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Wednesday, September 09, 2009

On Not Gaming the System in Law School

The other day the New York Times ran a set of op-eds from various well-known academics offering advice to students who are starting college.  It's mostly boilerplate stuff, and in some cases the byline enables one to predict with high accuracy every word of the op-ed.  (Harold Bloom: Read books.  Martha Nussbaum: Think about life, not just jobs.)  I quite liked Gerald Graff's contribution, however.  He writes:

Freshmen are often overwhelmed by the intellectual challenge of college — so many subjects to be covered, so many facts, methods and philosophical isms to sort out, so many big words to assimilate. As if that weren’t enough, what your different instructors tell you may be flatly contradictory.

Students understandably cope with this cognitive dissonance by giving each of their teachers in turn whatever he or she seems to want. Students learn to be free-market capitalists in one course and socialists in the next, universalists in the morning and relativists after lunch. This tactic has got many a student through college, but the trouble is that, even when each course is excellent in itself, jumping through a series of hoops doesn’t add up to a real socialization into the ways of intellectual culture.

What the most successful college students do, in my experience, is cut through the clutter of jargons, methods and ideological differences to locate the common practices of argument and analysis hidden behind it all.  Contrary to the cliche that no "one size fits all" educational recipe is possible, successful academics of all fields and intellectual persuasions make some key moves that you can emulate[.]

Both Graff's diagnosis and his prescription strike me as being equally applicable to law school.  No matter what general advice law professors and books offer on how to succeed generally in law school, some students will persist in believing that the way to do best is to figure out what each professors wants and play to these desires.  They are encouraged in this by upper-years students, fresh with the "wisdom" of one or two years of law school and the disenchanted perspective it brings.

It's not that they're completely wrong.  A little of this advice is useful to some extent: if your professor says, for instance, that she wants you to cover all the issues on an exam rather than delve into a few at great detail, you'd do well to listen.  But students who think this approach is the best or most efficient way to yield good grades are, I think, quite mistaken.  This approach yields few long-term benefits and only uncertain short-term benefits.  In my experience, the very best students acquire and apply a set of skills -- reading a case or an exam question carefully, thinking about all its implications, thinking about both how to unpack it and how to "pack" it into a theme or ruling, thinking about how one case or subject matter connects with others and what big picture or set of themes emerges from all of this, producing an analysis that makes use of these conclusions in a concise and targeted way -- that can be used across the board in both law school and legal practice.  They internalize the lesson that too few substantive professors teach: that the skills you pick up in your legal research and writing class are skills that will help you in your substantive courses too, that a good legal writing memo is much the same as a good exam and that if you can master these skills they will be of use in every course.  These students are not trying to suit the preferences of Professor X or Professor Y; they are simply trying to be good lawyers (or at least good law students).  They develop a skill set that gets them far better results, and with less duplication of effort, than if they had tried to game the system by figuring out each individual professor's pecadilloes.  We have them, to be sure, but ultimately we share more common views about what constitutes a good paper/exam/etc. than differences of opinion.  

This may be futile advice.  I have given it before, and to little effect.  Some students will insist stubbornly that one size does not fit all, that there is a "trick" to doing well in law school, and that the trick is about pandering to individual professors rather than picking up a set of trans-substantive skills.  A few will profit by this strategy in the short term, although I'm not sure what of value they will have picked up for the long term.  It is still dangerous and inefficient advice, however, and I believe Graff's advice is still the best, for law school as elsewhere: cut through the differences between individual professors, pick up and apply the common methods and language of legal analysis, and you will be far better off, no matter what individual professors or the skeptics of the upper years tell you. 

Posted by Paul Horwitz on September 9, 2009 at 10:25 AM in Paul Horwitz | Permalink


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My once-size-fits-all approach was whenever I was given flexibility on a law school exam, I argued a position that I disagree with. Most professors cared far more about depth of analysis than substantive result and by making the other side's case, I was certain to address the weak points. If I had argued for something I believed in, I was worried my belief would cause me to gloss over some of its weaknesses.

Posted by: n/a | Sep 13, 2009 12:29:25 PM

I served on the adjunct faculty of a graduate tax program of a law school from the mid-'70s to the early '80s and one of the pleasures for me were challenges from students, not pandering; this helped make me a better teacher and a better attorney. My students were mostly lawyers with a few cpas seeking LLMs in Taxation. So perhaps my experiences differ from traditional law school teaching. When I was a law school student, it was not unusual to challenge the professors. (Exams and grading were "blind" with numbers, not names, assigned to Blue Books.) And in my studies, I looked forward to reading dissenting opinions, to better understand the prevailing opinions, especially in ConLaw.

