Truong hai ha QH 2007 f1 e1 DNH the casebook and socratic methods in the united states legal education

VIETNAM NATIONAL UNIVERSITY, HANOI University of Languages and International Studies THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION TRƯƠNG HẢI HÀ THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION submitted in partial fulfillment of the requirements for the degree of bachelor of arts (TEFL) Hanoi, May 2011 VIETNAM NATIONAL UNIVERSITY, HANOI University of Languages and International Studies THE FACULTY OF ENGLISH LANGUAGE TEACHER EDUCATION TRƯƠNG HẢI HÀ THE CASEBOOK AND SOCRATIC METHODS IN THE UNITED STATES LEGAL EDUCATION submitted in partial fulfillment of the requirements for the degree of bachelor of arts (TEFL) Supervisor: Nguyen Thi Bach Thao, MA Hanoi, May 2011 STATEMENT OF ACCEPTANCE I hereby state that I: Truong Hai Ha, class 07E1, being a candidate for the degree of Bachelor of Arts (TEFL) accept the requirements of the University relating to the retention and use of Bachelor’s Graduation Paper deposited in the library In terms of these conditions, I agree that the origin of my paper deposited in the library should be accessible for the purposes of study and research, in accordance with the normal conditions established by the librarian for the care, loan or reproduction of the paper Signature April 30th, 2011 ACKNOWLEDGEMENTS First and foremost, I would like to show my deepest gratitude to my supervisor, Ms Nguyen Thi Bach Thao, whose constructive comments, encouragement, guidance, support from the initial to the final step have enabled me to complete this thesis Secondly, I am heartily thankful to Mr Ngo Huy Cuong, Professor at the Faculty of Law, Vietnam National University, Hanoi for giving me the inspiration and confidence to carry out this research Thirdly, it is a pleasure to thank the kind-hearted librarians at the Library and Information Center Vietnam National University, Hanoi for their helpful services Last but not least, I am indebted to my family and friends who have given me the invaluable support during the completion of the paper Truong Hai Ha ABSTRACT The casebook method is the usage of casebooks containing court decisions of actual cases as teaching materials; and the Socratic method is the in-class dialogue or questioning employed by the teacher They were first introduced in American legal education by Former Harvard Law professor Christopher Columbus Langdell in the 1870s Although the heated debate as to the effectiveness of the methods have never ceased since then, the casebook and Socratic methods remain the predominant teaching methods in American till the current day This thesis paper presents a brief history of how the two methods came into existence in the American legal education, analyzes the two methods in practice along with their supporting and opposing critiques, and offers some implications for Vietnamese higher education From the information collected and processed by means of document comparative analysis methodology, it was found that despite all the critiques, the casebook and the Socratic methods have proved to be especially effective in preparing students for their future careers Based on such analysis, some implications for Vietnamese higher education can be realized First, it is necessary for Vietnamese higher education to prepare students with practical skills to meet the demands of the labor market Secondly, teachers and learners‘ interaction in Vietnamese higher education should be increased Last but not least, Vietnamese learners‘ self-study ability needs to be developed These can be done by learning the appropriate teaching methods from more advanced countries However, Vietnamese social, economic and other related features need to be taken into consideration before any adoption and/or adaption is made TABLE OF CONTENTS Acknowledgements i Abstract ii Chapter 1: Introduction 1.1 Statement of the problem and rationale for the study 1.2 Aims and objectives 1.3 Scope of the study 1.4 Significance of the study 1.5 Methodology 1.6 Organization of the study Chapter 2: A brief history of the casebook and Socratic methods in the U.S legal education 2.1 Legal education before Langdell‘s reform 2.1.1 Legal profession in colonial period 2.1.2 Legal training in colonial period 2.1.3 Birth of American law schools 10 2.2 Langdell‘s approach and reform 13 2.2.1 Langdell’s approach to legal education 13 2.2.2 Langdell’s introduction of the casebook method 15 2.2.3 Langdell’s introduction of the Socratic method 16 2.2.4 The expansion of the casebook and Socratic methods 18 2.3 Summary Chapter 3: The casebook method and its critiques 19 21 3.1 The casebook method in practice 21 3.2 Arguments in support of the casebook method 22 3.2.1 Increasing students’ interest in learning law 22 3.2.2 Teaching students how to read cases 22 3.2.3 Teaching students to think like a lawyer 23 3.2.4 Enabling students to learn the law through a series of 23 precedents 3.2.5 Enabling students to understand the law making process 24 3.2.6 Promoting students’ moral imagination 24 3.2.7 Developing students’ self-study skills 25 3.3 Arguments in opposition of the casebook method 25 3.3.1 Encouraging students to view law in an incomplete 25 conception 3.3.2 Neglecting the fact finding and the legal process 26 3.3.3 Failing to teach lawyering 27 3.3.4 Breeding boredom in students 28 3.4 Summary and conclusion Chapter 4: The Socratic method and its critiques 28 30 4.1 The Socratic method in practice 30 4.2 Arguments in support of the Socratic method 31 4.2.1 Teaching legal