Joshua Silverstein, Professor at UALR Bowen School of Law
Today’s interview features a professor from my Alma mater, but not a former professor of mine. I wish that I could have taken a class with him, but it just didn’t work out. Despite not taking any classes with him, I got lots of interaction with Professor Silverstein, as he always seems to be everywhere at once.
Professor Silverstein has been in the media a lot this week, so it seemed like a good time to talk to him about his recent article.
Professor Silverstein is an NYU law school grad with undergrad degrees in Philosophy and Political Science. He has a brother who is also a professor (of philosophy) at the Abu Dhabi campus of the NYU law school. Professor Silverstein graduated magna cum laude from the New York University School of Law and was named to the Order of the Coif. He also served as the Legal Theory Editor for the New York University Review of Law and Social Change while a student. After graduation, he served as a law clerk to the Honorable Suzanne B. Conlon, United States District Judge for the Northern District of Illinois. Professor Silverstein then became a litigation associate at the law firm of Mayer Brown in Chicago. There, he worked on a wide variety of matters, including products liability, bankruptcy, and accounting malpractice cases. Professor Silverstein subsequently joined the Chicago law firm of Freeborn & Peters, where he practiced in the area of commercial litigation, focusing on antitrust disputes and business torts. You can find more information on the Bowen website, found here.
Professor Silverstein says research is his true passion. He loves teaching students, but if he was only allowed to teach without doing research he would go back to private practice. But too much research can be a bad thing. He was unhappy that his position at Mayer Brown only allowed him to research without giving him opportunities to develop other skills. His switch to Freeborn & Peters allowed him to do commercial work and antitrust cases, but a smaller firm meant more opportunities to be more active in cases. He recommends working in firms with 50-100 attorneys for those reasons.
Above the Law strikes again. This time, that dazzling wit, Elie Mystal, wrote a post about a law review article by Josh Silverstein. Per his usual practice, Mr. Mystal misinterpreted Professor Silverstein’s article. This was likely due to the fact that he did not actually read the article. Mystal gets paid to write articles for Above the Law. I do not get paid, but I actually read the article. That doesn’t seem fair…(p.s. no one has yet sent me chocolates, per my earlier request).
A prior article was written about the topic in the Wall Street Journal Law Blog, “Law Prof: Let’s Scrap the ‘Gentleman’s C.'”
JW: You got quite a lot of attention from Above the Law. There were 114 comments the last time I looked.
JS: Well, about twenty of them were mine. I responded to every comment I deemed worth responding to.
JW: You did respond to more than most people would take the time to do. I liked that you clearly explained your points to the people who had trouble grasping the article’s concept, but a lot of the comments seem to be the same criticisms over and over again.
JS: The most common criticism I’ve seen is that people wish I had written a different article.
JW: It seems like they wanted you to write about the job market.
JS: Right. There are enough people already writing about that. It’s an important topic, but it’s not my topic. No one is addressing the grading issue. My article is about how to allocate the jobs that are available fairly. I explicitly disavow any claim in my article that raising grades will increase the sum total of law graduates who will get jobs. It will have no such impact. What it will do is make whatever jobs are available more fairly distributed. Those who want to deal with other issues more generally, I pointed out that they can find my views on that at the ABA task force website, where I’ve written over four pages of comments on other topics.
JW: Another argument I saw made a few times was that it doesn’t matter what your grades are or how schools grade; it all comes down to 1) who you know and 2) what you look like. What’s your response to that?
JS: I believe there is no question that who you know is relevant. Connections are important. There is also research showing that physical appearance matters. But, there is more than enough evidence that grades matter. If I didn’t think that grades matter, I wouldn’t have written an 85 page article in our law review and an 83 page article in the San Francisco Law Review.
JW: I have to agree with you, considering that many interviews for clerkships only allow people with certain GPAs to interview. So it doesn’t matter who you know or what you look like, if you can’t even get an interview.
JS: There is a quote from some article that I cited that says something like, “We can debate the level of weight that grades have, but there is no question that they have weight.”
