Exams in the Time of Doctrinal Instability

I taught Constitutional Law II (mostly Fourteenth Amendment rights) this semester for the first time in several years, and I was struck recently by how difficult it was to write the exam for this course.  Of course, exam writing always poses challenges, but the recent dramatic changes to the law presented some new obstacles.  

First, as the law has become more categorical, there's less opportunity to present fact patterns that plausibly could be argued either way.  For example, the law of affirmative action under Grutter was essentially a compromise: some affirmative action policies would be upheld but they had to be carefully designed to pass constitutional muster.  As a result, one could design an exam question in the space between, say, Grutter (which upheld the Michigan law school's admissions policy) and Gratz (which struck down the Michigan undergraduate policy) to ask students to figure out on which side of the line a hypothetical admissions program fell.  (I never actually did that, but until this year, that's the kind of question a constitutional law professor could have asked.)  After Students for Fair Admissions, though, there's a lot less gray area to work with; it's pretty clear this Court is categorically against affirmative action.  To be sure, one could explore fact patterns in which universities, relying on student essays about their racial identities, achieved racial demographics similar to what they had before Students for Fair Admissions, but it's not clear to me that kind of a question would really test the students' understanding of constitutional doctrine so much as a prediction about how the Court might approach this (quite likely) scenario.  Affirmative action, of course, is just one example.  Abortion is another area where the Court has jettisoned its compromise position (Casey) for a more categorical one (Dobbs).  Categorical rules don't tend to make for very interesting law school exams.  

Second, doctrinal instability also makes it harder to craft exams that test students' ability to apply the doctrine they've learned to real(ish) fact patterns.  Of course, students know that new cases supplant old ones, but when the law changes so much so fast, students are far more prone to think the Court is just making it all up.  More importantly, it's not always clear how much precedential weight new decisions' methodological choices carry.  For example, does the Court's history-and-tradition emphasis completely supplant other inquiries the Court has used in earlier substantive due process cases?  In other words, does, say, Dobbs' methodological choices carry substantial precedential weight outside the abortion context?  To be sure, good students will wrestle with these issues on an exam, but the Court hasn't given them a lot to work with in thinking through questions of methodological stare decisis (or questions of constitutional methodology more generally).  

Third, and relatedly, to the extent the current Court places great weight on history and tradition, law school exams are a poor vehicle for wrestling with that methodology.  (Admittedly, this problem arises more in the 2nd Amendment and substantive due process contexts than in equal protection.)  Though I've taught a few law students who had done graduate work in history, most law students haven't.  Moreover, even if more law students had that training, traditional law school exams (whether in-class or take-home) are not suitable formats for engaging in serious historical research and analysis.  Of course, students could rely on their instincts to say what they suspect a history-and-tradition inquiry is likely to yield for a given issue, or they could guess how today's Justices would understand the history and tradition, but that kind of speculative historical analysis lacks intellectual honesty and rigor.  Though some scholars accuse the Justices of engaging in precisely this kind of lightweight historical analysis, law professors shouldn't be training their students to be bad historians.  (Of course, one could make the case that the practice of constitutional law under the current Court is going to require lawyers to learn more history, so perhaps law schools should integrate more history into their curricula.  On the other hand, a relatively small handful of students actually practice constitutional law and to the extent the current Justices may simply be cherry picking the history that supports the outcomes they prefer, it's not clear that more historically informed lawyers would actually affect Supreme Court constitutional outcomes.) 

This is all a long-winded way of saying that I found it harder than usual to write my Con Law II exam this semester.  I contemplated different kinds of exercise altogether, such as a paper or skills exercises, but for a class that covers a lot of cases, I still thought there was value in a summative final that encouraged students to wrestle with the doctrine from the whole semester. 

So what did I end up doing?  I'm not sure my solution solves these problems (and I would welcome suggestions from readers about what they have done or would suggest), but my biggest change was to ask students to assume the role of both plaintiff and defendant as they work through a fact pattern.  In past years, I've typically given a fact pattern and asked students to assume the role of "Judge Typical" (a moderate, non-ideological judge who tries to follow the applicable precedent) to resolve the case.  This year, instead, I asked students first to play the role of plaintiffs' attorney and make all the strongest arguments on their side of the ledger.  Then I asked students to play the role of defendants' attorney and do the same thing.  Only after students had worn both hats did I then put students in the judge's role to decide which arguments were most persuasive and why.  (For what it's worth, there's no Supreme Court precedent on point that speaks directly to the fact pattern I provided, though lots of cases might provide various insights and inquiries that might assist one side or the other.)  

Of course, in the grand scheme of things, law school exam questions are small potatoes compared to the larger societal and legal changes wrought by this Court.  But exams matter for students, and the recent doctrinal changes seemed to necessitate a somewhat revised exam format.