reasoning 31 4.2.2 Teaching students analytical thinking 32 4.2.3 Teaching oral communication 32 4.2.4 Encouraging active learning 33 4.2.5 Developing mental toughness 33 4.3 Arguments in opposition of the Socratic method 34 4.3.1 Creating anxiety in students 34 4.3.2 Creating unhealthy relationships in the classroom 34 4.3.3 Failing to serve the psychological need of law students 34 4.3.4 Having adverse impact on female law students 35 4.3.5 Giving students the impression of uncertainty 35 4.3.6 Being ineffective and inefficient in teaching lawyering 36 4.3.7 Inducing boredom in students and laziness in professors 36 4.4 Summary and conclusion Chapter 5: Implications for Vietnamese higher education 37 39 5.1 Preparing students with practical skills to meet the demands of 39 the labour market 5.2 Increasing teachers-learners‘ interactions 40 5.3 Developing learners‘ self-study skills 42 5.4 Summary and conclusion 43 Chapter 6: Conclusion 46 6.1 Summary of the findings 46 6.2 Limitations of the research 47 6.3 Suggestions for further research 48 References 50 Appendices 57 CHAPTER 1: INTRODUCTION 1.1 Statement of the problem and the rationale for the study Together with the remarkable development of the American legal system, legal profession has become one of the most respected and wellliked careers in the United States According to the American Bar Association, there are 1,180,386 active attorneys practicing in the United States as of December 31, 2008 That means there is one attorney in every 386 Americans, as compared to one attorney in approximately every 20000 Vietnamese (as cited in Huong, 2009, para 3) To become an attorney, a typical American law student must study for at least years – years of any bachelor degree and years of a Juris Doctor degree Despite this long, stressful and costly process, the most brilliant American students continue to compete for a seat in law schools In 2006, nearly 89,000 people applied for one of the 46,000 seats that were available at 193 nationally accredited law schools (Bernstine, 2007, p 270) To serve this huge demand of legal study, American legal education has also developed to an extent that it emerges as one of the most prestigious systems in the world with globally well-known law schools such as Harvard, Yale and Stanford So the question is ―What is it that makes American legal education so distinctive among other legal education systems in the world?‖ The courses in American law schools are similar to those in other countries: contracts, torts, property, civil procedures and criminal law Yet it is not their substance that matters It is that students are taught to ―think like a lawyer‖ (Maxeiner, 2003, p 8) This ambitious goal is achieved mainly by the use of the two major teaching methods in American law schools: the casebook and Socratic methods The casebook method (also known as the case method) requires law students to read court decisions of actual cases that are selected and positioned in a casebook (Austin, 1965, p 157) The method originated in the Harvard Law School under the Langdell‘s Reform in the 1870s The reading of casebooks is in conjunction with the class discussion - the socalled Socratic method, in which students are engaged in continual conversation guided by the professor and required to extract the applicable rules of law from the unessential facts of a case Till now, the casebook and the Socratic methods have been widely used not only in American law schools but also throughout the common law world‘s legal education The methods have also been adopted with modification by many business and medicine schools, in psychotherapy and human resource training and development Taking a look back at our homeland, just as Vietnam's economy has been transforming itself over the last few decades; it is now the turn of the country's higher education system In the past few years, attempts have been made to introduce the credit system, to enhance the educational facilities and especially to innovate the teaching methods However, Vietnamese higher education system is still constantly criticized for the incapability to produce graduates that meet the demands of the labour market, especially in this global environment since Vietnam became a member of WTO Never before has the necessity of improving the quality of Vietnamese higher education system been so urgent In order to enhance the quality of the legal education in Vietnam, it is inevitable to learn from the more advanced systems such as the prestigious American legal education It is not a crime under the language of the statute to be in control of a room where marijuana is found In this case, there was no evidence that appellant ever transported the marijuana into the room, handled it, used it, or directed others to transport, handle, or use it Nor is there any evidence that appellant, because she rented the room had any special power over the disposition, location or usage of the marijuana It is, therefore, not reasonable to infer from the appellant‘s control of the room that she rather than one of the other people in the room, was in ―control‖ of the marijuana in the room The legislature made control of the marijuana a crime It is not a crime for one in control of a motel room to invite guests possessing marijuana into a room or fail to evict guests who smoke marijuana The legislature has not yet made a citizen responsible for the indulgence of others in his presence Accordingly, the judgment of conviction in this case is reversed The matter is remanded to the trial court for proceedings consistent