Grades, Courses and Capture

I have written about the variety of ways it is clear, to me at least, that many or most law schools are captured by and run for the comfort of privileged faculty. Comfort is increased when faculty teach what they want to teach whether or not those courses have much to do with avoiding and resolving disputes -- a problem I believe is independent of any lasting Langdellian influence. Faculty comfort is also increased by high teaching evaluations and low numbers of student complaints. To this end, although the trend may be reversing, everyone is more comfortable when high grades are are given. For example, at my Law School, there is a mandatory 3.20 average and I suspect we are not out of line with other schools. At the same time, our bar failure rate is now at 20%. What this means is that a higher percentage of students fail the bar than have a C average or lower. We are evidently proof of the Lake Wobegon dream in that all of our students are above average – at least until they leave Lake Wobegon.

Some of the arguments I hear for giving high grades are surprising. One is that low grades hurt the feelings of the students. Another is that it is hard to give a C to someone you have come to know. The most compelling argument for increasing the grades is that students cannot compete in job markets with graduates of other law schools who were subject to high grading curves. The stunning thing about this is that it assumes law firms look at G.P.A. and not class rank. What an amazing example of not getting the Moneyball message. Recently hired faculty who have been involved in law firm recruiting decisions assure me this is true to the extent that a student with a GPA below a certain level will not be looked at regardless of rank. (I wonder why we just don’t raise the curve to 3.9 so they will all get jobs or create a new grade – how about A-squared.) If markets worked, those firms hiring without paying attention to the relative curves of Schools eventually should be left in the dust.

But, I digress. My real point is how the grade scam plays into faculty capture. Faculties have choices. They can offer the types of courses Jim Chen has described. This may mean retooling and long hours of preparation. Or they can simple pay off those who are affected negatively by the choice of "business as usual." What better way to pay off the students for, say, not raising questions about course offerings that seem only distantly connected to avoiding and solving disputes than to give high grades. High grades make faculty, parents, and students happy. And, law firms, so I am told, are indifferent to what the grades mean. Make no mistake this is a real payoff. If a student’s job prospects go up with higher grades, even if the student is no more qualified, it is a real pocketbook-affecting payment.

There is, in fact, a contract of sorts. For faculty it means less class preparation, fewer complaining students, and the illusion of being productive. For administrators it means no pressure to modernize the curriculum by asking faculty to broaden their offerings. And, for students it means a resume that, to them, looks good. And, in these days of self-promotion, glossy brochures, and symposia stuffed with pals they are learning from the best.

As an aside, isn’t interesting to watch markets work and not work. On the one hand, law firms, at least according to my recently hired colleagues, are less responsive to class rank than grades. On the other hand, private schools have higher grade inflation than public schools. (There is, however, contrary evidence.) Private school students have a more elastic demand and schools must lower the “price” of attending or raise the grade payoff to stay competitive.