I will look forward to hearing more about these findings, and I urged him to get this information beyond the usual dry academic publications. I had twin motivations for that. If he is right, the information is needed to counter the message in the traditional media and the blogs, a message derived anecdotally, that law school debts are creating increasingly distressing—and ultimately unsustainable—burdens on lawyers that distort their life choices. But moving the information beyond the echo chamber of publications read only within the legal academy would also subject it to what Justice Oliver Wendell Holmes called “cynical acid” of outside commentary.

This post certainly does not mesh with the reality the dean described. Reflecting on law graduates’ debt burdens, the author compares law school tuition inflation and lending practices to the subprime mortgage-induced housing bubble. She asks what the future of law school pricing will be, and whether someone will create a financing model that does not depend on third-party financing.

The problem with the financing is that student loans are not dischargeable in bankruptcy, which lessens the risk to lenders and makes them more willing to lend without considering the likelihood of repayment that is the usual lending criterion. Add to that government subsidies and grants, and the law schools can capture most of these distortions and use them to increase tuition. The students, meanwhile, are stuck with a large, and increasing, bill even if their job prospect turn out to be too meager due to ability or low ranking of their law school to justify such an investment.

The prescription is to make law school loans dischargeable in bankruptcy, so that lenders tighten the terms of the loans based on likelihood of repayment. That will force the law schools, particularly those in lower tiers, to compete more rationally on the basis of price, i.e., tuition. Other alternatives will, necessarily, emerge to cut the cost of legal education, particularly for those lawyers whose careers will be spent mainly filling out form complaints or appearing in run-of-the-mill criminal cases.

Some schools, mine included, are increasing the amount of scholarship money, both on the basis of merit and on the basis of race. In the case of the former, the obvious goal is to attract and retain people who have a high likelihood of passing the bar. That helps with school reputation as well as with the U.S. News rankings (though less than one might expect for the latter). That creates a perverse financial incentive structure. Overall tuition will be increased more than otherwise in order to pay for the subsidies to the top students. It is those top students who can get the highest-paying jobs to repay their loans. It is the lower-performing students who get no such grants and scholarships who have to borrow even more to pay the higher tuition, but who will get lower-paying jobs, if they get law-related jobs at all.

The problem might solve itself if students applying to law school were told the hard truth (and were willing to listen) about employment chances and debt burdens (and law schools were willing to provide answers not attuned to gaming the U.S. News ranking system). The lower-qualified students might think twice before applying, which would reduce the student pool and rebalance supply and demand for lawyers at earnings levels that can sustain debt burdens. Those burdens, too, might be lowered as law schools began to compete for students. But I am not optimistic that the market distortions locked in place by government intrusion into the student lending market and various oligopolistic practices of law schools can be broken that easily without a top-to-bottom restructuring or abandonment of the existing law school education system.

The trends have already been set in motion through the availability of more and more on-line courses and degree programs. The move to test-based certifications and degrees is coming. As lectures presented by the elite, name-brand universities proliferate, this cannot but have an effect on brick-and-mortar institutions. Some, namely those same elite institutions (Yale, Princeton, Stanford, Harvard), will survive as teaching and research institutions. Same for smaller traditional elite liberal arts colleges (Swarthmore, Pomona) and specialized scientific/engineering schools (CalTech, MIT). Also some of the religious schools. But the operations of public universities and less highly-ranked run-of-the-mill private institutions will have to change radically, or they will go out of business. The current business model won’t work.

Many of those schools will have to develop new ways to deliver education to the expected masses. The junior college model comes to mind. Many junior colleges offer “distance learning” that can be supplemented with a few meetings during the semester for discussion. There will be lab courses and, perhaps, some seminars. If the Credits ‘R Us model of post-secondary education that Obama envisions takes hold, there may be a need to revamp colleges to do away with general education requirements and focus on specialization. The classic liberal arts model is designed for elites and will survive at appropriate institutions. For the great mass who are going to college because it’s the next stop after high school, taking courses in which they have no interest and which are not relevant to their goals is a waste of time and money. Colleges are becoming what grades 6 to 8 were a century ago.

Once the colleges go, law schools won’t be far behind. The same elite-everyone else dichotomy will strike those schools, too. Business schools already follow that model. There is no reason law schools shouldn’t. In fact, California already has a version of that model in that it has three tiers of law schools: the most selective law schools (approved by the American Bar Association), the next group (accredited by the State Bar), and the least selective, “unaccredited” law schools (licensed by the Commission of Post-Secondary Education). There is even an on-line law school, a glimpse of the future of non-elite lawyer training.

There are other teaching models that law schools can adopt to reduce the tuition burden. It would be unfortunate to lose the benefits of on-site education and the pedagogical benefits that classroom instruction brings. But the current educational model continues on its ever less-sustainable path. Administrators and faculty remind one of the French aristocracy in 1788, oblivious to the gathering storm of revolution that consigned the ancien regime to the dustbin of history.

The Wall Street Journal’s Law Blog decided to celebrate the exam season by offering the views of several law professors from more-or-less prominent schools on what constitutes a good exam answer. Their responses ranged from excellent through acceptable to “have you considered actually providing useful information?” Not kidding on that last one. And it is the last of the responses I am most looking at here. From my law school alma mater, I note with chagrin. Some of the comments to the post are enlightening, as well.

Oddly, I was not included in this survey. But, this being my blog, I will ask myself to offer an opinion. Mirabile dictu, I have agreed to respond. My answer is similar, understandably, to the more thoughtful responses from the legal Socrateses queried by the Journal. I agree substantially with Professors Gerken and Friedman.

Law school exam questions typically pose a problem with a number of facts in evidence. Students are then asked to identify and evaluate various legal claims raised by the fact pattern. One problem that students have is that they do not answer the question. That takes two forms. They may ignore the facts presented and, frequently, make up new ones. That might be described as “soft” avoidance of the problem. The students have no answer for the question, so they reshape it more to their liking. Or, worse, the students violate clear instructions, such as, “Do not address any issue of [            ] that you might see.” Or, “Be sure to consider the parties [             ].” When those explicit instructions are not followed, this might be described as “hard” avoidance of the problem. The “soft” version is more prevalent than the “hard” version. It may be a more unconscious action. The latter shows that the students simply have not read the question, even though I warn them repeatedly that the instructions are the most important part and need to be read first and then followed.

Either form of avoidance is a problem, not just on my final exam. The state bar examiners make it clear that a failure to answer the questions or address the legal problems raised in the questions will be fatal to success on the exam. Once in practice, a failure to answer the problems raised by a client’s case is at best a waste of the client’s money. Similarly, the attorney’s failure to address the actual legal issues in a hearing will doom the client. So, answering the question posed is a critical start.

Moreover, the exam answer needs to be organized. This is not the time for free-form flow-of-consciousness writing. Just as a book uses chapter headings, and a formal legal complaint uses a heading for each claim and remedy, the exam answer should have a heading to introduce the specific legal issue. It is not enough to say, “What are B’s rights against A” or “Is the law constitutional?” That’s about as helpful as analyzing the client’s problem by saying, “Can the IRS come after you?” “Did A commit a battery when he flicked the lapel of B’s jacket,” or even “B v. A: Battery,” works; “Can B sue A” does not.

Another, practical, reason is that the exam reader is reading many exams. It always helps to make the answer easily readable. A good rule: Make the grader your friend. Non-descriptive issue headings (or none at all), illegible handwriting, failure to use paragraphs (or even sentences), and abbreviations requiring the use of a decoder ring or a knowledge of shorthand do not make the reader one’s friend.

