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?