Sometimes the speed of the modern news cycle fails to capture the significance of a news story, primarily because more time is needed to digest what is going on. When Harvard Law School recently announced that it would begin accepting GRE scores in its admissions process as an alternative to the LSAT, the stories focused primarily on immediate benefits to Harvard and, in turn, what the rest of the law school hierarchy would do in response.
I was part of that news cycle. And in hindsight, perhaps we were thinking too small. Maybe Harvard isn’t playing the same game as other law schools. Maybe it doesn’t have to. As I have reflected on this move during the last few weeks, I see the contours of a strategy where Harvard would pull away from the rest of legal education, including Stanford Law School and Yale Law School.
This strategy is grounded in history. Because of the 100 percent adoption of the case method as the basis for instruction starting nearly a century ago, an innovation pioneered by Harvard dean Christopher Columbus Langdell, it is not an exaggeration to say that all of legal education is built on the Harvard model. Someday, this paradigm will be replaced by something else. When it occurs, the only way Harvard retains its hallowed position is by leading its own demolition crew. The leadership challenge is in picking the right set of ideas and the right time. Yet, Harvard’s position is unique, as the school historically at the forefront of the teaching method, because other law schools will be nervous about hanging on to a very old model while the original architect is clearly moving on.
Students and employers decide when this shift will occur, not the law schools. And the strategy analysis is not complicated. To be the undisputed market leader, a law school must dominate in two categories: enrolling the best students and teaching the most relevant curriculum. By pulling Lever 1 (students), Harvard Law will eventually be ideally situated to pull Lever 2 (curriculum).
From the lawyer’s perspective, the first line of skepticism is bound to be how I am defining “best” students. Actually, I am not defining “best” with words. Instead, I am assuming elite employers who hire law school graduates have a wish list of desirable attributes. One of those attributes is bound to be intelligence. Another is diversity.
In legal education, the most widely accepted proxy for intelligence is the LSAT. For students admitted in the fall of 2015, the median LSAT scores at the three highest-ranked law schools in the U.S. News & World Report rankings were 173 (Yale), 172 (Harvard) and 171 (Stanford), all above 98th percentile of all test-takers and thus not meaningfully different from one another.
Yet, the LSAT is what psychometricians call a univariate test. It measures only one dimension—in this case, verbal reasoning ability. If you are a prospective employer trying to build an organization in the age of Big Data, however, this single measure is likely to be inadequate. Instead, you want a workforce that is equally able in quantitative reasoning. For Harvard Law School, that is a very compelling reason to start using the GRE, as the GRE reports separate scores for verbal and quantitative ability, each on a standardized scale of 130 to 170.
Imagine the reaction of employers when Harvard Law boasts that 200 of its entering students—more than the entire entering classes of Yale and Stanford—scored in the 98th percentile on the quantitative section of the GRE. Between July 1, 2015, and June 30, 2016, over 584,000 candidates took the GRE compared to 105,000 for the LSAT. Harvard’s move could easily touch off a “quant” arms race among the elite national law schools, as the subset of law school applicants who possess relatively high quantitative ability—and thus aren’t going to law school to avoid math—see a way to separate themselves from the pack.
It is worth noting that the average engineering major gets a lopsided GRE (148.1 Verbal, 157.6 Quantitative), whereas the same is true for the typical humanities and arts major but in the opposite direction (156.0 Verbal, 149.1 Quantitative). Next year, Harvard Law’s admission office may be contacting several thousand GRE test-takers who were strong performers on both components of the test, inviting them to apply to Harvard Law. A few hundred, and possibly more, are bound to find this invitation irresistible.
In addition to measuring both verbal and quantitative reasoning, the GRE has a remarkably diverse test-takers pool. Among U.S. citizens who took the GRE between July 2015 and June 2016, 26,000 were Hispanic, 24,000 were black, and 19,000 were Asian—numbers three to five times larger than the LSAT test-taker population. The GRE pool is also very international. Among the 99,500 test-takers who took the GRE in India, over 50,000 expressed a preference to pursue their graduate studies in the United States.
Some skeptics are bound to argue that such a strategy could backfire because Harvard Law would be admitting students who don’t really want to become lawyers. Yet, that line of criticism tends to ignore several data points. First, fewer law school graduates—all admitted based on their LSAT scores—are using their degrees in traditional law practice. Since peaking at nearly 65 percent in the late 1980s, the number of lawyers starting their careers in private practice has been on a steady decline; it now hovers at roughly 50 percent with flat entry-level salaries for most grads. Second, between 1991 and 2013, the number of law graduates taking their first job in business and industry has increased from 1,900 to 6,900. Third, even though elite law grads from schools such as Harvard continue to have the best access to the shrinking number of highly paid law firm jobs, a disproportionate number of them appears to want something more. Specifically, data from After the JD Project, the largest and most recent empirical study of lawyer careers, reveals that elite law grads are generally the least satisfied with traditional law firm practice, primarily because they view it as a way station before moving on to more interesting work in law, government and business.
Perhaps Harvard Law students are looking for an opportunity to make a difference. And now might be the time, as the dwindling job prospects are due to the inability of individuals and businesses to pay the exorbitant costs of traditional bespoke legal services. Finding new ways to significantly increase lawyer productivity may overcome this structural problem.
Seeing this as an opportunity, the market is not waiting on the lawyers. In the individual consumer market, such companies as LegalZoom, Avvo, Modria and others are finding ways to engineer costs and inconvenience out of a wide array of common legal problems. Likewise, in the corporate legal services space, such growing fields as legal operations and legal managed services are assembling teams of lawyers and allied professionals to figure out ways to drive up quality while driving down costs and cycle time.
At some point in the future–and I doubt it is too far off–legal education will begin to acknowledge this paradigm shift. Law schools will teach data, process and technology along with doctrinal law. Students will use design-thinking to evaluate various parts of a legal system and suggest improvements that could form the basis for a business. Diversity will be expanded to include perspectives from multiple countries. Virtually all law school grads will consider themselves legally trained professionals, but only a subset will aspire to be lawyers who provide one-on-one consultative legal services to a client.
If Harvard Law’s leadership wanted to set this plan in motion, a logical first step would be to expand the admissions policy to include GRE scores, as the GRE provides more information, a bigger talent pool, and access to global diversity. The benefits of the Harvard brand will likely attract additional exceptional students. In turn, Harvard’s large class size (550+ per year), deep pockets, large faculty and committed alumni base will give rise to curricular experimentation that other elite law schools could not easily match without placing a much larger bet.
Within a year or two, employers will be clamoring for other law schools to adopt the new Harvard Law model. When that happens, the rest of legal education will dutifully fall in line.
William Henderson is a professor of law and Val Nolan Fellow at Indiana University Maurer School of Law.