After a proper recognition of the appropriate legal issue to be addressed, I next look for a thorough and clear statement of the proper legal/constitutional framework. I need to see that the student knows the appropriate elements/factors/analytical talking points that the courts would apply. That doesn’t necessarily require verbatim regurgitation of what was learned in class or what is in an outline. It does require that the student be able to figure out the relevant concerns those elements, etc., address and setting those forth adequately. This “rule statement” is the general “formula” by which the problem will be solved. It explains to the reader/client/judge what authoritative legal standards/rules apply.

But the general formula does not solve the specific problem. That requires an analysis of the relevant facts that are problematic for a resolution of the issue. Those facts have to applied to the relevant parts of the legal test. There is no need to analyze the obvious, but there needs to be a discussion of the facts that might cause the client difficulties or result in contested arguments, even if, at the end, the facts lean in the direction of one party or the other.

Analyzing those facts is not the same as simply restating them. I need to see how the student relates the facts to the law, the specific issue to the general formula. Phrases such as “In this case,” make the general rule specific to the facts. Even more significant than that are connectors, such as “because,” “since”, and “as.” Those show an analytical connection.

Moreover, exams are usually a “closed factual universe.” It is important to focus the analysis on the given facts and not to make up new ones. If the problem involves the constitutionality of a statute, it is important to look at what the statute says, not at what the student would like it to say. In this manner, exam questions are like motions to a court. The facts are given. On the other hand, real world advice to clients, in estate planning, for example, might start with an analysis of the facts but then move to recommendations about how to change those facts in the future to achieve a desired result.

In the issue analysis, students should also avoid a robotic “A will argue,” then “B will argue,” then “A will argue,” then “B will argue,” etc., approach. First, it looks stupid and grates on the reader. I once counted 46 such phrases in the course of an essay exam. Second, it tends to lead to a point-by-point approach that becomes an unduly miniaturized analysis, rather than a comprehensive analysis. Third, it prods the writer into making up facts or concocting weak or meaningless opposing arguments (e.g., “B will argue the opposite”) just so that he has something to say in opposition. Sometimes, the facts really are strongly in favor of one side. If the facts regarding a legal issue favor one side in one part and the other in another part, the analysis can reflect that in a more elegant manner than the “will argue” ping-pong. For example, “On the one hand, A has met the standing requirement because the invasion of his privacy rights by the government’s agent hiding under his bed constitutes a concrete injury in fact. On the other hand, the agent’s subsequent death prevents the court from effectively granting relief to A, which might fail the third prong of the standing test.”

Fact-law analysis is a significant component of a good answer. Conclusions are less important on my finals, in the sense that some conclusions cannot readily be predicted. In that case, if further analysis of the problem depends on an answer to a preliminary issue, the student may have to argue in the alternative. A Sometimes that might be quite simple. For example, if there is a disputed preliminary issue whether the plaintiff even has standing in court to bring the suit, a matter that often depends on highly nuanced and unpredictable fat weighing, the student in the end has to assume that the plaintiff has standing in order to get to the merits of the legal argument. Indeed, that is true even if it looks to the student that the plaintiff likely does not have standing. After all, if this were a contested case, the defendant likely would not rest his case solely on the gamble that the court will deny the plaintiff his day in court. Rather, the defendant would also prepare to address the merits of the plaintiff’s case.

A good answer also will avoid being distracted by irrelevant, non-legal considerations. This is particularly true in my main area of teaching, constitutional law. The exam answer is not the time to get on a political soapbox or to launch into economic/sociological/critical theory-based arguments how the proposed law “won’t work” or is “unfair.” In similar vein, the student must avoid trying to divine what response I would like from an ideological standpoint. I am only interested in seeing a legal analysis as the courts would undertake it, not what I would like to see politically in a world where I was a Platonic demiurge.

Students also should be aware of the oldest professor’s trick in the world. For whatever reasons, students tend to be very much pro-plaintiff in civil cases and pro-defendant in criminal and constitutional cases. Just as there is a need for a certain detachment when it comes time to addressing clients’ problems, students need to learn personal detachment from the parties in exam fact patterns. It is not unheard of for professors, ahem, to load the dice. I might write the facts so as to have a sympathetic-appearing defendant with various constitutional claims against the government but write a statute that, under current law, is clearly constitutional. It is important to resist the temptation to do anything but analyze the problem soberly.

Beyond that, there is something to be said for using common sense. While common sense is not a guarantee of success, it is often enough. If the argument really sounds weak or leads to utterly preposterous results, it is probably a dead end. If the student finds it necessary to say, “This is a weak argument,” as happens with disturbing frequency, the argument is best not made.

Finally, address most carefully the issues that jump out from the facts. I am reminded of a story from a former acquaintance whose ex-husband took the bar. She told me that a criminal law question on the bar exam involved a bank robbery. Among other facts, the robbers got into a shoot-out with the police and one of the robbers was killed by police. Before escaping, the robbers let out the air from the police car’s tires. The question’s main focus was on the defendant’s guilt for the policeman’s killing of the other robber, under the felony murder doctrine. The genius bar applicant wrote nothing about felony murder, but was proud about his thorough discussion of the “larceny of the air” from the tires. Perhaps needless to say, he failed the bar.

So, for a good answer, the student should identify the precise legal/constitutional issue, recount fully the applicable legal/constitutional rule, actually analyze and apply the relevant facts to the law, and avoid emotional, unreasonable, weak, and concocted arguments. Most certainly, the student must not fall into the trap of either hard or soft avoidance of the problem; in other words, answer the question.

As one commenter put it, “The problem with law reviews is they are of little value to the attorneys that practice everyday law. Of course, if I get a transgender client facing incarceration and placement [in] the general [prison] population and who is [to] be deprived [of] the freedom to practice the Wiccan religion and of [sic] special dietary needs, I can access 25-30 articles on that[,] no problem. Now, if I want some assistance on the problems with offsets when multiple uninsured motorist carriers [are] involved, something that implicates 5-10 of my cases a year, there might be one or two out there, but [they] are way out of date.”

The commenter’s description is exactly right. Professors need to publish, and law reviews need articles. Young professors need to publish that which the academic culture wants them to publish to give them tenure. They speak a certain language within a fixed world view that has attracted them and that molds them into remarkable conformity. There are exceptions, and those will be the ones to break out of the mold and move the academy in a different direction. Whether that direction will be more consistently useful to the profession remains to be seen. But the current system certainly does not reward as “scholarly” articles that might help the legal profession with practical information. For that, the profession (and the courts who deal with “real” legal matters) must turn to other sources.

Now, to be sure, law professors are unlikely to die prematurely from excessive physical exhaustion or emotional stress. Moreover, if the term is intended to mean that people will do the least they can get away with, there are some who probably are “lazy.” Of course, in that last quality they are hardly different from some individuals in any other vocation. It is even possible, though much more dubious, that there are more lazy law professors than lazy people in some other groups. That would be most plausible when compared to neurosurgeons, but much less so when compared to other pedagogues or to government workers, union members, and entertainers.

