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Tuesday, January 11, 2011

Rethinking exam hypos

Welcome back from AALS (for those who went) and to a new semester. I thought I would begin the semester with a question about exam-writing (because it is never too early to start thinking about that).

The issue-spotting essay is the staple of law-school exams (alone or in conjunection with other testing mechanisms, such as multiple choice). But one thing I have been toying with recently is a move away from made-up hypotheticals and towards essay questions based on real cases. Rather than giving students an elaborate hypo on, say, personal jurisdiction, I would provide a lower-court opinion (prerably one with a  dissent) and have the students write an opinion as the reviewing judge (or a whole reviewing court, if I want to do a group project). This is how I do the oral arguments in my upper-level classes; instead of arguing the case, my civ pro students would write the reveiewing opinion.

The advantage to this, I believe, is that I avoid the problem of having holes in the hypo or of unintentionally creating a hypo that is not sufficiently gray, two-sided, or open-ended. And as for the desire for creative fact patterns, well, truth can be stranger than any fiction I can come up with. Plus, I usually target single issues in my essays ("Decide whether the court has subject matter jurisdiction" or "Decide what law applies"); I tend not to use elaborate factual situations with lots of red herrings for them to dig through. There is less of a sense that I am trying to fool anyone this way.

What I am worried about with this approach is that the lower-court opinion will do all the work for them. Students could simply copy the lower-court's analysis (either from the majority or dissent, depending on how they want to come out) in their essays, without having to put the legal framework and application together themselves. In other words, I want the students to put together and discuss the International Shoe flowchart themselves, not copy it from the lower court's opinion.  Is there a way around this problem? Is this even a problem? Maybe not, since they could just copy the framework from all the cases we read during the semester. And I could take how "original" the organization and writing is in evaluating each essay.

Are there other problems with giving them real cases as the basis for the essay exam? Is there a particular benefit to creating our own hypos for students to work through?

Posted by Howard Wasserman on January 11, 2011 at 08:13 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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I've used real questions for my exams for many years. Sometimes I give the students an edited lower court opinion, sometimes not. I usually tell them, though, that they won't get any credit for stuff like copying their outline into the exam answer, or repeating the lower court's analysis. (I also tell them that it's highly unlikely that I would use an actual opinion if I didn't think there were something important wrong with it.) The only real downsides I've seen are (1) coverage -- no real question is going to give optimal coverage of every important issue (but since my students expect real questions, that's okay. Plus, it has the advantage of encouraging them to think through any current example out there in the real world as if it were an exam question.) (2) researching the real question can sometimes take a lot of time and run up my personal pacer account charges (but I kind of enjoy it).

Posted by: Jessica Litman | Jan 11, 2011 10:36:14 AM

There's also no reason that one must give the entire opinion as the "question"; it's probably enough to give the recitation of facts, the conclusion, and then tell the students to fill in the middle. That also gives the students a bit of exercise in tailoring writing to a preordained conclusion... which (a) is the default -- not the exception -- in both firm and government practice, and (b) provides a preview of the way many bar-exam questions are constructed.

Posted by: C.E. Petit | Jan 11, 2011 11:17:23 AM

In a related vein, last semester I used a real complaint in a civil rights case (with just slightly modified facts) to test Civ Pro students on possible defenses and responses. Given the time constraints of the exam, I was a little worried whether students would carefully read and digest several pages of a complaint before launching into a response, but I was pleasantly surprised with the results. The complaint was particularly useful because students couldn't just mimic someone else's reasoning (as a lower court opinion or brief might allow). Of course, its value and application outside of the "rules" component of Civ Pro is somewhat less clear.

Posted by: Jordy Singer | Jan 11, 2011 3:20:31 PM

Reduce real cases to hypothetical status by deleting the court's reasoning, eliminating duplicative or unnecessary issues, adding issues not in the case to provide adequate coverage, in effect using the real case for a basic story line that is then developed in different ways. I've been doing that for more than thirty years, ever since a student complained that a question I asked "could never happen." Since then, if it appears on my exam it happened, by definition. I also use real party names so the students can look up the case after the exam. I teach Procedure (the con law and statutory parts of the course - not the Federal Rules), and have never had any difficulty finding cases to adapt. I've never asked the same question twice in thirty years. It might not be so easy for all subjects.

Posted by: RJC | Jan 11, 2011 11:25:55 PM

Students may have already read the selected opinion, though perhaps not with regard to your prompt. By selecting cases in a different circuit (or state) you can probably reduce the likelihood of that happening, but if the opinion is online, you can't eliminate it. It seems problematic for some students to have read the opinion prior to the test while others have not.

Posted by: Nick Boening | Jan 16, 2011 3:16:29 PM

I base almost all my exam questions on real cases. I often give the students an edited version of the complaint in the case and ask them to identify the legal issues raised and evaluate them. I identify the cases used, in the feedback memorandum after the exam.

Posted by: Thaddeus Pope | Jan 24, 2011 12:53:14 PM

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