1. Joseph Slater - April 24, 2007 at 2:38 pm

   Good issue to discuss, or at least it’s one I’ve also struggled with. Law grading does seem different than other grading in that it doesn’t penalize “wrong” answers in the sense you mean: discussing causes of action that aren’t plausible from the facts and/or law. And it does seem odd to give a student who does that but also discusses X number of plausible issues competently the same grade as a student who only discusses X number of plausible issues competently.

   The two obvious counterarguments (for me) are these. First, students who discuss implausible issues are penalized by wasting time. Presumably, at the margins they won’t be able to do as good a job on the plausible issues as students who only spend time on plausible issues.

   Second, assuming you do want students to spot and discuss plausible claims that plaintiff would probably actually lose, it may not be good to have students guess at the line the professor draws between “plausible but probably losing” (where the student can get points) and “implausible,” where the consquence of discussing “implausible” claims is actually losing points, as opposed merely to not getting any more.

   I think one could test successfully either way. And you can get around it, as I do in some upper level exam questions, by having the question list a series of facts/events, and then asking students to “explain which of these events do or do not violate X statute, and why or why not.” But that’s not a pure “issue spotting” question, and there is some value to pure issue spotting.

   Finally, it is, of course, important to be clear with students beforehand about what the prof’s general approach will be in grading (especially in first year courses).

2. Jessica Litman - April 24, 2007 at 3:40 pm

   I deduct points for wrong answers and mistatements of the law and always have. I often find the wrong answers more probative of the students’ mastery of the subject matter than the “right” answers.

3. Andrew - April 24, 2007 at 3:58 pm

   Wait, are we talking about “wrong” answers, or “irrelevant” ones? Let us say that the student is successful at spotting the issue, but misstates a rule of law. He then correctly applies the bad rule (that is, if the rule were as he stated it was, then his analysis would be correct). This is different from a failure in issue-spotting, or analysis.

   For example, on your crim law exam, say you give a fact pattern that describes someone doing something “negligently,” but not “recklessly.” You give a statute that covers those acts, and state that it is interpreted in accordance with the model penal code. The statute does not specify requisite level of mens rea. The student points this out, and goes on to say that, under the MPC, the default level of mens rea is negligence. He then applies that mens rea to the statute’s elements, and concludes that the defendant is guilty.

   Now, the student got the “wrong” answer (under the MPC, the mens rea, unless otherwise specified, is “recklessness”). But this is different from an “irrelevant” answer, where the student, say, starts blathering about when intoxication negates mens rea, despite the fact that your fact pattern mentions nothing about drugs or alcohol. Or misses the mens rea element entirely, and just talks about whether the defendant committed the proscribed acts, etc.

   I submit that the latter should be docked more than the former–even if what the student happens to say about intoxication is 100% correct black-letter law. The second answer is, in a sense, far more profoundly “wrong” than the first, in terms of an exam answer. But I think that, for most students, the first is what they come into law school thinking constitutes a “wrong” answer. Clarifying this distinction is critical in describing what they are supposed to be doing, on the exam and in law school.

4. Michael Risch - April 24, 2007 at 4:43 pm

   “There’s a fine line between clever and stupid” – Nigel Tufnel, Spinal Tap

   This line applies when the “irrelevant” answer is really a visionary answer missing a piece or two.

   For example:

   Cause of action X might apply but it doesn’t. [irrelevant]

   Cause of action X might apply, but it doesn’t because element Y is missing. However, if P can convince a jury that elements A and B imply element Y, then perhaps P can get past summary judgment.

   One is irrelevant, and one shows a real understanding of how Cause of Action X might apply in the real world.

   Perhaps rather than deducting for irrlevant answers conciseness should be rewarded – same result, but less risk of false negatives.

5. Joseph Slater - April 25, 2007 at 11:07 am

   Jessica Litman gave me an “A” in Copyright back in the mid-1980s (one of my favorite classes in law school, FWIW). So I won’t quibble with her obviously discerning grading methods. But I think the question is, what do we mean by “wrong”?

   Obviously, if a student correctly spots an issue, but gets part of the relevant legal rules wrong, they should have points deducted (or, viewed another way, not earn all the points available for that issue).

   I agree with Michael Risch that getting facts wrong may be the most deserving of points being deducted. It’s quite annoying, as a professor, to write out facts geared to suggest certain issues, and have students simply invent other facts, speculate on what might have happened before or after the given facts, add clauses beginning, “but if the bullet had hit her, instead of missing her completely, then. . . , ” etc.