But I do not believe that to be an accurate description of law professors as a group. While moving from the individual to generalization of the group is always problematic, I will start with myself. The WSJ description is itself problematic, with normatively-freighted phrases such as “a few hours,” “an hour,” and “doing whatever else they do.” First, I typically teach 8-9 hours in the classroom each week during the academic year. Those are medium to large classes. So the teaching load is not insignificant. My colleagues do not teach that kind of full schedule, so it is fair to say that some of them could readily teach a heavier course load than the more typical 5 hours per week without suffering exhaustion. But that is not the extent of the classroom commitment. I have taught these subjects for quite a number of years. Yet, I still need to review the cases and materials before each class. This easily adds, say, 6 hours per week.

Second, I hold office hours 3 hours per week, in light of the large number of students I teach. Around exam time, I increase my availability further. Most of my colleagues have a comparable number of office hours.

Third, I have administrative responsibilities on committees and as faculty adviser to student groups. Including faculty meetings, these responsibilities probably take up an average of about 3 hours per week, sometimes more, though usually less. That work is drudgery.

Those are the most open and notorious hours. They are the tip of the iceberg. Class topics don’t learn themselves. I teach in the areas of business law (agency; partnerships; corporations; securities), constitutional law, and legal history and theory (including jurisprudence). Constitutional law, especially, is prone to new applications and interpretations. That requires a constant keeping abreast of new developments. Reading advance sheets, law review articles, books, and blogs soaks up a lot of my time. Now, some folks might say that is leisure. True, I find (most) of those readings interesting, but they still take up time. They are still work, and I find that I have far too much to read and far too little time to read it (as I stare at 7 books piled in a stack in front of me).

Then there are the incidentals of classroom work: Writing and grading exams. Law professors have to write the exams and read every student essay answer from beginning to end. At least half the final must be essay. No teaching assistants permitted for those tasks. Again, I take those tasks seriously. Writing one final exam will take all or almost all of a day. Reading and correcting essays takes about 45 minutes per essay, as I make lots of comments. Not all professors take that kind of time or go into such detail, though I believe that professors owe their students that attention and guidance. I grade close to 300 finals during the academic year.

Moreover, those who work in a cubicle (or at any other job), don’t work for eight hours straight (or even four hours). Studies have shown that an employer is lucky to get four hours of real work out of the typical employee during an eight-hour day. That is to say, shopping or gambling online doesn’t count as “work.” So a forty-hour work week does not mean forty hours of actual work each week.

When I grade papers, those are hard hours. I take breaks to rest and refresh my mind. Even with breaks, a mind-numbing boredom threatens to set in after reading thirty or forty similar answers. As far as in-class teaching, it is physically and mentally exhausting, though in a different manner than grading papers. Plato described the erotic element of philosophy. Without taking this too far, there is an erotic element both in experiencing knowledge and in teaching. When a class goes well, there is a sense of culmination and consummation. Mostly mental, to be sure, but with a physical aspect, as well. The better the class goes, the more that sense. And the more the need for a mental and physical refractory period. Put another way, a one-hour class takes a lot more than one hour.

There are also the extra exam and course review sessions with students; the moot court judging (both the first-year students’ competition and the upper division honors program); the panel discussions for student groups or for one’s colleagues; attending lectures, seminars, or academic conferences; various receptions for alumni, prospective students, and current students; letters of recommendation for worthy students and academic assistance for those in trouble.

Finally, there is the writing part of the job. Many of my colleagues write a law review article every couple of years. I tend to write shorter pieces more frequently (I get bored with a topic once I have done the basic research). Also I write a blog, which is partly a creative outlet, but partly related to my work.

Some professors might hide behind tenure to do little work. I suspect that few do, though, at least at law schools. I know that I like to be productive. I like the intellectual challenge. I consider it my obligation to be as prepared and informed as I can for my students. All of those take time and effort if done conscientiously. I suspect that my colleagues feel the same.

The great advantage of being a law professor is flexibility. I do not sit in a cubicle from nine to five. It is easy for me to take off an afternoon to do personal things. But I also work until late at night and on weekends, as the need arises. But flexibility in work schedule does not mean that work is not done. Just because I am not in class does not mean I am not working, any more than the fact that a basketball player is only on the court a few hours a week does not mean he is not preparing for his game. Or that an actor who appears a couple of hours a night in a play is not working on his lines or other aspects of his craft.

Another point a critic might raise is that law professors “get the summer off.” Yes, and no. Most law professors do research for their publications during summer. Some teach as visiting professors or at the school’s programs overseas. I teach during the summer. Indeed, the special two-year program in which I teach some classes, requires so many hours in the summer that July and August are the two busiest months on my schedule. Yes, like others, professors do take vacations, though I have not taken anything longer than ten days as far back as I can remember.

A different question is whether law professors are overpaid for what they do. That is an intriguing and, ultimately, unanswerable query. Certainly we are paid far more than a lettuce picker for far less backbreaking work. On the other hand, we are paid far less than someone who can play basketball well. I look at that question as follows: Law professors could certainly teach a few more classes for their pay, perhaps at the expense of some publishing. But we earn far less than most of us could have earned had we become (or remained) practicing attorneys. Most law professors come from a fairly thin layer of law students in the upper echelons of well-known law schools. Those students are much desired by prestigious law firms. They have six-figure salaries as beginning associates that rise, not infrequently, to seven-figure partnership draws. If they work for the government, they are likely to rise to the upper levels of bureaucracies. They typically earn impressive amounts of money. Many law professors made a trade-off in exchange for a lower salary. It is that comparative independence in performing one’s job, the flexibility of life-style, the intellectual challenge and the joy of knowledge, and the opportunity to help students become lawyers (together, I’ll admit, with the prestige and satisfaction that brings) that is the attraction of being a professor.

Being a law professor is a wonderful career. With certain qualifications, such as faculty meetings and grading exams, it is personally very satisfying. More than most vocations that I can imagine, it provides that fulfillment and sense of accomplishment, characteristics of a life well-lived, that Aristotle and other Greek ethicists called eudaimonia. But, as the Greeks warned, eudaimonia requires effort and commitment. So, becoming a good professor (and it truly is a continuous ”becoming”) requires those two ingredients. I would reject the notion that law professors as a group are “lazy,” as it accuses them of lacking that essential human striving to excel.

The Northwestern Dean, David Van Zandt, makes a compelling argument for changing the business model for law schools, something I wholeheartedly endorse. But he does not go far enough. Law schools must significantly reduce costs. There are some obvious ones that I have repeatedly mentioned, such as having professors teach more units and publish fewer articles on topics on the order of the latest critical theory implications of statutes of limitations or yet another whine fest about this or that identity group underrepresentation. The whole law school curriculum needs revamping, as I had the pleasure of discussing yesterday with a couple of my students and as I have posted before.  The problem is that schools will continue to embrace high cost programs and policies because many of those influence the U.S. News rankings. Even good faith attempts that I believe the dean at my law school would endorse have to consider the malevolent influence of magazine rankings on the attendance choices of students.

I do like the details of Northwestern’s two-year approach, which I consider in some ways at least superior to my school’s 2-year SCALE program. Some of the other components of the Northwestern program are also good ideas, such as the third-year practical focus and the enhanced admissions requirements. Again, though, I do not think they go far enough, especially in proposing specific solutions to developing more practical skills. In that regard, at least, I think that my school’s SCALE program is superior.

Another study, using more complex calculations, was done by a professor at Vanderbilt Law School. He concludes that, depending on a range of assumptions, a starting salary close to, or higher than, $100,000 is necessary for the average law student to realize a solid return on his or her investment. The variables considered in that study are so great, however, that one cannot calculate with precision the required starting salary. Moreover, as the professor appropriately points out, there may be intangible factors such as a passion for the law or the pride in the prestige of a professional degree that are not readily quantifiable that may make the law degree a good choice for a student even if a pure dollar-and-cents calculation might not.

