Friday, March 27, 2020

Of Prisoner's Dilemmas and Straw Men: A Response to Blackman, Adler, and Krauss on Law School Grading

by Diane Klein

Dramatic (probably temporary) changes to grading policies are afoot in America's law schools, and in higher education more generally, in response to COVID-19, the all-online transition, and the seismic disruption taking place in education across the United States.  No sooner had thousands of faculty members figured out how to deliver their courses over Zoom and similar platforms, many for the first time ever, than the inevitable subject of grading had to be addressed.  Right now, when deadliest day follows deadliest day in the crisis, a subject like law school grading policy is a matter of urgent concern to only a tiny fraction of the U.S. population - consisting, in rapidly descending order, of U.S. law students themselves (about 113,000 nationwide), law faculties and administrations, and legal employers.  Most of the rest of the world probably could not care less.  But if you do care, keep reading!

Within the (now virtual) halls of legal academe, a lively debate has been taking place about whether law schools should adopt mandatory pass/fail grading for spring 2020, leave their grading systems alone, or do something in the middle.  A midsemester transition to all pass/fail recommends itself to many faculty members and administrations, based on a sense of compassion for students, and in acknowledgement of the extraordinary dislocation created by the circumstances we are all in.  Led by Dorf on Law's eponymous founder, Prof. Michael DorfCornell Law was among the first to decide to adopt mandatory pass/fail, as they announced on March 16, 2020, and an informal survey suggests that other elite institutions have largely followed suit.

This has triggered a somewhat predictable backlash from some conservatives among the legal professoriate.  Prof. Josh Blackman of South Texas College of Law and Prof. Jonathan Adler of Case Western both blogged about it at The Volokh Conspiracy, and Prof. Michael Krauss of George Mason University Law wrote in Forbes.  All take something like a "tough love" approach; all, in my view, minimize the magnitude of what is unfolding; mistakenly fixate on grades as the sole way for professors to convey their assessment of students (to students themselves and to potential employers); and (perhaps most surprisingly!) miss some of the problematic game-theoretic dimensions of what is taking place, leading to their support for an even worse option than no change at all: individualized opt-in to pass/fail.

The costs and benefits of an across-the-board switch to pass/fail grading (by whatever name) are, I think, pretty clear. Professor Noah Zatz of UCLA has clearly and compellingly articulated many of them.  This switch immediately and dramatically lowers the pressure and stress on both students and faculty.  Knowing that some students will experience much greater disruption than others, that some students will themselves fall ill, perhaps seriously; some will lose family members; some have returned to living environments in which their ability to study will be greatly worsened; some are much more reliant on school-based resources and services no longer available, the shift to pass/fail functions as an equalizer.  It also greatly reduces the long-term professional consequences for those students very significantly negatively impacted by coronavirus, and removes any unearned advantage that would be enjoyed by students whose academic lives turn out to be minimally disrupted (likely to be predominantly traditional-age affluent students who remain healthy and have few non-academic responsibilities).  It thereby allows all students to cope with the crisis as needed, continue their legal education, and prevent non-academic disparities from having an even larger influence than they already do, both on short-term performance and long-term prospects.

There are, perhaps, some good arguments to be made for retaining traditional grading - but Profs. Blackman, Adler, and Krauss do not make any of them.  The continuation of existing grading policies arguably provides consistency and predictability, both of which are valuable at a time of crisis and upheaval.  It would certainly be possible to retain existing grading policies and apply them somewhat more compassionately, lowering expectations uniformly to reflect the stress, dislocation, and distraction all of us are suffering.  There is an element of fairness and mutuality to this suggestion.  If what professors are saying to one another in online groups is any guide, it is probably safe to say that we are expecting (and hoping for) students to lower their expectations of professors, and perhaps we should do the same for them.  Faculty are self-aware enough about their limitations as online instructors that most thoughtful observers believe student evaluations of teaching in spring 2020 should not be used (or should not be used negatively) for promotion and tenure purposes.  The AFT and AAUP  have recommended that faculty members "should be protected against the punitive use of negative teaching evaluations during the period of the disruption."  If we want our students to be prepared to accept less from us, it seems only fair that we should expect a bit less from them, subject to a general sense of horizontal fairness with students in prior and subsequent years.

