Smart. Smart! Smart?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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7 Responses

  1. Orin Kerr says:


    I don’t see the connection to the Socratic Method. The Socratic Method does not reward intelligence; it rewards glibness. But as far as I know, no one claims to want a Supreme Court Justice who is exceedingly glib.

    I think the focus on smartness, at least among so-called “legal elites”, is a product of a belief that judges who are wicked smart are often way way better than judges who are not.

    For example, go back and read some opinions by Henry Friendly, one of the smartest lawyers of his day. Decades later, his opinions are just gems: They’re brilliant, engaging, and reveal a depth of understanding of the law that makes them the ideal starting point for learning. Legal elites want more opinions like that, and they reckon that one of those real smart types is probably the best way to get it.

    In contrast, try reading an opinion by Justice Whittaker, who left the bench because he felt he just wasn’t up the intellectual side of the job. The opinions tend to be terrible: incoherent, messy, vague, and poorly reasoned. Legal elites want fewer opinions like that.

    Now, no one could possibly argue that intelligence is everything, or even maybe the most important thing. But it’s pretty important, or so a lot of folks think.

  2. Dave Hoffman says:

    I agree that being intelligent is necessary. But it isn’t sufficient. (I don’t think we disagree about this.) My point was that the easiest (and most foolish) way to evaluate smarts is to look at verbal glibness of a particular type. It’s harder to read lots of opinions and think about how they operated in light of existing 2nd circuit doctrine; and harder yet to think about a person’s accomplishment’s in light of their situation.

    Some legal elites may want opinions by Friendly (or Harlan, my favorite). But others – the ones quoted in the TNR article – want opinions by a liberal Scalia. That is: funny, memorable, and, in my view, too often glib and obscure. (Recall the discussion we had about the meaning of Scott v. Harris!)

    I do think that the Socratic method rewards glibness over care & diligence. Wasn’t that your experience, watching how the law school classroom operates?

  3. Orin Kerr says:


    As a student, I thought the Socratic Method was a wonderful teaching tool: It made us think deeply and hard about the law and its contours. Great stuff. The key is that the impact of the Socratic Method is primarily on the students not called on, not on the student who was actually called on. It rewards glibness for those called on, but that person is only 1 in 100.

  4. shg says:

    In praise of the Socratic method, one of the most critical skills a trench lawyer can possess is the ability to think quickly and effectively on his feet. You get one shot to have the rights words come out of your mouth in court, whether responding to a judge, questioning a witness or arguing to a jury.

    The Socratic method puts a law student under the gun, forced to come up with the right answer (or at least a credible answer) under pressure. For other areas of law, this may not apply, or at least not as well or as clearly. But for trial lawyers, the Socratic method is an extremely useful pedagogical tool. Don’t think of it too poorly.

  5. dave hoffman says:


    Good comment. I do agree that for trial lawyers, socratic questioning is a useful prepatory exercise. And I think that more generally it’s quite useful in forcing students to abandon bad habits of preparation they learned in college, which is primarily why I use it so heavily in class.

    But there’s a cost. There always is. And, contra Orin, I think that the uncalled-on students may learn to value glibness & verbal dexterity in others, when in reality those skills play a very small part in legal judgment.