Law in Contemporary Society

The Mythology and Ultimate Poverty of the Curve

-- By ScottThurman - 26 Feb 2009


What are grades? They are the one constant in law school and yet are rarely discussed. We talked briefly about whether grades were useful and whether students should dismantle the grading system. We should. Law school grades, especially but not exclusively as a product of a curve, are deeply involved in a mythology of American individualism that distorts the swindle that occurs when students exchange their waking hours for law firm employment.

  • The rhetoric here feels overheated and out of scale. This isn't anything important you're talking about: It's just grades.

The curve and the myth of individualism

The grades we receive appear to be our work product and, because of that, seem to stand for us. And in some ways they do. Individual effort makes a great deal of difference in what grades students make. Grades frequently correspond to a student’s work ethic, to a student’s dedication, to hours spent reading and thinking. In a mythology that insists that hard work is rewarded, in the first theater of the American Dream, grades are the compensation for being serious and determined. In this sense, the pride instilled in a child when receiving high grades has roots in a Puritanical work ethic and an American sense of meritocracy. We have created a system that awards diligence and effort from childhood on.

More arbitrarily, more personally, grades are a product of our bodies. Grades correspond to a set of individual, if not controllable, characteristics: our capacities for memorization and oral and verbal retention, the speed with which our synapses make connections, our physical reactions to stress. Grades bridge the world between our physical abilities and our merit: the SAT, for example, originally proclaimed to be a test of physical aptitude for learning, and only in the face of evidence that class, race, and a variety of other factors affect SAT scores did it become a test of achievement.

  • This reduction of mind to body is really very striking. The SAT was never said to be about physical aptitude, just aptitude. (SAT is still an aptitude test, so far as its makers are concerned.) Your idea that intellectual activity is simply physical activity in the brain is not the usual approach taken by this or any other society. It's interesting, but it presents some of the usual problems of reducing all mental processes to physical states in the brain.

Whatever grades might or might not say about the individual, they communicate nothing about individuals in law schools. They are designed to say nothing. The curve makes grades completely dependent upon the performance of others. Here, the veneer of individuality has been rubbed away. A curved grade does not reveal what any student actually knows or can do. Instead, it speaks only to if a student knows more than some other student (or at least appears to know more within the context of a high-pressure, highly artificial three-hour exam).

  • This is the strangest argument in the world. It bears no relationship to how one actually grades. Shouldn't you explain how you know this, and why those of us who actually do the grading could be so mistaken as to how it's all done?

The function of the curve

For firms

A curve divides students’ performances on a test into categories of better or worse.

  • No. A curve sets marginal limits on the brackets within which one reports each student's position on an absolute ranking of performance. A curve with limits as elastic as ours has very little effect on the distribution of grades overall. Its effect is neither in structure nor in magnitude remotely like what you are describing here.

The mythological structure of American society enlarges this singular performance into a categorical evaluation on one’s self: you are better or worse. The mythology that surrounds the GPA – that we are better than some, worse than others – is of no use to students. Law school grades say nothing meaningful about our strengths and weaknesses. The function of grades is to aid to employers. Grades make for a value-added component of individuality that allows employers to more easily make decisions about who is worth employing. GPA represents one of the most important components of the material surplus that firms believe they receive in hiring a student. Grades are just a component in a swindle. Grades produce students who are in demand because of their relative distance from other students with lower grades. But this value is empty, because the very scarcity of a certain GPA in the market is decided by an arbitrary curve. Indeed, grades’ only value derive from their self-determined rarity and a mythology of meritocracy that associates doing better than others with being better than others. Grades allow law firms to decide whom to hire without bothering to remember that they are hiring real people; grades supply the necessary, if actually non-existent, element of the individual.

  • This too doesn't make any sense. How could "top ten percent" be a category subject to artificial or induced scarcity? If ranking makes any sense it isn't made either more or less sensible depending on how you place the measuring lines on the stick. One, two, and three standard deviations from the mean would be a coherent way of doing marking the stick, one might suppose. Seventy, eighty, and ninety percent might be another good set of places to mark the stick. Both are curves.

