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Friday, June 04, 2010

Citations to Authority on Law School Exams?

So after grading about 160 1L criminal law exams this semester, I ended with the usual questions for myself of whether I am testing student preparation and performance effectively. This year I'm wondering about the importance of student citations to authority on a traditional timed doctrinal exam.

I tend to weigh student citations to authority as important on a law school exam--not more important than other components to good analysis, but an important part of it. One compelling reason for me is that in the real world, lawyers are expected to cite to authority on a consistent basis. Also, on a law school exam, student references to authority reveal that they deliberately are avoiding two fairly common law school habits: argument from un-sourced personal opinion, and on-faith repetition of what students' professors, or commercial study aids, have told them. Citations to authority demonstrate that students instead can and will resolve a problem by independently sourcing their analysis in some kind of recognized legal authority. Plus, the practice more consistently leads to other important legal methods, like reasoning by analogy to ... authority!

I try to make this expectation clear during the semester: authority matters. Bluebook isn't judged on the exam--any discernible reference will do. I typically give open-book exams so students won't approach this expectation as a memorization contest. I also may add some extra time to exams.

Nevertheless, I am surprised that some students still don't identify much or any of the available authority for their analysis. A few students have told me that other professors, here and at other schools, don't require citations on exams, except maybe to seminal cases. A handful of professors have confirmed this practice to me, at least for traditional timed doctrinal exams. 

Perhaps I have misjudged the value of student citations to authority in this context. Or maybe I need to communicate this value more clearly during the semester. Should law professors weigh student citations to authority as an important assessment measure? If so, when and how much, and how best to demonstrate the value of it throughout the semester?

Posted by Brooks Holland on June 4, 2010 at 08:49 PM in Teaching Law | Permalink


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I'm struck by how much law school, legal practice, and clerking/judging each involve trying to demonstrate that new cases/situations/facts are governed by the traditional old rules that courts have already articulated. This makes perfect sense, it's inherent in our common law system, and I am not advocating that this be changed.

However, it is striking that there is one group that is disadvantaged by this as the exclusive form of legal education/practice: would-be/actual legal academics. I think ours may be the only discipline in which we receive three years of training in how to apply old law to new facts (or propose the most minimal extensions of old law possible) ... and with this minimal training (perhaps coupled with clerkships in which we do the same thing in a more involved way), we are considered professionally qualified to serve as academics. No wonder other elements of the academy are reluctant to take us seriously -- and no wonder that JDs are increasingly seeking Ph.Ds prior to serving as professors!

A JD degree that emphasizes citations to preexisting authority likely exactly suits the needs of practitioners, but it is grossly inadequate training for academics who hope to make significant, original scholarly contributions. The JD simply does not train most students to think independently and creatively, and it is frustrating that there is no degree within our field that really does (perhaps with the exception of the JSD, but its limitations were discussed in a blog post a couple of weeks ago).

This doesn't directly relate to your question, but this was my stream-of-consciousness reaction to your assertion that "authority matters".

Posted by: tangentialcomment | Jun 7, 2010 9:34:31 PM

The issue here is legal literacy. I give my Torts students the names of about 10 to 15 cases which I believe are essential to Torts literacy and I do the same to some extent in all the health law classes I teach. It's interesting to see all the comments above from law students who are so absolutely confident what is and is not required of practicing attorneys and, by extension, what they should or should not have to know for an exam.

I practiced law for almost 15 years before becoming a professor and while every area is different, students will find that it is helpful to have a basic knowledge of the names of the leading cases not so they can write briefs from memory, but so that they know what other lawyers are talking about. I think this is especially true of new associates who want to win the confidence of more senior attorneys so they can get more responsibility.

While everything can be taken to excess, my job is to prepare students to succeed in law practice and part of that is a basic literacy which includes knowing important case names. I agree with a poster above that not every case an author puts in a case book is an important or well known holding, but I suggest that as a law professor my responsibility is to distinguish between the cases which are merely good examples and those which are, themselves, important to know by name.

