David Segal's critiques of legal education and the academy's reaction

David Segal of the New York Times has spent the better part of 2011 skewering American legal education. Academic reaction, though never favorable, reached a nadir when Segal assailed legal scholarship and the process for hiring law professors. This post is intended primarily as a way of documenting the Segal critique and some (though by no means all) of the academy's reaction to it.

Segal's articles:

1. The economic irrationality of the decision to attend law school
2. Allegedly deceptive practices in the awarding of law school scholarships
3. The economics of law school admissions
4. How the curricular priorities and hiring practices of law schools depart from legal employers' expectations
5. A Times "Room for Debate" forum, The Case Against Law School
6. A Times staff editorial, undoubtedly inspired by Segal's series, urging reform of legal education

Herewith a few responses to the Segal series and to the larger issues triggering this discussion:

1. Paul Caron's compilation of academic responses to David Segal
2. Paul Caron, Are Law Review Articles Worth $575 Million ($4,000 Per Student) Per Year?
3. Sarah Krakoff, David Segal's Paper Chase and Some Musings on Legal Education
4. Dan Farber, The Unexamined Life of the American Law School
5. Bill Henderson, The Hard Business Problems Facing U.S. Law Faculty
6. Michael Froomkin, Links to Postings on l'Affaire Segal
7. Daniel Martin Katz, Thoughts on the State of American Legal Education — The New York Times Editorial Edition
8. John Steele, 1.5 Cheers for Segal's Article
9. Matt Bodie, A Recipe for Trashing Legal Scholarship
10. Orin Kerr, What the NYT Article on Law Schools Gets Right
11. Frank Pasquale, New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You’re 100)
12. Brian Leiter, Another Hatchet Job on Law Schools
13. Scott Greenfield, Those Who Can't, Teach Law
14. Peter Tillers, Sequelae to Law School and Law Practice, and A Bit of Progress Immersed in Murk
15. Bruce Ackerman, The Law School Experience (letter to the editor of the New York Times
16. Stanley Fish, Teaching Law

Practical advice for new law professors: Grading on a curve

Around this time of year, American law schools begin issuing offers for entry-level, tenure-track teaching positions. The typical new recruit has more experience with scholarship than with teaching, grading, or lesson-planning. MoneyLaw will offer some practical advice to some of these new law professors. I will start by explaining standard scoring, more colloquially known as grading on a curve.

Why? At a minimum, this forum takes some pleasure in indulging the holiday spirit of giving and sharing. More seriously, I am acutely aware that many American lawyers — and many of their teachers — tend to be innumerate. With regrettable frequency over the course of nearly two decades in the legal academy, I have heard tenured law professors assert that "there is no mechanical way to convert raw scores to scaled grades." The truth is much simpler: There is a set of practical problems that mathematics can solve. Standard scoring is one of them. Instead of being content to post the occasional exercise in refreshing my own quantitative skills, I will try to share a few things with newcomers to the academy — ideally, things not discussed at the law school hiring combine or during faculty orientation.

Most (though not all) American law schools enforce some form of constraint on the grades that their professors can assign. Wikipedia has collected a list of grade point average curves at American law schools. The subject arises with regularity in prelaw and law student blogs, and with good reason. Some law schools condition their students' retention of financial aid on the maintenance of a minimum GPA. If you know the mathematics of standard scoring, you can predict with a high degree of accuracy the probability of maintaining the threshold GPA throughout all three years of law school. Students and professors alike therefore have a stake in understanding the mathematics of grading.

Read the rest of this post . . . .In my experience, law professors who react instinctively, and perhaps even inanely, against grading on a curve do so for either or both of two reasons. One is simple ignorance, a byproduct of the innumeracy that might have prompted them to study law instead of a more quantitatively demanding discipline. The other is an inborn distrust of authority. That distrust often extends to school-wide rules on mean GPAs or grade distributions, as though divining the precise line between a C+ and a B- represented a central plank of academic freedom. The truth is that standard scoring leaves ample discretion for all instructors to evaluate their students and to distribute individual grades. The only constraint is that the mean grade in each course should fall within some range. (How tight that range should be, like almost every other subject imaginable, is the subject of some dispute among law professors.). Moreover, the exercise of "grading on a curve" is both mathematically elegant and logistically simple. You have no excuse for not grading on a curve.

Absent extraordinary circumstances, grades in any class will follow a normal, Gaussian distribution. Happily, grading a class means measuring an entire population. We can therefore use standardization techniques.

