The other day I listened to a Planet Money podcast describing the system for distributing lungs to patients in need, and discussing the challenges of divvying up scarce resources in a system in which money is not changing hands. The focus of the piece was on the need to devise a process in which the understandable and usually laudable instincts of doctors to help their individual patients are, well, thwarted. Several interviewed doctors said, with admirable frankness, that while they understand they’re part of a bigger system and they ought not to do anything to manipulate whatever process is in place for the exclusive benefit of the patient in front of them to the possible detriment of some other patient not in front of them (say, by putting their patient in an ICU unnecessarily to make them appear in imminent need of a transplant); they are only human. They are motivated by wanting to help that one person in front of them and are less likely to be motivated by larger, more abstract notions. To get it right, they need to be policed.
The rules of ethics for lawyers, of course, are all about the tension between our ethical obligation to be zealous advocates for our clients and keeping that advocacy in check, because we’re also officers of the court. It is ludicrous to think of saying to lawyers, "Here are two edicts that are in absolute opposition, please do your best to work it all out, thanks very much, good-bye and good luck." That’s why there are complicated mechanisms put in place by state bars to elicit ethics complaints and then review them—and indeed, despite the complicated mechanisms, I don’t think I’m saying something terribly controversial if I say that many people, lawyers and non-lawyers alike, think those systems could use a little bit of shoring up. The perception that lawyers suffer from an excess of ethics is not a rampant one.
It was but a short mental step from thinking about legal ethics to thinking about law school admissions. We’ve been treated in the last couple of years to a couple of big stories about a pretty basic ethical violation on the part of admissions officers: making up the median scores law schools report to the ABA and U.S. News and everyone else. Now, that’s not really a gray area. I am pretty confident that every known system of ethics has “don’t make stuff up” as a major tenet, and I am pretty confident that no one who engaged in that behavior would have failed a true-false pop quiz on whether “making stuff up” was okay. Because, like the doctors, I am only human, I will confess that my initial reaction to these stories was basically limited to shock and judginess. But upon reflection, I think that if that is the sole reaction, one may be missing the point.
The point is to avoid the problem in the first place, not to feel smug about condemning the handful of people who get caught having fallen prey to temptation. Perhaps, given that we are talking about a pretty unnuanced ethical violation, we should be able to count more on individuals, and institutions, to create systems on their own to avoid the issue in the first place. But just thinking about what the doctors admit about their own inclinations and motivations and what that reveals about basic human nature, it seems unreasonable to expect that in the absence of even the most basic oversight, we can count on every admissions officer in the country to resist temptation, and every law school to have a flawless system in place designed to reveal if erroneous information gets reported. The numbers admissions offices report are medians, not means; that means that just having one too many below-median or one too few above-median candidates matriculate can potentially change your median LSAT from x to x-1. I can imagine why loyalty to one’s institution, albeit misguided and myopic, would make someone want to squint at the resulting column of numbers and think—“It’s not that big a deal. x+1 was almost the median. Who’s hurt?” The people who are hurt—people at other institutions and hypothetical future applicants that haven’t yet been met—can doubtless seem pretty removed. (And let’s consider the possibility of honest error, too; while medians are not a complicated calculus, law schools are filled with people who found their way there precisely because they hate basic math. For that matter, the opportunity to on occasion perform basic math isn’t what draws most people into the admissions field. I took statistics in college, but I nonetheless ask multiple numero-philes to check my work. Because really. My attention has been known to wander.)
This realism about motivations (and capacity) is why I was frankly relieved to learn that the ABA and the Law School Admission Council will be collaborating on a pilot program to certify the entering-class credentials of any school that elects to participate. I’m not too proud to welcome a little assistance in keeping me on the straight and narrow. Presumably because it is a pilot program, it is voluntary; schools are not required to participate. It is my assumption, though, that after an initial working-the-kinks-out year, all schools will in fact participate—it certainly creates an eyebrow-raising appearance-of-impropriety not to. I suppose private schools, less accustomed to externally compelled transparency than we publics, might balk at the perceived incursion on their sovereignty—but that seems ultimately an unpersuasive stance.
Maybe I give inappropriately short shrift to the sovereignty angle, but I can’t think of one good reason not to participate in this program. I understand the impulse to resist creating brand-new standards of reporting; creating and verifying new statistical measures can be a lot of work. But in this instance, these are statistics we all have to report anyway—there is literally not one ounce of new work being required by this program. In my view, the best way to demonstrate loyalty to our respective institutions in the long run is to acknowledge our limitations and welcome an organization with the necessary tools, expertise, and credible distance to review and certify our data.