COMPETITION AND THE CURVE
Professor Barbara Glesner Fines
In judging pedagogical issues, most law professors favor their own experiences as students: the best way to teach is the way they were taught. I suspect that I am no different in this respect. Unlike most faculty, however, I was taught without the grading game playing a central role in my education. My undergraduate education was at a small, public, interdisciplinary, liberal arts college, with no departments, no majors, no curricular requirements to speak of, no tests and, most critically, no grades. I loved my education. It stays with me today. I attribute that retention and enthusiasm to the learning environment of my college. And I attribute that environment largely to the absence of competitive grading structures.
I went on to a law school that worked diligently to avoid a competitive atmosphere--there was no ranking, many academic rewards were distributed without a primary reliance on grades, and diversity of student opinion and background were cherished. I finished my student career by obtaining my masters in law at a law school with no rankings, and the most generalized grading system one can find in the United States: pass, fail, honors. I believe that the de-emphasis of grades and ranking in my educational background encouraged, for most students, creativity of thought, academic integrity, intellectual enthusiasm, and deep learning.
Naturally, then, I will argue here that law schools rely too much on grading systems (as opposed to evaluation systems); that requiring norm-referenced grading undermines an effective learning environment; and that ranking is wholly counterproductive in a program designed to prepare individuals to serve justice. I begin with the question: why grades? I conclude that the primary reasons for our reporting of grades are not educational but economic: we grade because we need to sort our students for the marketplace. Part two of the article then examines the arguments and assumptions supporting institutionalized grading norms as a basis for that sorting. Part three explores what the choice to rate and rank students reveals about the values law schools prefer and the values that are discounted. The final section of the article provides some thoughts on change and resistance. For those readers who agree with the thesis that the grading practices of most law schools have profound negative effects, what reforms--institutionally or personally--can mediate these effects?
The process of "grading" has two parts. One part consists of the various processes used to assess students and their work.  The second part is the reporting of a portion of those assessments. An informed discussion of grades and grading should distinguish the assessment process from the reporting process. This section of the article will describe these two processes, particularly as used in legal education, and define grades in this context. The justifications for "grades" as defined will then be explored.
There are many methods of assessment: from the informal, at times almost subconscious, evaluations of the preparation and ability of students based on their oral analysis in class discussions, to the highly structured critique of a student's written analysis on a final examination or paper. Unfortunately, law faculty are notorious for limiting their assessment options to these two extremes. Short quizzes, reaction papers, and the like are not as common as in many other educational settings. Perhaps the increasing availability of technological resources, such as e-mail discussion lists and computer-assisted instruction will change this picture.  The purpose of this article, however, is not to lament once again our barren assessment methods,  nor to catalogue suggestions for improvement.  Nonetheless, we must recognize that often we employ only a small portion of the available tools for assessment.
Moreover, we report on the outcomes of even fewer of those assessment tools. Some of our assessments may not be reported to others at all, but are used to improve our own teaching. Surely all faculty have had the experience of realizing, after reading a set of exams or listening to student response to a series of questions in class, that students were hopelessly confused about a particular concept. Faculty might use this realization, drawn from the evaluation process, to adjust their teaching of that subject in the future. Several legal writing instructors reported in a recent e-mail discussion list that they frequently use their prior year's grading and comment forms as resources in designing the next year's class, thus clarifying the criteria for student evaluation and improving the instructor's teaching.  How often assessment is used to evaluate teaching is difficult to discover, since we studiously avoid sharing our assessments with others for this purpose. Perhaps the only instance in which we even begin to think about using the assessment of students as a tool for examining our own (collective) teaching effectiveness is when bar exam results are unfavorable. 
When we do report on our assessments, we may limit our audience to the students alone. For example, faculty may have students complete a short exercise to determine whether the students have absorbed a particular concept or to reveal misunderstandings or confusions. If feedback is provided while the learning process is still underway, these types of evaluations can communicate critiques to the student about his or her own learning The "practice midterm" is an excellent example of a common assessment tool with a limited reporting range. Again, the extent to which faculty report assessments for formative purpose is unclear. Likely one would find this type of reporting most often in first-year classes, as a response to the extreme anxiety of students, and in "skills" courses, where this formative evaluation is more traditional.
We rarely refer to this reporting of assessments to internal audiences as "grading." Rather, when we speak of "grades," we refer to the reporting of assessments to outside audiences, such as academic administrators, employers, parents or those who provide financial assistance to students. Just as there are a variety of assessment systems, so those assessments can be reported out in a multitude of formats: pass/fail, contracted grading, multiple marks to reflect performance on a variety of measures within one class, narrative evaluations, or dossiers.  Yet if the range of assessment tools used by law schools is narrow, the range of reporting systems used is even narrower. With few exceptions, law schools use symbolic codes--numbers, letters, or categories--to report their assessments.  In this article, I will be using the term "grades" to refer to this predominant method of reporting in law schools--that is, a symbolic code.
With only slight consideration of the broader alternatives for either assessment or reporting, law faculties debate our grading methods: normalization methods, numbers versus letters, curves and distributions, inflation and reliability. We rarely ask, however, "why do we grade at all?" What would happen if we rid ourselves of these marks? Conventional responses to this question would assert that grades are necessary to set educational standards, to motivate and discipline students, and to sort and rank students for distributing wealth.
In the debate over grading systems in law schools, particularly in discussions of "grade inflation," one is likely to hear an appeal to "standards."  Anyone proposing that we abandon grades must address the effect of an ungraded system on standards of educational quality. The argument favoring grades goes like this: grades are necessary for establishing and enforcing our standards of quality--without grades no one, including the students, will know or care about the quality of a student's education. Notice that when faculty make these arguments, they are not referring to setting standards for, or controlling the quality of, their own teaching. Indeed, law schools and law faculty are especially skeptical of the ability of any numerical system to accurately reflect the quality of their own institutions  or teaching.  Rather, the standards are those the individual faculty set for the students. Grades are then used as a means of communicating those standards to the students and to the outside world.
This standards argument assumes that, without grades, students and others will conclude that faculty lack standards of quality. This further assumes, of course, that grades mean the same thing to everyone: an A is an A and an F is an F. However, grades have as many meanings as the criteria with which we test. Different instructors produce grades in different ways, taking into account different criteria, including comparison to peers, comparison to evaluative criteria, effort, growth, or behavioral compliance (e.g., tardiness in assignments or class attendance and participation). The integrity of grades as tools for communicating standards depends on the clarity with which we identify and communicate these criteria.  In many instances, our criteria may be only vaguely defined. In other instances we may have clearly defined criteria, but we may not have communicated those criteria to the students. Even if one is truly testing against a set of clearly conveyed criteria, however, a symbolic grade does not communicate those criteria to anyone outside the classroom. In sum, there are too many variations in teaching and testing to be able to say that grades have a fixed meaning outside the classroom.
My purpose here is not to say that evaluation systems are unnecessary or invalid. Clearly one can have standards. Faculty can develop criteria against which student achievement can be measured. This is by no means an easy task- some may say impossible.  Yet in recent years, law faculties have begun educating ourselves more about teaching and about our students. Within the past three years, the American Association of Law Schools has sponsored major workshops of teaching and learning and endorsed a new section on Academic Support.  The Gonzaga Institute for Law School Teaching was established to provide support for research and exchange on pedagogy.  These efforts all attest to increased faculty interest in crafting pedagogically sound instructional objectives, procedures and evaluations.  But developing specific, assessable instructional objectives for these goals within an entire course and for each individual lesson is not enough. These objectives and procedures, once developed, must be communicated to students to create the most effective environment for learning. Finally, we must tailor our evaluation methods to match those instructional objectives.
Surely this process of developing, communicating and then testing criteria would provide for the competency standards that we may be seeking through grades. However, that criteria-referenced evaluation systems (i.e. standards) are possible does not support the additional argument that enforcing those standards requires translating those evaluations into a single numerical or letter symbol and reporting that symbol. One could devise a system in which grading is criteria-referenced and the reporting of assessments would include an explanation of that criteria.  Without this context, however, single-symbol grades have no meaning in communicating standards. 
Another strand of the standards argument posits that grades are necessary, not to prove that we have (undefined) standards or to communicate those standards, but rather to motivate students to meet those standards. The merits of this argument require careful scrutiny. As the next section of this article points out, arguments about student motivation are often grounded on generalities, ill-supported by any evidence. Given the observational standpoint of most faculty, however, these fallacies often go undetected. Since grades worked for most faculty, we assume they work for our students and are wont to blame the students, rather than ourselves, for failures.
Even if we acknowledge that grades do not serve as a benchmark of quality with clear meaning, they do operate as a powerful incentive. Grades are the basis for distributing a multitude of rewards and punishments.  Students use grades to define themselves in positive or negative fashion, as in "I am a B student."  Many faculty would assert that, without grades, students won't work.
A pure behavioralist model tells us that individuals will respond to reinforcement. That reinforcement model is the basis for the argument that grades are required to motivate student learning.  Reinforcement however can come from a variety of sources. Educators and motivation theorists differentiate sharply between extrinsic and intrinsic rewards as motivational tools.  Those who argue that grades are necessary base their position on the power of extrinsic rewards.
The question is not whether grades induce learning:clearly they do. Indeed grades may be one of the most efficient methods to induce learning behaviors. "[E]xtrinsic inducements always work more quickly and powerfully than intrinsic ones. Students can be motivated to learn almost anything if promised a sufficiently attractive external reward."  The question is, rather, whether intrinsic rewards could provide a sufficiently powerful motivation that we could effectively dispense with grades. Study after study confirms that grades are not necessary to motivate learning. 
Faculty members who have taught a pass/fail course in a school in which marks are given are likely to howl in disagreement. Their experience supports the theory that grades are necessary to motivate students:in pass/fail classes (or for students who elect a pass/fail option for an otherwise graded class) students simply do not work as hard as they do in graded courses. The difficulty with relying on these experiences, however, is that they arise in a context of comparative reward systems. Extrinsic rewards motivate in a powerful, immediate, and direct fashion; intrinsic rewards, while equally powerful in the long run, are more subtle and indirect in their effect.  Thus, in a system in which some classes are rewarded with grades, most students are likely to direct their efforts toward these classes and away from other, perhaps more intrinsically rewarding subjects. 
Eliminating grades entirely would do much to create the conditions for encouraging intrinsic learning motivations. However, other fundamental reforms would likely be necessary to truly rely on intrinsic reward as the source of motivation for students. Intrinsic motivation cannot be forced, it can only be encouraged and supported. Law school structures do not tend to provide the types of flexibility and student control that would be conducive to this support. 
The extreme cynic of student behavior would say that no amount of restructuring would result in intrinsic motivation for law students. This view of students characterizes them as so directed toward extrinsic reward that they have failed to develop any intrinsic reward systems (such as love of learning or enjoyment of effortful accomplishment). While individuals do vary in the degree to which their orientations are toward intrinsic or extrinsic reward, it is an over-simplification to suggest that individuals are exclusively oriented in one direction in all situations.  Nonetheless, as a society, we may have so firmly entrenched anti-intellectualism, with its message that one learns only for reward,  that encouraging learning for its own sake may indeed be quite difficult. In its very cynicism, however, this most extreme argument--that students simply will not learn at all without grades--is self-defeating. For if we have truly arrived at this dismal state of anti-intellectualism, the solutions are not to be found in grading systems but in massive cultural change. "No curricular overhaul, no instructional innovation, no change in school organization, no toughening of standards, no rethinking of teacher training or compensation will succeed if students do not come to school interested in, and committed to, learning." 
Even if one takes the more moderate position that grades, while not fundamentally necessary to learning, are simply more effective and efficient in motivating students in an environment of formal education, the argument for grades is not settled. It is not enough to say that grades motivate students to learn. To adequately justify the use of grades on the basis of motivation, we must say that grades motivate students to learn effectively and that they motivate more than they discourage. Yet both of these conclusions are difficult to support.
First, a wide variety of studies reveal the irony that success (as measured by citation frequency for scholars, salary for business people, and grades for students) is inversely correlated with extrinsic (comparative) orientations.  The highest achievers according to traditional measures of success are those who are least motivated by these extrinsic rewards.  For those who are motivated by extrinsic reward, the primary motivation that grades provide is the motivation to get good grades. That motivation is not necessarily the same as the motivation to learn.  When one is learning to get a grade, the focus is on strategies for short-term learning, and on finding shortcuts to success. Research indicates that this approach to study is unlikely to be effective in creating long-term learning, that it undermines intrinsic interest in learning, and that it leads to reduced effort overall.  Thus, to the extent we create an academic climate in which the external reward for learning (i.e. grades) is overemphasized at the expense of intrinsic reward, we undermine long-term, deep learning. 
Indeed, for many students the presence of powerful extrinsic rewards can be a significant disincentive to truly effective learning.  As this article will demonstrate in section III, this negative motivational impact is not distributed equally among students. Some are discouraged more profoundly by these strong external reward structures than others.
