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Should We Get Rid of the Law School In-Class Essay Exam?

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28 Responses

  1. k says:

    I heartily agree. The three-hour exam seems to favor those students who can “brain dump” every bit of information they’ve heard over the semester–whether that information is *really* relevant or not. I’m not very good at the brain dump so I’ve taken to overloading on seminar classes. Not surprisingly, I tend to vastly outperform myself when I can write a paper over several weeks with input and feedback from my professor than when I have to take a three-hour exam. I’ve been told the fact that my grades in writing classes are noticeably higher than in exam classes may even benefit me during clerkship applications. (Who knows if THAT’s true; I certainly hope it is! I can certainly believe that stellar performance on a three-hour exam doesn’t tell an employer anything about a potential employee’s ability to do careful research and craft a brief, memo, or opinion that hits all the necessary points without being too wordy.)

    I’ll also note that, pedagogically, the three-hour exam is the absolute worst form of assessment. Teachers get a better sense of how students have absorbed information by providing multiple assessments designed to benefit students with different learning styles. Unfortunately, many law professors don’t know how to properly administer such alternative assessments–probably because they never experienced such a thing when they were students!

  2. Ethan Leib says:

    Take a look at how I handle the problem here:

    http://prawfsblawg.blogs.com/prawfsblawg/2007/05/inclass_vs_take.html

    I should note, K, that it isn’t always professors standing in the way of change. University administrators can be part of the problem. When I changed out of the standard exam model, I had to negotiate with and get clearance from two different associate deans and exam coordinators. It was a huge headache and I can understand why some of my colleagues would give up after hitting as many roadblocks as I did.

    Students can also contribute to the problem by selecting classes based on the form of assessment. More than one professor has lost enrollment numbers by switching to, say, a 24 hour exam — so there is an effect that stems from student preference as well.

    In any case, I agree with K that we need more effective and varied ways to measure performance — but, as I explain in my post at Prawfs, I disagree that the in-class exam serves no important pedogogical objective.

    A final note to K: The “brain dump” model of exam answer should not score well. If that kind of answer helps students succeed, the grading is the problem, not the testing. I fully concede that many professors use that model. But it is important to realize that using such answers as model answers is not a test-related problem; it is a grading problem.

  3. Jeff Yates says:

    I also agree with Dan’s post. As a law student I never felt that such tests presented a fair gauge of what I had learned. Of course, some tests did it better than others. I similarly shifted to writing intensive courses. As a professor I try to incorporate a number of different methods of assessing students’ abilities. As much as everyone seems to hate objective (multiple choice) questions, they do help students prepare for the multistate bar exam and they also provide an alternative performance pathway (i.e. they tap different sets of capabilities). Take home tests and short writing assignments can allow those students who dont do “speed law” well to show what they can accomplish under circumstances that perhaps better approximate real life work conditions.

  4. Ted F. says:

    Anyone who thinks that briefs are never drafted (or rewritten by a senior associate or partner) in three hours or less has never practiced litigation in a large law firm. I was frequently responsible for turning around local counsel’s work in three hours or less because of the time constraints of filing and the frictions of coordination among the client, national counsel, and local counsel, and that did take some real high-pressure rewriting from time to time that made my in-class law-school exams look like a piece of cake. I’ve been in rocket dockets where reply briefs need to be filed within 48 hours of the 5:00 pm fax of the opposition brief, and the logistics of getting approval from the senior partner, co-counsel, local counsel, and client (and the logistics of putting together exhibits for filing) mean that the first draft of the brief needs to be out the door that first night. I’ve been in trials where the phone call came at 10:00 AM that an issue had come up and an evidentiary brief was needed to give to the judge by the 12:30 lunch break. And the attorneys who worked more frequently with temporary restraining orders had it far worse than I did.

    And I had friends doing insurance defense law firm work where they had to write briefs in three hours because the insurance company wouldn’t pay for any more time than that. And I have to imagine public defenders write their briefs under heavy time constraints, too, simply because their caseloads are so heavy that the choice is a three-hour brief or no brief at all.