For students

Of course, the swindle also cuts the other way. Students buy into the same mythology that employers do. Grades lend to the whole process of exchanging ourselves for money some imprimatur of value. We have achieved these grades, or we have entered this school, because of qualities intrinsic to ourselves, qualities that law firms seek. We can use this to conceal the hard fact that the hiring practices of law firms must by their nature be ambivalent to the individual qualities of whom they hire; the sheer logistics of most firm’s economic structure – wide at the bottom, narrow at the top – ensures that law firms will recruit lots of first-year associates that must be driven off ten years later. Conversely, employment can also work as compensation for the diminution that occurs when a student discovers to his or her chagrin that he or she has performed less well than others. Thus the frequent recital of the mantra that grades don’t matter here, because we’ll all get good jobs. In exchange for the diminution of self, we can choose the supposed equalizer – money.


I began with an appeal to change the grade system, but it now seems painfully clear that such a change is hardly necessary. The need represented by the curve – to coat the exchange of self for money with a veneer of merit – would certainly find a different channel. Indeed, one of the most common objections I’ve heard to abolishing the grade system is that it would force students to find other ways to individualize themselves. Students’ lives, under this argument, would become too filled with activities and volunteering, because law students would need a full and varied resume – a more full expression of who they are or who they want to appear to be – to compensate for the loss of grades as a proxy. Maybe what matters most here is the recognition of a symptom endemic to the legal education system and more broadly to education as a whole – the need to reify the self, to make it marketable.

  • Maybe. That would be worth exploring without all the law school specific baggage it took to get to this last general idea. I feel myself as though that's really where the essay should begin. Getting there felt as though it were more about your concerns with an imaginary grading system than any response to actual policy as it affects you. Maybe fixing the discussion of grading would be useful, to help dispel such misunderstandings as are apparent from your account. But it's also possible that the right way to go is to start at the end, and figure out what your idea of the self on sale means to you.

Teaching, coercion, examination

-- By ScottThurman - 15 Apr 2009

Teaching and coercion

School is a normative environment. We attend school because we do not know things; we expect our teachers to tell us these things. This instruction, at its core, is instruction in how a teacher believes some thing should be done.

A school is not, however, a passive transmitter of these norms. School is coercive – it disciplines us, it applies force to us, it shapes us. Instructional moments between teachers and students, at their base, consist of the teacher’s belief that there is something incorrect, wrong, ignorant, or less than optimal in the student’s performance, and the teacher’s attempt to demonstrate what’s wrong, what should be changed.

The presence of coercion is not itself problematic. As discussed in the opening paragraph, we are in school because we want to learn. We have voluntarily submitted to the coercion of schools, and we’re willing to submit to the discipline, to the occasional reminders that we have not, in the eyes of our teachers, mastered our subjects. The ideal student wants to feel the force of the ideal teacher, even if it is painful. The ideal student wants to be changed. And, I think most importantly, the ideal student wants to know how he or she is going to be changed before submitting to force.

Evaluation as the fundamental coercive element of school

While every lecture and assignment has the capacity to affect or influence the student, the evaluation stands as the greatest coercive element in school. Here I mean for evaluation to extend beyond a single test or a set of exams (though in many classes there is only one evaluation - the final exam). Evaluation is any contact between student and teacher in which the student’s performance is reviewed and feedback is given as to how the student could more closely approach the teacher’s ideal. In this sense, evaluation is the medium of teaching, or at least the most intimate and direct form of it. While students may be able to infer from readings or lectures how to modify their behaviors and actions to converge with the teacher’s expectations, evaluation is the most direct way a teacher can indicate where and how a student should change.

The conventional law school class

It’s been well established that most law school professors, at least in the 1L year, do a poor job of teaching. To build on the discussion above, law school professor seem to fail in two areas: there is no strong normative stance and there is little evaluation.

