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Salient. Victoria University Student Newspaper. Volume 38, Number 25. 2nd October 1975

The State of Assessment in the Law Fac

page 2

The State of Assessment in the Law Fac

The Socratic method

I investigated the "Socratic method" after hearing a rumour that Dean John Thomas and Prof. Palmer were giving students "black marks" for failing to answer questions in class. That sounded like deliberate tyranny - subjecting students to examinations at every lecture. To find out more I had an interview with Dean John Thomas, a brief discussion with Prof Palmer and drew on students' experiences of their courses.

Dean John Thomas definitely does not give "black marks." Performance in his Contracts class will be considered only in the 10-12 annual cases of students who just fail exams but only to help the student.

However, Prof. Palmer does operate a "black mark" system in Torts. Lecture attendance is compulsory. If a student is unable to answer a question (such as to show he has not read the case required) or if s/he is absent when called upon, s/he is given a "black mark." S/he will be called upon in the next lecture and if the same happens - another "black mark". Getting three "black marks" means a student will be failed terms. This year one Student made the three "black marks" and was failed terms. The working of the system was clearly stated at the beginning, and a "valid excuse" was to be "accepted."

This system seems to me more tyrannical, more like my bad old secondary school, the more I write about it! But note two points:
1.It should be judged according to its practise. Although many students claim to be terrified, many take it in good humour and some think Prof Palmer "a real sweetie."
2.The aim is not to oppress students merely for the sake of it. Prof Palmer considers it an unfortunate but probably necessary element of the "Socratic method" of law teaching.

What is the Socratic method?

The Socratic method is a method of self study aided by class discussion and questioning. In class, instead of the lecturer systematically developing six points, he asks questions which aim to draw these points from the students. Question-answer-discussion. It takes much longer for the six points to come out this way. Outside class, students must read the cases and materials on which they will be questioned in the next class. The questions are on prepared material. After class the students should digest and sythesise the discussion. Result: for every class hour, students must spend at least 3 hours self-study, according to a University of Chicago estimate.

Aims of the method

Socratic teaching is time-consuming for both the student and the lecturer of both class and private time. Thus it is a poor method of "covering an area of law." The time is justified by the belief that students need a more than just systematic comprehension of the legal system. They need to "think like lawyers," need powers of legal analysis, need to know how the law develops in order to change it. Prof Palmer adds that there are plenty of conservative moneyed interests out there in the world, and they will attack any attempt to curtail their privileges under law. Ralph Nader had to be more clever than GM to achieve change in the auto-safety law, and Prof Palmer had to beat the Insurance companies in order to introduce the Accident Compensation law. Socratic method hopefully starts students thinking more clearly, so as to prepare them for the rough world they are hoped to ameliorate via "social engineering."

Consequences of the method

Hence the reasons for the authoritarian approach: students have a tendency not to prepare for the class. Dean John Thomas says: "If you use a volunteer method the non-thinkers just sit there. Yet in order to justify the time spent you have to get as many as possible involved in puzzling over the question. "Not only must students be encouraged to think, but as many students as possible must be made to think, otherwise straight lecturing would be a better use of the time." Thus Prof Palmer forces students to prepare Dean John Thomas has reverted to more of a volunteer system, in which he asks questions of the whole class and waits for a reply. If no-one replies there might be an "eloquent silence" of up to ten minutes. However, he realises that this reduces participation to a core of volunteers, which is undesirable and probably doesn't justify the waste in time.

In short

Socratic method is desirable because it makes students think about rather than just know the law.

  • - It requires many hours of preparation by the student if he is to participate in class discussion.
  • - The expense in class time can only be justified if there is a high level of class participation.
  • - Students tend not to prepare adequately, for many reasons, many of which are justified and others understandable.

Thus to teach socratically the lecturer has to force students to prepare, e.g. via a "black mark system." I say "probably" because both Dean John Thomas and Prof Palmer confess to being unsure whether to force is a necessary element — they're still experimenting but have a hunch that it is. The results of a course questionnaire-conducted by Prof Palmer, to be published in a forthcoming Caveat indicate that torts students liked the socratic method but hated the no-response rule and compulsory lectures. Probably they can't have the method without the authoritarianism. If that is so, is the method worth it? Is this authoritarian teaching method consistent with its own ultimate aims; and are the aims themselves valid?

Socratic method as practised by Dean John Thomas and Prof Palmer is the legal application of the world view that humane social change can be carried out gradually by expert social engineers who constantly tinker with the system. The experts, in our case lawyers, form an elite, because they have to be highly skilled, but they make decisions in the interests of the mass of people, i.e. in conflict with the conservative element. Dean John Thomas and Prof. Palmer hope to produce such an elite, which will serve not itself but the people, and do so by using the law as a tool with which to slowly change society.

This means the socratic techniques aim to produce students who are:
1.Rigorously clear thinkers - clever enough to win against the most clever representatives of the beast
2.Socially aware, i.e. sensitive to the need for change as opposed to conservative and self-serving.
3.Sufficiently motivated to carry their beliefs into action, i.e. not just liberal wankers!'

The perfect graduage would be as clever, socially aware and motivated as Ralph Nader or William Kunstler

The first danger in this scheme is obvious: if aim 1 succeeds but aims 2 and 3 fail we produce a super set of rip-off artists.