with this decision Retrieved December 20th, 2010 from http://law.du.edu/index.php/law-schoollearning-aids/the-classroom-experience/examples/arcane-v-people-example APPENDIX SOCRATIC METHOD EXAMPLE Prof: Let us apply the concepts that we learned about a completed criminal act We know first that there must be a voluntary act and we have defined the nature of the act both with respect to common-law cases and the Model Penal Code Ms Smith, please brief for us the case of Arcane v People What happened in the lower court? Ms Smith: The Defendant was convicted of possession of marijuana in the lower court after a jury trial [NOTE: The Professor‘s point in asking this question was most likely to emphasize the need to understand the procedural posture and background of the case This is an important case-reading skill.] Prof: What were the arguments of the parties on appeal? Ms Smith: The state apparently argued that, by renting the room in which the marijuana was present, she possessed the marijuana The defendant argued that merely renting a room in which marijuana was present did not constitute possession under the statute [NOTE: The case does not set forth the parties‘ arguments The professor expected the student to deduce the arguments that each party probably made from the context of the court‘s discussion Understanding the arguments made by each party is essential in the Case Method ] Prof: What is the voluntary act — the actus reus that is claimed as a criminal act in this case? Ms Smith: Knowing and voluntary possession or control [What DOES the professor want from Ms Smith here? The professor is testing Ms Smith‘s knowledge of the terminology of the law Knowing and voluntary possession or control of a controlled substance is generally considered a voluntary criminal act.] Prof: How does this ―act‖ differ from the criminal acts we have seen in the earlier cases? [NOTE: Here the professor wants Ms Smith to examine factual behavior and compare it to a legal definition The idea is to reinforce knowledge, which is necessary for comprehension ] Ms Smith: An act for the purpose of criminal law definitions is usually a voluntarily bodily movement, whereas possession or control is passive, a circumstance rather than an activity Prof: What is the issue in the case? [Based on your case brief the professor wants an answer something like this:] Ms Smith: The issue is whether an individual may be convicted of possession and control of a controlled substance or narcotic when she, while controlling the room where it is located, has no special ability to use or handle or direct others to use or handle or dispose of the substance as distinct from anyone else in the room Prof: What did the court hold? [NOTE: The holding is generally an answer to the issue(s) posed For example:] Ms Smith: No An individual may not be convicted of possession and control of a controlled substance in the absence of evidence that she, in addition to controlling the room in which the substance was located, possessed (definition of possession) or controlled the substance by exercising dominion over it through transporting, handling or using it or having the power to transport , handle, use or dispose of it Prof: Thus the law concerning a particular element or factor of this legal test, for example, whether the defendant had any narcotic drug ―under his or her control‖ often can be understood only when one considers a number of rules read together The synthesis of a statute and several cases in which the courts have applied the words of the statute to a particular set of facts may generate a rule of law In the situation in Arcane neither the statute, nor the earlier Fremen case provides a straightforward definition of ―knowingly under his or her control.‖ Now, let‘s try to take this concept a step further Would a delivery person or a professional courier, or a postal employee, who delivered a package containing marijuana, be within the scope of the statute? [NOTE: The professor here wants you to apply the rule you have derived to other situations Analysis and application of the rule.] Ms Smith: Each of these persons will have simple possession e.g physical possession (in their hands, in their delivery pouch, etc and some dominion and control), but they are unaware of the nature of the contents (no knowing possession) and are controlled by the directions for the delivery or the specifics of their jobs that limit their exercise of dominion i.e power to use, locate, dispose or designate usage Thus, this type of unknowing possession and restricted control is beyond the reach of the statutory language and policy Prof: Do you think it was the legislature‘s purpose to attempt to control this type of possession? Why or why not? [Here the professor wants you to again recall the ―mens rea‖ provision of the statute‖ — knowingly‖ — to emphasize the general goal of criminal sanctions: to punish harmful acts done with ―evil intent.