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May 25, 2010

"A B-Minus? The Shock! The Horror!"

The title of this post is the headline of this amusing article in the New York Times concerning Solicitor General Elena Kagan's performance during her time as a student at Harvard Law School.  The story is a must-read for anyone who did not as well as they had hoped at the hoped at the start of law school, and here is how it starts:

She went on to be the dean of Harvard Law School, the solicitor general of the United States, and now a nominee to the Supreme Court. But in the fall of 1983, Elena Kagan was just another first-year law student at Harvard.

And like many high achievers adjusting to an intensely competitive law school, the 23-year-old Ms. Kagan initially struggled — at least by the standards of the kind of student who arrived with a summa cum laude degree from Princeton and an Oxford master’s degree under her belt.

Ms. Kagan received two letter grades at the end of her first semester — and they were the worst of her law school career: a B in criminal law and a B-minus in torts.

It was a jarringly mediocre report card for Ms. Kagan, and the torts grade in particular came as a shock to her and to her friends, recalled Jeffrey Toobin, the legal affairs writer for The New Yorker and CNN, who was in Ms. Kagan’s study group. He attributed the result to a “bad day in the exam.”

“She was definitely upset about this torts grade — there was no doubt about it,” Mr. Toobin said. “I remember saying to her that in the larger scheme of things it will not loom very large, and I would say history has vindicated me on that matter.”

Ms. Kagan soon returned to her habitually high level of academic accomplishment: her spring semester report card in 1984 consisted of three A’s and an A-minus.  She went on to become supervising editor of the law review, graduate magna cum laude, and clerk for an appeals court judge and a Supreme Court justice, Thurgood Marshall.

Indeed, a transcript she submitted with her application to Justice Marshall, which is included with his papers at the Library of Congress, shows she earned A’s in 17 of the 21 courses for which she received a letter grade. In two more — including an administrative law course, a field in which she would later focus as a scholar — she earned a B-plus.

Using SG Kagan as a role-model, I am pleased now to be able to tell both my law students and my own kids that how you improve and finish in school is clearly much more important than how you start.  (I suspect I will also make sure to tell them that I did much better than a Supreme Court Justice during my first year at HLS in fall 1990 when I earned an a A in criminal procedure and an A-minus in criminal law.)

Thanks to the NYTimes, everyone can inspect SG Kagan's HLS transcript here.  (Though this NYT link currently describes this document as "Kagan's 1983 Harvard Law Report Card," this version of her transcript appears to be from March 1986 when she had completed and received grades for all but her final 3L semester at HLS.)  Especially given her recent win for the federal government in the Comstock case, I find fittingly ironic that Kagan's chosen elective in her 1L year was "Introduction to Federalism."

May 25, 2010 at 08:41 AM | Permalink


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My favorite thing is her only sub A-level (A+, A, or A-) grade after her first semester was in...drumroll please...administrative law, where she got a B+ and, oh by the way, happened to make a major contribution to the law in (maybe her only major academic contribution).

Posted by: Gregory | May 25, 2010 11:00:44 AM

I asked Prof. Tribe about Obama's grades as reflecting bias and affirmative action. Tribe assured me the exams are graded blindly to the name of the student.

There is a role for very studious students to play in policy analysis later in real life. However, the final decision should be made by more of a street savvy, mainstream person, not one who has spent his life studying 80 hours a week.

Here is one problem with very high grades. What is taught in law school, or other professional schools, has almost nothing to do with current practice of that profession. Any grade higher than a C will fill one's head with the wrong ideas. These will have to be unlearned to survive outside of law school. Outside of the rarified business of appellate advocacy, even the methods taught in law school are detrimental to serving the client. It is fortunate that these top notch students consider themselves scholars, and that client services are beneath them. They would be dangerous to the client otherwise.

The quality of decisions by Harvard/Yale grads monopolizing the top policy posts has been catastrophic for our nation. They have been easily punked by street thugs running other nations, and rolled by special interests in this country. They are good at self-promotion so get elected a lot. However, they should voluntarily stop running for top posts because they are unfit. Of the two schools, Harvard and Yale, Harvard grads seem to be more fit for public service. Yale grads appear to be insane or from the Twilight Zone, in their extremism and in their incomprehensible speech. It should be remembered, Yale was founded by people who thought Harvard was not pious enough.

Posted by: Supremacy Claus | May 25, 2010 12:36:01 PM

I've heard through the grapevine that Harvard is no longer issuing grades so that it can dump its mediocre pool--who otherwise might deservedly be categorized as halfwits whose only claim to fame was a good LSAT performance--into federal clerkships and large firms formerly occupied by actual deserving students from non-Ivy schools.

