The legal industry, and the law academy in particular, are in a high state of contention concerning one of their most protected traditions: the Law School Admission Test, or LSAT. The American Bar Association (ABA) that regulates our law-school industry is thinking of doing away with it. This exam is among the most heavily weighted student-applicant ranking methods for law schools and among the most feared and coveted competitive hurdles for law-school aspirants.
It is irrelevant.
Well, at least to those factions that want it removed as a requirement. They include a number of special interests, mostly in government, that seek to promote broad personal- and group-identity objectives. The LSAT (or any standardized test for that matter) is considered inherently biased, thereby making it a target of discrimination claims. This isn’t a bad issue to raise in general, as the test itself is rather old. More recent advances in learning theories, and even in neurobiology and brain science, can provide important new parameters of intelligence that may not be captured by standardized tests. Some biological science researchers, on the other hand, have come out fully in favor of standardized testing and explain why. This raises the obvious question as to whether the LSAT is actually outdated or if new applicants are merely going to be given a “pass” based on political criteria. (Alternately, for commercial reasons, the LSAT may, in the future, be merely a “check the box” formality, to accommodate current progressive viewpoints and to assuage law school deans.)
Debate about this issue is divided among several schools of jurisprudence, or philosophies of law, and includes questions about the degree to which law is a closed system with its own rules of reasoning. Is law an “autonomous discipline,” meaning we can reason strictly within the confines of legal doctrine, case law, and other related legal sources, without reference to outside factors such as sociology, psychology, statistics, history, and science? Many believe not and think that legal training should also include experience with different social, family, and economic cultures and customs in order to arrive at just conclusions. To them, the LSAT may be especially inaccurate or misleading. One law professor suggests that the school’s lawyers and janitors should swap jobs every year, but overlooks thereby the collapse of the janitorial system.
[Related: “How Law Professors Undermine the Law”]
Efforts to drop the LSAT and welcome law students from a larger pool of applicants is also, however, an admission that the “university machine” needs to be fed. There just aren’t enough traditionally qualified students to go around in order to keep the tuition machine running. (“You have to work harder to find students,” says the University of Chicago.) This may be a somewhat negative perspective, but it is a practical acknowledgment that universities are corporations and are more like their commercial counterparts than they used to be. Because there are very many ABA-accredited law schools and only so many student applicants to draw from, our universities are more and more like competing airlines. They will fight for every customer and will divide up the school “cabin” into a rarefied first class (“full-freight-paying students” as UChicago’s recently retired president called them), a “business class” (for all the graduate professional schools), and a “coach” section (for the throngs of students needed to fill up the back of the plane every year—and now the law schools).
In law, there is also a movement to fundamentally re-classify the nature of rules and regulations as “personalized,” whereby your otherwise private data is used to tailor remedies to your legal transgressions or to refine the scope of your rights. (Some get more rights than others through social credit scoring, which is on the horizon.) So it’s no surprise that the LSAT may be waived, de-emphasized, altered, or made fully optional, as the ABA is politically attuned to the changing winds of government and follows a personalized-law approach to “personal” admissions criteria.
It is fascinating, however, to consider why the LSAT is such a source of concern for law schools. Most law-school deans are protesting against changes, using the curious argument that dropping the test will hurt diversity, because the test can help applicants with lower GPAs (from being forced to work through college, for example). In my view, that makes potential students more likely to have the necessary work ethic and perseverance. Either way, the deans as a class are preoccupied with grades and test scores and give short shrift to experience (I’ll explain why in a moment). Preparation for the test that really counts—the actual Bar exam—is generally an academic afterthought.
[Related: “How Stories Replace Facts in Legal Education”]
So why is the LSAT still so coveted by law-school administrators? Because it’s a marketing tool. In order to love the LSAT, you have to believe in the scarcity model of smart people, in the ranking myths of elite law schools, and in the notion that lawyers do something very special that mere mortals cannot. But there is more: Law-school professors also want students who make their teaching lives less of a burden so they can do “research.” They don’t want to be blamed for students failing at law because law professors fail at teaching (at Yale Law, classes aren’t even graded, and the critical first-year core subjects are on a simple credit/fail system: “Almost no one fails, so basically the worst you can do is get a low pass”). Moreover, as the Socratic method of aggressive questioning, probing, and testing is often considered too insensitive to student sensibilities, professors would rather have students who are “fast studies” (and free research assistants) than students who require more feedback, interaction, and coaching (or, indeed, a “personal” approach to learning, which violates the standardized, mass-education revenue model on which law schools rest).
