With law school spring exams around the corner, I wanted to blog on a common law school mistake on “issue spotter” exams: Writing too soon, and then writing too much on the facts at the top of the fact pattern. This probably won’t make much sense to non-lawyers, and it will only trigger bad memories for most lawyers, but I hope it will be useful to the current law students in the VC readership.
Here’s the problem. Say you have 1 hour to write an answer on a long fact pattern. You read it over quickly, and you spot a few issues. The instinct is to say that there’s no time to waste: You gotta start writing now to get it all in. And because you’re writing early, you feel you have more time to write (almost a full hour!), so you start to write in pretty serious detail, even pausing to flag minor issues just to let your professor know you can think of everything. Sounds good, right? But then after a while you look at the clock, and you realize you’re behind, and you need to really pick up the pace: By the end you’re rushing through the issues. But you’re thinking you probably did a good job: The professor will start at the beginning of the essay, and the professor will see how carefully and thoroughly you analyzed all those issues at the beginning. That’s the thinking, anyway.
But I think it’s a mistake. To see why, look at it from the perspective of a professor. Say your professor has to grade 100 exams, and your exam comes up in the middle. After grading 50 exams, the professor know exactly what he is and is not looking for. There are a few issues that are easy to spot but tricky to analyze; other issues that are hard to spot that the professor will want you to see; other issues that at first look complicated but upon close analysis turn out to be easy; and other aspects of the fact pattern that are not real issues that the professor didn’t want you to waste time on. The professor wil want you to analyze the obvious issues expertly; spot the tricky issues; explain why the issues that look hard are easy; and ignore the non-issues.
The exam that follows the instinctive approach described above isn’t likely to be well-suited for that for three different reasons. First of all, the time going into major detail on minor issues at the beginning of the fact pattern may create the impression of spending time on non-issues. Sure, you can flag a very minor issue quickly in one sentence; but if you spend a lot of time on it, it creates the impression that you think the minor issue is actually a major one and that you don’t quite understand the law. Second, going into great detail in the beginning means you don’t have time to provide the thorough analysis of the issues raised later in the fact-pattern because you’re running out of time. This is a particularly troublesome dynamic because more significant issues are likely to be raised near the end of the fact-pattern: Those tricky issues usually require a lot of facts, and there won’t be enough facts until near the end of the fact-pattern.
Finally, by starting to write at the beginning, you’re robbing yourself of the best opportunity to really get a sense of the fact pattern. Law professors write exams so that they contain some interesting tricks and turns. It’s easy to miss those tricks and turns if you just read over the facts once or twice and then start to write. I think the much better approach is to give yourself about 25% of the time period of the exam just to think and sketch out ideas for your answer. For a 1-hour exam, spend 15 minutes really thinking through the question, trying to deconstruct what your professor is thinking — that is, trying to figure out the twists and turns your professor had in mind. Map our your answer and flag the tricky issues that really need analysis. By the time you start to write, you’ll know exactly where you’re going in your answer; what you need to talk about; and what not to talk about.
Constitutional Doubt says:
Great post. It took me one (hard) semester to figure this out. On my property exam I spotted all of these crazy, but small issues, such as animus revertendi and ferae naturae. I thought I would at least get an A-. I got a B+, and was shocked. My prof pretty much gave me the same response.
April 14, 2010, 4:00 pmTim says:
15 minutes to figure out what you’re thinking? No wonder people think law school is torture. :)
April 14, 2010, 4:02 pmCalderon says:
Not necessarily to disagree with what Orin has said, but in my opinion far and away the most important thing a student can do in preparing for exams is to review old exams of that professor and any “model answers” to those exams. If your school or that professor doesn’t keep old exams and answers, then talk to the professor about how he or she wants students to answer exam questions.
From my experience, law professors vary wildly in what causes them to give a good grade. Some professors will give exams where (even if the fact pattern is long) there really are only two or three issues per question, and the professor expects you to discuss each issue in depth. Those are the test where what OK suggests was most useful, thinking about how to go back and forth between potential arguments for different results, and thinking how many arguments you can come up for conflicting positions.
On the other hand, there also are exams where professors include a massive number of issues and the idea is to spot all of those with only moderate discussion (such as because each issue has a relatively clear answer). These exams may be designed such that the average student is not expected to have time to spot and address all the issues. In those, the best course is to read through question once, take notes on each issue as you see them, and then start writing (or now, typing) as quickly as you can without spending time outlining.
April 14, 2010, 4:08 pmAnonsters says:
Bingo.
April 14, 2010, 4:16 pmMarineJA says:
I had a professor (BA I believe), who required that we read and NOT write for a certain period of time at the beginning of the exam. I can’t remember if it was 25 minutes or something like that (the exam was much longer than 1 hour as per your hypo). I found the time useful, although I have to say I was ready to start writing the whole time. Of course, I’m not sure how I would have done if I didn’t have that time, but I did find it to be productive.
April 14, 2010, 4:24 pmChrisTS says:
Perhaps it would help everyone if the professor knew exactly what s/he was looking for before reading the responses.
