Wednesday, April 15, 2009

Pound on the Socratic Method

During a recent trip to the Harvard Law School Library, I had the opportunity, thanks to the thoughtfulness of Special Collections Librarian David Warrington, to read "The Harvard Law School Deanship of Roscoe Pound, 1916-1936" (1999), a thoroughly researched paper written by then third-year HLS student James F. Clark for a seminar directed by Daniel R. Coquillete. I was struck by one of Mr. Clark's quotations, a letter from Pound to John H. Rowell, dated April 11, 1934, in which the Harvard law dean defends the Socratic method. Without endorsing Pound's (gendered) pedagogy, I thought I'd reproduce the quote as a revealing window on what the Socratic teachers of the early twentieth century thought they were about.

Pound writes that "one who is to practise law absolutely must" be able to
stand up manfully to judges who are often tired and impatient, sometimes fussy and nervous, and, unhappily, sometimes tyrannical, and make one's points respectfully and firmly and assuredly in the face of a pretty severe fire of questions. Our classroom exercises, if the student takes them aright, are the best preparation in the world for this. Nerves and sensitiveness have no place in the forum. The sooner the law student stops thinking about himself and comes to think about the concrete questions of law presented to him the better.

5 comments:

History said...

Dan,

I am a big fan of your blog posts. One minor quibble with this one: I don't think Pound's words need necessarily be seen in a "gendered" light. Manliness and masculinity were perceived to be distinct characteristics in the 19th century and into the early 20th. Manliness was associated with a certain hardiness, steadiness, vigor in the face of the world's fight – it was a universal attribute. Women could be "manly" or "manful" in this sense. Masculinity, in contrast, was a more gendered concept. (I learned of this distinction, interestingly, when doing some research of my own in the Harvard archives. When Harvard and Radcliffe merged in the late 1990s, the university had to do a legal review to see whether certain student prizes violated discrimination laws and university policy more generally. For instance, certain Harvard prizes recognized “manliness” (and had done so since they were first instituted decades ago), and certain Radcliffe prizes were reserved for women only. In the final analysis, the prizes recognizing “manliness” were preserved (and in some instances have since been awarded to women), whereas the prizes that were reserved for either men or women have since been discontinued, or amended).

None of this is to say, of course, that Pound was a major advocate of female legal education, etc. – I doubt he was, though I actually don’t know much about his record on this – you likely know better.

Keep up the great work.

Alexandra said...

Unfortunately, in the age of student evaluations this method of teaching is risky at best.

Dan Ernst said...

Thanks for both comments. I found the correction on Pound's use of the word "manfulness" very helpful. Would the same caveat hold for the use of the word "virile" to describe the Socratic method? I'd have to dig into my notes (cribbed I think from Bill LaPiana's book) to nail down who used the word, but I'm recalling James Barr Ames as explaining the method in those terms.

James Clark said...

Well, it's not everyday that this mutual fund lawyer sees his 3L paper from 10 years ago cited in a blog! Thanks for the kind reference.

I for one am glad that even in the 1990's (to say nothing of today), Harvard Law had largely moved beyond the pure Socratic method (though I recall grimly my Civ Pro class with Arthur Miller), because I don't know how "manfully" I would have endured it. Of course, Pound and most others of his time couldn't have foreseen today's world of corporate law, whose practitioners (including me) have no desire or expectation of ever appearing in front of any judge, "tyrannical" or not.

Shag from Brookline said...

"Of course, Pound and most others of his time couldn't have foreseen today's world of corporate law, whose practitioners (including me) have no desire or expectation of ever appearing in front of any judge, 'tyrannical' or not."

Back in 1954, I started in the general practice of law which involved going to court frequently. After several years I settled into more of an office practice focused on business-corporate-tax law, which signficantly reduced going to court. But I recall the difficulties in court and in standing up to judges in trial courts. But justice starts in the trial courts. Trial attorneys have long performed a valuable service, including making life easier for those of us with office practices. Appellate courts do a reasonably good job in reviewing trial court judges, but only after the expenditure of great expense by an aggrieved party. I recall an arbitrary judge in a MA probate court in the late 1950s responding to an attorney who pointed out that the judge's decision was contrary to well established law, citing such law:

"Well, if you don't like my decision, take it upstairs. Those guys have plenty of time on their hands."

Parties without deep pockets usually cannot afford to go beyond a trial court decision. So there is a role for attorneys to "stand up manfully to judges who ...." Alas, it's not usually very rewarding for attorneys; and it's much more comfortable in the office.