“A new era has dawned for prospective law students.”
So began a piece the other day in the Fulcrum, the University of Ottawa law student newspaper. What the author was referring to was the recent announcement by Harvard Law School that it would accept the Graduate Record Examination in lieu of the Law School Admission Test as the basis of an application for admission to the JD program. The Harvard announcement led to a flurry of commentary, but what the commentators had in common was a belief that the LSAT was an instrument of elitism and that it getting its comeuppance was a jolly good thing. Some more measured criticism, written from a Canadian perspective, came from Toronto lawyer Heather Douglas in a piece on
SLAW . She wrote that “[t]he LSAT has nothing to do with what is taught in law school, features questions that favour students of certain socio-economic backgrounds, and caters to Americans over Canadians.”
In the interests of full disclosure, let me note that I have been a trustee of the Law School Admission Council — the folks who “own” the LSAT — for eight years now. Indeed, I was the very first non-American ever to be elected a trustee. And I currently am completing my last three months with the LSAC by serving as secretary of the board. So I am about as inside baseball as an insider could be.
Digitio ad designandum me. Nonetheless, I think that my vantage point as a foreigner involved in the governance of a test that remains statistically overwhelmingly American gives me a perspective that perhaps is unique for a Canadian.
The first thing that I’d acknowledge — as would everyone associated with the LSAT — is that it’s neither perfect nor all-encompassing. But it has never claimed to be. It does not probe for emotional intelligence or resilience or the willingness to delay gratification or any of the other qualities that lawyers need to thrive in our profession. Yet it tests more thoroughly than anything else that has been devised so far the ability to work logically through problems. And to the extent that logical reasoning is still considered to be a
sine qua non of a lawyer’s professional makeup, then that’s surely a good thing.
Before 1949, when the LSAT was first administered, one’s ability to get into a top law school in the U.S. depended more than anything on pedigree. If one had gone to the right prep schools and then the right colleges, and if one had rushed the right fraternities (and if, of course, one’s father had the right connections), then attending Harvard or other “elite” schools was a realistic possibility. But if one was from Idaho or Kansas or North Dakota, one had almost as good a chance of winning the lottery as breaking into the Ivy League for law.
This is what led the admission directors at the northeastern schools to propose the development of the LSAT — as a means of
increasing access. That’s why it seems paradoxical now that it should be accused of being an instrument of the opposite.
We in English Canada didn’t adopt the LSAT until the 1970s. In fact, as late as the early ’80s, UNB still didn’t require it for applicants from New Brunswick. Instead, we accepted massive (things being relative, of course) first-year students and then failed a significant proportion of them. At Western University, for example, there were three classrooms in the original law school building. Each became progressively smaller in size by about 25 per cent. So — literally! — survival to graduation was a game of musical chairs. The bottom tranche of the class was removed, no matter how well the students had done in absolute terms. It’s true it was easier to be admitted, but it’s hard to see how anyone would think that was somehow a less elitist, more inclusive approach to legal education.
We should not overlook the other benefits the current system provides. Each year, for example, the LSAC holds a series of recruitment forums across North America, one of which is in Canada. The forums give applicants a chance to meet with several law schools in one fell swoop — which would be a prohibitively expensive thing to do if the applicants had to travel hither and yon. At the Canadian forum, we typically have almost 100 law schools, which gives would-be law students access to the admissions directors (and in one case, a dean) in the flesh. The LSAC also provides an annual professional development conference for admissions professionals, which they can attend at no cost to themselves or to their schools. And as far as diversity and inclusion goes, the LSAC provides free analytical tools (which no Canadian school has yet chosen to use) that are
far more sophisticated than anything any Canadian university has. Oh — they’re free, too.
(And speaking of inclusiveness, one should note the GRE actually costs
more to write than the LSAT.)
The real problem with the LSAT isn’t the test itself. It’s how the test has come to be used by U.S. law schools. It is one of the rich ironies of history that the U.S., a country founded upon republican principles, should have become so hierarchical and status-conscious, while Canada, which remains a monarchy, should be so relatively egalitarian. But however we did it, we somehow managed to dodge the bullet of law school rankings.
Maclean’s did its best to introduce them (and, to compound the irony, engaged an American to design the system), but — blessedly — they never seemed to take. We use the LSAT as it is
intended to be used — as a tool. As my colleague, Jeremy Webber, the dean at the University of Victoria, put it in a
recent article, “I think it’s fair to say that many [Canadian] schools have sought to expand the extent to which the whole background of the person is taken into account.” Relying on numbers alone provides too narrow a means of assessment.
Lorne Sossin, Osgoode Hall Law School’s dean, noted in the same article that Canadian law schools are “moving away from a more formulaic approach … and toward a more holistic assessment.” The value of the LSAT was that it gives comparative dimension to that whole-person evaluation. At Calgary each year, we reject students who are admitted to several other schools and we admit students who are admitted to none. And I'm sure that happens in
every school in Canada.
The problem in the U.S. is that LSAT scores (specifically the 25th, 50th and 75th percentiles) have become one of the principal engines driving the rankings game. Any way that a school has to game that — by, say, having a proportion of the student body who mightn’t do well on the LSAT not actually write the LSAT — then that’s golden. That’s the dirty little secret here.
This isn’t the case with Harvard — for Harvard is Harvard, after all — but all of the other, lower-ranked schools who are considering allowing the GRE in lieu of the LSAT are doing so in significant measure as a means of boosting, or at least protecting, their ranking. That may not be the only reason, and they may dress it up in other clothing, but one would have to be willfully blind not to know that’s the game being played.
Here’s the rub, though: If and when — and given the money to be made from the rankings industry, one assumes that’s it’s going to be “when” —
US News & World Report, the ranker in chief of U.S. law schools, starts incorporating GRE scores into its methodology, then all that is “bad” about the LSAT will come to be replicated. Given the dynamics at play in American legal education, that's going to happen as sure as night follows day.
It’s the dawning of a new era, indeed.