April 14, 2010, 4:24 pmAndy McGill says:
Part of the evaluation of an issue spotting exam question is grading whether the student finds the issue to be major or minor, which is largely indicated by how many words are devoted to it.
This is a key skill in writing briefs. It is annoying to a judge (and professor), and seriously undermines credibility, when a minor issue receives attention grossly disproportionate to its importance.
April 14, 2010, 4:28 pmOrin Kerr says:
Perhaps it would help everyone if the professor knew exactly what s/he was looking for before reading the responses.
The professor does, actually — or at least all the responsible ones. But I think it’s just easier to recognize that if you imagine that the professor has already read 50 exams before the professor gets to yours.
April 14, 2010, 4:32 pmUrso says:
“A Common Law School Exam Mistake”
Apparently LSU and McGill students are immune to this particular error.
April 14, 2010, 4:33 pmOrin Kerr says:
It is annoying to a judge (and professor), and seriously undermines credibility, when a minor issue receives attention grossly disproportionate to its importance.
Absolutely. It suggests that the lawyer (or student) doesn’t really have a command of the case.
April 14, 2010, 4:34 pmdearieme says:
That advice is much the same as I got from my History teacher when I was 14.
April 14, 2010, 4:43 pmAnonsters says:
Shhh, don’t say that. We Must maintain the illusion that lawyers think differently and that law school is soooo very unique.
April 14, 2010, 4:51 pmChris Travers says:
Clearly the law professor should spend 25% of the time allotted to grading the exams sketching out exactly what he is looking for ;-)
(Just kidding of course…)
April 14, 2010, 4:55 pmPand Raul says:
That sounds fine if you are hand writing your exam, but if you are using your computer I think that the following method might work better.
Type out an outline of the issues as you read the fact pattern. Organize the issues and the order in which you want to discuss them in the outline. Use cut and paste. Then reread the fact pattern again (slowly) and they start to fill out your outline. There is nothing wrong with typing early and organizing your thoughts on the computer.
For some reason, all of the old professors want to prevent people from using the computer to organize their thoughts. I don’t think that law school should allow people to hand write exams. It is not like people would ever turn in a handwritten brief and new attorneys do not have people who type for them.
April 14, 2010, 4:59 pmAdam Kamp says:
I pretty much do as PR does above, except that it’s quicker for me to write the outline on scratch paper and refer back to it–or, more frequently, the simple act of outlining it will keep the structure in my head. But I’m actually faster just retyping than cut-and-pasting.
Though PR’s structure does have the advantage of retaining some bare notes on the test itself in case you run out of time.
My method takes me 5-10 minutes for a one-hour question, which is nice, because I do get a lot more writing time that way.
April 14, 2010, 5:28 pmEric Rasmusen says:
I really like how law school teaches thinking. As someone noted, this is a skill that is useful beyond the law, but most disciplines don’t teach it as well as law schools do— particularly when you take into account the fact that hardly any law students have the math or science undergrad background where they had to think systematically.
If I may digress: I was thinking this morning of what might be the most important skill for lawyers: meeting deadlines. I just realized that this is what is maybe most important for most real lawyering— by which I mean the low-level, poorly paid stuff. Actually, for all of it— but it seems you need to pay $150,000/year to get someone who can do it really well.
Is this taught in law schools?
I was thinking of teaching it in my undergrad regulation course by having the students fill out and submit trivially easy forms 5 times during the term, with a half-grade subtracted for each failure— and where the time of filing appears on the on-line syllabus a week or two ahead, and are different for students depending on the first letter of their last name, but I never announce anything.Any thoughts?
April 14, 2010, 5:37 pmOrin Kerr says:
That advice is much the same as I got from my History teacher when I was 14.
That comment is much the same as my best friend said when I was in Kindergarten.
April 14, 2010, 5:46 pm:-)
AnonAnon says:
Eric-
April 14, 2010, 5:48 pmThat’s brilliant.
Jonathan H. Adler says:
Orin –
I agree completely, and tell my students much the same thing every year. My question is how to get my students to believe it. Now matter how many time I tell them this sort of thing, very few actually appraoch the exam this way.
JHA
April 14, 2010, 5:49 pmlucia says:
My history teacher gave much simpler advice. She pointed out that the essay exams consisted of 3 questions, and each carried equal weight. We were given 45 minutes, So, we should be careful to aim at answer each question in 12-14 minutes. She also advised that the most important skill was reading the question and making sure you answered the question that was actually asked.
Wow. My best friend only taught me to play jacks and tie my shoes!
April 14, 2010, 6:01 pmCLS_Student says:
@Pand Raul. I think the cutting and pasting would be really helpful, but these exams are not typed with normal software. Going back to fill in the gaps is more trouble than it’s worth; if we typed exams in Word, however, I would first outline my answer on the computer.
April 14, 2010, 6:01 pmMaryG says:
“…that is, trying to figure out the twists and turns your professor had in mind. Map our your answer and flag the tricky issues that really need analysis.”
Respectfully, your typo in there is rather telling.
Shorter summary: don’t just think. You’ve spent a semester with him or her as professor: you’re got to do the best you can to think LIKE YOUR PROFESSOR (or boss).
