The - Well, ONE - Trouble with Law Finals

It turns out that there are some problems with the law school pedagogical model. I know; try to suppress your shock. There are any number of things I think are genuinely problematic about the standard way law is taught in our law schools: lack of formative assessment, under-inclusion of professional skill building, complete disregard for best learning practices, etc. I suspect that I will write posts on many of these things in the future. But because I've spent I don't know how many days in a row outlining for finals and there's smoke billowing from my ears, I want to hone in specifically on what's wrong with final exams.

Actually, it occurs to me that I need to be even more specific. It's bad pedagogical practice to have only one assessment determine a student's grade, and it's simply frickin' bananas to have it be based on one exam over three hours. Let's call it what it is: crazy.

But those aren't the things I find most crazy about it (at least not at a late hour on a Sunday during finals season). What drives me up the wall the most as a teacher is that students are tested on something they aren't given any formal opportunities to practice once during the year.

What we do as law students is read. We read cases, we take notes, we are very occasionally called upon to discuss those cases in class. We are sometimes exposed to a counterfactual - "Mr. Jakle, would the case have come out differently if X were true instead of Y?" - but we are never asked to examine a fictional fact pattern, analyze the legal questions and write a few thousand words on those angles. Until the final.

I'm not really sure how to convey how truly absurd this is.

"OK, kid: read a ton of cases, be sure to highlight them. Come to class and try not to spend too much time adjusting your fantasy football line-up. Two or three times during these three months, I will spend two minutes asking you about one case and wondering how minor tweaks might make a difference. Study with friends! Or, you know, don't. Mainly just read cases, think about them, and listen to me talk about them. At the end of the semester I will determine your entire grade based on your ability to do none of these things."

We are told all the time that we are being trained to "think like a lawyer." (Seriously, if you aren't a law student ask one how often they're told that). For my colleagues who actually intend to be lawyers, I think it would be more helpful to be trained to just be a lawyer, but I digress. Let me ask you this: if you were teaching someone to be a quarterback, how would you do it?

I'd like to suggest that you would NOT do the following:

Step 1: Show them tape of Joe Montana's greatest moments.
Step 2: Ask questions about how Montana makes decisions in the pocket.
Step 3: Compare how Montana looks at a play and how other quarterbacks operate.
Step 4: Look at a series of pass plays from a playbook.
Step 5: Discuss what a quarterback might do in various situations.

And hey presto! You've got a quarterback course! Oh, here's the kicker: your whole grade will be an exam where you have to go on to a field and throw footballs. Which you've never done before. Ever. Good luck!

Is it just me, or that just an insane way to teach somebody to do something?

One more simile, because I'm feeling punchy. Would you ever, ever, send someone into combat because they had played Halo 3 for 13 weeks? I certainly hope not. And there's a least an argument that playing Halo is a better facsimile of combat that reading case law is of taking a law exam. Except perhaps for the aliens.

It's almost more like showing someone videos of combat, and then showing them how an M-4 is built, and then expecting that that training would make them a competent marksman.

I think one of the reasons I'm struggling to articulate exactly what I think is so misguided about the practice is that - when you break it down - it's so inescapably simple. I dare you to disagree with the following proposition: It's a good idea to practice something you'll be tested on. If you were going to teach someone to swim, and then grade them on their ability to swim, you would - at some point - want them to enter a pool, right? You wouldn't show your students videos of Michael Phelps and Natalie Coughlin, ask them (your students) what was great about their techniques, and then toss them (still your students) into the deep end.

Which is essentially what law professors do. "There are three things you need to fix a car engine: a ratchet, pliers, a screwdriver. Great! Now fix this engine." (If it's not already painfully clear, I have absolutely no idea how to fix an engine.)

I'll stop with the comparisons, and I'll resist the temptation to make this a diatribe on everything I think could be improved about the legal educational model. Instead, I'll just end with this. If you're a law student, consider whether your professors this semester have given you any structured opportunity to practice the specific skill on which you're being tested. I suspect not (if so, good for your professor; they are an exception). If you're not a law student.... well, I guess just relish that fact. And go do this

because you're law student friends aren't.