The days of Prof. Kingsfield turning a mind of mush to think like a lawyer are long gone, as prawfs constantly reinvent both the teaching and testing of law students. At Prawfsblawg, Gerard Maggliocca raises the question of whether timed in-class testing makes sense, and concludes it does not.
I’ve long been bothered by the way law school exams are administered. Why should there ever be a closed-book exam? And why should you only get three hours for an exam? Law is complicated and almost always involves research. Neither of these traits are reflected in many law school exams. (And legal questions do not present themselves in a multiple choice format either.) This is why I’ve always used take-home essay exams for 2L and 3L classes and made all of my exams open-book.
In response, other prawfs, notably Orin Kerr, raised the cheating heart problem.
When I was a 1L, I heard stories about a group of students in another section cheating on a take-home exam. The rumor was that they picked up the exam, met together to confer on the best answers, and then went back to their rooms and wrote of their answers. I didn’t know the students and didn’t know if the rumors were true. But given how cutthroat Harvard was about 1L grades — really, your entire existence and future was understood to be defined by that handful of grades — I wasn’t shocked that some students would try this if given the chance.
While “cheating” gives rise to terrible connotations, don’t lawyers collaborate all the time to discuss what law and arguments should apply, how best to frame the issues and their argument for or against them? Why, as Gerard points out, if law is hard and “almost always involves research,” should tests not similarly accommodate collaboration, something that also “almost always” happens?
The answer, of course, is obvious, that the prawfs are testing individual students, and if collaborating, or cheating as the meanies prefer to call it, produces better answers than students can muster on their own, then the prawfs have no way of knowing whether they’ve earned their pay or need to bring a roll of dimes to class.
After all, the student who free-rides on the coattails of smarter or better prepared students may someday be required to stand up on his own, someone’s life or fortune in his hands, and won’t be able to hide behind his small circle of friends.
But why not open book? Don’t lawyers get to look up the law (or, as is now the case, download it)?
From my experience in practice, the primary obstacle to success does not generally come in finding case law, but rather in applying it. With enough effort, just about every associate is capable of finding the necessary case law to succeed; and although there are efficiency concerns that arise–nobody wants their associates over-billing for research–I don’t think that research efficiency is something that profs are or should be teaching in substantive classes. In-class exams, and especially open-book in-class exams, test the latter–applying case law–but not the former–finding it. Besides being more important, applying case law is a much more difficult and much more important skill that IS and should be actually taught in substantive classes.
There’s little doubt this is true, that legal research is easy enough, but applying it properly is hard. But does this address the real problem, that a law student having taken a course in trusts and estates should possess a working knowledge of the law he just spent a semester studying? In the course of practice, lawyers are regularly required to have a sufficiently working knowledge of law to recognize general issues arising from other practice areas without either spending a day on the computer doing research or blithely missing a critical issue because the lawyer fails to recognize a crucial intersection of criminal law and corporation law.
And then there’s timed testing. The three-hour test doesn’t begin to make the cut, and the discussion centered instead on 24 hours.
While no exam format is perfect, let me suggest some reasons why a 24-hour take-home exam is a problem, at least unless the parameters are carefully set in advance. For those who are in good or even decent health, the 24-hour exam can become a competition over who has the most endurance and can pull an all-nighter. For those who are in poor health or have medical problems (including me, both now and when I was in law school), that’s either impossible or injurious. Leaving aside whether it’s bad for even though it was in decent health, and without any desire to be overly paternalistic, we should be testing only for learning, thinking, writing, and editing skills and not for extraneous (in the sense that they’re not what we’re setting out to test for) factors.
Paul Horwitz’s concern for the health and stamina of students, while a bit paternalistic, seems pretty empathetic. But what of the lawyer told to brief an issue at the end of the trial day and have it in by opening of court the next morning before the jury arrives?
More importantly, none of the prawfs appear familiar with the need for a lawyer to rise to his feet and argue his objection, his trial motion, his challenge to a juror. There’s no three hours, no less 24. There’s no time for legal research. There’s no collaboration when it’s just you, alone, standing in the courtroom.
Lawyers are admitted as generalists, authorized to practice any aspect of law and without any solicitor/barrister distinction. Students’ future plans to do M&A don’t always pan out, whether because of the job market or they just don’t have the chops. While it’s true that a law student may never try a case, or even see the inside of a courtroom, it’s also true that they might end up there with someone’s life in their hands.
Yet, none of the prawfs see any merit in testing their students for the hardest situation they may face rather than the easiest. That’s not to say every test needs to be the worst possible pressure cooker, but better they cry in the classroom than faint in the courtroom when demanded to produce then and there.