The right reason to bitch about law school exams
Anytime you talk about grades in law school, you inevitably set off a law school bitch fest.
I'm (usually) willing to participate in the bitch fest. As usual, though, I think the arguments over whether law school grading is random or biased miss the point. Law school grading deserves criticism, if it does at all, because it depends upon skills that aren't emphasized in law school teaching.
As Christine Hurt at The Conglomerate (boldly) emphasizes, most law school exams reward the application of legal knowledge to new sets of facts. In my experience, however, most law school reading assignments and classroom discussions don't teach this skill. Very often, the first and only time that students are asked to apply their knowledge to new facts in a typical law school class is on the final exam.
The standard law school reading assignment provides great practice at puzzling out rules of law from appellate opinions, many of which omit virtually any mention of facts at all in favor of long-winded discussions of the merits of competing legal rules. The typical class discussion does the same thing: the professor asks students to consider the court's arguments for this rule over that rule, and encourages students to think carefully about the policy rationales for each argument.
I'll be the first one to say that these are valuable intellectual skills, and if I'm glad I came to law school, it's because law school has made me better at doing these things than I was before. Much better. But that's not the point.
The point is that these wonderful skills are not the skills that law school exams are primarily designed to test. Esoteric arguments about competing legal rules are not the same things as applications of these rules to facts. Sure, there is some overlap -- if you know the rules cold and have paid close attention to the arguments for and against each, you'll be more likely to recognize which facts are important, and more likely apply the rules correctly. It's also true that many professors will give points on exams for good policy arguments in favor of this rule or that one. I suppose this is why I'm not really, really, really pissed off at law school exams. They aren't random. They do reward interest and effort in the class, but they only do so only incidentally.
That's why I'm just highly critical of law school exams. If any halfway-intelligent educator were asked to design a curriculum that effectively taught students to do what law school exams ask them to do -- apply legal rules and arguments to facts -- he or she would never design a curriculum that looked anything like the one that law schools use now. It would probably include a lot of straight lecturing on legal rules, doctrine, and arguments in class, along with a lot of problem sets asking students to apply this knowledge to hypothetical fact situations (just like law school exams). We wouldn't read anywhere near as many appellate opinions as we do now. Conversely, if an expert educator were asked to prepare an exam to test what we currently practice in class and on reading assignments, they'd never write the kind of exams law professors give now.
Our current curricula and exams are historical accidents. While they may each have great merit in themselves, they don't fit together very well at all. And that's why I enjoy bitching about law school exams.
UPDATE: The Listless Lawyer agrees with me that law school pedagogy isn't exactly perfect (in fact, it's "dumb"), but then goes on to claim that law school only serves two purposes: indoctrination into the professional culture, and testing students' "solipsistic and analytical instincts."
There's no doubt that professional indoctrination is one of the purposes of law school, but I can't agree with LL that law schools don't also care about teaching you the law. Maybe not black-letter law, certainly, but it's a stretch to claim that law schools don't care about training lawyers. A lawyer, of course, must be willing to work hard, but they also have to learn how to make legal arguments, apply law to facts, etc. Law schools are obviously concerned with teaching these things.
As for testing "analytical instincts," sure. But "solipsistic" instincts? Here I think LL is in the weeds. It's the opposite of "solipsistic" to learn to make arguments that you may not subscribe to, but that your clients or your professors "want to hear." I don't buy LL's claim that you'll do better if you make Tribe-arguments on a Tribe-exam as opposed to Scalia arguments. In my experience, if you make only one or the other you'll do pretty badly either way. To the extent that law school exams ask students to make policy arguments, they ask students to make opposing policy arguments.
If legal education is "stupid" (and I don't think it is), it's not stupid for the reasons LL gives.