Author: Solangel Maldonado


Law Schools and the Curve

The New York Times has published yet another article accusing law schools of misleading students, this time of failing to inform admitted students with merit scholarships contingent on maintaining a certain grade point average of the possibility of losing their scholarships. I agree with many of the article’s points and the comments in response.  For example, I completely agree that law schools should inform admitted students of the curve (it varies from a 2.67 at some schools to a 3.4 at others)  and provide them with their grading guidelines.  I found the following information on the websites of four law schools:

Law School 1

A+      1%

A         8%

A-       15%

B+      25%

B         20%

B-       12%

C+      7%

C         4%

C-       4%

F        4%

Law School 2

A or higher No more than 10 percent

A- or higher No more than 25 percent

C+ or lower At least 15 percent

C- or lower At least 6 percent

Law School 3

A+      0-2%

A         7-13%

A-       16-24%

B+      22-30%

B        Remainder

B-       4-11%

C         2-5%

D/F    0-5%

Law School 4

At least 20% of grades are A- or above and at least 20% of grades are C+ or below.


Given that grading guidelines vary from school to school, knowledge of a law school’s grading system may help merit scholarship recipients assess their likelihood of retaining their scholarships.  However, I disagree with the article’s suggestion that the curve is the main reason why many students lose their scholarships. The curve is generally not the reason why a student who never had a grade lower than a B+ in college may earn a B- or C in law school. In my experience, the curve does not lower a student’s grade but instead bumps the grade up or has no effect at all. In other words, in the absence of a curve, many more law students would earn B minuses and Cs in their first semester (or first year). The reason is that few first semester law students write good exams. This is understandable. Law school exams are generally very different from the exams students took in college or other graduate programs, and it takes a while to figure out how to take a law school exam. A student may have memorized the “black letter” law, but lack the skills to apply it to a complex fact pattern with numerous legal issues.  As the article acknowledges, law students, especially those with merit scholarships, assume that because they performed well as undergraduates, they will automatically perform well in law school—even in their first semester.  However, this is not the case.  Many students do not learn how to apply the law to a new fact pattern or how to advise a client of “all the potential claims and defenses” (a common law school exam question) until after their first round of exams when they meet with their professors individually to review the exam. Maybe law schools need to do a better job of providing students with feedback before they take exams and with formative assessments, as the Carnegie Report on Legal Education recommends, that focus “on supporting students in learning rather than ranking, sorting and filtering them.”


Introducing Guest Blogger Courtney Joslin

I am delighted to introduce Courtney Joslin who will be blogging with us this month.  Courtney is an Acting Professor of Law at UC Davis School of Law, where she teaches Family Law; Employment Discrimination; and Sexual Orientation, Gender Identity, and the Law. Courtney’s areas of interest include family and relationship recognition, particularly focusing on same-sex and nonmarital couples.

Prior to joining the faculty at UC Davis, Courtney served as an attorney at the National Center for Lesbian Rights (NCLR), where she litigated cases on behalf of lesbian, gay, bisexual, and transgender people and their families. She received her undergraduate degree from Brown University and her law degree from Harvard Law School.

Her recent publications include:

Searching for Harm: Same-Sex Marriage and the Well-Being of Children, 46 Harv. C.R.-C.L. Law. Rev. 81 (2011)

Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010)

Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harv. L. & Pol’y Rev. 31 (2010)

Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 Ohio St. L.J. 563 (2009)

You can find Courtney’s SSRN Page here.

Welcome, Courtney!


Introducing Guest Blogger Kevin Noble Maillard

I am delighted to welcome Professor Kevin Noble Maillard as a guest blogger this month.  Professor Maillard is an Associate Professor of Law at Syracuse University where he teaches Family Law, Trusts & Estates, Children and the Law, and Adoption.  His research focuses on civil liberties within the family and society. His interests include nontraditional families, racial intermixture, and the role of marriage in America.   He is the author of the forthcoming book, Loving v. Virginia in a Post-Racial World (with Rose Villazor, Cambridge 2010).

Professor Maillard received his B.A. in Public Policy from Duke University, his law degree from Penn Law School, and his Ph.D. in political science from the University of Michigan.  Originally from Oklahoma, he is a member of the Seminole Nation, Mekesukey Band.

His recent publications include:

Rethinking Children as Property, 32 Cardozo L. Rev. 225 (2010) 

The Color of Testamentary Freedom, 62 SMU L. Rev. 101 (2009)

The Multiracial Epiphany, 76 Fordham L. Rev. 2709 (2008)

The Anatomy of Grey: A Theory of Interracial Convergence (with Janis McDonald), 26 Law & Inequality 305 (2008)

The Pocahontas Exception: American Indians and Exceptionalism in Antimiscegenation Law, 12 Mich. J. Race & L. 107 (2007)


Wal-Mart and the Future of Antidiscrimination Law

Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history.  The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters.   They also rely on statistical data to establish discrimination.  They claim that women comprise 80% of hourly supervisors, but only one-third of store managers.  The percentage of women in higher positions is even lower.

Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees.   The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country.   Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.”  If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward.  If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits.   I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law.   She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace.  You can read the abstract and article here.


The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

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The Old Illegitimacy: Legal Discrimination Against Nonmarital Children

Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

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Introducing Guest Blogger Maxine Eichner

I am delighted to welcome Professor Maxine Eichner as a guest for the month of March. Maxine is a Professor of Law at the UNC-Chapel Hill School of Law. Her teaching interests include sex equality, family law, employment and employment discrimination law, legal theory and torts. She writes on issues at the intersection of law and political theory, focusing particularly on family relationships, social welfare law and policy; sex equality; and the relationship of the family, the workplace, and market forces. Her new book, The Supportive State: Families, Government, and America’s Political Ideals (2010), has just been released by Oxford University Press. The book considers the role that government should play in dealing with families and the dependency issues that families face.

Professor Eichner attended Yale College and Yale Law School, where she was an articles editor of the Yale Law Journal. She also holds a Ph.D. in political theory from UNC. After law school, she held a Women’s Law and Public Policy Fellowship through Georgetown Law School, clerked for Judge Louis Oberdorfer in the United States District Court for the District of Columbia, and then clerked for Judge Betty Fletcher in the United States Court of Appeals for the Ninth Circuit. She also practiced civil rights, women’s rights, and employment law for several years at the law firm of Patterson, Harkavy, and Lawrence in Raleigh, N.C. before joining the faculty at UNC-Chapel Hill School of Law in 2003.

Professor Eichner is an editor of Family Law: Cases, Text, Problems (2010) (with Ellman, Kurtz, Weithorn, Bix, and Czapanskiy). She is also Reporter for the Uniform Law Commission’s Visitation and Custody Issues Affecting Military Personnel and Their Families Committee.

Her recent publications include:

Families, Human Dignity, and State Support for Caretaking: Why the United States’ Failure to Ameliorate the Work-Family Conflict is a Dereliction of the Government’s Basic Responsibilities, 88 N.C. L. REV. 1593 (2010).

Feminism, Queer Theory, & Sexual Citizenship, in GENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP (with J. Grossman and L. McClain) (Cambridge Press 2009).

Marriage and the Elephant: The Liberal Democratic State’s Regulation of Intimate Relationships Between Adults, 30 HARV. J.L. & GENDER 25 (2007).


Introducing Guest Blogger Shavar Jeffries

I am delighted to welcome Shavar Jeffries who is an Associate Professor of Law at Seton Hall Law.  Professor Jeffries’s work focuses on impact civil-rights scholarship, advocacy, and litigation, focusing on education and housing inequities affecting urban communities.  He has represented thousands of urban children in education-reform litigation, including children denied free, after-school tutoring services under the No Child Left Behind Act, and thousands of Newark children attending public-charter schools who were denied equitable instructional and facilities funding. Professor Jeffries has also represented individuals and community associations in a variety of housing cases, including tenants facing unlawful rent-increases in subsidized housing units, and individual victims of mortgage fraud and predatory lending.

From 2008 to 2010, Professor Jeffries took a leave from Seton Hall Law to serve as Counsel to New Jersey Attorney General Anne Milgram. In that role, Professor Jeffries had oversight responsibility for several divisions of the office, including the Division on Civil Rights, the Juvenile Justice Commission, and the state’s multi-state litigation and advocacy portfolio. Professor Jeffries also managed a range of special initiatives, including the state’s mortgage-mediation program and several initiatives design to grant greater protection to domestic-violence victims.

Prior to joining Seton Hall in 2004, Professor Jeffries was a Gibbons Fellow in Public Interest and Constitutional Litigation at Gibbons P.C., where he worked on a variety of cases including matters involving special education, voting rights and affordable housing. Professor Jeffries also clerked for Nathaniel R. Jones, a judge on the United States Court of Appeals for the Sixth Circuit, and worked as an Associate at the law firm of Wilmer Cutler & Pickering, where he defended the University of Michigan in affirmative-action litigation challenging its admissions policies, and represented black farmers who for decades had been denied farming loans by the United States government because of their race.

