Law School Admissions Essay, Research Paper
LAW, SOCIAL SCIENCE, LITERATURE, LAW SCHOOL, AND PERSONAL STATEMENTSLaw School Admissions: Why Bother?Stately and plump, Harvard Law School admits just 850 to yield a class of550; for Yale, fewer than 400 admitted brings a svelte class of 170. Ever battlingits late entry and the suspectness of a West Coast address — newness coupledwith the perception that sunshine vitiates seriousness — Stanford Law Schooladmitted 435 to make a class of 180 for the class of 1998. For the most part,students admitted to Stanford either go to Stanford, go to Harvard, go to Yale, ordon t go to law school. Five-hundred fifty plus 150 plus 180 equals 880. Eight-hundred eighty isjust 30 more than 850, which implies that Harvard, which was first, still is firstwhen it comes to circumscribing the legal elite. In other words, if Harvardeffectively locates the 850 students who will be divided among itself, Stanford,and Yale, why bother worrying about what Stanford does, who it admits? As thisreasoning goes, Harvard has taken care of things. Harvard defines the 850students, implying that the admissions procedures of the latter two aresuperfluous — like so much, parasitic on Harvard. Not so. First, it matters, year to year, for as long as Stanford s and Yale sclasses are small and Harvard s is big, who Stanford and Yale reject. Stanfordrejects contribute importantly to the School s reputation. Stanford admits 400compared to Harvard s 800. Assuming considerable overlap in applicationpatterns, many of Harvard s last 400 admitees were likely rejected by Stanford.The perception, widely held, that attendance at Harvard means one could havegone anywhere is false; rejection by Stanford serves as a reminder of theproposition s falseness. The presence of Stanford rejects at Harvard is anotherway of saying Stanford is good because, as everyone knows, Harvard is good. More broadly, it is possible to play renegade in this game as Stanfordapparently did several years ago by admitting older students and reachingoutside the 850. Thus it does, or can, matter who Stanford admits in the sense ofStanford making an original contribution to the 850 who will compose the firstyear classes at Harvard, Yale, and Stanford. What is being rewarded orpredicted when an applicant is considered — particularly something that differsfrom the competing schools — can materially alter, for good or for bad, theprofession by deliberately attempting to send a different sort of person into thelaw. Without belaboring the laborious topic of which are the top law schools,a few general observations suffice to justify the narrow focus on Harvard, Yale,and Stanford. They are commonly ranked as the top three law schools by U.S.News and World Report. Prospective law students know about the U.S. Newsrankings, its several tiers, its methodology. Some have nearly memorized therankings. Others will tolerate massive personal and geographic dislocation inorder to attend the number 12 rather than number 13 law school. A fall from asecond-place tie to third place inspires at least as much out-of-classconversation as all of the substantive law taught in the first year does. The separateness of Harvard, Yale, and Stanford is most evident in theSupreme Court. A seven-Justice majority could, in a lawless and ultra-realistmoment, declare its law schools to be not just functionally, but legally, superior –strict scrutiny for decisions produced by judges from lesser law schools! (AndRuth Bader Ginsburg, having spent two of her three law school years at Harvard,could make it eight, leaving only John Paul Stevens, first in his class atNorthwestern, to dissent.)At a minimum, there is no equal protection for law school graduates. Supreme Court clerkships are common at Harvard, Yale, and Stanford, whereeven the valedictorians of schools lower down in the hierarchy have a hard go ofit. One guide to law schools has referred to Harvard, Yale, and Stanford as the Holy Trinity of American legal education. Being dead last in the class at any ofthe three would likely not be a bar to conventional law firm employment. In 1948,Robert Swaine of Cravath, Swaine & Moore wrote, The firm has taken most ofits associates from the law schools of Harvard, Columbia, and Yale, suggesting that the Holy Trinity is both a static entity and fluid in its internalcomposition. More recently, one Boston law firm known to have a penchant forHarvard graduates, Ropes and Gray, has even created a lifetime associate position for a New England School of Law alumnus. Anecdotes from other firmsin other cities suggest similar practices. The badges of inferiority, struck anddecried in Brown v. Board of Education, remain permanent fixtures within thelegal culture, with an educational rather than a racial underpinning.Whom to Admit: Literary Woman or Economic Man?Given that it matters where one goes and who is admitted to law school,the question arises: what sorts of people should Stanford Law School admit?Diligent people? Brainy people? Older people? People who have had jobs priorto coming to law school? People who will be good law students? People who willbe good lawyers? People who will be rich lawyers? People who will be famouslawyers? People likely to donate an appealing building, one that might persuadea student inclined to attend Yale to attend Stanford instead?Those with high grades have presumably been