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Friday, December 17, 2010

Hot-button Testing

I just returned from a really terrific Con Law roundtable on the Roberts Court at Five, at the University of Louisville, organized by Russ Weaver.  I'll be blogging about a few of the topics we discussed of the course of the next week or two.

I'll start with a pedagogy point.  At some point during the discussion (which, as befits the term "roundtable," was an unmoderated discussion between the participants), the issue of teaching and testing came up.   It was a lively discussion: a number of participants saw the Roberts Court -- and even the Supreme Court in general -- as primarily a political, not a legal, institution, which raised interesting issues about, among other issues, how we teach and how we test.

The particular question I want to raise today concerned the idea of testing using politically fraught fact patterns, such as the constitutionality of the health care law.  One participant said he used that law as a hypo on his final exam.  I was not enormously surprised to hear that, but I still have some concerns, the plausibility of which I'm wondering about and on which I'd love to hear some reaction.  Basically, the issue is this: if a prof asks a question about something controversial, will students feel pressured/tempted to try to guess the prof's political position on that issue, and skew their analysis accordingly?  This is presumably a bigger issue the more the prof takes the position in class that law is indeterminate at least to some degree, and that decisions, at least at the Supreme Court level, are as much political as they are legal.

Of course, there's nothing necessarily wrong with thinking that way, and if you think that way it makes sense (and is more honest, to boot) if you test that way, especially if you spend a lot of class time examining the "law is politics" claim.  Moreover, there's surely nothing wrong with driving home (and testing on) the idea that doctrine provides a box of tools that a competent, creative lawyer has to be able to use. So even if you do think (and teach) that law is politics, you can insist that students give an answer couched in competent legal analysis.   But if a prof does that, and then gives the health care law as an exam hypo, and asks "is it constitutional?" or "how would a court rule?" then I wonder if that's really playing fair.

The obvious fix is to change the call of the question, to ask something like "make the strongest argument you can for the law's (un)constitutionality."  But even then I wonder if there's a level playing field -- if the prof says that law is politics, then asks students to take and defend a "political" position they disagree with, might a student feel disadvantaged as compared with students with the opposing views?  Or if the prof is, say, a liberal, and asks "make the strongest argument that the health care law is unconstitutional," would a student feel like she's being set up?

Note that the problem here is not just one of reality, but of perception as well.  Probably one of the most corrosive things students can think is that, after working hard all semester, the exam was slanted against them.  So I'm wondering: are these real issues?  How have students and profs confronted them?

Posted by Bill Araiza on December 17, 2010 at 05:40 PM in Teaching Law | Permalink


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I teach labor and employment law, areas that get fewer headlines than con law but that do often produce strong disagreements on policy matters. When I test on policy / current events, e.g., asking about whether a particular case should be reversed or modified, or a proposed statute or amendement passed, I always instruct the students to give the strongest arguments on BOTH sides of the issue, and I allot an equal number of potential points for the pro and con arguments. There might be a few points left over for a concluding argument or proposed modifications, but pretty much all the points available are for knowing what knowledgable folks on both sides of the issue would say.

Thus, a student who writes arguments only on whatever side I personally am on could only get half the available points. And I can only test this way if I think there are plausible-strong arguments opposing the side I'm on. I think that's worked pretty well.

Posted by: Joseph Slater | Dec 19, 2010 2:31:22 PM

Given that until not too long ago, virtually the entire liberal academy was adamant that challenges to the PPACA were frivolous, saying that "most" professors can recognize their political biases and fairly evaluate the other side's arguments is a stretch. It is not that the professors can't understand the other side's arguments or articulate them; it is that unconscious bias will necessarily make the other side's arguments seem less persuasive. Same principle affects hiring of conservative law professors.

Posted by: anon | Dec 18, 2010 11:27:46 PM

Most professors can, I think, recognize reasonable and persuasive arguments, even if they disagree with the ultimate conclusion. I don't teach con law and I believe PPACA is constitutional, but I can recognize the doctrinal and theoretical coherence of the arguments that it is unconstitutional and hope I could do so on the exam. That should eliminate any disadvantage.

And framed as Anon puts it, it becomes even more clear that this is not limited to politically controversial subjects. I could say the same about the personal jurisdiction essay I gave in Civ Pro last year--my considered judgment is that there was jurisdiction in the hypo, but I could recognize the merits in a properly written argument that there was not.

Posted by: Howard Wasserman | Dec 18, 2010 8:54:46 AM

"One way to do this is to emphasize that they will not be graded on their conclusion, but only on their analysis."

I'm not sure it's that simple. What if the professor's considered, good-faith doctrinal and theoretical analysis is that politically controversial law X is constitutional? A student whose conclusion is that it is unconstitutional will necessarily be at a disadvantage. To the extent that the professor's (good faith) analysis is (unconsciously) biased by his or her politics, this leads to unfair grading.

How often does a conlaw professor analyze a proposed statute and decide that the arguments for and against its constitutionality are in equipoise? I would guess not very often. A hypothetical statute, on the other hand, can be deliberately crafted by the professor to fall within the gaps in the doctrine so that there will be strong arguments on both sides.

I agree entirely with Professor Wasserman's second and third points.

Posted by: Anon '08 Grad | Dec 17, 2010 11:10:07 PM

A few thoughts.

First, I think this is OK if we emphasize to students (multiple times, likely necessary) that we want them to give what they believe is the best doctrinally and theoretically grounded answer and that they should not try to guess the professor's politics. One way to do this is to emphasize that they will not be graded on their conclusion, but only on their analysis.

Second, this concern is not limited only to con law. Lots of other classes--crim and crim pro come to mind--raise this issue. Sometimes it is unavoidable.

Finally, lawyers often find themselves having to argue legal positions that may diverge from their political preferences. So it may be good for them to learn to handle this now.

Posted by: Howard Wasserman | Dec 17, 2010 8:11:17 PM

I very much disliked questions in the form of: "Is politically controversial law X constitutional?" In situations like that, I always felt a strong pressure to write to the professor's politics rather than doing my best attempt at a "neutral" or "objective" assessment of the law. I want to be tested on my knowledge and analytical skills, not my ability to psychoanalyze the professor.

I am less troubled by questions in the form of: "Would hypothetical politically controversial law X be constitutional?" Usually in questions like this, it's clear that the professor has tried to draft the law to hit the gaps and inconsistencies in the case law so that there are strong arguments both ways. And half of writing a good answer is effectively identifying and arguing against the strongest points on the other side.

I am not at all bothered by questions in the form of: "You represent a client who is challenging the constitutionality of politically controversial law X." I think a good student with a solid grasp of the material should be able to tackle a question like this regardless of which side he or she personally comes down on. Part of being a good lawyer is making the best colorable arguments for your client, regardless of whether you personally believe they should win the day.

Just my two cents.

Posted by: Anon '08 Grad | Dec 17, 2010 6:10:17 PM

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