Even if we wish to dismiss these conclusions and insist that extrinsic rewards are necessary, it does not follow that grades are the necessary reward. In law schools, there are always extrinsic rewards--the credential and the competitive advantage in practice of having a sound education. There are external threats as well-- the bar exam, discipline and malpractice. Thus, we could conclude that these less immediate extrinsic rewards could be used along with more subtle intrinsic rewards to achieve an effective learning result even without reporting grades. But how, one might ask, would we be able judge the relative abilities of students if we would adopt such a system? Let us turn to this final justification for grades.
If we can conclude that grades are unnecessary, even counterproductive, for the purposes of communicating and enforcing educational standards, or for motivating and disciplining students, are there any additional reasons to use grades? Yes, answers legal education, we need grades to screen, sort and rank students on a comparative basis. This sorting serves a number of purposes. Some screening is needed for basic administrative functions. Do students get credit for a course or need they repeat the class? Have students met our minimum requisites for graduation? Of course, these administrative functions rarely require a sorting beyond that of pass or fail.
In addition to basic credentialing, however, a great deal of wealth is distributed based on our grade currency.  Financial aid may be based on maintaining or achieving a particular grade average. Law review membership and many of the other academic awards are distributed only to the top percentage of the class, determined by rank.  If we did not sort students, how would we be able to distribute these awards? Even if we decided that within our institutions we could eliminate some honors or distribute them on a basis other than cumulative grade point average (GPA) and rank in class, we would lose a competitive edge in obtaining benefits for our strongest students. Increasingly, financial aid opportunities are distributed based on GPA or rank.  Employment opportunities too would be lost for our students were we to eliminate grades, or even the ranking of students. Since the most elite (large firm) employers generally screen applicants based on their rank, eliminating ranking would disadvantage our students vis a vis comparable schools that continue to provide this efficient screening mechanism for employers  unless, of course, the school itself is ranked high enough to give a competitive edge to all its graduates even without ranks. Certainly eliminating grades entirely would be a risky proposition for law school placement programs.
Accordingly, there are very powerful arguments that law schools need grades and sorting in order for their students to remain competitive.  This competitive edge for our students translates into a competitive edge for our institutions. We gain institutional prestige by attracting students with high numerical credentials and by placing those students in elite settings. We may even assume that this placement will reap direct rewards of stronger financial support from our alumni.  Given the increasing reliance of even public law schools on private funding by large firms, one could argue that, in a sense, the very survival of a law school could hinge on its ability to sort students. 
There is a less direct way in which evaluating and sorting students on the basis of comparative grades may be seen as critical to the competitive edge of law schools. Sorting students is a very efficient method of grading. Proceeding under the assumption that our purpose is simply to sort students according to their performance (or, even less demanding of our teaching, according to their ability), we need not concern ourselves with criteria or with teaching to that criteria. Moreover, the effect of creating a system of competitive credentialing for external markets is to "redirect conflict from hierarchical to lateral lines. Thus students compete against one another but never collectively challenge teachers or departments over the validity of their evaluative tasks as measures of knowledge."  Without a need to articulate, justify or coordinate our grading criteria, we have considerably more time and resources for activities that are more likely to increase our institutional prestige (the production and dissemination of scholarship) or our individual financial reward (consulting).  I hate to mire myself in the cynicism that says that we are simply paying students in the currency of credentials for their participation in a system designed to justify our power.  Yet one must consider that there may be very fundamental conflicts in the life of academic lawyers that impact their day-to-day choices in carrying out their roles. As our colleagues in the academy have observed:
Legal academics are, like other professional groups, "jealous of our prerogatives, comfortable with the way things are, and intensely conservative about matters as central to our selfhood as what and how we teach .... We are threatened by discussions of values, by messy human emotions, by personal involvement with students or clients ...." And we have managed to create a structure that maximizes our autonomy and keeps messiness at bay. 
Concluding that we need grades to sort students and that we need to sort students to be competitive, faculty next must consider whether the grading decision should be constrained by institutional policies. The approaches law schools take to these institutional grading policies can be readily categorized. Schools differ according to the range of symbols they provide for grading, the presence of ranking, and the approaches to constraining grading decisions. This article will not consider those few institutions that simply do not provide grades for sorting purposes. These schools can be found almost entirely at the most elite end of the spectrum, where, one assumes, they have concluded that ranking and sorting is unnecessary and even counterproductive to their competitiveness.  Of the rest of the schools, most do use symbolic grades, translate those grades into a GPA, and then use that number to calculate a rank.  Even those schools who do not officially rank students often provide charts with distributions of grades according to percentages, allowing at least a percentile ranking.  Further, most schools have taken the additional step of requiring faculty to apply some standardized mean or curve in awarding those grades.  The arguments for normalization assume the necessity of grades, concede that different faculty grade differently, and conclude that a curve is necessary.
Advocates of required grade curves argue that these curves are necessary to insure consistency in grading, and thus equity in the ranking process. Some of these arguments about equity contain hidden judgments about the greater validity of norm-referenced versus criteria-referenced systems. When we hear arguments about grade normalization or required curves, we often hear reference to distributing the inequity of "easy graders" or "hard graders." These labels are extremely value-laden and unpacking their content may be useful to our discussion of the reasons for requiring grading curves and normalization systems.
The characterization "easy grader" may be used to communicate a message that the instructor is either dishonest or incompetent. The view of easy grader as dishonest posits that faculty whose grades are consistently higher than the norm, regardless of the rigor of teaching or testing, are awarding grades on an illegitimate basis:to avoid the more difficult task of differentiating students, to curry student favor, to increase enrollments in their classes, or to improve student evaluations of their teaching. This may indeed be accurate for some faculty. For example, if faculty are rewarded for good student evaluations, and if one can, by the simple expedient of giving out plenty of high grades, increase those evaluations, the temptation is great to exercise grading discretion in that direction.
While most research shows a connection between student ratings of teaching and overall teaching effectiveness,  many faculty perceive that students also evaluate teaching based, in part, on the student's prediction of the strictness or leniency of a faculty member's grades.  There is some research confirming this perception. The more certainty with which a student can predict his or her grade, the more likely that expected grade might impact their evaluation of the instructor.  Thus, for example, research confirms the suspicion of legal writing instructors that their early and frequent evaluation of students impacts their teaching evaluations more directly and negatively in comparison to their colleagues who do not distribute grades until after student evaluations are completed.  The existence of these perceived incentives to provide high grades creates the suspicion that easy graders are indeed succumbing to the temptations of academic dishonesty.
Not all uses of the term "easy grader" connote dishonesty. An alternative characterization implied by the term is incompetency. The easy grader is incompetent in teaching to the extent that the substantive demands on the students are inadequate. This characterization rests on the notion that, in order for many students to receive high grades in a class, the faculty member must have set standards for a course too low, eliminating challenge and learning. Alternatively, the faculty member may be lazy or incompetent in devising examinations that are not sufficient discerning of student ability. This position contains an entire set of assumptions about teaching, learning and testing. One assumption is thatstudents have significantly different innate abilities and that the distribution of those varying abilities is consistent across categories:that is, once a 'D' student, always a 'D' student. A second assumption is that ability determines achievement. A third assumption is that no amount of teaching can change either ability or achievement.  If one accepts these assumptions, one must conclude that grades, measuring either ability or achievement, will reflect that "natural distribution" and that instructors who fail to recognize this fact of life are being unfair to those students with higher ability and are fooling no one except themselves. These assumptions are entrenched even further by those normalization systems that assign the first-year students to classes according to numerical predictors, that allow for exceptions to the curve based on past grade achievements by the students in the class, or that adjust the rank value of a grade achieved in a course based on the GPA of other students in the course. 
The assumptions are poorly supported by empirical evidence, however. Grades are poor indications of ability.  Likewise, ability is only one of several factors that correlate with grades, others being student motivation, instructor ability and motivation, and course objectives and organization.  One study for example found that only one quarter of the variance in achievement could be accounted for by cognitive ability. That study concluded "in stressful situations, therefore, non-cognitive intrapersonal variables may become predominant determinants of learning, irrespective of actual ability levels."  Furthermore, even when ability is a factor, evidence seems to demonstrate that as the conditions of teaching improve, differences in ability fade in importance in predicting grades.  "Modern research has shown that the seemingly direct relationship between aptitude or intelligence and school achievement depends upon instructional conditions, not a probability curve. When the instructional quality is high and well matched to students' learning needs, the magnitude of this relationship diminishes drastically and approaches zero." 
Thus, there is a third, more positive, view of easy graders: that the easy grader is one whose teaching and assessment methods have validity and whose students achieve at a high level because of that teaching. Understandably, just as those faculty who perceive leniency in grading as negative are unwilling to make these assertions directly, lenient graders are unwilling to claim the superiority of their teaching relative to their colleagues. Rather, in the debate over institutional grading policies, faculty often simply allude vaguely to the "easy graders" in our institutions. To unpack these arguments is to involve ourselves in evaluating the honesty and competence of each other's teaching, testing and grading.
The hard grader too can be criticized as either incompetent or dishonest. Whereas the easy grader's incompetency is in the substantive arena, the hard grader's incompetence is in teaching methodology. Since the instructor is unable to translate his or her expertise to a novice level of communication, students are unable to demonstrate any mastery. Alternatively, these faculty have set unrealistic standards for their students. Disdainful of the judgment of their colleagues, with a distinct antipathy toward the careerism of today's law schools, they are still operating in the "look to your right, look to your left" days of open admissions and high attrition; they do not recognize the high caliber of admittees today. Or they are dishonest. Heedless of student criticism--or perhaps happy to keep their class enrollments low so that they will have fewer teaching demands--they delight in the ego satisfaction of demonstrating their superiority over their students.
Of course, there is another view. These faculty may indeed be operating on good faith determinations that high standards of quality can and must be maintained through the grading process. With an increasing supply of lawyers and an increasing criticism of their abilities--the call for greater rigor and higher standards is not without support.  One might surmise, for example, that hard graders are simply more aware of the standards of practice in the bar and consider their fundamental role as a gatekeeper to the profession.  Moreover, some subjects may be more intrinsically difficult than others, so that student achievement will be lower. Once again, however, we are unwilling to detail these arguments, since to do so is to rank ourselves and our teaching against that of our colleagues.
While the terms "easy grader" and "hard grader" often carry pejorative connotations, the legitimacy of strict bell-curve graders is rarely questioned. In part, this may be because faculty are unwilling to accept that criteria can be legitimately developed and applied for the purposes of assessing grades. For criteria-referenced graders to win the day, they must demonstrate that legitimate standards can and do exist. It is much easier to prove the proposition that all students are created unequal--thus providing the legitimacy of curve grading--than that one has developed a set of criteria for grading that has integrity. We can prove differences among students more easily than we can demonstrate the validity of assessment criteria.
Yet the argument is self-defeating. If we critique the criteria-referenced graders on the basis that there is no legitimate way to evaluate and mark against a standard, we have also conceded that our ranking of students one against each other is untenable. For relative performance still must be measured against some benchmark. Student A is better than student B at what? The insistence of curved grades accepts as a legitimate benchmark only those criteria that allow students to be sorted. It says nothing about the appropriateness of using one set of criteria over another or of the relationship between the grades resulting from these criteria and the overall learning goals we may have set for students. In the curve approach to grading, the student group sets the standards for performance, not the instructor. Any claims of educational superiority for the curved-grade standards are just as suspect as the claims of easy or hard graders for the superiority of their grading methods. As one educational critic has suggested, "it is not a symbol of rigor to have grades fall into a 'normal' distribution; rather, it is a symbol of failure-- failure to teach well, to test well, and to have any influence at all on the intellectual lives of students." 
Justifications for institutional grading policies can mask some very potent judgments about ourselves and each other:unspoken judgments about the honesty or competency of our colleagues, or judgments about the arbitrary nature of grading in general. Required norm-referenced grading is a politically acceptable but logically unresponsive solution to the problems identified in these judgments. The solution to arbitrary grading, to incompetence and to dishonesty, is not to distribute the arbitrariness, incompetence or dishonesty. In some of the arguments over grade normalization I feel as though we have devised a system in which we distribute wealth to those who are struck by lightening and are simply arguing about whether we should give everyone an equal chance to stand under a tree.
If the political reality is such that we regard our sorting process as a critical institutional function, then even if we recognize that lenient or strict graders may have perfectly legitimate reasons for their grading practices, we may nonetheless conclude that those grading practices should be constrained. Institutional grading policies often are justified as necessary to even out differences among faculty in grading practices.  These policies are grounded in a distributive justice rationale--given that faculty differ significantly in their grading practices, and given that the rewards and punishments allotted to students may be profoundly affected by the chance of their assignment to particular professors, normalization policies are required to achieve equity. While we are perfectly willing to allow individual faculty members the freedom and power to teach and assess according to whatever approach they please (assuming minimal competence), we are unwilling to grant individual faculty the ability to control the external distribution of rewards.