  5. Orin Kerr says:

    Dan,

    I have mixed feelings about in-class exams, but I’m not sure how far your arguments go.

    First, in my experience as a lawyer, extremely quick issue-spotting and analysis was among the most essential skills. It was very rare to have the luxury of lots of time to work on a sustained argument.

    Second, I don’t believe anyone actually argues that trying to create “cheatproof” evaluation methods is designed to “teach students to be honest.” Rather, the goal is to protect the integrity of the grading process because grades are so important.

  6. Orin,

    Regarding your first argument, quickness is certainly a skill, though I disagree that it is as important as you declare. Certainly, even under great time pressure, most lawyers don’t have to produce a written work product within just a few hours. Usually, it is a period of at least a few days, if not a week.

    Regarding your second argument, it is true that the integrity of the grading process is important to preserve, yet if the method of evaluation isn’t measuring the right set of skills and knowledge, then that’s a big problem too.

    Grades are important, and they should reflect a student’s legal abilities. Inevitably, many of the same students will do well in a take home and in an in-class exam. After all, both test issue spotting, analytical abilities, and writing skills. But the write-as-fast-as-you-can exam distorts because it overemphasizes quickness, which is a legitimate skill, but not the most important one.

    I really doubt that the current law school exam format is pedagogically sound. Students get little to no feedback; they rarely learn or grow from taking the exams; their grade comes from a tense rushed three-hour race to write an answer as quickly as they can. And I’ve rarely encountered a student who has said: “Yes, I really like my entire grade coming down to just one in-class timed exam.” Most students don’t have much confidence in the system. I bet if we took a poll of students, we’d find an overwhelming number who are very dissatisfied with the current system. Of course, we shouldn’t create an evaluation method solely to satisfy the students, but the views of those under evaluation and their confidence in the system is important and certainly should be considered.

  7. Howard Wasserman says:

    In my first-year civ pro class, I use a 24-hour take-home exam with strict page limits. I no longer use timed in-class essay exams in any of my classes. Part of this is personal preference–I liked and did better on take-home exams when I was in law school, so I carried that preference over when I began teaching.

    My goal is to remove the immense, unusual time pressure and give students the chance to think, organize, and write clearly, while still requiring them to spot issues and analyze in fairly quick order. I generally am happy with the results and I have no plans to change it. I think I get a better quality of paper overall, certainly better organized and written. It is easier for me to read these papers than the stream-of-consciousness papers that Ethan mentions at prawfs), which is nice. I think it is easier for me to evaluate such papers–I can better glean what students know from a less-rushed and (hopefully) better-organized answer because they have been able to spend putting forward a answer that best shows what they know.

    I have encountered three problems, although I think many of these objections are a product of the relative uniqueness of the format in law school. First, ironically, students do not see this format as removing the time crunch–they see it as creating a new one in the need to work for 24 hours. And many say they would prefer the standard format, although I think that is a matter of familiarity than liking that formate.

    Second, the tendency among students is not to prepare as thoroughly before the exam, by outlining and reviewing their outlines and starting to understand how the pieces of the class fit together. The tendency among students is to think they can wing it as they go, using the full 24-hour period to outline, bring everything in the class together in their minds, AND write the exam. This becomes obvious in some of the weaker exams.

    Third, I think not enough students do (or can) take advantage of what the format allows them to do: Spend a good deal of time thinking and organizing before they begin to write, then write to the page limit and go back and edit and revise and tinker. All while taking breaks to think and process . . . and relax or even sleep, which you can do in 24 hours. The result is more stream-of-consciousness papers than I would like or expect, as students follow their ordinary exam-writing process.

  8. Patrick S. O'Donnell says:

    After reading the above comments I must say Howard’s remarks are a telling reminder that after all is said and done on behalf of students, they remain and act as students, and thus nothing we do can save them from either themselves or their circumstances.

