Guest Blog by Barry Friedman and John Goldberg
We’ve been blogging here at the Volokh Conspiracy about law school exams and our new book Open Book: Succeeding on Exams from the First Day of Law School.
In response to a post about how exams mirror law practice, several commentators raised a fair question: do law professors teach what gets tested for on exams?
Our answer is: sometimes yes, sometimes no, and maybe.
Perhaps the most poignant of concerns was that of Mario O who said law professors should teach issue-spotting more deliberately, writing: “It’s like showing people pictures of violins and reading books about violins — but never touching one — and then for the final the student has to perform a solo with an orchestra.”
For what it is worth, we agree — we devote several chapters of our book to meticulously taking apart the issue-spotting process, showing how to spot issues, apply rules, argue both sides, all the skills that go into writing a good exam.
But we think there are reasons professors don’t do more. Here, we speculate, welcoming your reactions.
Our suspicion is that the folks who are now law professors tended to be students to whom the particular skill of exam-taking came naturally. If so, it would not be a huge surprise to learn that they often underestimate the challenge that exams pose for many students. This is not an excuse, just an explanation: if you find something intuitive, you may have trouble appreciating that others find it counter-intuitive.
There’s another, more substantive problem at work here. It is not at all easy to teach what makes a good or bad legal argument. Several commenters pointed out that this best is learned in practice. We think this is true, albeit overstated. In the classroom — especially a Socratic classroom — the professor is (or should be) pushing students to make arguments and giving the students a feel for what makes for a better or worse argument.
Finally, there is a point to the “inside-out” approach of the law school classroom. Legal argument requires knowledge of law, and professors tend to teach cases rather than problems because the cases pull double-duty as lessons in substance and reasoning. This response is not entirely sufficient. There can and should be cases and problems. Probably most of us could do better in ensuring a proper mix between the two.