But this is not the sort of "we're all in this together"-type of argument made by Profs. Adler, Blackman, and Krauss.  Instead, they offer a social Darwinian/survival of the academically fittest (luckiest) approach, coupled with a fetishizing of grades and grading, that ill serves the moment.

The first argument Prof. Blackman makes connects current conversations about pass/fail grading in spring 2020 to broader debates about law school grading more generally.  Prof. Blackman rightly notes what others have not - that many of those who support a uniform pass/fail approach for spring 2020 have long objected to norm-referenced (widely known as "curved") grading per se.  This is a stand-alone argument: the pros and cons of criterion-based grading compared to curved grading have generated their own substantial literature, far beyond the scope of Prof. Blackman's post or this one.  But he is probably right in suggesting that those who are skeptical about curved grading in general (and wonder why, especially in a professional training program, all students who meet minimum criteria should not be able to pass) are especially dubious about its propriety in a situation in which student success seems so likely to be dependent on non-academic factors beyond a student's control, such as the student's own health, that of those in the student's family, student access to information technology and other resources from home, and large-scale economic uncertainty.

But rather than engaging with the serious literature on this subject, Prof. Blackman settles for a straw man, and presents arguments against the permanent abandonment of curved grading (not a policy any school has proposed to adopt in spring 2020, so far as I know).  Among his concerns, Prof. Blackman seems inexplicably to regard a switch to pass/fail as undermining the potentially salubrious effect (yes, really) of failing grades.  But he gets it precisely backwards.  Prof. Blackman misunderstands norm-referenced grading when he says that "students at the bottom of the curve need intervention," because they are at risk of failing the bar exam.  But that all depends on what school they attend.  Last year, both Wisconsin law schools had 100% first-time bar pass rates in their home state.  (corrected based on Wisconsin's diploma privilege) Duke had a nearly 98% bar pass rate; Belmont (in Tennessee) was above 96%.  Meanwhile, at USF and Golden Gate, fewer than 40% of the first-time bar-takers passed California's notoriously brutal bar exam.  The students at the bottom of the Duke and Belmont curves apparently didn't need "intervention," but even those well above them in California might have.

Because norm-referenced (curved) grades predominantly communicate relative mastery, pass/fail grades actually do a better job of performing the "signaling function" Prof. Blackman attaches to grades.  In a criterion-based system (of which pass/fail is the simplest), a faculty member has the ability to award passing or failing grades to as many students as they see fit. Moreover, a school could certainly adopt a policy that called for intervention for those receiving one or more failing grades in spring 2020, modify good-standing policies, or require (or encourage) faculty members to refer students for academic support who are doing barely passing work. These are hardly insuperable obstacles to the adoption of pass/fail for one semester.

Prof. Blackman's second argument is not so much a straw man as it is an opportunity to resurrect a dead horse in order to beat it again.  It's clear that Prof. Blackman did not think much of elite law students who requested, in the fall of 2014 (!), a postponement of their law school exams based on the aftermath of the riots in Ferguson and the Eric Garner case, events pivotal in the emergence of the "Black Lives Matter" movement.  Straining the analogy to the breaking point, Prof. Blackman reminds us all that "Lawyers cannot abandon their responsibilities because of the pandemic," a truism with which no one disagrees.  (Unacknowledged by Prof. Blackman, however, are the measures being taken by New York and other courts to balance the Constitutional rights of criminal defendants and the needs of civil litigants with the danger to them and their counsel of in-person proceedings.)  Prof. Blackman then leaps to this: "Law students should learn this lesson, personally.  Once they graduate, their duties exist regardless of what is going on in the world."  Again, at this level of generality, no one disagrees.  What Prof. Blackman fails to explain, however, is when being graded on a curve became one of a law student's "duties."

Finally, and perhaps most troublingly, Prof. Blackman's recommendations seem to proceed from an unwarranted assurance that he can already take the full measure of the impact of this pandemic.  Thus he confidently asserts, in a post written on March 23, 2020, that "For many students, the current situation will create some inconveniences [but] [t]hese students will not be infected, nor will anyone in their families be affected.  And their sources of income will not be disturbed."  That day, there had been about 550 deaths, and about 43,000 cases, in the U.S.  Four days later, by March 27, 2020, there were more than 550 deaths in New York alone; the national death toll exceeded 1300 and the total confirmed cases in the U.S. were over 90,000.  Currently, 124,000 schools are closed, affecting more than 55.1 million students.  How many millions will be infected?  Unknown, but many.  Lost income? So far, 20% of all Americans have lost working hours or jobs.  During the week reported March 26, 2020, 3.28 million people filed for unemployment, thirteen times the average, and an all-time high by a factor of 4.  When Prof. Blackman says "law schools should not abandon the normal rules for those merely inconvenienced by the current situation," he seems to be thinking most students will fall into that "merely inconvenienced" cohort - when, by final examination time (May 2020), very much the opposite may turn out to be the case.