Of course I provide a list of these case names in advance and usuallly let students take a sheet of paper into even a closed book exam. I'm not asking for a stand-alone holding or statement of facts, I'm asking students to use the case appropriately in their analysis of the fact pattern.

While a timed exam may seem artificial, in fact there are basic things, including some case names, which are helpful to know in real-time if only so that you can be more efficient in doing your research.

In short, I wouldn't advise a new professor to turn an exam into a game of trivial pursuit nor would I endorse giving extra points for case names without fair warning, but equally I wouldn't retreat completely from requiring that students know by name at least some of the cases (or statute provisions) which they are likely to hear used in practice.

Posted by: Jennifer Bard | Jun 7, 2010 12:28:29 AM

Brooks, I teach crim and just finished grading dozens of exams. I tell students explicitly that analogies to precedent are crucial in legal analysis. As you point out, what litigator would not analogize to authority in the analysis section of a brief? I also tell them that the use of case names is helpful, but a blurb describing the case is equally as helpful if the name can't be recalled.

I agree strongly with your justifications for requiring analogical reasoning, but I use that term because saying "citation" or even "authority" to students seems vague. Regardless of my explanation, using those terms always seemed to be misconstrued. Saying "analogical reasoning" seems to get the message across.

I've taught at two law schools; the vast majority of profs did not want, let alone require, authority. When I have tried to inquire into justifications for that policy, I have never been satisfied. Most answers seemed to imply that reference to authority was too pedestrian and the prof wanted students focused more on theory. As a result, I suspect that the underlying issue is that many law profs fancy themselves as philosophers and not "law teachers." To require authority, it seems to me, is seen as somehow blue-collar law teaching. While I think it's important for there to be a place in the academy for philosophy, both in scholarship and teaching, I happen to agree with Judge Edwards that law teaching (and scholarship) has become too divorced from teaching the PRACTICE of law. Thus, I would think that law students would actually WANT profs to teach these skills, as they are so crucial in practice.

All that said, analogical reasoning is not a huge part of my assessment of a student's work. If a student thoroughly analyzes an issue without analogies to authority, I certainly don't "take points away." In terms of your question on how to demonstrate this during the semester, I give the students a required but ungraded in-class practice essay (just after we finish homicide). The model answer and subsequent review session both make it clear how, when, and why to use analogical reasoning. I make it clear that a quick explanatory parenthetical after an analytical sentence will get the job done just fine.

I do hope that more profs encourage analogical reasoning, and I think that a bigger question is the wide disparity (and lack of clarity) in law schools in terms of just what *is* legal analysis.

Posted by: NewLawProf | Jun 5, 2010 11:31:54 AM

I'm not in favor of a "citing case names is always important" meme on exams, but I do suggest that some kinds of citations are important on exams:

(1) Rules and statutory sections; I'm thinking, in particular, of anything in civil procedure/federal courts, or related to that. This is one of those instances in which just knowing the principle isn't good enough; sometimes "discovery sanctions" include both Rule 37 and Rule 11, and students need to know the details. Or, in an employment discrimination class, knowing the differences between § 1981 and § 1983 matters -- a lot.

(2) When a case represents not just a fundamental principle, but a change in fundamental principle (or reconciliation of a longstanding split in authority), I think it's important that both students (and counsel, in "real life") understand the historical context and how it applies. Returning again to civil procedure, just saying "Erie" isn't enough to explain things like -- to use a fact pattern I would have loved to have put on an exam -- the reasoning or result in this Term's decision in Shady Grove. In the later Federal Courts class, a fact pattern like Muchnick requires not just knowing the principles, but the distinctions among cases, in the Arbaugh/Bowles line of cases... and, most importantly, when they became effective, since one cannot transfer the principles of Muchnick backward to a case from 1975 (which would have been under the 1909 Copyright Act, which had a completely different basis for jurisdiction).

Posted by: C.E. Petit | Jun 5, 2010 11:10:02 AM

Great comments, thank you to all. I will be sure to consider these comments carefully before I write and score my summer course exam in July!

