Hey, good news for future lawyers of America: A research group out of UC Berkeley's law school has come up with a new test that they say can predict lawyerly potential better than the LSAT. Well, okay, this is only good news if you believe the entrance requirements, and not law schools themselves, are the problem. But more on that in a few.
The study's lead authors, Marjorie Shultz and Sheldon Zedeck, started from the belief that the Law School Admissions Test (known by most as the LSAT and by some as "that fucking test") was neither an accurate predictor of future performance nor a fair means of identifying potential lawyers. Part of the problem, they argued, is that admissions committees rely too heavily on LSAT scores and grades—as they explain, "[t]o admit primarily on the basis of LSAT test scores and grades to a professional field that has great importance to our society, seemed short-sighted."
The study began by identifying the key traits that make up a good lawyer; they listed 26 characteristics in eight categories.
1. Intellectual & Cognitive
- Analysis and Reasoning
- Problem Solving
- Practical Judgment
- Researching the Law
- Fact Finding
- Questioning and Interviewing
- Influencing and Advocating
- Strategic Planning
- Organizing and Managing One’s Own Work
- Organizing and Managing Others (Staff/Colleagues)
- Negotiation Skills
- Able to See the World Through the Eyes of Others
- Networking and Business Development
- Providing Advice & Counsel & Building Relationships with Clients
- Developing Relationships within the Legal Profession
- Evaluation, Development, and Mentoring
- Passion and Engagement
- Stress Management
- Community Involvement and Service
No surprise here, right? But they took it a step farther and developed tests that they argue can measure applicants' strength in the above categories. They administered their tests to practicing lawyers and compared results to the the lawyers' LSAT scores, and found that
while LSAT scores, for example, “were not particularly useful” in predicting lawyer effectiveness, the new, alternative test results were — although the new test was no better at predicting how well participants would do in law school. Unlike the LSAT, the new test did not produce a gap in scores among different racial or ethnic groups.
On the one hand, this is good news for anyone in the law profession who believes the net used to catch future lawyers is too small and has too many holes in it. On the other hand, another test? Seriously?
The law profession, at its best, is intended to uphold the basic structures of our society: To protect its citizens, to support its government and its economic infrastructure (and to hold these in check when necessary), to stand for the wealthy and indigent alike. A standardized test—even one that measures empathy instead of analytical skills—will never be able to assess with any accuracy an applicant's disposition toward justice, morality, and ethics. If we really want to identify applicant potential, we should discard, not tinker with, the current admissions process. There should be interviews. There should be role-playing activities. There should be deep interactions with candidates before anybody is admitted to any law school, ever.
Of course, this approach can only work if we assume that law school itself is not designed, at its foundation, to churn out new lawyers just like the old lawyers. And we can't assume that. A friend of mine who is at the tail end of her law school experience explained to me that she decided to pursue a law degree because she believed in the universal nature of justice, ethics, and the law. But in law school, she quickly learned, success comes by learning to play the game.
Part of the game, as linguist and educational theorist Jim Gee explains, is learning the Discourse of law school. Citing the ethnographic work of Michele Minnis, he explains that
In the typical law school, instruction in the first year involves total immersion in the course material. Teachers do not lecture in class, rather they engage in adversarial interactions with students patterned after those of judge and lawyer in appellate courtrooms. The dominant instructional approach is the "case method." This method consists in discussing and comparing appellate opinions through a question-and-answer routine sometimes called "Socratic dialogue."
Before each class, Gee explains, students are expected to write briefs summarizing multiple appellate opinions; when called upon in class, they must be prepared to articulate (often under pressure) the contents of their briefs. Here's where it gets tricky, because
[t]o write a competent brief the student has to be able to read the text being briefed in much the same way as the professor does.... Students are not taught these reading skills—the ones necessary to be able to write briefs—directly. Briefs are not, for instance, turned in to the professor; they are written for the students' own use in class.... One of the basic assumptions of law school is that if students are not told overtly what to do and how to proceed, this will spur them on essentially to teach themselves. Minnis argues that this assumption does not, however, work equally well for everyone. Many students from minority or otherwise non-mainstream backgrounds fail in law school.
My friend the law student is not failing; in fact, she's doing quite well. But in order to succeed, she had to swallow down what amounted to intense, unrelenting sexism. This applies not only to treatment by professors and other students but also to how case law is dissected. In many ways, she's had to just put her head down and let it happen. There is no way to get through the experience otherwise.
"Every female law student I know," she said to me, "has had the experience of saying something, getting told she was wrong, then hearing a male student say exactly what she said and get praised by the professor for it."
We can assume this experience extends beyond gender into ethnicity, sexual orientation, and worldviews in general. The purpose of all of this is to create lawyers who replicate the lawyers that came before them. Who decides what, for example, comprises the "integrity / honesty" identified in the Berkeley list above? Welcome to the new law profession, same as the old law profession.
And we haven't even broached the subject of the Bar exam, which is used in much the same way as the LSAT, but with higher stakes: This is the last opportunity to ensure that a new lawyer aligns with the values and belief systems supported by the law school system. To pass the Bar, you have to speak Lawyer--you have to have internalized the Discourse of law school and, by extension, the law profession. There's no room here for alternative approaches to law, to ethics, to justice.
"They have too much at stake," my friend said when I asked her about the possibility of getting rid of or at least changing the Bar exam. "You have to understand that the lawyers who are in charge of these things went through the whole process, and they think, 'I got through it, so you have to too.'
"Not only that," she added, "but the high-up lawyers are there because they support the status quo. They have no stake in thinking outside of it."