“Nevermind where your own thinking on these uniquely constructed fact patterns might lead you. Map our answers, and give us what we want.” The key to short-term success in life, no doubt.
April 14, 2010, 6:58 pmMaryG says:
I tried to be respectful, but I disagreed with he who wrote the post.
Ban me if you must…
April 14, 2010, 7:00 pmAngus says:
The students have no idea of the question beforehand, correct? See, I used to give those types of exams, but then I realized that not revealing anything of the question until the exam meant that students would just throw stuff at the question rather than seriously think about it. In law, how many lawyers don’t learn about the details of their case until an hour before court is in session?
My field isn’t law, but I give students a set of possible essay questions about a week before the exam and tell them: one of these will be on the test. Study and prepare for all of them. In class, they are allowed nothing in terms of notes. Only paper that I provide. If they’ve studied the questions and learned the material, they’ll do well and the answers well be deeper and better thought out. The poor students still do poorly.
April 14, 2010, 7:08 pmleo marvin says:
The best approach depends on what you want to accomplish. If your goal is to demonstrate command of course material by practicing good lawyering skills, then Orin’s advice is spot on. If it’s to maximize your grade, do what Calderon said. (There’s obviously some overlap. If, e.g., you wanted to do well in Orin’s class, it’s probably easier to just follow his advice than trying to reverse engineer it from old sample answers.) The point is not to confuse norms with reality. Lots of professors have idiosyncratic testing and grading quirks, and some are outright bizarre — not necessarily unintelligent, just not worth trying to make sense of. There’s little satisfaction in knowing your exam deserved a higher grade in a sane world, while having learned too late that this professor’s highest grade always goes to the student with the most Bingham references. Methodical analysis, writing and time management are all crucial lawyering skills, but so is gaming the system.
April 14, 2010, 7:38 pmsteve says:
If you are talking about a limited time, unlimited word-count exam, I completely disagree with you. I grant the obvious premises that one needs to pay most attention to the most important issues, and to spread one’s attention across the entire fact pattern, but these do not imply the conclusion that more planning during the exam itself is best.
Assuming you get your hands on past exams (model answers would be great too, but exams alone suffice for this point), you know roughly what issues your professor is most likely to care about, and how he or she is most likely to incorporate those issues into a fact pattern. Professors are sufficiently predictable, in part because some issues just matter more, that even with a small sample size you can significantly cut down the need to plan *in the exam room* by having a general plan based on prior exams before you even walk in.
If you have such a plan, you can navigate the fact pattern more quickly, and you can get to typing *sooner* than the average student. More time to write permits you to cover more ground and in more depth, leading to better results. Of course this is anecdotal, but in such exams I always tended to be one of the first people typing in the room, and writing many more words or pages than the average student, and seeing consistently positive results.
April 14, 2010, 8:08 pmsteve says:
Also, I should add that professors probably have very little idea what students do in the exam room. Those exams you complain about might have been the product of LOTS of exam-room planning, but insufficient prior practice, such that the student prepared lots of detail for every part of the fact pattern for the first 20 minutes but couldn’t manage time once he or she got going. Similarly, an organized answer can be the product of advance preparation and organized thinking without an outline or 20 minutes of exam-room reflection.
I tend to take seriously a professor’s advice on what he’d like to see on an exam (focus on big issues, argue in the alternative, state assumptions, etc.), but not on how best to prepare for or take it.
April 14, 2010, 8:15 pmBruce Hayden says:
I agree with this. Someone who takes OK’s approach to my 1L Contracts class would likely get a low B or a C. The prof graded on how many cites you could wedge into your test, getting one point for the parties, one for the court, and I think one for the year. Not surprisingly, this led to a lot of shoddy legal thinking, since most of the case cites were not on-point. So, the student who aimed at the major points and did good analysis lost out to the guy with the photographic memory that allowed him to just dump those cites, accurately, whenever they were even peripherally relevant.
And then, when my brother took the class (from a different prof), his paper was not graded one time. Seems that the prof said don’t use the UCC, but rather, just the Restatement. So, my brother answered using Restatement law, but then threw in, BTW, the UCC would say this. The prof quit grading any tests that even mentioned the UCC. This was the mid-term, and the prof let all those whose tests he had thrown out recover by writing a paper. I see arguments on both sides there, but suspect that I would have made the same mistake if I had been in my brother’s shoes that day.
In any case, in both our cases, we would have benefited by better understanding how our Contracts profs graded. Much more than if we just used OK’s approach. (Oren – not saying that what you are suggesting isn’t valuable, because it is, but rather that it should be just one part of the process).
April 14, 2010, 8:50 pmOrin Kerr says:
Bruce,
I should have said, “assuming a professor who is taking grading seriously.” It sounds to me like your professors weren’t actually grading the exams in any traditional sense.
April 14, 2010, 8:59 pmEvan says:
Oh, so now I know where the judges who don’t read the Constitution in the traditional sense come from.
Seriously, I wonder what sort of lawyers come out of those classes. And, I wonder how the judges feel when they read those lawyers’ briefs.
