Legal Commentary

The recent discussions on grades have been very interesting.  They certainly suggest that many professors grieve over grades and want students to know that although they are important, they're not everything; some of the comments suggest that students didn't know this and may be reassured to learn that we feel this way.  Other comments suggest that students would like (or think they would like, although sometimes they are less than thrilled to get what they think they want) better and more frequent methods of examination, and that the professors themselves recognize that there are less-than-adequate pedagogical explanations for the current system.  To misquote Holmes, law professors find nothing more reassuring than doing something because that's the way it was done in the days of Henry IV.  We can all recognize that it would be a good idea if this changed, and a number of the comments suggest that there are serious individual efforts afoot to do so, although they do not seem especially institutional in nature.

I would like to address another by-product or effect (or side-effect) of grades in law school, aside from what Lyrissa calls "emotional distress."  It could be labeled anomie, or cynicism, or surrender, or resignation.  I see this regularly, both after first-semester grades appear and especially after the first year in general.  Students come in either convinced that they have something to contribute to discussion or convinced in general that they are smart enough to contribute or both.  After grades come out, some conclude that they are not smart enough to participate, or to be deeply interested in the law as an intellectual enterprise.  They become far quieter, far less engaged in the subject, far less likely to allow a subject to surprise them with an unlooked-for affinity for it, far more likely to treat themselves as "consumers" whose desired goal is nothing more than a set of credentials.  The fight goes out of them, to some degree.  Certainly the sense of law school as an intellectually engaging and rewarding enterprise in which they are fully entitled to participate does.  The class begins to bifurcate into a small group of people -- many of whom got high initial grades and some of whom didn't -- who remain interested and active in participation, and a larger group of people who will speak when called on and do their work, but bring an increasingly disengaged, disenchanted, dispirited sense to their law school education.

I can understand how this happens. 

 I can also understand some of this as a by-product of law school itself -- both because some begin to feel that grades and exams are themselves more or less arbitrary, and because for some the whole enterprise of demonstrating the many ways in which law is uncertain and potentially manipulable help encourages this sense of disenchantment.  We might think about these reasons more closely, including how we are responsible for letting this spirit loose among our students and what we might do about it, and also the extent to which this is an intellectually valid response to law and legal education.  A certain degree of skepticism in response to legal education is a natural thing; a certain critical distance from legal education might be a natural response, either because it captures a truth about the law or captures a flaw in legal education.

But too much of this spirit can be corrosive.  I am especially worried about those who, because of grades, seem to conclude that they are not "smart" enough to contribute in class and to remain engaged in their subjects, who seem to conclude that they are unworthy of the intellectual surprises and delights that law school might offer them, and so seem to switch off, or at least to treat law school as more of an instrumental enterprise than anything else.  But I don't buy it.  Law school may be difficult, but it ain't rocket science, and it can also be approached on any number of different levels -- doctrinally, historically, philosophically, and so on, responding to different tools or skill sets that different students may have and use to get into the material.  Grades are perhaps not wholly arbitrary, but that does not mean that a student who fared poorly on an exam is unable to have good insights about that course or the next one, or to find something interesting and engaging about it.  And of course some students take a while to get their sea legs.  As I always tell my students, I was blase about law school in my first semester for other reasons, and did better and better over the course of my career as I learned to enjoy the law and legal studies more and more.  Doubtless it would have been preferable to have done better in the first semester; but my career was not irreparably harmed, and certainly my capacity to find a great deal of intellectual sustenance in the rest of law school was not affected.  

All I can advise is that students (and professors!) watch for this tendency.  They should remind themselves that there are a host of different topics and approaches available to them in law school and that they should keep engaging with the material until they find their own way of taking joy in what they're doing.  At the very least, even if they conclude that grades are arbitrary or that there's less intellectually to the law than meets the eye, they might at least remind themselves that they have paid a great deal of money to read cases and sit in classes, that class discussion if nothing else is a good place to try out ideas without any especially undue consequences (you may be embarrassed by a wrong answer, but your client won't go to jail and you won't be sued for malpractice), that they may find the course or subject that engages them on something more than a license-obtaining level, and that they may as well get their money's worth by participating intellectually in law school.  

There is also a certain tension between the disenchanted view of law school and exams and the response that some students make to it.  I usually advise students not just to think of exams as a system to be gamed.  Of course, if one professor wants case names in exam answers and another doesn't, that's worth knowing.  But I think and have argued here that most of the skills needed for a good exam answer transcend the requirements of individual professors, and that in the long run you will get better grades more efficiently by mastering those skills in general rather than treating each separate course and professor as a puzzle that has a "trick," a way of scoring high grades that has nothing to do with what you do in your other courses and exams.  Among other things, I think this approach is corrosive of the joys I think can be found in law school in general -- even, perish the thought, in exams themselves.  (And yes, having written my fair share of exams as a student, I still stand by this statement, although with full recognition that they're not a walk in the park.)  It seems to me that if you think of grades as purely arbitrary, then you should think of these tactics as unlikely to have a strong yield, especially balanced against the amount of time it takes to treat each class or professor as a separate system to be gamed in different ways.  On the other hand, if you think of grades as purely arbitrary, then you should have not much to lose by trying to think of law school exams as generally involving a trans-substantive set of skills (like clear writing) that are worth learning and applying across the board.  If nothing else, you gain in efficiency.  

More broadly, we might say that, even for those who have become disenchanted about law school, it might still be worth making a kind of Pascal's wager.  If you remain engaged and invested in your courses, if you try participating in class, if you act as if you believe law school is intellectually rewarding and that you are fully smart enough to get a great deal out of it, even if you did not get the best grades in the class, it seems to me you stand to lose very little and just might gain a great deal.