diligent; those with highLSAT scores are thought to be smarter. Or at least good test takers areassumed more capable of taking in the information and returning it to a bluebook in a condition resembling that in which it was received. Do we want hightest scores coupled with low grades, possibly a proxy for laziness? Or highgrades and low test scores, possibly a proxy for extreme diligence in the face oflimited abilities. But high grades/low test scores might also be a proxy for havingestablished close relationships with light-grading college professors, or forhaving absorbed the collective wisdom at any college that points the way toclasses where A s are easily gotten. Work experience, while it can provide astore of greater knowledge, can also be viewed as either useless or even anencumbrance to the extent that law attempts to remain an autonomousdiscipline, beyond the reach of policy, of politics, of social science, of allsources of information and experience deemed outside the law. No BrandeisBriefs on the post-college experience, in other words. Whether the diligent person, the lazy person, or the experienced personturns out to be a good student is measurable, at least within the limits of thegrading system. Whether someone will be a good lawyer, is harder to gauge.Income is a faulty measure in that it would lead to the conclusion that fifth yearassociates, of mediocre ability at a mediocre law firms about to deny thempartnerships, are more skilled lawyers than Supreme Court justices who are paidless. At the same time, mere notoriety associated with an exalted but lower-paying legal job (judge, professor) is not itself a guarantee of merit, unless futurenotoriety is, in itself, defined to be meritorious in that it brings notoriety to the lawschool. Additionally, problems of prediction and measurement (whatever is beingpredicted) are greater the farther removed the admissions objective is from lawschool itself. Academic performance in law school is easier to predict thanprofessional greatness, although the two are sometimes correlated, sometimesnot. As a consequence, law school admissions offices engage in only amodest sort of prediction of the first type above. The emphasis is on who will besuccessful first year law students. In addition to the problems of prediction andmeasurement, economies in the admission process make anything moreambitious — such as exhaustive psychological and intellectual appraisals ofeach candidate — unlikely.I will, therefore, take the current components of law school admission as agiven: grades, LSAT, recommendations, and an essay. Within those givens, mypurpose here is to explore whether something slightly more beneficial to lawschool and the legal profession than a respectable correlation betweenquantitative measures before and during law school can be ventured. Specifically: would Stanford Law School, and by implication the legalprofession, be improved if it sought to admit what Professor Robin West calls literary woman ? Literary woman exists in metaphoric opposition to economic man. Economic man is, Professor West describes, peculiarly capable and peculiarlydisabled: He knows everything there is to know about his own subjective life, andnothing whatsoever about the subjective lives of others. Economic man is bothcapable and disabled according to the standard terms of microeconomics. He iscapable in that his choices, market and otherwise, define the good so long asthey are executed without coercion on another and so long as he is not himselfcoerced. He is disabled in that the similar choices of others are unassailable. The chief consequence of the economic man paradigm arises in thesecond prong, economic man s disabled condition. As Professor West asserts:Although economic man is perfectly rational with respect toknowledge of his own subjective well-being, he is at the same timeutterly incapable of empathetic knowledge regarding the subjectivewell-being of others. He is unable, in economic terms, to compare the relative intensity of the subjective pain of another with eitherhis own pain or with that of others. Although the technical,jargonistic language of the law and economics movement hides thepoint, the economist s insistence that economic man is unable tomake intersubjective comparisons of utility, when translated intocommon parlance, amounts to no more than an admission (ratherthan an assertion) that he lacks even minimal empathetic skills. Economic man, in other words, suffers from empathetic impotence — acondition that might be worth trying to avoid in admitting a law school classLiterary woman, on the other hand, is virtually defined by not just acapacity for empathy, but by possessing empathy in abundance. The literarytemperament brings with it attributes that might be thought desirable in lawstudents and lawyers::The ability to make interpersonal comparisons of utility is,in simpler language, the ability to empathize with the pains andpleasures, the joys and sorrows, and the happiness and sufferingof others. The claim that we are incapable of making suchcomparisons is simply the claim that we arenonempathetic[...]Through reading, hearing, and telling stories, wedo precisely what economic legal analysis insists we are incapableof doing. We reach an empathetic understanding — a grasping –of the subjectivity, the pain, the pleasure, the happiness, or thesadness of the other. When we read with