Tuesday, May 25, 2010

Elena Kagan and her Law School Grades : What Could Be More Irrelevant?

At the New York Times in Kagan Struggled in First Term at Harvard Law Charlie Savage and Lisa Faye Petak discuss Kagan's law school grades. How irrelevant is that?

I recall well Professor Jack Harlan Friedenthal telling us the anecdote in my law school days that " 'A' students become professors, 'B' students go into government, and 'C' students make all the money." There are variants of this anecdote that can be found everywhere in academia, but the core idea is that grades are only one indicator of understanding, comprehension and ability. There is a good argument to be made that someone who gets only A's is overly conforming and easily subjected by compulsion. "Success" in the real world has many more components than just "graded" intelligence.

I myself got my worst grade in college in a course in which I got among the highest grades on the mid-term and final exams, based on a comparison of exam grades with my fellow students, but the professor, who I hated for his boring and outdated lectures, gave me the lower grade for lack of class participation because I refused to attend his lectures as the semester wore on -- after all, I was the one paying my tuition -- and I told him so. That is not a lack of "EQ", but I am simply someone who will not knowingly waste time, especially if I paid for something - else. The "grade" I received had nothing to do with my understanding of the subject matter.

That same principle applies to many college and law school learning situations. Grades are not always an accurate indicator of what a student is understanding as concerns the subject matter of any given course of study. Often, a grade reflects expectations -- and views on a given topic -- of the grading authority. I know someone here in Germany who submitted his Ph.D. thesis in Economics and got an 'A' from one referee and an 'F' from another referee so that a third referee had to be called in to settle the matter. From that, one knows that the topic of that Ph.D. thesis was controversial, but the grades hardly reflected subject matter "competence".

Many Nobel Prize Laureates, e.g. hated the compulsion of school and learned only what they wanted to learn, not all of what they were told to learn. Some did outstandingly well only in fields that interested them.

Albert Einstein wrote:
"In [physics], however, I soon learned to scent out that which was able to lead to fundamentals and to turn aside from everything else, from the multitude of things which clutter up the mind and divert it from the essential. The hitch in this was, of course, the fact that one had to cram all this stuff into one's mind for the examinations, whether one liked it or not. This coercion had such a deterring effect [upon me] that, after I had passed the final examination, I found the consideration of any scientific problems distasteful to me for an entire year. In justice I must add, moreover, that in Switzerland we had to suffer far less under such coercion, which smothers every truly scientific impulse, than is the case in many another locality....

It is, in fact, nothing short of a miracle that the modern methods of instruction have not yet entirely strangled the holy curiosity of inquiry; for this delicate little plant, aside from stimulation, stands mainly in need of freedom; without this it goes to wreck and ruin without fail. It is a very grave mistake to think that the enjoyment of seeing and searching can be promoted by means of coercion and a sense of duty. To the contrary, I believe it would be possible to rob even a healthy beast of prey of its voraciousness, if it were possible, with the aid of a whip, to force the beast to devour continuously, even when not hungry, especially if the food, handed out under such coercion, were to be selected accordingly."
- "Autobiographical Notes," Albert Einstein: Philosopher-Scientist, Paul Schilpp, ed. (1951), pp. 17-19 © 1951 by the Library of Living Philosophers, Inc
That Kagan got a 'B-' in Torts can be understood. Torts is a mess as a matter of law and many of its rules and precedents are contrary to logic and reason. The only way to get an 'A' in Torts is to learn and apply by rote learning a mass of confused law-making and contradictory court posturing to hypothetical cases governed by laws and opinions that one regards to be in error anyway. I refer here to one of my postings on punitive damages for a discussion of one aspect of torts that is -- in my opinion -- in need of a great deal of reform:

US Supreme Court Vacates Absurd Punitive Damages Award in Oregon Tobacco Case : What American Law Should Learn from European Law

New Lexis and Bloomberg Law as Competition for WestLawNext : Legal Research Search (LRS) Enters a New Era

Jill Schachner Chanen at the ABA Journal in Exclusive: Inside the New Westlaw, Lexis & Bloomberg Platforms already announced in January of this year the coming war in the battle for legal research dollars, as "legal research" metamorphizes into full-blown "legal research search".

3 Geeks and a Law Blog now report that "New Lexis" is in the offing as competition for the already introduced new WestLawNext, not to mention BloombergLaw.

Gabe Acevedo wrote in February at Above the Law in Did Lexis Nexis Just ‘Bing’ Westlaw? that the "New Lexis" will -- most likely -- be partnering with Microsoft by being integrated into Microsoft Office and using the Bing search engine, while market leader WestLawNext searches across its own ca. 40,000 law-related databases and Bloomberg Law offers "a legal, regulatory, and compliance research platform".

Many speak of "competition" but the practical effect will be that many law firms and larger law offices will have all three.

I remember well during my early days as an associate at Paul, Weiss et al. when there was a billing period in which I alone billed more than 50% of the firm's total time online at the firm's first online legal research service (so I was told -- I cannot verify that in documents). Online research was not yet the thing to do -- and I even got some raised eyebrows about that billed time -- then.

Always just a step ahead.
No wonder that I later taught inter alia legal research at the University of Trier Law School FFA program.

How things have changed.

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