Greetings, Salutations, and Current Events Questions on Exams

Greetings, everyone, and thanks to Dan, Dave, and the rest of the Concur-ers for the invite to spend some time guesting over here (and for the warm introduction). I guess, if nothing else, my guest stint will provide some anecdotal data about just how many blog-readers read both Concurring Opinions and PrawfsBlawg, my permanent home…

Anyway, I thought I’d start with a practical question: Whether, and to what extent, folks think that is a good idea to put current-events-based questions on a final exam? Borrowing (shamelessly) from my soon-to-be-former colleague Michael Froomkin, my con law final exam included a Morrison v. Olson-based question about the Office of the Special Counsel (for details on the issue, see Michael’s posts here and especially here).

Leaving aside the merits of this particular question, it strikes me that we as profs have a temptation to write current events-based questions, both because reading the news triggers our own intellectual curiosity, and because it’s a way to keep the substance “fresh” from year-to-year. But are there reasons not to? I consider a couple below the fold:

Reason Not To #1: Sometimes, it’s too obvious. Students read the same newspapers we do (I hope, anyway), and, if they’re paying attention, find the same things interesting. And so, to whatever extent students would be left to guess as to a fictitious fact pattern, here, they can think through the answer beforehand. Moreover, even if only one or two students might prepare for it out of a class of 110, that’s almost more unfair, for it skews the exam toward those more on top of current events.

Reason Not To #2: Sometimes, it’s harder to grade. The example I used this semester might help; as Michael notes, it’s a very close call, at least under extant doctrine, whether there might be a Morrison problem with the Special Counsel statute. If the fact pattern is more deliberately engineered, it might allow students to come to a more definitive answer…

I’m sure there are others, too. There are also fairly obvious reasons, I think, why using current events can be a good idea… First, it helps tie ideas that are somewhat abstract to real-life current events. Second, it helps generate ideas in the first place. Third, in some cases, it may even help us better understand the issues to read a whole bunch of student papers with different answers.

But ultimately, I think I’m on the fence. What do others think?

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13 Responses

  1. Dave says:

    Why is an exam skewed to those who stay on top of current legal events unfair? Is it not a responsibility of lawyers to stay on top of changes in the law? Is a student’s interest in and research on topics related to their class material not a fairly good indicator of the student’s overall understanding of the subject?

    Most legal news can also be graded on a curve… writing “Carhart was an abortion rights case” is very different from “Carhart might, at first glance, seem to overturn Stenberg, but part of the reasoning in the holding in Stenberg was the vagueness of the state statute, which the court did not find in the federal statute.”

    Full disclosure: I am a law student who stays on top of the legal news. But I think that there are very good reasons to encourage students to be active participants in their education by staying up on changes in the law, and, within limits, rewarding those that do by awarding points on an exam. If you want to, tell them at the beginning of the semester that it is a requirement to stay on top of the law in the area, as it may be tested.

  2. Marty Lederman says:

    OK, I’ll bite: What makes it “a very close call, at least under extant doctrine, whether there might be a Morrison problem with the Special Counsel statute”?

  3. Steve Vladeck says:

    First to Dave: I think that would only be fair if I incorporated that into the amount of reading I assigned for class. While it’s wonderful to have students like you who stay on top of things, there are those who simply don’t have the time, due to familiar or professional commitments, to do all of their reading for all of their classes _and_ read the papers and watch the news every day. I’m not commending that reality, just observing it.

    As for Marty — Michael has thought through this a lot more than I have, but the basic gist, as I understand it, is that if one thinks Morrison was close, the removal provisions in this case are even narrower than those in Morrison, and the OSC is permanent, as opposed to the Independent Counsel. Given footnote 31 from Morrison and the surrounding discussion, Michael thinks that makes this a pretty close case, and I’m inclined to agree… Am I missing something?

  4. Steve Vladeck says:

    Oops — And by “familiar,” I meant “familial.”