Both hard graders and easy graders distort the competitive process.  Consider the effect of those graders who give more than their "share" of very high grades. Schools may justify required grade means or distributions on the basis of the need to control these lenient graders. Particularly in those schools where labor market and academic rewards are especially limited, one member of the faculty should not have disproportionate control over the currency that grades represent. Indeed, it is unfair if a student's chance of being chosen for Law Review or for an interview with the elite corporate firm is based on the chance of being assigned to one particular professor rather than on merit.
Likewise graders who give an inordinate number of substandard grades distort the competitive process. The likelihood of a student graduating (or graduating on time) can be determined by the random chance of their assignment to these hard graders. Moreover, in the intra-institutional competitions for placement of our graduates, these strict graders have an impact. If the student who graduates at the twenty-fifth percentile from hard grader's school has only a 3.5 GPA, one can surmise that she will be competitively disadvantaged over the student from a competing school with the same rank in class but a higher GPA.
Educators recognize the power of these extreme, even if principled, grades in the competitive reward structures of education and the employment market.
[A] zero has a profound effect when combined with the practice of averaging. Students who receive a single zero have little chance of success because such an extreme score skews the average. That is why, for example, Olympic events such as gymnastics and ice skating eliminate the highest and lowest scores; otherwise, one judge could control the entire competition simply by giving extreme scores. 
If our primary justification for institutional grading policies is to insure that the competitive process of sorting our students should operate without this distorting impact of extreme grades, then we should craft our normalization policies to reflect this purpose.
Often, the limited application of many normalization policies and the variety of exceptions allowed undermine the equity goal. For example, one of the most widely used institutional grading policies --required mean grades--is unlikely to achieve our goal of constraining extreme grading. If all that a grading policy requires is a "B" average for example, Professor Bunch can give very few A and F grades, while Professor Spread can award a significant percentage of extreme grades and still achieve the required mean. Since the unfairness of faculty grading is felt most acutely at the extremes of the grade curve, policies should require fairly rigid distributions of grades.  Otherwise, the unfair extremes in grading and the distortions based on assignment to one or another professor will still occur. Moreover, these policies should apply most strictly in those courses where students are subject to the "chance" factor and where grades are most likely to impact the distribution of reward. Consistent with this rationale, most schools do apply these policies more strictly to first-year or required courses.  The greater the equity we desire to create in these systems, the more rigidly we must craft our normalization policies.
Accordingly, if a grading policy is justified by providing an equal playing field, one must be careful in evaluating the impact of any exceptions to the policies. Many schools create exceptions for small classes, seminars, or courses in which exams are not the primary grade determinant. These "seminar exceptions" may be based on two rather divergent rationales:one relies on the randomness of ability, the other relies on the educational effectiveness of these classes. The first rationale exempts small classes from a curve because these classes do not provide a statistically significant sample--there is less likely to be a random distribution of ability in these classes, so we cannot expect a curve to result. Even if there is a random distribution of ability, many seminar classes allow such a degree of flexibility in the products by which students are measured (e.g. seminar papers) that we do not trust our ability to adequately differentiate student ability in these settings. The operative assumption here is that the purpose of law school is to test the ability of students to perform rather than to teach the students to perform ably. 
However, given that these seminar exceptions usually do not completely eliminate the requirement of a curve, but rather increase the required means or broaden the distribution requirements, another rationale seems equally likely. This rationale accepts the legitimacy of higher grades when instructional effectiveness is higher. The rationale is well supported by educational literature. Students do truly learn better in smaller rather than larger classes.  Students do learn better when they have more formative evaluation (such as rough drafts, practice arguments, etc.)  Students do learn better when they have the ability to choose their topic of study (as is often the case in seminars). 
Despite the educational justification for these exceptions, we have undercut the equity rationale if we do not insure that the access to these seminar classes is not also equally distributed. Otherwise, that ability of students to shop for grades (or even to shop for education) will be based on factors irrelevant to merit: their flexibility in scheduling, their savvy in understanding the enrollment process, or their luck in the course lottery. We may conclude that some chance is inevitable and we will simply choose to tolerate this degree of inequity rather than undercut the educational effectiveness of allowing reward to follow achievement in these small classes. A good indication of prioritization of the value of equity against the value of merit would come in the proposal to teach one portion of a first-year class in these seminar class formats. Would we allow an exception to apply here? 
Another inequity could be created by the distribution of students in classes. Again, assuming that ability is one immutable characteristic, randomly distributed among students,  our required means and distributions would be unfair if students are not evenly distributed by ability in classes. Thus, some institutions attempt to even out this inequality by assigning students to first-year classes to insure an even distribution of their admissions numbers.  Likewise, exceptions to grading policies in upper-level classes may be adjusted to reflect an unusual distribution of ability in the class, usually to be measured by the GPA of the students in the class.  The difficulty with this extreme effort to achieve "equity" is that, not only does it assume teaching can have no effect on performance, it also oversimplifies the concept of "ability." Current mind-brain research reveals that individuals who have a variety of abilities and strengths in one area do not necessarily have equal strength in another area.  While it may be that law school is indeed focussing on only one narrow range of these abilities, it seems equally plausible that different classes may call upon students to demonstrate (or develop) different abilities.  Relying on past grades to predict performance (and to control grade allocations in future classes) is unfair to those students whose greater abilities are not tested or revealed (or developed) until later in the educational process. 
Thus, we must be careful when we approach the equity rationale for our institutional grading policies. Obviously we cannot entirely eliminate inequity in our sorting processes. Some students will have an advantage over others based on the chance of their available resources and competing demands when entering law school. Some will have the chance advantage of a better match of professor to their learning style. We seek to eliminate the inequities of chance resulting from our own control over the educational process--the assignment to classes and professors. But we cannot eliminate even this inequity entirely without creating the inequity of students not being able to receive the rewards they deserve based on their effort and achievement. How much inequity will we tolerate? What reasons will we give for tolerating this inequity? In answering these questions, we privilege certain roles and values in our educational process over others.
The choice to retain grades, and especially to retain a system of ranking, is justified best by our role in sorting students for the distribution of wealth. Other educational justifications-- setting and maintaining standards or motivating learning--are less defensible. The choice to require means and distributions of these grades is best justified by a concern for fairness in that sorting function. What do these choices reveal about our priorities as educational institutions? Section two of the article examines some of these conflicting priorities.
How an institution grades says a lot about what it values.  Further, what a school values is determined in part by the values of the society in which it operates. Educational institutions are "socially constituted relevance systems, reflecting and amplifying larger sets of social and cultural values in the emphases they give to kinds or ways of knowing."  Thus, one can view our priorities in grading systems as a subset of the values of the larger society. In the grading debate, the competing values include individualism and collectivism, competition and cooperation. "Regular swings in the number and nature of grading systems seems to correspond to larger swings in societal concern for standards, accountability, and the ranking of people on the one hand, and individual growth and group consensus and support on the other."  This section of the article will demonstrate that an institution's choice to retain symbolic grade reporting systems, to emphasize grades through ranking, and to enforce the use of ranking through normalization efforts has the effect of privileging the values of competition and control. These same choices underprivilege other values:learning, equality, and professionalism.
Critics have identified some implicit values served by legal education, such as hierarchy,  patriarchy,  or the adversary ethic.  When we choose to award grades for the purposes of ranking students, especially when that ranking is required by a normalization policy, we further entrench the value of a competitive, hierarchical system.  In part, law schools are simply reflecting the greater society's values. From our economic and labor policies to our selection of public officials, from the boardroom to the ballfield, our society has prized a system for distributing wealth based on winning a battle, contest or game. 
Education is no exception:"competitive" has become a synonym for "high quality" in our description of educational institutions. As with American education generally, competitive learning is the norm within most law schools. So ingrained into our education system is the norm of competitive learning, that "most teachers misunderstand the very word cooperation; they use it to refer to obedience .... We have another word for genuine cooperative effort:it is cheating."  Yet law schools are also powerful cultural agents themselves, amplifying these values as they distribute greater power and prestige to those who achieve the most under these competitive conditions.
Grade normalization policies do create and intensify a competitive atmosphere in education. If a student asks a professor "How do I earn an A in this class?" a professor operating under a policy of required means and distributions cannot simply describe the criteria of a good exam answer. For a student in such a class, fulfilling each of these criteria--no matter how specific, objective or verifiable they may be--is neither necessary nor sufficient. The truly honest answer is "Do more and better than 90% of your classmates in the exam answer." Students need not perceive the niceties of the distribution scheme to be aware of its operation. The shuffling of social order that occurs after the first semester of law school is evidence that students are acutely aware of their relative standing and are measuring themselves and others according to that standing.
Some would argue that law schools are not encouraging competition through our grading systems, but are simply meeting consumer expectations. This argument posits that law students are highly competitive and would sort themselves in a hierarchical fashion regardless of the grading systems used. Thus, one could conclude that we should grade students on a curve and rank them based on grades because this is what they expect. It may be that students who choose law as a career are more competitive by nature than others in society. It may even be that students expect (some may even desire) competition. Neither of those premises, however, undermines the position that we are exacerbating competition by meeting this presumed expectation. Educational institutions can be agents of cultural change; yet law schools, with rare exceptions, have not chosen to resist the cultural norms of competitive ranking.
This comparative evaluation process serves an important function in a competitive, meritocratic society. As one educational researcher has commented:
[Schools] may promote the notion that competition is, if not the only way people can live, at least the best way. Acceptance of such a system would induce students who doubt their competence to accept their lowly place or, at least, to opt out and not challenge the system. Academic anxiety, unrealistic levels of aspiration, and academic alienation would be seen as necessary aspects of the process whereby students of low attainment come to accept their place in the "natural order." In turn, alienation, lack of effort, and pursuit of nonacademic goals might, in the eyes of students and teachers, further justify low status and restricted freedom and responsibility. 
If students judge their own abilities and opportunities based on their relative ranking on academic tests, they are prepared to accept and maintain a society that values competition as a basis for distributing wealth and a society in which the terms of the competition are set by those who have won in the past.
The competition in law schools is controlled by winners--legal academics are, by and large, top ten-percenters from top ten-percent schools.  By virtue of our achievements, we take control of the educational process as resident experts and judges.  We recognize that our control of academic programs can be an underlying cause of inequity:our justifications for required means and distributions are based on principles of equity in the competition for distributing grade wealth. Law school grade normalization practices make it clear that the inequity sought to be alleviated is that which results from the "chance" assignment to an instructor with extreme grading practices. That chance is the result of the lack of student control over the terms of the competition. We rarely question this allocation of control. While the rules of professional conduct emphasize the importance of sharing control in the lawyer-client relationship,  the teacher-student relationship in law schools is one in which the teacher is clearly in charge.
Some see this control as domination. Dean Roger Abrams' recent characterization of legal education reflects this view:
We select the best, the brightest, and the most interesting and diverse group of students (even in an era of declining applications), and then we proceed to transmute this gold into straw, a reverse alchemic process. Students learn from their professors that success flows from elitist bullying and from the obnoxious exercise of arbitrary power. Nurturing is not part of the educational process. Respect is a one-way street. 
Many faculty would take the more moderate position that gross authoritarianism is on the wane in law schools and there is an increasing place for nurturing in teaching. Nonetheless, in the place that our control counts economically--grades--we still exercise near absolute control. We consider "grade shopping" an evil, we limit pass/fail options, and we restrict grade appeal processes or "second chances" to the most extreme cases. We could, however, reconsider these and many other aspects of student control over the grading process.
Just as the proponents of a participatory model of the attorney-client relationship emphasize the value of individual autonomy,  so too autonomy would be advanced by greater student control in legal education. Greater participation by students in setting the terms of the competition could have significant educational benefits for students:encouraging the development of intrinsic orientations toward learning,  encouraging greater personal responsibility, and reducing counterproductive anxiety. 
Any time that educational policies encourage faculty to move from "sage on the stage" to "guide on the side" protests arise that faculty control is necessary to insure effective, challenging education.  But lowered standards or minimal expectations need not result from a respectful and supportive relationship with students. Indeed such a relationship is crucial to student willingness to engage themselves in dialogue. Thinking skills can most effectively be developed in the classroom by creating "a stress-free, cooperative classroom condition where experimental ideas can be risked, alternative hypotheses explored, and answers changed with additional data; where value is placed on creative problem-solving strategies rather than on conformity to 'right' answers."  Just as in the attorney-client context, participatory relationships are not inconsistent with challenge or effectiveness, they only require a surrender of some control and an increase in open communication.
Surrendering some control does have some significant political implications, however. When students are given the power and responsibility to formulate their own learning tasks, they approach learning with greater flexibility and creativity and a greater sensitivity to nuance. "It is these aspects of inquiry that give birth to new social movements and political orientations, and that are central in the emergence of insight."  While we may not intend to stifle these innovative or iconoclastic approaches to legal thought, the more we control our student's learning, the more we model conformity. 
