What do students need to learn in law school to prepare them for the practice of law? Often the answer to this question is a listing of areas of knowledge or of practical skills -- and certainly those are important. But perhaps what students learn about themselves is also important. Again, it could certainly be argued that self-understanding and psychological insight are part of the wisdom that people need for their adult lives, but in this case I'm not referring to such forms of knowledge. Rather, I have in mind a much blunter form of self-understanding: the knowledge that you are a winner. The importance of this knowledge is an important lesson of Richard Sander and Jane Yakowitz's essay, The Secret of My Success: How Status, Prestige and School Performance Shape Legal Careers.
Sander & Yakowitz would endorse this point, I suspect, but their focus is somewhat different. The importance of this self-understanding emerges, however, from the authors' striking argument that grades matter. This position actually isn't self-evident. Sander & Yakowitz note, for instance, "the (correct) insistence by many observers that firms do not consult law school transcripts in making partnership decisions." (24 n.35) There's little doubt that firms consider grades when making initial hiring decisions, but the point of those observers' "insistence" is that after the initial hire, success or failure is determined by performance and grades are forgotten. The authors point out (24), however, that if success (measured in admittedly "conventional" terms (42) such as making partner in a law firm) actually does correlate markedly with grades, then apparently the grades are capturing something that fuels lawyers' lifetime achievements even though no one actually pays attention to the grades themselves after the lawyer gets his or her first job. Much of their article, in turn, makes the case that grades actually predict future success more powerfully than all other indicators, notably include the prestige of the student's law school.
What is that "something" that grades reflect? Sander & Yakowitz don't try to tease this out fully, but what they say makes sense. First, "high grades are shaped by individual characteristics that perhaps no other easily measured characteristic of lawyers can capture: drive, energy, clarity of thought, and perhaps a facility for good legal analysis that isn't captured well by the LSAT." (41) This explanation by itself might imply that these characteristics are fixed qualities that the future lawyer brought with him or her to law school; all that grades do is reflect their presence.
That, however, is not Sander & Yakowitz's full answer. They also say (again at 41) that "grades reflect one's relative intellectual location in a law school's incoming student body, and how that location influences what one learns and with what level of analytic mastery and confidence one emerges from law school." This statement implies that where a law student stands compared to his or her fellow students on the first day of school affects the grades he or she will earn. A relatively stronger student, the authors seem to be saying, is likely to become part of a "virtuous cycle," in which success builds on success, and to emerge from law school with grades that affirm his or her confidence, and with confidence that will shape the coming steps of the new lawyer's career.
Does it really matter that much how a student compares with his or her colleagues on day one? Using a large longitudinal data base from a study of law students in the 1990s, Sander & Yakowitz look at those students who were "admitted to their first choice school but did not attend it, often for geographic or financial reasons." The authors infer that these students probably have the same strengths and weaknesses as those students who were also admitted to their first choice schools and did choose to attend them. But it turns out that the students who go to their first-choice school, generally more "elite" than the lower-choice schools, get somewhat worse grades than those who didn't choose to attend what the authors refer to as their "reach" schools. (25-26) Perhaps the competition at the first-choice schools tends to be harder -- student bodies at American law schools are evidently sharply stratified on measurable criteria such as LSAT (4-5) -- and so the students who "reach" to the more elite schools are less likely to do well there than their equally able peers who choose to attend less elite institutions.
Sander & Yakowitz draw from this finding the conclusion that the net result of attending the reach school -- despite its higher prestige -- may be to weaken the student's future prospects as a lawyer. (36-37) This may be so, though the authors acknowledge that the exact extent of the grade-depressing impact is uncertain, and emphasize that they are comparing only plausible choices (a 20th-ranked school against a 40th, for instance -- not # 1 against # 200).
I'm more interested, however, in the apparent indication that the experience of success in law school -- even at a less elite law school -- propels the law graduate's professional trajectory. Whether or not that fact should shape applicants' choices of which school to attend, it may also have implications for schools' thinking about what programs to offer. The experience of success, even at a less elite school, fuels the graduate's achievements even after graduation, when he or she must meet the competition of the graduates of every law school. Something about success seems to make students stronger, lastingly stronger, than they otherwise would have been.
So if we ask, what is it that students need to learn in law school to prepare for the practice of law, one answer seems to be that they need to learn that they are people who succeed. Once they learn this, it's more likely to be true. They will use their abilities better -- and if (as I believe) human abilities are not simply fixed quantities but are a combination of initial capacities and lifelong refinement, they will actually come to have greater abilities as well.
And what does this mean for law school programs? It must be admitted that it counsels against such beguiling reforms as widespread use of pass-fail grading; if students cannot perceive their success, as compared to their peers, they perhaps cannot earn this success boost. But I do not think it follows that schools must relentlessly produce a single hierarchy so as to give their successful students that boost. One might well argue about the morality of such a system, in which a few were assured advantage at the expense of the many, and I hope that no such choice is necessary.
Demanding standards are necessary -- but there are many such standards, and many avenues for achievement. A law school whose students win moot court competitions is giving its students a hard-earned experience of success. A law school whose students win cases in their clinics is doing the same. A law school that insists on drafts and redrafts until a paper achieves a measure of excellence is too. Or so, at least, we may reasonably assume: provided that multiple avenues of success do not result in devaluing each individual measure of success, we should aim for multiple paths on which students of diverse skills and inclinations can find their strengths.
Finally, of course, we should not simply assume this happy harmony, but should examine whether it in fact can be achieved. Whether multiple channels of success actually have the same kind of effect as the single hierarchy of grades is an empirical question, and one that -- like so many others bearing on legal education -- deserves research.