The article, titled “A Case for Grade Inflation in Legal Education,” argues that law schools should eliminate “C” grades by raising its “good academic standard” level to a B-. This is for two reasons:
1) Low grades damage students’ chances of getting jobs. If “C” is “good” at your school, but “B-” is “good” at a competing school, the students at the “C” school are going to look worse, despite the fact that their performance was the same.
After there was media attention focused towards law schools that raised students’ grades, the New York Times and several other papers covered the topic. Silverstein argues that these schools were right to do so and the remaining institutions should do the same. Silverstein cites work by a professor of computer science at Furman University who compiles grade distributions:
For master’s programs, the grades break down:
>1% D’s & F’s combined
That’s definitely not something you would find at most law schools. My first semester of Civil Procedure saw 2 A’s for the entire class of about 70 students.
Silverstein notes that most graduate schools require students to earn at least a 3.0 gpa to remain in good academic standing (requiring B marks or better). Some schools are so harsh as to consider a C a failing grade for a class, even if the student’s average gpa is a 3.0 or better. Ouch. Law schools tend to require a 2.0 gpa to be in good academic standing.
Most medical schools now use a type of Pass/Fail grading system, doing away with not only C’s, but also its long-time companions: A, B, D & F.
Here is the real problem: law schools grade differently, making gpas a difficult benchmark. One study found that the more prestigious schools tend to award higher grades (i.e., the higher the index score of incoming students, the more inflated the grades). In contrast, Whittier Law School (Fourth Tier) mandates that at least 75% of grades must be in the C range or below for first year doctrinal students. I haz a sad for you, Whittier students.
UALR’s Bowen School of Law adopted a grade normalization policy in 2011. Silverstein supports normalization policies, discussed more below.
Professor Silverstein further advocates for a good-standing level of B-, meaning :
2.7 at schools that use a four-point system &
82 for schools that use a 100 point system.
To be clear, he does not mean that students should not get credit for C-equivalent grades; only that it should not be considered good academic performance (similar to a D now). This goes beyond normalizing grades,
“Grade normalization is concerned with equalizing and standardizing the pot of grade wealth that each teacher allocates to his or her students at a particular school. Grade inflation and deflation are concerned with the size of the pot of grade wealth the instructors are given.”
Ultimately, the idea is to make competing in the job market more fair.
2) Marks in the “C” range injure students psychologically.
As we know, law school is ridiculously stressful. Law students have high levels of depression and general psychological distress. If you don’t know what I’m talking about, go rent The Paper Chase. In support of the proposition that grades are amongst the largest stresses of law students, Silverstein cites another law review article, which cites another law article. I can’t really tell what kind of evidence these articles came up with, so it is hard for me to give this argument a lot of weight.
Obviously, grades are important. They can shape job prospects, careers, academic honors, scholarship eligibility, whether or not your parents are proud of you (that one is my addition, j/k Mom!)…the list goes on. Silverstein notes that he and other faculty have had many students come for counseling about whether or not it was a good idea to stay in law school, given their C-type marks, which, according to the school, were a sign of good academic performance.
My former Dean of Students, Andy Taylor, expressed that he finds B’s to be a wake up call, but C’s to be detrimental. That’s because C’s can discourage students from striving for higher grades, where a B makes students want to work for a higher grade (“a B is a hit, but a C is truly discouraging”).
Another problem is that law students tend to come to law school with nothing but A’s and B’s in their academic records. Some have never even seen a B. For those students, a C can be particularly traumatizing. According to Silverstein, “C-type grades virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention.”
Silverstein also advocates adding more scaling in the range between 2.7 and 4.0, which could be translated to a number grade.
The counter-points identified in the article are threefold:
1) Students shouldn’t get B grades for C level work;
2) Substantially Eliminating C grades causes problematic grade suppression;
3) Students will to work as hard if we substantially eliminate C grades (this is the only argument that Silverstein thinks has any merit).
My Pre-Interview Thoughts
I completely see the reasoning behind the first point and to the extent that it can be corrected, more power to him. We all know the job market is a tough place to be right now. Schools that inflate their grades get an advantage if an employer is looking at GPA as a factor for hiring (which we know they do). But, grade inflation in law schools is a controversial topic.
