• This seems remarkably narrow to me. It isn't what education literally means, and it's not what I experienced in my own education. Teachers helped me to learn, usually by inspiring me to see the interest in forming a relationship with material that was unfamiliar to me. So described, however, the project isn't captured in the remainder of this draft.

• Once again, this is not my experience, either as a student or as a teacher. If it is yours, we should talk about it as yours, rather than as if it were a universal proposition logically entailed or uniformly measured.

• Where is this submission to force? No school I went to after the age of nine ever forced me to do anything. School sometimes imposed grades on me, which I mostly didn't care about or ignored: after my freshman year in college they became primarily irrelevant even when they were actually "given." Teachers, like editors, sometimes disagreed with me about what I wrote, or showed me how it could have been better written from their point of view. Sometimes I agreed with them and sometimes I didn't. I don't see the force part in any of that. So far as my life as a teacher is concerned, over the course of more than 25 years, I've probably resorted to some significant form of coercion less than two dozen times, and almost always I have regretted it as useless or worse.

• Evaluation of work is evaluation of work. If students ask for personal advice I give it to them. The ordinary work of evaluation is determining how well people have learned, and to suggest ways to increase their productivity and enjoyment of learning. Describing that as "where and how a student should change" is accurate only if most relevant nuances are ignored.

• Not to me. After a quarter century of watching law school unfold, I would say that the teaching is at its best in the most cliche part of law school, the beginning. The real problems in law school teaching, I think, begin after the first year.

To build on the discussion above, law school professor seem to fail in two areas: there is no strong normative stance and there is little evaluation.

• I think the former claim is wrong. I don't think it is true that teachers avoid normative declarations: certainly the "Socratic method" myth claims that, but one only has to spend an evening with Plato to realize that was never true even of a real imagined Socrates. The second point is correct, I think, but I don't see how that "build[s] on the discussion above."

• Formalism is not the best way to think about law, and teaching without explaining what one expects the teaching to accomplish is not the best way to teach. I don't think that has anything to do with "normativity" as I understand it, but maybe you meant to use the word in a sense I didn't catch. To the extent that your courses leave you in the position described, they could indeed be better taught. But I still don't get the coercion part.

• I don't understand this objection, particularly given where you are in the process. During the first semester or so, the only real question evaluation answers is whether you are comprehending and producing law talk correctly. There's some ambiguity about that, but not much. In the second semester, the issue moves beyond whether you have understood the documents linguistically and whether you can talk about them non-absurdly, and begins to shift to whether you have learned to think about the context, both within the legal system and in the larger ecology of social relations, in which cases are decided, legislation is interpreted, and administrative process occurs. Once again, I don't see where the issue of whether you want to change is relevant.

• But that seems to be a complaint that you're not being told how to take the exam. Since having an exam is stupid, teaching you how to take the exam would also be stupid. Helping you learn how to make richer contextual analyses of legal material you only learned to interpret at all the day before yesterday would indeed be better done in a more interactive fashion than the large student-faculty ratio required by the economics of law school would seem to support. With contemporary technology, however, the interactivity of large law classes can be improved, as I am trying to do. That still has no relationship either to how law practices are managed or to the issue of coercion we are supposed to be dealing with.

• Indeed. See my EvaluationPolicy. But that doesn't establish that "evaluations are the heart of teaching," which is still just an assertion on your part and not one my experience leads me to believe, nor does it establish the claim about coercion from which you began.

In a law school where teachers were forced to give frequent evaluations, students could eexperience several substantive teaching moments. Moreover, teachers would be under a harder-to-ignore burden: they would have to determine much earlier in the semester what their normative goals for the class were and whether their teaching methods were effective moving the class toward those goals.

• I don't think this is an issue of force, either. Talk about forcing teachers is no more sensible than talk about forcing students. You mean, I think, that if teachers had tools that provided frequent opportunities for evaluating student performance in multiple contexts, it would be easier for them to determine how well students are learning, what's interfering with the learning process for individual students, and how to increase not only their effectiveness in learning but their pleasure in it. I agree entirely with that, and am trying to devise means that would make such outcomes more possible for teachers.

• Here we're just back to your initial formulation again, which doesn't have any more solid a base under it than it had 1,000 words ago. In my comments on the first draft I suggested letting this issue drop, in favor of the idea you sported at the end of that draft, and which you dropped here instead. So now I find myself feeling that the purpose being served by this draft—with its renewed emphasis on force, coercion, being made to change, and the like—is as a sort of psychic note in a bottle: a part of you is telling us it's trapped on a prison island and wants to escape from being convict labor. Who made you convict labor I don't know; it wasn't I, and it wasn't law school.

Teaching, coercion, examination

-- By ScottThurman - 15 Apr 2009

Teaching and coercion

Evaluation as the fundamental coercive element of school

The conventional law school class

Evaluations as resistance

• The rhetoric here feels overheated and out of scale. This isn't anything important you're talking about: It's just grades.

• This reduction of mind to body is really very striking. The SAT was never said to be about physical aptitude, just aptitude. (SAT is still an aptitude test, so far as its makers are concerned.) Your idea that intellectual activity is simply physical activity in the brain is not the usual approach taken by this or any other society. It's interesting, but it presents some of the usual problems of reducing all mental processes to physical states in the brain.

• This is the strangest argument in the world. It bears no relationship to how one actually grades. Shouldn't you explain how you know this, and why those of us who actually do the grading could be so mistaken as to how it's all done?

• No. A curve sets marginal limits on the brackets within which one reports each student's position on an absolute ranking of performance. A curve with limits as elastic as ours has very little effect on the distribution of grades overall. Its effect is neither in structure nor in magnitude remotely like what you are describing here.