Our choices of grading systems not only sustain the values of competition and control, but the educational research indicates that these values are preferred at the expense of other equally fundamental values. The more we emphasize the importance of competitive grading and ranking structures, the more these detrimental effects will result. We must take care to delineate our observational standpoint when exploring these negative effects of ranking and competition. The narrow range of experience with legal education that is represented on law school faculties can lead to bias in our assessments of educational practices.  Those who have had their own excellence defined in terms of their relative ranking may "overlook the problems associated with a preoccupation with one's rank in hierarchy of competence."  In learning and teaching, in equality of learning, and in professionalism, competitive grading systems do present significant costs.
While grades are not necessary to teaching and learning,  their use strongly impacts those processes.  One of the aspects of grading that is the most detrimental to teaching and learning is the practice of required grade curves. "Grading and reporting should always be done in reference to criteria, never on the curve. Using the normal probability curve as a basis for assigning grades typically yields greater consistency in grade distributions from one teacher to the next. The practice, however, is detrimental to teaching and learning."  If students are measured against each other on a competitive scale, rather than against an objective norm, competitive learning strategies will predominate. Why are these strategies so inferior in terms of real learning?
Competitive learning structures create external motivators (grades and status) rather than internal motivators (excitement and curiosity). Evenfor the student who is ordinarily intrinsically motivated in learning, "evaluative, competitive conditions have been found to diminish intrinsic interest."  For the majority of students, external reward and a competitive environment do not inspire maximum effort. For the students who see themselves as winners, little additional effort will be put forth. Indeed, to the extent that one is measuring one's own ability in reference to others, the less effort required to achieve the same reward as others, the better. For if one puts forth significant effort, that implies lesser ability than one who accomplishes the same amount through lesser effort. Winning requires, not only achieving the most, but making it look easy.  Notice that if intrinsic motivation is at work, the opposite effect on effort will be seen. When one is focused on the task ("learning for learning's sake") satisfaction comes not only from the end result (accomplishment) but also from the process of achieving that result (effort).  Extrinsic and intrinsic orientations are, in most learning situations, mutually exclusive. 
In the tasks chosen, as well as the effort expended, extrinsic orientations tend to undermine learning. "[An intrinsic orientation] appears likely to foster sensitivity to problems ... and to favor the selection of tasks that might require high effort rather than those that might quickly enhance one's image."  Thus, while proponents of grade normalization policies argue that the equalizing effect of these policies reduce the incentives of students to "grade shop," the overall effect of these policies-- by emphasizing a competitive ranking--is to create these very incentives. Competitive students may no longer be shopping for the "easy graders" but they are quite likely to shop for the courses to which the normalization policies do not apply or to arrange their schedules with a percentage of pass/fail credits so as maximize their investment in and chances for beating the curve in their graded classes. 
For students who have resigned themselves to being losers ("I'm a C student"), the impact of competitive conditions on motivation is even more pronounced.  While grades may in some instances act as carrots, they rarely function well as sticks.  When one has an extrinsic orientation toward a task, effort will reflect the extent to which one has assessed his or her relative ability to achieve well on the task. For most students, grading practices of law schools undermine perceptions of ability, with a detrimental impact on task choice and effort.
Low levels of confidence can affect choice of learning tasks in a variety of ways. Students may, like others, simply look for the easiest way to their C grade. Or they may act in seemingly self-defeating ways:overloading class schedules with highly demanding courses. As a form of self-handicapping, this approach provides excuses for their expected failure, thus reducing the threat to self-esteem. 
Most commonly, an extrinsic orientation combined with self-doubt leads to a reduction in involvement overall.  When we see students with lower grades performing poorly, we tend to infer that their poor performance causes their poor grades. In fact, the opposite causality may be operating. Students whose grades are disappointing to them--not even inherently "bad" grades-- are not necessarily motivated to challenge themselves more or work harder. Rather they are more often found to withdraw.  We may associate this withdrawal with our curriculum or the lure of clerking jobs. We may even conclude that these students have simply chosen to invest their resources elsewhere. Indeed, third-year "malaise" may be read as evidence that grades are all that motivate students (i.e., since the rewards are all distributed by that point, student no longer have motivation).  However, this phenomenon may reveal an even more fundamental flaw in our use of grades to motivate learning:that is, that withdrawal from learning is the disheartening result of the very process we believe is providing motivation.
For those students who do compete in earnest, the nature of the effort expended differs from the effort inspired by an intrinsic motivation. Educational psychologists have consistently demonstrated that competitive learning gives the poorest results in educational attainment.  Studies of adult learners indicate that the detrimental results of competitive learning environments hold true for older students.  Competitive learning is directed toward achieving the highest grade rather than the best understanding.  Thus, exam taking strategies, last minute cramming, and commercial study guides will replace thoughtful conceptualization and creative problem solving.  When a student is studying a subject for a grade rather than for intrinsic learning, he or she will more likely cut short their analysis and end their learning when the perceived reward is likely. 
Moreover, competitive situations tend to lead one to dichotomous thinking. While we encourage our students to "see both sides of the question", clearly the superior students are those who can go beyond the either/or of a situation, and explore a variety of perspectives.  The competitive process of learning does not encourage this creative, more open-textured approach to subjects: creativity and inefficiency in study approaches pose greater grade risks. In contrast, cooperative learning situations lead to significantly different motivations and outcomes in learning than do competitive environments. "[P]eople who feel accepted by others also feel safe enough to explore problems more freely, take risks, play with possibilities, and 'benefit from mistakes rather than [endure] a climate in which mistakes must be hidden in order to avoid ridicule."'  Not only does competition reduce effort and effective learning approaches, it also increases anxiety, which in itself is a significant inhibitor for learning overall.  In many ways, then, the presence of, and emphasis on, competitive grading has detrimental effects on motivation, cognition, and resulting learning.
Once again, this affect is "most pronounced among those who believe, rightly or wrongly, that they stand little chance of winning."  That the adverse effects of competitive grading structures impacts those who have least confidence in their own abilities is only one way in which competition undermines equality in learning. The next section will explore other ways in which we underprivilege this value by emphasizing ranking.
Ironically, the major reason law schools cite for adopting grade normalization policies also provides an important argument for abandoning these policies:fairness.  Grade normalization policies are premised on a theory that, in the competition for grades, it is unfair to allow the extreme grading patterns of some faculty to skew the results. However, if the effect of grade normalization policies is to produce other inequalities in the competition, the goal of fairness is illusory. "Competition cannot be fair if competing with others itself produces inequalities."  Grade normalization policies focus attention on and thereby increase the competitive atmosphere of law school.  Educational research and the testimony of our own students indicate that, for a substantial number of students, highly competitve learning environments undermine motivation and increase anxiety and alienation, all of which damage the quality of learning.
As the prior section outlined, the adverse effects of competitive grading structures impact those who have the least confidence in their own abilities. In task choice and in the amount and nature of the effort expended on tasks, those students who doubt their abilities will make poor choices regarding learning goals and approaches compared to other students whose confidence is high.  One can dismiss this effect by concluding that those with low confidence have simply assessed their own inability accurately. If they put forth less effort, there is little harm since greater effort would not result in greater achievement. The problem with this analysis is that self-confidence is not an accurate proxy for ability.  Rather, confidence is a complex amalgam of prior experience, personality, and setting. 
A student's preferred learning style may be an important factor in the extent to which competition undermines confidence, motivation, and achievement. One way to characterize learning styles is as "field dependent" or "field independent."  Field dependent students are those who learn best when they first have the "big picture" and whose learning is influenced significantly by their environment.  These students are especially influenced by expressions of confidence or doubt.  Competitive grading environments have a disproportionately negative impact on these students, as they are overwhelmingly designed to send messages of doubt rather than confidence:"instead of celebrating the success of learning, a testing culture emphasizes what was not learned."  Our system of equity, then, by creating and emphasizing the critical role of comparative ranking, undermines the learning motivation and abilities of field-dependent learners.
This inequality is perhaps even more troubling when one considers that field-dependent learners are found more often among Euro-American women and among African-American, Mexican-American, Puerto Rican and Native American men and women.  We have only just begun to explore the implications of how our learning environments have differential impacts on those students who represent classes of persons historically disenfranchised by the legal system and by society.  From a number of perspectives, however, one can see how a learning environment that prizes individualistic competition and conformity would impede certain groups of students more than others.
Consider the effect of a competitive environment on women. Studies of women's experience in law schools reveal, to a greater or lesser extent, that the competitive learning environment may undermine the learning experience for more women than men.  For example, as the prior section of this article reported, the demotivating effect of competition is greater for those students who doubt their abilities. More women than men are prone to self doubt, so the inequality of motivation engendered by competitive grading environments will disproportionately impact women.  In general, research seems to indicate that "the more competitive an academic program was perceived by women, the poorer their performance, while the relationships were in the opposite direction for males."  This effect may also be attributable to the force of socialization into a competitive culture, which may affect more women than men. Research in the development of ethical systems indicates that more women than men may have value systems that prefer cooperation over competition.  A student's ability to learn is likely to be hampered if an educational environment is at odds with that student's basic values.
Likewise, the competitive nature of law school may be especially alienating to those students whose race and culture lead them to value community and cooperation more than individualistic competition.  These law students experience an added sense of estrangement from the law school community.  In turn, this estrangement can promote the self-doubt that undermines motivation and effective learning.  "Although most law students, regardless of their race, feel a certain level of alienation from law school, this is likely to be more acute and have clear racial overtones for African American students, perhaps particularly for African American women, who are already distrustful of the dominant white culture." 
To the extent we prioritize competition, control, and uniformity in our educational systems, we need to recognize that we are de-emphasizing equality of learning environments. One response to this critique may be that we are simply preparing students for the world of law as it is. If students cannot operate well in a competitive atmosphere, they will not be able to perform well as lawyers because the practice of law is competitive.  In other words, "if you can't take the heat, get out of the kitchen."  The essentially conservative nature of this response is revealed if we consider that, while much of law practice may indeed be competitive, success could be measured by the extent to which one is able to transform the nature of the system. For example, there is evidence that practicing lawyers have begun to recognize the high transaction costs associated with competition and have moved in many arenas to less adversarial models.  Simply because one does not prefer to operate in a competitive learning environment does not make one less fit to practice law. Maybe some people are stifled by the kitchen, but they are also the ones who will find a way to bring in fresh air.
Of course, to the extent that competitive environments may be beneficial to some students, one also faces the specter of inequality no matter how the educational program is structured. "Often, law students are too complex and too variable to be uniformly affected by any single teaching method. Some students will benefit academically and some will suffer, on a relative basis, from the use of any given group strategy."  However, the evidence of educational research at all levels supports the conclusion that, for the vast majority of students, the more one emphasizes grades and ranking, the more one undermines effective learning. The equality argument against grade normalization, then, should not should be heard as one which seeks to lower academic standards in order to accomodate certain groups of students. Rather, grade normalization policies should be questioned, not only because they have negative effects on learning, but also because this negative effect is unevenly distributed.
Not only do grade normalization policies interfere with learning by fostering highly competitive learning environments, these policies also teach affirmative lessons. In our quest for equity in grading, we should consider what these lessons might be. One clear lesson of competitive grading systems is the "do- it-alone rule."  Despite the importance of team work in most professional settings,  law schools rarely provide learning experiences fostering cooperative work.  Classroom dialogues often discourage student-to-student interaction outside our direct control.  Opportunities for students to work on teams are rare outside the context of clinical or skills settings.  Team teaching is even rarer.  The grading systems of law schools emphasize that the exercise of individual skills in a competitive setting consititutes competence. 
One competency that all lawyers require is effective interpersonal communication skills.  Once again, however, we find that the competitive norm advanced by our grading systems interferes with the development of competence. Communication in competitive structures tends to be "unreliable and impoverished."  In contrast, in cooperative learning environments students listen to one another more carefully and express their ideas more fully. 
The reason for this interference with interpersonal communication skills can be found in the attitudinal effects of competitive learning environments. In order to compete effectively, one must objectify one's opponent--turn them into a rival. Educational psychologists note that competitive environments decrease the tendency to exercise and develop empathy and altruism.  In some instances, this "battle" mentality can lead to disturbing stereotyping and group isolation. As one study of female law students revealed, for example, battle lines may be drawn on the basis of gender.
[A] student at the Law School, reported that some of her male colleagues chose their upper-level law school classes based on the number of women enrolled in each class. Women were perceived as "Q-absorbing" buffers, with Q ("Qualified") being the lowest passing grade on formal and informal grading curves. These men assumed that their own chances of receiving a grade higher than Qualified increased as the number of women enrolled in the class increased because the women would absorb a disproportionate number of the Qualified grades. They sarcastically referred to large groups of women in a class as the "Q quotient." 
These implicit lessons have obvious implications for a profession struggling with issues of civility, respect and the ideal of public service. 
