An Actual Example of Law School Grading

Law School Grading is Flawed

By: David (law school)

I often assail law school grading, so I figured I'd share a concrete example. Below is the actual paper I wrote for one class. I received a score of 5 out of 10. You can then see the professor's comments and how my conversation with her went.

The main takeaways I hope to convey are:

  1. Grading is entirely subjective in law school. What the syllabus says is not always or even usually what professors look for when grading. They have a grading rubric (either actual or mental) and it's rare when students even see it after the grading.

  2. Being a good writer is not enough. The professor mentioned multiple times that I'm a good writer and I made valid points. I just didn't write in the manner she preferred. More on that in the conclusion. To use a legal term, grading in law school is arbitrary and capricious.

  3. It does no good having the belief that law article authors should hold themselves to a standard more akin to those in economic, scientific, and education journals. Perpetuating the current system is the name of the game.

Finally, it's important to note that unlike 1L law courses, where grades usually hinge on a single final exam, this class is a seminar. We read a paper of an author each week, wrote a memo about it, and then the author comes and discusses his or her paper. This means I have several attempts to learn what the professor wants. 1L students aren't so lucky.

The Paper the Memo was About

I can't include the paper here due to copyright laws and stuff (and I doubt many people want to read the 59 pages). But here's the title and abstract.

“Digital Switzerlands”

Abstract: Microsoft President Brad Smith has argued that technology companies collectively need to become a “Digital Switzerland.” This striking claim lays bare the reality that although somewhat bounded by the laws of the countries in which they operate, U.S. technology companies are increasingly standing as competing power centers, challenging the primacy of governments worldwide. This article offers an explanation for when the technology companies resist government demands and critically evaluates the extent to which the companies fulfill the claims of parity and neutrality that are embedded in the Digital Switzerland moniker. The article then assesses how the rise of technology companies as Digital Switzerlands will impact individuals and governments going forward, including the extent to which the emergence of technology companies as challengers to governments empowers or disempowers individual users, whether the companies’ antidemocratic power over their users makes them illegitimate governors, the potential risks of remaining neutral between governments, and how the companies’ role as Digital Switzerlands could be entrenched if it is ultimately desirable to do so.

The Entire Writing Requirements as Outlined in the Syllabus

"Memos should focus on the substance of the papers (as opposed to matters of style or organization), and should reflect considered and thoughtful engagement with the author’s topic, argument, and method. Other than that, there is no single formula for a good memo."

My Actual Memo

         The idea of Digital Switzerlands initially struck me as an interesting description and perspective to analyze technology companies. However, the more I consider the concept, the less useful it appears to be. Unlike a scientific examination, which would first posit a hypothesis, then examine the evidence, and then draw conclusions, this paper takes the term at face value and then chose the bits of information that the author apparently felt revealed the most insights.[1] The concerns I have with the paper are the usefulness of the concept, the adoption of it based on one person’s statements, and the categories chosen to examine the concept.

            As with any mental model, a first question to consider is whether the model is useful. If thinking about a topic in a certain way does not provide any useful insights or further our understanding of a topic, then pursuing it at great length is probably not a good use of time. The usefulness of examining “technology companies” as Digital Switzerlands is at first a fun exercise. However, it is not clear to me how an extensive examination of the concept provides any utility beyond the purely academic. More concerning than that, it is not clear to me how lumping all technology companies together as if they are a homogenous group and then attempting to apply a single model is fair to any company individually. The business model, company structure, and historical differences between Apple and Google are far greater than the author makes it appear, for instance. Being co-located in Silicon Valley (which is again a lumping of separate cities into one region for the sake of convenience) and trafficking in services that heavily rely on technology is not enough to say they must therefore approach government and user relations identically or even overwhelmingly the same. This would be like saying Ford and Tesla are basically the same because they both happen to make vehicles. Examining a relationship model that must encompass so much variation and nuance by implying the companies view themselves as Digital Switzerlands is not clearly more beneficial than any other large model one could create (e.g., large technology companies are mini Americas), because all it takes is searching for data to support or disprove that model depending on the author’s inclination.

            The second issue is that the authors seemed to have developed the entire paper around a single quote by the president (not CEO/director) of one large tech company that is not based in Silicon Valley and who was apparently only intending to speak for himself, rather than as part of a position stand for Microsoft. The author then extrapolates from that comment that the president must have meant technology companies are on equal footing with nations, which also seems like a stretch the president did not intend to imply. By taking one comment from one speech and writing 59 pages about it, the document feels purely academic in nature. Moreover, by trying to apply it to “technology companies,” it is not clear who exactly the Digital Switzerland model is supposed to include or exclude aside from the four or five companies mentioned in the paper. The problem compounds because by picking a phrase from a speech and then developing an entire model around it, it necessitated the author’s parsing and selection of information that related to the model, rather than first starting with information and then building a model based on the data.

