The key problem, in my view, is that the lack of a standardized curve makes it very difficult to assess student performance. One example appears in the NYT article: If a school sets merits scholarships based on hitting a particular GPA, but the students don’t know what curve the school uses, they can’t readily know their chances of keeping the scholarship. But the more pressing problem comes years later when students are looking for a job. Employers often need to make comparisons of students from different law schools when making a hiring decision. Employers are reasonably good at identifying the quality of a law school. But because there is no standardized curve, employers are usually pretty bad at knowing where in the class a particular student might be based on that student’s performance.
The problem is that there are some very counterintuitive trends in law school curves. As a rule, higher-ranked law schools tend to have the highest curves, while lowest-ranked law schools tend to have the lowest curves. Some data, albeit not complete or perfectly accurate, is here. Higher-ranked schools also tend to give professors more discretion to hand in grades outside the curve (typically, above it), while lower-ranked schools tend to have little or none. The differences can be quite substantial, too. This is particularly problematic given the grade inflation law schools are seeing: Schools keep raising their curves, with some schools more aggressive and others less so. This difference tends to favor the higher-ranked schools, which not only have higher curves traditionally but also seem to be the most willing to raise their curves. Students at higher-ranked schools therefore benefit from both the reputation of the school (which employers recognize) and its higher curve (which employers usually don’t recognize).
You might think that publishing class rank would solve this problem. Some schools publish class rank, but many don’t. But I wouldn’t jump to the conclusion that every law school should, as my understanding is that law schools often have quite flat cumulative GPA ranges. In that case, a class rank can be quite misleading. To see why, imagine a school might have 20% of the class with high grades, 20% of the class with low grades, and 60% bunched up together in the middle. If so, a student in the 20th percentile might have quite similar grades to a student in the 80th percentile. A class ranking will be rather misleading for anyone not at the top of the bottom.
I’m not suggesting a mandatory curve imposed by the AALS or the ABA; that strikes me as too heavy-handed. But it would be helpful if a bunch of schools came together and agreed to adopt the same curve. Perhaps that would pressure other schools to do the same, which could result in at least a more standardized practice that is more easily understood by potential students and employers than currently exists.