When I’m sitting in most classes, I am not sure what I am supposed to be learning. I can tell from the teacher’s questions that I should know cases’ facts, judges’ reasoning. I know that I should memorize relevant sections of Restatements and codes. I have only vague ideas of how any of this connects to what lawyers do – changing society with words.

The usual excuses offered for the ambiguity of law school instruction are unpersuasive. We are told that law school instruction is ambiguous because the practice of law is complex and ever changing. But that mistakes the type of normative stance I want the teacher to take. I understand that legal arguments are rarely absolutely right or wrong. I understand that our professors cannot give us easy answers about when a set of facts meets some standard or passes some legal test. I understand that a case does not, necessarily, have a stable, universally understood holding. But I don’t want to know if I’m right or wrong; I want to know if that path I took to get to the answer was more or less effective. And, given the range and diversity of legal arguments, I want to understand as well as I can what criteria the professor has used to evaluate that efficacy. Such feedback gives me the tools to both determine how I can further change and, perhaps more importantly, if I agree enough with the professor’s stance to want to change.

Of course, to be in a position to offer us feedback, professor must give us opportunities to demonstrate our legal skills. In most of our classes, students will be given at most two or three opportunities to demonstrate their progress in legal reasoning before the final. Or, more accurately, we’ll be given two or three opportunities to recite some facts from a case, or to sniff out whatever ball the professor is hiding. With no ability to get real, meaningful evaluations before the final, our study becomes more exhausting (because we have no normative goals, we do not know the parameters of the evaluation -- neither what content will be covered on the final exam, nor, more openly, what skills we’re supposed to be developing) and our performance more arbitrary. Maybe this sort of evaluation mirrors the management style of a large law firm: vague directives, little over-sight, and idiosyncratic standards. But that seems like a bad way to run a law firm, and a worse way to run a school.

Evaluations as resistance

It’s been suggested (maybe I’m straw-manning) that all this discussion about grades and exams is sound and fury. I disagree. Evaluations are the heart of teaching. By allowing teachers to give vague normative standards and no substantive feedback, students have excused teachers from teaching at all. Currently, teachers wait to teach until exam day – the exam can easily be the first time that a student realizes, “I’ve not learned this right.”

In a law school where teachers were forced to give frequent evaluations, students could experience several substantive teaching moments. Moreover, teachers would be under a harder-to-ignore burden: they would have to determine much earlier in the semester what their normative goals for the class were and whether their teaching methods were effective moving the class toward those goals.

I don't mean to make it sound like teachers must bear an inordinate amount of the burden in ensuring learning. Learning is a collaborative effort, which requires a heavy investment on both parties. Rather, I think that by extending the evaluation process, teachers would be making it more possible for students to determine both if they wanted to learn (that is, if they wanted to be changed in the way the teacher offered) and if they actually were learning.

Building Better Lawyers by Building a Better Legal Culture By: Eric Soehnlein

Introduction Curved grading is the norm at American law schools. Although the practice is closely wed to American legal culture, the system’s utility is debatable. In order to create lawyers who will better serve the public, legal employers and law schools should borrow evaluative metrics from other professions and focus on encouraging, rather than brow beating, future attorneys.

The curve and the myth of individualism Curved grades appear to suggest some measure of a student’s ability—a notion that is not entirely false. Individual effort makes a great deal of difference in what grades students make. Grades frequently correspond to a student’s work ethic, to a student’s dedication, to hours spent reading and thinking. The notion also possesses a certain degree of appeal; it corresponds to deep notions in American culture about the fruits of hard work. Grades are the compensation for being serious and determined.

