Is Sorting Law School’s Only Function?

17402.jpgBainbridge 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The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense.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)

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16 Responses

  1. Mary Dudziak says:

    On question #1 (what courses to take), the study does undermine the policies of some law schools to keep at-risk students out of certain courses that aren’t on the bar — like legal history. For more on this, see:

  2. Seth says:

    I think sorting is definitely a big part of it and, by sorting, it also serves as the first level of the weeding process (with the bar exam itself being the greater weeding process, of course). However, done right, I think a law school really should teach folks how to think, read and analyze like a lawyer. I know that, for me, my favorite course in law school was a year long property course. I hate real property, and I don’t remember a lick of what I learned substantively. But our prof was pretty clear that he didn’t care if we learned about property – he wanted to teach us how to approach legal issues, case law, etc. And to that end, he was far more successful than any prof I had. And to the extent I’m a good lawyer today, I attribute more of that to him than anything else in my law school experience.

    Well, except the heavy drinking. That helps too.

  3. Jack S. says:

    I agree with Seth on all points (including the drinking).

    Having done engineering undergrad I understand that what I was taught was not the equations and thermodynamic principles, but rather how to find the solution to a given problem given all the resources available to me.

    The same goes very much for law school. It’s not about stuffing you with information, but rather how to think and solve problems. This does however beg the question of the utility of the 3rd year which in it’s defense it reassured me that I was becoming more efficient, but against it I was bored out of my skull, spending yet another $50K and would have rather done other things.

  4. mmm says:

    Law school serves one good function (beyond sorting): how to read like a lawyer. Give most people a court case and they’ll have a hard time deciphering what the heck is going on. That’s true for even really smart people confronted with most forms of legal writing.

    Now, this certainly doesn’t take 3 years.

    As for the classes to take, that’s an easier question. Take classes that are more likely than not to give you the background knowledge for your practice area without regard to the bar requirements.

  5. George says:

    I loath law school, so the following is coming from a biased place. Also, I do take full responsibility for my class rank and grades. All things considered, I don’t think I could have tried harder. That said, I’m currently in my last year of Law School. At this point, given my school’s rank and my class rank, I feel I have spent $140k on an education I cannot do squat with.

    A hiring attorney came to our school and flat out stated that the large to medium size firms only recruit the top 20 seats at our school, that’s it. It is my experience that grades solely determine the pool of applicants and your ability to perform a legal task.

    At interviews, I am asked to explain grades of a B+. My response: I have never gotten a B+. To which the interviewer wants an explanation for my poor performance. My response: I put my self through night school, over six years to graduate Summa Cum Laude from UMASS. I am now working my way through law school, from which I will graduate in May. That’s ten years of working in a warehouse and going to school, at night, starting at the age of 32, and the interviewer wants to know why I performed so badly. So it’s not just “the students perspective”, sorting is real, and largely the only proxy employers use and care about, perhaps rightly so. No one advertises nor wants to employ the mediocre, but is it the sole purpose of law school?

    I paid $140k to learn how to be an attorney. Law school prepares a student to take law exams, not to be an attorney. When a client calls an attorney, it is to get that attorney’s legal judgement. That judgment is arrived at and expounded by three skills: (1) research, (2) reasoning, and (3) writing.

    All the courses one is forced to take, and most course electives are based on the case method. I do not know about other schools, but after the 30 minute 1L tour of the library almost all my research was done in the bookstore. Therefore, developing an expertise in research never really occurs.

    One course is required in legal writing, which also happens in your first year. The philosophy, I presume, is to teach one to write in a legal format with no legal knowledge at one’s disposal. The writing skill is further nurtured by reading endless judicial opinions, which is a wise choice since most of the writing I’ll do is internal memos and briefs to the court. Pile on two more years of courses where writing is not taught at all and no feedback is given on the three-hour-briefs one does write from memory at the end of a semester, and one begins to have an insight into what it is they do not teach at law school.

    Yes, but reasoning, surely reasoning gets taught. I disagree. Legal reasoning does not get taught, or I should say explicitly taught. That is, there is no class on legal reasoning, and why should there be, it’s only the summum bonum of the legal field. It is, presumably, the thing the law professor is looking for in the exams. Since it is a law school’s raison d’etre to pass on the skill of legal reasoning, it does seem odd that professors never, you know, profess on the topic.

    I grant you moments arise, here and there, where hints are dropped during the years of study, and the occasional augmentative technique bestowed while getting you skull bashed in with the Socratic Method, but I ask you, is that legal reasoning? Does that help me with the client on the phone? You tell me?

