What is the Point of Law School Grading Curves if They're Not (More) Fixed?

The way I see it, there are basically 2 points to having grading curves in law school:

(1) We want a forced distribution of grades so that relevant players can distinguish among students in the top, middle, and bottom of the class (e.g., schools can decide which students make which journals and employers can decide which students get which jobs); and

(2) We can ensure that there is fairness across sections. If students in Section A have a torts professor who has a median GPA of 2.8 every semester and students in Section B have a torts professor who has a median GPA of 3.2 every semester, it is easy to see how unfairness results.

Of course, we may (and many do) question under (1) how much of a role a student's GPA/class rank should play in journal/hiring/other decisions. And we may question under (2) whether a grading curve does produce fairness. What if students in Section A just happened to be "better" than students in Section B, whether intentionally or accidentally?

But here's the thing under (2): From what I've seen, most law school grading curves aren't like admission fees at museums, i.e., they're not fixed. Instead, they're (often extremely) variable. They're like suggested donations at museums. One patron could give the suggested donation of $5. Another patron could give nothing. And a third patron could give $10. This being the case, what is their point?

For example, here is the grading curve for required courses at Seton Hall University Law School (picked at random and at least somewhat similar to curves at many other law schools):

A+ and A       15-25% (see below)

A- and B+      minimum 15% (see below)

B                       minimum 15% (see below)

B- and C+       10-25%

C and C-         10-25%

D+, D and F  5-15%

Grades in the first two categories of the foregoing grade distribution schemes should not exceed 50% of the overall class.

Grades in the first three categories of the foregoing grade distribution schemes should not exceed 70% of the overall class.

So, in Section A of Torts (100 students), Professor A could give:

5 A+s and 20 As (25%)

20 A-s and 5 B+s (25%/50% total)

20 Bs (20%/70% total)

10 B-s and 5 C+s (15%/85% total)

10 Cs (10%/95% total)

5 D+s (5%/100% total)

Meanwhile, in Section B of torts (100 students), Professor B could give:

2 A+s and 13 As (15%)

3 A-s and 12 B+s (15%/30% total)

15 Bs (15%/45% total)

5 B-s and 10 C+s (15%/60% total)

10 Cs and 15 C-s (25%/85% total)

2 D+s, 5 Ds, and 5 Fs (15%/100% total)

Now, I don't need to crunch the numbers to tell you that students in Section B are getting the short end of the stick. And maybe it is justified. Maybe, as I noted above, the students in Section A are "better" than the students in Section B. And maybe that's the point of a flexible curve. If I have a terrific set of students in a given semester, I might give grades like Professor A above. If, during another semester, I have a collection of Sweathogs, I might give grades like Professor B above. Most semesters, my grades will fall somewhere in between these 2 extremes. And while a flexible curve gives me some flexibility, it still gives me boundaries so that my grades aren't that different from the grades of a professor teaching a different section of the same course.

In an ideal world, this all makes sense. But does it make sense in the real world? From talking to colleagues, I get the general sense that the answer is "no" because I think that a course's curve tells us more about the professor than her students. I know some professors who consistently award grades at the bottom of the curve and would give lower grades if they could. Conversely, I know some professors who award grades at the top of the curve and would give higher grades if they could. In other words, some professors are "hard" graders and other professors are "easy" graders, and a student in a section with a 3.2 median is "lucky" while a student in a section with a 2.8 median is "unlucky."

But let's say that I'm wrong. Let's say that most professors modulate their curves based upon the performance of each collection of students in each class. It is still easy to imagine problems. In a torts class in fall 2011, the median on the exam is 72 in both Sections A and B. Professor A and B each create curves where the median GPA is 3.0. In the fall of 2012, the median on the exam is 76 in both Sections A and B. Professor A concludes that this was an exceptionally bright class and awards a median GPA of 3.2. Professor B concludes that this was an exceptionally easy exam and awards a median GPA of 3.0. Both professors could be correct, but they both could easily be incorrect. Maybe the students in Section B were exceptionally bright and the exam in Section A was exceptionally easy.

And there's no easy way (as I see it) for Professor A and Professor B to compare notes to ensure consistent results. First, it is pretty tough (at least for me) to determine the difficulty of a test (especially) for a class I didn't teach. I'm Professor A. A good deal of Professor B's exam deals with the attractive nuisance doctrine. Is the exam easy or difficult? I don't know. How much time did Professor B spend on the doctrine? What cases did she use? How good was the class discussion when the doctrine was covered? Second, it is difficult to judge the quality of other professors (or ourselves). Is Professor B so adept at the Socratic Method that she would make Socrates himself blush? Or is Professor B teaching contributory negligence as the majority rule?

My point in all of this is to say that it is very difficult for a professor to determine whether his section is especially bright (or dim) or whether this characteristic is shared by the class of 201# as a whole. And trying to make assumptions based upon reading the exams and exam answers from other sections isn't likely to be helpful.

So, what's my overall point? I think it is that law school curves should be less flexible.  I cited to Seton Hall's curve above, and you can see the disparity that can result between two sections under the curve. The same goes at many other law schools. For instance, at Chicago-Kent, 20% of students in Section A might get As or A-s while in Section B that percentage might be 5%. Are these and many other curves too loose, or are there good reasons for keeping law school curves as flexible as they are at many (most?) law schools? Are you an "easy" or a "tough" grader or do you significantly change your curve from semester to semester? 

-Colin Miller