The Trouble with Law School Grades

Screenshot from The Paper Chase

While valuable on an exam, memorization isn’t necessary to be successful in a legal career.

By: Stephen Edwards, 3L
Staff Writer

In the classic law-school film The Paper Chase, there is a hapless character named Kevin who simply can’t wrap his mind around how to succeed in law school. Kevin is blessed with a photographic memory: he has the uncanny ability to recite verbatim passages he read months, even years in the past, including the case law he reads as a 1L at Harvard Law School. In spite of his gift, Kevin soon finds that law school poses insurmountable difficulties for him. Kevin’s trouble is with legal reasoning: no matter how exact his memory of given legal principles, he fails utterly at applying them to fact situations. Kevin eventually becomes so depressed by his inability to “think like a lawyer” that he attempts suicide in the middle of his first semester.

The unseen irony of Kevin’s tragic predicament is that at any real law school in the present day, he would almost certainly be the valedictorian of his class. Rote memorization is the most important skill one needs to succeed on a law school exam. It is not the skill that defines the best practitioners, yet law students see their academic fortunes and, by extension, their career prospects rise and fall based on their ability to regurgitate memorized legal principles in four-hour typing marathons we call “exams.”

The primacy of memorization is inherent in the concept of “issue spotting,” which is the governing idea behind most law school exams. To make an exam, a professor will write a fact scenario to which she believes a certain number of legal principles apply. Then the professor makes a rubric that lists the relevant principles and assigns a certain number of points to each one. Students earn points on this rubric if they correctly identify, or “spot,” the principles that apply to the given facts.

Professors’ exam rubrics also allocate points for the strength of students’ “application” of principles to facts. But under the current system, a student’s performance in this area almost never decides the grade he receives. In this context, application means argument—one applies legal principles by making an argument that they lead to this or that outcome in a particular fact scenario. Everyone knows, and some professors candidly admit, that as long as an argument on an exam is tenable—that is, as long as it passes the Con-Law rational basis test or would fail to give rise to a malpractice claim in real life—it will receive full points. The upshot of this to certain students is that the finely-crafted, imaginative argument you wrote on Question 1 means nothing when your classmates know how to plow forward and hit all the point-yielding spots later in the exam.

One can see how this arrangement rewards memorization ability above all else. If the strength of one’s argument barely matters, one achieves maximum points by spotting as many issues as possible. Sadly, the most effective way to do this is to cram into one’s brain every single rule and its attendant minutiae from every last case assigned throughout the semester, and then indiscriminately disgorge this information in a flurry of words on the exam. The resulting product only has to be marginally defensible, in terms of argument; it literally behooves you to spit it all up, and quickly.

Not only is this process intellectually shallow, but it also bears little resemblance to the skills one actually needs to be a good lawyer. The ability to spot issues is only the surface of real legal problem-solving. When a client comes to your office and relates to you her story (i.e. gives you a fact pattern), it is admittedly valuable to be able to recall the wide variety of doctrines that might apply to her situation. At this moment, a lawyer thinks like a student writing an exam: a mass of potentially relevant principles and cases crowd into the lawyer’s mind and provide guidance as he advises his client.

Screenshot from The Paper Chase

While the character Kevin in The Paper Chase didn’t succeed in the movie, the reality is
that his one-track skill at memorization would give him in an edge in a real law exam.

But these conversations are merely a prelude to the thorough, research-intensive process that actually solves client problems. This, of course, is the process of using the applicable law to craft an argument that will persuade a judge or jury. Winning legal arguments are not composed hastily; they are the fruit of hours of research and painstaking attention to detail. In short, they look nothing like the word-vomit we smear onto the pages of our exams. They say the lawyer’s craft is one of words; if this is so, lawyers who use words as haphazardly as a student taking a law-school exam are bad lawyers.

I have seen this principle manifested in my summer experiences away from law school. On many occasions, I would walk into an attorney’s office to discuss a new assignment, and he or she would hand me the opening pleadings filed by opposing counsel while wearing a grin tinged with schadenfreude. “Good luck with that,” the attorney would say. “The plaintiff’s counsel just sort of threw everything he could think of against the wall to see what would stick.” So, you’re saying this lawyer cobbled together a series of thinly developed arguments based on a grab-bag of tangentially relevant legal principles and decided to call it a day? Sounds like this lawyer wrote a law-school exam; it also sounds like he didn’t do himself any favors, professionally speaking, by using this method.

Despite all its obvious flaws, the current regime of law-school examinations might be justifiable on administrative grounds. Perhaps its crude methodology is the best that can be hoped for in a landscape where “small” law schools like W&L still have many classes with over fifty students in attendance. Without the addition of an army of teaching assistants and/or a significant reduction in the amount of time spent by faculty on their scholarship, grading students based on assignments that more accurately reflect their ability to practice law, such as brief-writing assignments or oral arguments, would be totally impracticable.

But here is another problem with our current system: no one even bothers to make the above argument, or say anything at all in defense of the way we do examinations. Every professor I’ve ever talked to about law-school exams has admitted their shallowness, as well as the fact that they simply fail to capture some students’ actual knowledge of the law. The prevailing attitude among students is one of dull resignation: this is the way it works; employers judge you based on your grades; shut up and put up.

If we are going to call ourselves an institution of higher learning, we shouldn’t be governed by inherited, unexamined practices that nobody bothers to defend. I may be idealistic in supposing that law schools can do better than the current system, but it is simply wrong that no institutional conversation exists about this important issue. As members of this school, as members of a community dedicated to learning, we ought to be thinking critically about the current examination system that undergirds so much of what we do. I submit that critical reflection reveals a broken, unfair system; but then again, I could be wrong.

Categories: Features