Friday, April 29, 2011
My New Exam Rule
I should have come to this resolution earlier, but I have finally figured out (after only 17 years) something noteworthy about exams: Exams should be either time pressured or space pressured, but not both. If they are both, students tend to feel that they didn't get to show you everything they know, even if we professors realize that these factors don't really make much difference in a student's overall performance, since every student takes the exact same exam. [If you are one of my students reading this post, and you took an exam that I wrote that was both time and space pressured, I realize that my new resolve won't be much consolation to you.]
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I agree entirely; it has always seemed to me that imposing both limits simultaneously risks testing on logistics rather than facility with the subject matter.
Posted by: Bruce Boyden | Apr 30, 2011 11:05:29 AM
by time and space limits you mean 3hr exam and only 1000 words per essay? explain plz
Posted by: anon | Apr 30, 2011 12:30:00 PM
My view is that law exams should not be time pressured. I have the somewhat unique perspective of having practiced law for four years only to return to the student's seat to pursue a tax LL.M. This time around, I've been extremely frustrated by the (few) time pressured exams I've had to take.
In practice, you simply can't afford to give legal advice off the top of your head. It's a recipe for disaster. You have to develop the resolve to take the time to verify your advice, regardless of the external pressure on you to give the client "something now" (even if the client is a state representative literally looking over your shoulder on the state house floor as you read from a statute book, for example).
I think that, at least in a statutory class like tax, the exams should all be open book, 8- to 24-hour take home exams. This allows the student to approach the exam like a good practitioner would: by learning the material well enough to be able to spot the issues and efficiently go to the relevant parts of the source material to verify the answer.
A space pressured exam seems completely reasonable because it requires succinctness, which is an important lawyer skill, and keeps the professor from having to read a stack of dry, long-winded novels.
Posted by: Brett Ferguson | Apr 30, 2011 1:25:14 PM
Brett, this is the way I look at it. First of all, an exam is not really like practice in any direct way. It's not supposed to measure how good a lawyer you are; it's meant to measure whether you learned the material and can apply it. Second, while it's true that in practice you should always look stuff up when you have any doubt, you can't possibly look *everything* up. There's some stuff you just have to know. You shouldn't have to, e.g., go looking up what the elements of a breach of contract claim are every time you get a contract question. That's the stuff that you learn in law school classes--the basics. I actually give a mix of take-homes and timed exams, but my timed exams tend to be in the classes I teach that have a lot of bread-and-butter, blackletter law content to them. I.e., stuff you really should know off the top of your head (my exams are all open book in case memory fails you to some small degree).
Posted by: Bruce Boyden | Apr 30, 2011 2:14:58 PM
I agree with Bruce. In my view, the law school exam that is focused on the ability to spot issues quickly and provide some basic level of analysis more clearly differentiates between good and great lawyers than an exam that allows time for research and verification. Further, I think that it resembles actual practice in an important way. Clients are looking for someone who can answer a question, sure. But they value lawyers with the ability to spot issues that they had not considered and to offer an initial level of analysis in order to determine whether further time (and expense) is warranted. Judgment is what separates the great lawyers from the good lawyers. A time-pressured exam tests those abilities rather than basic research and verification skills (which should be possessed by any entry-level law student).
Posted by: NewGuy | Apr 30, 2011 5:05:07 PM
The notion that a 3-hour issue-spotter exam taken under heavy time pressure bears a real resemblance to assessing or developing legal judgment (as opposed to rote memorization, ability instantly to size up a problem without meaningful time for thought, and typing skills) is...interesting.
Posted by: M | Apr 30, 2011 6:41:05 PM
"You shouldn't have to, e.g., go looking up what the elements of a breach of contract claim are every time you get a contract question."
Yikes! Admittedly, it's been 10+ years since I took contracts and I don't (anymore) do a lot of contract-based litigation, but what's the answer to this other than "nonperformance"? I mean, I get that that has a lot of potential defenses -- no contract, impossibility, illegality, etc. But assuming a hypothetical contract with definite terms and none of those defenses apply, are there really elements other than "so-and-so party didn't do what the contract requires"? (I need to look at my hornbooks again if I've forgotten stuff this straightforward.)