  9. Scott Moss says:

    I agree with Howard’s hesitation to use a 24-hr exam based on my one experience with such an exam: I worked on the exam for 22 hours, slept 1 hr, ate for 1/2 hr, and played bridge for 1/2 hr. And I’d do it again: I crashed hard after the exam ended, but I was functioning well for those 22 hrs.

    Was my strategy freakish? Yes, but remember that we’re talking about law students here; there are a lot who are freaks like I was.

    A 24-hr exam tests physical stamina as much as it tests any legal knowledge, skill, or brainpower. Don’t do it!

  10. Howard,

    I experienced the same thing when I gave 24-hour take home exams. So this year I gave students a longer period of time (1 week) to complete the take home to eliminate the all-nighter. I thought it worked quite well.

  11. Patrick S. O'Donnell says:

    A week! That’s not an exam but a term paper! ;)

  12. Mike Madison says:

    In my upper level classes, I’ve abandoned exams of all sorts in favor of three short (4-5 pp.) graded memos, spaced more or less evenly over the semester. Each memo offers a 7- to 10-day period between the assignment and the due date; each one is “open,” in contemporary teaching jargon. Given my abundant use of the red pen, most memos are returned to their authors in bloody condition. My approach means that students are less likely to be evaluated on their mastery of a broad range of the material, but it also means that they are more likely to be evaluated fairly on their ability to synthesize their legal understanding with their ability to communicate thoughtfully in writing. A comment on a blog post can’t convey all the nuances of the approach, but here are a few: Other downsides include the risk that students will plagiarize some or all of their memos, and the fact that I spend more time grading than I do with exams. Other upsides include my anecdotal experience that students learn to invest a substantial amount of time in producing memos that approach professional standards, and the fact that I get to enjoy concrete evidence that I am helping to teach them professional skills in substantive law courses. Of course, students have mixed feelings about actually receiving the feedback that they say that they crave.

    My Deans and Associate Deans have been enthusiastic about this approach. Not only have course enrollments not suffered, but I have had to cap enrollments.

  13. Howard Wasserman says:

    Scott:

    I did not intend to express hesitation; quite the opposite. I was just pointing out some of the complaints or problems it creates. When I did this type of exam (I think I had 5 or 6), I usually wrote for about 8-9 hours and edited for another 4-6; got about 5 hours of sleep; and found time to eat and wander. So it takes all kinds . . .

    Daniel:

    The one-week thing sounds very interesting. How do you time that out: when do you give the exam out and when is it due? I want the exam to be done during exam period, rather than during the semester, giving students time to finish the class and outline. But I do not want (and likely am not allowed) to have my exam run into the time they have devoted to other classes. So I have timed it so the exam is turned in when our scheduled in-class exam would have ended and picked up 24 hours earlier. But if they could have one week, working on it a bit at a time among other exams, that could work . . .

  14. Jason says:

    Fairest exam I ever took: six-hour in-class Property exam with extremely strict word limits (the answers all together were most certainly not 5000 words long).

    If you create a brain-dump situation, you’ll get a brain-dump. If you create a situation where students have to think quickly, but have time to organize and also have to prioritize on what they talk about and what they don’t, you’ll get better (not to mention more interesting) answers.

    Least fair exam I ever took: 3.5 hours, 200-some-odd multiple-choice contracts questions. Plenty of people didn’t finish.

    (Note: I did incredibly well on the contracts exam and average on the property one.)

  15. Howard,

    I gave my exam in the last week of class, but I imagine it could be given for a one-week or several day span anytime during exam period. If it is given during exam period, the length of time needs to be either long (5-7 days) or a self-scheduled shorter time period so students can fit it in with their other exams.

    One year in the past, I gave a 24-hour take home that was self-scheduled but due no later than the middle of exam period. I’ve since moved away from 24-hour take homes for the reasons stated above.