I will further assume, for clarity's sake, a straightforward map of points corresponding to letter grades. In increments of 0.333, progress from 0.000 for an F to 4.333 for an A+. In other words, a C+ is worth 2.333. A B- is worth 2.667. Many schools use no more than one significant digit after the decimal point, which leads to mathematical anomalies arising from crude rounding. At 2.3, a C+ is 0.3 points removed from a C, but 0.4 points removed from a B-.

Finally, I assume that the professor consistently adheres to some way, any way of assigning raw scores. Giving points for each valid argument and assigning percentages for each task accomplished represent merely two among many plausible methodologies. The real trick lies in converting these raw scores to standard scores.

Begin by calculating the z-score. The z-score, or simply z, may be computed according to this formula:

z = (x – μ) / σ



Where:

x  =  Raw score to be standardized
μ  =  Mean raw score
σ  =  Standard deviation

In practice, most values of z will be greater than -2 and less than 2. Absolute values of z exceeding 2 correspond to true outliers, and those students are either ironclad locks for the book award, or good candidates for receiving an F. In my own career, I have issued F's very sparingly because the D and D- minus grades carry roughly the same message without automatically depriving a student of academic credit. Generally speaking, if |z| > 2, I counsel removing the grade in question from the curving algorithm I am about to describe and assigning it "manually," after careful comparison to the other student performances that are closest to it.

If the target class mean is a C+, or 2.333, and the instructor is willing to stretch the distribution of grades from a dummy grade of F+ (0.333, or 2.333 - 2, as the midpoint between an F at 0.000 and a D- at 0.667), to A+ (4.333, or 2.333 + 2), then each student's grade can be very simply calculated:

g = 2.333 + z

This example works because it a special case, with very easy figures, of the more general formula for standardizing a set of normally distributed raw scores:

g = K + z * (M – K) / 2

Where:

g  =  Scaled grade
z  =  The z-score (standardized score) as defined above
K  =  Target class mean
M  =  Maximum grade point value, typically 4.333 in a system with an A+

The denominator in the final fraction, or 2, reflects the maximum absolute value of z that we realistically expect to encounter in this population. It would not be inappropriate to adjust this denominator slightly upward to catch not just most but all scores we expect to fall between the first and 99th percentiles. Nor is it inappropriate for an instructor to give close personal attention to exams whose z-scores approach -2. In the absence of a true F+ grade, a scaled grade of 0.333 invites discretion to choose between an F and a D- (or a D in universities that have abolished the grade of D-).

Substituting 2.333 for K and 4.333 for M yields the simpler formula above.

Recall my earlier observation that most (though not all) z-score values will fall between -2 and 2. In other words, -2 ≤ z ≤ 2 in most instances. If you divide the z-score range from -2 to 2 into equal bands of 0.5, and you envision all z-scores below -2 and all z-scores above 2 as bands of their own, you will find 10 zones corresponding very nicely to the 10 passing grades from D+ to A+, inclusive:

Minimum z-score	Letter grade
<-2.0	D+ (or lower, in truly extreme cases)
-2.0	C-
-1.5	C
-1.0	C+
-0.5	B-
0.0	B
+0.5	B+
+1.0	A-
+1.5	A
+2.0	A+

The closely related system of stanines (Standard Nines) also works very well with the grading scale I have just described. The United States military historically valued stanines as a way of translating the z-scores of standard scoring, which range across either side of zero, to a scale of single-digit integers from 1 to 9 inclusive. To use stanines, divide a Gaussian distribution into nine bands, centered on the fifth band. The second through eighth bands each traverse 0.35 standard deviations; the first and ninth stanine cover, respectively, the lowest and highest ends of the distribution. Assigning a B- (2.667) to the fifth stanine and moving one-third of a letter grade in each direction yields the following table of converted grades:

Stanine	Letter grade
1	D+ (or lower, in truly extreme cases)
2	C-
3	C
4	C+
5	B-
6	B
7	B+
8	A-
9	A (or A+, for truly outstanding performances)

As a final bonus, faithful readers of this forum will recognize that z-scores lie at the heart of the U.S. News rankings of law schools and other branches of American universities. Demystifying standard scoring in the classroom represents a modest but important first step toward demystifying one magazine's standard scores of competing classrooms.

The Skills Thing

Jim has provided an excerpt from Sunday's NYT front page article on Law Schools. The article make some good points on the topic of legal scholarship. On the other hand, the article's whining about preparing students to practice law made me consider getting off the "more skills" bandwagon.