At a time when even "successful" lawyers are increasingly dissatisfied with the practice of law, law schools may want to consider their contribution to this decline.  In studies of lawyer satisfaction, certain consistent themes reveal themselves. Attorneys say that they do not find an intellectual challenge in the practice of law and that they have become disenchanted with the lack of respect from their colleagues.  To the extent the competitive learning environments in law schools undermine intrinsic orientations toward study  and encourage competitive behaviors among peers, they have modelled the very conditions that are causing attorneys to drop out (or burn out) at higher rates than ever before. As Albert Einstein once commented:
one should guard against preaching ... success in the customary sense as the aim of life .... The most important motive for work in the school and in life is the pleasure in work, pleasure in its result, and the knowledge of the value of the result to the community .... Such a psychological foundation alone leads to a joyous desire for the highest possessions of men, knowledge and artist-like workmanship. 
Law schools have a critical role to play in the development of professional identities of our students.  We should be mindful, then, of the implicit messages created by our systems of assessments and rewards. Emphasizing the importance of the competitive aspects of law schools emphasizes an extrinsic orientation toward learning and provides disincentives for developing professional attitudes toward working with one's peers.
Perhaps the most worrisome aspect of our choice to emphasize competition is the powerful incentive to cheat created by that emphasis. In law schools, the competition for grades can lead to a variety of behaviors designed to gain unfair advantage:ranging from the subtle undermining of peers by discouraging active learning  or hoarding resources  to outright cheating and plagiarism.  Admittedly, the attitudes and behaviors of some students are not likely to be influenced by the educational environment. For perhaps sixty percent of our students, however, the culture of the schools will have an influence on cheating.  Nor can we conclude that cheating is a problem confined to the desparate students whose abilities do not allow them to succeed. The students most likely to cheat come from all ends of the educational spectrum.  When law schools emphasize the critical role of ranking and competition in learning, they exacerbate the incentives to cheat. Once again, then, to the extent that required grade curves and distributions are justified on the basis of equity in competition, law schools should also consider that the more competitive the environment created, the greater the probabilities that students will seek to skew the competition.
I have argued that when law schools choose to impose institutional requirements for grading curves, they emphasize competition to the detriment of learning, equality and professionalism. The value of competition is a powerful cultural norm. Faculty steeped in and, advantaged by that norm, may have difficulty questioning the fundamental premises of this norm:that competition encourages excellence and that those who win are those who deserve to win. Indeed faculty may not easily conceive a measure of merit that is not comparative. Arguments to the contrary, such as those presented here, seem inflated, counter-intuitive, pollyanna. Yet, decades of educational research at all levels supports the basic premise that competitive grading environments can interfere with learning. Our own experiences as faculty tell us that students use our numerical labels as a basis for measuring their own worth and that of others. Our own numbers reveal that the range of abilities of our students has narrowed over the years and the vast majority truly are all "above average." 
Admittedly, a true meritocracy has significant advantages over alternative methods for distributing wealth. As one commentator, arguing for traditional grading systems, commented, "[i]f what you know doesn't count, in the competitions of life, who you know will determine the outcomes."  I do not argue here that we need strive for or pretend to absolute equality for our students or eliminate sorting entirely. I do argue, however, that we can balance the necessary task of sorting students with our equally important task of providing environments that enhance, rather than diminish, motivation and learning. 
In this section of the article, I preach to the converted. Even if we are inclined to accept the indictment of competition, political realities press upon us to overlook these negatives. Law schools are unlikely to eliminate grades, rankings, or required curves. Yet, we need not conclude that nothing can be done to counteract the competitive influence of these grading systems. In conclusion, then, I offer some recommendations for mediating the negatives of competitive ranking at the institutional and individual level.
How can law schools diminish the the negative effects of required grade curves? One way to reduce the negative effects of competition and to encourage intrinsic motivation toward learning is to lower the stakes for grades. Each additional reward or punishment linked to grades fuels competition. At at institutional level, then, we should question the wisdom of multiplying rewards for students with the very highest grades. For many of our awards, we could devise additional or alternative criteria for the selection of prestigious awards (such as law review membership, scholarships, or honor societies).  Of course, the requirements for many of these rewards, such as honors societies or scholarships, may be outside of the law school's control.
Nonetheless, were law schools willing to supplement the rank and GPA information with other, richer reporting systems, they might influence these outside decisionmakers to broaden their criteria. Another step toward lowering the stakes, then, would be to create these richer reporting systems--not to displace the ranking system, but to supplement it. I will provide one, perhaps idealistic, example:an optional portfolio assessment program.  In such a program, students could choose to prepare a standardized portfolio, representing their achievements in legal education. The faculty could, as a whole, set the terms for the type and quality of materials to be prepared in the portfolio (legal memos, brief, drafting, analytical essays, videos of interviewing or oral argument, etc.). Criteria for judging each item could be developed and faculty would agree to act as a panel of judges for the portfolios. Students could then, in their various classes, prepare the materials to submit to the panel for judging. Teachers in these classes would not be on the panel, but would act as teachers--facilitating the student's learning so as to improve the product to be judged. The judging panel would not provide extensive commentary or diagnosis:they would merely determine whether the submission is acceptable or not. If not acceptable, the student could continue to work with their instructor, and with others, to improve the product for resubmission.
Consider the learning advantages of a system that would provide a rich "evaluation product" for students to use in marketing themselves:no mere writing sample, this, but a group of samples reflecting the competence of the student, as judged by a group of faculty. Students would not be competing with one another, since the program is voluntary and competency based. Students would have significant control over the specific topics and timing for learning. Of course, such a program would be extremely expensive.  One can imagine that a significant number of students might opt to participate, creating a large workload for faculty. Assuming that a faculty is truly interested in improving the learning environment, however, such an investment would reap rich rewards for the students. Whether it would be worth the investment for the faculty would depend on the institution's overall valuing of teaching versus other uses of faculty resources. More limited investments in richer reporting systems are available, of course. Faculty need only explore the options and choose to invest in one or more.
Timing issues could also affect the competitive atmosphere of a law school. In most law schools, the heat of competition is felt most by the first-year students, for whom grades take on critical importance in the allocation of most institutional rewards. A bold school could delay ranking until the second semester, or even the second year of law school, could base first-year grades on a pass/fail system, or could weight the cumulative GPA to give greater emphasis to upper-level grades. Where grades are used to restrict access to law school programs, such as Law Review, seminars, or competitions, we should be especially wary that our academic reward systems do not aggrevate inequality by providing richer, more effective learning opportunities for some students than others.
In addition to lowering the stakes of grades, institutions can work to create environments that emphasize intrinsic learning by providing exciting and valuable ungraded programs. These programs can be as simple as lecture series or as complex as pro bono service requirements or formal attorney mentoring programs. The key factors in these programs are student choice, relatedness  and active involvement.  When students have an opportunity to interact with faculty, judges, legislators and practicing attorneys as "near peers," the learning climate changes considerably. Students focus on long-term learning and intrinsic interest is emphasized.
Finally, law schools should have institutional programs to enhance the ability of all students to achieve competence, usually referred to as academic support programs. The optimal model of such a program would be to integrate academic support across the curriculum. That is, each faculty member would create learning environments, in their choice of materials, classroom presentations, and examination techniques, that recognize the diversity of student values and learning styles. Each faculty member would be available and committed to working with individual students to achieve mastery. Again, the investment in teaching required to establish such a comprehensive program would be signficant. Less elaborate models are available, however. Well designed academic support systems can provide greater individual feedback and more flexible learning opportunities, as well as provide non-cognitive support to students. 
Even assuming that law school inertia, resources, or culture obstructs creating instituion-wide offsets against competition, individual faculty can take steps to improve the learning environment in the face of competition. Just as law school could lower the stakes for grades, so too faculty should avoid unnecessarily allocating rewards and punishments to students based on their grades. We need to be especially sensitive that our behavior toward students--our tone and approach to classroom interaction or willingness to supervise projects, answer questions, attend social functions,--is not influenced by knowledge of the student's rank in the class.  Likewise, grades should be used only for academic assessment:the use of grades to control nonacademic behavior (class attendance, for example) encourages a grading orientation. 
Some faculty may feel as though spreading the competition over a greater number of exams or evaluation systems would neutralize the effect of competition. After all, if a student's grade does not depend on only one final exam, would this not lower the stakes? While such an approach might indeed reduce student anxiety over individual exams, it would be unlikely to decrease the orientation toward grades. Indeed, the more we stress extrinsic rewards (such as a complex system of credit points or multiplying grading events) the more we encourage a grading orientation. 
We could, however, give students greater choice and control in the approaches to learning and evaluation.  Competitions can become more positive, with a greater support for intrinsic orientations, when the conditions of entry are not controlled solely by others. In the classroom, this may mean we abandon efforts to force class participation and instead search for techniques that encourage this participation.  In preparing our syllabi and course materials, we could provide students with alternative assignments and approaches to mastering the material. In designing evaluation systems, we could foster more positive competition for grades by giving students greater choice and control over formats, timing, and even content of exams. 
The best steps individual faculty can take to discourage a grading orientation, however, are simply to model an intrinsic orientation and to instruct with the expectation that students are also intrinsically oriented. If we approach our teaching with an extrinsic motivation, not only will our own performance as teachers suffer, but we will also provide a poor role model for students. Does our teaching reflect reluctance to engage with students? Are we excited about guiding students in their learning? Or does our entire approach to teaching and students indicate that the amount and nature of our teaching effort depends on the degree to which it is compatible with external reward structures? If we set and strive for high goals for teaching effectiveness and craft our own teaching packages so as to maximize our own enthusiasm in teaching, we will not only make our jobs more satisfying but we will model the intrinsic orientation toward learning and professionalism that we would desire in our students. 
Enthusiasm for the subject and respect for the students can make a critical difference in the effectiveness of teaching.  Thus, we should design our instruction to provide students formative, rather than evaluative, feedback. This means avoiding graded assignment while students are still learning and but providing constructive critique and opportunities for individual work.  Classes should not be structured so that the only time material is reviewed or synthesized is in preparation for the final exam. The language we use to discuss assignments and the expectations we convey to students about those assignments will affect student motivation. While it may be a quick fix to student inattention in class to say "On the exam, I will require that you ....", to encourage a learning orientation our language should sound more like "I am looking forward to hearing your views on the reading for today ...." We should not be reluctant to provide students with "extra curricular" learning opportunies in or outside the classroom. While only a few students may follow up on our guidance for further reading or research on topics, we have provided an important message about the intrinsic value of learning when we suggest that students can "read more about it." Overall, we should not allow our systems of grading to control our systems of teaching or evaluation:"grading should flow from course objective and instructional strategies, not vice versa." 
Respect for students includes valuing their diversity. We should review our teaching materials and methods for unintended biases and monolithic approaches. The increasingly rich literature devoted to teaching approaches that enhance diversity can be a powerful source for re-examining our own teaching.  However, often the best source for feedback on our own teaching is right at our door. Since we may often be blind to our own preferences, improving our teaching to enhance our sensitivity to diversity issues will generally require that we open our classrooms and textbooks and invite the scrutiny of our students, colleagues, and others. 
Finally, faculty can encourage a cooperative atmosphere in learning. Creating formal structures for peer teaching can accomplish this goal. As a method of structuring the standard curriculum, one may hypothesize that pure peer teaching is rare.  The closest equivalent in curricula may be found in student academic activities such as moot court  or law review,  where students guide one another through the competition or article preparation process. It is difficult to say how much pure peer teaching is structured into the daily classroom setting.  Seminar classes in which students present papers to one another may be the most common example. Without a thorough survey of all legal educators regarding all their classes, however, we cannot know how much peer teaching is structured into courses themselves.
There are considerable advantages to structuring our courses to include cooperative learning devices.  Where peers interact in learning there tends to be both a cognitive and an affective difference in the approach to the process by both participants.  Rather than viewing the relationship as one in which knowledge is given from teacher to student, the peer learner is more likely to see the process of working with another peer as a cooperative one in which both participants are actively learning.  Structured opportunities for students to teach one another can provide significant benefits. For the peer teachers, the teaching that takes place is cognitively different from that of a faculty member's teaching. Since the peer has only recently learned (or is currently learning) the material being taught, the peer teacher is more likely to consciously think through the steps of the learning process than one who has greater expertise.  The combination of a greater opportunity for empathy on the part of the peer teacher and a lesser need for deference from the peer student creates an affective environment in which the student peers view themselves as partners in a process of learning.  Thus, the peer teacher and learner will engage in a cooperative, active process of constructing knowledge. 
Faculty can begin structuring cooperative learning opportunities into their courses in some rather simple steps. The "think, pair and share" strategy is a highly efficient and effective method of classroom cooperation. In this technique, students think about the answer to a question in class, then work in pairs to share the results of their thinking.  Likewise, faculty can structure reading and study assignments to encourage students to work in groups. Faculty may even, to the extent their institution allows, base all or a portion of final grades on these cooperative learning tasks. 
