The next guest is Columbia law student Anthony Rickey, author of Three Years of Hell to Become the Devil:
First of all, thank you to the [non]billable hour for inviting me to one of his “Five by Five” forums. Before giving my five answers, I’d like to explain a bit of where I’m coming from. At the beginning of my 1L year, Scheherazade of Stay of Execution recommended that I read Patrick J. Schiltz, On Being A Happy, Healthy, and Ethical Member of an Unhealthy, Unhappy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999). If you’re a law student, or considering becoming a law student, I can’t recommend it more highly. (Then go to Westlaw, check the papers citing it, and read some of the folks who disagree with Prof. Schiltz. It’s a good habit to get into.)
I picked up two things from the piece. First, that there the profession of law contributes to a chronic unhappiness among many of its members. Second, addressing these flaws may involve a lot of small steps, but it also requires a great deal of what we used to call “blue-sky” thinking back when I held the august title of “online strategist” and advised my clients on how to change their business processes.
So, I’m taking my host’s question very broadly and marking down the changes I would make if I had an infinite amount of political and social power, an unlimited budget, and more than enough rope to hang myself and ever co-conspirator I could ever hope to muster. These suggestions come from the perspective of a student skeptical of the justifications for leaving the practice of law as a profession rather than a business, so take them with however much salt you think needs to season them. But here goes.
1. Eliminate the ABA’s accreditation system. The requirement for ABA accreditation of law schools preserves little but the high price of becoming (or retaining) a lawyer. To the extent that these are “one-size fits all” rules, they prevent us from coming up with new and innovative ways of addressing the problems of lawyers and legal education. From online law schools like Concord to more traditional ideas of apprenticeship, there should be more than one path to a career in the law.
Did you know that the following are requirements: Every law school must have its own law library (Standard 601), and these may not include only electronic sources (Standard 606); that library must have a full-time director (Standard 603), who must be responsible for library policy in association with a dean (Standard 602); every full-time faculty member must have their own office (Standard 701)?
None of these seem too unreasonable in themselves, until you think of the innovations they forbid. Why shouldn’t all the law schools of New York City get together and contract out library services to some McLawLibrary? Why shouldn’t first-year full-time professors be made to share offices if it meant more could be hired? And why shouldn’t a school be able to survey its library usage and decide that for some things, paper is just a thing of the past? Does anyone really think that ignoring these requirements would result in substandard lawyers destined to fail the bar exam or underserve their clients? Is having a single micromanaged standard for the whole nation really in the best interests of justice, our economy, and our students?
2. Increase the signal-to-noise ratio in evaluation: One of the most frustrating aspects of my time in law school has been exactly how bad most signals of student success actually are. It’s a familiar chestnut among first years that you will get your best grades in the classes you felt you did worst in and vice-versa. Not only is this true, it fosters an immense cynicism: many of those who are successful feel more lucky than justified, while many of those less fortunate have little guidance for the future. A number of the latter students comfort themselves with the idea that the whole system rests upon random chance–and to a degree they may very well be right.
In my best courses last year, I had a number of assignments throughout the course, generally graded by TAs. These helped me guess at what I could expect on the exam. Even better were those professors who encouraged us to pick up our papers after the exam and review what we’d written. One professor had a simple and direct rubric for figuring our grades; another had a multi-layered, multi-level grading process explained in exquisite detail. The former professor gave me one of my worst grades, the latter one of my best, but either way I understood how and why I’d received what I did.
In too many other cases, a review of my exam revealed a bright and shiny letter grade and a few squiggled comments that I swear to God reminded me more of classical Japanese than anything approaching English. When asked, one professor said that grading was a more holistic process, too difficult to pin down numerically. I can understand that feeling, but that’s not an excuse: good feedback is what makes academic growth possible. Lack of feedback just makes the process look arbitrary.
Oh, yes, and by the way: make any grade curve center around something sensible, like a C+. B/B+ centered curves just increase the noise-level involved in grading because there’s not enough differentiation in grades. An A should mean something extraordinary, not just “good.”
3. Move EIP to the second semester of 2L year. I’m not giving away any secret here: at many law schools, most students accept crushing debt burdens in exchange for the promise of dramatically-increased future earnings. While there’s always the pro bono contingent, many of us are going through this whole system because we want a job. Change how one gets that job, and every other motivation shifts.