The current law school model is not sustainable. The question is what will replace it. It has to be something that ties into what law schools can reasonably deliver without a cost that puts students into indentured servitude for decades.

With strong faculty support, the new dean changed several long-standing policies soon after his arrival. For one thing, the traditional grading curve at the school for classes was changed from a median of C+ to B. The range of the mean was changed from 2.3-2.5 to 2.95-3.05 for most courses. The academic dismissal line was raised from C to C+. That latter change was one grade-step less than the change of the median, with the result that more people who would have been disqualified under the old approach now were retained. This has reduced the attrition rate for students at the end of the first year, a change that has made students feel less stressed about their studies. Indeed, the attrition rate has declined to the negligible and is less significant than at even some institutions ranked higher than my school.

The purpose of the grade inflation was to bring our scale more in line with that of other law schools. Myopic employers look askance at any grade point average below B and indeed at any course grade below B. They expect to see A grades. Anything less than that creates a disquieting aesthetic for these employers, it appears. They would rather have appearance of acceptable performance than evaluation based on the actual merit of the performance. Grading our students under the old system put them at a disadvantage compared to other students, based on transcript appearance.

Moreover, it was made clear at faculty meetings, and by the general tone towards grading as a mere ranking exercise, that attrition was to be minimized. In true post-modern understanding, grades have no intrinsic meaning of merit, or lack thereof, but are merely relative. To assign intrinsic merit to an A or a B was an impossible task. In some tension with that paradigm, though, papers that did not meet minimum competence were to be given below satisfactory grades. That required at least some determination of what constituted a meritorious paper, and its opposite. But there are low grades and there are low grades. Giving a C is not the same as giving a D-, and it was clear that the former were to be preferred over the latter, as the former was less likely to result in attrition if the student received only otherwise mediocre grades. One justification given for this change in grading and attrition was that rewarding students with better looking grades and allowing them to complete courses successfully would give them confidence in themselves. That, in turn, it was proposed, would help them succeed on the bar exam. Interesting concept.

Some of us faculty dinosaurs, such as T[oken] C[onservative] rex, supported the grade changes, such as the increase in A and B grades, that placed our students on a level playing field with students from other schools. But I opposed raising the academic disqualification level to only a C+ and the informal push to lower attrition. I understand the cosmetic change of the median from C+ to B, but not the failure to raise the academic disqualification line at a same rate, i.e., to a B-.

In addition, since the new dean’s arrival the school has reduced the number of units of required subjects. As a result, topic coverage has suffered. Again, the reason given was that many other schools do it this way. Once more, the intention was to make law school a more nurturing and student-friendly environment and a less stressful course of study. Moreover, giving students more electives would allow them to focus more on areas of interest and let them make decisions about their education. These changes were done with the best of intentions and fit well the non-judgmental liberalism that most in the faculty and the administration follow.

On top of that, an externship program has been expanded even beyond its prior scope. Externships allow students to get practical experience working in government legal offices (such as the District Attorney’s Office), judges’ chambers, or certain law firms or company legal departments (especially ones connected with entertainment law). The laws school collects tuition and reduces class sizes; the students get credit; the offices get “free” help. Everything’s great.

Or is it? The externship programs do not follow any clear progression of learning practical skills or substantive coverage before venturing into the offices. Moreover, according to informal discussions I have had with students, many of these (especially among the judicial clerkships) produce less than satisfactory learning experiences. Put another way, there is a concern that the time students spend in the externship program exacerbates the deficiencies in core course subject matter coverage. Needless to say, I am not at all impressed by the school’s proud announcements that the externship programs involve ever greater numbers of students and outside legal offices. That may help the bottom line and allow those who administer the program to gain new titles and hire more staff. But it doesn’t address the question whether the program, at least as currently structured, actually helps the students more than taking a course of study and working part-time for pay would do. The deficiencies of subject matter coverage have been waved off under the new faculty governance regime by placing some mild restrictions on who qualifies to participate in externships and by claiming that students can make up the deficiencies by taking a bar review course.

As to that last point, I want to leave aside the indictment this represents of the role of the law school and its educational mission, at the cost of $1225 per unit. Whatever may be the merit of that argument for students at a Top Ten law school, it does our students little good to be introduced to an area of law that is covered on the bar exam just a few weeks before that test.

Rather, I want to take a look at bar statistics themselves. Southwestern is an American Bar Association-approved law school. The last class that graduated under the old grading and attrition structure scored a 66% California bar exam passage rate for first-time takers. This was 4% below the average for first-time California bar exam takers from all ABA-approved law schools in the state. Our full-time day division (the most appropriate comparison to other schools) scored 72%, or 2% above the California ABA schools’ average. This placed us 11th out of 19 ABA-approved law schools in California.

The July, 2006, exam included students who had been largely unaffected by the grade inflation and the other changed policies, but had been exposed in their course work for one year to these laxer rules and the change in intensity (seriousness?) those rules signaled. Our bar passage rate dropped slightly to 64%. Unfortunately, the overall ABA rate climbed to 74%, for a difference of -10%. Our full-time program again did somewhat better, but at 67% had dropped below the ABA average, as well, to -7%. We were now 14th out of 20 ABA schools in bar passage. (One new school, Univ. of La Verne, was approved and had its first group of graduates as an ABA-approved school take the bar.)

The next group, in 2007, had two years under the new grading and attrition rules. First-time bar passage held steady at 64%. Unfortunately, we still lost ground slightly, as the overall first-timer rate from California ABA schools was 76%, for a -12% difference. Our full-time program improved slightly, to 69%, and a -7% comparison to California ABA schools overall. These statistics placed us now at 16th out of 20 ABA schools in California, yet another drop.

The next group, in 2008, saw a surge in Southwestern’s graduates passing the bar, for a 72% rate. Unfortunately, the overall ABA average shot to 83%, so that our difference was still -11%. Our full-timers passed at 74%, now with a -9% in relation to the ABA schools. This dropped us to 19th out of 20 ABA schools in the state, despite the apparent improvement over prior years. The improvement was a mirage, as it was for other schools, because the bar examiners scaled the exam more leniently because of disruption caused by an earthquake on one of the exam days. This benefited many of those who were on the borderline. Not surprisingly, our students in the lowest quarter improved their performance from 28% to 41%. Our lower performing divisions (the part-time evening students and, to a lesser extent, students from the intensive 2-year SCALE program) improved most markedly, from 38% to 55%, and from 57% to 68%, respectively. The generous bar scaling also seemed to benefit other usually lower-performing schools such as Western State, Whittier, Thomas Jefferson, and La Verne, who are likely to have higher proportions of marginally-qualified students than other schools.

Leaving aside the anomaly of the 2008 exam, the 2009 exam may provide a glimpse. In response to earlier bar exam shortcomings, Southwestern introduced several programs intended to prepare the students for the bar. Oddly, among them are exam writing courses and some substantive bar review-type courses. Why these matters were not covered in the traditional courses during the preceding two and a half years, is a bit of a delicate question. Moreover, these students, including the part-timers have been fully subject to the more lenient attrition and relaxed course coverage policies. The result? A drop in first-time bar passage to 62.5% for Southwestern students. The California ABA law schools’ overall passage rate also dropped, but only to 79%. The result is a -16.5% rate for Southwestern compared to the overall rate for ABA schools in California. Even our day division dropped substantially, to 65%, or a -14% comparison. One bright spot was that some of the other lower-performing schools, saw their rates plunge even more from 2008 to 2009 than did Southwestern. As a result, we moved up to 16th out of 20 California ABA schools. Another bright spot was that the evening program held steady (though still well below the full-time program), but the collapse of the SCALE program’s statistics offset that partial success.