‖ The point is again to reinforce knowledge and comprehension of these concepts The professor also seeks to have you look more broadly at the policy reasons underlying the law, and how those reasons influence the application of the rule to different facts.] Ms Smith: The legislature‘s purpose was most likely to attempt to deter certain conduct, specifically the use and trafficking in narcotics This is the point behind the mens rea requirement Thus, in situations like this, where there is little chance of deterrence, the legislature‘s purpose would not be satisfied Prof: To whom does this rule apply? [NOTE: Here the professor wants to see if you understand the scope of an appellate decision in an individual case for the purpose of precedent in future cases Knowledge of basic concepts.] Ms Smith: To this defendant and others accused in the future whose factual and relational circumstances cannot be reasonably distinguished or contrasted from this situation Prof: We can see that legal rules are not applied abstractly to a group of nameless, faceless persons, but rather to specific people in factual circumstances and within the context of the goals or policies that the rule is intended to serve in the those circumstances What are the objectives that the Court infers that are not within the policies and goals of this statute? [Here the professor wants again for you to read the case carefully to explore the scope of the statute and the rule that has evolved from the synthesis of the statutory language and the two interpretive cases Reinforcing analysis ] Ms Smith: The court seems to be particularly concerned that freedom of association not be infringed upon saying that the legislature has not seen fit to require a citizen to control others who may be engaging in criminal activity [NOTE: Think back to the concept of synthesis stated earlier and then think about how the language of the statute here might be augmented to construct a new rule that reflects both the statute itself, its discussion of possession and the clarified meaning of control provided by the Supreme Court and the earlier Appellate Court decision.] Prof: What rule would emerge from the synthesis of this statute, this case and the earlier case? [NOTE: Here the professor as she stated wants you to state in your own words the developed rule Comprehension, analysis, synthesis.] Ms Smith: The synthesis of this statute and this case provides a rule something like this: One can be convicted under the narcotic statute where 1) she possesses marijuana; that is, holds it physically or to carries on one‘s person, or 2) controls the marijuana— exercises dominion by means of (the Court‘s interpretation in Fremen and Arcane), transporting the marijuana into the room, handling it, using it, directing others to transport, handle or use it or to designate its usage, movement, location, or disposition Prof: Why is it insufficient to show control that the defendant rented the room? [NOTE: Here the professor wants to reinforce a careful reading of the case and statute and to demonstrate your understanding of the limits of the rule Reinforcing analysis.] Ms Smith: Control of the room did not necessarily imply control over the substance because there was no evidence that the defendant could exercise dominion over it by using it, handling it, transporting it, disposing of it, or directing others to any of those things Prof: Why is it insufficient to show ―control‖ that the defendant knowingly invited the people into the room who possessed marijuana and smoked it? Ms Smith: For the same reasons There was no showing that the defendant could control or had an obligation to control the behavior of the other people in the room [Ms Smith gets an A+ for participation today She demonstrated not only amazing knowledge and comprehension, but an ability to analyze, synthesize and apply the rule to new factual situations as well; through evaluation, she understood the essential attributes of the rule, including its policy, and how those attributes — and thus the rule — would differ under a new fact scenario.] Prof: Accordingly, ―control‖ has a more definite meaning that suggests transporting, handling, using, or directing others to so, in addition to the language of the statute in which control is not precisely defined In this way you begin to understand the variety of broad or narrow rules that may emerge from a statute and its specific interpretation by the Courts? Thus the final state of the legal rule is a synthesis of both the language of the statute and the interpretation of that statute through cases involving real people involved in a specific factual circumstance Retrieved December 20th, 2010 from http://law.du.edu/index.php/law-schoollearning-aids/the-classroom-experience/examples/socratic-method-example APPENDIX SIX TYPES OF SOCRATIC QUESTIONS The taxonomy of Socratic questions was created by Richard Paul While it is not a hierarchy in the traditional sense and the categories build upon each other, simplifying, we can distinguish the following six types of Socratic questions: Probing underling concepts Probing Assumptions Probing evidence Probe implications and consequences Questioning underling position Questions about the question They probe six distinct but interconnected areas: concepts, assumptions, evidence, implications/consequences, underling position and the question itself Probing underling concepts Get them to think more about what exactly they are asking or thinking about Prove the concepts behind their argument Basic 'tell me more' questions that get them to go deeper Here are some useful examples:  Why are you saying that?  What exactly does this mean?  What we already know about this?  Can you give me an example?  Are you saying or ? Probing assumptions Probing of assumptions makes them think about the presuppositions and unquestioned beliefs on which they are founding their argument Dig into that reasoning rather than assuming it is a given People often use unthought-through or weakly understood supports for their arguments Here are some useful examples:  What else could we assume?  You seem to be assuming ?  How did you choose those assumptions?  Please explain why/how ?  