Grades, Participation, and Analogic Reasoning
Posted by Jeff Lipshaw
Grading at Tulane is completely blind. I taught four classes with an aggregate total of over 180 students 
and among non-LLM students I could never tell from the exam paper itself who was writing the exam. So it is always interesting to submit the final grades and then get back the translation sheet to find out who the numbers represent.
Several observations:
1. I just finished up and submitted grades for a large class. Of the reasonable number of full A grades, all but one were active contributors in the class discussion. On the other hand, I could only associate names with faces for 25% of the combined C and C- grades.
2. Of the A grade recipients whose names I could immediately associate with a face (i.e., all but one), most were not at all surprising given the cogency of class comments.
3. I did not take attendance, so I will never know if there was a correlation between attendance and grade, but I am thinking that the reason I could not remember some of the lower grade faces is that they didn’t come very much.
4. My wife (an alumna of the Michigan Business School) passed along this link to a study purporting to rebut the “Jack Welch – GE” forced ranking system of evaluating employees. Here’s a quote:
“The use of rankings to scale employee performance relative to thatof their peers, instead of using predetermined goals, may negativelyaffect employees’ willingness to maximize joint gains that will benefitthe organization,” said Stephen Garcia, adjunct assistant professor ofmanagement and organizations at the Ross School and assistant professorat the Ford School of Public Policy.
“Individuals will care less about performing better on a given taskand will, instead, shift their focus to performing relatively better ona scale comparison—in other words, being surpassed in rank.”
See Andy Perlman’s post over at Legal Ethics Forum on whether interpersonal skills should be a factor in law school admissions. I sense there is a connection, but this is just a blog, so I will merely juxtapose rather than analyze.
5. In a new essay, “Law and Philosophy at Odds,” Larry Alexander and Emily Sherwin pretty well put aside the possibility of any meaningful legal reasoning by analogy from case to case. As readers know, I have been reading Douglas Hofstadter’s new book I am a Strange Loop, which ponders the essence of the self and consciousness, and finds the power to analogize at the very heart of thinking itself (the entry “analogies, serious examples of” runs over a full page in the index). My wife and I discussed this just now walking the dogs, although we digressed onto the subject of the old “analogy” questions on the SATs. Did those analogies actually test reasoning power, as though there is in fact a better analogy, or simply, as my wife contended, vocabulary, i.e., if you actually knew what all the words meant the analogy part was easy? So I posed this one: “Hockey is to goalie as baseball is to (A) pitcher, (B) catcher, (C) backstop, (D) batter.” I could actually make arguments that each one is correct. Is one objectively better than the other, in the way that deductive reasoning from premises to conclusions either is or is not? Or is it more cultural, and “Family Feud”-like (recall Richard Dawson: “survey says…..!”) [As usual in these discussions on the dog walks, it is not Venus and Mars, but terra firma (her) and outer space (me), so this issue was not resolved. She said the SATs would never have one like the hockey/baseball example; I said I remembered them all being like that.]
6. All of which is to say that it’s probably the case that we are testing conformity, not creativity, on law school exams, but it’s likely that conformity wins over creativity in the real world. Somebody just commented below on an earlier post:
That is why law school grading is broken and badly needs to be fixed. Ilove legal theory, unfortunately one time pressured exam at the end ofthe semester allows me almost zero opportunity to show that to myProfs. It also forces students to care exclusively about the end gamerather than appreciating all that legal scholarship has to offer. Thefact that you are met with blank stares and questions like, “will thisbe on the exam?” is sad in a doctoral program. This is all very fixableand would only require giving students the proper incentives.
I think that is a heartfelt and sincere sentiment, but I’m not sure I agree with its import. I wasn’t looking for creativity on the exam, but nobody wrote an exam that forced me to say “wow, that is just a completely different and unique way of looking at the world of secured transactions or sales, and even though it doesn’t really answer any of the doctrinal questions, I should throw out the answer key and give it an A.” And I think that’s the way most people expect it; they’re here to learn the doctrine, and how lawyers think and operate, and the ones who like theory self-select into the appropriate upper-level seminars.
7. More on thinking in analogies to come. I hope.