April 14, 2010, 9:08 pmChrisTS says:
I have no doubt you know what you are after when you craft exams, but you have to admit that some number of our colleagues just go with a ‘cool idea’ and then try to figure out what they wanted (or, worse, what the educational point was).
No offense intended. I’ve just spent too much time recently listening to colleagues who proudly announce that their courses/teaching have no purpose. I’m pretty sure they really have to read several papers before they know what counts as a good answer.
April 14, 2010, 9:29 pmOpenVolokh says:
I don’t now how I feel about issue spotting exams.
As a computer science person, all the subjectivity about what are the “major” issues and the “minor” ones tended to annoy me. I get it. If I were to offer an “objective” definition of a “major” issue, it would be one with a high probability of affecting the outcome of the case. But of course, as professors emphasize, law school exams are not about the outcome of the fact pattern, which actually does not matter at all.
So, the message students get is this. The outcome of the case does not matter. But there are “major” issues and “minor” issues. But, how should one classify one or the other if the outcome of the case doesn’t matter. Well, the answer is, if the outcome of the case which doesn’t matter did matter, the “major” issues are the ones that would have a high probability of impacting the outcome and get to the “heart” of the matter. I admit that as a student, my thinking on this was a little muddled, which must have affected my grade. I had a hard time thinking of any issues as “major” when the thought that the outcome of the case did not matter was in my mind. But remember, the outcome of the case DOES matter for purposes of identifying the “major” issues. What professors mean when they say the outcome doesn’t matter is that they could care less about your conclusion resolving the hypothetical, or even if you provide one at all.
So remember this. Even though the outcome doesn’t matter, it really does! And law professors wonder why students find their instructions confusing.
I think Orin’s point about getting into the professor’s head is an interesting one. I wish I had done that in law school. I would have gotten better grades. In computer science, you don’t need to get into the professor’s head. Also, it is very clear what questions your supposed to answer and how much credit you get for different parts of the exams. There is no “issue spotting.”
You can see why I wouldn’t want to be someone who majored in the humanities. I don’t particularly enjoy trying to read the professor’s mind as opposed to learning the content of the course.
I don’t know. I could be wrong about this. But in my view, it would be better if “normal” law school classes left the issue spotting to the law clinics (which should be required and more emphasized) where issue spotting actually takes place in realistic scenarios and constructed their exams in a more straightforward manner. All I know is that a lot of those hypotheticals that took place in the State of Ames were bizarre and more than a little contrived.
And there is just something bizarre about humorous issue spotters. It is like, your grade is important. And then you have this bizarre hypothetical. But grades are important! But the hypothetical is just so damn bizarre. But my answer to this bizarre hypothetical will determine my grade! Panic sets in! But it is just so damn funny. No big deal, its only the entirety of your entire grade that is going to be determined by answering this bizarre question. In law school, I learned to develop a sort of extreme loathing for the State of Ames and its bizarre inhabitants.
Let me put it this way. I do not think that secession from the Union is constitutional for any state. That was conclusively established by the Civil War. But I would make an exception for the State of Ames! In fact, I would demand that they secede! But the worse part is, if the State of Ames didn’t actually exist, law professors would have to make it up in order to construct bizarre hypotheticals about it!
I guess I would prefer if professors wrote hypotheticals that are a little more realistic. Maybe it would be harder to shove as many issues to “spot” in the same question, but so what?
I think a lot of what law school exams is learning to “get” what law school exams are about. Not about actually learning the law. Well, I admit it. I went through law school without really “getting” how to take an exam. It was my fault. I am not the sort of person to ask for help. So, that is my bad. Too much hubris. I NEVER asked for help from anyone as an undergrad, and I got through with a 3.9 GPA. Well, in law school, you may have to adapt. And don’t assume you know how to take the tests they give you, which may or may not be very different from undergrad, depending on your undergraduate major.
But still. Imagine that there is this objective number that indicates how much someone “knows” the content of the course and it is between 1-10. Say one student is a 9 and the other is a 7.
My theory. The person with knowledge at level 9 who doesn’t “get” how to take the exam is going to get a lower grade than the person at knowledge level 7. Also, since grading is relative, the person who is the 7 will look better than a 7, because of all the 9s who did not “get” how to take the exam.
The point is, knowing how to take the exam in the “right way” is very very very important. It will have a major impact on your grade.
But, isn’t testing supposed to be primarily about the material? I mean, exams will of course always be an imperfect window into the mind of the student. But ideally, the students who have a better grasp of the actual substance should do better. To the extent that they do not, it seems to me that the exam is a flawed measuring instrument. Of course, there is no such thing as a perfect measuring instrument, but some are better than others.
I think law school exams now actually DO function to rank students on knowledge of the material and logical thinking ability. They wouldn’t have lasted this long if they were totally imperfect in that regard. But, I also think that they are confusing enough to students that they add a lot of unnecessary noise.
Professor Adler notes:
Well, if students are having a hard time putting into practice your complicated vision about how to take exams, could this be a sign that your vision of how exams should be taken might be profitably modified? It depends on what you want to test, I suppose. Do you want to primarily test whether students “get” the material, or do you want to test not only whether they “get” the material but also “get” how to take the test.