Of course, I can only skim some of the approaches to teaching effectiveness that can best promote learning, equality and professionalism. A plethora of resources exist for faculty who truly wish to improve their teaching to enhance any one of these values. Faculty should not delude themselves that there are many extrinsic rewards in devoting energy to improving the academic climate for these values, however. However, for those so inclined, the intrinsic rewards of influencing the development of these values in our students, and thus in society, are immense.
This article has attempted to outline some of the larger questions raised by grading systems in legal education. Examining the justifications for grades leads one to the conclusion that we grade our students not so much for educational purposes but for much the same purpose that we "grade" eggs--to sort a product for the market. I have assumed that the overwhelming majority of faculty would consider ranking important to the ability of law schools to maintain their viability and contribute to the meritocratic system of allocating power in the legal community. Given that assumption, I agree with those faculty who conclude that our institutional grading policies constrain the power of individual faculty to distort the ranking process, though I explore the extent to which these same policies may also mask more subtle judgments about the propriety of our colleagues' grading practices.
The focus of this article is on the other values--beyond fair competition-- that are impacted by our institutional grading policies. Drawing on educational and cognitive science research, I have explored the extent to which our competitive grading focus interferes with effective learning, disadvantages some students, and encourages unprofessional attitudes and behaviors. Recognizing that, despite these disadvantages, most law schools will not abandon required grade curves, I then explore some options to lessen these negative effects. My purpose here is to exhort more than instruct, however. If I have accomplished my purpose, faculty will collectively and individually examine the balance of values we promote through our grading policies. We will recognize that, without this reflection and informed choice, the task which most faculty wish to spend the least amount of time and effort on-- grading-- can have the most profound effect on the environment in which we teach and learn.
. Educational literature often further divides assessment into that designed to be formative--used for diagnosis and feedback in learning--and that designed to measure outcomes. See Thomas R. Guskey, Making the Grade:What Benefits Students?, 52 EDUC. LEADERSHIP 14 (Oct. 1994).
. Cf. Richard A. Matasar & Rosemary Shiels, Electronic Law Students:Repercussions on Legal Education, 29 VAL. U. L. REV. 909, 929-30 (1995).
. For an excellent lament, see Janet Motley, A Foolish Consistency:The Law School Exam, 10 NOVA L. REV. 723 (1986).
. See, e.g., Arturo Torres & Karen Harwood, Moving Beyond Langdell: An Annotated Bibliography of Current Methods For Law Teaching, 1994 GONZ. L. REV. 1 (providing by subject-matter, bibliographic lists of texts that discuss alternative law school teaching methods).
. E-mail discussion comments from firstname.lastname@example.org. Copies of individual messages on file with author.
. See Ken Myers, Low Grades from the ABA Spur Unique School to Traditional Path, NAT'L L.J., May 6, 1996, at A12 (CUNY law school plans to do away with its pass/fail grading system in response to low bar passage rates criticized by ABA inspection team).
. See generally Hal Malehorn, Ten Measures Better than Grading, 67 CLEARINGHOUSE REV. 323, 323-24 (July-Aug. 1994); James A. Bellanca & Howard Kirschenbaum, An Overview of Grading Alternatives, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND MARKS 51-62 (Sidney B. Simon & James A Bellanca, ed., 1976).
. In her 1993 survey of law school grading practices, Nancy Kaufman found that all but three of the 120 responding schools used either letters, numbers, or a high pass/pass/fail system of grading. See Nancy H. Kaufman, A Survey of Law School Grading Practices, 44 J. LEGAL EDUC. 415, 416 (1994); see also Robert C. Downs & Nancy Levit, If It Can't Be Lake Woebegone ... A Nationwide Survey of Law School Grading and Grade Normalization Practices, 65 U.M.K.C. L. REV. 819 (1997).
. J. Harvie Wilkinson III, Legal Education and the Ideal of Analytic Excellence, 45 STAN. L. REV. 1659, 1662 (1993) ("There is ample reason to recognize, however, that undifferentiated grading threatens the quality of legal education and compromises the ideal of analytic excellence.... The real concern is that grade inflation suggests the reluctance of the law school community to subject itself to standards.").
. Frank T. Read, Legal Education's Holy War over Regulation of Consumer Information:the Federal Trump Card, 30 WAKE FOREST L. REV. 307, 309- 10 (1995).
. See, for example, the comments of John Mixon & Gordon Otto, Continuous Quality Improvement, Law, and Legal Education, 43 EMORY L.J. 393, 436-37 (1994):
Law schools do not systematically ask their customers whether they are well-served, and most managers (deans) and workers (professors) show little inclination to find out. The merest suggestion brings howls of complaints that students do not know what is good for them, that customer feedback (particularly in teaching evaluations) is suspect, that the practicing bar has nothing useful to say, and that law school faculties best serve their customers by producing law review articles.
. See William Prosser, Lighthouse No Good, 1 J. LEGAL EDUC. 257 (1948) ("At last, mustering his courage, the young man comes to the great question:How do you teach law? And the old professor, who is at least a very truthful man, answers him as he was himself answered so many years before:'I don't know. None of us knows."').
. Ken Myers, Learning About Teaching Is Topic At 96th Annual AALS Meeting, NAT'L L.J., January 8, 1996, at A16.
. Steven I. Friedland, How We Teach:A Survey of Teaching Techniques In American Law Schools, 20 PUGET SOUND L. REV. 1, 2 n.5 (1996).
. R. NICKERSON, ET AL., THE TEACHING OF THINKING 329 (1985).
. Patrick J. Dowling, Beyond Letter Grades, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND MARKS 87-94 (Sidney B. Simon & James A Bellanca, ed.)(1976).
. Howard R. Pollio & W. Lee Humphreys, Grading Students, in ASSESSING STUDENT LEARNING 85, 91-92 (James H. McMillan, ed., 1988).
. For example, Dean's list, Latin honors, Law Review membership, probation & dismissal are all often based on grades or rank. See Roger C. Cramton, The Current State of the Law Curriculum, 32 J. LEGAL EDUC. 321, 328-29 (1982).
. Commenting on the reaction of students to shifts to ungraded systems, Alfie Kohn, Grading:The Issue is Not How but Why, 52 EDUC. LEADERSHIP 38, 41 (Oct. 1994) notes that "Some older students may experience, especially at first, a sense of existential vertigo:a steady supply of grades has defined them."
. RAYMOND J. WLODKOWSKI, ENHANCING ADULT MOTIVATION TO LEARN 56-57 (1993).
. See Kohn, supra note 20, at 39 ("Not only are these two orientations distinct, but they also often pull in opposite directions.").
. Joseph Lowman, Promoting Motivation and Learning, 38 COLLEGE TEACHING 136, 137 (Fall 1990).
. See Guskey, supra note 1, at 14. For example, Francis B. Evans, What Research Says About Grading, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND MARKS 30, 40-41 (Sidney B. Simon & James A Bellanca, ed., 1976) describes one study that compared the performance of 1500 high school students in traditional, graded college preparatory programs, with 1500 students in ungraded programs. After controlling for many potentially significant variables (age, sex, religion, socioeconomic background, previous grades, and others), the study concluded that the ungraded students received higher college grades and were considered by college faculty to be "more intellectually curious, resourceful, and more objective in their thinking." Id.
. Lowman, supra note 23, at 138.
. See id.; see also Evans, supra note 24, at 45.
. See B.A. Glesner, Fear and Loathing in the Law Schools, 23 CONN. L. REV. 627, 658 (1991).
. See Jan Nespor, Grades and Knowledge in Undergraduate Education, 22 J. CURRICULUM STUD. 545 (1990) ("global characterizations of students as ... 'grade-oriented' or 'learning-oriented' seem too inflexible to explain the situational specificity of students' academic orientations ....").
. See generally LOUIS STEINBERG, BEYOND THE CLASSROOM: WHY SCHOOL REFORM HAS FAILED AND WHAT PARENTS NEED TO DO (1996); DUMBING DOWN, ESSAYS ON THE STRIP-MINING OF AMERICAN CULTURE (Katherine Washburn & John Thornton, ed., 1996).
. STEINBERG, supra note 29, at 194.
. See JOHN G. NICHOLLS, THE COMPETITIVE ETHOS AND DEMOCRATIC EDUCATION 130-31 (1989) (citing studies of physical and biological scientists, mathematicians, architects, research psychologists, business persons, artists, and students at all grade levels).
. "[E]xtrinsic attractions must usually be offered indefinitely for the behavior to continue. In contrast, intrinsic interests are slower to motivate new behavior and less certain of being effective, but they are usually more lasting once they take hold." Lowman, supra note 23, at 137.
. WLODKOWSKI, supra note 21, at 215 See infra text at notes 109-30 for elaboration of these principles.
. See infra text at notes 109-30.
. See infra text at notes 118-21, 132-51.
. A significant percentage of which appears to be distributed in the first year of law school. See Cramton, supra note 19, at 328-29; Henderson, supra note 12, at 424; Lani Guinier, et al., Becoming Gentlemen:Women's Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1, 28 (1994).
. Mark A. Godsey, Educational Inequalities, the Myth of Meritocracy, and the Silencing of Minority Voices:the Need for Diversity on America's Law Reviews, 12 HARV. BLACKLETTER J. 59, 74-76 (1995).
. See, e.g., Elizabeth Shogren, Clinton Moves Quickly on Education, Proposes Tax Credits and Deductions, L.A. TIMES, Feb. 6, 1997, at 22 (students in the top 5% of a class would qualify for $1000 Presidential Honors Scholarship).
. Heather S. Woodson, Evaluation in Hiring, 65 U.M.K.C. L. REV. 931 (1997).
. Mixon & Otto, supra note 11, at 467.
. See D.N. Campbell, On Being Number One:Competition in Education, PHI DELTA KAPPAN 143, 145 (Oct. 1974) (sorting turns schools into "bargain-basement personnel screening agencies for business").
. One might presume that if alumni earn higher salaries, their alma maters may expect larger endowments. Of course, alumni contributions and law school academic policies may have no correlation whatsoever. Cf. Marin Roger Scordato, The Dualist Model of Legal Teaching and Scholarship, 40 AM. V.L. REV. 367 (1990). ("Given this ... financial dependence upon tuition and alumni contributions, one might predict that law schools would most highly value those skills in their faculty that are perceived by students and potential students as most directly serving their interests .... This, however, is clearly not the case.").
. Deirdre Shesgreen, The Legal Academy's Cash Cow Law Firms Are Shelling out Big Bucks to Law Schools, Raising Concerns about Undue Influence, LEGAL TIMES, Jan. 27, 1997, at 1.
. Nespor, supra note 28, at 549.
. "The reward system of most law faculties strongly favors writing law review articles over creating innovative courses or developing new teaching materials." John O. Mudd, Academic Change in Law Schools, Part I, 29 GONZ. L. REV. 29, 60 (1993-94). See also David J. Turner, Publish or Be Damned, 31 J. LEGAL EDUC. 550, 555 (1981) ("A rigid application of the 'publish or perish' doctrine does not calculate the relative values of the professor as counselor and the professor as publisher but blindly requires the latter role."); Cramer, Academics After Dark, 1 AM. LAWYER 23 (Dec. 1979) ("When a professor is late with his work, seems semi-conscious in class, or is the first one out the door, students suspect that he may be moonlighting."). For similar arguments in the context of changing assessment practices in English departments, see Chris M. Anson & Robert L. Brown, Jr., Large-Scale Portfolio Assessment:Ideological Sensitivity and Institutional Change, in PORTFOLIOS:PROCESS AND PRODUCT at 248, 261 (Pat Belanoff & Marcia Dickson, ed., 1991).
. See, e.g., Nespor, supra note 28, at 554.
. Deborah L. Rhode, Missing Questions:Feminist Perspectives on Legal Education, 45 STAN. L. REV. 1547, 1548 (1993) (quoting Cramton, supra note 19, at 332-35).
. Downs & Levit, supra note 8, at 822, 843.
. See JOSEPH LOWMAN, MASTERING THE TECHNIQUES OF TEACHING 17 (2d ed., 1995) (review of research literature demonstrates strong correlations between teacher effectiveness and student ratings and generally weak correlations between leniency of grading and high student ratings.).
. There is some limited support for this perception. See James G. Nimmer & Eugene F. Stone, Effects of Grading Practices and Time of Rating on Student Ratings of Faculty Performance and Student Learning, 32:2 RESEARCH IN HIGHER EDUC. 195, 207-09 (1991).
. Surprisingly, most United States educators appear to hold this belief. See Thomas Toch, et al., The Case for Tough Standards, U.S. NEWS & WORLD REP., Apr. 1, 1996, at 52 (reporting study conclusions that "a very strong belief that academic achievement is mostly a matter of natural ability.").
. See Nicholas L. Georgakopoulos, Relative Rank:a Remedy for Subjective Absolute Grades, 29 CONN. L. REV. 445, 446 (1996).
. RAYMOND J. WLODKOWSKI & MARGERY B. GINSBERG, DIVERSITY AND MOTIVATION 276-77 (1995); Evans, supra note 24, at 35.
