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Wednesday, November 02, 2011

Guest: Kicking off guest stint

The following is by Kerri Stone, my FIU colleague anda guest prawf this month:
I am thrilled to be guest-blogging this month and honored to have been asked. I am an Associate Professor of Law at the Florida International University College of Law, where I teach Contracts, Employment Discrimination, Employment Law, Labor Law, and a seminar in Employment Discrimination Law. I write about antidiscrimination legislation and jurisprudence.
I thought I’d use this guest stint opportunity to generate some discussions about some topics of interest, both in terms of pedagogy and my research. With November upon us, many people's minds naturally turn to exam writing, so I thought I'd kick off with a return to some timeworn questions that are worthy of revisiting periodically : Open book or closed book exam? Word limits or no word limits? Obviously, there's no one right way to do things, and it's clear that each choice has both advantages and disadvantages. I am very interested in hearing others' views and philosophies.
I have usually given open-book-open notes-open-everything-not-electronic exams in Contracts and in my upper level electives. The exams typically consist of essay questions, and each question typically has had a word limit.  I aim to simulate and test the skills students will employ in actual practice (as best as the artifice of the exam will permit) by refraining from asking them to engage in memorizing items that they will never need to memorize (Restatement provision numbers and the like) and having them focus on engaging in issue spotting, rule synthesis, legal analysis, argument crafting, etc.
What I do not want to do is to reward the person who can type the fastest,  allow someone to  amass credit each time she writes things that are technically correct, albeit perhaps not completely salient or even relevant, or make it passable to  pre-can a bunch of prose by copying or paraphrasing from a treatise and dump it on the page without knowing how to apply it; hence the word limits. I also do not want to permit a gaming of the exam, whereupon upon being told that he can only bring in an assigned Supplement or an outline of however many pages, a clever student engages in a “write the Constitution on a grain of rice”-style inscription of other sources' material onto or into permissible (or permissible-looking) formats; hence the “open-everything” permissiveness.
The word limits are designed to discourage and weed out those who approach an exam according to a "checklist" approach. Such students, upon being confronted with a variety of complex issues, automatically revert to a "checklist" of issues and explanations. ("Consideration does not look to be at issue here. Consideration is a requirement for a valid, enforceable contract that has been defined as requiring...").  However, I find that the combination of the open-everything policy and the word limits is not optimal for everyone.  Too many students fall prey to the lure of access to all materials during an exam and revert to blind copying of sources, when I suspect that if left to their own devices and forced to confront the material, they'd perform better.
Despite my admonition to my class each year that the best students will study for the exam as though it were, in fact, closed book, I find that a good deal of the class later admits to having gone into what I call “Pigpen” mode. These students report that during the exam, they spent an inordinate amount of time rustling frantically through pages of books, notes, and treatises, kicking up dust reminiscent of that which surrounds the Peanuts character Pigpen. Moreover, despite my warning that the students who do the best on my exams report that they spend more time engaging with the questions and fact patterns before them, these students report that having been allowed to bring in so many materials, they can't seem to put them down once they're in the exam. I am considering switching to a closed book format in the future, and I am very interested in hearing others' philosophies and approaches.
On a final note, I am interested in others' views on whether affirmatively wrong information on an exam ought to result in an affirmative deduction of points (or decline in scoring, no matter how that's done) or whether it should just be as if the student wrote nothing. I realize that when you're grading on a curve (especially with a word limit like mine), I might be describing a distinction without much of a difference. Lately, however, I have been thinking about the idea that in practice, one of the worst things an attorney can do is purport to have insight or information when, in fact, she has the underlying concepts all wrong. Should exam grading mirror this judgment?   Or is spotting an issue, albeit in a manner that's rife with mistakes, always better than overlooking it?

Posted by Howard Wasserman on November 2, 2011 at 10:00 AM in Life of Law Schools, Teaching Law | Permalink


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I obviously don't have first hand knowledge, but my impression is that there are few circumstances where a lawyer can't say, "Give me an hour to look into that and I'll get back to you." Isn't thoughtful consideration a more important virtue to encourage than quick snap judgment? Again, I could very well be wrong, and I'm sure having stuff at your fingertips is necessary sometimes. I'm just doubtful that it's as important, relatively speaking, as the format of law school exams suggests.

And yeah, cheating is obviously a concern

Posted by: Andrew MacKie-Mason | Nov 3, 2011 7:27:34 PM


I do think that giving a full explanation on the fly is actually very important, as lawyers have to give instant reactions to problems all the time.

Beyond that, when I was in law school there were reports about episodes of cheating on take-home exams that have made me cautious about take-home exams ever since.

Posted by: Orin Kerr | Nov 3, 2011 7:07:39 PM

Doesn't the "replicate real life" goal counsel against in-class exams, or at least exams that are significantly time pressured? Or is the ability to give a full explanation of an issue on the fly actually very important?

Posted by: Andrew MacKie-Mason | Nov 3, 2011 12:50:12 PM

1. I don't impose word limits on my exams, and I use open everything exams for the same reason: avoiding student stress. I hate the idea of a student blanking on the final exam (which counts for the student's entire grade) when a quick check of notes could cure everything. I also hate the idea of a student worrying about this happening while studying for the exam, causing unnecessary anxiety and possibly distracting the student from studying. I also dislike the idea of a student taking one of my exams and constantly worrying about whether to include things or leave them out based upon knowing that there is a word limit. Here's a post I did on word limits and exams:


And here's one about "open everything" exams (which notes some other reasons why I give them):


2. With regard to "Pigpen" mode, I always tell students that while my exams are open everything, they should treat them as if they are closed book. In other words, they have their book/notes, but based upon the time constrained nature of the exam, they will likely only have time to consult their book/notes a few times during the exam if they want to finish each question.

3. I always tell students that I don't subtract points for accurate statements of the law that are beyond the scope of the question but do subtract points for incorrect statements of the law for the same reasons Orin and you mentioned. The reason I don't subtract points for accurate statements beyond the scope of the question is that I don't want students making a Solomonic choice if they are unsure about whether something is beyond the scope of a question (e.g., "I don't think that this statement was a dying declaration. But if I don't address the issue, I could lose points. But if I do address the issue, I could also lose points.").

Posted by: Colin Miller | Nov 3, 2011 11:55:50 AM

Thanks for weighing in. I tend to agree.

Posted by: Kerri Stone | Nov 3, 2011 10:51:15 AM

In my view, the purpose of grades is to tell employers how good a lawyer we think the student is going to be. For that reason, I think our testing should replicate as closely as possible the conditions of legal practice. To my mind this means:

1) Open book exams, as legal practice is always open book. Whether a student knows the field well enough to get most answers without consulting notes or is sufficiently confused to go into "pigpen mode" is a decent indicator of how good a lawyer they are going to be.

2) Major points off for affirmatively wrong answers, for the reason you mention: A lawyer who gets up there and starts spewing out totally wrong information that reflects a basic misunderstanding of the law is not a lawyer you would want to hire

The question of word limits is trickier, I think. In part, I think it depends on whether it is a take-home exam (in which a word limit on an exam is like a word limit on a brief) or an in-class exam (in which a word limit on an exam seems more artificial, as it's more like a word limit on giving quick advice to a client on the fly).

Posted by: Orin Kerr | Nov 3, 2011 10:32:33 AM

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