It sounds so obvious not to spend a lot of time on “minor” issues. But, the truth is that there is often a lot to say on minor issues, if you really think about it. And in the context of an exam, where you are in panic mode to some degree, it is very easy to analyze something to death (that is in an logically exhaustive manner). This also trapped me as a computer science major. My approach to problems is usually to take them on one at a time and not move on to the next one until the one I am answering is “fully” answered. But, the advice here is somewhat counter-intuitive. If it is a minor issue, you shouldn’t fully answer it. At least not before you have fully discussed the “major” issues. You can’t just take things in order.
Contrast with a calculus exam. You aren’t finished with a easier (roughly but not quite equivalent to minor) question until the problem is fully solved. You usually don’t move on to the next calculus problem until you are fully done with the last, at least if you know what your doing. If you move on before the question is fully solved, it usually means your are stumped on that question and giving up.
Basically, taking an exam in the “wrong” way is a very very easy mistake to make, as I am sure the countless exams you have graded attest.
But here is the question. If students are consistently not taking exams in the way you think these sorts of exams should be taken, isn’t that an argument for changing the way you give exams?
It is like, if I give a group of 20 people instructions, and 1 of them fails to follow the instructions, the “fault” probably lies with that 1 person. If I give 20 people instructions, and 15 people fail to follow the instructions, maybe the “fault” is with instructions or even more radically, as I want to suggest, with the exam format itself.
I think the whole idea of issue spotting on some level is clever. One has to not only spot issues, but classify their importance. And in real life, lawyers have to spot issues. I can understand the appeal on some level of this testing device.
Still, as a lawyer now, I don’t have any problem spotting issues. In fact, I am always quite thorough and exhaustive. The extremely logical tendencies I inherited from a background in computer science have served me well. But I was not good at issue spotting exams in law school. Are issue spotting exams even really good at determining one’s ability to spot issues? I have doubts.
Also, do you know anyone who has a really strong substantive understanding of the law, but is unable to spot issues? Does the “skill” of issue spotting really need to be tested separately from substantive knowledge? I have a hard time thinking that spotting issues really is a skill at all. If you have (1) a knowledge of the substance and (2) know how to think logically then issue spotting is automatic. I suppose the fear is that someone could have the substantive knowledge, but be unable to spot issues. But if that were a real issue for that person, it seems to me that person needs a separate course in basic logic. Is Torts really the place to teach basic logic? It is not. And of course, basic logic is not even taught in such courses, for the most part. (Although issues of logic may will be constantly relevant, as they will in pretty much any academic subject.)
Anyway, here is my hypothesis. Although I could be wrong. Law school exams that focus on issue spotting create too much noise. This is probably a very inefficient manner of testing.
Assume I am right. This is what I predict:
Despite the flaws in issue spotting exams, they will persist. Law school is a cultural institution with its own traditions. Most law schools imitate practices that originated at Harvard Law School long ago. Those traditions are going to have a tendency to not change too much or too quickly, even if there are major improvements that could be made. Law professors tend to be culturally conservative, even if they are socially and economically liberal in their politics.
So, if you are a law student, critiques of issue spotting exams are besides the point. You should listen to Orin’s advice. It is better to be the 7 who “gets” the issue-spotting exam than the 9 who does not. Even better, be the 9 who “gets” the issue spotting exam! Issue spotting exams may be really lame but you have to live with them anyway. (I still think issue-spotting exams are lame — though I am open to counter-arguments — and no argument that I have heard in the 7 years since 1L year when I first encountered them has convinced me otherwise. But that is hardly relevant to a student who has to deal with them!)
If you are unhappy with your exam results but you think you understood the material, it is really critical that you go bug your professor. Do this even if you aren’t the sort of person to ask for help, like I was. In contrast, if you didn’t actually understand the material, you should have studied harder! The answer for that situation is to ask questions BEFORE the exam and probably not to bug the professor that much after it.
April 14, 2010, 10:02 pmOpenVolokh says:
I should note that the responsible professors DO have answers they want in mind when constructing issue-spotting exams. And the vast majority professors ARE responsible.
But, that many students question whether there is a purpose at all, illustrates, I think, the disadvantage of this form of exam and the confusion it tends to engender. The criticism that the professors have no idea what they are doing is off base, but I think the underlying confusion is very real and also indicates a real problem with these sorts of exams.
April 14, 2010, 10:06 pmSoronel Haetir says:
Following arbitrary dictates (so long as the problem remains soluble) is an important skill. I see the exercise Bruce Hayden described as being an example of that. So long as the 2nd Restatement does in fact provide something to cite to for the proposition remembering to skip the UCC is a minor but important indicator of whether someone was paying attention.
The real world is often like that, idiosyncratic bosses and all. If you can’t learn to please whoever it is reviewing your work you aren’t likely to be as successful as someone who has.
April 14, 2010, 10:26 pmOpenVolokh says:
This seems like a bizarre excuse for a stupid decision.
Classes on physics should be mostly about physics. Classes on torts should mostly be about torts.
