Spinning Law School Grades

I had missed the original article, but a letter to the editor brought my attention to the discussion of Elena Kagan's first year law school grades. The author of the letter argues,

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.

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.

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.

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.

We Already Knew She Was On Law Review....

Almost a decade ago, David Brooks attempted to brand bookish Princeton students as "Organization Kids"¹, speculating that they came from homes with highly structured schedules of activities, leading to college schedules that "sounded like a session of Future Workaholics of America". Recognizing that not everybody goes to Princeton, in order to get some balance for his piece Brooks went to... Harvard. Yeah. One of my brothers was at Michigan State University at that time and he was a different sort of "Organization Kid", I suppose - he organized quite a few raves.... David, you need to get out more.

Brooks returned to that subject in relation to Elena Kagan, reminding us,

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.

Let's see.... Elena Kagan did graduate from Princeton, but in 1981. So either she was way ahead of her time, or Brooks was about twenty years too slow on the uptake.

I was reminded of the Brooks column as I chuckled at parts of a recent New Yorker column by Ian Frazier. If you've been exposed to law students, particularly the high achievers who go on to elite clerkships, you are probably more likely to chuckle at the picture he paints of Supreme Court Clerks, nervous about their presence at an event in the White House Rose Garden, instructed by Justice Stevens not to worry and to "Just keep your eyes on me, and do exactly what I do." But unbeknownst to the law clerks, a bee crawled into Justice Stevens' collar,

A few minutes passed before Justice Stevens became aware of the bee under his shirt, just at the base of his neck. In an attempt to dislodge the insect, the Justice raised his right shoulder, then his left. Faithful to our instructions, all twenty-six of us clerks immediately did the same. The tactic had no effect, however, so Justice Stevens repeated it, now moving alternating shoulders up and down more rapidly and jiggling his arms. None of us clerks quite understood how these gestures could be necessary for the ceremony, but, trusting implicitly in our kind mentor, we moved our shoulders and jiggled our arms just as he had done....

Looking over his shoulder as he shimmied uncontrollably across the Rose Garden lawn, he saw twenty-six clerks shimmying behind him, and in a near frantic attempt to get through to us began to wave his hands back and forth and cry, “No! No! Quit copying me!” We, assuming this was just part of the drill, waved our hands and cried, “No! No! Quit copying me!”

Returning from the world of fiction, back during my undergraduate days I heard a professor at a blue collar state university comment that he didn't like to teach honors students, because they were too afraid of being wrong. But you know what? You are probably going to do better at law school by reflecting your professors' ideology back at them, than you are by challenging your professors' ideas. 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.

Kagan was strategic? She was effective "at playing her cards"? She avoided disclosing her ideology? And... yes, she made law review, served as Supervisory Editor, and graduated magna cum laude. And I could picture her doing the "bee dance" at a White House event, not because her background makes her different from her peers, but because it's anything but atypical.

In a big picture sense, Kagan's not a big mystery. She's openly aligned herself with the Democratic party and the political left. She clerked for Thurgood Marshall. She worked for the Clinton Administration and the Obama Administration. To the degree that she's circumspect, it's primarily been by avoiding a public record on litmus test issues.

Picture a columnist for the New York Times who is associated with a political party and ideology, but who avoids writing on the hot button issues. Who is instead known for taking the party's message and trying to massage it into something that seems more moderate or centrist, while fastidiously avoiding the issues where that's not possible. Who do you have, if not David Brooks. I can't help but wonder if his closing,

She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

is meant as a laugh line.
----------
1. I understand why syndicated columnists want to inject certain words into the popular discourse - "the world is flat", and all that - it helps build their brand. But it's annoying, and if it hasn't caught on despite years of repetition, perhaps it's time to give it a rest. Or if you just can't let go, take ownership and stick a little "™" symbol after each use to emphasize the proprietary nature of your phrase.

"In Touch" is One Thing....

Kathleen Parker reminds us,

President Obama has made clear his desire to nominate justices who are in touch with "ordinary Americans."

Then complains,

But the president adheres to the ordinary-people principle, and so the question must be asked: Does Kagan meet the standard? She may have other qualifications, including her willingness at Harvard to invite conservative scholars to her faculty. But a New York City girl who attended a prep school, Ivy League colleges and law school -- who once barred military recruiters from Harvard's recruitment office and was an adviser to Goldman Sachs -- can't be characterized as anything close to mainstream America.

Talk about a giant leap. No, Kathleen, it is not necessary to apply the, "Which Presidential candidate would you rather have a beer with" test to the Supreme Court... That would be a bad idea, and it's not what anybody could realistically infer from the concept of being "in touch" with ordinary people.

The type of personality that is drawn not only to a career in law, but a career path that is at all likely to lead to the Supreme Court, is not the type of personality that you're likely to find on a neighboring bar stool at your favorite watering hole. Parker knows this. But rather than addressing the reality of the situation, she chooses to be part of a noise machine. In comparison to recent appointees, based upon their paper records and my impression of their personalities, I would venture that both Kagan and Sotomayor are a lot more approachable and a lot more attuned to the lives of everyday folk than are Alito and Roberts. In a sense, sure, that's damning them with faint praise, but help me out here, Ms. Parker - where can I find somebody who has a strong law school record, made law review, clerked for a federal appellate judge, clerked for a Supreme Court Justice, entered academia, became a federal judge, scholar, or (for goodness sake) Solicitor General, and did so walking hand in hand with the common folk?

Way back when I was in law school, I recall a professor speaking somewhat longingly of the job of Solicitor General. He saw it as the closest thing to being on the Supreme Court - an intensely academic job focused on Supreme Court practice. Despite the potshots others have taken at Kagan's intellectual record, Eugene Volokh (who would certainly prefer others for the job) finds it solid. Which is about what you would expect from a Supreme Court nominee, but... no, not something you find from your pal at the neighborhood bar. "Didja catch that sports game?" "Oh, man, I wanted to see it, but I had to revise my law review article."