I’m a little skeptical of the second point. If you’ve been to law school, you know that getting a C is depressing. I’m no stranger to C’s. I’ve made them before. But, I never made a C after studying day and night before law school. It was crushing, I’ll admit; however, I wasn’t alone. Everyone in my study group made at least one. We all graduated. I finished with honors and I am gainfully employed (Sallie Mae thanks me for that). Overall, it wasn’t something that made me want to pack my bags and high-tail it out of law school.
Here’s my trouble with it: getting a C is only the tip of the ice burg when it comes to how law school can psychologically injure students. Also, if the problem is that students are defining themselves by their grades, that won’t change. If you get an “elephant” for a grade and all the “smart” people get “wombats” and “sea otters,” you know where you fit on the scale. Your class rank will be lumped in with the other elephants. In other words, the competitive feelings associated with relative performance don’t change at all.
The Rest of the Interview
JW: I remember the first C and it hurt, but it wasn’t as big of a stress as a lot of these researchers you cite seem to think it is. I realize that’s anecdotal though.
JS: For a lot of people I’m sure it’s not. Unfortunately, almost all of the evidence is anecdotal. There were only two scientific studies that were published that were useful and neither one of them controlled for class rank. I couldn’t even get data on how many C’s our UALR students get in undergrad because the school would not give me the documents. The general data does show that law school students get a lot more Cs in law school than they do in undergrad. I know people who got Cs and dropped out. I know people who got Cs and persuaded them not to drop out and they are now partners in law firms. That’s not the reaction we want students to have. After decades of trying to explain to students that Cs are not bad grades, we know it just doesn’t work. Grade inflation is the way to deal with that.
JW: What about doing more explaining of grades during orientation. Why not show graphs of what grades look like in other graduate programs compared to law school?
JS: It’s worth doing. Emily Zimmerman, who I cited, said that schools should be doing just that. It is something that I do in all my classes. It does not help very much. It might be a little more effective now that I know more about what to say.
One point that I make over and over again in my article is the fact that almost every other graduate program uses a 3.0 as a baseline for good standing. If it works there it can work here.
JW: It can be hard to hear your other friends in graduate schools talking about their 4.0’s. No one my class graduated with 4.0.
JS: I don’t think we’ve ever had anyone graduate with a 4.0. Ever. I think we had one student who got all A’s and one B+ since the 1980’s.
JW: I like what you said about controlling for class rank though. Part of the reason that I might not have felt so stressed about getting a C could be that my gpa was still OK overall.
JS: I do a huge summary of two studies. Great scholarship, but they did not control for class rank. Another professor, Grant Morris, says relative success is what students care about. So until we actually control for class rank, we won’t know for sure.
One of the things that we did at UALR was normalize grades. Before grade normalization, the average gpa was 3.06. After grade normalization, the average gpa was still 3.06. But, we inflated the letter values, even though we didn’t inflate the average gpa. The way we did that is that a “B” used to be worth 3.25 and now it is worth 3.0, etc. So we inflated the letter grades without inflating gpa.
That was the first semester that students didn’t come by to ask if they should drop out. Same gpa’s, but higher letter grades made students feel better about their abilities.
JW: I am less convinced about the psychological part.
JS: So am I.
JW: But, the first argument I find more convincing. Leveling the playing field could be a huge benefit. How well do you think it would work?
JS: I don’t know exactly how much it would matter, but I think it would matter enough to make it worth doing. Especially since the downsides are so minimal. The only really good argument against it is that it might encourage some people not to work as hard. It’s ultimately not that persuasive to me though.
What kind of surprised me was how many people believe that grades have such a deeply objective meaning. That they are an inherent objective measure of performance. That means that grades must have some important significant to some employers.
JW: Why use number grades? Won’t it take professors more time?
JS: You have to take more time to classify people, but you don’t spend extra time agonizing over people who are right on that line between B and B+.
Most people who want grade normalization don’t want grade equalization and vice versa, so I think that I take people off guard. I want equalization across schools and within schools.