    All of this wouldn’t be so frustrating if I had not asked, cajoled, begged for help only to be put off. I felt like I was intruding on something by asking for help. How dare me, I was missing the point. Now I know why, I was cutting into ‘scholarly production’. I’m at the end of my law school career now, and I have little experience researching, little experience in legal writing, and sporadic legal reasoning skills. Am I a ‘bad value proposition’?

    Further, if one’s GPA is reflective of one’s capacity for legal judgment, a sort of legal judgment point average or LJPA, then law schools are graduating bad attorneys with poor legal judgment.

    Follow me here: Our school grades the curve to a B-. Thus, one’s GPA or LJPA, in order to be average, must be 2.67. Anything under that would be considered a below average LJPA or below average legal judgment. A school that sorts a class of 130 students to this curve would produce over fifty below average attorneys. Why would a school do that? Why would a school string along fifty people with poor legal judgment knowing their odds of employment were slim?

    Well, 50 times $140k equals $7,000,000 per year, per class. It seems I am stuck in a university that sees me as a cash customer and faculty that sees me as a talking widget that annoyingly cuts into their scholarly production.

    I honestly do not know what the purpose of law school is, but I know what it is not. It is not to train me to be a lawyer, nor is it to train me to ‘think’ like a lawyer or ‘research’ or even ‘write’ like a lawyer.

    Hmmm…I guess I learned something. Caveat emptor, that is so true. I can’t wait for the bar.

  6. Jay says:

    Law school was a chore and then some for me – and I struggled at times – but I did graduate – though if I wasn’t the class anchorman it wasn’t for lack of trying. (My now late property profesor told me I should think about another line of work due to a poor result on my exam – which only served to steel my resolve to finish. Never underestimate the stubborn pride of a law student.) The Bar/Bri course taught to the state bar exam and I passed it on my second try – when I actually studied for the thing.

    I was taught by an honestly good-natured faculty (for the most part) who actually cared (again, for the most part) whether or not we were in the right place and were able to serve the needs of our clients – whoever they turned out to be – and our own career goals.

    I wish it had taken less time, and I surely wish it had cost less money – but without question I learned a good deal in law school – and not all of it about the law. Three of my professors still stand out in my memory and I regard them with much esteem – they help me often even though we have not spoken since I graduated some fifteen years ago.

    The skills – both analytical and counseling – serve me well today. And I am not lawyering, but am a Director of Contracts for a large corporation – and grateful for every hour of contracts, labor law, securites, UCC, negotiating and trial practice courses I complained about every day all those years ago.

  7. Steve says:

    Quite frankly, I found law school to be almost worthless. The professors at the large state university I attended were astoundingly bad. One allegedly well respected torts professor literally lectured the wall. The man could not make eye contact and obviously needed therapy. The civil procedure professor had never practiced law a day in his life and was not even admitted to a bar.

    The main problem with law school was that it was not designed to teach. The professors gave no feedback and success was a matter of chance. The 6 week bar review course taught me more useful information than 3 years of interminable school, and I graduated with honors. Schools may sort students, but whether that sorting actually reflects the worth and ability of the student is questionable.

  8. Spartee says:

    Oh man, I need to vent now. Talk about clueless navel-gazing:

    “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.”

    HA! Get them jobs? Get them jobs?! If law schools did even that much, I would applaud them heartily. They would be fulfilling what should be their first goal, so long as they charge those eye-popping tuition rates utterly divorced from cost.

    I graduated from Univ. of Michigan a decade ago with a good job…and $100K of loan debt. But Michigan’s efforts in getting me a job consisted of making coffee for the recruiters. Thank god recruiters were still under the delusion that going to Michigan allowed them to hire good lawyers. For my classmates unable to find work, it was sympathy from the school. Nothing more.

    I hear that at lower tier school, no recruiters show up for the bad law school coffee. How those deans and professors can sleep at night after essentially fleecing young people to support their comfy UTTERLY UNPRODUCTIVE sincures is beyond me. And their uncomprehending, smug self-satisfaction at their sandal-wearing lifestyle takes me further to the point of sputtering contempt.

    When is the last time someone in practice (or real life at all) consulted what a law professor had to say about an issue? When was the last time a professor was needed for anything, except maybe yet another poverty and the law clinic filing useless landlord tenant lawsuits for deadbeat against slumlords? (Oh, don’t forget the woman’s law clinics–same story.)

    Lord, I hated law school. The whole thing was a scam run by the out of touch faculty and tolerated by a university guzzling the fat fees generated. I only wish the ABA and state supreme courts would get together and strip the schools of their gatekeeper function to the profession. Let the bar exam do that by itself and turn law school into essentially cosmetology schools. Watch how long those professors and their lifestyles last once the restricted competition is gone.

