Thursday, August 27, 2015

Should the ABA Mandate The LSAT?

Did Not Take LSAT


For years, the American Bar Association has mandated that accredited American Law Schools require applicants for admission to take the so-called "Law School Aptitude Test" ("LSAT") or some other "valid and reliable admissions test."  The ABA also mandates that each school consider the results of such tests when making admissions decisions. Failure to comply with these requirements can result in the loss of a school's accreditation, in which case the school's graduates may not practice law in the vast majority of American states.  (Three states, California, Alaska and Tennessee allow students who have attended unaccredited law schools to practice law.)

Just last year, the ABA relaxed this requirement, allowing a school to waive the test for up to ten percent of its entering class for: "(1) students in an undergraduate program of the same institution as the J.D. program; and/or (2) students seeking the J.D. degree in combination with a degree in a different discipline."   Some law schools immediately took advantage of this exemption, and others followed suit.  St. John's, for instance, created a "Red Storm Scholars" program, whereby undergraduates at St. John's could  apply without first taking the LSAT.

Unfortunately the ABA has pulled the plug on what many viewed as a promising relaxation of the LSAT mandate, reimposing the requirement that each and every accredited law school require and consider this standardized test.  (There is no other "valid and reliable admissions test" on which a school could rely.)  Among other things, the ABA claimed that the new exemption was unfair to so-called "stand-alone" law schools, that is, schools with no connection to a larger university with undergraduate students.  The ABA also claimed that the rule was confusing and that regulated institutions were asking "so many questions" about how to implement the rule that "it was putting a lot of stress on the [ABA] staff."  (See this story, also linked above, quoting an ABA representative to this effect.)

Neither of these rationales for withdrawing the exemption withstands scrutiny.  For instance, one could deal with the unfairness concern by allowing stand-alone schools to accept students from one or more nearby undergraduate institutions.  (For instance, Hastings, a public stand-alone law school in San Francisco, could accept students from the nearby University of California at Berkeley.)  Or, one could simply open such programs to all applicants, and not just those who are undergraduates at the same institution as the JD program or seeking a J.D. degree in combination with with another advanced degree.  Moreover, one could deal with the purported confusion by crafting less confusing regulations!  The fact that a regulation is confusing, too stringent or stressful for the regulator does not ipso facto justify defaulting to an even more stringent regime, particularly when the rationale for the underlying regime is dubious at best (see below).

More fundamentally, the ABA's herky jerky approach to this issue should highlight a more fundamental question.  That is, should the ABA and 47 states consider themselves authorized to impose centralized Procrustean diktats such as the LSAT requirement on American law schools?  Yale Law Professor and author Stephen Carter answers this question with a resounding "no," chiding the ABA for "continu[ing] its ridiculous insistence that accredited Law Schools use the LSAT as an admissions criterion."

Professor Carter is absolutely correct.  Long before the ABA mandated the use of standardized tests, American law schools were selecting students for admission and providing such students with a legal education.  Neither John Marshall nor Thurgood Marshall, both pictured above, took the LSAT or, so far as this blogger is aware, any other standardized admissions test.  Neither did their classmates. More to the point, both matriculated at their respective Almae Matres before any centralized organization required the administration and consideration of standardized tests.  This blogger knows of no showing that American law schools are now producing better lawyers because of the ABA's LSAT mandate.

Of course, individual institutions should be free to require and consider standardized tests if they so choose.  However, as is often the case with the mandates imposed on Law Schools, there is no apparent rationale supporting a coercive one-size-fits all approach to this question. Instead, each institution should be free to experiment with its own methodology of evaluating applications for admission.  Law Schools are repeat players in the marketplace.   Simply put, law schools operate in a highly competitive market for students. Each school has every incentive to select the student body that will exhibit the best chance of academic and professional success, as such success will redound to the benefit of the school in question in various ways. There is no apparent market failure that conceivably justifies mandating that each such school employ a standardized admissions test.  Hopefully the ABA and the states that enforce its requirements will see the error of their ways and abolish this unjustified interference with the institutional prerogatives of the nation's law schools.