    Dan

  16. Recent Grad says:

    from my own experience, i think that law school exams do an extremely poor job of measuring a student’s knowledge of the course or ability to perform good legal analysis. personally, my grades have been all over the place. i have gotten ‘a’ grades in courses during which i literally never lifted the casebook and crammed for a week before the exam with a commercial study guide, and gotten generic ‘b+’ grades in classes that i knew back and forth. this is an odd state of affairs. if a law school exam is supposed to test my ability (relative to my peers) to ‘think like a lawyer’ or perform legal analysis, there should be at least some uniformity, seeing as my ability to ‘think like a lawyer’ does not change simply b/c i am writing about a different subject.

    the biggest problem with law exams is the terrible time pressure and the ‘luck of the draw’ w/r/t the issues tested on the exam. first, it seems to me that the more one knows about a particular topic the more hurt they are by the time constraint. it simply takes more time to give an organized, clear, well-reasoned, nuanced response to a question then to spew out a cursory answer. put another way, judge cardozo didn’t write his opinions over a single weekend. it seems rather strange that an exam with many cursory answers should be rewarded more than an exam with fewer, better answers. while i have no experience as a practicing attorney, it seems to me that a typical appellate brief contains at most a handful of issues. the winning party will be the one who makes the best, most in-depth and well-reasoned arguments concerning a small number of issues. thus, it isn’t really helping students when a prof gives a giant issue spotter with many, many issues, and students are rewarded for quickly spotting as many issues as possible and giving cursory, summary-style answers. while professors probably write exams this way in an attempt to touch on most aspects of the course (which is commendable), it doesn’t help students prepare for practice nor does it accurately test their lawyering ability.

    second, it seems clear that no student can fully digest every single topic of every single course during a given semester. it’s just too much information. thus, a student who knows contracts like corbin with the exception of the statute of frauds gets screwed if, by chance, that topic happens to be a major one on the exam. i’m sure most law students have had the unpleasant experience of studying a course diligently, but simply not having time to master one (perhaps small) topic, only to find that such topic was tested disproportionately on the exam. this is exteremely frustrating, and again, contributes to the failure of the law school exam as a device to accurately measure a student’s knowledge of the course.

    one of the best exams i have taken in law school was a take-home i was given this semester. the exam was distributed in early april and due in may. it had eight questions, of which the student had to answer six. each question had a 500 word limit. such a format allows students to play to their own strengths, and gives them the time to really sit and think about their answers and revise/improve them. thus, if a student misread a question or fact they have the time to re-write their answer. additionally, the word limit properly prevents students from writing long-winded, sprawling answers and saves the prof the punishment of reading such answers. if i were a prof, i would much rather read 80 exams withh good, clear, well-written answers than 80 sprawling, furiously and hastily written answers, which perhaps contain numerous speeling and grammatical mistakes (not to mention the errors of fact and law that come with haste).

  17. Alex says:

    I tend to agree with Orin on this one. (Not that that matters much because I am at present (and perhaps forever) an anonymous nobody). Nevertheless — I think one of the flaws in the above discussion is the idea that one type of exam fits all types of courses. A few examples:

    In my constitutional litigation class (which is a “quasi fed courts class,” taught at UPenn — heavy emphasis on Section 1983, immunities, 11th Amendment, Ex Parte Young, Abstention, etc. but without any discussion of habeas) – the exam was a 24 hour take home exam. I thought that this type of exam perfectly suited the course (which in the end consisted of somewhere around 3000+ pages of unedited Supreme Court cases) because it was the own fair way to even touch upon a significant fraction of the material, . The exam felt like this: you have one day to get back to a sr. associate/partner an answer to two fact patterns that raise a host of constitutional litigation/fed courts issues (I think the test had 2 fact patterns, each consisting of 4 sub-parts). And apropos for this course, there was also third “policy” question. The exam for sure took the full 24 hours to write, re-read, edit, etc. My answer, if I recall, turned out to be around 25-30 pages. So it was a lot of work for one day. But as I mentioned, I thought this was fair because it gave students an opportunity to demonstrate mastery across some (or all) of the course, whereas an in-class exam (whether 3, 4, or 6 hrs) would have undoubtedly only touched upon a narrow portion of the class. The professor was also able to digest these long answers because the class was highly self-selective and very small (only 15 or so students).

