I have decided, for no particular reason, to post some modest suggestions for improving the world. This is the first.
Law schools compete for students, even more fiercely than usual in the current environment of declining enrollments. Most prospective students plan to be lawyers, being a lawyer requires, in most states, that you pass the bar exam, so an important metric of a law school's quality, arguably the most important, is the fraction of its graduates who pass the bar.
Whether a student passes the bar depends in part on the education he got from his law school, in part on how smart and hard working he is—characteristics for which LSAT score and undergraduate grade point average provide at least an approximate measure. Thus a law school can increase its bar passage rate, quality of education held constant, by admitting students with higher LSAT's and GPA's. Since increasing that rate will result in more students applying to the school, there is an obvious incentive to do so.
One way of getting better qualified students to go to your school is by offering them scholarships. The result is a system where the ablest students, the ones most likely to end up as high paid partners in elite law firms, get an education subsidized by the tuition payments of the least able students, the ones most likely to end up with a large debt and no job. It is a bizarre result by almost any standard, and particularly anomalous given that the culture of most law schools is predominantly left of center and egalitarian.
It is also the result of a logical mistake, a fallacy of composition. Getting a student who is almost certain to pass the bar to come to my law school raises the school's bar passage rate, but not by raising the odds that other students will pass the bar. The information relevant to a prospective student is not what the average bar passage rate at a school is but what the bar passage rate is for students like him.
I see no reason why that information cannot be generated and made available. Let each law school run a regression fitting bar passage rate for, say, the past three graduating classes to LSAT, showing how likely a student with any given LSAT is to pass the bar. Do the same thing with GPA. Publish the results. It might turn out that the student who is readily accepted at SCU but can barely get into Stanford will have a better chance of passing the bar if he goes to the former school, even though the latter has a higher average bar passage rate. The question is not which school is better but which school is better for which student.
If that information is made available and students choose to base their decisions on it, the perverse incentive currently faced by law schools largely disappears. They can still increase applications by doing a better job of educating their students to pass the bar. But stacking the deck by competing to get better qualified students to come will no longer work.
There is a second advantage to this change from the standpoint of those law professors, probably a sizable majority, who are in favor of affirmative action—meaning, in practice, lower admission standards for black students. There are two arguments against the practice that ought to concern them. One, from the standpoint of the school's selfish interest, is that lower standards will mean a lower bar passage rate, making it harder to get students to apply. Another, from the standpoint of the people the policy is supposed to help, is that admitting underqualified students may mean setting them up for failure. The same student who would get a good education at SCU, where he is about as well qualified as his fellow students, might have a much harder time at Stanford, where he is near the bottom of the distribution, and similarly all along the line. It is at least arguable, may well be true, that the real effect of affirmative action by law schools is to reduce, not increase, the number of black lawyers.
My proposal solves both problems. Law schools that choose to admit less qualified students no longer lose reputation and applications as a result, provided they can do a good job of educating the students they admit. And students, black and white, will be in a position to decide for themselves which school will give them the best chance of passing the bar.