Prof. Adler, relatedly, seems to think the primary impact of the pandemic on most students will be mostly psychological.  He refers to "the disruption and dread triggered by the pandemic," though at least he acknowledges that these are "real" and "for many...quite severe."  But - "disruption"? "dread"?  This crisis will result in the deaths of thousands of Americans in the next few weeks, maybe many more in the next few months, and among them will be people known to our students, and, it seems inevitable, some of our students themselves.  One law professor (Amy Klobuchar's husband) has announced that he has COVID-19, as has one student (so far). Students may live in communities very hard hit by the virus, meaning their friends, neighbors, and classmates will be suffering acutely, medically, financially, and otherwise.  This is not an episode of "The Walking Dead," Prof. Adler.  It is real.

Next, as a good law-and-economist, Prof. Adler turns to the incentives created by grading policy and grading policy changes.  Like Prof. Blackman, he abstracts from the current situation to wade into a much more general argument about assessment, claiming that pass/fail "will discourage students from focusing on their studies at the margin" because "many students (consciously or otherwise) will focus less on learning material that is only graded on a pass-fail basis," resulting in "less learning across-the-board."  Implicit in this argument are at least four dubious (and unsupported) propositions, made even shakier by current circumstances: first, that law professors' goal is maximizing "learning across-the-board"; second, that learning (individually or collectively) is maximized by highly competitive curved grading; third, that law students lack intrinsic motivation to learn and thus that extrinsic motivations (grades) are the primary determinant of learning; and finally, that being subjected to curved law school grading right now, combined with the extraordinary non-academic stresses that will be disparately distributed across law school classes at this specific time, will enhance anyone's learning.

As to his first assumption: think of each student as a point on the X-axis, with their learning plotted on the Y-axis.  Some point on that Y-axis reflects a level of learning and preparation adequate to pass a bar exam.  "Learning across-the-board" describes the total space under the curve.  But is the goal, as Prof. Adler suggests, simply to maximize the total area, regardless of shape?  I would argue, instead, that the appropriate goal of most professional education programs is something else: a maximin strategy.  Given that the bar exam is pass/fail, if a law school includes among its goals the highest bar pass rates possible, that is, in fact, what they have adopted.  Put in the vernacular, the idea is to make as many minimally competent lawyers as possible - even if that means that the very most excellent individuals are somewhat less excellent.  (Highly elite law schools may think about this somewhat differently, if they can safely operate on the assumption that all or virtually all of their students who wish to do so will pass the bar.  Such rarefied institutions may adopt, intentionally or otherwise, academic policies designed to cultivate a few extraordinary individuals, and treat most others with benign neglect.)

As a matter of learning theory, Prof. Adler's assumption that curved grading is better for learning is, at best, controversial. Similarly, if law students lack intrinsic motivation to study and learn, that may be more an effect than a cause of law school policies, including grading policies, and ought not to be treated as an immutable fact of nature.

With respect to the exigencies of the time we are living through, and the unique combination of stresses students will face this semester, Prof. Adler has little to say, other than that "students who benefit psychologically and emotionally from having something else to focus on" will be given "less reason to focus on their studies" if their schools go pass/fail.  Prof. Adler, with all due respect: the coronavirus crisis is not a bad breakup, or a fight with your mom.  School will not provide a needed distraction to a student who has lost a parent, or whose parents are losing their home or business.  And to those to whom it might, well, shifting to pass/fail hardly seems likely to change that.

Which brings us to the next point - a crucial one.  Prof. Adler argues that pass/fail grading "penalizes" those who would have excelled, and "take[s] away" the opportunity for those students to distinguish themselves "in trying circumstances."  This concern is misguided, from both an equity and an educational point of view.  First, equity.  The students who might be able to distinguish themselves in this situation may simply be those lucky enough to be comparatively minimally affected; those who have been inconvenienced and displaced, rather than those who are bereaved, impoverished, and face potential ruin.  By what standard is it appropriate to reward the lucky, who already enjoy the unearned benefit of being more lightly touched by this crisis?  Helping the rich get richer is not a principle of academic justice.