So, where are we after four years of grade inflation, drastically reduced first-year attrition, reduced substantive coverage in favor of an expanded range of specialty electives not covered on the bar, expanded externships, various remedial “student success programs,” some quasi-bar review courses, post-graduation exam writing courses, a consciously student-friendly and nurturing environment, and (happily) greater student contentment? The first-time bar passage rate has dropped steadily (excepting the freakish year 2008) from 66% to 63%, withthe full-time program dropping from 72% to 65%. Leaving aside other considerations in favor of a rigorous law school experience, perhaps a 3% drop is a price well worth paying for increased student comfort and happiness while attending law school. Perhaps even a 7% decrease for full-timers is worth it, although the price is getting steeper. But this has occurred while the California ABA schools’ overall bar passage rate for first-timers has increased from 70% to 79%. Can we justify our changes when our relative positions to the other schools has declined 12%, from -4% to -16.5%?

Schools whom we outperformed in 2005 or whom we once considered our competitors are now well ahead of us. Though using the overall rates would not change the following comparisons significantly, I am using only full-timers for better comparisons in most cases: Cal Western (2005, Southwestern +14%; 2009, Cal Western +16%; relative decline of 30%); Chapman (2005, Southwestern +13%; 2009 Chapman +16%; relative decline of 29%); Golden Gate (2005, Southwestern +28%; 2009, Golden Gate +3%; relative decline of 31%); Loyola (2005, Loyola +3%; 2009, Loyola +20%; relative decline of 17%); McGeorge (2005, Southwestern +8%; 2009, McGeorge +16%; relative decline of 24%); Pepperdine (2005, Pepperdine +1%, 2009 Pepperdine +15%; relative decline of 14%); UC Davis (2005, UC Davis +2%; 2009 UC Davis +24%; relative decline of 22%); USF (2005, USF +2%; 2009, USF +16%; relative decline of 14%); Santa Clara (2005, Southwestern +7%; 2009, Santa Clara +17%; relative decline of 24%); USC (2005, USC +10%; 2009, USC +26%; relative decline of 16%). Even those schools still below us are catching up: Thomas Jefferson (2005, Southwestern +34%; 2009, Southwestern +19%; relative decline of 15%); Western State (2005, Southwestern +47%; 2009 Southwestern +12%; relative decline of 35%); Whittier (2005, Southwestern +32%; 2009 Southwestern +4%; relative decline of 28%). All of the schools below Southwestern received ABA approval after Southwestern did. At least one school that received ABA approval well after Southwestern, Chapman, has surged ahead in its bar success. We used to compete with Santa Clara, McGeorge, Loyola, Pepperdine, USF, and, if lucky, UC Davis. Now, it’s neck and neck with Whittier.

Obviously this begs the questions, “Why?” and “How?” There may be a number of intangible reasons or reasons that are unique to each institution that explain part of the statistical changes and comparisons. But, spread across the number of institutions (and I did not include those, like Stanford and UC Berkeley, that consistently outstrip schools such as Southwestern), most of which we once considered our peers, there seem to be troubling forces at play. One cannot help but think that the relaxed atmosphere with the forgiving grading; the genteel attrition rate; the emphasis on “sexy” and “relevant” entertainment, media, environmental, and international courses and concomitant reduction of core course coverage; and the emphasis on externships has something to do with the decline.

Our lowest quartile has always performed poorly. But they have moved from poor (28% in 2006) to abysmal (16% in 2009). If that quartile were rigorously eliminated (to attend a non-ABA school, for example), the bar stats would go to 77% for 2009, just under the ABA average, a position that Southwestern occupied over many years in the past. If the bottom half were eliminated, our bar passage rate would exceed UCLA’s and UC Hastings’s, and rival that of UC Davis, USC, UC Berkeley, and Stanford. But that might be overreaching. We know anecdotally that Cal Western, McGeorge, and Chapman have intensified their attrition, with the predictable bar success.

Now, perhaps we should just not care about bar statistics. Sweep them off the table, and let’s relax. But the students who go into debt well into the six figures to complete law school might beg to differ with such laxity and casualness. We have an obligation to them to take bar statistics seriously. If this were Harvard, Yale, or Univ. of Chicago, the quality of the students might allow for such a devil-may-care nonchalance.  Well, actually not for the last. On the 2009 exam, the Univ. of Chicago bar passage rate in California was 79%. But our students need our assistance and expertise in maximizing the likelihood of success for those we graduate. That includes the merciful act of barring those with little chance of success, as demonstrated by the end of their first year at the latest, from continuing to graduation.

The administration is working hard to find ways to reverse these trends without resorting to much attrition, though after several years of contrary messages, there have been less than subtle hints that professors should grade poorly written and analyzed exams more strictly, especially in first-year courses. I wish the administration luck. I applaud those efforts, and I hope very much that they succeed. But I am doubtful that they will make significant strides in reversing the comparative decline without resort to significantly more attrition and a change in the curriculum to a more comprehensive presentation of substantive law to all students. Or at least to all those who are endangered, which means all those who get below a B in a rigorously graded course. In bar terms, a B- grade is effectively a D in the subject, and anything below that is effectively a Fail. Becoming a lawyer is training for competition and conflict. It often is a stressful profession. Yes, it that also often includes negotiation and transactions. But even then, the parties are to some degree in conflict of interest. These are not hugfests, and law school is not a training ground for kindergarten teachers. So we should not be afraid of introducing some stress and competition into law school. It focuses the mind wonderfully.

There may, of course, be other changes that might be made, for example, in regards to admissions policies. But the best overall predictor of success on the bar and as an attorney is performance in law school. So, I am not against a relatively lenient admissions policy. But it must be supported both by programs to help the students succeed and a rigorous culling of those who are not succeeding at the end of the first year. Being unsuccessful in the study of law is neither a personal failing nor a sign of stupidity. There are careers other than being a lawyer, for good people of above-average intelligence. But if law is the dream, it is possible to attend a non-ABA law school in California. So the school should not be unwilling to cut students loose and help them avoid going into massive debt, when they are in a group that has less than a one out of six chance of passing the bar on their first try. These are hard decisions, and academics and school administrators are notoriously unwilling to make hard decisions. Perhaps, in general, their personality traits are unsuited to the task. But it is our job.

The study discussed in the Times is implausible. As mentioned in the preceding post, if LSAT scores for those groups were nearly identical with those of Whites (and assuming the number of applicants has not fallen), the ideological liberalism and reflexive political correctness, as well as the lack of assertiveness to challenge the melanin-focused status quo within their peer group, means that law school administrators would be falling over themselves to admit Blacks and Hispanics. That leads one to believe that Black and Hispanic LSAT-takers continue to perform substantially less well than Whites and Asians.