Second, I have the feeling (admittedly only a feeling) that such an authoritarian method is inconsistent with the aim of humane social change. As Prof. Palmer says students must be made to stand up now else be knocked down later on, and the grilling they get in class will help them. But unless the method makes them sensitive as well as tough it fails.

Third, even if the scheme succeeds in all its aims, it will likely produce a team of well-meaning expert, lawyer-cum-social engineers who because they're guided by their own skills rather than by the 'people' they purport to serve. Experts will not serve people's interests unless they are directed from below. Experts seldom are directed from below, precisely because they have the attitude that 'we know what the people need better than the people themselves - we are the experts.' In short, a successful socratic method can produce very undemocratic results.

Photo of Professor Palmer

Professor Palmer: "a real sweetie" or a Franco on our doorstep?


Prof Palmer is correct to say that, to make changes you've got to be clever, tough and quick. You've got to be two steps better than the average intelligent person and the grilling you get in Palmer's socratic class helps you distinguish yourself in this way, so maybe the authoritarian method is justifiable.

But humane, democratic social change requires more than skill and motivation. It requires being guided by the concrete experiences and needs of the underdogs you purport to serve. This cannot be taught in class because the 'set text' is that underdog himself - he lives in the real world. What was once said about writers and artists applies equally to lawyers:

"We should greatly esteem the specialists, for they are very valuable to our cause. But we should tell them that no revolutionary writer or artist can do any meaningful work unless he is closely linked with the masses, gives expression to their thoughts and feelings and serves them as a loyal spokesman.

The socratic method can produce the specialists - but more is required if these specialists are to really serve the people Dean John Thomas and Prof Palmer appear to wish them to serve.

Abolition of in-term assessment

In-term assessment was abolished for all law courses this year, except where there are individualised projects on which students do not co-operate. How did this happen? What is the nature of this 'abolition,' and what are the central issues in the ITA debate?

How it happened: failure of communication within the law school

The sequence leading up to the abolition of ITA was an example of failure of communications between staff and students, i.e. between people who meet one another every day. For some years the faculty had no firm policy on ITA., but in February 1974 a faculty committee recommended that the matter be 'finally resolved for 1975, by appointing a member of the faculty to report on the working of ITA in 1974 and previous years, with view to recommending to faculty whether or not it be retained for 1975.' The report was to be made after finals results for 1974 were out. Dr Congreve was given the task of making the report.

The effect was to make 1974 something of a test year for ITA. On the basis of 1974 and previous experience, a report and a decision on the report would be made. Note that student reps were present at the February meeting, and that which ratified Congreve's appointment. Congreve reported, as agreed, after the 1974 exam results were out. (Report is available in the Law library). On February 5 1975 the faculty met to consider the Report The student reps present wanted the decision deferred until students had come back from holidays and could be consulted, but this was considered "impracticable:" it would take a month to canvas students and that would take the date of the decision too far into the academic year.

Result: the decision was taken in February when students were on holiday. When we came back we were presented with what appeared to be a 'fait accompli.' It's no use blaming anyone for what happened. But it does illustrate the failure of communications between students and teachers who meet every day and should talk about important issues between them. Students were (I think) not aware that a definite decision was to be made on ITA before the 1975 academic year. My own understanding was that ITA would continue on the same haphazard basis as in 1973-4. Teachers didn't know we didn't know, plus were less interested, because ITA doesn't mean so much to those who don't sit exams. To us it was a vital issue, to them not so vital, our respective interests differed and we students didn't push sufficiently hard to make our interests represented.

The position now

First, the decision is not final. The faculty merely wanted to 'stop piddling around'. Law Fac Dean Thomas says that what was created can be demolished -a sufficiently strong opposition to the decision could reverse it.

Second, it was only a "recommendation" to individual teachers, who can ignore it if they want. When ITA was introduced all teachers were recommended to try it, including the conservative ones who didn't want it. The February 1975 decision has the same status.

The central issue involved

The central issue involved is the contradiction between the 'educational' and 'assessment' objectives of the course:


"It is a good thing that students get together to thrash out the issues. Co-operation is great..." (Thomas)


"...but that doesn't mean the student who had a wrong issue and was corrected during discussion, should get the same grade as the student who originally had the correct issue." (Thomas' next sentence)

The easiest way out of the contradiction is to separate the two elements, i.e. to use term work to fulfil the educational aim, and exams for assessment. That doesn't resolve the contradiction, it merely avoids it, trouble is it avoids it so as to help staff and hurt students. It is in their interests to abolish ITA, because they solve a difficult problem, save work and save hassles with students complaining of grading disparities. We get the worst of all worlds; have to sit 100% final exams, plus have to do reasonable in-term work to be granted "terms." Staff and students have conflicting interests where assessment is concerned, thus the need for us to be influential in the decision whether to retain in-term assessment, it is no good that the faculty decides the issue and assures us that "we have borne your interests in mind but regret that they did not weigh heavily enough!"


We students have not been vocal enough about the "abolition" of ITA. We need to be vocal because otherwise our interests will not count for much. The decision to "abolish" ITA is not final - it can be changed.