Prof. Krauss makes a similar argument.
Yes, the coronavirus pandemic has imposed costs on law students, as it has on us all.  No, throwing out the grading structure and denying excellent law students the opportunity to demonstrate their excellence is not the appropriate response to these costs.  Law students should be allowed to demonstrate excellence, not merely pass. 
Like Prof. Adler, Prof. Krauss makes the mistake of assuming that we can somehow already measure the "costs" "the coronavirus has imposed" on law students.  Nothing could be further from the truth.  For the overwhelming majority of law students - like Americans at large - the real impact of this virus is still largely theoretical.  Most of us are in week one or two of a kind of extended spring break plus quarantine lite.  But the reality is beginning to set in.  In the months to come, law students are going to be bereaved; some may die.  They, their wage-earning spouses, or parents may become unemployed.  The impending economic downturn that is wiping out retirement accounts and investment portfolios for the 50-somethings may not have yet made itself felt in law firm hiring, in bankruptcies, or other economic events that will affect careers and life prospects for today's law students for years to come.  But it will.

But just as importantly, from an educational point of view, when Prof. Krauss links a grading policy change to denying students the chance to "demonstrate excellence," he, like Prof. Adler, reveals a striking poverty of imagination about assessment.  Without grades, they wail, however will we figure out which of our students are excellent?  Do these professors pay so little attention to what their students say and do, all semester long, that without the opportunity to give a grade at the end of the term, they are genuinely unaware of who is excellent?  Do they never engage in formative assessment, or talk with their students?

Online pass/fail classes are still classes, after all - professors can still evaluate student work, student participation, and student engagement.  A professor can assign, and grade, formative assessments throughout the term, and write a glowing letter of recommendation for a stand-out student, even one whose transcript will note that X Law School awarded only pass/fail grades for spring 2020. The intrinsically motivated students will still work hard to master the material.  Those who seek "distraction" in studying can still find it.  And faculty can still give and grade final exams.  Should they wish to do so, faculty could decode those scores, and write a letter of recommendation that indicates that a particular student received the highest score on the final exam, although only pass/fail grades were awarded that semester. All that is removed is the range of high end grades formerly awarded, for reasons that will not require much explanation for at least the next few decades (after which no one but historians will inquire).

The idea that without grades, students (and their potential employers) will be deprived of any meaningful measure of student excellence, is perhaps related to another idea Prof. Adler shares: that teaching and assessing a pass/fail class is somehow less work for the professor.  As he puts it, "switching to pass-fail grading would certainly make my life easier.  It would simplify grading, reduce my stress levels, and give me more time to do other things."  Why? Does Prof. Adler imagine that pass/fail grading obviates the need for detailed assessment?  How many assessments does Prof. Adler use now?  Does he imagine each one would become pass/fail, simply because the ultimate course grade would be pass/fail?  Does he think he would be prohibited or otherwise relieved of the obligation to give detailed, individualized feedback on formative assessments, by the adoption of pass/fail grading?  Or does he believe that he (or his colleagues) can only be bothered to do fine-grained assessment when they will later have to use it to calculate a specific grade?  That's a strange but revealing confession from someone who claims to "take [his] responsibilities to [his] students and [his] institution very seriously."  It would appear as if it is Prof. Adler himself, not his students, who needs extrinsic motivation "to focus intently on what is graded."  He might want to reflect on why he thinks pass/fail grading constitutes permission to be a lazy professor.

The nation is facing an unprecedented health crisis, and nearly all of America's almost 20 million college students are now taking part in a great experiment in all-online education.  This is an arrangement the overwhelming majority did not sign up (or go into debt) for, but in which they are participating nonetheless. Throughout higher education, faculties and administrations are considering whether their usual grading policies should be revised this semester in light of these changes.  Most are free to focus on their own institution, its mission, and its students.  But the uniquely competitive and fiercely hierarchical law school ecology and economy add some complications to this analysis.  In this decision, as in so many, law schools are also constantly looking "up," at what the highest-ranked schools are doing, and looking "sideways," at what their competitors are doing, in order to insure that nothing they do disadvantages them or their students.

