By: Connor Thompson
The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or UA Little Rock.
In Spring 2020, the majority of law schools adopted pass/fail grading schemes as a response to the initial onset of Covid-19 disruptions. Despite the coronavirus pandemic being worse in the United States now than it was at that time, law schools have largely reverted to the status quo as far as grading is concerned. I’d like to know what was so great about the status quo. My contention is that the conventional structure of legal education has never been much to celebrate.
The title of this essay is “A Structural Critique of Law School” because the problem with law school is indeed a problem at the level of structures rather than individuals. Individuals, by and large, act in good faith within that structure. My purpose here is to examine the structure of legal education (and, by extension, the profession) and point out what I contend are its pernicious effects.
Law school rankings, to be justifiable at all, depend on the idea that there is a uniform standard of excellence in the profession. Every student is graded on a curve against every other student at one’s stage in the three-year journey. Having one’s GPA be a data point on the right-hand side of the bell curve confers privileges that exclude those whose GPAs fall in the middle or on the leftward tail.
My argument is that there are many forms of excellence in legal practice, but conventional legal education privileges a narrow form of excellence totally out of proportion with its representation in practice. Further, this privileging of a narrow form of excellence redounds to the benefit of corporate interests, is exclusionary in its effects on non-white, low-income, and first-generation students, and makes almost everyone miserable.
Certainly, a baseline standard of competency is required in legal practice. I am not arguing against essential standards when it comes to the fundamentals of doctrine and skills like research and advocacy. But legal pedagogy could be improved if those skills-based competencies were more fully integrated into every aspect of the curriculum. Instead, conventional legal education has students believing that the key to becoming a competent lawyer is the ability to take tests (LSAT, law school exams, bar exam) and make recitations upon demand. It’s simply not true, and with a little imagination we could devise a better, more inclusive alternative.
In K-12 education, “teaching to the test” has been a common criticism of the post “No Child Left Behind” era. But law school “teaches to the test” far more than any elementary school. The diploma privilege movement, born out of legitimate concerns about safety in a pandemic (which the Arkansas bar examiners largely ignored in July), has law students all over the country asking why we tolerate the bar exam as the profession’s gatekeeping mechanism. Consider this: why is knowledge of wills and trusts considered to be an essential legal competency and not, say, immigration procedure or civil rights? The bar exam, through its choice of topics, privileges monied interests, and by making those topics the essential competencies, forces law students in a particular direction at the exclusion of other – I would argue, equally worthy – topics.
Rankings, similarly, are for the benefit of large firms. Pinning a ranking to a student makes recruitment at large firms easier. And large firms serve corporate interests. I would rather envision a system where corporate firms might have to work a little harder to make recruiting decisions, but students are not left thinking that their self-worth is pegged to an arbitrary number.
Depression and substance abuse are at epidemic levels in our profession. This begins in law school, where the ranking and grading system senselessly pits all students against one another. The implicit message is that in order for you to succeed, someone else must do worse. But the legal practice, even with the adversarial system of litigation, is highly cooperative and collaborative. Why not instead train students like lawyers and teach them how to treat their colleagues with respect and dignity? Eliminating the curve and rankings would do wonders in this direction, I believe.
Finally, we wring our hands over why the profession remains overwhelmingly white, male, and privileged. I contend that this is because legal education rewards narrow skills that have historically been dominated by white, male, privileged people (like myself) at the exclusion of others. This is a deep issue that gets at even larger structural issues of exclusion and racial injustice that cannot be justifiably summarized within the confines of this essay, but I think the profession should do the hard work of looking at how the way we teach the law fits into that bigger picture.
I want to see a system of legal pedagogy that permits each student to thrive on his or her own terms, rather than assume a uniform standard. I believe we can still teach essential competencies without resorting to senseless and pernicious competition. And I think the profession would be happier and more representative of our country’s diversity as a result.
 And Yale Law School recognizes this fact by not ranking or grading students at all – there, it is simply assumed that everyone will get a great job and so they need not debase themselves with anything as vulgar as grades and rankings: “Our current grading system does not allow the computation of grade point averages. Individual class rank is not computed. There isno required curve for grades in Yale Law School classes.”