April 05, 2005

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.

Posted by Carey at April 5, 2005 02:35 PM

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."

How do you figure? I take "solipsism" to indicate the belief that nothing exists outside oneself, and that "objective truth" therefore doesn't exist. A merely analytical person may come to the conclusion that Tribe is right and Scalia is wrong, and might therefore have difficulty advancing Scalia-type arguments. They might get over it, sure, but it seems to me that a certain degree of skepticism regarding the existence of "truth" in the law makes it easier to jump back and forth, without judgment, between mutually exclusive arguments.

In my experience, the people who performed the best during law school were the least critical thinkers in the school; they were people who never bothered to ask whether they arguments they were making were "true". They were, in other words, associative rather than analytical learners. That is what I meant by "solipsistic instincts".

And, of course, when I said that you're better off mirroring Tribe back to him than you are channeling Scalia, I wasn't saying that such a person would ignore Scalia's arguments. Even Tribe doesn't do that. The point was that, all other things (talent, effort, etc.) being equal, the person who finds it *natural* to think as Tribe thinks will do better on one of Tribe's exams than the person who has to learn to think that way with effort. Do you really disagree?

This is, of course, not a criticism or an allegation of bias. I judge your intellect by my intellect, your arguments by my arguments. I have no other possible measuring stick, and neither does Tribe (or Scalia, or anyone else).

Finally, I agree with you that law schools care about "training lawyers". But my question to you is, what do you mean by that? How does one go about training a lawyer? The answer, of course, is that student's learn to make legal arguments by sitting in class and hopefully picking up and mimicking the intellectual style of their professors. That's why nobody ever gives a class on "legal argumentation". It's not something that's explicitly taught; you're supposed to pick it up implicitly while studying Torts.

That is not "education", in the sense of conveying knowledge; it is indoctrination into a culture. Or so it seems to me.

Posted by: Listless Lawyer at April 6, 2005 08:07 PM

Fair enough. I think the things we disagree about are matters more of esthetic judgment than of things we can demonstrate by arguing back and forth.

Perhaps I'm fortunate to have had a more pleasant experience in law school than you've had. Who can tell?

Remember, I actually like the Canadian rock group Rush. For what that's worth...

Posted by: Carey at April 7, 2005 09:25 PM

As a current law student myself I know where you are coming from here. I think you may need to look differently at your class assignments. When you are asked to read appellate decisions you are asked to read how the law was applied to a particular fact pattern. On the exam you are given a fact pattern and asked to apply the law to it. You have seen it done in the appellate decisions and know you must do it. You use the appellate decisions to ascertain the relevant portions of the law and how the different legal aspects were dealt with in that particular fact pattern. I think the difficulty is in the fact that you don't get to try it out before the exam. That is what old exam questions and model answers are for. This is the reason law school is tough. We have to teach ourselves. We are then graded. Yes this is harsh, but in the real world we will have to apply the law to an entirely new fact pattern and it will be much like a law school exam except that the people judging your work will be much more demanding than your law school professor.

Posted by: Anonymous at April 11, 2005 01:37 AM

Perhaps another dose or two of mooting and/or an advocacy subject is in order? I've not yet had the pleasure of sitting through too many law school exams, but my run-in with mooting certainly gave me some practice at applying legal knowledge to a new factual scenario.

Not that I actually liked mooting; I kind of hated it, but I had the inkling of a feeling that it was good for me. Perhaps this is the reason why?

Hmmm, it seems that your movable type spam filter doesn't like my gmail address. (Your comment could not be submitted due to questionable content: mail dot com ) Ah well...

Posted by: mechanical turk at April 13, 2005 06:37 PM