Chief Justice Rehnquist and Justice Thomas in their dissents in Grutter v. Bollinger, the 2003 case that upheld the constitutionality of the race-based affirmative action program at the University of Michigan Law School, devastated the statistical basis for the Court’s decision to uphold the “holistic” program. They described it properly as a sham, a facade. Justice Thomas pointed out that none of the filings by supporters of law school affirmative action contain “any evidence that the purported ‘beneficiaries’ of this racial discrimination prove themselves by performing at (or even near) the same level as those who receive no preferences.” Moreover, in 1993, Blacks constituted 11.1% of LSAT takers (close to their proportion of the population), but only 1.1% of those who scored 165 or higher (out of a scale of 120-180). By 2000, they constituted 11.3% of the test-takers, and 1.0% of the 165+ scores. He correctly predicted that there is no reason to believe that this lag in performance will change within the next few decades. And the disparity in performance continues, though it shrinks, through the middle ranges, only to reappear, but in reverse, in the lower score ranges. Overall, the cohort of Black and Hispanic test-takers performs less well than do Whites and Asians. I emphasize again that I am describing overall group performance, not that of every individual Black or Hispanic student.

There are two consequences from this disparity in performance. First, the elite schools, seeking to maintain their “exclusionary” and “elitist” admissions systems, use a “faddish slogan” to attain a “racially aesthetic” student body (all in Justice Thomas’s words), rather than true educational achievement. Because these elite schools delve deeper into the ranks of “preferred racial group” applicants and admit people with lower academic potential, as measured by the LSAT, those students perform less well, on the whole, than their higher-performing colleagues from groups that lack the preferred racial aesthetic and have to compete more for admission. That, according to Justice Thomas, in turn requires the “aestheticists” to cover their tracks and “this cruel farce of racial discrimination must continue—in selection for the Michigan Law Review [a student honors program]…(noting the presence of a ‘diversity plan’ for admission to the review [similar to Harvard Law’s under which Barack Obama was selected], and in hiring at law firms and for judicial clerkships until the ‘beneficiaries’ are no longer tolerated.” Justice Thomas’s analysis is spot on, as this study by UCLA Professor Richard Sanders of the effects of affirmative action admissions at law schools and this Sanders study of the fate of law firm hires from racially preferred groups show. Blacks may get admitted to a school under an affirmative action program, but they are less qualified and perform less well overall than their peers from non-preferred groups at that school. They may get hired at a firm for “aesthetic” reasons, but, when push comes to shove and partnership decisions must be made, the reality of their actual or perceived inferior performance cuts them off.

The second consequence of the elite schools’ color palette fetishism and the resulting admission of lower-performing “preferred groups” is that lower-ranked schools have to dip deeper into the pool of applicants from such groups. Once more, then, such applicants overall perform less well than do applicants from other groups who are not as insulated from open competition. Indeed, abandoning affirmative action would not cause enrollment at such schools (unlike at elite schools) to decrease, because currently they replace their appropriately-qualified applicants who are lost to the elite schools with lower-qualified affirmative action admittees who would otherwise go to schools in a lower tier than they. Without admissions based on melanin preferences at the elite schools, Blacks would be competing with similarly-performing Whites at those second and third-tier schools. The quality of the pool might change for the better for such non-elite schools, but the quantity would not.

Of course, the latter still could simply abandon racial bean-counting, regardless of the elite schools’ policies. But school administrations are not known for choosing the sensible solution. Second and third-tier schools engage in the same ritual as the elite schools, and for the same reasons: The same ideological commitment to racial preferences, the same fetish for a melanin-based aesthetic, peer group pressure and search for peer group approval, and rules of accrediting agencies and governmental bodies.

It is undeniable that affirmative action then forces the more poorly qualified admittees into competition with better-skilled individuals, a competition that they disproportionately lose. That causes these candidates to take longer to complete a degree or to fail to get it altogether. It also means psychological shock and discouragement to people who might do just fine in an environment just a bit less challenging where they are among their intellectual peers. That demoralization itself can contribute to failure, all to satisfy the “enlightened” quest for the melanin-based aesthetic at the core of the school administrators’ ideological preconceptions and their personal needs for self-congratulation.

The distortion of affirmative action in terms of SAT scores is undeniable, as well. From the link to Robert VerBruggen three paragraphs above:

“After academic performance and demographic factors have been taken into account, black applicants are more than five times as likely as whites to be accepted at [elite] private schools, and 220 times as likely to be accepted at [elite] public schools. Asian applicants, meanwhile, are only about a third as likely as whites to get big envelopes from private institutions, and one-fifth as likely to gain admission to public ones.

“Putting preferences in terms of test scores, at private schools, blacks get an advantage, compared to whites, worth 310 SAT points (out of 1600), Hispanics an advantage of 130, and Asians a disadvantage of 140. At public schools, the authors present the difference in ACT points: blacks 3.8 (out of 36), Hispanics 0.3, Asians –3.4.”

The “academically correct” response to the inconvenient truths of the failure of affirmative action is to engage in various manipulations of the rules. The different success rates of different racial and ethnic groups and the performance gap between Blacks and, to a lesser extent, Hispanics on the one hand and Whites and Asians on the other must be due to some faultiness in the statistics. Or of the SAT. Or of the LSAT. Or of the bar exam. Therefore, those should be altered until they produce the right proportional result with no annoying gaps. Or, if the performance gap and the scores prove to be too stubborn as facts, those measures should be abandoned. Instead, we’ll substitute only interviews, or evidence of adversity overcome or of “true lawyering skills” such as empathy and cultural sensitivity. After all, according to this thinking, these bourgeois tests of merit don’t truly measure anything, or at least not anything valuable; moreover, “merit” is so illusive. Better to substitute a socially relevant set of criteria in this Maoist-type selection. That will produce the “correct” result.

To these good administrators, the cause for the racial performance gaps cannot possibly be personal choices and background, various cultural dysfunctions endemic to the group such as the comparative weakness of the Black family structure compared to that of Asians, the fact of being minorities in a school, or even possibilities so politically incorrect they dare not speak their names. Best, then, to change the tests that are used, as the University of California did with the SAT. Or, better yet, as the ABA appears to be getting ready to do, abandon the LSAT. A few months ago, there was some prominence given to a proposal from a pair of collaborators (one of them a former UC Berkeley law professor) to do away with the LSAT and to use “real” factors to predict how the applicant will do as a lawyer. Such “real” factors would include the predictable politicized considerations, such as empathy and commitment to the underserved. Presumably that would produce, by subjective selection, the “right” mix suited to a racial spoils system, never mind the educational merit. Since schools already consider such factors (however determined) as part of the evaluation process, the proposal is to rely on them exclusively instead of test scores. If schools nevertheless maintain exam grading integrity, these admissions are highly likely to produce comparatively poorly-performing students. They would still be weeded out by the bar exam. Thus, the next step necessarily would call for a change in the bar exam to reflect these new considerations. One then wonders why the bar exam should not be abolished. Or, for that matter, why there should be a requirement of completing an educational program at institutions regulated by a cartel-light structure such as the ABA, a requirement maintained by the legal profession’s leadership in many states (though not in California).

Reliance on undergraduate grade point average may continue, as that number can be manipulated by the applicant and the school. The manipulation may be through selection of a major that relies less on skill or knowledge (hard science courses) and more on attitudes and commitment (any _________ Studies course). Or, it may be through the different grading standards that might be applied at lower-performing (based on test scores) schools (such as Cal State Dominguez Hills) than at higher-performing schools within the same system (such as Cal Poly San Luis Obispo).

