by Michael Dorf
When I was an undergraduate thirty-some-odd years ago, I spent a considerable portion of my extracurricular time engaged in organized debate. I participated in parliamentary debate--sometimes called "off-topic" debate--an import from the Commonwealth countries that was seen as something of a refuge from "on-topic" or "NDT" (for National Debate Tournament) debate. In the latter, students would debate the same topic over and over again throughout the year, with an emphasis placed on research (in those pre-computer-age days, symbolized by gigantic files of index cards), and on the ability to speak incredibly fast so as to overwhelm the opposing side. In parliamentary debate, by contrast, topics changed constantly and were announced only minutes before each debate round so that in theory, each debate was extemporaneous. I say "in theory" because many teams cheated by preparing a battery of cases that could be squeezed into the various vague topics. I understand that this trend has continued so that the use of prepared cases is no longer considered cheating.
I recently learned from friends whose son is currently a high school debater that the high school version of extracurricular debate has now diversified to include an intermediate category of "public forum" debate, in which topics change monthly. (High school debate has long included another branch, called Lincoln-Douglas, that is somewhat closer to parliamentary debate.) Presumably the more frequent change of topic means that the files for each debate are smaller, and therefore there is less of a premium on speaking fast--although I could well be wrong about that. The monthly change of topic might just mean that the students participating simply spend more of their between-debate time doing research.
In any event, I have not paid much attention to the world of competitive debate over the last three decades. Although I am occasionally invited to judge one or another college debate, I invariably decline. Given my day job, it would feel too much like a busman's holiday.
Because I have not kept up with the world of competitive high school or college debate, I base my remarks here on my recollection of how things were in the 1980s, but I don't think that will render my observations dated, because I am using that recollection simply as the inspiration for some thoughts on legal education.
Former debaters have gone on to have successful careers, many of them, not surprisingly, in law, including in legal academia. E.g., the two main contributors to this blog were successful parliamentary debaters, while such noted legal academics as NYU President John Sexton and my colleague Steve Shiffrin were once very successful on-topic debate coaches, and my own mentor, Larry Tribe, was a champion on-topic debater. Because on-topic debate has been the dominant form of high school and collegiate debate in the U.S., I think it's fair to say that within the law professoriate, those who were high school or college debaters were more likely to have been on-topic debaters than off-topic debaters. Nonetheless, legal education in the U.S. looks a lot more like parliamentary debate than like on-topic debate: We allot no time for research of the facts; instead we just dive right into the normative argument.
Consider standard Socratic instruction, when it works as it is supposed to. The professor might begin by asking easy questions that aim to ensure that the students understood what the facts, holding, and reasoning of the case were. Then come the harder questions. What if the plaintiff had not consented? Or suppose that both parties had been partly at fault? Whatever. The point of such questions is first to explore the limits of the rule that the case is taken to establish and second to see whether any sensible rule (or standard) that justifies the result in the case is in fact justifiable overall. I have engaged in this sort of exercise countless times as a teacher, and it is very useful in training students to think analytically.
But the Socratic method as just described has a pretty serious limitation: Often the question of what the "best" rule or principle is will depend on the answer to some empirical question. E.g., Should contributory negligence be a complete defense (the traditional common law rule) or should the rule be one of comparative negligence, whereby the plaintiff's own negligence merely reduces recovery (as in many states now)? Should each side bear its own legal fees (the "American rule" absent a fee-shifting statute) or should the loser pay the winner's legal fees (the "English rule")? The answers to such questions depend in part on the incentive effects of each regime, their respective adiministrative costs, etc. A student who says this sort of thing will earn praise from the professor, but the class does not then embark on a review of the empirical evidence. We are in law school, after all, not fact school.
There is some pushback in the other direction. In my own field of constitutional law, the last couple of decades has witnessed some greater effort by legal academics and political scientists to take account of one another's work. And various scholars have engaged in inter-disciplinary empirical work that bears on law. Such work has long been a side interest of mine (including a current grant-funded project on the efficacy of smoking warnings). And even after the premature death of my colleague Ted Eisenberg, the "grandfather of empirical legal studies," Cornell Law School remains a leader in that field. But even as some of us in the legal academy spend some of our scholarly time investigating empirical questions, legal instruction remains a mostly fact-free zone.
In a follow-up post, I'll discuss the limited demand for facts from policy makers, but here I want to conclude with a clarification about what I'm suggesting with respect to legal education. I do not mean to endorse the on-topic debate model for legal education. For one thing, at least as I encountered it, that model was seriously flawed in its own right. The problem was not just the fast talking, which is mostly self-limiting: Former on-topic debaters who grow up to interact with regular humans learn to slow down so that they can be understood. The deeper problem was the indiscriminate use of authority--so that a quotation of Hayek (or of a contemporary Hayekian) could be used to "rebut" a quotation of Keynes (or a contemporary Keynsian), or vice-versa. According to a well-known story, an enterprising debater once wrote a letter to the editor of Time magazine so that he could later invoke "Time magazine" as an authority for a proposition in a debate. The story may be apocryphal but the lesson is true: all sources of authority are not equal, but the debate format gives the debaters an incentive to invoke unreliable sources as though they had greater weight.
Perhaps that caution points to at least a small reform in the way we teach law school classes. As noted, in my experience, the (kinder gentler version of the) Socratic method is useful for teaching analytical thinking. Evaluating the weight of sources should be part of such thinking.