And this brings us to the last of Profs. Adler and Krauss's arguments.  As Prof. Krauss puts it,
True, elite schools and median students will not be impacted by the change to a pass-fail structure, while excellent students at non-elite schools will be the biggest losers.  Is that the redistribution we want to encourage?
Why will these students be the "biggest losers"?  Because of the position Prof. Krauss thinks they will be in on next fall's job market for 2L summer positions, the all-important springboard to those first post-law-school jobs.  As between two students with the same GPA (the thinking goes), the one from the "better" school will always be considered the better candidate.  With the most elite schools transitioning to pass/fail, their students will have only fall 2019 grades come October's On-Campus Interview Programs (OCIPs), and the concern is that students from non-elite schools, especially those with a shaky start in the first semester but who might do much better in the second, will be disadvantaged.

Prof. Adler also focuses on the damage he believes pass/fail grading will do to the competitive position of the strongest students (at midrange schools), and argues that "[m]aking it more difficult for a given school's highest achieving students to obtain clerkships, high-profile associate positions, etc., is thus something that harms all of a given school's stakeholders (though, I suppose, the decision of some schools to take this course may inure to the benefit of those schools that do not)." 

In order to evaluate whether, by going pass/fail, a 20th- or 40th- or 80th-ranked school would disadvantage its strongest students, we would have to know much more about a particular law school's competitors from an employer point of view - what networks of alumni, what geographic and practice-area specialties distinguish various schools, and a host of other factors.  It does not appear that schools are actually doing this (rather than rushing, lemming-like, towards the trend).

In identifying this alleged disadvantage, Professors Adler and Krauss also express their belief that employers will "unduly punish those students for whom the first semester was a period of adjustment or a difficult time for whatever reason," in other words, those students for whom first semester grades are not a reliable measure of aptitude or promise.  They do not explain why they place so little trust in the discernment of the very same highly-placed legal professionals they are so desperate to impress.  It is as if they imagine that large law firms and federal judges will somehow fail to have noticed the COVID-19 crisis, be mystified about why a student has only a single semester of grades, and refuse to read a letter of recommendation from a professor describing the outstanding performance of a student who received a grade of "pass" in the spring 2020 semester.

Placing a bit more trust in the judgment of lawyers and judges who themselves will have spent months figuring out how to work from home and adjust to unprecedented conditions is the best rebuttal to Prof. Adler's suggestion that pass/fail is a form of "leveling" that "is likely to disproportionately affect students from disadvantaged backgrounds," who are more "reliant" than others upon grades as "'objective' measures of their ability and accomplishments."  Maybe so, but those very same students are probably more vulnerable to COVID-19's economic consequences, and perhaps its medical consequences, too, if they come from dense urban areas or rural ones underserved by hospitals.

With all this in mind, I am still not entirely sure what I think is the best approach: that all schools, regardless of rank, switch to mandatory pass/fail; or that some should retain standard grading but with an explicit commitment to reduce certain expectations of students.

What schools should not do, however, is take a "neither fish nor fowl" approach, allowing individual students to opt-in to pass/fail, either at will or on the basis of an individualized demonstration of having been impacted by COVID-19.

Perhaps in the grip of worries about placing their students at fancy firms in the summer of 2021, or about falling behind their peer schools in employment statistics, some first-tier but not T-14 schools, some top-ranked schools, and some midrange schools as well, have adopted or are considering "hybrid" approaches of some kind.  This seems like an attempt to "game" a system in which a school ranked roughly in the top 20 hopes to give its students an advantage over T-14 students in the highly-competitive job search to come, and so on, down the line.  The idea is that students who get good grades will be advantaged vis-a-vis T-14 students with no grades from spring 2020, and those who go pass/fail will be no worse off.

Before considering that sort of strategic opting-in, let's pause to consider the approaches suggested by Professors Adler and Blackman, who would make the pass/fail option available only to students who "qualify."

