Monday, March 7, 2005
In this brief work, Professor Lubet (who "almost never gives exams") opines about the relevance of law school examinations. His opinion? He doesn't hold them in high esteem.
Here's why, in a nutshell: "...the key lawyering skills," Professor Lubet writes, "- the ones that separate highly successful practitioners from mediocrities - are barely taught in most law schools, outside the clinic, let alone tested: tenacity, diligence, thoroughness, collaboration, consultation, fact investigation, and, crucially, the willingness to admit error and start over from scratch. Those qualities will actually put you at a disadvantage on law school exams. Far better to rely on flashes of insight and an ability to write on the fly."
I can't disagree with the Professor: diligence is not "taught" in law school. Neither is thoroughness. Nor are most of the skills required for high-end lawyering. But, by and large, aren't the students who excel in law school (and, therefore, who excel on exams) the students who bring those qualities with them to school - or who teach themselves those qualities and the associated skills? Aren't these the students who recognize (whether through self-realization, reading "how-to-do-law school books," or visiting their Academic Support professionals and tutors) the relationship between development of these metalegal characteristics and "success" in law school? Aren't those the very skills which are more or less essential to the quality of preparation that will lead (many) to higher exam scores?
I think so.
The classroom teachers (law professors) assuredly do not teach students to admit error and begin anew - nor should they. They should teach Torts and Contracts and Criminal Law. They should teach analytical thinking. They should teach how to apply law to facts. And they do - that and more.
However, the assessments they make - by grading final exams - include recognition of the development or refining of the qualities Professor Lubet mentions. That development is reflected in a student's ability to reflect and react quickly to (fairly constructed) hypothetical questions by providing cogent written resolutions, frequently (but not always) under time pressure.
Of course there is more to good grades than an assortment of skills. I agree completely that there is more to good lawyering than a diploma with an "honors" designation on it. And who (except for a gathering of bar examiners) really believes that bar exams are superb instruments to measure potential success, or even actual competency, to practice law?
"Exams do a great job," Professor Lubet writes, "of dividing test takers into measurable categories, even if those categories measure nothing more than an ability to take tests in an artificial, nonlawyerly setting."
But they do measure more than an ability to take tests, don't they? Aren't exams measures of student ability to extricate relevant facts from a narrative, to identify legal issues quickly, to recall basic rules with precision, to persuasively interweave law and fact, and to recognize the driving force of policy behind many laws? Aren't they, in fact, a measure of what is going on in a student's mind - that is, "thinking like a lawyer." I suggest that law school essay exams may be a fairly reasonable way of determining whether our students are, indeed, thinking like lawyers (at least as we believe lawyers ought to think).
"...Those damn exams," Professor Lubet continues, "send all the wrong messages, emphasizing a sort of counterproductive intellectual stoicism in which you have to come up with the right answer, on your own, or else." Then, he continues, this emphasis may lead to "ruinous consequences," including malpractice.
No doubt we have a long way to go before our tinkering with the educational process associated with our profession is what it ought to be. I wonder about Professor Lubet's opinion. Your thoughts? (djt)