understanding, we notonly understand the happiness or pain, but to some degree wetake it on as our own. The law does sometimes take the literary tint suggested that ProfessorWest suggests it lacks. The standard criminal law approach to finding otherwisecriminal conduct to be justified includes the requirement that the accused, inclaiming self-defense, establish either an imminent or immediate threat ofserious bodily injury. Meeting the imminence requirement is problematic in theclassic hard case of a woman who kills a battering spouse or boyfriend while heis sleeping. Such a woman finds no refuge in a strict and legalistic — unliterary –understanding of what it means to be in imminent danger. Sleeping husbandsnot only present no obvious imminent threat, but their sleeping state provides anopportunity for escape, suggesting that killing him fails to meet the reasonableness component of the self-defense test, as well. As one court putit, a battered woman cannot reasonably fear imminent life-threatening dangerfrom her sleeping spouse. The reality, however, might be in the details. The dissenting opinion in theStewart case works with the same factual narrative yet reaches a differentconclusion about imminence (beyond its finding that imminence, not immediacy,should be legally controlling). What was for the majority a source of escapebecomes, for the dissent, evidence of a mental state that did not comport withgenerally held notions of rational behavior: Ignoring the truck and car outside,although she had the keys in her purse inside, she ran over a mile to theneighbors house and pled with them to keep Mike from killing her. (Thishappened after the husband had already been killed.)A similar message evolves in Browne s When Battered Women Kill: thatabsorbing the details typical of abusive relationships expands our view of what isreasonable and imminent. The naked fact — killed sleeping husband — takes ona different aspect when seemingly trivial details bring the observer into aprecise set of human circumstances and challenge abstract, syllogistic analysis.Those who write about Battered Woman s Syndrome share Professor West saim in dislodging the typical legalistic response to these cases (sleeping, thusno imminence, thus no reasonable self-defense) and replace it with a morenuanced response that is sensitive to narrative particulars. In this regard, abattered woman speaking before a law school seminar is a source ofcomparable authority to the Model Penal Code s four-part test for self-defense. While Professor West s rendering of the two types, economic and literary,will likely leave most with a preference for the literary — seemingly a deeper,more perceptive, creative, and, above all, more empathetic person — thepurpose of this paper is not so much to advocate a policy of favoring literarywoman in Stanford s admission process. Instead, and despite more or lesssharing West s literary bias, I will attempt to raise questions suggested byWest s analysis. Assuming there is such a thing as literary woman, are there predictors inthe existing admission process that suggest who she might be? Then, assumingwe find, admit, and enroll her, what sort of a student will she be — what gradeswill she get, what will be her out-of and in-class observations, and what might beher out-of-class social patterns? Or, alternatively, what sort of a student is she,under the assumption that literary women and men already are attendingStanford Law School? Anecdotally, what seems to be the ratio of economic manto literary woman? Do we want more or fewer literary types? And, finally, how isthe literary temperament likely to interact in the legal culture outside of lawschool? Or, to put that last question more provocatively: is the empathy, love ofdetail, and non-economic ponderousness of the literary mind doomed to bedevoured in a hierarchical law firm if not before, in a law school that ispredominantly a path to the law firm? Is literary woman too radical ? Or doesshe simply work within the established legal patterns — as in the battered womanexample, where the imminence test is modified rather than eliminated? Will shehave a transforming, humanizing effect on the institutions she touches? Or isliterary woman already implicitly favored in the admission process, and has she already had her effect in law schools, law firms, and throughout the legalculture?Beyond the Literary, Beyond WomenAlthough Professor West s scholarship grows directly out of CarolGilligan s work around the idea of a distinct feminine voice, it would beneedlessly narrowing to take so literal a view of literary woman to contend thatshe is, necessarily, a she. The stated purpose of favoring empathetic lawyers isthat they are not hardened to others, but able to step into the unfamiliaraspects of others. Thus while a strict reading of Gilligan and West might suggestthat men are by nature not inclined to empathy, it is through the literaryexperience itself that men canacquire a capacity for empathy in the same way that women can sharpen theirs. Men in the seminar, for example, were far from unmoved at hearing thestory and feeling the manner of the battered woman who spoke to us. And whena first year constitutional law course reads Chief Justice Warren Burger srendering of homosexuality — Condemnation of those practices is firmly rootedin Judeo-Christian moral and ethical standards. — men are at least