Open book or closed book?

My students are taking my crim pro exam as I type, so exams are very much on my mind this morning. One issue I have continually wrestled with over the years is whether to make my exams closed book or open book. I have always made them open book, with one caveat — students cannot bring in commercial study aids or outlines. My theory is that life and law practice are “open book” — how many practicing lawyers have committed the Federal Rules of Criminal Procedure to memory, for example? But is that really accurate? In the middle of a suppression motion, you obviously cannot ask the judge to hold on so you can consult your crim pro casebook (althought you might be able to ask for some time to formulate a thorough response). I also wonder, to be candid, if making exams closed book would spread the grades more. I would love to hear what other folks’ thoughts are on the issue.

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9 Responses

  1. shg says:

    Since you asked, practicing lawyers must maintain a good working knowledge of the rules as we don’t respond to the judge, “give me a minute to look it up.”

    Chapter and verse aren’t necessary, but a sufficient working knowledge of the rules to explain or justify one’s position is absolutely required.

  2. Jennifer says:

    I know that — it was a rhetorical question. I was a prosecutor for many years. I will slightly reword the post to make that more obvious!

  3. anon says:

    Well, yes, it would spread the grades more. It would spread them based on who memorized a bunch of stuff. Is that really what you want your curve to be based on?

    I think that the best case for closed book would be the evidence course. That’s where you really do have to know your stuff.

  4. dmv says:

    Random personal opinion: I agree with anon that evidence is the best case for a closed book exam.

    Rather than the specific open-book v. closed-book question, I think the underlying issue is: what do you want students to take away from the class? What is the purpose of the exam?

    “In the middle of a suppression motion, you obviously cannot ask the judge to hold on so you can consult your crim pro casebook. . . .”

    That isn’t a good analogy to what’s happening on an exam. Since law professors are addicted to (or enslaved by) the 1-giant-exam-at-the-end model, students have to prepare to address the whole content of a class. If you’re going to argue a motion to suppress evidence obtained from the passenger compartment of a car after a stop, you’re probably not going to spend your time preparing by working through the contours of interrogation and self-incrimination.

    More broadly, though, if you’re worried about your students’ ability to practically function as a working lawyer out in the real world, I think you’re going to have to spend a lot more time thinking about how you teach the class in the first place. And this is the great tension, isn’t it? Law school as academics versus law school as a professional school.

    So I go back to the beginning: what is the point of the class? What is the point of the exam?

  5. Marc DeGirolami says:

    Thanks for this question. I just taught my first criminal law class and after vascillating between giving an open or closed book exam, I decided on the latter. I was trying to put my finger on exactly why, and I think it’s because I actually may disagree that “life” is open book. On a purely practical level, the biggest law school exam, the bar, is closed book, so a bit of training about how to store away and convey great gobs of information is useful. But much more than that, I think there is value in having students know a subject well enough that they are able to internalize its minutiae. It may be that they will forget most of it, but that’s fine. At least at some point in their lives they will have steeped themselves in the doctrine of criminal law for long enough that it became part of them. And that is worthwhile simply from the point of view of really learning the material and also becoming acculturated to a field within the law. Just as poems memorized and repeated again and again have a kind of lasting power (one may remember them at later times, and think then upon them in different ways than one once did), so can a subject truly known through and through — well enough that it just is part of oneself — affect one’s later life.

    Maybe this is too grandiose a view…but I’m a brand-new baby professor. There will be time enough for cynical practicality.

  6. Jack S. says:

    My thought on most open book law school exams is that if you need to open the book then you are in real trouble.

    In code/rule intesive subjects you might as well. Specialists will memorize through just using it. No point in forcing someone to memorize a subject they are not going to specialize in or may not use for many years to come.

    Other subjects with sufficient material to keep the students challenged, I’m not sure it will make a real difference. You might get better quality answers, but the spread should be the same.

    A very experienced professor told me the key was in writing the exam questions. The difficulty being the balance between the case were even the best student will write a D level answer and the one where every student can write the A answer.

  7. Christa says:

    I agree with Jack that if you have good quality exam questions, it won’t matter whether the book is open or closed. I find that even in closed-book exams, if most difficult part of the exam is issue-spotting, students with a thorough understanding of the material will do better. However, many of my new professors write their questions in such a way where if you outlined that part of the course you will get the answer correct and all the answers will be the same. A good exam is one where no one catches every issue.

  8. A.J. Sutter says:

    I agree with some of the previous comments about the importance of designing questions, and the relevance of code/rule-intensity. I note that the patent bar exam is open-book in the Manual of Patent Examination Procedure — though woe betide you if you don’t already know your way around the MPEP very well before you sit for the exam.

    But an additional point is a litigation bias inherent in your suppression motion analogy. Not all of your students will become litigators. In my transactional practice, giving a quick, “closed-book” answer could be malpractice. During late nights at the financial printers, some lawyers (especially ones +/- 3 years from making partner) would always try to intimidate the other side by quoting Reg S-X or other ’34 Act rules from memory, but we always looked it up anyway. And while it sometimes helps to be quick-thinking in a negotiation, more often than not that’s about business or psychological issues, not necessarily legal ones.

    If you can design a fair closed-book exam, I don’t see a problem with it; 25+ years later, I still recall a couple of particularly interesting questions from my exams. But if your justification for closed-book is the rigors of motion practice, etc., I think you’d do better to test those skills in an elective workshop for students who have a specific interest to develop them.

  9. ohwilleke says:

    Real life is more like an open book exam, and that applies even to trial practice. I frequently prepare trial briefs on multiple specific issues in preparation for a hearing or settlement conference, so that I can cite chapter and verse if they come up, even if there isn’t an opportunity to file them. Relying on memory for rules of law is usually reckless and ill advised – even if you think you know what it says. Preparation, generally, is a key factor in any trial.