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Monday, December 07, 2009

Like a Poem?!? &!$%$@!

The folks at the WSJ Law Blog have a terrific item asking a number of leading law professors what constitutes a good law school exam answer.  I'm in agreement with most of the answers, and find it interesting that they tend to break down into a few simple pieces of advice with relatively little contradiction -- but just enough to be interesting.

1) Give an answer.  Several of the profs made this point, and Heather Gerken is especially persuasive on the topic.  She is right that one sees many answers that give a nice, on-the-one-hand, on-the-other-hand examination of the opposing doctrines and currents that might lead to one answer or the other.  Of course, that's much of what we learn in the law school, and profs around exam time tend to emphasize that we don't want "conclusory" answers, answers that are so busy saying what the student thinks is the correct outcome that they don't show their work, as they say in math class.  But Gerken is also right that one of the things we're trying to teach is judgment, and that even if we care less about the "right" answer and in fact drafted our questions to allow for more than one reasonable answer, we want to see that you are capable of reaching a conclusion about which is the best answer and justifying it.  Now, Paul Secunda does suggest in the post that we also want to see "maybes."  I don't know whether Paul also looks for an answer, but I don't think there is necessarily a contradiction,  Of course I want to see that you are aware of every forking path in your answer, but that does not mean I don't want to see any effort to draw conclusions about which is the best path.

2) Write the answer today, not yesterday.  Richard Friedman and, implicitly I think, Adam Winkler make this suggestion.  I always tell my con law students that just because we spend time on Marbury v. Madison (I know, I know), that doesn't mean any question involving a constitutional question decided in court requires a canned paragraph on the nature and history of judicial review.  Your answer should be directed at the question in a fine analytical fashion rather than just rehearsing canned legal points.  Not to say there's no room for stating the rule, but you should be doing so for a reason.  Adam talks about rigorous analysis, and we could phrase this as a separate recommendation, but we could also see rigorous organization and analysis as part and parcel of addressing the question before you rather than what you assume must be on the exam.

3) Remain human.  A couple of the posters make this point, and it's a good one.  If your answer demands that you conclude that some seemingly innocuous or fundamental law be struck down root and branch, with enormous implications for every other statute on the books, then, hey, maybe that should make you pause for a moment.  (See "judgment, legal.")  You might well want to pursue that course of analysis, but perhaps you should recognize that there is another potential side to the answer.  Legal judgment is a specialized form of judgment, but even 1Ls (especially 1Ls!) should not forget the dollop of common sense they brought with them to law school, which continues to apply even on law school exams.  Note that at least one of the profs also suggests that he'd like to hear you express a "value judgment" about whether the result is "good or fair or just."  There I must disagree.  I certainly won't mark down for it if you've done the rest of your work, and it may well add something to the answer.  But I -- and, I venture, most profs -- are less interested in your "feelings" about a result than, perhaps, about your professional judgment about whether a result is legally good or fair or just.

4) Finally, write poetry.  Pam Karlan of Stanford writes this one, and I imagine that many law student readers of this post will gnash their teeth at it.  But what she means is a little different.  She argues that every word in the answer should be there "for a reason," and show the capacity to make "creative arguments in a conventional form."  That is excellent advice.  I might add that economy and precision don't preclude a sense of grace or style, even on law school exams, and that although you can't skate endlessly far on style alone, a certain verve in your writing won't hurt and may make the process more joyous for both of us.  

Let me add to this my standard recommendation for law school exams, which in its own way incorporates each of these pieces of advice.  Write a good legal research memo.  Legal research and writing is not one of those courses that you have to take and that has nothing to do with the rest of your legal education.  It has everything to do with it.  The more you have practiced and internalized the art (and it is an art, of sorts) of capturing your thoughts and analysis in a rigorous, concise, organized fashion, with headings, topic sentences, and all the rest of it, so that you can convey your views carefully and thoroughly but without excess verbiage, the better you will be able to use this format on law school exams, to your great advantage.  The better organized and clearer your answer is, the more time you will have for the actual analysis and the easier it will be for the groggy grader, who is in the middle of reading 80 exams, to see that you have indeed spotted and dealt with every issue.  Moreover, as with any writing genre, the more you have mastered the basic mechanics, the less you'll be struggling with them while you write, and thus the more you'll be able to focus on the task at hand and even bring a certain sense of both humanity and style into the mix.  Also, legal writing is what you'll be doing with a vast amount of your time once you're in practice, so it's best to get that skill comfortably under your belt now, and not when some partner leaves you a voice-mail on Friday afternoon about something that absolutely has to get written this weekend (and which she will actually read about ten days later).

Comments are welcome, of course.  Good luck!  

Posted by Paul Horwitz on December 7, 2009 at 04:30 PM in Paul Horwitz | Permalink


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» What Makes a Good Law School Exam Answer? from ProfessorBainbridge.com
The WSJ Law Blog poses the titular question to a bunch of famous law professors. Paul Horowitz chimes in. In my experience, "B" is usually a pretty good answer. But "C" has its advantages, as well. But, as the Grail Knight advised, the key is to "choos... [Read More]

Tracked on Dec 7, 2009 5:19:56 PM


I'm a 3L with only one summer of legal work under my belt, but I must say that, from that admittedly limited perspective, legal research and writing are way undervalued in the law school curriculum. Those classes should be graded, and there should be more of them throughout law school. At my school, aside from 1L LRW, the only other required writing courses are a seminar (most of which focus on academic writing, which most of us will never use) and an upper level writing course.