However stubborn the facts, one thing is clear. Professors enamored of their liberal-leftism, turf-and-grants-protecting interest groups within the professional educational establishment represented in various organizations, and administrators (happily) unwilling to buck either of them will see to it that fantasy will trump reality, ideology will control facts. So don’t look for any solutions that will actually benefit the “protected” groups while avoiding the injustice, social friction, and racial balkanization of affirmative action. Instead, look for continuing the melanin-based aesthetic that deals with appearance rather than substance, as is the wont in our post-modern academy.

Some other persons quoted in the article put the blame on the admissions personnel using LSAT scores rather than looking at the applicants’ “chances for success as lawyers.” According to that theory, the concern of law school deans about the U.S. News rankings drives the overreliance on LSAT scores. Why that would affect Black and Mexican-American admissions rates, if the study’s assertion that those groups’ LSAT scores are essentially the same as those of White applicants is correct, is puzzling. It is downright astounding, given the fetish that the overwhelmingly liberal law school administrations have, just like their counterparts at other educational institutions, to engage in racial profiling and bean-counting to maximize melanin-based diversity.

I have serious doubts about these findings. Let me start with anecdotal and impressionistic evidence based on personal experience. I have had quite a few charming, intelligent, competent, and eloquent Black students in my classes over the years. I have several now. However, on the whole, Black students have performed less well than their classmates. Assuming that my anonymous grading experience is no different than that of my colleagues (and there is no reason to believe it would be), the difference is enough to affect their law school grade point average. Performance in law school is a good predictor of bar exam success. Hence, the higher bar exam failure rate of Blacks is hardly news. Although I am not privy to those students’ LSAT scores, and even though, by itself, the LSAT is not a very good predictor of how an individual student will perform in law school, as a general tool LSAT scores (and even more the LSAT-UGPA index scores) are broadly predictive of performance. I would expect, therefore, that, on the average, the LSAT scores of our entering Black students are lower than those of White students. I have also heard from one of my colleagues on the Admissions Committee that racial preferences are a definite factor in the initial admission decisions made. This, too, would suggest lower entry scores on the whole for Black students (or racial preferences would not be necessary) than for their classmates, which, in turn, would explain the overall poorer performance of that group if the data for the school match those for my class (again, based on anonymous grading).

Lower academic qualifications at time of entry lead to lower performance in school (and, eventually, on the bar exam), which likely should lead to higher rates of disqualification. That is not necessarily so in the world of melanin-based preferences, as is reflected in my experience on the Academic Standards Committee. While I was on that committee, which has jurisdiction over the readmission petitions of academically disqualified students, there was more than one occasion when sentiment was expressed to give a Black student a chance to continue because of the effect his/her dismissal would have on the school’s racial diversity. Although each case was individually considered, race was definitely a factor in considering petitions for readmission. As I have not been on that committee for some years, I cannot say whether the same process now applies. But there is no reason to believe that it does not. If anything, the focus on racial diversity numbers has intensified over the last ten years.

Another colleague’s response to the Times article bemoans the study’s revelations and predicts that, within two years, the ABA will allow law schools to do away with LSAT scores. Even now, the ABA permits law schools to use other testing devices than the LSAT to admit students. In effect, this will allow schools to pick and choose scores that will justify their decisions to offer admissions on a racial basis. Students will not be subject to the same measurements. The reaction of the ABA and the schools is not surprising. It reminds me of the reaction of the University of California to the voters’ decision to bar, among other things, race-based admissions. The University undertook a strategy to avoid the strictures of the law through various subterfuges. One of those was to offer admission to the top 4% of each high school, even though that 4% might have lower SAT scores than non-qualifying students at other schools. This article accuses UCLA administrators of conspiring to avoid (and avoiding) Proposition 209’s racial preference ban and then covering up the actions by preventing access to the evidence that would expose such malfeasance.

A favorite method at schools who are not covered by the California state constitutional ban on racial preferences (such as private schools and out-of-state public schools) is to use race as part of a “holistic review” process. That approach theoretically requires each application (or at least all above a minimum level) individually to be looked at as a whole package. Objective criteria, such as performance on required admissions tests and grade point average, would count. But so would subjective factors, including economic difficulties or personal difficulties overcome (the result of which already has been to encourage each applicant to make himself or herself out to be a victim of something or other) and personal achievement (which leads to making mountains out of molehills of “accomplishments”). Finally, race/ethnicity can be blatantly considered, though, to make sure that most (though not all) Asian subgroups don’t get those spots any more than Whites do, the group must be on the approved list often characterized as groups “historically underrepresented in the profession.” A useful tool for this discrimination is the personal statement, though even a checkbox approach can be utilized.

The holistic approach is best used by professional and graduate schools, or by small colleges, as large undergraduate institutions do not have the manpower to engage in such a labor-intensive process. The Supreme Court specifically authorized such racially discriminatory preference policies in the 2003 Grutter v. Bollinger case, at least where each individual applicant’s file is considered under the holistic review. Since there is no set weighting of values—nor can there be, with such subjective factors as race and personal disadvantage—the whole process becomes a rather arbitrary set of judgments by members of the committee. Though the collegial process theoretically rounds the edges of arbitrariness, those edges do not disappear. Moreover, the process is less collegial than might appear, due to personnel constraints and the number of applications, as well as to political influence from members of the administration, as demonstrated in the dissenting opinions in Grutter.

In the next post, I am going to address some of the defects of affirmative action-based “solutions.”

Or so goes the complaint. First, I think that the student who alleged that no students read cases is engaging in hyperbole. Second, leaving aside a professor’s dull presentation style, a significant part of the universal problem of student inattentiveness today is the presence of wireless internet in the classrooms. Third, I don’t believe that, to the extent that a failure to read cases or an emphasis on rule memorization exists, this is unique or even more prevalent at our school compared to schools with a similar caliber of students. Whatever might be the case at Harvard, Yale, or Stanford, there is no reason to believe that our students are different from those at Golden Gate, McGeorge, or Cal Western, to pick a few. Nor is it likely that our professors in large numbers teach differently or cover different material. So it could be some statistical aberration. Or it could even have to do with some difficult-to-pinpoint factor such as cultural or economic differences (we are a very urbanized school that prides itself on an unusually high minority and immigrant enrollment), fatigue and commuting distances (our students also report that they study less than their counterparts), the foregoing study habits, or something odder still.

As a more general observation not focused on differences among schools, if students are not reading cases, but using study aids or canned briefs, that may be due to generational changes. People who graduated from college as recently as ten years ago had learned primarily by reading books. Electronic media were increasingly varied, but computers did not have the tremendous effect they have had on the development of learning and study skills of the students who have graduated from college since then. Computers, video games, and the expanding influence of TV arguably have led to a shortened attention span and a certain intellectual laziness. The ever-expanding law school enrollment may also cause people to go to law school who, in the past, would have pursued other, less intellectually demanding paths.

That said, there is always a tendency by an older generation to look back and exaggerate differences and extol the virtues of the past. There often is merit to that; but, often there is not. Perhaps I was a worse student than my colleagues were, but I used commercial outlines, Nutshell Series summaries, and hornbooks, as well as read the cases. So did my fellow students. We memorized the rules and used them on the exams. I still have some of my class notes and test preparation outlines. If the complaint today is that there is not enough deep analysis of underlying jurisprudential principles discovered through a close reading of case facts, the notion that, in our student years, we habitually engaged in thoughtful Socratic “unpeeling of the onion” and uncovered contract principles one by one under the gentle prodding of our professors or by rigorous debates among the students is nonsense. The latter actually did take place, but may have arisen out of frustration. That wonderful renowned scholar who taught the class too often had the oral presentation dynamics of the typical nerdy male of television comedy trying to get the attractive female protagonist’s attention. My first year section at Harvard Law School (before I transferred to Stanford later) had almost 150 students who were taught in large lecture halls. This was not a throw-back to wandering with Socrates around the streets of Athens finding Sophist blow-hards to slay with metaphysical arrows, all the while uncovering the truth that we don’t really know very much, if anything.