At the moment, too much of legal job searching focuses on the first year of law school. With the early interview process starting about the same time as 2L year, the only thing employers see is first-year grades. Since most students expect to work for their summer firm–or at least they hope for an offer–1L grades become overemphasized. This makes no sense at all to me, because first-semester 1L grades measure two different things (to the extent that they measure anything at all): what one has learned in a given class, and how fast one has picked up on a very new and often very foreign system. In many cases, I think the second factor is much more important than the first. But if a law firm is hiring for the long haul, is this really the quality they’re looking for?
Ideally, I’d get rid of the connection between 2L summer positions and final jobs, but I assume that this is driven at least partly by the law firms. Failing that, moving the entire process to the second semester of 2L year would increase by half the amount of information a law firm had to observe from a transcript. And at schools where 1L classes are fixed, some of the information would be much more indicative of an individual student’s personality: that 2L semester is much more likely to include electives at most schools.
4. Describe the whole lawyer, not just grades. When I was searching for my 1L summer job, I was struck by an odd contradiction in my law school’s rules: I wasn’t allowed to put my GPA on my resume, but I could send a transcript to prospective employers. Now, most law firms have some serious resources devoted to recruiting. Wasn’t it reasonable to expect that they’d just plonk my grades into a database that would spit out a GPA for them? (And indeed, this is what many of them did: I heard one recruitment coordinator typing my grades as she asked me about them over the phone.)
There’s a lot of this in law school: when faced with the fact that the evaluative techniques are too rough to be truly meaningful, systems are put in place to artificially underemphasize them. The feeling seems to be, “The information revealed by our current technique (a grade-point) is imprecise, so let’s have less information.”
This is backwards. As already mentioned, a lot of this problem could be resolved by recentering grade curves and grading more granularly. But wouldn’t it be better to have multiple systems of evaluation, each of them summarized on the transcript?
For instance, if a school truly wants to emphasize pro bono work, put the number of pro-bono hours a student has worked right on the transcript–and put it first. Want to give a student a chance to shine in his or her own particular area of interest? Let him or her choose an elective in the first year instead of competing in a uniform set of classes. Allow and even encourage students to do extracurricular legal work, pro bono or even for-profit, and put it on the transcript. Even better, if a school thinks a student’s GPA doesn’t accurately reflect the depth of the student, find a way to factor such things into the GPA itself.
5. New paths for students start differing new paths for professors. Too much of law school is built around “standard” patterns. Law students take the LSAT, get into the best school they can, work one or more summers at a firm, and end up an associate at one of those summer firms. Students compete to be on Law Review, and then compete for clerkships. Very rarely does anyone ask why. As Dahlia Lithwick puts it, “Not since the days of the Tonka backhoe and Malibu Skipper will you have so lunged for stuff in which you have no real interest, just because everyone else is lunging.”
What struck me this summer was how much further up the line this consistancy goes. This summer I received an email from a student–not at my school–quite bitter about not having made law review, angry because now he’d “never become a professor.” I tried to search out some advice–some page helpfully titled ‘How to become an academic even if you didn’t make law review’–and was shocked at how little I could find. The advice was almost always the same: get on the (not “a”) journal, clerk as high up the chain as you can, and then start the application process after a few years of practice.
There’s a certain sense of “as above, so below” to this system: so long as the majority of professors have the same background, they’re going to tend to guide pupils through the same set of experiences. Students will see how their mentors have advanced, and emulate them. I’d love to be taught by a professor who was granted tenure not because of a particular piece of scholarship (a “tenure” article), but solely because of his skill with students (perhaps “tenure” students) or his prior history in practice. The mere existence of such teachers gives hope to those who, for whatever reason, choose a different path for their own career.
That probably sums up my five answers: law school and the legal profession will flourish when success can be reached by differing paths. Students should be able to enter the profession in different ways, free of the stultifying hand of the ABA. They should be evaluated honestly, but in ways that reflect the differing skills and values that they bring to the school, and that they will take with them into practice. And no matter the path they took to become an attorney, they should be able to follow that path straight back into academia.
Now, certainly that was enough rope to hang myself. As I said, take it with a grain of salt: it’s a very large question, and if I knew the answers, I wouldn’t be a student.