  9. apetrelli says:

    Bar exams should be given at the end of the summer after the 1st year. Few law students have meaningful employment over that summer. Between the 1st year curriculum and Bar Review courses over the summer, they should be fully prepared for what is rudimentary material. If they fail, that info could be on the table during interviews for 2nd summer employment.

  10. Rex says:

    I went to a national law school, where we were told that the course to take for passing the bar exam was BAR/BRI. We were also told that once we took the required courses, which took 3 semesters, we should then take whatever courses we liked, whether for the professor or the content.

    True words.

    My own analysis of law school is that law school is geared for training future law professors.

    As the saying had it, if you get A’s, you’ll become a law professor; if you get B’s, you’ll become a judge, and if you get C’s, you’ll become a practicing attorney and make some money.

    I thoroughly enjoyed law school, but found out during the hiring process that major firms weren’t interested in hiring anyone over 28. Their loss.

  11. Brian says:

    I learned almost all of the bar exam topics in the 7 weeks I studied for it. And, I did not take BarBri or anything else.

    I say take what you want in law school and be done with it.

  12. Steve says:

    I fortunately avoided the trap of taking classes “because they would be on the bar.” That meant I avoided taking Evidence, which was collectively taught by miscreants masquerading as professors.

    I didn’t take Trusts & Estates, because it bored me to tears. Ditto Commercial Law.

    Bar Review took care of enough of what I needed to know. If you’re going to spend this much time and money, you might as well take courses you’ll enjoy with professors you might actually respect.

    As for sorting, like George above, I attended a school with a B- curve, which basically doomed most of us in our scrappy T2 school a chance at a job post-graduation.

    When a school does that, they’re not sorting, they’re stomping — stomping out meaningful employment and a chance to pay off your student loans before you turn old and gray.

    But they’ll be happy to take your money, in any event.

  13. Bill says:

    @Spartee: “Watch how long those professors and their lifestyles last once the restricted competition is gone.”

    Son, you have no idea what restricted competition is. American law schools (and US colleges) are one of the best examples of a freely competitive market that you will ever find in a non-tradeable (that is, something you can’t import from Chindia).

    If you want the same access to the profession for less $$, but with less frills, there are plenty of schools that will provide it, at different levels of prestige, selectivity and employment prospects. Heck, there are a lot of them that start with the letter “T” (Texas, Tennessee, Temple, Texas Tech — to pick a top 16 school, a tier 1, 2 and 3, all of which are pretty cheap). And they compete versus each other for students, faculty and brand value like crazy.

    Indeed, you can take the bar without finishing law school in a bunch of states, and the schools compete against that too.

    Time to actually take antitrust as suggested in the OP.

  14. Interesting points, to compare the competitive market in law schools to that in medicine.

  15. Spartee says:

    Re: Bill’s response

    “Son”? (Not one of these guys….)

    Anyway, your comment that “American law schools (and US colleges) are one of the best examples of a freely competitive market that you will ever find in a non-tradeable (that is, something you can’t import from Chindia)”


    Please see the following comment on your view that the market for legal education is so wonderfully competitive:

    More directly, see also the Wikipedia discussion of the law schools’ part in admission to practicing law.

    Looking at those two articles and their description of the roles of the ABA and law schools in creating the market for legal education, I see (1) barriers to entry, (2) government-granted monopolies at the state level, and (3) regulatory burdens and capture, all of which protect market incumbents. Not surprisingly, those market incumbents are charging a price entirely disconnected from marginal cost.

    If that decribes, to your mind, “best examples of a freely competitive market”, I suggest a course in ECONOMICS 101 before taking that antitrust law class for a second time.

    Moreover, with such barriers to entry the market for *practicing law*, that market is similarly subject to onerous restrictions on entry, so it is incorrect to say even the practice of law is a good example of a “competitive” market in the economic and antitrust sense of that word.

    Legal education and law as a profession is competitive in the way pro sports franchises are competitive, meaning that for those already existing within that non-competitive market, competition is fierce. But that market itself does not exhibit the qualities of a highly “competitive” market where new entrants can freely enter.

  16. Perhaps understandably, given the brutal job market for recent law graduates and evidence of misleading reporting of employment data by law schools, since the recession the conversation about legal education has been dominated by concerns about the entry-level job market for lawyers, the need for greater transparency in that market, and what law schools, individually and collectively, should do to rationalize the cost and immediate market value of the training they offer.