    Now, on the other hand, I thought using a hybrid of multiple choice questions and short essays for classes like evidence and constitutional criminal procedure were ideal. Both of these subject matters are almost purely “rule-orientated,” and the point – or at least I think so – is to test whether you know lots of discrete rules and are able to apply them correctly in situations that are likely to repeat themselves over and over and over (i.e. hearsay objections, miranda, etc.). And so they lend themselves well to being tested vis-a-vis multiple choice questions. (Multiple choice also works well because these aren’t “doctrinal” courses per se – here I think there’s less of a focus in testing whether the student understands how the law “evolved. But I don’t want the takeaway being that these classes could not be taught in a theoretical manner, but my experience is that, at least for the introductory versions, they aren’t – which I think is appropriate because these classes severe to have a much more “practical import” than say the first year survey courses, with the exception of civil procedure). That said, the use of some short essays worked well because it simulated a motion in limine (and frankly made the test a little more fair to those who don’t necessarily excel at multiple choice exams).

  18. Recent Grad says:

    one more quick post in response to professor solove’s comment:

    “I really doubt that the current law school exam format is pedagogically sound. Students get little to no feedback; they rarely learn or grow from taking the exams; their grade comes from a tense rushed three-hour race to write an answer as quickly as they can.”

    this is, in my opinion, what is most objectionable about the law school pedagogy. i know that most professors take their responsibility to train young lawyers quite seriously; however, this duty is clearly not fulfilled if students aren’t given meaningful feedback and guidance on how to improve their work product. as mentioned above, my (and many other students’) grades have run the gamut from exceptional to below average. furthermore, these grades are usually not directly related to how well i knew/understood a course or thought i performed on an exam. thus, it is exceedingly difficult for me to figure out what i am doing right and what i am not, and to improve my work by concentrating on the former and excising the latter. furthermore, given that (a) i am surrounded by experts who could easily help me in this regard, and (b) i am paying a king’s ransom for that help, it’s a disservice to me as a student (not to mention the profession at large) to force me to somehow divine these answers for myself.

  19. Laura says:

    I hate the 3-hour timed exam, although my law school strongly encourages it for upperclassmen and requires it for 1Ls. But one useful function it may serve is preparing students for the essay section of the bar exam–if I recall correctly, in NY we had 10 essays to complete in 8 hours. So although I agree that timed exams don’t provide a good test of student knowledge, they might help students pass the bar–always useful for the would-be attorney!

  20. Prospective Student says:

    It seems to me that this question leads to an eventual dilemma between two philosophies of law school and what it is for. Is it to learn the law or is it to train to be an attorney? If presented with such a question, I would hope that it was obvious which one we should pick. If there are lawyering classes and such, shouldn’t we spend the rest of the time studying the subject of our business? If that is to be our goal, then should it be a training exercise in speeding or should it be an opportunity to delve into these issues and advocate a positiong cogently and in the manner that suits us? Again, I hope that the answer is obvious to us all.

  21. Seth R. says:

    My vote is to get rid of the essay on all bar exams. That will pretty-much kill what little credibility those in law school still advocating for essay examinations still have.

    Diversify the grade into several smaller, research papers, projects, and small multiple choice exams (meant to simulate the Multistate Bar Exam). Give a student more chances to succeed – or fail.

    The end-of-term essay just encourages self-destructive, last-minute cramming behavior that does not serve students well when they have real clients.

    If you want a real idea of what people think of the essay exam method, why not try asking over on the ABA’s Solosez email listserve? I think you’ll find that the only place this ridiculous issue is even a real debate is among the closeted world of law school faculty. Just about everyone else in the legal community is baffled why this is even still an issue.

    Of course the essay method is ridiculous and utterly divorced from reality.

    Duh!

