How Thaler’s Misbehaving Grades Helped Me Teach Law Better

By: Steve Garland, Wake Forest University School of Law

The professor that had the most important effect on my teaching just won a Nobel Prize. Out of full disclosure, I’ve never met him or taken a class from him. Still, Richard Thaler taught me that sometimes you may have to use psychological tricks to insure that your students focus on what matters most.

As we all know, in teaching legal writing and reasoning, leading the students to focus on the learning rather than the grade can be a challenge, particularly since our grades are most often the first grades the students receive. From my own experience in law school, I recalled that the grades we received in Legal Writing (at the time the only grades prior to the end of first semester exams) often had a disproportionate effect on our confidence going forward. This anecdotal intuition was reinforced by a study that my colleagues at Wake Forest University School of Law – Professors Laura Graham and Miki Felsenburg – undertook. They found that high-achieving college graduates lose confidence when they find that their hard-won skills in college may not immediately translate to their new law school community.

Economist Richard Thaler faced this same dilemma in his classroom. Thaler gave his students a challenging midterm designed to differentiate his class into “the stars, the average Joes and the duds.”[1] Due to its difficulty out of a possible score of 100, the average score on the exam was 72. The students hated the exam, saying it was too hard. Even when he explained that the grades would be curved to a B+, the students were not mollified.

Being one of the founders of the field of behavioral economics, Thaler considered the problem in that context and came up with an interesting solution – make the perfect score on the exam 137. Why 137? Because then the average score would be in the 90s rather than the 70s. The exam would still be curved and like the 72, a 96 would still yield a B+. In a purely rational world, the same ultimate result should have yielded the same complaints, but Thaler found that after making the change, he never again got a complaint that the exam was too hard. He theorized that the average students were content to get 90s, and the stars were ecstatic to get scores over 100, even though any rational student could have translated the score into percentages that would have yielded the score based on 100. He even added a disclaimer to his syllabus: “Exams will have a total of 137 points rather than the usual 100. This scoring system has no effect on the grade you get in the course, but it seems to make you happier.”[2]

I faced a different classroom dilemma from Thaler because my goal with the 1L students’ first written assignment was not to differentiate them. Rather I wanted to do my best not to discourage them at the doorstep of their law school experience. However, I still thought I might be able to incorporate his insight. Thus, in my 1L Legal Writing course, I gave three written legal writing/analysis assignments over the course of the semester. I was required to curve the final grade in the course to an 85 average. If I graded each assignment to an 85 curve, I would mathematically insure the curve. I knew, the first assignment, if graded honestly, would yield the lowest raw scores of the semester a spread from the mid-70s to the mid-80s. Unlike Thaler, I did not think such a spread would immediately distinguish “the stars, the average Joes and the duds,”[3] but rather identify the students who caught onto the new discourse of legal writing the earliest.  I did think such a spread could cause a student revolt similar to Thaler’s by possibly discouraging both the students with the lowest scores and even those with the highest if their best efforts only yielded scores in the 80s. Graham and Felsenburg’s research bolstered this intuition.

To solve my dilemma, I decided to focus, as Thaler did, on the perceptions of the students rather than the administrative ease of getting to the required 85 average. For the first assignment, I gave the students a grade of 90 unless they did not exert sufficient effort to merit this “average” grade. To do this I had to trust in two things: (1) that the students would not slack off on this first assignment knowing the score they would almost certainly achieve would be a 90; and (2) that over the course of the succeeding assignments, the class would break into something resembling a bell curve when I graded the subsequent assignments honestly. On the first point, given the nature of the law school achiever population, I found that in their first chance to impress a professor, the students unanimously over the years gave me their best efforts. On the second, I kept the percentage contribution of this initial grade low enough and graded the subsequent assignments honestly enough that at the end of the semester I was likelier to have to raise the students raw grades up to 85 average rather than reduce them to achieve the curve.

Like Thaler, I found that the students had no complaints. Who, after all, would complain that their first law school grade is a 90? Unlike Thaler who used his technique to allow him to differentiate his students, my reverse-Thaler allowed me to clump them all together so that they would focus all of their attention on learning to write like a lawyer rather than how to grab grades like a law student. The key pedagogical goal of my first assignment was not to differentiate but to have the students work through a legal problem for the first time the way they think lawyers would without fearing academic consequences. Without a grade clouding the issue, the first student conferences, which in my experience were my most valuable teaching tools, proved much more productive as the students focused on the challenges I articulated as opposed to the grade I justified. This set the stage for more productive second and third conferences when the grades traditionally fell into ranges of the high 70s to high 80s.

As I often told the students, the first assignment is necessary solely to be able to do better on subsequent assignments. Our class motto became “Try again. Fail again. Fail better.” Similar to Thaler’s experience, I found that giving the students an unachieved 90 gave them the room to fail without incurring the damaging psychological consequences.

[1] Richard H. Thaler, Unless You Are Spock, Irrelevant Things Matter in Economic Behavior, N.Y. Times: The Upshot (May 8, 2015),

[2] Id.

[3] Id.

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