The mythological structure of American society enlarges this singular performance into a categorical evaluation on one’s self: you are better or worse. The mythology that surrounds the GPA – that we are better than some, worse than others – is of no use to students. Law school grades say nothing meaningful about our strengths and weaknesses. The function of grades is to aid to employers. Grades make for a value-added component of individuality that allows employers to more easily make decisions about who is worth employing. GPA represents one of the most important components of the material surplus that firms believe they receive in hiring a student.

• This too doesn't make any sense. How could "top ten percent" be a category subject to artificial or induced scarcity? If ranking makes any sense it isn't made either more or less sensible depending on how you place the measuring lines on the stick. One, two, and three standard deviations from the mean would be a coherent way of doing marking the stick, one might suppose. Seventy, eighty, and ninety percent might be another good set of places to mark the stick. Both are curves.

• Maybe. That would be worth exploring without all the law school specific baggage it took to get to this last general idea. I feel myself as though that's really where the essay should begin. Getting there felt as though it were more about your concerns with an imaginary grading system than any response to actual policy as it affects you. Maybe fixing the discussion of grading would be useful, to help dispel such misunderstandings as are apparent from your account. But it's also possible that the right way to go is to start at the end, and figure out what your idea of the self on sale means to you.

The Mythology and Ultimate Poverty of the Curve

-- By ScottThurman - 26 Feb 2009

Introduction

What are grades? They are the one constant in law school and yet are rarely discussed. We talked briefly about whether grades were useful and whether students should dismantle the grading system. We should. Law school grades, especially but not exclusively as a product of a curve, are deeply involved in a mythology of American individualism that distorts the swindle that occurs when students exchange their waking hours for law firm employment.

The curve and the myth of individualism

The grades we receive appear to be our work product and, because of that, seem to stand for us. And in some ways they do. Individual effort makes a great deal of difference in what grades students make. Grades frequently correspond to a student’s work ethic, to a student’s dedication, to hours spent reading and thinking. In a mythology that insists that hard work is rewarded, in the first theater of the American Dream, grades are the compensation for being serious and determined. In this sense, the pride instilled in a child when receiving high grades has roots in a Puritanical work ethic and an American sense of meritocracy. We have created a system that awards diligence and effort from childhood on.

More arbitrarily, more personally, grades are a product of our bodies. Grades correspond to a set of individual, if not controllable, characteristics: our capacities for memorization and oral and verbal retention, the speed with which our synapses make connections, our physical reactions to stress. Grades bridge the world between our physical abilities and our merit: the SAT, for example, originally proclaimed to be a test of physical aptitude for learning, and only in the face of evidence that class, race, and a variety of other factors affect SAT scores did it become a test of achievement.

Whatever grades might or might not say about the individual, they communicate nothing about individuals in law schools. They are designed to say nothing. The curve makes grades completely dependent upon the performance of others. Here, the veneer of individuality has been rubbed away. A curved grade does not reveal what any student actually knows or can do. Instead, it speaks only to if a student knows more than some other student (or at least appears to know more within the context of a high-pressure, highly artificial three-hour exam).

The function of the curve

For firms

A curve divides students’ performances on a test into categories of better or worse. The mythological structure of American society enlarges this singular performance into a categorical evaluation on one’s self: you are better or worse. The mythology that surrounds the GPA – that we are better than some, worse than others – is of no use to students. Law school grades say nothing meaningful about our strengths and weaknesses. The function of grades is to aid to employers. Grades make for a value-added component of individuality that allows employers to more easily make decisions about who is worth employing. GPA represents one of the most important components of the material surplus that firms believe they receive in hiring a student. Grades are just a component in a swindle. Grades produce students who are in demand because of their relative distance from other students with lower grades. But this value is empty, because the very scarcity of a certain GPA in the market is decided by an arbitrary curve. Indeed, grades’ only value derive from their self-determined rarity and a mythology of meritocracy that associates doing better than others with being better than others. Grades allow law firms to decide whom to hire without bothering to remember that they are hiring real people; grades supply the necessary, if actually non-existent, element of the individual.

For students

Of course, the swindle also cuts the other way. Students buy into the same mythology that employers do. Grades lend to the whole process of exchanging ourselves for money some imprimatur of value. We have achieved these grades, or we have entered this school, because of qualities intrinsic to ourselves, qualities that law firms seek. We can use this to conceal the hard fact that the hiring practices of law firms must by their nature be ambivalent to the individual qualities of whom they hire; the sheer logistics of most firm’s economic structure – wide at the bottom, narrow at the top – ensures that law firms will recruit lots of first-year associates that must be driven off ten years later. Conversely, employment can also work as compensation for the diminution that occurs when a student discovers to his or her chagrin that he or she has performed less well than others. Thus the frequent recital of the mantra that grades don’t matter here, because we’ll all get good jobs. In exchange for the diminution of self, we can choose the supposed equalizer – money.

Conclusion

I began with an appeal to change the grade system, but it now seems painfully clear that such a change is hardly necessary. The need represented by the curve – to coat the exchange of self for money with a veneer of merit – would certainly find a different channel. Indeed, one of the most common objections I’ve heard to abolishing the grade system is that it would force students to find other ways to individualize themselves. Students’ lives, under this argument, would become too filled with activities and volunteering, because law students would need a full and varied resume – a more full expression of who they are or who they want to appear to be – to compensate for the loss of grades as a proxy. Maybe what matters most here is the recognition of a symptom endemic to the legal education system and more broadly to education as a whole – the need to reify the self, to make it marketable.

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