Paul L. Caron

Friday, May 10, 2013

Law Prof: Let's Scrap the 'Gentleman's C'

CWall Street Journal Law Blog:  Law Prof: Let’s Scrap the ‘Gentleman’s C’:

Law schools should embrace grade inflation, says Professor Joshua Silverstein of the William H. Bowen School of Law. In a forthcoming paper in the University of San Francisco Law Review [A Case for Grade Inflation in Legal Education], Mr Silverstein makes the case for why law schools should substantially eliminate C grades and raise the minimum cumulative GPA for good academic standing to a B minus.

Joshua Silverstein (Arkansas-Little Rock), A Case for Grade Inflation in Legal Education:

This article contends that every American law school ought to substantially eliminate C grades by settings its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.


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Let me start with a few comments on Ben's two most recent posts -- 1:12 a.m. and 11:04 a.m. on May 12.

Re. the 1:12 a.m. post, just one thought: If employers didn't care about absolute grade levels, grade inflation wouldn't be necessary for market fairness. But unfortunately virtually everyone (not just employers) cares about absolute grade levels.

Re. your 11:04 a.m. post, as I said in an earlier post, there is a surprisingly strong correlation between law school grades and professional success. Beyond that, I don't want to get too far afield from grading issues. But I will offer a few, quick thoughts. First, the notion that law schools are primarily focused on appellate advocacy is a myth. Second, most law professors did practice law. And many still do. Third, on the whole, law schools do an excellent job at preparing their students for the practice of law. We could do better, to be sure. But, in my opinion, a very large percentage of the criticisms of legal education are unjustified. For more on my views on the topic of reform in legal education, see my ABA Task Force comments, linked in one of my prior postings.

Graduating 3L asked two questions. In response to your first question, the bar exam only attempts to assesses minimum competency, not degree of competency above the minimum. Moreover, the bar exam is not a good indicator of minimum competency. As I explained in my ABA Task Force Comments, again linked in an earlier post, I think we should eliminate the bar exam entirely. I believe it does far more harm than good.

Re. your second question, I disagree with the premise: I don't think the psychological harm and damage to job prospects are so bad that they completely ruin careers very often. They do alter careers frequently; and they do ruin careers sometimes. That is worth remedying. But I don't think the damage is quite as bad as your question appears to suggest. And whether one's legal career is damaged or ruined, the only choice is to make the best of the situation. That could mean opening one's own practice, moving to a new location where there are more opportunities, changing practice areas, or even leaving the legal field. The precise path a particular person should take is too individualized to offer more concrete advice than that.

Posted by: Joshua Silverstein | May 12, 2013 3:17:52 PM

I have two questions:

Isn't it the Bar Exam, and not a student's GPA, that determines fitness/capability to practice law?

Second, what then should those psychologically harmed and job-prospect-damaged graduates do with both a career that seems to be over before it began, and often significant student debt?

Posted by: Graduating 3L | May 12, 2013 1:42:51 PM

If only law school grades reflected on the capacity to practice law.

Law school grades reflect, at best, how to write an appellate brief. Unlike medical school or other professional schools (or academic programs) law school has one exam: 100% of a student's grade, with all of the student's future employment prospects tied to it, with 5% of the students getting an A, 10% getting a B+, and most students getting a B or a C.

There usually will be a handful of superior students who get the high grade they deserve and a handful of inferior students who get the low grade they deserve. The rest, meaning almost everyone, comes down to matters that do not relate to the capacity to practice law. But that small difference between a B and a C changes the entire professional future of half of the class. Hint to students: chose an area of the law you like and in which you can make a living, and learn to network really well.

Too often, to earn a B, it comes down to telling the professor what the professor wants to hear in the form that the professor likes. The professor has usually never practiced law, has expertise in a small sub-set of the law, and, like most people, has significant personal bias. Hint to students: read the professors' writings and study prior exams, if available.

Now, if the workplace could have its own exams and specified standards, it would be great. But imagine the lawsuits...

Posted by: Ben | May 12, 2013 8:04:04 AM

Josh: yeah, was absolutely teasing you about the academic paper inflation.

"So in law school everyone is above average?"

A grade isn't a percentile ranking, it's an indication of some level of mastery of material. So a C simply doesn't mean "average", it means "the student demonstrated competence that was worse than B and better than D."

And since people who don't meet the arbitrary minimum are flunked, they don't get counted. Thus, you're only counting a tiny minority who can not only get into law school, but can pass, so they are not just above average, but on the tiniest tip of the curve.

