Law School Admissions Standards As Law

Harvard’s decision to end its early admission program was the big story early week. As President Bok explained, the university worried about the social consequences of its admissions process:

“Students from more sophisticated backgrounds and affluent high schools often apply early to increase their chances of admission, while minority students and students from rural areas, other countries, and high schools with fewer resources miss out . . . . Others who apply early and gain admission to the college of their choice have less reason to work hard at their studies during their final year of high school.”

Harvard’s decision got me to thinking about the relationship between admissions standards at high-prestige universities and legal rules.

Both legal rules and admissions standards are conduct shaping regulations. When you set admissions standards to select for trait behavior X, the prevalence of X in the applicant universe will increase. Such an increase will not be uniform, for the reasons that Bok gives, and there will be further distortions depending on individual (or mass) psychology. But there are reasons to believe that law school admissions address a particularly sophisticated and resource-rich audience, who are well suited to governance. Thus, law school admissions are ripe for evaluation as a form of law itself.

I thought about this after talking with a friend last night who told me about business schools’ strong emphasis on community service as a part of the application of a well-rounded applicant. This probably creates a class of business school students who are more likely to be civic-minded after graduation. But it also (and more simply) results in a great deal of public service by pre-MBA types in the world. The question is: why don’t law schools use the application process to improve the world too?

You might object: “this is paternalistic social engineering.” Yes, yes it is. But law schools, like HLS, already require onerous mandatory pro bono commitments during school. The problem with such programs is that the incentives are all wrong – toward clock management instead of results. But if you made pro bono service an important part of the admissions decision, and suggested that particularly effective public service would be highly weighted, then you’d set folks incentives well to achieve good. Elite schools might collude to create a list of potential law-related public work that candidates would be “well-advised” to perform in order to increase their chances of admission: volunteering for a public interest firm or tax law clinic; working for the PD or DA as a part-time investigator; assisting social security ALJs as a paralegal, etc.

To be clear, I don’t mean to say that admissions committees aren’t already considering public service. Surely, they are. But they aren’t communicating the idea that public service counts in a meaningful way. Check out HLS’ admissions FAQ, and note the silence on this point. The silence is shared by other top schools. The point is that law faculties (at least those I’ve seen) have traditionally seen the admissions committee as wearing a judicial, rather than legislative, hat. As a result, faculty might tend to think of admissions as a necessary chore accomplished by the folks who run the operations side of the school, instead of an extension of the pedagogical mission. [Update: Even the affirmative action debate, which is a policy choice effectuated through admissions, isn’t intended to shape the conduct of pre-law students.] Perhaps its time to rethink that model.

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12 Responses

  1. Frank says:

    This is a fantastic idea–and Washington Monthly is trying to develop an alternative set of college rankings designed to reward this type of public spiritedness.

    Let’s hope that places like USN&WR think of some way of quantifying such a requirement so that they can create *effective* incentives for law schools to adopt it.

  2. Random Thought says:

    I rather disagree; two quick reasons why:

    1. I disagree that it is not communicated that public service is valued in admissions decisions. Although the HLS admissions FAQ and similar ones may not state it, in my experience as an applicant and student at a top-14 law school and in communication with others, it was clearly understood by other applicants and students that public service was great resume fodder for admissions, and could often make the critical difference.

    2. Seeing the news quoted in this post gave me the opposite conclusion as Mr. Hoffman – making public service a more important factor in law school admissions would have a delterious effect on lower-income students, not a positive one. While students from a well-off background can use family money to cover their expenses while doing volunteer or low-paying public interest work, students from a lower socioeconomic background, who are often working anyway just to pay for food and books, would be unable to keep up with their richer and (realistically) whiter fellow applicants in yet another metric used to determine admissions.

  3. Miriam Cherry says:

    How is the HLS pro bono requirement “onerous”?

  4. Dave Hoffman says:

    In the sense that is 40 donated hours by students who are under tremendous financial pressures.

  5. Orin Kerr says:

    Dave,

    I wonder if the reason you approve of “paternalistic social engineering” in this context is that you see yourself as the “pater” who will be doing the engeering, not the subject who will be engineered.

    Let’s flip it around: Why don’t law school deans, tenure committees, and appointments committees engage in some “paternalistic social engineering” of law school professors? Right now, such institutional actors are mostly “judicial,” in that they try to assess accomplishment and ability. But maybe we should rethink that model so it is more “legislative.” We could reward professors who have the right set of priorities or views, or spend their time in particular ways that we think improve the world.

    For example, maybe I think you would be better off if you exercised more. If I am on your tenure committee, I could actually encourage you to exercise more, helping you improve yourself, as your exercise habits would influence whether I vote for your tenure case. Some might dismiss this as paternalistic social engineering. Yes, it is. But I think it’s good for you. Game?

