The Volokh Conspiracy

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Volokh Conspiracy

The Empty Threat of 2Ls and 3Ls Transferring To Receive In-Person Instruction

Students would be foolish to transfer to another school in the middle of a pandemic when there is no guarantee in-person instruction will continue anywhere.


Many law schools may decide to bring 1Ls on campus, but hold 2L and 3L classes online. The thinking here is at once compassionate, but also pragmatic. The first-year of law school is a surreal experience. The pressure of classes forms something of a crucible: students are forced to acclimate to a brand new environment in a short period of time. By the time students get to the second year, they have developed a certain familiarity with the process, and are able to deal with classes more efficiently–even though they do not prepare as well for class. I see a world of difference between Property I students (in the second semester) and Property II students (in the third semester). If law schools have to make tough choices about who to admit on campus, objectively, 1Ls should be given priority.

There is also a pragmatic dimension to this choice. Incoming 1Ls, who feel they will be shortchanged by online instruction, may not enroll. Maybe they will decide to defer a year. Or maybe they'll pick a law school that promises in-person instruction. Rural campuses over urban campuses may be more desirable. These promises should be taken with some caution. Shut-down orders may come in October, requiring everyone to go back online. And the experience in class may soon become intolerable. But, incoming 1Ls demand in-person instruction. And law schools, dependent on tuition, will be pressured to oblige.

But what about 2Ls and 3Ls? Do they need the same in-person experience? The old adage may have some truth: 1L scares you to death; 2L works you to death; and 3L bores you to death. But 2Ls and 3Ls will be quite upset if their classes move entirely online. What can they do? Some will demand tuition refunds. This option is not viable. A school's costs stay roughly the same, whether operations are inside our outside the building. You can only save so much money by turning off the lights and lowering the air conditioner.

For sure, some students will threaten to transfer to another law school. Let me voice some skepticism for that option. As a general matter, transfers pose several risks. In normal times, transfers after 1Ls have limited opportunities. There are fewer slots for law review and moot court for transfers. Fall recruiting may be limited due to the timing. And credits may not transfer precisely, requiring students to retake certain classes. Also, grading curves vary, so your class rank may not transfer accurately to your new school. Students also lose the chance to gain recommenders from 1L professors, whom they get to know well. (I am always skeptical when a student who transfers out asks me to write a letter of recommendation.) Plus, you are entering a new school, without any network of support. You may not know any students, and most study groups and cliques have already formed. Often, teachers at lower-ranked institutions may provide more personalized attention than those at higher-ranked institutions. (A topic for another day.). Students should not be so certain that things will get better. The grass is not always greener on the other side of the U.S. News & World Report rankings.

But transfers now in the time of COVID-19 are especially risky. First, consider the timing. No school can guarantee they will have any in-person instruction. The standard line now is "We plan to be on campus." Plans are great. Students would be foolish to transfer schools based on a "plan." There are costs to apply, and costs to move your life to a new campus. Second, even if some upper-level classes are in-person, others may not be. This decision will turn on the availability of faculty–many of whom are in at-risk groups–as well as availability of space. No matter where you go to school, you may still be stuck with a bulk of Zoom classes. Third, if you transfer, you may never meet your professors in person. At least at your current institution, you will have built some personal bonds. But at Zoom University, you will have no connections. Fourth, I fully expect most jurisdictions to issue shut-down orders at some point this fall. No matter where you transfer, you will finish the semester online. So why bother? Threats to transfer are empty. Students would be advised to stay where they have a network.

The more credible threat is students ask to defer their second or third years till the situation stabilizes. In other words, they simply opt out of the law school until the current crisis passes. This plan may make sense if we are sure that this situation will be over next year. But who knows? We may be stuck in Zoom purgatory for two or three years. Corona will not vanish quickly. Outbreaks will come in waves. Taking such a big gap between first-year and second-year will make re-acclimation very difficult. Think how rusty students are after 1L summer break. Imagine taking a two year break between classes! And good luck remembering anything from 1L for the Bar if you take it six years later.

I understand the frustration from students. I get it. They did not sign up for a correspondence course, while paying full-freight tuition. For those already in this mess, where possible, they should push through to graduation. For incoming 1Ls, read with caution any promise for in-person classes. I think ultimately, most law schools will be in the same boat.