Communication is a two way street. Here, there was an ambiguity. When the professor said answer based on the Restatement, he probably did not say that you will be majorly penalized if you mention the UCC in addition AFTER you have answered with the Restatement.
It seems to me, that the professor is probably the one at “fault” for the communication error. (Of course, I wasn’t there, but that is what I infer based on the story and also based on this professor’s retarded reasoning about what the penalty should be for those who did not “follow” the rule as ambiguously stated.)
Now, of course, much like sometimes in the real world, even though the professor was at fault for the communication error, he is not the one who had to pay for it. That is, I suppose, a typical lesson from some situation in the real world. The person in the lower status position has to pay for the mistakes of the higher status position. But is this based on some principle? I don’t think so. It is based on an unfortunate situation peculiar to a particular circumstance.
How do you handle a situation where your boss is at fault for a communication error? This is not an easy question! It really depends on the particular situation.
Your thesis that a class on “Contracts” or “Torts” is to teach the skills you should learn in Communication or Negotiation seems a little bit far-fetched. The subject of Contracts or Torts should be running the show and communication errors should be minimized for the benefit of all parties.
Yes, communication errors happen and they matter. In all subjects. In Chemistry, my professor often said RTDQ. Read the damn question! He especially said it before giving an exam, to help avoid errors. (If this was really a game of gotcha, maybe he shouldn’t have offered a reminder so more people wold have the opportunity to “learn” that there are consequences for making mistakes.) And yes, you would be penalized if you didn’t. But this wasn’t about, “Oh, I am really going to teach you how to suck up to your future boss!” but rather was more pragmatic. As in, if you don’t answer the question, how can you be graded fairly compared to students who DID answer the question. That is, the penalty you would suffer for the communication error you made was not a self-righteous statement about how you have to suck up to your superiors, but rather a pragmatic issue.
Also, some people, obviously not yourself, but some innovative people, start their own business. Not everyone has to suck up like you obviously must in your lame job. So, why should everyone learn the art of sucking up in Chemistry or Contracts when that isn’t going to be their life?
There should be a separate class for that. Sucking Up 101. You can be the only student who takes it.
That is how it should be: a class in Contracts is not some place to reinforce the “lessons” of a particular social order that may or may not be applicable to a particular student. A class in Contracts is a place to learn about contracts. (Too bad they don’t usually teach more about drafting them!) If a communication error arises, then it should be resolved pragmatically according to the best interests in all involved, not used as some sort of bizarre platform for philosophical statements on the importance of sucking up.
April 14, 2010, 11:00 pmAdam Kamp says:
I think my experience is very much in line with STeve’s. If I have practice tests available, then by the time I’ve seen the fact problem I’ve already taken two or three exams, know exactly how I’m going to articulate the rules, and have a sense of the logical structure of any answers I’m going to see. (Though this route has dangers; in my UCC Article 2 class last semester the professor asked a question about title and reclamation for the first time in fifteen classes that he’d taught the course! Thankfully, it was open-outline and I had studied it (and it was a softball question, too), but sometimes one can be misled by practice exams.
April 14, 2010, 11:12 pmSoronel Haetir says:
No, no, I am the idiosyncratic employer who expects those I pay to follow my dictates so long as they wish to remain in my hire. If I insist that they write numbers out longhand rather than using digits (even as I use digits myself) what concern is it to anyone else?
April 14, 2010, 11:36 pmOpenVolokh says:
If I was your employee in this hypothetical, I would find another employer as soon as feasible. And no, I would not give you notice, you prick. (I am talking to the hypothetical you who is going to try to micromanage things in an irrational manner. Not the real you making this point.) There is nothing worse than working for someone who is stupid and/or irrationally impositional.
I remember when I worked at a job after graduating for undergrad for this company that sold life insurance and had a small programming department. They were very controlling. People were not allowed to listen to music while programming and they liked to micromanage you with constant nit picky rules concerning just about anything that did not really accomplish anything. In general, you had a sense that management looked down upon you at that place. To add injury to insult, the pay was slightly below average.
As soon as possible, I found myself another job. It would have been entirely different if they treated their employees as adults and with respect. I certainly wouldn’t have been looking for another job a couple of days after I started. Some people program BETTER when they are listening to music. Some guy who has never programmed before telling you that you can’t listen to music using head phones in a way that doesn’t distract anyone else while you are programming is an idiot. Of course, it wasn’t just that. I don’t even normally listen to music while I program, but it was the atmosphere they created. I can put up with idiosyncrasies from people. I do this out of respect for everyone and not just because someone is above me in whatever temporary hierarchy I am involved in at the moment. But as soon as you start trying to disrespectfully micromanage everything and/or start treating people as though you are superior (not just in a superior position), you are going to have to find someone else.
Leaving that toxic atmosphere was not something I regretted for a second. As I recall, not a single person working there in the programming department was happy.
So, if you are employer, will you be able to find people who are so in need of employment that they will take abuse. Sure. But will these be the best candidates? No way. The best candidates have choices.