  5. Dave says:

    I don’t see how a student having the time to follow the news would be unfair, whereas having the time to do extra hypos, read supplemental materials, or otherwise just have more time to study IS fair. It’s also not fair that some students are smarter than others, some read faster than others, some have legal experience, some can afford tutoring, some have family that are lawyers, some have access to better outlines, some can type, and some had a healthy breakfast before the exam rather than stale poptarts. There is a whole lot of difference in abilities between law students… why is this particular one different, particularly as it measures a valuable lawyerly skill: the ability to stay up on and interpret changes in the law?

    Obviously a professor can’t test everything and has to make choices, but I just don’t understand the rationale that because this presents a time burden on law students that therefore it should be categorically excluded without balancing that against the interests it represents; law school is otherwise nothing but a burden on our time, and while I can’t say anything about you or your school, I have yet to detect anyone at mine who seriously gives a c— about the burden on student’s time. Why, then, on this particular point?

    Again, I think limited testing of changes in the law rewards active engagement with the law as a living and changing set of rules that is part of a larger body of policy and politics. Ignoring the changing law leads to what I see as a major autistic problem with legal education: turning law into a discrete set of rules that is mastered without any broader context than passing an exam. Here I sit, preparing for my Contracts exam, and boiling the complex issues we discussed down to almost mathematical formulas, with zero context of how this applies in the real world.

    One example of this failure to detour from the casebook that I have witnessed thus far has been my classmates inability to deal with our “open universe” moot court problems and LRW brief. After being subconciously trained by our substantive courses that the law is a discrete set of cases and restatements with the occsional staute thrown in (though often a hypothetical one), students have no idea how to deal with an evolving and unstructered world of law. From a pedagogical perspective alone, it would be a huge advance for law schools to find some way to put their classes in context. If a law student does not have the time to read about the law outside of their assigned casebook reading, how will they practice? Presumably their family and professional obligations won’t go away. Do we really want lawyers who know only the law as it existed on the date of their bar exam, and are unable to update their knowlege by any means other than a CLE class?

    As for the actual time commitment: I advocate limited testing because it should be restricted to changes in the law that it would be hard not to notice. I don’t think students should be scouring “The Paper” or “The Evening News” for law developments. Recommend at the beginning of the semester that students check in regularly with a particular online source or blog related to the suject matter of the class, and pose a test or a hypothetical for, say, no more that 5% or 10% of the total points on a case which can’t be missed. Or, bring up a major decision or new legislation in class, and ask students to research it. During Torts last semester, it happened to be that on the morning when we got to punitive damages, SCOTUS heard Phillip Morris v. Williams. We discussed it briefly in class, and it was not on the test. But the professor could easily have asked that we read the argument and briefs, and it would have made a brilliant policy question on the exam: what changes to the BMW v. Gore rules are the parties proposing? What seem to be the concerns and issues that the judges are raising? Which side are you on, and why?

    You asked the question of why a professor should or should not test current events in the law, and to dismiss it simply because it might present a burden to students seems, to me, to be a cop-out. Of course, we will all moan about it, including me, but that’s just because law school is almost nothing but burdens. Not testing or preparing students on a valuable skill seems to me the greater disservice and burden.

  6. Marty Lederman says:

    Steve: Which functions of the OSC are you concerned about? And why does note 31 of Morrison — which reminds the reader that there are numerous “independent” agencies throughout the executive branch that have some civil enforcement authority (much more substantial authority than the OSC, ASAIK) — trouble you? Is there something about the OSC that makes it *more* constitutionally problematic than the (unproblematic) CPSC or FTC?

  7. I think what makes it close is if you are trying to guess that the Court might want to use this as a vehicle to revisit Morrison.

    As Patrick Gudridge pointed out in a comment to my original post (which had assumed the issue away in the interest of simplicity) a straight application of Morrison, it’s not that close, really, as a formal matter, given the limited functions of the office.

    But when those include investigating Karl Rove, it implicates all the issues in Scalia’s dissent, which many say was proved right by Ken Starr and other special prosecutors before him.