A couple of thoughts. Perhaps “citations to authority” sounded more rote than I had meant to suggest. Maybe “identify and explain” would have been better, although this process does begin with a citation of some sort. I agree that students won’t add much value to their studies if they simply memorize and regurgitate case names, and a thoughtful, effective exam answer should not be treated as something else because the student did not cite to the right number of cases. I certainly don’t want my students to think that by emphasizing the importance of authority I’m suggesting the law is a mechanical exercise. Quite the opposite—my goal for an exam is something very much like what Adam Scales described in his comment: for students to show how lawyers exercise *judgment* when analyzing a problem. I have found that exams often are *more* mechanical without the explicit use of the cases, statutes, and other materials we have studied. Maybe a traditional timed exam is not an effective forum for this type of assessment, although this semester several of my students did “identify and explain” authority pretty robustly, even within the format limits of the exam.

I am intrigued by the view expressed in a couple of comments that doctrinal law school exams relate minimally to real-world lawyering. What assessment goals should a law school exam have?

Posted by: Brooks | Jun 5, 2010 11:08:10 AM

It is interesting that Authority matters so much in Law but, since Aristotle faded from view, not at all in Science or Math. That may explain why lawyers are attracted to a profession where, like Scotus justices, they can remain ignorant of science and math.

It may also explain why it is that SCOTUS is replete with Jews and Catholics, whose religion is based on Authority and Tradition but has no Protestants, who feel "justified by faith" that depends on no Authority.

Posted by: Jimbino | Jun 5, 2010 11:03:27 AM

An interesting question. My exams are all take-homes, so some of the concerns the students mention here are inapplicable. Moreover, there is something a little odd about divorcing case names from holdings entirely. I'd be concerned if a student didn't remember the Palsgraf case for example, or referred to the "Oliver Wendell Holmes Formula" as a shorthand for the Carroll Towing case.

And yet, I agree that it is more important to focus on the rules and principles, as the student commenters suggest. A middle ground between their views and the main post is to note that case names can be extremely effective abbreviations for more complex points - as long as they are not used indiscriminately. I am constantly struggling (and I teach writing as part of Torts and upper-division courses) to focus students' attention on the important of case illustration. Many, many students would prefer to answer a torts question by stating (correctly) the elements of negligence, and informing me that they point in one direction or another. That's great - but why should I take your word for it? The student who can illustrate how, for example, the "exclusive control" element has been used in several cases is now in a great position to explain why his judgment about applying it on the exam facts is likely a sound one.

Again, my exams are take-homes. There is obviously less opportunity for full explication during in-class exams, though the points above still have some force. In my view, that's a good reason to get rid of in-class exams, but that's another topic.

Posted by: Adam Scales | Jun 5, 2010 9:48:38 AM

I think this depends on the professor's own philosophy. I find citations pretty useless on an exam. Citations are usually given either for a statement of the rule, or as a factual analogy for the application to the facts. Since a statement of the rule without application is usually useless (saying that negligence is the breach of a duty of case that causes injury tell me nothing about whether the student understands negligence), a citation for the rule is equally useless.

More useful is drawing factual analogies between the exam hypothetical and the facts of cases. But law exams are usually written so that there is no precise analogy. Somewhat analogous Case A will support one outcome and Case B will support another, and a citation to both Case A and Case B is moderately helpful. But the really important analysis will not be found in the opinions themselves. An emphasis on citing authority suggests that law is a mechanical exercise where, if the student just knows the cases really well, they will get a good grade (as was often the case in college). Debunking that fantasy is one of my principle aims in any course I teach.

Posted by: TJ | Jun 5, 2010 8:11:50 AM

I am a rising 2L, and similar to abledanger, I have had most Prawfs require that we knew "the law" and not citations for cases because they deemed it unnecessary. I believe that the emphasis for citations is best reserved for a legal writing course and ConLaw because ultimately the end of the year testing process is place where (in my opinion) students should be tested on their ability to take the law they show and provide a legal analysis that displays their ability to use the law discussed in class and casebook and apply it to a new situation. The exercise of providing authority for that analysis should (IMO) be a relegated to situations where the students have the authority in front of them.