. LOWMAN, supra note 53, at 5, 257; Boyle, The Role of Interpersonal Psychological Variables in Academic School Learning, 25 J. SCHOOL PSYCH. 389, 390 (1987).
. Boyle, supra note 60.
. Guskey, supra note 1, at 16 (citing B.S. BLOOM, HUMAN CHARACTERISTICS AND SCHOOL LEARNING (1976)).
. For example, the McCrate Report concluded "law school graduates are not prepared to practice law without supervision." Report of the Subcommittee on Hearings and Conferences of the Task Force on Law Schools and the Profession:Narrowing the Gap, reprinted in SECTION ON LEGAL EDUCATION AND ADMISSIONS TO THE BAR, A.B.A., LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT--AN EDUCATIONAL CONTINUUM 386 (1992).
. It would be a fascinating study to empirically correlate faculty grading patterns with years of practice experience (or with a range of other characteristics such as age, gender, and subject matter). Of course, the widespread acceptance of institutional constraints on grading make such an investigation difficult today.
. O. MILTON, ET AL., MAKING SENSE OF COLLEGE GRADES 225 (1986).
. Institutional grade guidelines may also serve the purpose of setting a grade mean that will advantage students in their intra-institutional competition in the job market. While important issues, I will not explore grade inflation and grade competition among schools here.
. See, e.g., Georgakopoulos, supra note 58, at 455.
. Guskey, supra note 1, at 19.
. Downs & Levit, supra note 8, at 837.
. Cf. Richard A. Epstein, Grade Normalization, 44 S. CAL. L. REV. 707 (1971).
. Downs & Levit, supra note 8, at 839, 840.
. See supra text at notes 57-63, for a discussion of this assumption.
. The research on class size and its impact on learning is complex and somewhat contradictory. However, the most recent, well documented and designed research, indicates that in classes smaller than thirty students, a number of positive changes in both teacher and student attitudes and behaviors occur. See NATIONAL EDUCATION ASSOCIATION, WHAT RESEARCH SAYS ABOUT CLASS SIZE 1-11 (1986).
. LOWMAN, supra note 53, at 204-05; WLODKOWSKI, supra note 21, at 220- 27.
. WLODKOWSKI, supra note 21, at 283-86.
. Professors Feinman and Feldman's report of the controversy that arose regarding their experiment in a mastery learning course provides some evidence that educational rationales will be subordinated to equity rationales. Jay Feinman & Marc Feldman, Pedagogy and Politics, 73 GEO. L.J. 875 (1985). Likewise, the negative reaction of faculty to Professor Tushnet's proposal that grades in a first-year class could be based entirely on group products points to the priority given to individualized, competitive evaluation. Mark Tushnet, Evaluating Students as Preparation for the Practice of Law, 8 GEO. J. LEGAL ETHICS 313, 317 & n.17 (1995).
. See supra text at notes 59-63 for a discussion of the evidence against such an assumption.
. Downs & Levit, supra note 8, at 832, 840.
. Epstein, supra note 71.
. HOWARD GARDNER, FRAMES OF MIND (1983).
. Jeffrey Evans Stake, Who's "Number One"?:Contriving Unidimensionality in Law School Grading, 68 IND. L.J. 925 (1993); Georgakopoulos, supra note 58, at 446 ("Fields of law may draw on different talents, such as qualitative versus quantitative reasoning, rule versus relationship orientations, or formal versus intuitive reasoning.").
. See Nespor, supra note 28, at 555 ("any system of evaluation and ranking based on performance in one set of tasks tells us little about how people will perform on tasks embedded in other systems of activities.").
. Pollio & Humphreys, supra note 18, at 85, 86.
. Gene L. Piche, Class and Culture in the Development of the High School English Curriculum, 1880-1900, in RESEARCH IN THE TEACHING OF ENGLISH 11, 17 (1977).
. Pollio & Humphreys, supra note 18, at 90.
. D. KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY (1983).
. Guinier, et al., supra note 37.
. Thomas L. Shaffer, The Unique, Novel, and Unsound Adversary Ethic, 41 VAND. L. REV. 697 (1988); William H. Simon, The Ideology of Advocacy:Procedural Justice and Professional Ethics, WIS. L. REV. 30, 36-37 (1978).
. See Bellanca & Kirschenbaum, supra note 7, at 56 ("Grades establish a meritocracy that rewards conformity and compulsive compliance and discourages individuality and creativity.").
. ALFIE KOHN, NO CONTEST:THE CASE AGAINST COMPETITION (1992) [[hereafter NO CONTEST].
. Id. at 26-27.
. NICHOLLS, supra note 31, at 160.
. See Robert J. Borthwick & Jordan R. Schau, Note: Gatekeepers of the Profession:an Empirical Profile of the Nation's Law Professors, 25 U. MICH. J.L. REF. 191, 235, 237 (1991) ("Despite a substantial increase in the number of law teachers, five law schools produced nearly one-third of the nation's law professors, a percentage nearly unchanged from the mid-1970s. When the top- twenty law schools are considered as a group, they produced nearly 60% of all law professors in our sample.").
. Audrey M. Kleinsasser, Assessment Culture and National Testing, 68 THE CLEARINGHOUSE REV. 205 (Mar. 13, 1995).
. ABA Model Rule of Professional Conduct 1.2 (1983).
. Roger Abrams, A Prescription for Legal Education, NEW JERSEY L.J., Apr. 22, 1996, at 27.
. DOUGLAS ROSENTHAL, LAWYER & CLIENT WHO'S IN CHARGE? (1974).
. Richard L. Curwin & Patrick J. DeMarte, Making Classroom Competition Positive:A Facilitating Model, in DEGRADING THE GRADING MYTHS:A PRIMER OF ALTERNATIVES TO GRADES AND MARKS 14-19 (Sidney B. Simon & James A Bellanca, ed., 1976); WLODKOWSKI, supra note 21, at 283-86; Lowman, supra note 23, at 138. ("Likewise, we know that giving choices to students and reducing instructors' external control increase intrinsic desire.").
. B.A. Glesner, supra note 27.
. Alison King, From Sage on the Stage to Guide on the Side, 41 COLLEGE TEACHING 30, 30-31 (1990).
. NICKERSON, supra note 16, at 327.
. H.A. THELEN, EDUCATION AND THE HUMAN QUEST 26 (1960).
. Richard Boldt & Marc Feldman, The Faces of Law in Theory and Practice:Doctrine, Rhetoric, and Social Context, 43 HASTINGS L. J. 1111 (1992).
. Borthwick & Schau, supra note 94.
. NICHOLLS, supra note 31, at 133.
. Supra notes 21-36 and accompanying text.
. Pollio & Humphreys, supra note 18, at 85.
. Guskey, supra note 1, at 16 (identifying "points of agreement" on grading).
. NICHOLLS, supra note 31, at 92.
. NICHOLLS, supra note 31, at 91-92.
. Margaret M. Clifford, Effect of Competition as a Motivational Technique in the Classroom, 9 AM. EDUC. RESEARCH J. 123, 134-35 (1972).
. NICHOLLS, supra note 31, at 128.
. Research on the presence of pass/fail courses in an otherwise graded curriculum has concluded that students do not take advantage of these courses for the purposes of enrolling in more difficult courses or courses outside their field of emphasis. Evans, supra note 24, at 45.
. Id. at 119.
. Guskey, supra note 1, at 16; NO CONTEST, supra note 91, at 56; Glesner, supra note 27, at 635-66.
. NICHOLLS, supra note 31, at 123.
. Kilpatrick, et al., Personality Stress of the Medical Education Process, and Changes in Affective Mood State, 34 PSYCHOLOGICAL RPTS 1215, 1223 (1974).
. WLODKOWSKI, supra note 21, at 98.
. I have arrived at that conclusion in the past. B.A. Glesner, supra note 27, at 658. See also Pipkin, Legal Education: The Consumer's Perspective, A.B. FOUND. RES. J. 1161, 1173 (1976):
On the average third year students reported that law was not taught in law school in a systematic and orderly fashion, that class attendance was unrelated to obtaining high grades, that cramming for exams was as effective as regular study, that case briefing was not an effective way to learn law, and that grades were given largely to aid firms in hiring rather than as feedback on progress.
. David W. Johnson, et al., Effects of Cooperative, Competitive, and Individualistic Goal Structures on Achievement:A Meta-Analysis, 89 PSYCHOLOGICAL BULL. 47, 53 (1981). In their review of studies of learning structures, the authors found that 65 studies found superior learning in cooperative structures than in competitive structures, 8 studies found competitive structures superior, and 36 studies found no differences.
. Donald Bruce Haines & W.J. McKeachie, Cooperative Versus Competitive Discussion Methods in Teaching Introductory Psychology, 58 J. EDUC. PSYCH. 386, 390 (1967).
. NO CONTEST, supra note 91, at 60-61.
. Glesner, supra note 27, at 648-49.
. NO CONTEST, supra note 91, at 62-63.
. Id. at 127-28.
. Id. at 62 (quoting David Johnson & Roger Johnson, Instructional Goal Structure:Cooperative, Competitive, or Individualistic. 44 REV. OF EDUC. RESEARCH 213, 228 (1974)).
. Glesner, supra note 27, at 636-37.
. NO CONTEST, supra note 91, at 64.
. See supra notes 67-70 and accompanying text.
. NICHOLLS, supra note 31, at 158.
. See supra notes 90-94 and accompanying text.
. See supra notes 116-21 and accompanying text.
. WLODKOWSKI, supra note 21, at 97-98.
. Id. at 88-89.
. WLODKOWSKI & GINSBERG, supra note 59, at 144-46; Eileen B. Cohen, Teaching Legal Research to a Diverse Student Body, 85 LAW LIBR. J. 583, 588 (1993). For discussions of learning styles in general, see Paul T. Wangerin, Objective, Multiplistic, and Relative Truth in Developmental Psychology and Legal Education, 62 TUL. L. REV. 1237, 1277 (1988); and Vernellia R. Randall, The Myers-Briggs Type Indicator, First Year Law Students and Performance, 26 CUMB. L. REV. 63 (1995-96).
. Cohen, supra note 137, at 588.
. Audrey M. Kleinsasser, Assessment Culture and National Testing, 68 THE CLEARINGHOUSE REV. 205 (Mar. 13, 1995).
. Cohen, supra note 137; James A. Anderson & Maurianne Adams, Acknowledging the Learning Styles of Diverse Student Populations:Implications for Instructional Design, TEACHING FOR DIVERSITY 19, 20-22 (Laura L.B. Border & Nancy Van Note Chism, ed., 1992).
. See generally, Guinier, et al., supra note 37.
. See id. The extreme differences in learning experiences for the women and men in the Guinier study should be contrasted with other studies that have found fewer gender disparities in satisfaction and achievement. See, e.g., Amy Mathews, Remaining Ladies:Women's Experiences at the University of Missouri of Kansas City Law School (unpublished manuscript on file with author) (concluding that "female students do not find their educational experience hostile and male oriented").
. Rhode, supra note 48, at 295; Joan M. Krauskopf, Touching the Elephant:Perceptions of Gender Issues in Nine Law Schools, 44 J. LEGAL EDUC. 311, 328 (1994).
. Kingsley R. Browne, Sex and Temperament in Modern Society: A Darwinian View of the Glass Ceiling and the Gender Gap, 37 ARIZ. L. REV. 971, 1021 (1995) (citing KATHARINE B. HOYENGA & KERMIT T. HOYENGA, GENDER-RELATED DIFFERENCES:ORIGINS AND OUTCOMES 319 (1993)).
. Carrie Menkel-Meadow, Portia in a Different Voice: Some Speculations on a Women's Lawyering Process, 1 BERKELEY WOMEN'S L. J. 39, 51- 55 (1985).
. Anderson & Adams, supra note 141, at 23; Judith G. Greenberg, Erasing Race from Legal Education, 28 U. MICH. J. L. REF. 51, 98-99 (Fall 1994).
. See, e.g., Valerie Fontaine, Progress Report:Women and People of Color in Legal Education and the Legal Profession, 6 HASTINGS WOMEN'S L. J. 27, 28 (1995) (concluding that men do better in law school than women, in part, because of the Langdellian method); Guinier et al., supra note 37, at 59; Stephen R. Ripps, A Curriculum Course Designed for Lowering the Attrition Rate for the Disadvantaged Law Student, 29 HOW. L. J. 457, 467-68 (1986) (noting that minority students need a process course that is geared toward developing student confidence and legal skills).
. Cathaleen Roach, A River Runs Through It:Tapping into the Informational Stream to Move Students From Isolation to Autonomy, 36 ARIZ. L. REV. 667, 675 (1994).
. Greenberg, supra note 147 (citing Margalynne Armstrong, Meditations on Being Good, 6 BERKELEY WOMEN'S L.J. 43, 44 n.2 (1990-1991); and Margaret E. Montoya, Mascaras, Trenzas, Y Grenas:Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 15 CHICANO-LATINO L. REV. 1, 9-17 (1994)).