It must be said, that few things are as importance to your happiness at work as whether your boss is a reasonable and pleasant person or some sort of overbearing idiot. Even if it was not as good for my pocket book, I am going to get out of that sort of situation ASAP. You can find someone else who doesn’t have as much respect for themselves to torture.
April 15, 2010, 12:12 amSoronel Haetir says:
Heh, I too was a computer programmer (still am as a hobby) before deciding that there are better games to play. The worst/most arbitrary experience I had of being told how to do something was a prof in a C language course who insisted that the -> member access operator not be used, only (*ptr).member being allowed.
April 15, 2010, 2:00 amOpenVolokh says:
Soronel Haetir:
That is just bizarre rule by your professor.
It has been about 11 years since I have programmed in C++ and I have programmed in C even less. But I definitely remember the -> operator and the joys of memory management. I will say this. I am pretty good at making sure my code doesn’t have memory leaks. It is all about being very organized.
April 15, 2010, 4:19 amTitus says:
Reading fact patterns closely and repeatedly is probably the best advice in the world. I massacred my Property grade by misreading the key fact in the pattern: I substituted a person who entered with permission for the fact pattern’s person who entered without permission.
April 15, 2010, 8:39 amDavid M. Nieporent says:
In law, there are exactly nine people who get to do whatever they want, rather than producing output that conforms to what other people demand: Supreme Court justices. Everyone else has to “suck up.” If you write contracts the way you want to write them rather than how the courts interpret them, good luck with that. If you draft briefs to conform to your own wishes rather than to the expectation of judges, good luck.
April 15, 2010, 8:40 amDick the Butcher says:
As a non-lawyer I’ve a solution to your legal problems, but you won’t like it.
April 15, 2010, 2:11 pmBob says:
In the law school class ahead of ours, two Contract law students received an A and C, for their final exam. The friends were perplexed by the difference and so they both approached the law professor, together, to have him explain the differences.
The professor went through a long discourse on the differences between the “A” and “C” exam that resulted in the grades.
It was at this point that the students revealed they had switched the Blue Book cover on the exam. And so, the Professor had just explained how the “A” paper was in fact a “C”, and vice versa.
To say the Professor was outraged, is an understatement. The two came close to being kicked out of law school. I agreed with the idea of reviewing whether someone should have remained at the school, after the incident. Sadly, it wasn’t the students that deserved that scrutiny.
April 15, 2010, 2:29 pmcas127 says:
“Clearly the law professor should spend 25% of the time allotted to grading the exams sketching out exactly what he is looking for”
Actually, it would be nice (not to mention a miracle) if law professors spent “25% of the time allotted for grading exams” to, you know, actually grading the *ucking exams.
I graduated from a large, Top 20 school and it was *rare* to have three question exams from classes with 50 people in them returned before seasons changed…
Teaching (and even more so, grading) takes *exceptionally* low priority at most law schools.
As opposed to publishing opaque, obscure articles whose social or scholarly utility is often close to nil.
April 15, 2010, 2:30 pmRex says:
Very interesting comments. To this day I still don’t know why I got good grades on some exams and average grades on others. My profs never said what they were looking for, nor was this ever discussed in my law school. I still managed to graduate in the top third of my class at UVA, which, although UVA has a strict policy of not publishing class rankings, I was able to discern from a slight knowledge of statistics and knowing that we were adhering to a B-mean rule in assigning grades.
April 15, 2010, 2:37 pmHazy Dave says:
I skimmed this article until I got bored with it, and began writing without giving it very much thought at all.
I’m entitled to a solid B+, right?
April 15, 2010, 3:32 pmDiggs says:
Based on the title, I read “A Common-Law School Exam Mistake” as if it were about mistakes made on school exams about common-law.
April 15, 2010, 3:40 pmImagine my dismay when I found out it was about general Law School exams.
Georg Felis says:
The crux of the problem is “How do you have people who know how to do things, TEACH how to do things?”
Whoever solves this one, deserves about a decade of Nobel prizes.
April 15, 2010, 3:48 pmbeatrix says:
One of my first-year law professors gave me very similar advice; he suggested allocating 1/3 of the time for any exam question to thinking before writing anything in the blue book. I followed that guidance on all the exams I took in law school, not to mention in bar exams in three different states afterward (yes, that was torture — we moved a lot). As I started each exam question, I’d look at the clock, figure out how long I could think, and write down what time I had to start writing. Then I’d spend the thinking time reading and rereading the question, making notes on scrap paper, and organizing the notes into a rough outline, often just by drawing circles around important issues and scribbling arrows in between the notes to indicate the order I wanted to follow. With luck, by the time I started writing, I knew what my first and last sentences would be.
It’s true that every professor grades differently, but it’s also true that this method worked well on pretty much every exam I took. I was almost always happy with the grades I ended up with, and I passed all three of those *&*^$ bar exams on the first try. It’s a pretty good lesson for baby lawyers to learn: When confronted with a legal problem, stop, think, think again, and make sure you know what you’re going to say and why you’re going to say it before you open your mouth.
April 15, 2010, 4:18 pmWatney Barnes III says:
Yes, but consider the disproportionate impact on women and minorities.