More accurately stated, however, grades are a product of the physical process of our bodies. Grades correspond to a set of individual, if not controllable, characteristics: our capacities for memorization and oral and verbal retention, the speed with which our synapses make connections, our physical reactions to stress. Grades bridge the world between our physical abilities and some measure merit: the SAT, for example, was originally proclaimed a test of physical aptitude for learning, and only became a test of achievement in the face of evidence that class, race, and a variety of other factors affect scores. Whatever grades might be the result of, they fail to predict how an individual will perform as a lawyer (of course, it’s not clear whether this is the function of grades- but a colorable argument could be made that it should be). A curved grade fails to represent a student’s knowledge of the subject matter, diligence and commitment to study, or creativity- all attributes essential for the practice of law. Just as it would be an absurd exercise for a senior partner to give an associate a fact pattern, limited resources and a time constraint to craft a “legal opinion” upon which a client would rely, to say the same exercise predicts how an individual will perform “real world” legal work is ridiculous. Moreover, work product generated by first or second year practicing attorneys is NOT compared to the work of other associates performing the exact same exercise. Rather, the end product is collaborative, pooling the intellect and effort of the lawyers involved with the goal of giving the best legal analysis possible. The purported function of the curve For legal employers

A curve allows students to be compared to their peers within certain pre-set limits, which can be turned into evaluation (purportedly) used by firms and other employers as a means of evaluating student’s potential. As a result of the curved system, employers have a ready made metric for evaluation that allows for quick decisions of whom to hire or quickly dismiss without forcing them to pay attention to “soft factors” like work ethic, dedication, capacity for improvement in legal reasoning or personality; grades supply a necessary (albeit empty) element of individuality. There is no grading system that can show that a student had a creative and insightful, yet “off the mark” answer to a question on a contracts exam, nor can it show one student’s genuine interest in an area of law as opposed to another. In this respect the curve is a pre packaged and valueless “evaluation” of a law school’s product brought to market. For students

Unfortunately, the swindle also cuts the other way. Highly motivated and previously “academically successful” law students enter law school with eagerness and high expectations. Regardless of the reasonableness of such expectations, the multifaceted buzz saw of curved grades, the Socratic method and a focus on the prestige of post graduate jobs means a substantial number of individuals whom were previously enthusiastic, confident and eager to work with the law experience feelings of inadequacy and ultimately divorce themselves from academic growth. The system spoils some of its greatest minds before they ever get an opportunity to really work within it. As a profession we can do better. A Solution (?)

In the author’s (herein unsupported) opinion, the aim of legal education should be to take the enthusiastic individuals who enter law school and give them skills needed to be successful in their practice of law. This doesn’t mean legal education should be void of evaluation, nor does it mean that employers should take applicants based solely on “enthusiasm” or “personality.” Some people are better than others at certain jobs (I always wanted to play major league baseball, but…), and it would be a disservice to the public who relies on legal services to not find the best individuals for a task. With these goals in mind, there should be reform in both law school grading and curricula as well as in the way (most) legal employers choose their employees.

First, law school curriculum should be changed to better reflect the type of legal work students will face when they practice. There should be a greater degree of research and collaboration (e.g. clinical emphasis), with output mirroring the output associates would be expected to give in their first years of practice (legal memos, motion practice, etc.). Curved grading should be abandoned, with the only variation being whether or not an assignment is satisfactory (that is, whether it would accomplish the “legal goal”) or not. In larger classes, there might be one “gold star” type of award for the “best” exam, but that award would be given only to one person. This will encourage the students to strive for their very best output (because what 1L doesn’t want a gold star?), yet will spare those not receiving the top mark from feelings of inadequacy that will lead to disengagement from the material.

For hiring purposes, legal employers should take a lesson from the hiring practices of other industries wherein the “interviews” include various tests that, in addition to getting to know the candidate, also test their ability for the specific job by giving tasks that closely mirror the work a candidate would be expected to perform. Just as prestigious consulting firms have multiple rounds of interviews that test a candidate’s problem solving, leadership, and personality traits, it would be entirely feasible for a law firm to give a candidate a simple analytic problem to solve in a screening interview, and then a longer, more “legal” writing oriented assignment for a callback interview. This would allow the employer to evaluate a student’s dedication, work ethic and personality and match it to the position, as opposed to blindly looking to letters on a sheet of paper.


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r2 - 08 Jan 2010 - 22:32:09 - IanSullivan
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