How can you verify or disprove that assumption?  What would happen if ?  Do you agree or disagree with ? Probing the evidence When they desribe the evidence behind the arguments, prove if those are fact are fiction Facts are stubborn things People often use weak, refutable evidence to support for their arguments Here are some useful examples:  Why is that happening?  How you know this?  Show me ?  Can you give me an example of that?  What you think causes ?  What is the nature of this?  Are these reasons good enough?  How can I be sure of what you are saying?  Why is happening?  What evidence is there to support what you are saying?  On what authority are you basing your argument? Questioning underling position If arguments are given from a particular position you can try not attack the arguments directly but attack the underling foundation the position on which they are explicitly or implicitly based It is important that there might be other, equally valid, viewpoints Here are some useful examples:  Does this approach is reasonable, justifiable?  What alternative ways of looking at this are there?  Why it is necessary?  Who benefits from this?  Why is it better than ?  What are the strengths and weaknesses of ?  What are similarities between and ?  What are differences between and ?  How could you look another way at this? Probe implications and consequences The argument that they give may have logical implications/consequences that can be predicted Do these make sense? Are they desirable? Here are some useful examples:  Then what would happen?  What are the consequences of that assumption?  How could be used to ?  What are the implications of ?  How does fit with what we learned before?  Why is important?  Why this approach is considered to be the best ? Questions about the question Sometimes it is useful to become reflexive about the whole thing, turning the question in on itself Here are some useful examples:  What was the point of asking that question?  Why you think I asked this question?  What does that mean? Retrieved March 1st, 2011 http://www.engin.umich.edu/~cre/probsolv/strategy/cthinking.htm from APPENDIX LEGAL TEACHING METHODS Legal training involves the learning of principles through discussion and of skills by practice The student must be, by definition, an active participant in that process Socratic or Inductive Teaching The "case method" is the basic tool of traditional American legal education This method involves the study and discussion of litigated cases The teacher calls upon the student to respond in a stimulating question-andanswer dialogue, frequently involving several class members and often including more questions than answers The learning experience occurs not only in the interchange between teacher and student, but also among the students themselves The perceptive student will soon learn that a key to the realization of maximum benefit from these interchanges is the ability to listen with discrimination This process, applied skillfully by expert teachers and by students possessing a sense of awareness and curiosity, hones the minds of students, develops their respect for facts, and creates a sensitivity to essential differences among issues, policies, reasons, and arguments Intensive and consistent daily preparation is necessary for students to participate effectively in this process Problem Solving In a portion of the first-year course, and in later courses, students are given practical legal problems These problems may involve the drafting of legal documents or the formulation of a course of action for a hypothetical client Seminars By the time students reach their third year, and sometimes earlier, they will be prepared to engage in significant legal research in selected areas of specialization A primary source for such experience will be seminars taught informally in small groups by professors who are experts in the selected subjects Frequently, a student will be expected to defend a seminar paper before classmates under circumstances that provide lively and constructive discussion Each student is required to complete an upper-level research and writing project Seminar papers may be used to satisfy this requirement Clinical Experience Of increasing importance in legal education is the role of practical, on-thejob training involving the legal problems of actual clients Legal Clinic courses provide valuable client counseling experience, as well as participation in actual trials and appeals under the supervision of a member of the faculty and a licensed attorney Individual Research During the second and third years, students will be permitted to engage in research and writing projects for credit under the supervision of, and in consultation with, a selected faculty member, in an area of particular interest to the student Research papers may be used to satisfy the upper-level research and writing requirement Retrieved February 13th, http://catalogofstudies.uark.edu/1997/08/04.html 2011 from ... Although the heated debate as to the effectiveness of the methods have never ceased since then, the casebook and Socratic methods remain the predominant teaching methods in American till the current... giving students the impression of uncertainty, being ineffective and inefficient in teaching lawyering, inducing boredom in students and laziness in professors It can be seen that most of these... cases that are selected and positioned in a casebook (Austin, 1965, p 157) The method originated in the Harvard Law School under the Langdell‘s Reform in the 1870s The reading of casebooks is in