What the authors are trying to improve is the extent to which an individual's cumulative GPA estimates that individual's mastery of their chosen field of law. And I think that the authors make a compelling case that some universities are using different methodologies, and an obvious source of these differences will make the estimation more accurate.

Say we had an oracle grader that knew the "true" grades of the population of students. And say we translated the oracle's grades to fit our 0 to 4 scale, and plotted them.

I suspect that if we looked at individual classes and compared oracle grades vs assigned grades, they would track pretty well; it's a discrete body of material and the professors have very clear indicators as to whether a student has mastered the work.

But institutions have very different faculties, student bodies, administrations, etc. Cumulative GPAs are thus attempting to measure the result of a fairly complex multi-year endeavor. If we compared assigned grades to oracle grades, I suspect we'd find that assigned grades are a very poor estimator of true grades. But even if we had the oracle's grades, all it would tell us is, "overall, this one was better", still throwing out all the details of why and how one person is better than another.

Posted by: Ben | May 11, 2013 10:12:54 PM

Yet more thoughts from the author.

In response to Jack Squat Bupkis, I expressly note in my article that raising grades will not increase the number of jobs for law graduates. Rather, the purpose of my proposal is to more fairly allocate the jobs that are available. See page 509 of my article.

In response to John Skookum, I very much like the idea of national grade normalization, but I would set the level higher than you and I would implement a mandatory mean, not a mandatory distribution. See my article In Defense of Mandatory Curves, cited in my prior posting, for more on my views on grade normalization.

Fred wrote: "So in law school everyone is above average?" Fred, you make the fatal mistake of believing that grades have objective meaning. In particular, you falsely believe that A and B necessarily signify "above average." This is plainly not the case. See Part IV.A. of A Case for Grade Inflation.

In response to Tax Attorney, for a recent study indicating that grades are surprisingly powerful predictors of long-term professional success, see the paper by Sander and Bambauer, available here:

Douglas Levene wrote: "Absolute grades don't matter so long as the school is transparent about the curve used so that employers can determine the class rank for each student." Oh how I wish this were true. Unfortunately, the evidence overwhelmingly indicates otherwise. Hence the need for my proposal.

In response to WillBest, raw bar scores are virtually useless information for numerous reasons; most importantly, the bar exam is a poor proxy for student learning. For sources outlining numerous problems with the bar exam, see FN 143 on page 514 of my article. Next, I generally oppose pass/fail grading on a whole host of grounds, but there isn't room to explain that here. Finally, your point about restructuring legal education is beyond the scope of this discussion. But if you are interested in my thoughts on that topic, please see my comments posted at the ABA Task Force website here:

Once again, thanks to everyone for the detailed comments. I'm quite enjoying the feedback and discussion.


Posted by: Joshua Silverstein | May 11, 2013 9:50:10 PM

Alternatively just move to pass/fail and publish the raw Bar scores. And allow for 3rd party specialty certification as exists in the engineering and technology fields. Oh also reduce law school to 2 years + 1 year residency

Posted by: WillBest | May 11, 2013 5:43:19 PM

Absolute grades don't matter so long as the school is transparent about the curve used so that employers can determine the class rank for each student.

Posted by: Douglas Levene | May 11, 2013 5:38:45 PM

I honestly can't remember the GPA of the 4 law grads I hired over the two years.

Seriously..GPA as indicator of success at a job? A job that (post big-law) is totally different than being than a law student?

Posted by: Tax Attorney | May 11, 2013 5:21:02 PM

So in law school everyone is above average?

Posted by: Fred | May 11, 2013 4:22:46 PM

Enforce the Gaussian distribution. 67% of students should get a C. 95% should get a B, C, or D. 5% should get an A, and 5% get an F. In every single class in every single college in this country.

As it stands, a "Participant" ribbon from the Special Olympics gets more respect in my eyes than a B from Harvard Law.

Posted by: John Skookum | May 11, 2013 3:44:40 PM

If we would just give everyone A's then everyone would get jobs. Slumping legal job market solved!

Posted by: Jack Squat Bupkis | May 11, 2013 2:51:44 PM

Some more thoughts from the author of the article:

In response to Alan, I support using GPA and class rank so employers, clients, and others know where law students stand among each other at a particular school. I explain how valuable this information is in the article. My proposal isn't about giving everyone a trophy. It is about fairness in the employment market and awarding grades that do not cause unnecessary psychological harm, which itself inhibits learning.