Posted by: Joe | Apr 30, 2011 7:56:34 PM
The thing that always amazes me about these posts is that law professors are so oblivious to the literature on testing and they act as if they have stumbled upon some great revelation when the literature on testing over the last thirty years would provide a good indication of the value of different kinds of tests. There are, for example, different kinds of timed tests -- one that is difficult to finish in the allotted time (of very little utility for a law exam) and one that has time limits purely for practical purposes. Any time an exam is given, there should have been significant thought given to what is being measured; many exams, for example, measure the same skill repeatedly, and again, there is often little reason to do that. For example, someone who gives multiple issue spotters is likely measuring the same skill/knowledge repeatedly, and it might be worth checking to see how students fare on the different questions. Closed book exams reward memory skills but have little connection to either law practice or law study. Again, there is a large literature on test construction, something law professors might want to look at before they expound on their new insights.
Posted by: MS | May 1, 2011 12:15:17 AM
MS, your comment would be enormously helpful if it included actual citations to some of the literature you are referring to. I suspect without having looked at it that much of the literature may be focused at testing in disciplines that are not analogous to law and legal reasoning. Articles that offer some sort of consensus view on the particular best methods to test on legal analysis (and do not have unrealistic time demands) would be particularly helpful.
Posted by: Bruce Boyden | May 1, 2011 1:33:43 AM
As I prepare for my Contracts 2 final, not much that is posted here has offered me any solace. My exams are all closed book, including Contracts, and Civil Pro where we are required to memorize as many Restatements as possible, and so many rules of the FRCP that we might as well memorize the whole book. I only wish my professors were on here to read what has been written, especially the practical suggestions about testing. I would probably tend to agree with MS that closed book exams reward memory skills but have little connection to either law practice or law study. However, law study can not be accomplished without memory (at my law school) as a student will fail out before ever getting to practice.
Posted by: Brent Barbour | May 2, 2011 9:20:02 AM
I never had to take a closed book test as a law student, and I see little reason to assign one as a professor, in part for the reasons Brent and MS identified in the previous post. Initial research questions in practice required me to know where to look to find answers, but not to recite tests from memory. Some of those research assignments were time-sensitive, however, and the ability to correctly analyze a dispute and compose a memo outlining potential outcomes, sometimes under extremely tight time pressure, is consistent with my practice experience.
Posted by: Jake Linford | May 2, 2011 9:36:29 AM
Ok, I know I probably should just let it go but in response to Bruce Boyden's comment where he speculates on literature he has not read . . .it seems that kind of proves the point of my original post.
Posted by: MS | May 2, 2011 9:43:52 AM
Your response to Bruce...is, well... unresponsive. He asked that you include "actual citations to some of the literature you are referring to," which you didn't do, raising the question of whether you know pedagogical literature adequately enough to be making your conclusions.
Posted by: anon | May 2, 2011 10:23:58 AM
MS, either you'd like me to actually read the literature you're referring to, or you'd like to just gloat that I haven't read it. It's your call.
Posted by: Bruce Boyden | May 2, 2011 12:51:18 PM
I'm a law student @ UF who's done well so far in law school. I acknowledge that exams do test legal analytical ability to a degree.
But I think often the difference in grades on law school exams often has less to do with legal analytical ability and more to do with other factors, most importantly exam preparation.
By exam preparation, I mean really looking at old exams to figure out how a professor's answer preferences. Let's be honest: professors often how widely different expectations on what exam answers should look, how issues should be discussed, etc. Some professors might expect discussion of policy interwoven with legal analysis, while some might prefer more straight forward black letter law analysis. Some might place high value on "magic words," some may place more emphasis on correctly applying the concepts without necessarily using the magic words. Some professors place a lot of emphasis on grammar, organization, etc. and others don't care if you use only bullet points. For some of these preference, there is no "right" or "wrong" to do things, but if you want an A, you need to adhere to the professor's preference.
Also, you can figure out recurring issues/fact patterns that professors tend to use on exams. I've noticed with some professors that if I do enough old exams that nothing on the actual final will really surprise me.
None of this really has much to do with legal analysis- it is just figuring out a professor's preferences and recurring habits. If you spend enough time studying a professor's old exams, or even meeting with a professor to figure out their preferences, you are probably going to have a significant advantage over someone with equal "raw" legal analytical ability.
Posted by: Mr Anon | May 2, 2011 11:42:13 PM
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