Law School Exams - What We Can Learn

By Lisa McElroy

I’m holding my breath and waiting for David Segal to come out with an article in the New York Times about the value of law school exams (or, as he is likely to write it, the lack thereof). He’ll time it carefully to coincide with the release of first-semester grades. He’ll bemoan the fact that the majority of law school courses culminate in an exam, and that the majority of law school professors give that exam very heavy weight, up to 100% of a student’s semester grade. He’ll comment on the laziness of law school professors, the uninformed pedagogy in the exam experience, and the lack of objectivity in the grading process.

Here’s the thing: in this case, he might be largely right.

I’ve been thinking a lot about exams lately. My ruminations have partly been inspired by Mike’s posting of his Con Law exam a few weeks ago; I’ve also been remembering the Evidence exam I took in the fall of 1993, spurred in part by the internet release of Charles Nesson’s exam at Harvard Law School this fall. While Mike’s exam included zombies, the one I took did not, but it has given me nightmares over the years, anyway. As I remember it (and I’m pretty sure I remember correctly, but, seriously, I was pretty traumatized by the experience), the Evidence exam that was the capstone for the course I took consisted of one question. It was something like, “Pick any scene in ‘My Cousin Vinny’ and discuss the evidentiary issues therein.”

And that seems like a great starting point for asking: Why do we give exams, anyway? What are we hoping to achieve with them? What do we want our students to take away? How can we optimize the learning opportunities in exams? Do professors and students have any competing exam goals or conflicts of interest?

As to why professors give exams, there are probably several answers. As the late Philip Kissam reflected in a couple of essays, we want to measure outcomes, or how much students have learned. We want to test whether students can engage in the types of tasks that lawyers might undertake, skills like issue spotting and analysis. We want to even the playing field so that all students are given an equal and identical opportunity to demonstrate that they have mastered substantive material and analytical skills. We might even hope to prepare them to take the bar exam, on which every state requires essay responses.

And all of these reasons make sense. But, of course, there’s also the seamy underbelly of exam giving. Face it, an end-of-semester exam means that professors suffer through one or two mind-numbing grading sessions a year, a few days of banging our heads against the wall that can be over relatively quickly if we put the pedal to the metal. These grading sessions fall during the holiday and summer breaks, when many of us plan to use the long, class-free days to work on our research projects. Our interest? To get the grades done as quickly as possible. For some, that means grading in mid-December and getting it over with. For others, that means frantic exam reading in the day or two before grades are due. But I can’t claim to know anyone who gives an exam that actually takes weeks of full-time effort to grade, no matter how many students were enrolled.

But neither perspective really takes into account just what an exam should be about, at least in my view. As others have commented, an exam should be primarily a teaching tool, one that enhances the student’s learning rather than just testing it. In fact, it should teach in three ways, at three points along the learning continuum. Here’s how.

First, exam preparation. Studying for the exam should help a student assimilate the course material and pull together themes. When I talk to students about outlining, for example, I talk about figuring out how all of the trees (such as due process, equal protection, and federalism, to name a few Con Law trees) come together and form a forest. When students study old exams, they should be learning law and approaches to theory and analysis. When they outline, they should observe how legal concepts are interdependent. When they discuss the course with their colleagues, they should come to realize that there is no one correct way to view a legal issue.

A good exam will inspire students to prepare and grow as future lawyers.

Next, exam taking. A good exam should make the students think thematically. It should encourage them to take the different analytical approaches or theories they’ve learned in class and apply them to a fact pattern. It should make them ask themselves, “Should I be looking at this like the Framers did, or should I take a more ‘living Constitution’ position?” It should spur them to think after the exam, flipping back through course materials, debating the questions with friends over a beer.

A good exam should make students say, “I never thought about it that way before.”

Finally, exam take-away. Very few professors, in my experience, comment on exams in the margins. They might return a grading grid with the exam booklet, or they might grade based on a subjective, gut feeling (how many times have we heard a colleague say, “I know a ‘B’ when I see one”?). But it’s rare for a professor to give qualitative feedback on essay exam answers. Some provide sample answers, but those sample answers require the student to be objectively critical of his own work, something that’s hard for most of us. Some professors meet with students to go over exam answers, but many limit their time to students who did poorly. If a student receives no formative assessment on an exam (i.e., qualitative assessment designed to promote further learning), he cannot evaluate accurately his own understanding of the material.

A good exam should prompt a student to remark, “I can see how my understanding of legal doctrine and theory has improved.”

So, let’s come full circle back to Mike’s Con Law exam and Nesson’s Evidence test. Mike’s asks a variety of targeted questions about a factually rich hypothetical. The questions address a number of key aspects of Constitutional Law, including standing, justiciability, enumerated powers doctrine, and equal protection. It requires students to think deeply about the three branches of government and how they work together. And the fact pattern is memorable – it makes students laugh. We don’t see any of those qualities in the Nesson exam, which asks only about one concept (confrontation) and then urges a sort of spiritual self-reflection (the meaning of evidence).

But there’s something else going on here, percolating below the surface. Mike’s exam oozes commitment to student learning. Reading the fact pattern and thinking through the questions, a student can see that Mike thought about this exam for a long time. She can see that it will take a long time to evaluate. She might be inspired to go to Mike’s office to chat about the test, just because it’s interesting.

The appalled reaction in the blogosphere to the Nesson exam is, in my view, a manifestation of rising student reaction that law school should be intellectually challenging and that professors need to be equal partners in the learning process; an Evidence exam that asks about the personal meaning of a legal topic lacks rigor in both respects. Professor Nesson limits huge topics to 500 words apiece (to put that number in context, this blog post is more than 1400 words, and I’m barely scratching the surface). He largely asks students to ruminate rather than focus and analyze. It seems to me that a student taking the Nesson exam would not feel that preparing for an amorphous test like this would help her learn anything useful (like the Federal Rules, for example, or how to make a hearsay objection). The test itself would not help her learn anything – in fact, the questions seem far too unfocused, leading a student to ask herself, “How the heck do I answer that?” And it is hard to see how Professor Nesson could write a sample answer for this exam – it’s way too personal. Because the test would not be likely to advance learning or deep understanding of the subject, it would not inspire a sense in the student that Professor Nesson really cared about her learning. The test does not give off a conscientious vibe, a feeling that the professor pored a lot of time and thought into this capstone learning experience in a core course.

Should law schools switch from exam-based assessment? Maybe so. But, as the turtles embedded in the marble and iron around the United States Supreme Court remind us, the progress of law and justice is slow and steady. Exams will be around for a while. Let’s use them to enhance the learning experience rather than detract from student confidence in legal education.