"I'd Give it a...."

It is possible I've offered a complaint about quotes by law professors awarding low hypothetical "grades" to various opinions and statements before. But it's an evergreen topic and, every now and then, several examples will catch my eye. Law professors, who purport to hate and groan through the grading process, nevertheless seem to have a strong attachment to handing out "grades" to judges and their opinions. I mostly avoid Twitter nowadays, but my recollection is that there are some noteworthy law professors there who have handed out thousands grades in their teaching careers, and almost as many hypothetical grades. I have never entirely understood the lure of this habit; as I say, my understanding was that professors hate grading. But it must stop. 

One oddity of these "grades" is that the opinions they are awarded to are substantially worked on by law clerks. These clerks have already, ex hypothesi, received As like candy on Halloween, and were praised by their mentors to anyone who asked as the smartest young lawyer since Brandeis. And they are working on team-production opinions with other law clerks and with their judges in a period where, at least on the Supreme Court, the number of decided cases is low and the length and technical detail of the opinions high. I may disagree--and in the case of, say, many of the writings of individual Fifth Circuit judges, violently disagree--with some or many of those opinions. But as a "grader," I am inclined to say that the quality of modern judicial opinions is very high. In technical respects, it is higher than the quality of opinions written during the periods when some of the graders were clerking. The low grades that are suddenly so freely handed out to former A students are silly. (That's a judgment of quality along certain lines, I should add. As a reader, and for other reasons, I would gladly trade completeness and sheer technical skill for brevity and sharpness of thought and language, along Holmesian lines. But there was only one Holmes, and in any event that is not the prevailing style. I would add that while I think the quality of lower court opinions is also high, in part because the clerk selection process has become such a big affair, there are lower court judges for whom the opportunity to score points or use cute Internet-ish language trumps, so to speak, quality in writing. Again, the Fifth Circuit springs to mind.) 

 

Another is that judges on apex courts (and on lower courts, sometimes because they have no choice and sometimes because they're eager to do so) don't simply stand still; they move the law. This is a rough fit for grading by law professors, many of whom want students not only to regurgitate the law as they were taught it, but to repeat and flatter the views of the grading professor. (I try not to be one of those professors. I'm pretty sure I succeed. But, on information and belief, they're out there.) Professors who grade opinions of this sort, which is many of them, and who grade in the manner that they do, are especially liable to be affected by their priors. An opinion that moves or manipulates existing law is, I would guess, more likely to be excoriated as, heaven forfend, a "C" effort when the movement and manipulation is, in the professor's view, running in the wrong direction. 

 

More important still are two other factors. First, at least based on what I have seen of grading at six different law schools, it takes hard, hard work to get a genuinely low grade. Of course it does happen, including to some of my students, and some of them a) have good reasons and b) become great lawyers. But genuinely low grades are nevertheless far from the norm. Some law schools—I generally think of them as opportunity schools, and have taught at one--​ demand a given number of lower grades, so that they can identify and remove some of the low-performing students they took a chance on, and whose first-year tuition payments they were happy to cash. But most law schools and all first-tier schools dislike low grades. At those schools, it's very hard to get in and even harder to get out--that is, even harder to manage not to graduate. They have a generous curve, tending to a B+ median or, somehow, higher. Given the difficulty of writing something coherent in three hours while artificially highlighting the points the professor wants to see, and given general declines in writing skill, even a B+ exam can be less than impressive as a reading experience. (I'm not sure I'd like to go back and reread even some of my A exams.) And for some types of class, the curve is either higher still or nonexistent. If the exam or paper was written for a small-enrollment class that doesn't require a curve, most professors, both because they like awarding high grades and because they know the effects of low grades in seminars on future enrollment in that class, are as generous as they can manage without hearing from the associate dean or registrar. Grade inflation is alive and well at most law schools and, despite occasional efforts to address it, thriving like a tropical jungle at the elite schools.

 

Second is the sheer hubris involved. That hubris embraces the hypothetical grade awarded, the grading skills of the person awarding the hypothetical grade, and the grader's confidence in him- or herself, his or her position, and the shimmer of authority, expertise, correctness, finality of judgment, gatekeeping, influence, etc. that surrounds the very idea of handing out a "grade." Academic expertise and its importance are real. So is the self-love of the academic expert, the overestimation of the scope of that expertise, its misapplication, and the expert's belief that his or her public bouquets and brickbats matter. 

 

One option is simply to say things like, "I think it's a bad opinion" or "I think the judge's view is wrong." It's not very quotable, but it is a sensible approach. But if we are going to insist on continuing to hand out hypothetical grades, I'd like to see us be more honest about our grading practices and more humble about the thing we are "grading." A sound and probably accurate statement would run more like this: "If this opinion were one of my students' exams, I'd give it--let's face it, I'd give it an A, or at worst an A-. I hate it anyway."