In response to Keating Wilcox, see my response immediately above to Alan. In short, I agree. Indeed, I explain in the article that reliance on class rank is more valuable for exactly the reason you identify: It can't be manipulated the way grades can be. See page 511 of the draft on SSRN.

In response to Mikey NTH, you wrote: "Are the students in competition with each other or are they to master a body of knowledge?" I think it is abundantly clear that the answer is both. Grades determine the course of careers, as I explain both in this article, and in my prior article, In Defense of Mandatory Curves. You also wrote: "Should they be graded according to how they stand with each other, or how each stands according to the course material?" See my article In Defense of Mandatory Curves, 34 U. ARK. LITTLE ROCK L. REV. 253 (2011), in particular Part V.E. I address the issue in full there. To oversimplify, the answer is effectively both because they aren't actually in conflict with each other to any significant degree. You continued: "I think the latter would be a more honest and useful assessment of the students' actual abilities." Only if professors use the same standards, which they clearly do not, and never will. Again, see the same part of In Defense of Mandatory Curves. You ended with: "How can the frogs in this pond be accurately judged against the frogs in that pond when all you know is how the frogs in each pond measure up against the frogs in their own separate ponds; as opposed to being measured against an objective standard?" Employers are already making these comparisons all the time as best they can. When schools give out different grade levels, we make that more difficult for them; employer assessments become even less valid. More generally, the goal here is not perfection. The goal is improvement. I contend my approach would bring that about; it would lead to a fairer employment market for students.

In response to Steve S., thanks. As I explain in Part I of A Case for Grade Inflation, that is the philosophy of virtually all American grad schools.

In response to Chuck Moss, if you read the article, you will see that I'm not proposing anything like what is in your first paragraph. And I argue that students will actually study more overall under my system, to respond to your second paragraph.

In response to Ben, you wrote, "academic paper inflation." Funny! Not true, but still funny. You continued: "The arguments come down to employers don't know what grades mean . . . " As a summary of one of my two primary arguments, I think this captures the core, yes. But that is an awfully big problem. And I believe that my proposal will substantially resolve it.

Once again, thanks to everyone for the comments. I'm quite pleased that so many people think my article is important enough to merit detailed comments.


Posted by: Joshua Silverstein | May 11, 2013 2:50:37 PM

The information I have provided so far is anecdotal.

Yes, I had noticed the prior 18 pages of academic paper inflation...

Reading through it, (well, half of it), the authors make a very compelling case to put a bandaid on the amputated limb of BS grades.

The arguments come down to employers don't know what grades mean, and even when they have mountains of data in front of them, they sometimes pigheadedly assume that lower grades are bad. And students are going nuts trying to make the magic GPA number higher.

And this is hardly a problem limited to law school. I'm looking at writing up a job description for software developer. If someone posts a degree and GPA, I will have no idea what that means in terms of the person's ability to do the job. I'd honestly prefer to ignore their resume and go straight to the technical interview.

Posted by: Ben | May 11, 2013 1:14:34 PM

I totally agree with Professor Silverstein. In fact, I believe that the "good" academic grade point average should be an A. Above average work could then be graded an A Plus, with superior achievement receiving A Plus Plus, and top notch performance receiving A Plus Plus Plus...PLUS!
He is totally correct that "students perceive C as a sign of fallure. Accordingly, when they receive such grades their stress level is exacerbated in unhealthy ways." I wish there were more professors like Joshua Silverstein, or at least that I had had them, instead of the heartless pedagogues who delighted in exacerbating my stress levels compelling me to unhealthy practices like studying.

Posted by: Chuck Moss | May 11, 2013 12:57:29 PM

Not gonna happen. Incentives, even bad ones, work.

Since many Deans try to appear objective, they like numerical lists. Thus Student Evaluations are loved because they produce "numbers." And those numbers can be used to remove the judgment factor from Faculty salary decisions. Many Deans do just that.

Posted by: 30yearProf | May 11, 2013 12:46:00 PM

I agree: let's get rid of that C. Any graduate student whose performance merits a C should be encouraged to drop out and find another line of interest. He or she is just wasting everyone's time and resources.

Posted by: Steve S. | May 11, 2013 12:43:35 PM

This caught my attention: "If a school systematically assigns inferior grades...."

Are the students in competition with each other or are they to master a body of knowledge? Should they be graded according to how they stand with each other, or how each stands according to the course material?