April 15, 2010, 4:20 pmGeoff Whisler says:
I am not a lawyer nor do I play one on TV. What I am is professional pilot who skims your posts occasionally and enjoys the perspective.
This post struck a chord in my training and experience. It is said that flying is hours and hours of boredom punctuated by moments of sheer terror. This maybe overdone a little but having a long successful career in aviation requires some significant time management skills. An airborne emergency – mechanical, weather, whatever it is – requires the ability to quickly determine what is critical, what is ‘merely ‘ important and what is not so important. Set your priorities, fix the problems that can kill you first, then work your way down through the lesser issues. If you get the airplane on the ground before the lesser things are fixed, so be it.
The first and most important task is to ALWAYS ensure that someone is flying the airplane. Sounds silly and basic, but many people have died over the years because they didn’t make sure someone was flying the airplane.
It sounds like RTFQ is the equivalent here. Read the &$!!! question! Organize your answers. Then start writing.
Geoff Whisler
April 15, 2010, 4:29 pmDave N. says:
Along with a few others whose working philosophy is, “They can’t catch them all.”
April 15, 2010, 5:18 pmwooga says:
This will only hurt the lazy introverts. Most classmates will point this out to each other socially (unless you grade on a true hard curve in a competitive class, which AFAIK is rare in undergrad), so the only people who will fail it will be the disorganized nerds.
April 15, 2010, 6:07 pmGMAT App For Your iPod Device says:
[...] The Volokh Conspiracy » Blog Archive » A Common Law School Exam Mistake [...]
April 15, 2010, 6:08 pmChem_geek says:
I was unaware that lese majeste was an expulsable offense…
April 15, 2010, 7:25 pmJ_U says:
Thank you for the advice, Mr. Kerr. I will be taking a criminal procedure final very soon (based on your text) and do very much appreciate the advice. I also have enjoyed your text.
Best.
April 15, 2010, 11:59 pmMichaelW says:
Good advice, OK. I learned it the hard way after receiving my 1st year Torts grade. I made a good grade, mind you, but not in comparison to how well I actually knew the material. I even tried to outline my answers beforehand, but got caught up in exactly the thinking you described, and just started vomiting issue explanation into my blue book without considering the overall answers that would have demonstrated my understanding of the subject. I would have done much better if I had followed your advice (which, incidentally, was also the advice of my Torts professor).
Actually, I can think of two real-world situations off the top of my head where the ability to immediately and accurately identify and analyze the issues is invaluable:
(1) A partner enters your office and asks you about a case s/he’s just landed, wanting to know what your thoughts are regarding the law and claims/defenses. If one is able to quickly identify the most important issues, and the salient legal claims/issues (sometimes including things that haven’t occurred to the partner), then one is in a good position to become a much more important, influential and sought-after lawyer.
(2) A not uncommon situation for almost any lawyer is to be presented with a petition for an immediate injunction (“TRO”). Typically, you don’t have much time to get acquainted with all of the facts, and have to quickly hone in on those most pertinent to obtaining/defending against the TRO. The turnaround on such motions can be as little as 12 hours, so the ability to quickly and cogently assess the issues is paramount. Lawyers who deal with Landlord/tenant issues can face the same sort of time pressures.
(2A) A corollary to the above is that, invariably, clients wait until the last minute to inform you that they need your advice. I can’t begin to count the number of times I’ve received a call from client that they need a document reviewed/drafted for a closing that supposed to occur the next day. While client management comes into play in these instances as well, the ability to quickly digest the subject matter, understand the most important issues, and intelligently explain those things to your client is a necessary skill in the real world.
In any event, I think you’ve offered excellent advice, Orin, and I hope law students take you up on it.
April 16, 2010, 12:51 amOpenVolokh says:
I don’t consider following the law to be sucking up. I am more thinking of totally irrational demands that are completely idiosyncratic. Now, of course, in a case, you put up with the judge, even if he is a little unreasonable. But, it is his courtroom and that is the way it is.
I wouldn’t take this as a more general principle for life. That is all I am saying.
April 16, 2010, 1:02 amDmitry says:
Despite being from completely orthogonal part of academy, I cannot agree more: you should first think, and think well, and only then speak (or write). If you are time-pressed, think about time planning first.
April 16, 2010, 5:11 amI also suspect that this rule works outside academy as well. E.g. if you compare approaches of a professional photographer and a fresh amateur you’ll see the same difference: one thinks hard, and then takes two-three shots, and another takes hundreds of worthless pictures, and dumps them all.
MaryG says:
“… if you compare approaches of a professional photographer and a fresh amateur you’ll see the same difference: one thinks hard, and then takes two-three shots, and another takes hundreds of worthless pictures, and dumps them all.”
Which is which nowadays? The slow and simple amateur getting the one or two he liked/wanted, and the pro with the resources to shoot away and choose because he knows timing counts in action shots?
Or did you mean that in reverse, that it’s the amateur randomly shooting and the pro waiting for their shot? Either way, look at end results, and not these “pro” and “amateur” labels. Otherwise we risk missing out and getting stuck in a rut.
April 16, 2010, 5:58 am