Bad Test, No Test; So What?

Over at MoneyLaw, Tom Bell asked whether, and to what extent, class participation should count toward the grade in his Property Law class.  Nowhere in his post does Tom explain why he persists in doing so, instead providing the arguments against his practice.

I’ve tried in the past scoring class participation on a more subjective basis, marking the seating chart immediately after class to indicate which students has won class participation points for contributing to discussion of the assigned materials. Although no student ever challenged that system for fairness, it admits the claim all too easily; I prefer more objective measures of performance. Also, I found that scoring students during or after each class, based on some rough measure of “added to class discussion,” invited pestering along the lines of, “Did you count my performance, today, Professor Bell? I didn’t see you mark the sheet, and you confess to being absent-minded.” Fie on that.

I pushed not merely for its continuation, but expansion.

A radical idea: Make class participation, defined as actively answering questions using the Socratic method, and doing so correctly, as 50% of the grade. Watch them stick up their arms, demand to be called, argue why they’re correct and someone else isn’t, defend their answers from detractors, and generally conduct themselves in the way they will be expected as lawyer.

I guess I went too far, as Tom replied,

But I would not want to make so much of the grade rely on my idiosyncratic judgements–judgements perhaps tainted by knowing whom I’m grading. Despite its sometimes heartbreaking effects, I favor blind grading.

Lawyers face the idiosyncracies and biases of judges daily, yet are reared in an atmosphere of supposed fairness. Granted, blind testing removes the taint of bias, but to be objective, it needs more than to be free of subjective idiosyncracies.  It needs to be an accurate reflection of something that matters to lawyers. 

The ABA is considering  dropping the LSAT as a requirement for law school admission.  Reactions have ranged from “finally” to  why are they bolstering the finances of the Law School Admissions Council anyway?

Much of the committee’s LSAT debate has focused on the proper role of the ABA in the regulation of law school admissions, said Loyola University Chicago School of Law Dean David Yellen, who sits on the standards review committee.


“I think an accrediting body ought to ensure that law schools are producing students who can enter the practice,” he said, noting that he personally is on the fence about the LSAT requirement. “Is taking a standardized test the only way to determine if someone should be able to go to law school? Schools ought to be able to decide how they want to admit students.”


And what does taking the LSAT have to do with producing students who can enter the practice?  After pondering this question deeply for a few minutes, the answer is: absolutely nothing.  It would be cynical to suggest that this is merely a bait and switch, a grand gesture to take our eye off the ball, that regardless of the criteria used on the way in, it has no applicability to what they do with these fertile minds while in their care, and nothing whatsoever to do with how they come out the other end.

Sound and fury, signifying nothing.

Via What About Clients?, Duquesne lawprof Bruce Antkowiak writes for the Pittsburgh-Post Gazette :


You would think that law schools would make fundamental changes to their programs in the wake of the job crisis, fearing that law degrees might someday be assessed like a Ph.D. in poetry — soul-satisfying but potentially impractical. A few have responded dramatically, but most have held fast to the traditional law school model or made superficial changes. Why the resistance?


Lawprofs have  long sneered at the notion of law school being a mere “trade school” rather than a place “to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession).”  Is it better to get rid of an objective test and put it in the hands of more reflective folks?

It was always my understanding that the LSATs assessed, at least in part, the takers’ aptitude for logical thinking, together with the a few of the skills, like reading comprehension, that would help one get through law school.  Based on what I read in the blawgosphere, it hasn’t done a great job.  Lawyers seem long on emotion, short on reason, and desperate for business. 

Is this a product of a flawed Law School Admissions Test?  Hardly.  Just between us, it doesn’t take a genius to be a lawyer.  In fact, brilliance can be a definite handicap.  But even the brilliant can be taught to be adequate lawyers with the right methods. 

I’ve got no problem with scholars teaching law students poetry under whatever guise they like, so long as students (or their parents) paying big bucks for the privilege don’t mind wasting their money.  But if they can’t persuade a lawprof that they’ve got the ability to practice law, despite his idiosyncratic ways and biases for and against certain students, then they will fail at a basic task of lawyering.

It doesn’t matter what criteria is used to let them into law school if they’re spewed out the other end without the ability to practice law.  It doesn’t matter if law schools don’t tell those students who attend that they should stop wasting their money, or assuming debt, as they have no future in the law.  It doesn’t matter if they love the poetry of the law when the only place they get to recite it is in a law school classroom.

Whether law schools make the LSAT optional means nothing to the practice of law.  Whether law schools fess up and admit that they’re teaching poetry to law students is another matter.  And that the ABA thinks it can get away with such provocative moves, while naming rights to buildings at new law schools are auctioned off, makes clear that it has yet to come to grips with the problem.

Be unfair, Tom Bell.  Life is unfair.  The law is unfair.  Teach them how to deal with it, to overcome it.  Regardless of how they got to your class, at least they will leave knowing something useful for their future.

3 comments on “Bad Test, No Test; So What?

  1. Eric L. Mayer. PoeD

    There seems to be a trend in higher education to separate the practical from the theoretical. For instance, psychologists now choose one of two paths: the more theoretical and academic PhD versus the more practical PsyD.

    Your advocacy for practical and realistic applications is precisely why I decided against a PhD in poetry. Instead, I achieved the more practical PoeD. Upon graduation, I found myself able to compete and succeed in coffee shops and beatnik hangouts across the nation. Whether a simple haiku or complex limerick, I am prepared for all challenges.

  2. Joe Scura

    I’ll never forget my law school ethics professor declaring that she was not going to teach us “traditional” ethics because she did not think the material was interesting and we could learn it anywhere. Being a stickler for efficiency, I wondered why we couldn’t just cover the material we “could learn anywhere” in a mandatory law school class that was costing me about 10 grand.

    Long story short, I did have to learn elsewhere, but there are 40 or so lawyers floating around that are well versed in hypothetical rules that will probably never be put into effect…that also think co-mingling is a networking event.

Comments are closed.