According to Prof. Adler, rather than an across-the-board shift to pass/fail, "A better alternative is to allow students pass/no-credit option (either before, or even after, receiving their grades)."  But this option is not for just anyone; it is only a "compassionate release valve for those students most disrupted or harmed."  He also calls it a "reasonable accommodation," reflecting as weak as grasp on disability law as he shows about sound assessment policy or trauma-informed teaching.  Reasonable accommodations are not a form of "compassion," nor are they a response to a social crisis.  Reasonable accommodations are what disabled individuals are entitled to, by law, in order to fully participate in social life, whether in the workforce or an educational program.  (They also are not generally available for "transitory" disabilities, meaning, generally, those lasting six months or less.)  When, exactly, does Prof. Adler imagine a student will be applying for this?  He doesn't say.  How does a student know if they have been "most disrupted or harmed"?  Compared to whom?  What evidence would suffice?  A parent, spouse, or child's death certificate? A foreclosure notice? A psychiatrist's note?  Just how bad do things have to get for a student before Prof. Adler would make institutional "compassion" available, and how are already-overburdened deans of students supposed to be making those decisions?  Again, he doesn't say.

Prof. Blackman believes a pass/fail option should be offered, "automatically," but only to students who fall into one or more of the following categories: an infected student; a student with an infected family member; a student who has lost income, or has a family member who has lost income because of COVID-19; or a student with "new household burdens, such as caring for children or the elderly."  What Prof. Blackman doesn't seem to realize is that perhaps every student will fall into at least one of these categories.  This is not Hurricane Harvey, when, as Prof. Blackman accurately reminds us, "[t]he majority of Houstonians did not suffer any property damages," or even a fire, flattening one house and leaving its neighbor untouched.  Prof. Blackman may have the reasoning right, but he has the proportions all wrong.

Any approach which requires students to show they are "eligible" for the pass/fail option has the additional defect of inadministrability (don't these law and econ folks care about efficiency, at all?).  The circumstances that would qualify a student for this relief could happen at any time, up to the very day of an exam, and would present the student with an extremely difficult strategic choice and little time or information with which to make it wisely.  Does the strategic student go pass/fail when their parent or spouse is diagnosed with COVID-19? Or not until they are on a ventilator?  Are these the kind of questions we want students and administrators to be asking themselves?  Is that prospect really more appealing than the possibility that a mandatory pass/fail system will result in some small number of students who might "'game' the system or take advantage" (and how, exactly, will they do that?).

Individualized approaches and exceptions to generally-applicable policies are appropriate in ordinary circumstances, when schools can estimate with reasonable accuracy how many students in a given year will face the kind of catastrophic circumstances that make withdrawal, rescheduling of exams, or other remedies appropriate.  This is nothing like that, and suggesting it can or should be treated the same way is a sort of fantastical denial.

But bad as the Adler/Blackman approaches are, worse yet are systems which allow students themselves to decide to opt in.  Without a doubt, this is the worst approach for faculty.  Courses would still be taught and assessed as usual, thus maximizing both faculty labor and the chance that faculty members will spend many, many hours grading 100 essay exams with care and precision, only to find out afterwards that 90% of the class is taking it pass/fail.

If students are permitted to wait until after grades are awarded, this will result in maximal "gaming" of the system (not that Prof. Adler seems to mind, strangely, since he suggests it), perhaps as those school administrations intend.  It seems safe to assume that almost every student whose spring 2020 GPA is lower than their cumulative GPA up to that point will take the pass/fail option, likely "breaking" the curve in every class and putting the entire school's GPAs on an escalator.  Students who have been enrolled in the same classes as one another will not have the same number of grades.  Knowing that the pass/fail option is available after grades are awarded would also seem to have the most deleterious effects on motivation over the course of the term.

In adopting an approach like this, administrations seem to have reasoned that if students who do "badly" are the only ones to shift to pass/fail, the school itself will be better off competitively.  It will produce as many students with high GPAs as before, and fewer with lower GPAs.  Everyone at Freerider Law School wins! Right? Wrong.  First, this only works if other schools don't do the same thing - what is sometimes called the "race to the bottom," and in this case, is just another name for grade- (or GPA-) inflation.  In this case, once enough institutions ranked higher than Freerider LS go pass/fail, it is hard to imagine employers won't see through this obvious tactic. In addition, since employers typically interview more than one student from a given school, the pass/fail designation will speak for itself.  But equally to the point, the massive unpredictability that lies ahead makes it impossible to assert with any confidence how the world will look to firms and others hiring for summer 2021, making "strategic" behavior even more difficult.

But worst of all is an approach, currently being contemplated by Notre Dame, in which students would be required, now, to opt in to pass/fail grading for all their spring 2020 courses, anonymously.  It imposes all the costs on faculty already described, and creates all the same freerider problems.  But the defects don't end there.