  22. Seth R. says:

    Just an aside…

    I’m sorry to say that I feel like I learned more about Torts, Contracts, Criminal Law, Property, Civil Procedure, and the general landscape of American law from a two-week cram course from PMBR than I did from 3 years of law school. I talked to a lot of my fellow law students who also attended that class. They felt exactly the same way.

    That’s a terrible commentary on our legal education system.

  23. a 1L says:

    I did, at least in the fall, pretty well on the in-class exams. That said, the fairest exam we took was, in my opinion, easily the 8-hour take-home exam with a strict 3000 word limit (the 8-hour take-home exam with two essays and a 6000 word limit felt more like back-to-back in-class essay exams — arguably the worst of both worlds). (I could also see a 24-hour take-home exam working well as long as there’s some sort of reasonable word/page limit.)

  24. Anon says:

    I was one of the student’s in your class and found the exam to be a refreshing change of pace than the usual 3 hour exam. I did better on your exam than on any in-class exam I’ve taken in law school and felt that my performance was more reflective of my abilities than in other classes.

    It may be my own self-interest coming through, but I’ve never thought that the 3 hour exam format actually judged one’s understanding or grasp of the material…instead, it rewards those who have great outlines and/or are great at thinking about every possible issue quickly. I thought your exam (and the time allowed) better measured our understanding of the material (esp. given the course subject).

    But this is just one student’s opinion.

  25. Anon says:

    I was also in your class and echo the sentiments of the previous posting. I did well on the exam, and I believe it to be because I had more time to organize my thoughts, analyze the issues, and write coherently. I agree that three-hour law firm brief writing is probably the exception rather than the norm. Further, it is a rare day that you don’t collaborate with someone concerning your ideas, arguments, and written product. The notion that three hours of finger-vomiting on a keyboard approximates the work expected at a firm seems to carry little weight.

    Also, in having to write an essay of my own choosing, I felt that I was able to more fully engage in the subject matter of the course. I was able to choose a topic and explore that area of law much deeper than any sort of outlining and cramming would have allowed. Ultimately, I felt that I took something away from the course, not just from the lectures, but also from my own involvement and immersion in an interesting topic. Taking something of value away from any course is nice, especially when those monthly student loan statements arrive.

    Thanks for changing the format, Solove. I think it was a great move and hope that other professors at the school will consider the format’s advantages when you share about your experience.

  26. Anonymous says:

    when I was in law school my civ pro professor was challenged about her preference for in-class 3-hour exams. Her answer was thoughtful and well-reasoned: although many of her colleagues preferred take-home exams of varying lengths, she believed that they unfairly disadvantaged those students with significant family responsibilities at home (many of whom were likely women). When faced with the prospect of a 24-hour take home, students who are parents are unlikely to able to devote the entire 24-hour period to writing an exam, while those without these responsibilities could (if they chose to) devote the entire time period to the exam.

    Her logic makes sense to me as a matter of general fairness.

  27. Seth R. says:

    I don’t like the idea of a take-home exam much either.

    Just accept there’s going to be a level of superficiality in the testing process. We all know that multiple choice exams are flawed. But everyone pretty-much accepts them as fair. If you balance them out with several term papers and class projects, I see little to complain about.

  28. another grad says:

    Dear Recent Grad,

    You said the following in your last comment:

    “i know that most professors take their responsibility to train young lawyers quite seriously; however, this duty is clearly not fulfilled if students aren’t given meaningful feedback and guidance on how to improve their work product. … thus, it is exceedingly difficult for me to figure out what i am doing right and what i am not, and to improve my work by concentrating on the former and excising the latter.”

    I am not a law professor, but I can help in this regard, based on reading your comments on this thread:

    1) When you begin a sentence, capitalize the first letter of the first word. Make sure you do this for each sentence.

    2) When you use the word “I,” meaning the personal pronoun, always capitalize “I.” You should do this even if “I” is not the first word of the sentence.

    This will greatly improve your work product. Glad to help.

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