Tough Tests, Take 5: What Do You Do With an Exam in Which a Student Doesn't Reach Conclusions?

If you're like me, most of your exam questions are in the nature of "spot the issue," not "spot the conclusion." In other words, on an Criminal Procedure exam, a typical question might give students a fact pattern involving a questionable Terry "stop and frisk," with the student being expected to state reasons why the officer's actions would or would not be deemed constitutional...followed by a conclusion. But what happens when a student fails to reach a conclusion? In other words, what do you do when you have an IRA exam instead of an IRAC exam?

Obviously, a student's failure to provide a conclusion to some questions should lead to a significant loss of points. If I do have a "spot the answer" question in which it is clear that, for instance, the "stop and frisk" was constitutional, a student's failure to reach that (or any) conclusion will be quite damaging to her exam. The same goes if I include a red herring on the exam where something could be argued but should be dismissed.  For instance, if I have an officer reaching into a suspect's pocket, and a student lists reasons why this might or might not have been a proper Terry frisk without ultimately (correctly) concluding that the frisk was unconstitutional, the student's exam will suffer a good deal.

But what if the question involves a really close call? What if a student could easily reach the conclusion that the "stop and frisk" either was or was not constitutional. In other words, what if it is exactly the type of question that most of us ask to ensure the neat "The prosecutor will argue," "Defense counsel will argue," "The court should conclude" answer? (Law professors are like Vegas setting the line on a sporting event and hoping for equal action on both sides) And what if a student adroitly lays out all of the arguments that both sides would make, expertly applying the law to the facts...but then doesn't reach a conclusion.

The way I see it, the conclusion is the least important part of an answer to such a question because the conclusion is essentially arbitrary. Student A could easily conclude that the prosecutor's arguments are more persuasive (constitutional), Student B could conclude the opposite (unconstitutional), and Student C could conclude that both sides' arguments are equally persuasive, with the prosecution having the burden of proof (unconstitutional).

Each of these students could receive equal credit for their answers because, as noted, their conclusions are basically arbitrary. If I have written a good exam question, there are equally good arguments on both sides, and a student's conclusion is nothing more than highlighting which arguments she deems most important. I always tell my students that it is not important what conclusion they reach on the exam as long as they reach a conclusion.

But how important? If I have an exam with 4 questions with 4 issues with 4 arguments on each side of each issue, let's say that Student A provides perfect analysis of each of the 32 arguments. But let's say that Student A never reaches any conclusions. And let's say that each question was a "spot the issue" question in which Student A could have reached either conclusion and gotten full credit. Is Student A's exam still an A exam? Is it "better," all else being equal, than Student B's exam, which perfectly analyzed 31 arguments but reached conclusions on all 4 questions? 30 arguments? 29? 28? How damaging is it to a student's grade if she doesn't include a conclusion to a question where any conclusion could be correct?

-Colin Miller