Fresh out of lively liberal arts programs, especially brilliant students, taking their first law school exams, tend to digress into historical and philosophical explanations of the controlling legal rules. The Bs and B-minuses teach them to jettison all of that, and to write only what a judge will need to read to decide the case presented by the exam’s hypothetical.From my own law school experience, I would take great issue with everything past the first sentence. In my experience it's true that, for a variety of reason, many very bright, engaged students can get grades that don't reflect their capacity. Some expect difficult material to come to them quickly and easily, and get tripped up when it does not. And it's likely true that some suffer for pursuing tangents or ideas that are somewhat afield of what the professor was trying to get at. But many suffer for the sin of writing what they actually believe, as opposed to what the professor wants to hear. The biggest lesson for a lot of bright law students in their first year is that they'll do better by anticipating and catering to their professor's philosophy of law.
The finest legal minds therefore often surface in the second semester, and thereafter. The arc of Elena Kagan’s grades, close to impeccable after the first Harvard Law School semester, shows her intellectual mettle.
There are some professors who are quite objective, both in how they structure their exams and how they grade them. Some legal subjects are better suited to objective examination, and some professors are more inclined toward objectivity as a matter of personality. The most dangerous professor is perhaps the one who reassures the class, "I don't take ideology into account while grading papers - I look only at the strength of the ideas." Why? Because professors who actually do that don't make their students nervous that they won't. But more to the point, the almost inevitable consequence is that the student who writes from a different perspective will be marked down, not for "disagreeing with the professor" but because in the professor's eyes the student's theories are inferior or incorrect. I have previously commented on this phenomenon:
A classmate who graduated with a very high GPA left one of our finals chuckling about some of the things he wrote on the final - what sounded to me like crude parodies of the law professor's philosophy. He got an A+. He had not been afraid to speak his mind in class, and his politics were pretty much the diametric opposite of the professor's, but he knew not just to keep his head down for the exam but to take obsequiousness to an entirely new level. I don't believe for a second that even with the same exam, absent blind grading, he would have received the same grade.Sorry, but the idea that law school exams - or at least the majority of the exams I took at law school - taught me to hone in on what a judge might want to hear is simply incorrect. Law school requires a type of analysis that is certainly helpful when analyzing and presenting legal issues in court, but if I wrote appellate briefs with the type of analysis required by a law school hypothetical... ouch.
I knew more than a few students whose grades rose considerably during their second and third years of law school, but none of them argued to me then or now that this was because they were learning "to write only what a judge will need to read to decide [a] case". Some were highly selective in the professors they chose, preferring those known to grade on a higher curve or with whom they had previously obtained a high grade. Others learned to hone in on the professor - what are his interests and beliefs - and to write exam answers that catered to the professor. Few did so to the extent of the A+ student I previously mentioned, but that guy was a master of the art of reading professors. Most law students are mere mortals who might be thrilled to do better, but are content to get an A.
I think Kagan's academic record prior to law school amply demonstrated her "intellectual mettle". I suspect, though, that her first year was more of an adjustment to the realities of law school - that she could not expect to knock out a professor with her brilliant mind - and that she learned when it was necessary to shape her answers to suit the professor even though her personal beliefs were different.