            Due to the foundation of the paper’s thesis, the information examined is illuminating only as far as the author curated data to show how the preconceived model could apply. An example of this application in the paper is when the author tries to differentiate technology companies from other big companies. The great thing about taking such a position is that the author can choose the categories and discard any that might be unfavorable to the paper. Here, the paper mentions that technology companies do not embrace national origin stories like British Petroleum, for example. Yet on its face that seems odd, because one of the most well-known facts about Facebook, Google, and Microsoft is that they were created in America by Harvard and Stanford dropouts. Their founders’ rebelliousness was woven into those companies’ DNA. If anything, those companies seem to embrace a distinctly American origin story. The author also tries to draw a line between transactional companies and technology companies. Though she concedes Apple and Microsoft do charge for products, she quickly glosses over the fact that that is their primary source of income and mentions that those companies are actually different because they protect data. Of course, Wal-Mart also has data on customers, they are repeat customers who rely on Wal-Mart to protect that data, and so on. But even if one were to acknowledge there is some difference, the author’s stance pre-supposes that “purely transactional” requires monetary currency. Yet, if we can contemplate different sovereignties of companies, we should also be willing and able to contemplate different forms of currency. Technology companies as addressed in the paper receive currency in the form of user data rather than dollars, but that does not make it any less transactional. It feels like a distinction without a difference.

            Overall the paper was an interesting analysis of technology companies as Digital Switzerlands, but the element that made it interesting was the novelty of the model, not its usefulness or general application to companies and how we can understand them.


[1] It reminds me of how biologists looked at the evidence to derive the theory of evolution, while creationist look for evidence that supports their pre-conceived notions and ignore evidence that doesn’t.

The Professor's Comments

"This memo leaves me wondering how closely you read the paper; the author does not claim that all tech companies are the same and it's clear that she selected the quote because it resonated (in some ways) with a larger pattern of corporate behavior that has been emerging for some time. Accusing her of cherry-picking doesn't enhance the quality of the dialogue, either. I'd have vastly preferred to see you attempt to develop you closing points about data, transactions, and profit motives into some constructive comments that engaged with the paper's main claims and encouraged the author to make them stronger."

How the Meeting Went

At any rate, and unfortunately, dissension will not be tolerated where grading is concerned. The focus should be on whether the student demonstrates understanding and is learning. But it's more common for professors to exercise their big stick as, well, the professor, and force students to perform only as the professors wish, regardless of the alternative performance's merits or if meaningful learning occurs. As noted, she didn't merely take points off my paper. She only gave me 50%. An F.

Key Takeaway

Ultimately there was one key takeaway, which was the primary point of seeing her: How to get a good grade in her course. (It's a bit sad that as a student that's my focus. It's not how to improve my argument or write better. It's what do I need to know about the professor's preferences so I can do well in her class. To be fair, this isn't only the case with her and she's a perfectly nice person. It's law school in general.)

Here's what she wants based on her comments and the example memos she shared of other students:

  1. Read a bit of the paper

  2. Comment on it

  3. Offer a suggestion or suggestive question on how the author could improve it.

  4. Lather, rinse, and repeat until you reach the end of the paper.

An important element to her is for students to demonstrate they've read the whole article, which is why each student is encouraged to summarize parts of the paper, rather than focusing on our reaction, and despite the fact that writing several mini summaries is a waste of the 2-3 pages we're allotted. It's academic peacocking at its finest. 

Whereas I thought the objective was to react honestly to the memo, defend that reaction, and to synthesize our thoughts into a cohesive argument, what she actually wants is for us to offer feedback to the author so they can improve their papers. The class is essentially a free editing service for professors who are already making well over six figures, have a prestigious job, and have at least one research assistant.

Perhaps it's just my interpretation of the syllabus, but that's not what I thought we were supposed to be doing in this class.

And so it goes. Students must go along to get along.

Students can be like trained performers, doing what the professor wants merely because it's the professor's preference. Dance, monkey, dance!

Armed with that insight, I was able to act as a good cog in the wheel. Since that paper, I wrote something like 8 or 9 more for the course, applying the lather, rinse, repeat system. My grades on all of them? 9/10 or 10/10. Just gotta play the game. 

I’d love to hear your thoughts. Do I sound whiny? Does it ring true? Please leave a comment below.