For the second incident, the student was so cowed by her authoritarian manner that he mocked her teaching style, in class, in front of her, in *spite* of being prepared (in a pretty funny way, I think). As a result, he had a seemingly unwarranted fear that she was going to fail him for personal reasons and had a very useful conversation with her in her office.

        I recall being called stupid in one of my classes in philosophy grad school (1991) and we had a brutal “boot camp” course (where rather extreme, and crappy, feedback was given which *was* out of bounds; I did confront the prof, out of class, and seriously and got a change in behavior). I would hope that in 2000 people would know that going on and on about the personal attributes of a student was Not Done (if only to avoid retaliation) but making them uncomfortable with a question? Asking them to read a passage aloud and interpret it on the fly? Making it an object lesson (come prepared or don’t come since you’ll be put on the spot and might have to read a passage aloud and look silly)?

        Why didn’t he report her ripping him a new one after his lese majesty?

        C) You claim to be merely asking tough questions. I really approve of asking tough questions! But I think there is a strong element of vilification going on. It certainly *seems* that way. Consider the comparison with Miers. First, I think that prima facie, from her record, she wasn’t an absurd choice (Reid recommend her in the first place). I think politically, the Republican’s were in a much stronger position (they had the beat the dems on judicial appointments thing down pat; so I think it’s more reasonable for Obama to have a different judgement of nomination tactics — it doesn’t make me *happy*, of course). Second, what clearly disqualified her was her clear ignorance of basic constitutional law. She was brutally unqualified to be on the supreme court in a fundamental way that Kagan clearly isn’t (at least, on current evidence). Miers creepy Bush worship was also very worrisome.

        Comparing her to Miers without making these points is reasonably read as a smear. There *are* points of comparison, esp. the optics. But coupled with the full throated denunciations of her scholarship, the suggestion that her work might be overhyped by cronies (e.g., “no peer review” on the basis of hypotheses that editors were in her classes, etc.), the hostile of one mildly negative report on her teaching create a strong appearance that you think she is not *fit* for the position (in the way that Miers was not fit).

        Temperamentally, this feels more like the 180 proof Socratic method than not. I find that relatedly problematic to wholly deferring to Obama’s judgement. I don’t think one need go for optimum balance, but you are speculating quite heavily and negatively on scant evidence.

  • Pingback: Balloon Juice » Blog Archive » No One Expects the Spanish Inquisition Socratic Method!()

  • Oh! One more:

    8) If it’s impossible to determine her normative legal views from her record with any reasonable certainty, why does it matter that a bunch of conservatives endorse her pick? Do they know something we don’t? How?

    (Note, I’m pretty sure I come down on the “nominate a clear progressive with an articled track record of progressive opinion at this time since it ain’t ganna to get better” side of things, so if her nomination IS fooling Starr et al I don’t see that that has any real political value. But you seem to be making the inverse Bainbridge argument: You can learn a lot from who endorses her. But, really, how is that supposed to be substantial?)

    • taylormattd

      Regarding conservative commenters, did you see this? Conservative professor Bainbridge’s “endorsement” lifted from upthread:

      I don’t know very much about Elena Kagan other than that a couple of Harvard folks for whom I have a lot of respect think highly of her. When I look at some of the lefties who are opposing her and their reasons for doing so, however, I’m tempted to conclude that she’s the most acceptable–from my perspective–candidate Obama is likely to put forward for the SCOTUS. You can tell a lot about a person from who their enemies are.

      Lol.

  • chuck

    Waaaah, Prof. Kagen hurt my pwecious feewings! My self-esteem is ruined!

    Considering that the job of a SCOTUS justice is to mercilessly grill people, my estimation of her just went up a couple orders of magnitude.

  • larryb33

    Yeah, well, not sure if I should be weighing in here as someone whose interaction with the law is more of the -getting- pulled -over- for -speeding type than engaging in a Socratic discussion with Professor Kagan. But gotta say, why is Paul getting beat up? I’m grateful to all those that have some sort of platform that have spoken out against this nomination. I don’t have one. I think it does say something about Kagan that her main passion in life is advancing her career. I’m not counting on her to speak for me.
    The fact that there are about 100 responses to this post? Well, the popularity brings to mind how whenever they have any story featuring an ivy league school in the New York Times it always shoots to the top of the most read list.