This brings me to the point made in the subtitle of this essay. The LSAT, which is just another standardized test of the sort that students are exposed to in high school, is not only not the test that really matters, but it is not a test that is necessary to take the exam actually used to license new lawyers. Indeed, some advocates for law-school reform (such as consumer advocate and Harvard Law graduate Ralph Nader), have gone so far as to claim that any generally intelligent high-school student can pass the Bar exam with a few months of preparation. Others (including myself) believe that any undergraduate or graduate student from any discipline (including community college paralegals) should be allowed to take the Bar exam. This, of course, makes the LSAT irrelevant—but for the right reasons, based on free markets instead of monopoly markets and politics.
Our nation’s law schools have, in many ways, become something other than institutions that train new lawyers. Most are places that fancy themselves as academies that prepare legal scholars, not working attorneys. (See the famous June 1933 article by Jerome Frank that addresses this issue: “Why Not a Clinical Lawyer-School?”) Academic law may be fine if you want to become a legal researcher, but because law schools still covet their premium-priced three-year graduate program and their “Doctor of Law,” the LSAT is part of the marketing mix necessary to perpetuate a myth of complexity that simply doesn’t exist. In the “real world,” real problems present themselves in many forms, and to solve them requires real experience, as well as capabilities with all the other facts, issues, and methods that law schools never get to and are not designed or qualified to provide, predict, or test. And the LSAT can’t either.
Editor’s Note: This article was originally published by the James G. Martin Center for Academic Renewal on October 12, 2022 and is republished here with permission.
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Thanks for the interesting points about the LSAT and law school admissions. My issue concerns the necessity of law school as a prerequisite for practicing law.
As the article mentions, there are those who contend that law school really isn’t necessary. The author makes some generalizations about “elite” law schools. I didn’t go to one so I don’t know if what he says is true of them. We certainly had students who failed and were dismissed. My law professors didn’t act in the manner he describes, and didn’t look at students as an impediment to their research. Furthermore, my professors weren’t concerned with my feelings when they had me doing summersaults playing their Socratic games, although I am fully prepared to believe that today’s sensitive, snowflake students would easily have their feelings hurt and would object to aggressive questioning.
I think the more important issue raised in the article is whether law school is really necessary. My fellow students and I used to have these discussions when we were there. There was a school of thought among my classmates that law school, if it is really necessary, should essentially be little more than a bar review course, where students just learns black letter law. This seems to be what Ralph Nader advocates. In many ways it would be more like learning what paralegals learn.
I always felt differently. Much of the more practical work (drafting pleadings and motions, filing documents, etc.) is what we should learn at our first job, just as doctors learn what to do after medical school in their residency. This was just the analogy used by my senior partner/mentor when he had me putting in the long hours shortly after law school.
When studying law, I needed that challenge of reading thousands of cases. There really is an art to spotting the correct legal issues, constructing a legal arguments based on those issues, reading a case correctly to establish the rule of law and its rationale, and then making it fit your facts. When in the Courts of Appeals, the judicial panels were always asking me questions about the facts, the law, and its application, and my responses were based on the skills that the professors were teaching us with their use of the Socratic method.
I really learned how to think differently (more clearly) due to the (often tedious) rigors of law school. Because of the huge quantity of reading, I also was forced to learn better time management and how to master a lot of information in a limited time. I didn’t get any of that in a bar review course or reading “Gilbert’s.” In short, I don’t think that the law’s complexity is a “myth.” Spend some time with the tax code or try parsing the often nonsensical and contradictory environmental regulations. As the author says, there is a lot that law schools cannot do, but law school provides a necessary foundation that makes competence at least more likely.