So, at least for HLS students, the Kagan life lesson may now be a moot point. And regrettably for your students at OSU, the life lesson may now be that the legal profession ceased to be a meritocracy years ago, replaced instead by an incestuous Ivy League aristocracy.

Reminds me of Daniel's astute comment a couple weeks ago, albeit in a different context: what's good for academia is bad for the rest of the country.

Posted by: Res ipsa | May 25, 2010 12:36:18 PM

It would be a great service if Prof. Berman could give us an insider view of grading exams blindly to the name of the student. Is that true? Or can a professor find out the name with a little effort?

Posted by: Supremacy Claus | May 25, 2010 1:02:07 PM

SC--To answer your question, probably not. Basically, each student is assigned a number by someone (usually the registrar), and s/he signs exams only using that number. The professor grades the exams and gives the registrar the grades corresponding to the exam numbers. After all exam grades are input, the professor often can have access to the name/number list if s/he is curious (which most professors are).

So, in theory a professor could collude with the registrar. In practice, such collusion would be an incredible breach of ethics that, to my knowledge, has never occurred in a modern-day blind-graded system.

Posted by: Res ipsa | May 25, 2010 2:46:41 PM

There are some things lawyer academia can teach the rest of academia.

1) The effective blind grading system you described.

2) Open publication of articles, free to everyone on the web. Allowing submission to many journals simultaneously.

3) Severe, crushing, grade deflation to force the student to get real about future prospects in a difficult line of work.

4) Asking people to show the courage to stand up, and to defend their point of view in the benign setting of the classroom, where no serious harm may result.

These are glaring flaws that are totally unacceptable.

1) Coercive indoctrination into supernatural doctrine over education.

2) Cutting edge articles by top experts are reviewed by student editors. This is a farce.

3) Imposition of personal preferences. For example, the torts course is a Mein Kampf for the plaintiff bar. The Criminal Procedure is totally biased in favor of defendants.

4) No one ever, ever, ever addresses the utter failure of every self-stated goal of every law subject, mostly from the severe atavism of the Scholasticism based lawyer methods. No one addresses why everyone hates the providers of an essential utility product, the rule of law.

Posted by: Supremacy Claus | May 25, 2010 7:16:06 PM

SC--amen to your (3). HLS, Yale, and I believe now also Stanford do not even issue grades so they can pack the fed and private practice with their graduates (including the lackluster ones). As for the "top" schools that still issue grades, many have moved to not ranking their students and then super-inflating grades, which for all intents and purposes is a distinction without a difference. At NYU, for example, the median grade in all classes is higher than a B+! Thus, when potential employers receive students with an "impressive" 3.5 GPA, they're often looking at someone who couldn't even crack the top 40%. But god forbid they instead take someone in the top 5% at Ohio State, Minnesota, or Wisconsin-Madison!

At one time, the top legal institutions in this country were true meritocracies that pumped out some of the finest minds the legal world had to offer. Now many of them are just plain farces, full of self-entitled elitists whose crowning life achievement was a four-hour test performance. And people still wonder why the federal judiciary is stocked with mediocre clerks and large law firms are tanking...

Posted by: Res ipsa | May 26, 2010 9:29:14 AM

I have seen Prof. Berman get rhetorical, off the cuff, without any research. Pretty good advocate. He would do well in the real world, and would likely make 10 times his current salary. That is a compliment and not an insult, except to a left winger. It says, the public values advocacy ten times more than academics. That is the most objective form of valuation between strangers, money.

Why he is wasting his time inducting recruits into the criminal cult enterprise, as a lower level member of the hierarchy, and losing $millions to do so? I can only explain this self-defeating behavior by his own indoctrination by the criminal cult enterprise at HLS. He has bought the propaganda that it is worth a 90% pay cut to do the work of the cult. If he loves teaching, he could teach nights, and contribute $millions to a new law school building as a wealthy litigator.

My remedy is a French Revolution type of program. One of the reasons change is so slow in the law? One must wait for the hierarchy to pass away of natural causes, for example the racists on the Supreme Court of the 19th and 20th Century. Everyone educated knew slavery and racism were incorrect by the 1750's. We had to wait 200 frickin', deadly years for the dumbasses on the Court to figure it out. If they were executed every 10 years, turnover would take 10 years, as it does in most modern practices. It would no longer take 100 years as it does in the law.

Posted by: Supremacy Claus | May 26, 2010 6:51:12 PM

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