  6. Dave Hoffman says:

    Orin,

    It’s a fun example, but the turn is that my health is unrelated to the mission of my T&P committee, unless that mission is broadly stated, while encouraging pro bono legal service is a core part of the expressed mission of American law schools. That said, obviously T&P committees DO engage in conduct shaping, by setting standards, and (subtly) encourage some types of scholarship (e.g., that likely to be cited more often) and discourage other types.

    I’m not so sure I think that my idea is a good one, but I do think it rankles less than engineering by the government. Birthright citizenship suggests that interventions into preferences ought to be viewed with a degree of skepticism, but you have no right to attend law school.

  7. Orin Kerr says:

    Dave,

    You’re just giving the same reactionary excuse that opponents always give when trying to oppose helpful social engineering: that the goal of the engineering isn’t really part of the “core mission” of the institution. As you know, opponents of mandatory pro bono in law schools argue that the mission of American law schools is training lawyers, not trying to encourage lawyers to spend their time outside of their regular job on socially beneficial activities. So mandatory pro bono is outside the “core mission” of the law school, they claim.

    Comrade, surely we can see past this unenlightened and selfish ruse. The beauty of social engineering is that the engineer gets to define the “core mission.” Since in my hypothetical I am the social engineer, and you are the subject of my engineering, I hereby define the core mission of our imaginary law school as improving your mental and physical fitness. So hit the gym, Hoffmann! 😉

    (Seriously, your point about committees encouraging scholarship that is likely to be cited seems odd to me: I have never heard of such a thing. Rather, in my experience committees encourage important and serious scholarship because the tenure standards assess a candidate’s work accordingly.)

  8. One helpful aspect of a strengthened pro-bono work encouragement would be to flesh out those who may not pro bono for the right causes. As it is, we can’t yet ask for political affiliations or sympathies but if we see law school applicants who’ve worked on behalf of The Right-to-Work Foundation, the Minuteman Project, the Heritage Foundation, any of a number of Right-to-Life groups or even some Republican candidates – well, I have no doubt that law schools, universally known for their celebration of intellectual and political diversity, will give these equal weight to work done for NARAL, CASA and other so-called public interest groups.

  9. Frank says:

    Conservatarian raises a good point–and I do believe that Yale law (when I was there) respected it, and did promote public service regardless of ideology.

    As for Orin’s points–I think it’s all too slippery slope. There’s a major difference between encouraging students to think about (and do) the types of pro bono work they’d most like to do in practice, and forcing them (or professors) into some sort of exercise program unrelated to practice. (Perhaps it’s a bit like that distinction in the Dole case on when federal grants can be improperly coercive…or perhaps a better analogy is the “proportionality” and “nexus” limits on exactions in Dolan (or was it Nollan?)).

    But I’d like to turn it around on Orin–let’s imagine three major HMO’s dominated the health insurance market, and gradually developed a common standard that they would not insure people who didn’t go to the gym for an hour a day. Would that also be an undesirable outcome? Or would it, as the “natural” result of market forces, be undeserving of scrutiny? And if that example seems far-fetched, the types of “natural” developments toward “zero privacy” in the workplace provide quite a compelling, real world analogy.

  10. Ken Arromdee says:

    In a free market, the tax incentives for employer-provided insurance wouldn’t exist. It’s plausible for your insurance company to have intrusive personal requirements when there’s only one choice selected by your employer and your employer doesn’t care about privacy considerations when deciding what the one choice is. It’s less plausible if you can pick your insurance company yourself.

    It would not be the “‘natural’ result of market forces.

  11. Orin Kerr says:

    Frank,

    I don’t think my argument is a slippery slope. I’m just pointing out that our instincts are very very different when we see ourselves as social engineers than when we see ourselves as subjects of social engineering.

    In any event, I’m not sure what it means to say that an HMO policy is “deserving of scrutiny” or “undesirable.” What is the relevance of the question?

  12. clk says:

    I know this is a little late, and I apologize. It’s my first time at the site.

    Have you ever stopped to consider that this will only serve to increase the class and racial divides in law schools? Like it or not, kids whose parents make less than six figures have to work their way through college — and it’s a large part of the reason why fewer and fewer can graduate in four years. Adding community service on top of it will lock middle-class kids out entirely.

    Believe it or not, most HLS law students are very public-interest minded when they enter. They leave for firm jobs because a) they have six-figure debts to repay, and b) they’re intelligent enough to realize that the LRAP is useless if you want to get married, have a family, and save for retirement. And if Harvard has one of the best LRAPs, what do you really expect from everyone else?

    Finally, if you think the community service among MBAs is meaningful, you may want to spend some time at Wharton. Students do it only because it looks good. Because most forms of community service reinforces the division between “us” and “them,” volunteer activities confirm students’ pre-existing beliefs that people are poor because they’re lazy. MBA students may feel sorry for the poor, but mere sympathy doesn’t help them understand the root causes of poverty. That’s why, at the end of the day, community service doesn’t make MBAs support poverty-reducing policies.

    You may want to sit in on a liberal arts Ph.D. admissions committee at Princeton (or Penn) sometime. I did, and the differences led me to what’s really wrong with law school adcoms.