Law School Testing: Under Pressure

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.

31 thoughts on “Law School Testing: Under Pressure

  1. Max Kennerly

    The 3-hour closed-book individual exam is like the CrossFit of law, a high-intensity hybrid of multiple skills from actual legal practice. It doesn’t fairly represent any of the actual skills — it’s not like dealing with a witness on your feet, nor like drafting a brief, not negotiating a contract, nor developing a legal strategy for a client — but it’s a weak proxy for some abilities related to those skills, and getting good at it probably makes someone better equipped to develop the real skills.

    I’m not fond of it, but I don’t really see viable alternatives, because I’m even less a fan of purely subjective grades awarded by professors.

    1. SHG Post author

      It’s all a weak proxy for actual practice, but weak is the best we can do, and beats the hell out of the alternative. Though in fairness, I would strongly favor the solicitor/barrister distinction here. As long as the kids who can’t handle pressure can’t appear in court and destroy someone’s life, their testing can be as soft as they want it to be.

      1. B. McLeod

        Often discussed and proposed, because of the vast numbers of licensed attorneys who never handle litigation during their entire careers. However, in my opinion, “generalist” lawyers who have seen transactions go south in litigation, due to drafting errors and ambiguities, have a better body of experience to prevent similar errors and ambiguities in the transactions they handle. The lawyers who actually litigate a transactional train wreck learn all the failings that could have a bearing on the dispute. The transactional researchers who study it afterwards learn only those lessons developed in the published opinion (if there is one) of the court.

        Also, in our time, we have the expansive federal, malum prohibitum criminalization of conduct that may not be recognizable to business participants as problematic if their transactional counsel fail to detect the issue and advise them. As a consequence, even purely transaction counsel have the potential to land clients in prison by their errors and omissions.

        1. SHG Post author

          All true, but do transactional counsel try cases and learn where the mines are buried? They surely don’t learn enough in law school to not blow their clients up.

          1. B. McLeod

            Most don’t. The good ones are trained within their firms and go to CLEs and read cases to spot common and developing problems in the types of transactions they handle. As a result, they see what makes it to the case report. But often, only a small number of the defects (those ultimately determinative of the dispute, in the court’s opinion) make it to the case report.

      2. David

        Are law schools teaching law as an academic subject, or teaching people to be legal practitioners? Because if the latter, okay sure, impose stresses that however weakly act as a proxy for actual practice. That may be one of several good reasons to have state bar admission exams closed-book and stressful.
        But if law at law schools is an academic subject, shouldn’t testing be about determining what people have learned, and how they can analyze and express themselves, not assessing their ability to focus under stress as a proxy for trial?

          1. Nigel Declan

            I have a sneaky suspicion that some of the law schools would disagree and would assert their mission to be along the lines of moulding young minds in the art of critical thinking and similar nonsense. And therein lay a fundamental problem.

            1. SHG Post author

              Academics trivialize their responsibility by arguing that it’s not a “trade school,” not for the sake of the students but to pretend they haven’t squandered their genius on the next gen of plumbers.

    2. Erik H

      Agreed. In particular, the cheating issue is pretty major–it’s undetectable in a take-home exam. And frankly the internet has made this a much larger and problematic issue. That’s why I always preferred a sit-down exam: I could be reasonably sure that my curved score was relatively fair.

      I also agree with other commenters that there’s a dearth of basic knowledge, and I think that relates somewhat to to testing. Coming from the sciences I was very surprised about how little testing there was of black-letter law. It’s all well and good to write a detailed apply-law-to-facts essay on some complex Whiteacre/Blackacre story that the Property guy thought up while drunk. But that won’t cover more than 5% of what you learn in a year. So it would also make sense to have quite a few short-answer questions in the vein of “explain the difference between an implied and prescriptive easement”. Many folks I know squeaked by without learning much law at all.

      1. SHG Post author

        I sometimes wonder, when someone has nothing new to add, is it really necessary that it take so many words to say so?

  2. Nick

    Yeah, there a false choice here in that we keep trying to think of how to make THE TEST better when, in reality, a useful assessment will require several evaluations. Three or four tests might do, including one oral.

    The high stakes law school test is a fundamentally flawed notion that works only in service of the professor, not the student.

  3. Shannon

    They are testing your ability to give free consultations, except in real life you only have 30 minutes to give the right answer.

  4. Hunting Guy

    Daniela Hantuchova.

    As I said this year, I didn’t try to put any pressure on me by setting high goals or anything, I just want to make sure that every single time I’m out there on the court I do my best, I give 100%, and see where it’s going to end up next year.

  5. grberry

    Add testing of another real world skill – the billing timesheet. Require everyone submitting anything done outside the classroom to submit the complete billing timesheets of all contributing to their answer. It will both give the profs input on the amount of collaboration and effort that went in while also giving the students practical experience toward making up their fee requests/bills.

  6. Wilbur

    The best exams I took in law school – those that best revealed one’s knowledge and ability to apply it – were composed of about 25-30 questions each of which called for a short paragraph to answer. No bullshit; you either knew it or you didn’t.
    Stressful? Sure. It’s supposed to be.

  7. szr

    I found the timed in-class testing was useful training for the bar exam. Which is, you know, a timed in-class test.

    Does helping students develop skills to pass the bar exam not matter anymore?

  8. BQW

    In my son’s evidence class this summer, the showing of video clips from such important legal works as My Cousin Vinny often substituted for classroom discussion to teach important principles of law. If professors choose not to teach, why would they chose to test?

  9. Raging Racist

    I don’t care how they test. I only care that they teach critical thinking skills, which seem to have gone by the wayside.

  10. Fubar

    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.

    Will Alfred, 1st Baron Tennyson, ever forgive me?

    Nope.

    Passing the bar

    Bar exam and essay test,
    Clear call to do the deed!
    And may there be no doubt I’ve done my best,
    When scribbling down my screed.

    But time is short and I am half asleep,
    Too much to write it down,
    When weird fact patterns from my prof, that creep,
    Make me a clown.

    Time’s up, and now the proctor’s bell,
    And after that no hope!
    Can’t even write, so long, farewell.
    I’m just a dope.

    But tho’ away from hope of time and place
    This test has borne me far,
    I hope to see a client face to face
    When I have passed the bar.

  11. Eddie S.

    Sheesh I don’t go to this blog for a few days and what happens? You put up a Billy Joel video. You had one job while I was gone, and that was to keep Billy Joel videos off the blog, and you didn’t do it. No more Billy Joel videos. Not now. Not ever.

  12. Matthew Scott Wideman

    I graduated in 2011. I still had the old law school professors who made 1L’s cry. I actually liked the one exam format by the time I was a 2L. I knew that I could miss something in class and make up for it with sheer hard work. I didn’t have to worry about my mastery of property law in September.

    I realized I was being treated like an adult for the first time. Whether I sank or swam was on me. Liberating and terrifying. This sort of issue comes up in my practice. Sometimes you don’t get a continuance (even though my father died) I had to sit down and prepare my pretrial motions over a weekend. I don’t think undergrad Matt Wideman could have done it. But, I know 3L Matt Wideman could have.

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