  8. I don’t think it’s unfair to ask a question for which current events might provide helpful context or arguments. The exam can be closed-book if you want, but the rest of your students’ lives can’t be, and every question has some context about which a few students may have extra knowledge or insight.

    Also, having outside knowledge can be a mixed blessing. It requires the student to pay particularly close attention to the facts, in case the exam facts have been altered from reality, and some students with outside knowledge get sidetracked discussing non-course-related issues.

  9. Howard Wasserman says:

    I think using current events is a good idea for a couple of reasons, related to the ones you mention in the post. First, one of the things a legal education does (and should do) is get students to view current events through a legal prism; this type of exam encourages that. Second, placing the material in current context can help bring it alive, help students relate to it and engage with it. This is a different version of the effect we get (or try to get) by using pop culture or familiar and favored factual settings (sports, Hollywood, celebrities, etc.) in the exam facts. Third, at least at my school, one of the evaluation points is whether professors bring current events and developments into the class. So there is a pragmatic/personal reason to do it.

  10. Scott Dodson says:

    In Federal Jurisdiction last year, I used a modified Bush v. Gore to ask about jurisdictional issues. The students really liked it because it was a famous decision (though they were like 15 at the time). However, I modified the facts a little to make sure they focused on my facts rather than what they (thought they) knew about the case already. I also made the exam closed-research so that they were not allowed to access the extensive commentary available on those issues. It worked very well, was enjoyable for both me and the students, and really enabled them to show off what they had learned.

  11. news junkie says:

    Concerning your “Reason Not To #1,” I don’t think you should be worried about being unfair (i.e. students who pay closer attention to current events will have an advantage). I would argue the contrary: students who read the news and pay lots of attention to current events will be disadvantaged because they will not be spending enough time studying the law.

    If I could do law school all over again, I would avoid news and current events like the plague. When I was a law student I sometimes was annoyed at my colleagues who didn’t seem to pay much attention to current events, political developments, etc. But in retrospect I think they were the smart ones. They knew how to prioritize, and studying the law was more important to them than staying on top of the news. Of course there should be a balance somewhere, and legal developments such as Supreme Court opinions or judicial nominations deserve some attention. But those students who are self-disciplined enough not to be preoccupied with current events are probably doing a better job of preparing themselves for the hard work of lawyering.

    I’m not advocating that students not pay attention to the news, but certainly those students who pay too much attention will be disadvantaged. I was one of them, but that is not an example of “unfairness.” It’s just a matter of learning what deserves the most attention, and staying focused on long-term goals rather than short-term stimulation.

    If any current law students are reading this, I recommend that you minimize the time you spend reading/watching the news, paying attention to current events, surfing the web, etc. There will be time for that later. This doesn’t mean you need to be in a complete bubble while in law school, but your energies should be applied where they can provide the most benefit. And that means you have three years to focus on learning the law. Those years go by quickly, and its better to finish law school without any regrets that you lost opportunities because you were paying too much attention to non-essentials.

  12. Dave says:

    Curiously, the Contracts exam I took this morning was based on a fact pattern that involved a person starting a company that produced software that tracks phone calls and internet searches to create terrorist profiles that she intends to sell to the CIA, NSA, and FBI. Even more interesting is that the professor that wrote the exam is amicus to the court on technical issues in EFF v. AT&T. Even more curious is that I was offered but had to turn down an internship offer in the chambers of the judge hearing EFF v. ATT, and am regretting not having an opportunity to watch that case unfold this summer.

    Yet, the legal issues involved were all related to the employment contracts of the programmers, conditions of satisfaction for the purchasers, and a variety of other standard first-year K issues. Having ever heard of the NSA’s domestic data mining program was, I believe, of little use to anyone at all… it was just what was on our professor’s mind at the moment. Last year it was bird flu.

  13. Dave says:

    Oops… I apologize. The case is not *EFF v. ATT*, it is *In re NSA Telecomms*.

    My mistake.