Sunday, August 23, 2015

Are Ivy League Institutions Playing Politics With Honorary Degrees?

LL.D. The University of Pennsylvania 

LL.D. The College of William and Mary in Virginia 

In a post on the Library of Law and Liberty blog, Professor John McGinnis calls out seven universities in the Ivy League for ideological discrimination in the distribution of honorary degrees. (One Ivy League institution, Cornell, does not award such degrees.)  Professor McGinnis points out that: "of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices, twelve went to those on the left of the Court."   Justice Ginsburg, he continues, "is the champ," having received "an honorary degree from every Ivy League university except Cornell[.]" In addition to the twelve degrees conferred on those on the left, he says, Brown and Yale have each conferred honorary degrees on retired Justice Sandra Day O'Connor, whom Professor McGinnis characterizes as "a moderate conservative."

According to Professor McGinnis, no Ivy League university has conferred an honorary degree on any of the sitting Justices that he characterizes as "on the right of the Court."  Presumably Professor McGinnis is referring to Chief Justice Roberts and Associate Justices Scalia, Kennedy, Thomas and Alito. 

Professor McGinnis has certainly identified a curious pattern. Additional research reveals that these schools have had ample opportunity to honor Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito.  (Justice Scalia joined the Court in 1986, Justice Kennedy in 1988, and Justice Thomas in 1991.)  These jurists have served on the Supreme Court for a combined 90 years and performed over 125 years of public service in various positions with the national government. Over the past 25 years, Yale has awarded 241 such degrees, the University of Pennsylvania  has awarded 170, Harvard has awarded 234 (see here and here), and Princeton has awarded 156.  Penn, it should be noted, has awarded the "Doctor of Laws" (LL.D.) degree to such noted jurists as Bono (pictured above), Billie Jean King, Candice Bergen, and Ted Koppel.  Harvard has awarded the LL.D. degree to Bill Russell and Oprah Winfrey, and Princeton to Harry Belafonte.  Moreover, the published criteria for the award of such degrees seem tailor-made for these five justices. Yale, for instance, awards such degrees "to signal pioneering achievement in a field or conspicuous and exemplary contribution to the common weal." Penn states that "candidates should exemplify the highest ideals of the University, which seeks to educate those who will change the world through innovative scholarship, scientific discovery, artistic creativity, and/or societal leadership."  Nonetheless, these seven institutions, which purport to value public service and inclusion, have excluded each of these distinguished public servants from the highest honors they confer.

Fortunately, some colleges and universities are more inclusive when it comes to awarding such degrees, perhaps on the theory that individuals perceived as "conservative" sometimes make positive contributions to the common weal.   Way back in 1991, for instance, the College of William and Mary in Virginia, conferred an honorary LL.D. upon Justice Scalia.  Previously the College had conferred such degrees on Chief Justice Warren Burger (1973) and (then) Associate Justice William H. Rehnquist (1977). (For a list of past recipients of such degrees, go here.)  William and Mary is not the only institution with such good judgment.  Justice Scalia has also received honorary degrees from the University of Notre Dame, Rensselaer Polytechnic Institute, and Marymount University.  He received the Marshall-Wythe Medallion from the nation's first Law School in 2013, and the Thomas Jefferson Foundation Medal in Law from the University of Virginia, which does not confer honorary degrees, in 2008.   Moreover, one or more of the remaining four jurists that Professor McGinnis characterizes as "on the right" have received honorary degrees from New York University, the College of the Holy Cross, the University of the Pacific, and St, Mary's College.  (See here).

Perhaps the seven Ivy League institutions will catch up with institutions such as William and Mary and correct the oversights that Professor McGinnis has identified.  If so, these five jurists will proudly join the ranks of Bono, Oprah, Ted Koppel, Billie Jean King and other recipients of Ivy League LL.D. degrees.