   I was thinking more of seeing an issue that, based on the facts, isn’t quite plausible. For example, in torts, first year students too often throw in infliction of emotional distress claims: sure, characters in torts exams often have unpleasant and upsetting things happen to them, but at least the majority of these things won’t rise to the level required for an emotional distress claim.

   So, when A batters B, and the student correctly discusses battery, but then adds a discussion of an (implausible) emotional distress claim, should I deduct points, or should I assume they will be penalized by wasting time on that and missing something else? I think profs could defensibly go either way.

6. Edward Swaine - April 25, 2007 at 12:04 pm

   1. Something like Andrew’s distinction b/w the “wrong” answer and the “irrelevant” one occurred to me, but I don’t have his reaction to their relative significance. It may depend on what we mean by an irrelevancy. If a student goes off on a self-consciously counterfactual or extrafactual tangent — “but if he were drunk . . .” — that doesn’t offend me, and I think a sufficient penalty is the time it sucks. That also means I wouldn’t be annoyed (in the material sense of deducting points) as Joseph Slater would be at an “if the bullet had hit her. instead of missing . . .” That’s just overzealousness on the part of the student, and if correct demonstrative of a sense about what facts to look for and how they matter, and bad lawyering mainly insofar as it’s a distraction. And if distraction is the main vice, it’s inherent in issue spotting exams, which are rarely understood as requiring the student to focus only on the very most salient issues and avoid diversions. I cannot see how it’s “the most deserving of points being deducted.”

   2. As to Joseph Slater’s “Obviously, if a student correctly spots an issue, but gets part of the relevant legal rules wrong, they should have points deducted (or, viewed another way, not earn all the points available for that issue),” the “viewed another way” houses a potential distinction. On this view, would answers that got the rule badly wrong ever earn LESS THAN than students who didn’t spot the issue, on the theory that the latter haven’t demonstrated that they would give bad advice in response to a direct question on the topic? Not sure what was meant.

7. Joseph Slater - April 25, 2007 at 1:42 pm

   Edward Swaine:

   Fair enough on a couple of ambiguous points in my last post. First, for the record, I personally don’t deduct points when a student either raises an issue I think is not plausible (“A could also sue B for emotional distress, because . . . .”), or for making up facts (“but if the bullet would have hit her, then. . . .”). Although I do find the latter particularly annoying, I don’t for the reason you suggest: the student is penalized by wasting time.

   Second, I don’t give students negative points for getting the rule wrong such that they could get fewer points than a student who didn’t spot the issue at all. My post was phrased badly: my student would just get fewer than the maximum number of points available for that issue.

   The point I was trying to make above was simply that I could understand and defend a different system: one in which raising implausible issues or making incorrect statements of law on irrelevant topics actually caused a deduction in points instead of just no credit. I don’t do that (for reasons I gave in my first post in this thread), but I understand the temptation.

8. reader - April 25, 2007 at 10:31 pm

   wow. i expected so much more than the navel-gazing posts about teaching and how to become a teacher.

   thank god you are a better teacher than blogger.

   …snore…

9. reader - April 25, 2007 at 10:32 pm

   wow. i expected so much more than the navel-gazing posts about teaching and how to become a teacher.

   thank god you are a better teacher than blogger.

   …snore…

10. Kim Ferzan - April 26, 2007 at 8:07 am

    Thanks to all for forcing me to confront wrong v. irrelevant.

    Perhaps I can clarify with a few concrete examples:

    1- On my crim exam last year, the defendant acted under duress. If a student claimed that the defendant did not satisfy the voluntary act requirement b/c of the duress, I deducted points, because such an answer revealed conceptual confusion about broad v. narrow meanings of “involuntary” — something I spend quite a bit of time on and which has real world consequences — you need to know the difference between the excuse of duress and the negation of the voly act reqmt.

    2- On a previous exam, which I allowed students to take as a practice exam this semester, I gave the students a statute that made murder “an intentional killing.” a) If a student discussed premeditation, I took off points. b) If a student discussed premeditation incorrectly I took off more points.

    I would say that #1 is a wrong answer and # 2a is an irrelevant answer, and #2b is both wrong and irrelevant.

    On the other hand, if a student raises an issue somewhere between the relevant and irrelevant line and then correctly resolves it, I don’t deduct points at all. I do think that creative thinking is important. But I am not worried about close cases. There are far too many obvious ones.

    Of course, perhaps my navel gazing time would be better spent discussing how to inculcate norms of professionalism, as it seems I plainly failed to do so with “reader.”

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