An experimental zoologist named H.V. Wilson in 1907 took a
living sponge and separated its cells by forcing them through a cheesecloth. He
passed the disassembled cells into a saucer of sea water where they formed a
cloud consisting of single cells. The cloud settled down into a sediment at the
bottom of the saucer, and Wilson could observe through his microscope that the cells behaved like individual
amoebas. They crawled around for a while and began attaching themselves to
other cells. Eventually, the mass of cells became a wholly new sponge.
When I grade a set of law school final exams, I know exactly
how that sponge felt. My brain has been put through a sieve and then is slowly
reassembled after the grading process is over. What I don’t know is whether I
have the same brain I started with, or another one very much like it except
stupider.
You can tell I absolutely hate to grade exams. It’s by far
the hardest part of my job. Yet it’s also a source of great pride that we law
school professors grade our own exams. I used to cringe in college when my
exams, graded by graduate students, came back with notations indicating that
the grader failed to understand the lecturer. This happened quite often and I
gave up trying to find someone to complain to. But it seemed to me like one of
the worst things an educational institution can do: to mark a student down for
getting it right.
There are many reasons for abolishing grades and final exams
in law school, and only two reasons in their favor. The first of the two reasons—to
flunk out students who don’t understand the law—is no longer operative in law
schools of at least the first two tiers. You can just imagine the bottom group
of students storming the dean’s office and saying, “How dare you flunk us out
after we paid you all that tuition?” One or two of them might say, “In my case,
I didn’t lose any money because you lured me here on a full scholarship. But
you never should have done it. You caused me to waste a whole year out of my
life.” The dean, an inveterate money-raiser for the law school, looks on each
student as a potential million-dollar contributing alumnus thirty years down
the road. So the dean, not wanting to engage in monetary wheel-spinning, pushes
grade reform through the faculty. It is now vitrually impossible to flunk a
student out. (Not entirely impossible: last year an enrolled student stopped
going to class after the first day and turned in nonsense on the final exam. We
flunked him out. Actually, we didn’t technically flunk him out, because what triggered
his expulsion was not his final exams but rather that there is a rule somewhere
that a law student has to be in attendance.)
I confess to being sorry that the first reason is no longer
operative, and not just because my grandfather was Ebenezer Scrooge or at least
thought he was. As an observer of what practicing lawyers do, and a sometime
practioner myself, I see just too many cases out there of professional
incompetence. There are simply more lawyers out there than deserve to be out
there. It’s not that I am in favor of higher standards as an abstract
proposition. It’s that I feel very sorry for clients who put their trust and
money in a lawyer only to have the lawyer screw up their case and destroy their
legal rights. It’s too easy for us at the law-school level to give these future
underperformers a pass, because we simply don’t take account of how much pain
they will soon be inflicting upon innocent people.
So much for the first, now extinct, reason. However, there
is a second reason for having grades that I believe to be conclusive. It is
that grades are like money. No one likes to work without getting paid. Students
don’t like to do homework without getting paid in the form of grades. (Grades
actually have more utility than money. A grade of A is like giving a student
cash, but a grade of D is like taking cash away from the student. Horrors!)
Now here slowly coming into focus is a virtual student with
an objection.
Objection: A student is an adult person who should be
treated like an adult person. If the student wants to do homework, the student
will do homework. If the student would rather see a movie, that’s up to the
student.
My reply: Nah, what will happen is that the student will go
to the movies, to bars, to parties, etc., from the first day of classes until
Final Exam Review Week. Then during the Review Week, the student will study
hard all day long and then go to the movies, to bars, to parties, etc. during
the evenings.
Objection: If a student has paid the absurdly high tuition,
then he has a right to waste his money by going to movies and parties.
My reply: That would only be true if he was wasting his own
money. But he has no right to waste the money of the alumni who have
contributed money to the law school to pay for a significant portion of his
education.
Objection: Why should you care whether a student is doing
his homework?
My reply: Because my classroom teaching presupposes a
familiarity with the assigned material. I don’t like to teach to students who
are unprepared; I consider it a squandering of my time.
Objection: You will still be paid whether or not the
students do their homework.
My reply: I didn’t go into teaching so that I could be paid.
Instead I took a vow of poverty. How do you like my tie? It’s made of genuine
sackcloth. My classmates in law practice are making three million a year. I
wouldn’t change places with them, at least so long as my students are prepared
for class.