December 12, 2003

Law and Medicine, v.2: in which strange practices are identified in both professions

The medical profession has its share of strange practices. In residency education, the most inexperienced and least knowledgeable doctors, the interns, are often the most sleep-deprived. These doctors (whose need to learn is the greatest) are often in the worst position to do it, physiologically speaking.

There are reasons for this practice, of course, although none of them seem very persuasive to me. Many of the most persuasive have nothing to do with medical education itself, but instead are economic (interns are the cheapest medical labor around) or anthropological (they've always done that way, and since doctors are mere humans, they are often irrationally resistant to change).

The good news is that the medical profession doesn't have a monopoly on strange practices. One strange practice that seems to afflict legal education is the overweening emphasis on a student's performance during the first year of law school. The stakes are highest right at the beginning, when most students still don't know what law school is really for, let alone know anything about the law itself. Nonetheless, first-year grades significantly determine whether a student will make law review, get the plum jobs, or be considered for a legal teaching position later in their career.

Several of my professors this semester have expressed their dismay at what typically happens to students after their first semester grades come back. Many students, having received disappointing grades, decide that there's no chance for them to succeed in law school at the level they had wanted, so what's the point of paying attention in class? They decide (not without reason) that the game is already over; that their Bs for the first semester make shooting for As during the second semester a fool's errand.

This behavior is properly criticized. It's true, as one of my professors pointed out, that these first three classes are just three out of 15-20 classes in law school. From the perspective of the whole law school record, it's irrational to put such great weight on first-year, or first-semester, grades.

Unfortunately, though, the "whole law school record" isn't what matters. Employers don't screen students based on the whole record; they focus mostly on first-year grades and what follows from first-year grades, like law review. While it may be true that students who succeed in the first year are obligated to continue this level of success, the students who struggle during first-year cannot readily "make up for it" by performing well in the second two years.

Does this make sense? If it's irrational for students to overemphasize the first year, is it irrational for schools and employers to do the same thing?

In one fairly obvious way, the answer is no. The system mostly works, in the sense that the students picked out for law review and for the plum jobs are often highly capable, and don't often disappoint. In other words, the system doesn't make many mistakes. Perhaps this is because of the inevitable oversupply of highly talented students for the very few coveted legal positions. There's simply too many students.

But if the system works from the point of view of the prestigious jobs, and the law reviews, and the clerkships, does it work from the point of view of the run-of-the-mill legal employers? One would think that if students were blowing off law school because of poor first-year grades, these students might not be qualified for most legal work.

I don't know what the truth is, but I suspect many students who've given a half-assed effort in law school are still perfectly capable of functioning as competent attorneys after they graduate. If this were not the case, I would expect the legal community to start raising a stink about the performance of law schools generally, which doesn't seem to be happening.

Sadly, I think one reason for this is that practicing law probably doesn't take as much formal education as getting a law license does. Those last two years of law school? Expendable. Go out and pick up a cocaine habit, or start gambling. It doesn't really matter, so long as you get your sheepskin to satisfy the state bar bureaucrats.

But if law school isn't necessary for the majority of students, why does it continue to persist without significant change? One reason might be that law school is necessary for a minority of students, namely, those that did well during first semester and who therefore didn't decide to give up and coast. Remember, some jobs are prestigious because they're very demanding, and can only be adequately performed by students who've stretched themselves to their limits in law school.

Another reason might be that law schools are fantastic generators of cash. Students are willing to take on huge debts to attend law school, in part because they realize that lawyers can get obscenely rich. So if the students are willing to pay, why should the schools cut their curricula back to one or two years? All that cash is nice. Law professors, although they don't make anywhere near as much money as the big-firm partners, are among the highest-paid academics; they certainly wouldn't want to be paid like the typical humanities professor.

Given all of this, much of which is raw speculation on my part, we should come back to the law student at the very beginning of law school. This student will either do really well first-semester, in which case all options are still open, or he will not do as well as he wanted to, in which case he has a choice to make. Continue to work hard (and maybe make things a little more interesting for professors teaching the upperclass courses), or sit back, coast, and pick up the diploma before heading off to a routine law job.

Given the (perhaps irrational) emphasis on the very earliest grades, I can't blame someone who chooses to slack off, even if it does disappoint the professors. But I have to believe that a student who is really interested in law, and who recognizes that excellence is in some sense always rewarded where it is found, should continue to learn as much as possible, struggle to perfect their skills, and zealously pursue their interests.

Just because their colleagues have a rational basis for letting up on the gas is no reason that everyone ought to do so.

Posted by Carey at December 12, 2003 09:13 PM

"I don't know what the truth is, but I suspect many students who've given a half-assed effort in law school are still perfectly capable of functioning as competent attorneys after they graduate." I sure hope so...Don't you think our professors could get our grades in a little faster for a little better than 1/5 of a million dollars, is that really too much to ask? Or do you like the fact that professors "take their time" with exams?

Posted by: Danny at December 15, 2003 04:25 PM

They don't make the big bucks for getting our exams graded, unfortunately. I suspect many of them think their job is as close to perfect as an earthly job can get, except for grading exams...

Posted by: Carey at December 15, 2003 09:09 PM