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Why you should care that law schools are close to flunking COVID 101

Wednesday, January 27, 2021 @ 11:20 AM | By Felicity Radan


Felicity Radan %>
Felicity Radan
At the risk of sounding cliché, the COVID-19 pandemic has changed the way we think about the practice of law and has accelerated the shift to online work dramatically. Despite the profession’s stubborn reluctance to change this year saw entire firms shifting online overnight and enormous progress in open conversations about work/life balance. The profession may not be quite as incapable of change as we may have thought last February.

With this in mind, I suggest that it is time to rethink law school grades and the way firms recruit new lawyers and law students.

As this point you are surely asking yourself, “why on earth should I care about law school grades?” The simple answer is that firms are missing out on good talent. The more complicated answer is that the values and integrity of the profession depend on it. These realities are only exacerbated by the pandemic, where these systems have encouraged and rewarded widespread cheating.

As anyone who has sat through a law school exam is well aware, they are a special kind of torture bearing little resemblance to the practice of law. Despite this, the profession continues to measure the merit of law students almost exclusively by the letters on their transcript, which are the result of a tight bell curve and 100 per cent finals.

For those who have been successful in the profession, it is difficult to admit that they way we do things might not make sense. This would require recognition that the law is not the pure meritocracy we like to imagine. It is time to set aside the ego and recognize that the study and practice of law does not exclusively reward intellect and hard work; it is a carefully calibrated system that advantages certain kinds of people and disadvantages others. A candid look at the upper tier of the profession makes this immediately obvious.

If we disabuse ourselves of the notion that success is based entirely on merit, we can begin to have an honest conversation about many things including the law school grade curve. Like many other parts of the profession, the curve benefits a certain kind of person. In this case, the kind of student who can think and type extremely quickly, who doesn’t suffer from any anxiety, and who can spot issues in an absurd hypothetical fact pattern in the space of three hours or regurgitate the intricacies of the dreaded rule against perpetuities.

I don’t mean to suggest that those who do well on law school exams are not intelligent or that they do not possess skills that will be valuable in practice. My gripe is that nobody wants a cohort of colleagues made up entirely of fast-typing speed-thinkers. The other values and skills that would round out a practice group are systematically overlooked and devalued.

Firms should also look for deep thinkers, creative minds and those who are gifted at pulling a team together and coaxing the best work out of everyone around them. By relying so heavily on the grade curve, we undervalue excellent candidates who may have different qualities and backgrounds — students who don’t necessarily shine in a law school exam but would nonetheless bring enormous value to a firm.

Beyond missing out on valuable talent, the over-reliance on the law school grade curves teaches students that integrity doesn’t matter, unethical behaviour is encouraged provided you don’t get caught and that the practice of law is a zero-sum game where building up your colleagues is only going to hurt you in the long run.

This is perpetuated when the false meritocracy surrounding grades eventually turns into a similar obsession with billable hours. The burnout and resentment for which our profession is so well known is engrained from the very moment we step into a law school classroom. I ask you to think critically about whether that is truly a good thing.

We’ve all heard the horror stories of pages ripped out of library textbooks and any number of other horrible things that law students do to one another. I don’t know whether that urban legend is true, but the reason it has such staying power is that it is well within the realm of possibilities.

I have personally had to administer first aid to another student having a seizure in the law library because they were so desperate to keep up with the curve that they turned to a cocktail of drugs just to keep studying. Any reasonable person looking critically at a profession that incentivizes these extremes would immediately recognize that we are valuing the wrong things.

It does not necessarily have to be law firms that take the lead in this shift. If the best schools in the country changed their grading systems tomorrow, it is not as though that year’s graduates would all find themselves unemployed. Unfortunately, it has become clear that law schools refuse to model leadership in this area. Concern for hiring statistics in order to justify ever‑increasing tuition has blinded schools to the fact that their grade curve actively engrains a warped system of values in their students. This has been exacerbated by the pandemic.

In March, many schools switched to a pass-fail system in recognition of the fact that it is practically impossible to deliver high quality education on Zoom, and with students writing exams from home there is no way to maintain the integrity of the curve. After all, how could a parent-turned-homeschooler with a toddler screaming in their ear during an exam possibly be judged on the same curve as their peers? Yet, while these were apparently compelling considerations in March, the exact same problems warranted absolutely no meaningful changes to the delivery of course material or the grading curve in the fall semester.

Even more absurdly, schools have set up their exams to reward large scale cheating without any accountability mechanisms. Exams are written from home where students are not supposed to use the Internet, and where they receive exam questions ahead of time but are told not to read them until the exam begins. However, there is absolutely nothing in place to monitor these rules. Upon learning that many students were planning to cheat, my school outright refused to so much as send a clarification e-mail discouraging this behaviour. Since then, many rumours have spread through the grapevine of widespread cheating up to and including students asking their lawyer parents to write their exams. When confronted directly with these concerns and rumours, the school made no changes or clarifications.

This exam period has filled me with frustration and anxiety. As I worked through problems designed to be time-limited, I was fully aware that my classmates will do better having used the extra time. Anyone who has written a law school exam can attest to the value of even a little bit of extra time or the ability to do a quick Google search. I personally approached these exams as if it were a normal year but was shocked to find that my conviction not to cheat was incredibly unpopular. Throughout this exam period I was repeatedly told by other students that I was stupid not to cheat when I will be graded on a curve against classmates who would, particularly as there would be no way for the school to know.

It has been extremely disheartening to see the near-consensus among law students that doing the right thing simply doesn’t matter when there is no chance of getting caught. Call me an idealist, but that has been a hard pill to swallow.

But more importantly, I resent my school and my profession for putting me in this position in the first place. It has been engrained in me from day one that my value is measured first by my grades and eventually my billable hours, and that my integrity and desire to help my colleagues is not only neutral but something to be counted against me. Further, I struggle to see any intellectual consistency between the belief that the curve is so essential that we cannot possibly abandon it and the use of procedures that encourage cheating with no mechanism for accountability.

While I wrote this piece to demonstrate that there is no value or integrity in law school grades in 2021, I hope that it also gives you pause to question whether this way of evaluating students is sound, even in the best of times. Students should be able to look to the profession and know that they will be valued rather than penalized for refusing to cheat or for helping to build up our colleagues in lieu of tearing out pages of their textbooks.

I appreciate that recruitment is difficult, and it is helpful to have some way to narrow the field of applicants. I suppose my question for you is whether convivence is really worth desensitizing young lawyers to ethical breaches and suggesting that there is no value in distinguishing between doing the right thing and not getting caught?

Felicity Radan is a JD candidate at Osgoode Hall Law School. Prior to attending law school and resigning herself to life in front of a computer she completed undergraduate and graduate degrees in the health-care field. You can e-mail her at felicityradan2018@osgoode.yorku.ca or contact her on LinkedIn.

Photo credit / zubada ISTOCKPHOTO.COM

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