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Wednesday, November 15, 2023

Dr. Glaucomflecken on Memorization

Why are so many law school exams (and the bar exam) still closed book?


Posted by Steve Lubet on November 15, 2023 at 04:16 AM | Permalink


Belaboring is what we're here for, ALP.

And sure, as I said, there is a "role for memorization in professional education."

My concern is that it is over-emphasized, especially when it comes to grading.

As I also said, "For most lawyers, 'thinking on your feet' is the smallest part of practice, if it is any part at all, so it is strange indeed that we stress it so much in legal education."

Finally, most law school courses don't actually teach thinking on your feet. They just demand it and assume that students will improve with practice. If it were really a skill that deserves emphasis, it should be taught directly -- assuming that there is an available pedagogy -- rather than by exposure.

Posted by: Steve L. | Nov 16, 2023 10:36:15 AM

"I told my students that if you consistently find yourself thinking on your feet, it just means that you haven't prepared enough..."

Not to belabor the topic, but doesn't this cut in favor of the importance of memory skills? Lawyers should come into the courtroom with prepared, well-thought-out answers to predictable questions.

Posted by: AspiringLawProfessor | Nov 16, 2023 10:24:41 AM

I doubt that anyone would suggest there is no role for memorization in professional education -- law, medicine, or engineering (I suppose) -- but that doesn't mean we have given it the proper emphasis. In my view, memorization is stressed far too much in law school, and of course on the bar exam. I cannot speak to med school, but the redoubtable Glaucomflecken evidently thinks the same thing.

No good lawyer, and I hope no good doctor, would rely solely on memory if there's an alternative. It seems unlikely that Jeff's law school memories are stronger for the classes that had closed book exams.

Yes, law practice sometimes requires immediate decisions, but that is almost always in a context where there has already been extensive preparation. I always taught my trial advocacy students to anticipate evidentiary objections, not to make or respond to them on the fly.

For most lawyers, "thinking on your feet" is the smallest part of practice, if it is any part at all, so it is strange indeed that we stress it so much in legal education. In Trial Advocacy, I told my students that if you consistently find yourself thinking on your feet, it just means that you haven't prepared enough (unless you are a misdemeanor prosecutor or public defender, in which case you have no choice).

Posted by: Steve L. | Nov 15, 2023 4:06:33 PM

I too (a curmudgeon) thought it was funny but both it and the comments are off the point (sorry, fellow curmudgeons). As law professor teaching contracts, business organizations, and securities regulation, I've never given a closed book test. Having said that, because the tests are timed and dense, you'd flunk even the open book exam if you came into it without some form of mental library or working functional knowledge of the concepts and the constitutive rules.

In Contracts, a student who doesn't know there's a definition of promise in R2K 2 by memory, or relies on some version of Google, to Scott's point, is going to spend valuable minutes shuffling while others are objecting, arguing, responding, etc. immediately. Same as to the definition of a partnership or Delaware General Corporation Law §§141(a) or 102(b)(7). Or the Howey rule or Rule 163 on gun-jumping under the '33 Act. I'd rather allow students the opportunity to open a book and write those rules out verbatim if they need to. (Despite my repeated in-class joke that I should be able to call a student out of a deep sleep at 2:00 am, ask "what is the rule for [promise] [partnership] [a security]?" and get an answer, just because it's so fundamental. So fill in: "a manifestation of an intention to be bound made so as to justify in another the understanding that a commitment has been made" or "two or more persons conducting a business for profit as co-owners" or "an investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.")

I suppose the equivalent in a med school exam would be spotting the symptoms that indicate one of those conditions, but allowing access to materials once the student has spotted the issue.

But.... (1) does requiring that intense memorization put the knowledge into long-term memory? I know that, after 44 year of practice and teaching, there are things that will trigger odd memories in subjects I haven't looked at since law school (e.g., criminal procedure). (2) The med boards in the bit are standardized, as is the bar exam. Not sure there is any alternative but to leave the details to memory.

Posted by: Jeff Lipshaw | Nov 15, 2023 3:41:03 PM

If there's no value in memorizing concepts, we might as well let anybody be a doctor since anybody can Google things. Sounds stupid, right? That's because there is a value in building up a mental library in your head that you can easily access, in that it allows you to think creatively and on your feet. Your ability to think complex thoughts on a subject increases greatly once you no longer need to Google the same basic concepts about said subject 100 times over. This is a skill that is unfortunately undervalued and dying in today's world.

Also, per the video's own logic, could med students not simply Google information on how the healthcare system works?

I still laughed though. My apologies for being a curmudgeon.

Posted by: AspiringLawProfessor | Nov 15, 2023 2:46:49 PM

Much of law involves research, allowing the lawyer the leisure of pulling out books (I date myself, but you get it). Much of the practice of law requires the ability to immediately act, whether to object, to argue, to respond to a question, to stand up or sit down. Having a working functional knowledge of law at one's fingertips is useful at worst, critical at best. That's why.

Posted by: shg | Nov 15, 2023 8:59:44 AM

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