ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, November 30, 2015

Farewell Post IV: Students and Tipping Points

OutliersI've been re-reading Malcolm Gladwell.  The sub-title of The Tipping Point is How Little Things Can Make a Big Difference.  That same idea is at the heart of some of his other works.  In Outliers, he reports on the importance of birth dates in Canadian hockey.  Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year.  As a result, the January and February kids get picked for all the travel teams and then all the all-star teams.  They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations.  With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*

I've been thinking about how students at unranked law schools like mine are like Gladwell's Canadian hockey players born in November and December.  But in the case of law students, the differences between the students who score 170 on the LSAT and those who score 145 on the LSAT are not as arbitrary as the Gregorian calendar.  They are often socio-economically determined. Obviously, this does not apply to all students who score below 150 on the LSAT; I am generalizing.  

But I am thinking of students from economically stressed families.  Their parents work all the time and/or their parents are divorced, adding additional economic stress and uncertainty to the family environment.  The parents may not have been to college or they may have gone but not pursued a serious course of study.  In any case, higher education takes a back seat in many families to more immediate concerns: children over 18 (or over 16) have to work.  Children have to look out for their siblings while the parents take care of other responsibilities.

Many of my students worked their way through college.  Many took five or six years to graduate because they needed to work or because they had to interrupt their studies for various reasons.  They ran out of money, they needed to care for a sick parent or grandparent, or they weren't performing well in college for reasons ranging from homesickness to immaturity to undiagnosed medical conditions exacerbated by the stress of a strange environment.  They went to small, struggling colleges or to branch campuses of state universities.  Their instructors tried diligently to help them, but they were in need of remedial courses, and they were in environments that did not encourage concentration on the development of the sorts of critical reasoning skills that comprise the basic building blocks of legal education.  Their undergraduate teachers were satisfied if they followed directions, committed instructional materials to memory and then re-created thought processes that were covered in class or in readings.

By the time these students arrive at law school, they seem less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools.  Standardized tests tells us this is the case.  They are none of those things.  They are bright, ambitious people who were born in December.  They never got the training that the students born in January got.  They never were asked to compete on the same level.  They never got the same encouragement.  They sat out entire seasons due to outside pressures that prevented them from focusing on their own careers.  

And now they arrive at law school, and nothing as changed.  The vast majority of students just go to the "best" law school that accepts them (or the best law school that accepts them and offers them money).  Geography may play some role, but US News rankings determine the outcome of regional contests.  A law school may tout its experiential learning programs or its program in entrepreneurship, but it will attract students in a rather narrow band of LSAT scores and undergraduate GPAs.  Students with strong LSATs and UGPAS go to the highly-ranked schools.  Students with the weakest LSATs and UGPAs go to unranked schools, where their peers are other students like them who have never had the opportunity to develop the study skills, the discipline, the critical thinking skills, the maturity and the professionalism that are the hallmarks of the successful pre-professional.

In addition, they are still subject to the same outside pressures that prevented them from getting the most out of their college educational experiences.  I once had a student miss a contracts class because she had to pick up her father at the airport.  Her family did not think it was a big deal for her to miss class.  No matter how many times we tell them that being a law student is a full-time job, the message does not sink in for students from families who think of school as a part-time endeavor supplemented with a "real job."  Many of my students work 20 hours a week, and they resent the fact that we have opted to keep the 20-hour rule when the ABA has abandoned it.  They would work more if they could.  When I confronted my students in a bar prep course on contracts last year with evidence showing that almost none of our graduates who worked while studying for the bar passed the bar exam, they responded with outraged exclamations: "Well, I've gotta eat!"

Ray Bourque
Ray Bourque, Hall of Fame Class of 2004. 
Born December 28, 1960

All of this (and more) suggests to me that we might be facing a tipping point phenomenon at law schools with median LSATs below 150.  This is not about failing law schools or about failing law students.  It is about small differences adding up incrementally to a sudden plummet in bar passage rates.  If I'm right, I don't think the solution is anything that law schools can undertake on their own.   Malcolm Gladwell's conclusion is that Canada is missing out on a lot of hockey talent by benching players born after July.  I think the legal profession (and thus society) will miss out on a lot of untapped legal talent if we don't continue to find a way to train the students who have the drive, the grit and the commitment, but not the preparation, for law school.  As I indicated in the previous post in the series, I don't think the legal profession or our society as a whole benefits from excluding the students whose pre-law-school predictors suggest that they will struggle to pass the bar examination the first time they take it.  After all, while January and February produce more NHL hockey players than any other month, on average, according to, they are not the best.  The January players score an average of 105.4 points over their NHL careers.  October payers score an average of 128.3, and December players best them all at 138.8!

*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.

Commentary, Teaching | Permalink


I listened to a podcast this morning that seemed very relevant to your blog post. In particular, it dealt with the question of whether students from economically stressed families are likely to be "less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools." Contrary to your post, this podcast concludes that these students are likely to have developed to their highest potential. The podcast is a bit more equivocal about whether there's anything we can do about it. Anyway, it was interesting:

Posted by: Matthew Bruckner | Nov 30, 2015 12:21:24 PM

Thanks for the link. I think the research discussed here suggests that we can improve students' cognitive skills, but we don't know how to improve their non-cognitive skills. Or at least, the approach the Freakonomics guys took did not build non-cognitive skills. Still, I take your point that non-cognitive skills, like the ability to concentrate, working memory and executive function, are very important to legal reasoning. It's then a big challenge for those of us who want to help weaker students overcome gaps created through incremental disadvantage if we don't even know how to address non-cognitive deficits.

Posted by: Jeremy Telman | Nov 30, 2015 4:09:36 PM

I thought the podcast was very interesting on a number of levels. First, it suggests to me that we might want to teach students who have poor non-cognitive skills very differently than we teach students with strong non-cognitive skills. Why, for instance, can't we change the way information is delivered such that we don't require students to sit still in a desk for long stretches?

In any case, I thought the bit with the woman from the 30 million words project was also very relevant to your post. She seemed to argue that some students are truly disadvantaged when they reach your classroom. In some ways, she argued something I took to be contrary to your point when she talked about these students having a different brain. I think she'd argue that these students are, in fact, "less intelligent, less dedicated, less disciplined, less professional and less mature" than other students. That's not to say that this cannot be overcome with appropriate interventions, but I think she'd argue that it must be overcome and the ability to successfully do so is not at all clear.

Posted by: Matthew Bruckner | Nov 30, 2015 5:19:20 PM

The 30 million words project certainly poses challenges to my arguments. I have no reason to think anything about Dr. Suskind's research is wrong, but it is certainly incomplete. Based on what is featured in the podcast, one would think that the deaf are cognitively impaired to an extraordinary degree. And what a coincidence that a pediatric ear nose and throat physician concludes that hearing is the crucial sense for brain development. I hate to imagine what a proctologist would conclude!

But I have to concede the point. I just don't know to what extent cognitive deficiencies accrued in early childhood can be overcome by our efforts in post-graduate education. It may be that the students that I am talking about got all (or most) of those 30 million words. The students that Dr. Suskind is talking about may never make it to college. But the problems for my students (perhaps again) cropped up during elementary education.

Posted by: Jeremy Telman | Dec 1, 2015 5:04:45 AM