Reflections on law school exams

Blogging has been light (actually, nonexistent) lately as I made my final push to get the exams done before I head to Rappahannock County, VA, my home for the next few weeks. I find that if I divert my gaze from the papers even for a moment my gaze stays diverted. But now that exams are done and the seniors have graduated, I can return to my life.

While I was out, Gordon Smith had a great thread on exams, summarized here. Given this thread I hasten to add that intend no disrespect to the students by implying that exam grading is a task I do not choose to linger on. Nor do I imply any lack of care from my failure to linger.

I do admit, as any academic will tell you, that grading exams is not the most exhilarating experience. Partly this is because it is depressing when, despite one's best efforts, some students just don't get it. I'm reminded of an essay long ago by William Prosser in the Journal of Legal Education, Lighthouse No Good, about, as I recall, an old man sitting on the seashore observing a lighthouse and remarking that a lighthouse was "no good for fog" because, for all its whistling and blowing, the fog came anyway.

But this depression is offset by the creativity displayed by the wrong answers I read. Here I'm reminded by a colleague's long-ago recitation of the following line from a first-year civil procedure exam: "the jurisdiction of the venue is the situs of the tort."

The tedium of exam grading actually owes more to the good students than to the not so good ones. To paraphrase Tolstoy, good exams are good in one way, but bad exams are bad in different ways. And this is my fault. What I really am looking for when I'm honest about it is not originality, creativity and the flash of insight, but regurgitation of the readings and the brilliant thoughts I uttered in class. If I wanted creativity and originality, I would ask questions like, "In blank verse, tell me the most important thing about this subject you did not learn in this class." Or, "what flower did this course most remind you of?" But instead I ask the students to play "where's waldo," in prose form, with the legal issues in fact patterns that look like cases they read or talked about in class.

Moreover, I do not give take-home exams. Instead, I give very long open-book exams that the students have to write in a very short (three-hour) time period. This does not encourage polished writing (indeed, I'm amazed that the students can be as coherent as they are under this constraint) or deep thinking. Instead, it demands that the students know a narrow slice of a narrow area of the law and be able to spew it out quickly.

This leads me back to and beyond the recent thread (summarized here) on student-edited law reviews. The examination process in law school ensures that the most successful students, including those who edit law reviews, will be those who are best at this exercise. But given the functions of student-edited law reviews described in that thread, this is not a bad thing -- law review editors tend to be just the sort of careful people who can work quickly under pressure that law review work requires. It doesn't hurt that they are creative and insightful and have broad knowledge, and many are and do. It's just not an absolute prerequisite for the job.

More importantly, the examination process determines overall success in law school, and therefore who gets placed in the top practice, clerkship and teaching jobs. Here is where the multiple functions of law school seem to diverge. The examination process I've described should do a pretty good job of producing good lawyers and law clerks. Exams, of course, measure diligence, a good quality for all fields of work and especially for clerking and law practice. Indeed, I've often said that a very large component of success as a lawyer is the ability to show up with a brief on time. They also measure the ability to give somebody what he/she wants to hear, whether it's a law professor, client or judge. The same sharp attention to what the professor is really saying in class will be a sharp eye for a court's opinions on you client's issue.

But law schools also produce law teachers. Here's where I put on my faculty recruitment hat, a job I've been doing at Illinois. Faculty recruitment used to be a simple matter of hiring the students who did the best on law school exams, then went on to be law review editors and Supreme Court clerks. But now many entry level teaching applicants have advanced degrees and a long list of accomplished writing, and these materials have become very important in the hiring process. Many great law teachers I know were not top law students.

So does this mean that grades, and the exam process, should be unimportant in picking law professors? I don't think so. We can't forget that law professors are going to be training and writing for lawyers. Even those who have PhD's in other disciplines need to be able to do the law as well. For that they need to be able to produce the same boringly competent prose that they, as future professors, will have to read.