I was struck by a collective law firm sense of entitlement. This sense of entitlement seems to equate the bottom line interests of small and large firms with what law schools should be doing. Public law schools already provide a huge human capital subsidy to private law firms. (I've never understood why this started other than to subsidize the class of people who had property to protect.) Now the firms have their hands out asking for more. Closely related is the tendency for some law schools now to offer classes on "law firm management." Exactly why a public school should teach a law student to operate his or her business and not the manager of a laundromat is not clear to me.

There is another problem with the "skills" thing. Most of the people I know who talk about skills and even teach one version or another have not practiced law, practiced a very short period of time or practiced it 20 years ago or more. In fact, a 45 year old with twenty years of recent experience typically falls to the bottom of lists of possible hires.

I am also not sure I know what the word "skills" means. My fear is that to the extent the desire for more skills is voiced by those in law teaching it may have a self-referential component. If you are into mediation, guess what skill might mean to you. Same for arbitration, collaborative law and so on. And I sense there is an ideological element here as well.

Maybe public law schools should eliminate skills altogether or offer them at an enhanced level of tuition. After all, these highly "skilled" graduates would save law firms so much money they almost certainly would offer higher salaries to graduates that would off set the extra tuition. Of course, it is just possible the firms prefer to stay on the dole.

Everything I needed to practice law, I didn't learn in law school

In his ongoing series of searing critiques of legal education, David Segal takes aim again at the excesses and shortcomings of American law schools. He describes this scene from "a crash course in legal training":

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

Legal education and the heir of Slytherin

That was then. This is now.

In my own lifetime, fiction for young adults has moved from S.E. Hinton to J.K. Rowling. Gritty stories about rumbling gangsters at an Oklahoma high school have given way to soaring fantasies about dueling sorcerers at the Hogwarts School of Witchcraft and Wizardry. At heart, though, I still believe what John Steinbeck said in East of Eden: There is one story in the world, and only one. Whether the setting is Will Rogers High, Hogwarts, or the law school of your choosing, formal schooling often pits Socs against Greasers and Purebloods against Mudbloods. The narrative is one of epic, ceaseless competition between elites and outsiders.

If you've managed to miss one of the greatest cultural phenomena of the last generation, let me introduce you to the magical world of Harry Potter. The boy wizard finds himself locked in a life-and-death struggle against the irredeemably evil Lord Voldemort. In his own time as a student at Hogwarts, Voldemort revived an old grudge that the ancient wizard, Salazar Slytherin, held against those he felt unworthy to practice magic. As the self-anointed Heir of Slytherin, Voldemort sought to purge all Muggle-born witches and wizards from Hogwarts and the magical arts. Who are Muggles? We nonmagical folk are Muggles. Voldemort had no use for witches and wizards born of ordinary, nonmagical parents. In the mind of the Dark Lord, only those born to pure-blooded witches and wizards deserve to command the potions, incantations, and spells of his profession.

Read the rest of this post . . . .All of this prepares me to open one of the darkest chambers of secrets in law and legal education. Law schools and the country's largest law firms have long occupied — and jealously guarded — the most coveted corners in the American legal profession. Indeed, these institutions perpetuate each other's lock on power and prestige. Every city has its collection of "BigLaw" firms — highly leveraged partnerships performing a wide range of legal services on behalf of the corporate and institutional clients that control our society's greatest concentrations of wealth. BigLaw draws its talent from the most highly credentialed students emerging from our law schools. Without elite grades, no student stands a chance of scoring a BigLaw interview, let alone a BigLaw job.

At some schools, BigLaw does dig deeper in the talent pool. Of course, those schools are the prestigious ones with national reputations. Typically they're named for dead white men who conquered and paved North America, or else for big, wealthy states. At schools such as Harvard, Duke, or Vanderbilt, or Virginia, Michigan, or Berkeley, BigLaw historically has been willing to interview a broader spectrum of students. At schools that historically operated under a municipal charter and have dedicated themselves to the higher training and useful education of local youth, BigLaw has been decidedly pickier.

This is not an altogether flattering portrayal. I admit as much. In fairness, I will say this: My own corner of the profession, legal education, has been complicit in this elitist exercise. That is a severe understatement. Indeed, law schools collectively have elevated grades and rankings above all other considerations. Legal educators devised the elitist complex of grades, honors, law review credentials, and federal court clerkships on which BigLaw has built its entire model for evaluating talent. If anything, academia has doubled down on BigLaw's bet. We draw our own faculty ranks from an even more selective pool of candidates. BigLaw and American law schools have anointed their superstars on the basis of schools attended and grades attained when these lawyers and professors were students in their twenty-something years, as though ancient educational credentials represented the lone basis of membership in some sort of professional apostolic succession.

