Distributive Justice in Law Schools

Sometimes I feel like it's Bill Henderson's world, and I'm just living in it and trying to help connect the dots. So when John McCain talks about "spreading the wealth," I start thinking about distributive justice, specifically who gets what in the law schools that employ some of us, collect tuition from others, and ask still others for money every once in a while.

Our current system of no competition on educational quality among law schools, which I'm trying to help address with the Race to the Top project (download the Voter's Guide to the U.S. News survey here), has serious consequences for distributive justice in law schools.

The first is how we allocate the scarce resources of admission slots and financial aid. I talked a bit about this yesterday, but the basic answer is LSAT scores, as Henderson recently demonstrated. Financial aid and fundraising priorities goes to buying LSAT scores to move up in the rankings, when it could be going to expanding loan repayment programs for public interest or government jobs, or any number of other priorities.

Now, competing for the best students through merit-based aid doesn't sound so bad -- a bit of a waste of money from a public-good perspective -- but not terrible. Until you think about how merit is defined: test-taking speed, wihch is what the LSAT is about in large part.

And, as Bill Henderson has demonstrated in what has to be one of the most important law review article of the past twenty years, the only reason why the LSAT is a good predictor of law school grades is because most law school grades are determined by these time-pressured exams, having little to do with analytic ability or other skills relevant to quality lawyering, and everything to do with speed.

Which brings us to distributive justice problem #2: the next scarce resource we allocate is access to top jobs -- at most law schools, they're only accessible to the top of the class.

And what Henderson and others have demonstrated is that who falls where on the curve is different depending on the assessment method professors choose. That is, if you use a few short memo assignments instead of a time-pressured final exam to determine the grades, different people will get "As" and access to the top jobs. Doing memo assignments -- or final exams with word limits and no heavy time pressure (take-home, 6-8 hr, etc.)-- does a much better job of sorting people by analytic ability and work ethic than the time-pressured final exam. Mike Madison (Pittsburgh) and others have ably discussed the virtue of memo assignments -- one benefit for professors that Glenn Cohen (Harvard) mentioned in a guest blogging stint here is that doing most of grading during the semester frees up valuable time for uninterrupted writing at the end. I've found this to be a huge benefit, and on take-home exams or memo assignments, I've never had a problem doing a curve.

So the question for those law professors (until this year, myself included) who continue to use time-pressured exams to determine most of the grades is: why are you choosing speedocracy over meritocracy?

In the status quo, the speedy high-scoring LSAT folks get the best grades on the first-year time-pressured exams that determine grades, giving them the access to the top jobs that generally pay the most, making them the least in need of significant financial aid, while continuing to receive the most aid.

I'm not the first to criticize legal education on such grounds, I realize, but anyone else think it's time for a change? Law professors can act locally, of course, but competition on quality, through the U.S. News rankings, is the easiest way to do this globally and bring about the change we need. In the Voters' Guide we published earlier this week, we highlighted a set of schools that use "best practices" in legal education such as multiple assessments, feedback during the semester, and less reliance on time-pressured exams -- if U.S. News voters would award these schools high marks, we could have a race to the top that would help students learn more and better, and make law schools more meritocratic.

You can contact us at [email protected] if you want to help; we could use it. In the meantime, I'll shut up for a while until after this other election. Thanks for listening.