This policy is also worse for students.  How, exactly, are students supposed to determine, now, whether this is a rational choice to make?  Keep in mind that it is, by definition, a high-stakes choice.  If it weren't, if one semester of law school grades (especially the spring semester of the 1L year) didn't matter so much, schools wouldn't be bothering to change their grading policies at all.

So we are asking our least-experienced law students to make a highly impactful, complex strategic decision, with long-term implications for their career, under what most game-theorists recognize are the worst conditions: incomplete and asymmetric information, time pressure, and stress.  What becomes of the overconfident student, or the one who is not well-informed about risks, whose life is upended in late April, when it's too late to change this irrevocable election?  Students would not be obligated to share their decisions with one another, but each piece of such information is very valuable in an asymmetrical information "game" like this.

Such a situation creates a bizarre prisoner's dilemma, pitting students against their classmates under circumstances of nearly maximal uncertainty.  If you believe many of your fellow students will go pass/fail, and reduce their efforts accordingly, this might be the ideal time to study hard, end up at the top of the curve, and move up dramatically in your class ranking.  But is such a belief rational, under the circumstances?  Only if you can reliably predict your own situation, a thing no one is currently in a position to do.  Not only would choosing well require knowing (or guessing accurately) about one's own likely performance (something 1Ls are notoriously poor at even under ordinary circumstances), it also requires knowing (or guessing accurately) about both the performance and the choices likely to be made by others.  The game-theoretic dimensions of this situation are eye-crossing for most people in the best of times; there is no justification for demanding it of those least able to do so, to try and solve it now.

Gov. Andrew Cuomo might have been talking about Professors Adler, Blackman, and Krauss, when he said on March 25, 2020, "You're missing the magnitude of the problem, and the problem is defined by the magnitude."  In assessing the impact of COVID-19 on all Americans, including law students and their professors, the arguments for retaining existing grading schemes seem to rely mostly on "missing the magnitude of the problem."  Law students and law faculties alike are ill-served by fetishizing grading and ignoring other available methods of assessment that are meaningful for students and employers, now and in the months to come.  In the end, those who got there first, and imposed mandatory pass/fail for spring 2020, probably got it right.









6 comments:

Jon Lee said...

Just a quick note: I agree with your sentiments, but you shouldn't use the WI bar passage rates for WI schools as an example. WI still has a diploma privilege, so those students aren't taking the bar exam.

Diane Klein said...

Will update and correct - thanks!

Frank Willa said...

Enjoyed the analysis, and learned from it- thanks. Got me wondering about elsewhere. So, with your indulgence, a few thoughts with out answers.
How are other schools, and particularly law schools around the world handling the same issues(including those you have raised in recent posts). That is, what are the law schools in Italy, France, and Britain, etc. doing with what I take to be the same 'overnight' switch to online university existence, and grading or ranking?
As to China, and more particularly, I would think that getting info out of Wuhan Universities as to their transition that was underway as of the January 23, 2020 city wide lockdown would be nearly impossible and fraught with propaganda( just like accurate medical info).( per 'Wiki"'it seems Wuhan University is 3rd ranked in China)
I admit I have not surveyed the school websites here or abroad to see if the changes to grading are being posted for all to see. I would agree that prospective employers would want to know about the grading issue. A 'system' that seemed set in stone has crumbled.
Nothing is easy with all of this, no easy answers, and no bright line rules. To me these topics seem to be the 'stuff' that 'equity courts' balanced.
I had a professor say to me when discussing a complex topic, something that strikes me as at least somewhat pertinent at this time: "It is not easy to be a lawyer, if it was, everybody would become one".

Diane Klein said...

Frank, your question is a good one. I don't think law schools in other countries are locked in the same fight-to-the-death rankings battle, etc., so that may be an issue. The FB group I am administering includes law professors from a few other countries, so I'll put the question to them!

J Adler said...

I pointed out to Prof. Klein via e-mail that she attributes to me a position I did not advocate (and assumes that some of my arguments are based on assumptions as opposed to actual evidence, e.g. surveys of our students and employers, research on how different grading policies effect bar pass rates, etc.). In response, to defend her initial characterization, she quoted something someone else wrote and attributed their arguments to me. Given this exchange, I would have thought the original post would be corrected. It is disappointing that it has not been.

Jonathan H. Adler

Joe said...
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