Is Sorting Law School’s Only Function?
Bainbridge and others are abuzz over Rush and Matsuo’s paper, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of the Factors Which Were Related to Bar Examination Passage between 2001 and 2006 at a Midwestern Law School. The paper reports that simply taking “bar courses” generally does not improve performance on the Bar Exam.
The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense. I’d bet that a large minority of all law professors, and a majority of law professors hired since 1990, haven’t sat for the Bar in the jurisdiction hosting their law school. It would be surprising if teaching behind this veil of ignorance could significantly improve test scores for marginal students. You can’t teach to a test you haven’t seen.
But if that’s true, two questions come to mind. The first has been addressed by some commentators already, and boils down to: if not bar courses, what courses should law students take? Josh Wright responds: antitrust! Sam Kamin disagrees: professors you like! As for me, I offered the following comments in a package of diverse suggestions on this topic from my colleagues distributed to our first year students at the end of the Spring term:
I recommend that you select courses that are challenging and intrinsically interesting. This means tailoring course selection to your abilities (take a tax course, especially if you are afraid of math); and interests (recall what made you excited about the Law before coming here). The data I have seen do not correlate Bar passage with any particular package of courses, but rather with your overall performance and work ethic. Certain employers may expect to see foundational courses like corporations and evidence on your transcript, but I believe those expectations are the exception rather than the rule. The bottom line: take classes that will make you want to come to school in the morning.
Maybe such advice is helpful, maybe not. But regardless, it doesn’t answer the big (second) question, which is this: is there a point to law school beyond sorting students?
The question shouldn’t be read to understate the value of sorting. A little-discussed implication of Rush and Matsuo’s research is that bar passage turns almost exclusively on how well the bottom half of a law school’s class performs. In law schools with “high curves”, such bottom dwellers probably aren’t signaled that they are in trouble. They know they are relatively worse than their fellows, but they are getting B-minuses, which don’t hurt enough to change study habits. Thus, a good technique for increasing bar passage is to sort students using a very low curve, target low performers, and remediate them. This takes lots of work, and may reduce a faculty’s scholarly production. But it is worth it, because a law school that doesn’t graduate students who can pass the bar is a very bad value proposition. And for what it is worth, Rush and Matsuo’s findings provide some support for law professors who may be otherwise worried that law school grading is random. In the aggregate, it isn’t, or at least it is just as good as Bar Exam grading.
But ranking can’t be the only purpose of law school (even if it sometimes feels that way from students’ perspectives). As the Sorting Hat sang in The Order of the Phoenix:
And now the Sorting Hat is here
and you all know the score:
I sort you into Houses
because that is what I’m for.
But this year I’ll go further,
listen closely to my song:
though condemned I am to split you
still I worry that it’s wrong,
though I must fulfill my duty
and must quarter every year
still I wonder whether sorting
may not bring the end I fear.
Oh, know the perils, read the signs,
the warning history shows,
for our Hogwarts is in danger
from external, deadly foes
and we must unite inside her
or we’ll crumble from within
I have told you, I have warned you…
let the Sorting now begin
All of which is to say: a law school that does no more than rank students and get them jobs is missing a justifying mission, which (I think) makes it hard to support. Thus, the Moneylaw advice to Dean Chemerinsky articulated here doesn’t fully satisfy me, even it is tactically wise.
(Image Source: The Hogwart’s Sorting Hat Toy)