    • richard

      But gotta say, why is Paul getting beat up?

      Because criticizing her for using the Socratic method is, in the view of many including myself, just plain dumb. And selectively quoting from one former law student who has a confrontation with her (and not quoting the portion of his post where he says he really liked her and found her to be really smart)is misleading and also dumb.

      He thinks that use of the Socratic method is authoritarian. Most of us practicing lawyers strongly disagree. If you take a strong position, be prepared to back it up. IMHO, his defenses of his position are extremely weak

    • Anderson

      As I snarked above, it’s more like Campos is beating *himself* up. We’re just pointing that out to him.

      • larryb33

        Yeah, that is snarky. It seems to be par for the course here where winning an argument seems more important than the substance of the argument.
        Too bad.

  • Zach

    This sounds like anecdotes from nearly every 1L course I’ve ever heard about, and it doesn’t discuss whether Kagan had any method (formal or informal) of allowing students to recuse themselves in the event that they couldn’t do the required reading. My impression is that this is the most common method of teaching, and that its implementation varies in three major ways:
    1. Can students recuse themselves?
    2. To what degree do students know whether they will be called upon?
    3. How many students are called upon during a particular lecture?

    Most common is obviously not equivalent to most preferable or best, but I can’t see how this is a disqualification for anything.

  • mb

    IMHO, Kagan’s ‘blank-slateness’ is exactly what the times call for. If O had picked a documented liberal, it is entirely possible that he could have drawn a filibuster. The political atmosphere on the right is volatile and toxic and could make stopping a filibuster against a godless liberal hard to do. It’d be difficult to filibuster Kagan — I don’t think there are that many that will be shocked at her aggressive use of the Socratic Method, but who knows? If you get the Hooked On Phonics folks riled up, you might get DeMint to sign up to filibuster.

    I see no value in efforts to weaken this nominee. She is not going to withdraw or be withdrawn nor is there any progressive, liberal, centrist, or, apparently, conservative Senator who is going to stop her. Digging up small-minded crap like this is counter-productive.

    • Yeah, as I was walking home I rethought my view on Scott’s argument. Even though Obama will likely be in a worse position for the next appointment, it’s not the case he’s necessarily in (or sees himself in) a good position now. It’s not like there isn’t a lot of other pressing stuff to do! This isn’t the choice I’d like but it’s not the world I’d like either.

    • IM

      I remember how distrustful democratic senators and democrats generally were because this Souter fellow was such a blank slate. Everybody thought that Bush had send a conservative submarine into the court.

      Now many fear a reverse Souter.

      • Sapient

        A “reverse Souter”? The only reason Souter was a surprise is that he was a thoughtful, nondogmatic justice. Oftentimes, lack of dogma results in thoughtful decisions based on the law and the Constitution. Those who claim to believe in the law and the Constitution should embrace a serious, nondogmatic approach to legal analysis. I am a liberal and love liberal firebrands, but I imagine with Kagan, we’ll get another Souter, and that’s fine with me.

  • Brandon T

    Forgive me for stereotyping, but Mr. Mystal’s problems seem to be more due to what I call “egotistical student syndrome” than any particular deficiency on Kagan’s part.

    This is not unique to law students. Indeed, I knew many students in undergraduate philosophy/sociology classes that fit the same mold. The students expect an “adult”/equal power relationship with the professor, but refuse to provide their end of it. They neglect to notice that in the “real world”, respect is generally accorded having fulfilled some preconditions–in this case, meeting minimum preparedness and engagement standards so time is not wasted in class.

    His response to Kagan’s solicitation is instructive. The proper response would be, “I’m not prepared, but if you insist, I will contribute such as I can to the discussion”–that is, indeed, the responsible, openminded approach to the situation. Instead, he preemptively gives up and expects a boon not granted to other students, which is pretty disrespectful.