Posted by: Shag from Brookline | Sep 11, 2009 7:48:02 AM

Great comments, everyone. I am happy even to be noticed by Orin, let alone disagreed with. In this case, however, I'd say that there is probably less real difference between us than our respective comments might suggest. And, I stubbornly insist, if there are real differences, he's wrong and I'm right. Of course one tries to tailor one's response to the situation, including the judge, in legal practice. Heck, I teach constitutional law, in which briefs for a while might just have begun, "Dear Justice O'Connor," and might still read "Dear Justice Kennedy." But I am suggesting that tailoring is only so helpful if you can't speak the basic language, and that learning the basic language imparts a set of skills that will have significant applicability across the board. Tailoring is a part of the task, to be sure, but someone who thinks it's the whole game will have to duplicate his or her efforts and start afresh with each new case and each new judge -- and with no guarantee that the tailoring will work even so. So, while I acknowledge the importance of knowing your audience, I still think the second paragraph of Orin's comment, the paragraph of our common ground, is more important and in any event prior to the question of tailoring.

As to the first two comments, again, there is important common ground between MNO and me. I acknowledge that to law students, the stakes may seem so high that they cannot help but think it is important or even essential to tailor their work to individual professors' preferences. But my argument is not that this approach is worthless -- just that it is not a sure thing, that even students who adopt this strategy don't always get the grades they want, while the students with the best grades across the board are often (not always) those who have picked up a set of skills that can be applied to a range of different professors. They may tinker around the edges to pick up on given professorial preferences, but they have a set of skills that don't require relearning and duplication of effort for every new course or professor. Finally, as Orin pointed out, it is not always clear what professors want. It is one thing for a professor to tell you he or she wants you to go broad or go narrow on an exam. It's another to think that a professor just wants you to parrot his or her politics, or jurisprudence, or what have you. Some students let their politics affect their grading, but this is no certain thing. Again, my point is not that this is worthless; just that there is more common ground among different professors about the standard set of skills for lawyers and about what constitutes a well-written exam than there are major divergences; hence, it's best on the margins, and more time-efficient, to develop trans-substantive skills. And, per Graff, I think it's more rewarding in the long run and less likely to inculcate the kind of resigned cynicism that passes for wisdom among some law students.

John: On balance, yes.

Posted by: Paul Horwitz | Sep 10, 2009 10:30:46 AM


Do you feel that from the time they sign up for the LSATs until the day they graduate from law school, law students are encouraged to game the system, and that the most powerful teachers of that approach -- the most conspicuous adopters of that approach -- are the law schools themselves? I do.

Posted by: John Steele | Sep 9, 2009 11:58:19 PM

To follow up on Orin's point, it's also useful for maintaining good client relations. Not all graduates will be in a courtroom, but all will have clients, whether in-house or external.

Posted by: gregory bowman | Sep 9, 2009 10:01:30 PM

This is a rare case in which I disagree with Paul Horwitz. Telling professors what they want to hear is not only of significant help in getting high grades, it also teaches an essential skill of lawyering: The student who learns how to tailor a message to Professor X to get an A becomes the lawyer who knows how to tailor a legal argument to Judge Y to win summary judgment.

Of course, the trick is actually knowing what the Professor wants to hear: With some professors that means matching their ideology, but with some professors it means something else. Therein lies the difficulty.

Posted by: Orin Kerr | Sep 9, 2009 5:46:19 PM

This seems like sound advice but I have some reservations. First of all, while it may be "for your own good" to learn some mythical best practice method of legal analysis, been there's comment rings true -- it's also for my own good to do as a particular prof recommends and get a 3.7 rather than ignore their advice and pull a 3.3. Further, it may not even be the best advice long-term; knowledge of one's audience is a key component of any writing, and a memo to a partner or an argument before a judge must necessarily cater to the audience's unique perspective.

That said, I think the approach I use (and also the best approach) is something like, learn the best practices of legal reasoning and writing, and use those, along with knowledge of professor preferences, to craft the best possible answer.

Posted by: MNO | Sep 9, 2009 4:33:59 PM

What is your response to this argument? One or two mediocre 1L grades can have an enormous economic impact on a student's economics. And professors are not always aware of their own biases. If even just one in four professors lets their politics affect their grading, students cannot afford your advice.

Posted by: been there | Sep 9, 2009 2:37:49 PM

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