For my writing course I took Products Liability, which the professor taught as you would any other doctrinal class. In fact, half the class was actually taking it as an exam class. Us "writers" had to turn in three pieces of legal writing throughout the semester. We got no instruction on any of this, we did not discuss good writing, bad writing, or indifferent writing in class. The class was just doctrine with writing assignments, on which the prof. made comments and handed back. It could, and should, have been a lot more; it should have at least tried to teach us how to write better, but it didn't.

I think the law school curriculum could do a lot more to teach students how to write better; I like the doctrine and think it's valuable, but when I was OTJ, knowing the docttrine was a very small part of what I was expected to do. What the partners and associates really wanted was for me to find the doctrine and make it as understandable as possible in as few words as possible.

As for poetry, you prawfs can read that on your own time! Yes, making creative arguments in a conventional form is important. So why not try doing it! Telling someone to "write poetry" isn't exactly breaking new ground on the old advice-giving front. Prof. Karlan has a good point to make; her barf-inducing admonishion just gets in the way.

Posted by: sehi | Dec 8, 2009 10:02:43 PM

Professor Horwitz's description of "canned hypos" reflects the way that Wayne LaFave taught criminal procedure: Discussion was based on a set of about 100 "fact patterns" handed out at the beginning of the semester. The facts patterns didn't change from year to year... just the "answers". ;-)

Finally, I'd like to gently point out that the one class that any lawyer will inevitably rely upon every day in practice, as an administrator or judge, or as an academic is the legal writing class. My "modest proposal," in fact, would be to make that class the graded one, and the rest of the 1L curriculum pass/fail (or, perhaps, honors/pass/fail), to adequately reflect the primacy of the skills involved in going from question to authority to appropriate prose/speech.

Posted by: C.E. Petit | Dec 7, 2009 6:11:59 PM

I abandoned exams in my upper level courses several years ago, in favor of assessing student performance via a series of "research" memos. (I put "research" in quotation marks because "research" is not the point of these exercises.) I design the hypotheticals anticipating that I will assess for all of the things that Paul describes, both in his post and in his comment, as he synthesizes the WSJ piece. Judgment is very much at the top of the list, although I have learned that students resist the proposition that they will be expected to exercise it as lawyers. Or, if they are exposed to that proposition elsewhere in the curriculum (legal writing courses, clinics), they often do not carry that learning over into their so-called "doctrinal" courses.

The chief drawback to this teaching and assessment strategy, and likely the reason that it (or some variant) is not more widely used in "doctrinal" courses, is that grading the students' work requires a substantial effort by the teacher during the semester, when grading is most likely to interfere with research, writing, traveling and speaking, and service obligations. In the aggregate, grading written work may well take more time than grading a stack of final exams. A second possible reason for its non-use is that other things being equal, and despite the common refrain that students want more feedback from their faculty, students don't like being told, during the semester, that their work is mediocre, and some of them will express their displeasure on teaching evaluations.

Elsewhere (offline, via email, or at my own blog), I would be happy to elaborate on what has worked and what hasn't worked as I have weaned my students off of end-of-semester exams.

Posted by: Mike Madison | Dec 7, 2009 6:06:00 PM

Hillel, you'll get no disagreement from me in principle, although in practice I fear I will be human and fall short. Certainly some profs do a good job of this. A couple of partial responses. First, by way of emphasizing a point I make in the post, hopefully learning how to exercise legal judgment is part of the legal research and writing curriculum (unless legal writing teachers are telling students to end their memos, "In conclusion, I'm not sure," which I doubt), and students will internalize this skill and import it into the rest of their work. Second, your comment makes me think about Socratic teaching. True Socratic teaching would, I suppose, encourage you to exercise judgment but without the prof actually telling you whether you've done so correctly, except by way of sneering, Kingsfieldesque comments in class. But one could imagine a more exercise-based process where the professor has her class work through hypos based on but building on the cases they're assigned; here, exercising judgment in using the materials would indeed be called for and could be discussed and evaluated. Hypos are a time-honored part of law teaching (in the US, at least), and it seems to me they are one way in which, however imperfectly, we do make an effort to tie together what we teach and how and what we test. That suggests they shouldn't be whipped together last-minute and that profs should actually spend some real time on them in class -- which, hopefully, many of us already do.

Posted by: Paul Horwitz | Dec 7, 2009 5:42:06 PM

Perhaps one problem is that law school courses are often taught differently from the way they are tested. Students are rarely taught "judgment" or right or wrong answers; so why would we expect them to show these things on an exam?

Maybe if we spend more time bringing together how we teach, what we teach, how we test, and what we test, we'd get better exams.

Posted by: Hillel Y. Levin | Dec 7, 2009 5:31:59 PM

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