equallycapable of locating in Burger s reasoning a literary deficiency in his inability toimagine the legitimacy of a different sort of life. All of the dissenters in Bowerswere, in fact, male, as are all of the homosexuals strictly affected by thedecision. The compact idea of literary woman dissolves further when, in additionto men being plausibly among the literary, we find that favoring the literary is notexclusively a way for views more or less on the political left to prevail. The mostfamous and recent invocation of literature in support of a position generallyassociated with the political right (opposition to flag burning) arises in ChiefJustice Rehnquist s Texas v. Johnson dissent. Rehnquist begins by quotingRalph Waldo Emerson, moves to Francis Scott Key, and includes all 62 lines ofJohn Greenleaf Whittier s poem Barbara Frietchie — something that elicitedsnickers from my Constitutional Law class at Harvard Law School in 1990.Whether the snickers arose from the students dislike of poetry as such, poetryin judicial opinions, the legal position of the Rehnquist dissent, or Rehnquisthimself is, without more, unknowable. But the incident does suggest that a lawmore informed by literature would find skeptics of all political views, despiteWest s focus on the likelihood that ends traditionally associated with the leftwould tend to received a more favorable hearing under a more literary reading ofthe law . Literature, in other words, is not per se progressive. In fact, the quoted literature, far more than specific Constitutionaldoctrine, is controlling in the Rehnquist dissent, a dissent joined by JusticesWhite (who wrote the majority opinion in Bowers) and O Connor (the Court s firstwoman). Alliances grounded in the literary are, therefore, uncertain both in theirpolitical valence and the tendency of a particular lawyer, judge, or Justice toadopt a relatively literary persona. It is equally plausible that one will be movedby Edmund White toward as deeper understanding of sexual orientation as onewill assume a bleak view about the possibility for social transformation throughpolitics after reading All the King s Men, where it is possible to find anempathetic association with Willie Stark s strict Machiavellianism, an empathythat obliterates all other empathies. West s focus on empathy as the chief and nearly exclusive result ofraising literature s profile in the law also understates the consequences offavoring the literary in the law and law school admissions. Just as empathyimplies more than socially progressive outcomes, literature implies more thanempathy.Literature, particularly poetry, is also about metaphor, which can be seen,alternatively, either as a tool either for communicating the ineffable or previouslymisunderstood (about battered women, for example) or for obscuring the justand obvious (myth, of the bad sort). In gaining a title — an authoritativemetaphor — Post-Traumatic Stress Disorder was effectively accorded anexistence, an existence that, while scientifically dubious, can hold sway with acourt in excusing criminal conduct. Thus insofar as literature trains one scapacity for the construction of metaphor, it is not unambiguously in the serviceof constructing metaphors that sharpen the general understanding of what istrue.Literature, particularly prose fiction, is also about narratives. As extendedmetaphors, narratives hold powers that can also cut both toward and againstaccuracy. For every triumphant narrative that can be seen as deepening ourunderstanding of how things really are, one can generally imagine an equal andopposite competing narrative. In the Stewart Battered Woman Syndrome case,the majority was no less assiduous in its attention to details while reaching aresult adverse to the battered woman defense. Thus favoring the literary over the legalistic is no reliable strategy forindirectly rigging outcomes. Bernard Goetz is to urban vigilantism what PeggyStewart is to the Battered Woman s Syndrome. Shooting someone in the back,someone who asks for five dollars, looks bad and unreasonable until, out ofGoetz s underlying personal narrative, the picture of a reasonable bigot starts toevolve in the same way as that of a reasonable battered woman did. The formsof law are not without lasting utility where, as with Goetz, basic notions ofproportionality of punishment can do most of the work without literary assistance. For those of only a mildly left-leaning political bent, moreover, bringingliterature and literary-mindedness to bear on the law also holds the prospect ofconsequences too radical, particularly for those secure and entrenched, whetheras law professors or law firm partners. An acquaintance who is also a first-yearlaw student at Stanford and an African-American woman, believes that what shesees as the resistance to a more diverse faculty and the serious inclusion ofcritical race theory in the law school curriculum (as something more than acuriosity) is traceable to a well-founded fear. It would change things. It wouldexpose absurdities and contradictions in legal education. It would uproot thevery conception of what constitutes legitimate scholarship. It would actuallymatter.She reasons that curricula have been modified and Great Books listsradically transformed at the undergraduate level precisely because doing sorepresented no institutional threat. There has been no radical outflow. College