    • LOOK AT ME! I READ FOUCAULT!

      You’re just, like, into power relations, maaaaaan.

  • Klaus

    I wasn’t aware that they taught psychoanalysis at law school.

  • Shade Tail

    Well, you know, Mr. Campos, I can say with certainty that you’re correct about Prof. Kagan’s socratic method if it were applied to grade school students. My husband is a high school math teacher, and having frequently met his students, I know for a fact that even the brightest of them wouldn’t do very well with that method of teaching.

    But we’re not talking about grade school students. We’re talking about full-grown adults getting a professional education, and at a very prestigious school no less (at least, in the blog post you’ve linked to). And often, in professional/graduate education, pushing people up against the wall and seeing if they really know the material is the entire point. And if that kind of class or seminar makes a student wash out, then one way or another, they *didn’t* know the material and so didn’t belong there.

    Now, you don’t necessarily need to agree that this is a good way to teach professional/graduate school. There’s room for debate there. But you’re reaching way too far in claiming that this is some kind of clear evidence of Kagan’s character, or a disqualifying flaw, or such.

  • Saxifrage

    As a high school teacher, I find Campos’ assumption that the apparent cruelties of what he calls the “Classic Socratic Method” would somehow be appropriate for younger students but which shouldn’t ever be used when teaching adults.

    That is completely and I think rather obviously backwards. That this assumption seems to go unchallenged here is a little scary.

  • The idea that it’s beyond the pale to “ritually humiliate” an entitled jerk who can’t be arsed to do the reading for a class explains why I routinely take calls from students who don’t know their account passwords because their parents set them up (a 26-year-old law student, in one case), or from parents of undergrads asking us to review the mail server logs to prove that their kid submitted the assignment that the professor never received. Gods forbid anyone should expect a student to be responsible for their own shit, or to deal with the consequences when they’re not.

  • mongo

    I have to confess that I’m a little agog over the premise that the Socratic method is inherently evil and wrong…

    I went through graduate school in the “hard” sciences, and there must have been some subversive element in that there curriculum that fooled me into thinking that this was a sound way of turning rote learning into a tool that can be adapted to solve *any* problem that one might encounter.

    I feel very foolish and debased, particularly on behalf of this poor “special needs” student who wasn’t able to participate in the class that he was so woefully unprepared for.

    What a crock of poo.

    Mr. Campos, I am neither a lawyer nor (currently) an academic. I am not taking the opposite position to yours; I am merely yet completely unpersuaded by your rhetoric.

    Instead of making gossipy innuendos, why not *list* the traits you would like to see in a SCOTUS nominee and then see how the available prospects measure up against them?

    Also, why is it that the simple fact of an endorsement from one or more conservative pundits count as a disqualification?

    Where’s the beef?!?

    peace,

    mongo

  • wengler

    Let’s get back to less controversial posts like Campos going off on BMI.

    Seriously now, people are pissed off that the most leftist justice on the court is being replaced by someone who is not an outspoken leftist(or as close as exists to one these days). In fact it looks like Obama opted for a safe institutional pick with someone already inducted into the elite long ago.

    What really sucks about this is that it proves that Obama has no stomach to really push for policies that a big part of his base supported him for, and rather they have to trust him and not verify that Kagan will at least not sell the country to every person or corporation with their pockets full of free speech(thank you Citizens United). That’s the fail here. Obama could’ve given Democrats something for all the hard work they’ve done for them. Instead he picks a consensus searcher that will likely move the goalposts further right.

    • larryb33

      Yup.
      (Perhaps if I went to Law School and was trained using the Socratic Method I could have written a better response.)

  • rea

    Prof. Campos approach to legal schlarship reminds me of those online discussions of the 14th Amendment where somebody always comes in and annoucnes, “Well, the Slaughterhouse Cases were wrongly decided and everything that follows is nonsense.” As a practical lawyer, those discusssions bore me.