. G. Andrew H. Benjamin et. al., The Role of Legal Education in Producing Psychological Distress Among Law Students & Lawyers, 1986 AM. BAR FOUND. RES. J. 225, 251 ("[I]t may be necessary to create pople who are more paranoid, hostile, obsessive-compulsive and the like.").
. Cf. Professor Carrington's arguments in favor of the Langdellian method:"Teachers unwilling to cause such pain ... are not as helpful as they might be to students preparing themselves to deal with human conflict." Paul D. Carrington, Hail! Langdell!, 20 L. & SOC. INQUIRY 691, 748 (1995).
. Critiques of the adversary ethic have argued against a competitive approach to problem solving for many years. See, e.g., Thomas L. Shaffer, The Unique, Novel, and Unsound Adversary Ethic, 41 VANDERBILT L. REV. 697- 715 (1988); Marvin E. Frankel, The Search for Truth:An Umpireal View, 123 U. PENN. L. REV. 1031-59 (1975). Recently, the legal system has begun to respond to these critiques. Rogelio A. Lasso, Gladiators Be Gone:the New Disclosure Rules Compel a Reexamination of the Adversary Process, 36 B.C. L. REV 479, 489- 97 (1995). It seems that even litigators are beginning to value cooperation. Richard C. Reuben, The Lawyer Turns Peacemaker, 82 A.B.A. J. 54 (1996). The value of cooperative approaches would be no new news, perhaps, to transaction lawyers. See generally Ronald J. Gilson, Value Creation by Business Lawyers:Legal Skills and Asset Pricing, 94 YALE L. J. 239 (1984).
. Ruta K. Stropus, Mend It, Bend It, and Extend It:the Fate of Traditional Law School Methodology in the 21st Century, 27 LOY. U. CHI. L. J. 449, 482-83 (1996).
. Kleinsasser, supra note 140.
. See id. ("Working cooperatively is one skill needed for the future, along with higher-order thinking skills and a capacity for self-reflection and for sustained engagement in a task.").
. For an interesting experiment in offering students lessons in team work, see Tushnet, supra note 77. See also Theresa Glennon, Laywers and Caring:Building an Ethic of Care into Professional Responsibility, 43 HASTINGS L. J. 1175 (1992).
. But see Stephanie M. Wildman, The Question of Silence: Techniques to Ensure Full Class Participation, 38 J. LEGAL EDUC. 147, 152-54 (1988) (cooperative learning techniques in classroom).
. Michael Burns, The Law School as a Model for Community, 10 NOVA L. 329, 383-84 (1986); Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education or "The Fem-Crits Go to Law School, 38 J. LEGAL EDUC. 61, 77 (1988).
. Frank J. Macchiarola, Teaching in Law School:What Are We Doing and What More Has to Be Done?, 71 U. DET. MERCY L. REV. 531, 535 (1994); Robert R. Merhige, Jr., Legal Education: Observations and Perceptions from the Bench, 30 WAKE FOREST L. REV. 369, 375 (1995).
. See Mixon & Otto, supra note 11, at 440. ("Students ... pick up on the competitive norm or have it reinforced as they battle each other for grades, positions on the law review, jobs, and whatever other prizes the environment offers. Students can easily believe that combat is a normal human state (or at least a normal lawyer condition.)").
. Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. LEG. EDUC. 469, 472-74 (1993).
. MORTON DEUTSCH, THE RESOLUTION OF CONFLICT:CONSTRUCTIVE AND DESTRUCTIVE PROCESSES 26, 353 (1973).
. See NO CONTEST, supra note 91, at 140. ("If empathy encourages altruism and competition depresses empathy, then we should find an inverse relationship between competition and altruism--and so we do.").
. Guinier, et al., supra note 37, at 31-32.
. For similar problems in the practice of law, see Daniel Wise, Survey Finds Wide Incivility, Sharp Practice Among Bar, N.Y.L.J. July 12, 1993, at 1. For the role of legal education in shaping professionalism, see Deborah L. Rhode, The Future of the Legal Profession:Institutionalizing Ethics, 44 CASE W. RES. L. REV. 665, 733-35 (1994).
. Twenty-three percent of attorneys are dissatisfied with their jobs and only 29% are very satisfied. If one focuses on newer attorneys, the numbers of dissatisfied attorneys rise to 40%. Edward A. Adams, Lawyers' Lot Not a Happy One, ABA Finds, N.Y.L.J. Aug. 13, 1991, at 1.
. Walter Lucas, Associates' Anthem:'Can't Buy Me Love', N.J.L.J. May 30, 1991, at 1. Intellectual challenge was the most critical variable for 21% of the attorneys polled. Other important variables included:ranking time for self and family (15% name as most important); control over work (14%); and substantive area of work (11%).
. See supra notes 107-26 and accompanying text.
. ALBERT EINSTEIN, OUT OF MY LATER YEARS 34-35 (1956).
. Rhode, supra note 167.
. See Guinier, et al., supra note 37, at 82-83 (describing "bingo" games played by students to discourage active class participation).
. Abrams, supra note 97.
. See Debbie Goldberg, Getting Beyond a Culture of Cheating, The Washington Post, Nov. 5, 1995, at R12 ("[D]ata suggest that about 20 percent of college students will cheat no matter what, and another 20 percent will not cheat under any circumstances." For the remaining students "the single most significant factor is the behavior of other students ... the 'cheating culture'.").
. Roger C. Cramton, "The Most Remarkable Institution":The American Law Review, 36 J. LEGAL EDUC. 1, 6 (1986). See also James S. Terwilliger, Some Thoughts on Grading Systems and Grading Practices, TEACHER TRAINING IN MEASUREMENT AND ASSESSMENT SKILLS 63, 79 (Steven L. Wise ed., 1993) ("students at [professional/graduate school] level already have been subjected to extensive sorting and selection .... [T]he expectation is that almost all students who are admitted will succeed.").
. Terwilliger, supra note 178, at 69 (quoting P. Moynihan, Seek Parity on Educational Achievement, Moynihan Urges, REPORT ON EDUCATIONAL RESEARCH 3, 4 (1971)).
. NICHOLLS, supra note 31, at 95.
. See, e.g., Godsey, supra note 38, at 74-76.
. The following description of a portfolio process is roughly drawn from Peter Elbow & Pat Belanoff, State University of New York at Stony Brook Portfolio-Based Evaluation Program, PORTFOLIOS:PROCESS AND PRODUCT 1, 6-12 (Pat Belanoff & Marcia Dickson, eds., 1991).
. Id. at 11.
. WLODKOWSKI, supra note 21, at 158-59.
. Id. at 172-74.
. See generally Kristine S. Knaplund & Richard H. Sander, The Art and Science of Academic Support, 45 J. LEGAL EDUC. 157 (1995) (describing and evaluating effectiveness of academic support programs at the University of California at Los Angeles); Paul T. Wangerin, Perspectives on Higher Education:Law School Academic Support Programs, 40 HASTINGS L.J. 711 (1989) (evaluating law school academic support programs generally). See also Stropus, supra note 154; Roach, supra note 149.
. See NICHOLLS, supra note 31, at 159 (noting the existence of "inequality of respect or autonomy that is not an intrinsic consequence of unequal academic accomplishment.").
. Lowman, supra note 23, at 138.
. LOWMAN, supra note 53, at 231-32.
. See id. ("Likewise, we know that giving choices to students and reducing instructors' external control increase intrinsic desire.").
. Stephanie M. Wildman, The Question of Silence:Techniques to Ensure Full Class Participation, 38 J. LEGAL EDUC. 147 (1988).
. Curwin & DeMarte, supra note 99, at 14-19.
. LOWMAN, supra note 53, at 310-312.
. Id. at 21-31.
. Lowman, supra note 23, at 138. See also Kohn, supra note 20, at 41; Pollio & Humphreys, supra note 18, at 95.
. Pollio & Humphreys, supra note 18, at 95.
. See generally TEACHING FOR DIVERSITY (Laura L. B. Border & Nancy Van Note Chism, ed. 1992).
. Our academic support professsionals are often excellent resources for this feedback.
. Here, as with any empirical questions regarding legal education, there is ample room for further research. Much of the structure and methods of legal education has never been systematically described or tested. As part of a research study on the use of peer teachers, my colleague Julie Cheslik and I surveyed all the law schools for their uses of peer teachers. This study included, in addition to the survey of legal and educational literature, a generalized survey of the 177 ABA-approved, AALS member fee-paid law schools. One hundred fifty one schools responded, after follow-up reminders, to the initial survey requesting information and contact persons regarding specific listed and other uses of peer teaching. Professor Cheslik followed up with a more detailed survey and analysis of the use of peer teachers in legal writing programs. See Julie M. Cheslik, Teaching Assistants:a Study of Their Use in Law School Research and Writing Programs, 44 J. LEGAL EDUC. 394 (1994). Of the 151 schools participating in the initial survey that reported using teaching assistants or peer teachers in some capacity:
114 (75%) use peer teachers in their moot court program
95 (63%) use peer teachers in their legal writing program
79 (52%) use peer teachers in legal research program
79 (52%) use peer teachers as academic tutors
59 (39%) use peer teachers in remediation programs
37 (25%) use peer teachers as student clinical supervisors
32 (21%) use peer teachers as academic mentors/partners
20 (13%) use peer teachers to lead study groups
18 (12%) use peer teachers in some other capacity
10 (7%) use peer teachers to lead discussion groups
5 (3%) use peer teachers to lead seminar groups.
. In our survey of the law schools, 77% indicated that peer teachers assisted in moot court programs.
. Student law review editors probably constitute the single most prevalent use of peer teachers in law schools. One survey noted that each of the 153 AALS member law schools in the United States operates one or more student-edited journals, which includes a student board overseeing the articles produced by their underclass colleagues. Jordan H. Leibman & James P. White, How the Student-Edited Law Journals Make Their Publication Decisions, 39 J. LEGAL EDUC. 387 (1989).
. Our survey results indicate that 4% of the law schools have formal programs of peer teachers leading seminar groups and 8% have peer teachers leading discussion groups. However, since this survey was directed toward the dean's office of each school, it likely was unable to identify the many uses of peer teaching within the classroom itself. Moreover, follow-up calls to those respondents who indicated that they did use peer teachers in these ways, indicated a wide range of definitions of "seminar groups" and "discussion groups"--from legal writing TAs leading research exercises to students presenting seminar papers in their classes. Accordingly, the survey results probably measure law school deans' awareness of their faculty's teaching approaches more so than the actual use of peer teaching in the classroom.
Some notable examples of pervasive use of peer teachers can be found in those schools which have reformed their curriculum to provide comprehensive integration of skills training. See, e.g., Jane E. Bahls, Teaching Law Students How to Practice Law, STUDENT LAW. Feb. 1989, at 24, 25; John O. Mudd & John W. LaTrielle, Professional Competence:A Study of New Lawyers, 49 MONT. L. REV. 11, 28 (1988) (describing the University of Montana's program, designed to foster cooperation and minimize competition, which divides first year students into law firms, supervised by a third year student "junior associate" as well as a faculty member); Thomas M. McDonnell, Joining Hands and Smarts: Teaching Manual Legal Research through Collaborative Learning Groups, 40 J. LEGAL EDUC. 363 (1990); Roark M. Reed, Group Learning in Law School, 34 J. LEGAL EDUC. 674 (1984).
. NEAL A. WHITMAN, PEER TEACHING:TO TEACH IS TO LEARN TWICe 14 (ASHE- ERIC Higher Education Report No. 4 1988).
. Kenneth Bruffee, The Art of Collaborative Learning, 19(2) CHANGE 42-47 (1987).
. In a study of use of peer teachers in medical school, the authors pointed out that the medical school faculty were "unconsciously competent" and thus may have more difficulty teaching procedures to students than peer residents who, having just learned the steps of a procedure, were more "consciously competent." WHITMAN, supra note 203, at 9 (citing THOMAS L. SCHWENK & NEAL WHITMAN, RESIDENTS AS TEACHERS (1984)). See also John B. Mitchell, Current Theories on Expert and Novice Thinking:A Full Faculty Considers the Implications for Legal Education, 39 J. LEG. EDUC. 275, 283-85 (1989) (describing the difficulties of experts teaching novices, the author notes that experts may be unable to articulate unwritten conventions of their area of expertise because they are conciously unaware of the conventions-- recent learners are more likely to be conciously aware of their acquisition of these conventions.).
. WHITMAN, supra note 203, at 7-8.
. Bruffee, supra note 205.
. For more on this and a wide variety of other techniques for cooperative work or other active learning strategies in the classroom, see MERRILL HARMIN, INSPIRING ACTIVE LEARNING:A HANDBOOK FOR TEACHERS (1994).
. See Tushnet, supra note 77 (reporting on his efforts to include grading incentives and rewards for cooperative work).