Excessive emphasis on pedigree over performance has pushed the legal profession to a point of reckoning. Hourly billing, at hundreds of dollars per hour and without regard to actual value delivered, is a barbarous relic that contemporary clients, sensitive to their own economic survival, have rightfully begun to reject. Law schools can no longer indulge the conventional assumption that they can focus entirely on training their students to "think like lawyers," without attention to concrete skills or the pragmatic nuances of actual practice. Every instance of mismatch between paper credentials and actual performance on the job signals incompleteness or even outright inaccuracy in the elite model of legal education and BigLaw recruitment. Every BigLaw hire that flames out after two unproductive years should prompt honest recognition of the limits of elite credentials. Honesty about the limits of the existing model of legal education should prompt all law schools to ensure their students a true return on their educational investment, to prepare all students not just to ace an exam or "book" a subject, but to be as fully prepared to serve clients and deliver results as a lawyer can be upon passing the bar exam.

This is not a jeremiad against legal education and elite law firms. All models of legal practice, in firms large and small, in government as in education and in philanthropy, deliver value to clients and to society at large. I believe wholeheartedly in the transformative power of legal education, motivated by a passion for teaching and informed by serious scholarship. For me to believe otherwise would force me to declare my own life an evil, bankrupt waste, and I emphatically believe that I have not lived in vain.

For good reason, jobs in BigLaw and the legal academy are very highly coveted. A BigLaw salary is one of the very few ways a new law school graduate can realize an immediate return on educational investment. Law professors earn very decent pay, with tenure, for intellectually stimulating work in an environment dedicated to educating youth and elevating society. If anything, though, the benefits of working in BigLaw or the legal academy affirmatively compound the heavy burden that its defenders must discharge. Those of us who care most about the legal profession and have gained the most from it owe a corresponding duty to take a hard look at the weaknesses of our shared calling. Whatever personal or professional inconvenience we may incur, those of us at the pinnacle of professional success must tell the truth.

How shall we make things better? I always recommend some combination of honesty and optimism. Speak the truth and point to hope. This message combines my own experience with insights from history and literature. The world in which S.E. Hinton came of age was one that locked the rival political ideologies of the Soviet bloc and the north Atlantic alliance in mortal combat. The world of Harry Potter is one that pits the virtuous Order of the Phoenix against Lord Voldemort's degenerate Death Eaters. Those stories, real and fantastic, teach us useful lessons. Extreme opponents often become agents of reconciliation. The greatest breakthrough between the Communist world and the West came when Richard Nixon, the consummate Cold Warrior, visited "Red" China. By contrast, those who prevail through conflict and confrontation often do so by virtue of some close connection to the enemy, perhaps even kinship. At the risk of spoiling J.K. Rowling's books and the movies inspired by them, I will tell you that Harry Potter ultimately defeats Voldemort on the strength of a mysterious connection that links the boy wizard to the Dark Lord's most treacherous powers. The intermediary who helps Harry harness those powers had himself been seduced in his youth by the Death Eaters. The power of the enemy, personally taken, holds the key to victory over that foe.

And so it must be that a critic of elite legal education, to be credible, must be one who has succeeded by its terms, both in school and in later professional life. With your indulgence, I'll make my argument very personal. In my twenties I enjoyed a double dose of privilege and prestige: Not only did I attend Harvard Law School alongside the future President of the United States; I also clerked at the Supreme Court of the United States. These experiences gave me the privilege of choosing between BigLaw and the legal academy. I spent many hours in my thirties divining some of the law's most intellectually challenging mysteries, from the use of macroeconomic indicators in utility regulation to the legal protection of biodiversity and functioning ecosystems as information platforms. All those things came to me, in large measure, because I turned in fantastic performances in torts, federal courts, and international business transactions. Those grades predicted intelligence of some relevance to the legal profession, and I worked my hardest to make good on the promise of my youth. But the task to which I have devoted my forties, that of managing a complex educational institution for the betterment of its students and the clients they will ultimately serve, is one that transcends my grades, my diplomas, my clerkships, and even the articles on my curriculum vitae. Everything I've done in life didn't get graded in law school. Grades were then. Life is now. As a firmly committed Muggle, I am no heir of Slytherin. Fate did bestow upon me a bundle of legal education's most elite experiences. And this is what I have learned since graduation: There is no value in prestige or credentials. There is only performance, and those who have the wisdom to prize it.