    What I want to know is (1) what precedent tells me about how the courts are likely to decide my client’s case, and (2) how to make arguments at the borders of existing precedent that can lead to a better result for my client. It sounds to me like Dean Kagen’s articles would be very useful to someone like me, which might be why they are so frequently cited. Meanwhile, the hyppothetical article, “Rethinking the 14th Amendment from First Principles,” 87 Wanker L Rev 573 (2001), sounds on its face like Prof. Campos idea of good scholarhip, but is not something that I, or any oter real-world lawyer, would ever bother to read.

  • Just an additional record note, since I’m gathering them here. There’s evidence that people at Chicago agree with Campos, to some extent.

    http://www.politico.com/news/stories/0510/37041_Page2.html

    While Kagan did win tenure at the University of Chicago in 1995, her limited body of academic work played a role in the university’s decision not to allow her to reclaim her post after her White House stint, associates said.

    “There were a number of factors, but if you look at it yourself and compare it with many people, it was clearly not that strong as of that date,” said Richard Epstein, a libertarian law professor at Chicago. “She comes out of that disappointment at Chicago to Harvard and exceeds everyone’s expectations, including her own.”

    So, they had some buyer’s remorse. (It’s a bit weird since she went govt right after tenure so of course her output would have been reduced. Maybe they didn’t want someone who jumped back and forth from govt?)

    • Paul Campos

      Omigod I’ve been in this business for 20 years and I never stop getting surprised by how rotten it is.

      Consider: Kagan got tenure at U of C in 1995. At that time she’d published one article and a couple of short essays. She goes to the WH, and in the following year she publishes the Private Speech Public Purposes article (given the timing there’s no way this article could have been part of her university tenure file). This is actually, IMO, one of her two best pieces — but it wasn’t even part of the tenure decision. If anything, writing or at least completing this piece while she was in the WH was the most impressive academic thing she’d done to date. But they dump her anyway!

      One possibility here is that she got tenure with a kind of understanding that she needed to go off and get another job. That certainly fits the chronology on both ends.

      • The problem with the “understanding” is why would she have inquired after the WH? Of course, maybe she thought that the Private Speech article + WH services would be “enough”, or she had a conditional tenure (we’ll grant it before you resign to go to the WH on the understanding that we won’t give you your job back unless you’ve done X,Y,Z). That’d be gross.

        It’s too speculative, really. I’m not sure how much to trust the Chicago guy they quote (was he on the tenure committee? The rehire group? Is it just gossip? who knows?)

        Plus, there are innocuous versions, e.g., she had an offer from Harvard, or at least interest, and was negotiating for a better Chicago deal (e.g., full professorship). At that point, they might have thought that she wasn’t yet far enough along for that.

        As I wrote, Who Knows?

  • Yusifu

    The specifics are a bit different, but these arguments remind me of some about Justice Sotomayor after her nomination: she’s mediocre, and she’s a b*tch. Would an analogous male nominee be criticized in the same way?

  • The Dark Avenger

    she’s mediocre

    Actually, it’s the lack of a paper trail to even determine if her legal thoughts can be characterized as such, not her scholarship as such.

  • Mrs Tilton

    I’m not sure what Paul’s point is in quoting Kagan’s former 1L who couldn’t be arsed to prepare for class. Like Nadezhda, I too had Clark Byse for Contracts, and he did the same damn thing (though not to me, thank Cthulhu!). Pity Byse was never appointed to the Court, but now thanks to Paul I know he’d have sucked.

    Paul’s opposition to the Kagan appointment is a little suspect, though. Kagan is, how shall I say this and not that it should matter, slightly heavy. I think Paul is guilty of BMIism here.

    • The Dark Avenger

      I’m not sure what Paul’s point is in quoting Kagan’s former 1L who couldn’t be arsed to prepare for class.

      I dunno, except that even in other kinds of adult education, humiliation of a student is generally not approved of as a teaching method.

      Like Nadezhda, I too had Clark Byse for Contracts, and he did the same damn thing (though not to me, thank Cthulhu!)

      And that experience really helped that law student how, aside from being prepared the next time Mr. Byse called upon him?

      Paul’s opposition to the Kagan appointment is a little suspect, though. Kagan is, how shall I say this and not that it should matter, slightly heavy. I think Paul is guilty of BMIism here.