Another topic of pedagogical debate among my colleagues is the breadth versus depth of coverage conundrum. Should we sacrifice coverage of the various topics of, say, assignments and third-party beneficiaries in contract law in favor of deeper coverage of the remaining topics? As a constitutional law professor, this is an issue with which I have long wrestled. My life in that regard would be made a lot easier if the Supreme Court took a decade or so off for a well-deserved long vacation and stopped writing opinions. There is significantly more innovation in constitutional law doctrine than in, for example, real property. But I generally hew to the position that, in an introductory course, I should cover as much material as possible, and thereby to expose students to as much doctrine as possible. In an advanced non-survey course, or, even more appropriately, in a seminar, emphasis on deeper reflection and creative research is more justified.

Well, comes the response, students can get the doctrine through their bar review course. I don’t even know where to begin with that. First, even Harvard students may be taken aback if their core courses did not cover material the bar examiners expect them to know. And our students are (supposedly, based on test scores and college grades) not on the level of those Harvard students. I hasten to add that I have met many, many extremely accomplished students at my school. I always find it a particular pleasure of teaching to be associated with them, and I learn a lot from my exchanges with them. But I think it does a disservice to them to face the pressures of the bar exam with the added burden that what they are studying in the review is entirely foreign to them. I also don’t think it helps the school to have students believe, rightly or wrongly, that they have just spent over $100,000 in tuition so they can have a $5,000 bar review teach them legal concepts. If the professor covers the subject and the students fail to read the cases, the onus is on them. I have heard too many complaints from students (not just at this school) about the poor morale produced when too much material is foreign to them until a month or so before the bar.

Second, what kind of indictment of legal education is this? If students can just learn all the doctrine they need in a two-month bar review course, why not change the model of legal education to an old-style apprenticeship? The past becomes the future. Have students do a year or two of writing pleadings and points and authorities, learning legal research, and developing oral advocacy and trial skills. Our externship programs could drop the judicial externships and just focus on practical law office experience, perhaps in a more rational and systematic manner as is done in our two-year SCALE program. Students would get their license with a far more manageable debt burden. Such a program would eliminate the school’s concern about memorization of legal principles. Same for the students, at least until the bar review.

Third, the school has just initiated several remedial-type programs to help students with understanding of legal topics and exam-taking. These courses are not designed to help them contemplate more deeply the broader currents of the law. Nor is that the goal of the third-year bar review type courses the school has begun to offer. If that type of coverage is good enough in the third year (and intended, once again, to help primarily those at the lower end of the academic spectrum), why not in the first and second?

Fourth, if the problem is one of not having enough time to cover topics in depth while also covering the breadth of the material tested on the bar, why did we decrease the number of units for core courses, and make them elective? To be clear, constitutional law was not affected by that. But the point remains. If I had seven or eight units of constitutional law courses (which could be broken down into topic segments), I could cover the subject and spend more time on the cases than I can with the current six-unit weight. To address this issue, I would ask professors to review the material covered on the bar exam and have them determine how much time they need to cover that material to their satisfaction. I suspect that, if all bar courses were made mandatory, and professors were asked those questions, students would still have a third of their units available for writing, research, seminars, electives, and various clinical and other skills courses. True, they probably couldn’t spend quite as many units being judicial externs, but the reports I receive from students raise doubts about the consistency of quality of at least the non-specialized judicial externships.

It is ironic that the one program our school has, the two-year SCALE program, was originally set up in just such a fashion. The hand-picked students would focus on the development of practical skills, with substantive coverage a complementary objective. There was a sense that coverage would be learned at the bar review, and that students consciously and openly would have gaps in substantive knowledge leaving school. In exchange they would have more training in the practical aspects.

That is a hard system to maintain, as there are not a lot of students who truly want to tackle the challenge and uncertainty of such an approach and can be expected to be successful at it. As the program became more bureaucratized, and as the number of applicants who were truly adapted to such a program (self-starters who needed some guidance, but little hand-holding and nudging) declined, the push became more and more to standardize the program with the traditional curriculum, so as to accommodate students whose qualifications generally did not exceed those of traditional students. That push has become particularly strong in the last two or three years, often due to students who want the same opportunities at a cafeteria-style law school model (electives, summer abroad, subject specialization, transfer opportunities) as students in the traditional three-year program. Rather than a conceptual and pedagogical alternative, the program has come to be more and more of a merely temporal alternative, two plus years of study versus nearly three years for the traditional program. Rather than maintaining the model of disregarding substantive coverage for lawyering skills, that model has been abandoned as unworkable in favor of more consistent coverage.

I actually think that it would be beneficial to adapt much of the remaining practical approach of the second year of this “new” SCALE model to the traditional curriculum. I also think that the emphasis on substantive coverage in SCALE through its required courses is preferable to the more haphazard traditional approach. But, other than the period of completion, that now seems to be the main alternative of SCALE to other law school programs.

Returning to the complaint that students believe they need to memorize legal principles, I am not sure why this is bad. Their expressed perception may not be how they actually act. If they also analyze the facts of hypotheticals in addition to memorizing basic substantive principles, that may be the most that one should expect from the average student. After all, he or she aspires to be a craftsman in the legal trade, rather than a scholar of jurisprudence or even an appellate judge. I have found that students often are weak in applying the facts to the legal principles, but that is a matter beyond just discussing cases. Lack of skill in analyzing facts has been a problem for many students as long as I have been reading exams. The major difference that I have noticed over the years is a decline in the background necessary to understand many of the constitutional law or business law cases. There has been a deterioration in the state of knowledge of history, philosophy, political studies, and economics. But that is a function of the broader decline of core liberal arts education in many high schools and colleges, matters far beyond my control.

Be that as it may, given the time constraints, the subject matter of my course, and my obligation to my students to give them a grounding in a particular topic, I intend to continue to offer breadth of coverage in my survey of constitutional law. We still discuss many cases, some of them in great detail, others much more cursorily. I have hypothetical problems I ask. A few topics I address entirely through lecture. Each I typically introduce through a brief lecture. In a few cases, I am able to get more deeply into underlying doctrines and concepts that I introduce in my first several classes. Had I more time, I’d probably address more cases in more leisurely fashion. As it is, I have found this balance to work overall, though the fast pace of the course forces students to work more diligently.

I have asked my students about these matters. What I have heard so far tells me that students do read the cases. They certainly try to read them. And they prefer breadth of coverage in a survey course, even though it makes the experience more intense. The anecdotal evidence gathered from those students of course may be only a statistical aberration. It may be just a self-selected group of the most committed students who have responded. Or, maybe I have communicated to students what I believe, only to scare off those students who disagree. That is why I plan to continue to extend the invitation to students to talk to me about their opinions. Ultimately, as a professor I have to do what my years of teaching tell me is best for the students. But I want to make those decision on the best information I can have. So, at least for now, I am going to continue to believe that students read most parts of most cases and that they do, in fact, want a broad exposure to the topics of constitutional law. And I continue to encourage my students to let me know their views on this topic, as it is their education that is at stake.