Presumably no prawf would recommend citing a case without making sure that both the citation and the information cited are correct and here, where students do not have the opportunity to check their cites or the information cited, it should not be expected that the law they are citing is from the source the prawf is expecting. Ultimately, from the student perspective, it is one more thing to memorize and rarely communicates the message that it is important to cite and instead communicates the message that the prawf is more interested in knowing that you can memorize more details about the law than apply that law to the facts you are presented with.

To be clear, I *love* citations and when writing I cite frequently and profusely because I believe in the importance of citations, but that is inspired by my amazing legal writing prawf when I was a 1L, not because any of my other prawfs made me cite on exams.

Posted by: Chris | Jun 5, 2010 2:42:17 AM

I just finished my 1L year, and only one professor my first year wanted us to cite cases on the exam, and he explicitly told us that he only cared about name cases. He also gave us a list of which cases were the name cases.

If you want to test your students' ability to memorize case names, that's fine, but make it explicit that that's what you want. Saying that authority matters isn't explicit enough. Tell them what you want.

Posted by: Sra | Jun 5, 2010 1:32:52 AM

I'm a rising 2L, and thus far, less than a quarter of my professors have explicitly requested citations to cases on exams. The others were more concerned with principles. Sometimes a case name is useful to convey a general principle, but outside of ConLaw, I didn't spend much time referencing specific cases or authority on my exams. While it's definitely worth knowing a few key cases in each subject area, I don't see the value in memorizing and referencing random cases that the casebook author decided to include. Sure, these cases discuss specific principles, but they are rarely the definitive or classic case on the topic. I think ConLaw is often different than most courses because there are many more cases that stand for specific principles and tests (Roe, Lochner, Marbury, etc.). I wish more professors would realize that exams rarely have any realistic relation to actual practice and stop trying to design them as such.

Posted by: abledanger | Jun 5, 2010 1:16:12 AM

Coming from a current rising 3L, anoners makes excellent points. How is memorizing from a casebook, or in-class student notes, any different from memorizing from a commercial study guide?
Also, I don't understand the reasoning that you want to make the exam experience more like the "real world" of practicing law. How is typing long essays on a myriad of topics or answering multiple choice questions - in a three or four hour period - anything like writing a motion or internal memo, or arguing before a judge, on a very pointed legal question? The pedagogical experience of law school, though helpful, is far from the experience of an attorney's day-to-day life.
Most professors at my school explicitly state that they will not add or subtract points for citation (or lack thereof) to specific cases.

Posted by: Anony | Jun 5, 2010 12:42:44 AM

I almost never cited to authority on any law school exam (with the exception of reference to something like Miranda or Chevron, for obvious reasons). I went to a good school and did well, so no sour grapes, but I'd hate to think that cost me points when most profs said that didn't matter and no one said it did. (If you warn your students, then they're on notice, but for the reasons below, I still think it's a poor way of scoring.)

More importantly, that just seems silly. The point is to determine whether you can digest how a body of law works/fits together and apply it to a set of facts -- not to determine whether you can remember the names of hundreds of cases.

And if you're practicing, you need to be able to say "there's a consideration problem here" and then find a case to support your point; no one does (or should) start with the name of a case and then works out from that. (Or duty of care, or intent, or sufficiency of contacts, or standing, depending on your subject.)

And why is it a bad thing if students are learning based on what they read in supplemental commercial outlines or what their professors say? If you're worried they're not reading the casebook, do something with class participation, but penalizing students for absorbing what their professor says is shocking.

Posted by: anoners | Jun 4, 2010 11:12:15 PM

Communicate this expectation explicitly. Many professors will say they don't care if you cite the case if you cite the principle, and it's a standard piece of advice given to 1Ls by TAs and older students. Definitely make it explicit if you want it.

Posted by: anon | Jun 4, 2010 9:35:53 PM

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