Law School: Towards a Focus on the Learning Process

-- By LaurenRosenberg - 27 Feb 2009

Introduction

This Wednesday I attended a meeting with Dean Schizer to “discuss” grading policies and procedures. I assumed that this was going to leave an awful taste in my mouth, since a leader does not “discuss” a situation with the masses until a decision has been made. I attended anyway and listened to Dean Schizer and Professor Persily (apparently greatly involved in assessing our grading policy). Their basic points were: 1) employers prefer the current system because it allows them to differentiate us from our classmates; 2) the pass/fail policy at Harvard, Yale, and Stanford will benefit us since employers are more likely to hire us when they can differentiate us. I was awestruck. When one approaches the issue focused on what is easiest for employers, then the issue had already been decided before it was raised.

Fundamental Flaw

This focus on external results (employability, law school ranking) rather than the internal learning process of students represents a fundamental flaw. Grades are simply an assessment of our learning (although the subjectivity and mysteriousness of the current process conveys a sense of magic). When the focus becomes the grades and our employability, the by-product of our learning, then we miss the point. We attend Columbia Law School partly because it is prestigious, but that prestige is not purely a reflection of the ease of employment. The prestige represents teaching by renowned scholars, collaboration with talented students, and the opportunity to learn in a variety of legal areas. Although we retain great faculty and academic opportunities, it appears as though we have lost sight of the learning process as our foundation. I identify two factors that may have led to this fundamental flaw.

Law Firm Sponsorship

Law firms currently sponsor a wide range of law school activities. Each moot court team is firm-sponsored to pay for travel expenses and student organizations retain sponsorships to pay for events, despite the Student Activity Fee. Many law firms are also large donors, apparent by the wall of plaques in the Jerome Greene lobby. This dependency on money from law firms creates an environment in which we must cater to their desires in order to pay our bills. When it comes to a change in the grading system, it may be true that this change would require employers to work harder to distinguish students. However, if our economic interests were not tied to the interests of employers, then we could easily announce that employers very well should work harder to differentiate our students according to factors other than simply grades.

• You mean, if the teachers had to work harder. Employers could very well use more carefully-collected and carefully-expressed judgments about law students from teachers who really took the time and trouble to know who they are and how they are developing as lawyers through law school. If employers actually wanted to sponsor the production of information relevant to placement, they could do so. And teachers could collectively decide—because faculty are supposed to govern the institution collectively, in partnership, not by delegating to David and Nate an entitlement to decide—whether it would be in the interest of their students to accept that money and produce that differentiation for employers. Meantime, many teachers are presently failing in their responsibility to provide useful evaluation of learning to their students. Your point is that if they had to work harder for you that should neither determine nor come at the expense of how they work to help prospective employers.

By allowing law firm sponsorship, we allow the learning process of our students to be dependent upon the desires of future employers.

Competition Among Law Schools

As a Top Law School we are constantly trying to ensure that our prestige is not diminished. The Dean suggested that we are investigating the grading system as a result of the recent changes at Yale, Harvard, and Stanford. While a discussion of our grading system is incredibly important, the impetus should not be a result of changes at other competitive schools. When the focus is on competition rather than the needs of our students, we create a fundamental flaw where we improve the learning process of our students when it enhances our quantitative results in the legal community.

Towards A Proper Inquiry

If we place the importance of learning at the focus of our inquiry, then the types of questions that are raised become very different than those at the discussion with Dean Schizer. We should ask what type of grading system would enable students to work together more productively. Does the current system stifle unique thought for fear that it will not be among the generally accepted response? Would a system of pass/fail lessen incentives to read and study? Does the subjectivity of the current grading system create arbitrary distinctions among students?

The Current Grading System

In discussing these questions with some of my classmates, there seems to be a general agreement that the current grading system creates a sense of fear, since your future employment is dependent on one final exam. In my experience, this type of fear inhibits productive learning. Students generally learn only what will likely appear in examinations; we do not delve into intricacies of a theory because it will be unimportant in a short exam. The grading curve also creates competitiveness because learning is now a zero-sum game.

The Pass/Fail System

There is also a general concern that a pass/fail system will lessen the incentive for students to work hard. If the system provides only two options, pass or fail, then it may not require a large amount of effort to pass. Students may not complete their reading and may surf the Internet in class more often. Alternatively, if the grading system includes a high pass, students may devote all their energy to one or two classes (to try to receive a high pass in those classes) and devote very little effort to the other classes. Opinions differ as to the probability of these effects. Nonetheless, everyone agrees that future discussion is necessary as well as observation of the results at Harvard, Yale, and Stanford.

A Novel Approach

The main concern about a pass/fail system is that students may not place sufficient effort into their studies. I recommend a novel approach where students receive a pass/fail grade but where they may also release their exams to employers. Student motivation would continue because they would recognize that their exam is a demonstration of their writing ability and their knowledge. There would be no grade label to create arbitrary distinctions. We could also abandon the rushed three-hour exam in order to allow more composed, thoughtful writing. I do not recommend this approach absolutely, but I wish to demonstrate that when we focus on the learning process of our students, we can create novel solutions to law school problems.

• I think this is an excellent start. It's clear, crisp, and effective. I think you want to make it even tighter, so that there is not a word out of place. I think you want a punchier title. I think you should leave the last graf behind. You aren't making a recommendation; your position is that owing to fundamentally misplaced social priorities, this conversation was over before it began. The onus is on the other side of the dialog to respond by showing an openness to conversation and reflection on the fundamental commitments as well as the details. Is the institution prepared to acknowledge that the priority must lie where you, who pay the tuitions, need it to lie?