      Nah he’s obviously demonstrating his prejudice against brown-haired women, I’m surprised that someone of your perspicacity missed that completely, Mrs. Tilton.

      • Sapient

        “aside from being prepared the next time Mr. Byse called upon him?”

        Being prepared the next time Mr. Byse called on him was an excellent improvement. The fact is that lazy ass students should not get a pass in a prestigious law school. They, most of them, get their degree; they might as well do something to earn it.

      • Mrs Tilton

        DA, Byse scared the living shit out of many of his students. Not me, though. It was pretty easy to understand what he was all about: doing his job and teaching his students the material. He simply expected us to do our job and study that material.

        If his methods occasionally engendered terror in the lazy and unprepared, then all the better. Most of us would not go on to be judges, whose laziness wouldn’t matter and could arguably be a net positive. We would go on to be working lawyers with actual clients. Being prepared for class was a simple proxy for being prepared, later, for negotiations or trial. If you can’t at a moment’s notice train a fire-hose of law and fact or (failing those two) bullshit on a problem for you client’s benefit, find another profession.

        I know elderly partners at top white shoe firms who still react in anger and fear at the mention of Byse’s name. They are fools. It was very easy to understand Byse, and to understand that he was right about most things, when you recall that he was a teacher. (And, as an aside, he was not remotely like the plump, plummy, pseudo-English accented character he was supposed to have inspired in that film; he was a rail-thin no-nonsense midwesterner.) I have no sympathy whatever for those of his students who felt the blade because they couldn’t be bothered to do their work. And here’s the thing: I suspect that any of them who did not turn out utterly worthless in their profession, though they might hate the memory of that moment, will hold him in the same regard I do.

        I am agnostic as to whether Kagan is the “right pick” for the Court. I am certainly not her partisan (though Paul’s voluminous anti-Kagan screechings are nearly as tiresome as his “fat people aren’t fat” sermons; dude, put a feckin sock in it). But if she held her students’ feet to the fire the way Byse did his, that only speaks well of her. If she is confirmed, would you want her to do any less to the advocates who appear before the Court?

        • The Dark Avenger

          If his methods occasionally engendered terror in the lazy and unprepared, then all the better. Most of us would not go on to be judges, whose laziness wouldn’t matter and could arguably be a net positive.

          Actually, there are perhaps other ways of screening out the lazy and unprepared, like giving them a low grade, or talking to them one-on-one like an adult teacher to another adult student.

          If she is confirmed, would you want her to do any less to the advocates who appear before the Court?

          Yes, because appearing before the Supreme Court for oral arguments is in the same category as taking a class from your esteemed teacher, right?

          This reminds me of how doctors like interns to work 100+ hours a week because they did so in their training, ignoring the obvious medical fact that learning doesn’t take place if one is overworked or underrested.

          Anyway, why not start terrorizing students in high school, or even when they start in kindergarten?

          “Now, Miss Tilton, what comes after A and B in the alphabet, be sure to speak loudly so that the rest of the students can hear you!”

    • frankly0

      Too heavy?

      Odd, I had thought that Paul’s opposition might be better expressed that she was, as a SC nominee, rather a lightweight — or, at least, didn’t have much of a substantive presence.

      I.e., too little gravity, not too much.

  • Anonymous

    How many people voted against Bush 41 because of Clarence Thomas? I guarantee you it was a miniscule percentage. For that reason, Obama could have nominated a real liberal like Wood or Karlan and expected to pay a an equally small political price in 2012. The fact that he didn’t confirms, for me anyway, that he prefers David Ignatius’s “beloved center”, the place where Washington, Wall Street, and the Ivy League meet and congratulate themselves for being Serious.

    Well, that’s one way of looking at it. Equally plausible, though, is the possibility that Obama’s still got a lot on his (well, Congress’s) plate – climate change, finance reform, immigration reform, etc – and a bruising confirmation battle isn’t what he wants to be dealing with right now. So he picks someone at least somewhat liberal and non-controversial, so as to avoid (yet) another opportunity for the GOP to burn up precious time during this session.

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