Tuesday, June 22, 2010

Making the Grades

The New York Times reports that at least ten law schools have raised their grade curves in the last two years. The new rationale for this timeworn response is that students need a competitive edge in a tight job market and higher gpa, however contrived, is just the thing. Ironically, by outing the culprit law schools, the New York Times has probably reversed any advantage their students might have reaped from the sudden lift in gpas.

The premise that a law school can give its graduates the edge in the job market simply by raising their gpas across the board is offensive. Rank in class and rank of law school provide much more useful comparative data than gpa, so the premise that higher gpas, all other things equal, will translate into more job opportunities is dubious. Even assuming that raising the grade curve for all students yields a benefit among a segment of the market (gpa fetishists), the benefit to students at a particular school is at best a wash. Students with otherwise lackluster gpas benefit at the expense of the top of the class who find it increasingly difficult and pointless to distinguish themselves from their peers. If everybody is special as a matter of law school policy, why bother with the time consuming ritual of studying?

Raising the grade curve may make a law faculty feel compassionate in the short run. But all it really accomplishes is to make the faculty less relevant to the market as an evaluator of relative quality. Expert faculty differentiation among students (via competitively awarded grades) is a huge part of what makes a JD valuable. If the market doesn’t perceive any meaningful differentiation among students on the basis of the grades we assign, we’ll be out of business in the blink of an eye. At the very least, we won’t be worth our current salaries.

Two things remain true regardless of the winds of grade inflation. I’d hire someone with a C+ in Corporate Tax over another with an A in (fluff of your choice) any day of the week. And, all students want A’s until the day everybody gets them.

Thursday, June 10, 2010

Beyond Understanding

Ironic, isn't it, that proponents of federal overhaul of financial services industry regulation criticize structured finance transactions, derivatives trading and the interconnectedness of national and global financial systems on grounds of complexity. The implication is that mortgage backed securities and other collateralized debt obligation deals were so complicated that even the most sophisticated investors couldn't understand the risks they were incurring.

The bill before the conference committee, Restoring Financial Stability Act of 2010 (H.R. 4173), is over 1600 pages long.

Friday, June 4, 2010

You Not Only Have The Right To Remain Silent, But, If That's Your Choice, Then The Responsibility, Too

The recent Supreme Court opinion handed down, as they say, in the case of Berghuis v. Thompkins, allows law enforcement to continue questioning a suspect, and to use what that suspect says against him in court, in the absence of an express declaration, either in writing or orally, that the suspect is invoking his right to remain silent.
As with other issues of its kind, this one managed to split nine identically educated lawyers five to four.

Mr. Thompkins, who refused to sign a declaration acknowledging he had been read his Miranda rights, was going along fine maintaining his silence in the face of questioning, until he was done in by the God wheeze:
Detective: "Do you pray to God to forgive you for shooting that boy down?"
Thompkins: "Yes."

The jury at trial was presented with this dialog and, inter alia, finding praying for forgiveness for an act evidence of having committed the act, convicted Mr. Thompkins.

Justice Sotomayor dissented in grand fashion, offering a document longer than the opinion. In it, she at least avoided the tired phrase that the majority had stood (Miranda here, but substitute any statute/rule/doctrine) Miranda on its head. In its place, she offered this equally prosaic but less hackneyed synonym: "Today's decision turns Miranda upside down." Justice Sotomayor, seizing on an apparent contradiction flowing from the ruling, writes, "Criminal suspects must now unambiguously invoke their right to remain silent- which, counterintuitively, requires them to speak."

Of course, criminal suspects could say nothing at all. The guilty ones could add that restraint to their tool kit, already containing, for example, guns and knives and such. Mr. Thompkins, perhaps and poetically, was done in by the same lack of impulse control (his own) that did in his victim.

Now we'll find out if the new principle, universally applied, is on balance salutary or not.