• Once you have perfected the essay, you should make sure your classmates and other law students have a chance to read it. You can push the link to everyone pretty easily. Ask people what they want. See how many conversations you can start. Things will happen. New experiences, as someone else I can't cite says, will accrue. Something may change.

Lauren-- I went to that same meeting and I'm grateful for your insights about it. Particularly, I think your observation that the "issue had already been decided before it was raised" is spot on. I apologize for the length of my comment--feel free to take it or leave it for whatever it's worth.

I think there's one other potential reason why the real issue at stake here has already been decided. You accurately describe the pervasive "sense of fear" among students, given that our "future employment is dependent on one final exam." This is partly the product of a rigid grading curve, as you point out. But it also partly results from the fact that our entire grade depends on "one final exam," which students perceive as leading to arbitrary and variable results. The single final exam model doesn't seem to serve any legitimate pedagogic purpose; quite the contrary, it seems to be the pervasive model of law school evaluation because it makes a 100:1 student-to-teacher ratio viable, freeing up professors to concentrate their energy on research rather than on teaching.

Moving to a Honors/High Pass/Pass/Fail system would not necessarily address that problem. Indeed, I wonder whether the discussion about changing from one grading system to another has the effect of distracting from this second issue, which has also "already been decided."

Building on Eben's comment, "useful evaluation" from professors would certainly require our teachers to "work harder" for us. It would also require reducing class sizes by hiring more teachers, since providing continuous and thorough evaluations for 100 1Ls throughout the semester is so much more onerous than grading one set of anonymous exams at the end of the semester. And it might also require hiring more teachers -- i.e., the school would have to reaffirm its commitment to supporting skilled teachers by giving teaching greater weight in tenure and hiring decisions, on the model of the liberal arts college rather than the research university.

Without these two institutional changes, it seems unlikely to me that professors will be able adopt a more useful and pedagogically valuable evaluation system.

-- DanielMargolskee - 28 Mar 2009

• This isn't realistic. You can neither reduce class size nor increase the size of the faculty, because having done so you could not then charge the resulting tuition in a competitive market. Law professors are expensive because really good lawyers who can teach really well would also be very good at earning lots of money using their licenses. If you want the very best teachers you will have to pay highly for them, and to bring student-faculty ratio to the levels you are assuming would be prohibitive. Right now, expansions in the size of the faculty are being paid for by accepting more students, thus taking more tuitions, which is why the size of each JD class has increased by almost one-third over the past three deanships, far beyond what the faculty has ever formally authorized, and the size of the LLM class has mushroomed.

• Nor will you easily convert faculty to a reallocation of effort from "scholarship" to teaching, without a full-fledged consumer movement to demand that outcome. They think they're the really best teachers because they think they are the most gifted scholars, and if you're going to change the definition of the "best" to require far more commitment to you and far less commitment to the burnishing of their reputations among their peers, you're not going to be able to do that with tea party tactics. The best obtainable outcome, pending an effort to change the very contour of the public mind, is to increase substantially the productivity of existing effort, by using contemporary technology to increase the quality of the connection between teachers and students given the existing constraints on time and number. That's not a process on which you have no valuable contributions to make, but they're subtler than the simplistic recommendations you're making here. This course of mine is an experiment in how we might achieve such outcomes, and your participation in it helps us all to understand what's possible.

• I agree with what Lauren says below about her essay in relation to these issues. Her thesis is that questions integral to student intellectual welfare are prejudged on a basis that presumes the secondary importance of student intellectual development and the primary importance of the law firm hiring process. Her essay's purpose in presenting that thesis is to raise the reader's consciousness: Why should the reader accept this policy prejudgment, rather than struggling against it? That could be an urgent question, particularly if the reader is someone who is borrowing heavily to get an education and can no longer be fooled into believing it's an investment instead in getting a mere job worth a certain inflated amount of money in a market that no longer exists. The reader may well not know, in her own opinion, how to fix law school: she may rightly think that the problem is one to be solved not by her, but by the law school faculty who are supposed to bring more insight and experience to the question. She demands, however, that the conversation engaged in by those wiser policy makers put her interests first, which is self-evidently not the case now. She is right to make that demand, and to enforce it as powerfully as she can devise ways to do, given the exigent nature of the life issues she now faces.

Thanks for the thoughtful analysis, Daniel. I agree that there are lots of ways that our school could drastically change the structure of evaluating and teaching students. Hopefully, my next edit will better reflect my opinion that Dean Schizer's discussion on the grading system was one of many ways in which the law school makes decisions without considering the implications for student learning. However, I limited my focus to the grading policy in this paper as I believe that a change in that policy is more likely to occur given that it does not require reworking the entire law school model. While I believe it it is very worthwhile to entertain discussions regarding class sizes, more faculty members, and midsemester feedback, I also believe that these changes are unlikely to occur without major alterations in the attitude of the faculty and administration. Ultimately I adhere to the baby steps approach: if we can convince the faculty to make multiple smaller adjustments (in their focus on students), then our actions can result in large changes without the disdain and stubbornness that we would otherwise face if we immediately proposed a novel law school model. Significantly, if we can demonstrate that student learning is the most important (if not only) consideration to evaluate our institution, then I believe that a lot of these changes you propose may fall into place.

-- LaurenRosenberg - 28 Mar 2009