Professor Jeffries, a Newark native, is extensively involved in the Newark community. He was the Founding Board President of TEAM Academy Charter School, the largest public charter school in New Jersey, and served as Board President from 2002 through 2007. From 2004 through 2007, Shavar was Board President of the Boys and Girls Clubs of Newark, which had a $700,000 deficit when he took over and which had three consecutive balanced budgets during his tenure. In April 2010, Shavar was elected to the Newark Public Schools Advisory Board, winning more votes than any school-board candidate in seven years. Shavar was then unanimously selected by his colleagues to serve as President of the board.

For his public-interest advocacy, Shavar has received numerous honors including the Garden State Bar’s Young Lawyer Award, the Greater Newark HUD Tenants Coalition’s Public Service Award, the Brendan Byrne Distinguished Public Servant Award, and recognition by the Newark Star-Ledger as a “Person Who Made a Difference” and by New Jersey Superlawyers Magazine as a “Rising Star.”

Professor Jeffries received his B.A. in History from Duke University and his J.D. from Columbia Law School, where he was a Harlan Fiske Stone Scholar, Paul Robeson Scholar, Jane Marks Murphy Prize recipient, Mitsubishi International Fellow, and Managing Editor of the COLUMBIA HUMAN RIGHTS LAW REVIEW.


Introducing Guest Blogger Craig Livermore

It is my pleasure to introduce Craig Livermore, the Executive Director of the New Jersey Law and Education Empowerment Project (“NJ LEEP”), as a guest blogger this month.  Craig holds a B.A. from Franklin and Marshall College in Religion and Mathematics, a Master of Theological Studies from Harvard, and a J.D. from Columbia Law School.  In 2006, he founded NJ LEEP, in partnership with Seton Hall Law School, as a comprehensive and continuous pipeline diversity program for urban youth in grades eight through twelve interested in pursuing a legal career.

Craig is the founding board chair of Newark Legacy Charter School and is an Adjunct Professor at Seton Hall Law School where he teaches a course on Race, Law and Education.  In addition to work on religion, ethics and public policy, Craig has published articles on urban educational management, and educational policy and its effects on racially equitable educational outcomes.

Recent Articles:

Racial Complexity and the Elementary and Secondary Education Act, __ J. Civ. Rights & Econ. Dev. ___ (forthcoming 2011).

Obama, Racial and Political Complexity, and Hope for a Transformed Racial Order, Race-Talk J. Kir. Institute (Spring 2010), available at (scholarly e-essay).

 Centralized Standards and Decentralized Competition: Suggested Revisions for No Child Left Behind to Create Greater Educational Responsiveness Toward Disempowered Minority Groups, 33 Seton Hall Legis. J. 433 (2009).

 Unrelenting Expectations: A More Nuanced Understanding of the Broken Windows Theory of Cultural Management in Urban Education, University of Pennsylvania Grad School of Education Perspectives On Urban Education (2008), available at (peer reviewed on-line journal).

You can find Craig’s SSRN Page at


Introducing Guest Blogger Alicia Kelly

I am delighted to welcome Alicia Kelly who will be blogging with us this month.  Alicia is a tenured Associate Professor at Widener University School of Law in Delaware where she teaches Family Law, Property Law, Wills and Trusts and a seminar on Money, Intimacy & Law.  Her scholarship focuses on the intersections of economic behavior, intimate relationships and gender.  Her writing explores theoretical and policy foundations for wealth allocation during marriage and at divorce, with particular attention to the impact of interdependent sharing behavior on wealth generated by human capital.  Alicia is currently working on how these issues play out for cohabiting couples, as well as how they relate to intimate partner contracts.  She is also co-authoring (with Nancy Knauer) a Property Law text for the Practice and Context Series slated for publication in 2013 (by Carolina Acdemic Press).

Alicia is currently serving as Chair of the Association of American Law Schools Section on Family & Juvenile Law, and was Program Chair for the section panel, Money, Intimacy, Law & Inequality at the 2010 Annual Meeting. She is also a member of the Executive Committee for the Section on Women and Legal Education. 

This past spring 2010, Alicia was a Visiting Professor of Law at Temple University.  Before joining Widener, she was on the faculty at Western State University College of Law in California.  She holds an LL.M. in Legal Education from Temple University School of Law, where she was an Abraham L. Freedman Fellow and Lecturer of Law, and also earned her B.A. (magna cum laude) and her J.D.(cum laude) from Temple University. Before her law teaching career, Alicia was in private practice concentrating on complex domestic relations and general civil litigation. She is also a trained mediator.

Alicia’s publications include:

Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations, 47 Louisville L. Rev. 113 (2008).         

Rehabilitating Partnership Marriage As A Theory of Wealth Distribution at Divorce: In Recognition of A Shared Life, 19 Wis. Women’s L.J. 141 (2004) 

The Marital Partnership Pretense and Career Assets: The Ascendancy of Self Over the Marital Community, 81 Boston Univ. L. Rev. 59 (2001).