That question should be honestly answered, what the grade is actually supposed to represent. Why should there be, as the quoted section implies, a grade assigned as students v students and not students v course material? I think the latter would be a more honest and useful assessment of the students' actual abilities. The former is only a useful assessment of that class as a unique class and does not provide any useful way of judging one law school class against another.

How can the frogs in this pond be accurately judged against the frogs in that pond when all you know is how the frogs in each pond measure up against the frogs in their own separate ponds; as opposed to being measured against an objective standard?

Posted by: Mikey NTH | May 11, 2013 12:40:35 PM

The solution is simple and inexpensive. Issue a second grade for each course, a plus sign for top half of the class and two plus signs for top quartile. Can't cheat that. No grade inflation, and tells me what I want to know.

Posted by: Keating Willcox | May 11, 2013 12:16:38 PM

As the author of the article, a few comments in response to Jim and Anon. Jim, you wrote: "Grades should reflect performance against standards." No one disputes this in theory. The problem is that standards vary from school to school. My proposal will substantially address this. More generally, it is important to remember that A, B, and C don't have enough objective meaning to support the claim that my proposal will prevent students from receiving the grades they deserve. For more on this, see Part IV.A. of the article. You continued: "If someone cannot do what is required, they ought not be tagged as an A or B student." I quite agree. And I make this point in the article. Students who can't do the work should receive C grades. This will then cause them to flunk out and they will not become lawyers. You continued: "Now, as a practical matter, the C has already pretty much disappeared at (too) many law schools, . . . " I of course think it hasn't disappeared at enough of them, causing unfairness in the employment market and psychological harm that is both intrinsically bad and negatively impacts learning. Earlier in your message you wrote: "Unfortunately, it's not about feeling, it's about being capable of practicing law." My claim in the article is that these two items are not nearly as distinct as you suggest. See Part III.B.; see also Part IV.C. You also wrote: "This is a problem in every profession, and then we wonder why the computer crashed, the airplanes aren't flying, . . . " I haven't seen any evidence correlating rising grades to poorer quality goods and services. Moreover, in the areas you identify, things are generally much better than they were in even the recent past. "What's next? Telling me I can play left tackle in the NFL?" Fun! Good ending. But I of course am not proposing anything even remotely like this. So there is no slippery slope concern.

To Anon, I note that grade deflation by higher ranked schools would work to bring about more standardization of grades across law schools. But it will be far harder to deflate at top schools than to inflate at the other schools.

Thanks to everyone for sharing their thoughts. And thanks to Paul Carron for the post. Much appreciated.


Posted by: Joshua Silverstein | May 11, 2013 12:09:12 PM

I hoped it was "let us give F more often", as I see THIS as the main problem.

I would like to cite the part from Lao She's "Cat City" about the higher education inflation, but it seems it exists in French only

Posted by: Dmitry | May 11, 2013 12:02:47 PM

The professor might consider the customer, who ultimately might need the skills of an attorney to stay out of jail. If that is ever the case, then I'd prefer to know how each student compared relative to his or her peers. We truly are living in the age where everyone gets a trophy.

Posted by: Alan | May 11, 2013 11:57:22 AM

Lets bring back the gentlemen's F instead.

Posted by: Anon | May 10, 2013 7:40:52 PM

Sure, I wish all other law schools moved in that direction so that employers would only trust the grades that my law school would give. Come along now, follow the pied piper!

Posted by: Nicholas G | May 10, 2013 4:15:58 PM

Why not give all students an A? Or an A+? They would feel wonderful. Unfortunately, it's not about feeling, it's about being capable of practicing law. It's about being capable of providing services to the client, whether the client is someone needing assistance in planning, someone needing compliance help, a judge for whom someone is clerking, a corporation in whose legal department the attorney is employed, or a government agency acting on behalf of citizens. Grades should reflect performance against standards. If someone cannot do what is required, they ought not be tagged as an A or B student. There already is too much incompetence and wasted time caused by incompetence because of a generation of students coddled by large portions of the K-12 education system whose guiding lights think it is more important to let a person think they are capable of something they can do than to provide long-term growth by sending the message that what is being done is insufficient. Now, as a practical matter, the C has already pretty much disappeared at (too) many law schools, and the F has gone the way of the dinosaurs. This is a problem in every profession, and then we wonder why the computer crashed, the airplanes aren't flying, the manufactured goods are being recalled, and hundreds of thousands are dying because of hospital errors. What's next? Telling me I can play left tackle in the NFL?

Posted by: Jim Maule | May 10, 2013 3:48:28 PM