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Thursday, May 16, 2013

Learning from exams

I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.

Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.

At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.

For example, this is how FRCP 15(a) reads:

    (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

            (A) 21 days after serving it, or

            (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

When given a question about whether an amended complaint had been properly filed, students regularly went for sub-part (A) rather than (B), probably because that comes first so they never got around to comparing the two provisions to see which one properly applied. Then they read either sub-part in isolation, ignoring the introductory paragraph and the word "within." So a large number of students wrote that the window for amending began at service and ran for 21 days, ignoring any other starting point. We talked about this at length in class and it came up in review sessions; apparently we needed to talk about it at even greater length. I may also give a short hypo to discuss in class (probably the question from this year's exam that caused all the problems) to illustrate how the rule works.

They had similar problems with § 1391 of not seeing how parts of a statute fit together. As amended, § 1391(b) lays out the three bases for venue, then § 1391(c) identifies the way "residency" is determined for purposes of § 1391(b)(1). But most students read (c) as an independent basis for determining venue, not as a definitional provision of a different section of the statute. Again, these exam answers show where I need to spend a little more time next year, since the venue discussion always feels rushed, thrown in between personal jurisdiction and Erie.

Finally, on a different but related note: To what extent do you hope that taking and reviewing exams/papers will be a learning experience for the students? And students, to what extent do you  feel as if you learn something in taking and/or reviewing the exam with the professor?

Posted by Howard Wasserman on May 16, 2013 at 03:25 PM in Howard Wasserman, Teaching Law | Permalink


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Howard, there's a few points in the semester where I say stuff like that, but I don't recall too many exams misquoting the rule -- perhaps because they are under such time pressure that they don't do direct quotes at all.

Posted by: Bruce Boyden | May 17, 2013 12:12:55 PM

One other point on this is that the desire to learn from an exam is significantly different in a fall as opposed to spring semester 1L class. Civ Pro is a spring class, so I get very few students coming through to review the exam and grad, as contrasted with my colleagues who teach in the fall (and as contrasted with the times I have taught Civ Pro in the fall).

Posted by: Howard Wasserman | May 17, 2013 10:48:35 AM

As I student, I learned from the exams where the professor took the trouble to write a memo explaining what she was looking for. I also learned from circulated "best" exams, because they gave me some indication of what other students distilled from the course. That is why I pick a couple of "top" exams from every class, and also try to draft and circulate coherent memo explaining to the students what I was looking for, and why. If students take the time with those materials, I feel like they can increase their understanding of the substance of the law. For 1Ls in my Contracts class, I insist that they read through both sets of materials before we go over their exam in person. Very few take me up on it.

Posted by: Jake Linford | May 17, 2013 9:33:57 AM

Bruce: I like that. But how often do you get an exam in which a student says that 15(a)(1)(A) actually does include that extra clause?

Posted by: Howard Wasserman | May 17, 2013 7:18:07 AM

15(a) is still confusing. I think the problem is the lopsided construction. (a)(1)(A) looks like a general rule but it is not; it is half of a rule. I tell my students to insert a clause in (A) -- "A party may amend its pleading once as a matter of course within: (A) [if the pleading is *not* one to which a responsive pleading is required,] 21 days after serving it, ..."

Posted by: Bruce Boyden | May 16, 2013 11:48:20 PM

Regarding the JVCA, I think that most of the changes were "clarifications" only from the perspective of people who were already familiar with the statutes and the difficulties that had arisen under them.

For example, most students used to read 1446 and say "Okay, the defendant has 30 days to remove." After they had absorbed that information, either their professor or the casebook raised the question of what happens when there are multiple defendants. The new version answers a lot more questions all at once, but I think it is overwhelming for someone who has not yet thought of the questions.

The same is true, in spades, of the new 1391.

But I have always struggled with how to teach students to read these statutes.

Posted by: Jennifer Hendricks | May 16, 2013 6:00:23 PM

Speaking as someone not TOO far removed from the exam game, I learned nothing from taking/reviewing most of my exams (studying for the exam is another story). Either I knew the material and did well on the exam, or I didn't know the material and did less well, then put it behind me because I had new things to focus on. I always found papers to be much more of a learning experience, because if I needed a deeper understanding of a particular point there was time for me to go deeper into the material rather than just trying to paper over my area of weakness. As for reviewing exams afterwards, that is most often an exercise in honing exam-taking skills, which I didn't feel was an area of weakness (my poorer grades generally resulted from poorer command of the substantive material). Simply put, if the substantive material was something I was sufficiently interested in to make it worth my while to review the exam afterward, I would have learned it before the exam.

Posted by: Griff | May 16, 2013 4:44:20 PM

I don't know. It seems like most students who come to review final exams, are there because they are under the mistaken impression that the score isn't set in stone. Students, with some but not full justification, that exams are idiosyncratic to a specific professor.

Midterms or other pre-final exams / assignments are a different matter, because students still feel like they have skin the game.

Posted by: brad | May 16, 2013 4:08:43 PM

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