December 20, 2010
Down with policy questions on exams!
Posted by Erik Gerding

I loved finding a pure policy question on an exam as a student. As a professor, I hate them. When I was a student, these types of questions – “assume you are a legislator, writing a statute on…., what are your concerns” or “what is this course about?” – were an invitation not only to think big thoughts, but moreover to show off rhetorical skill. Moreover, they offered a way to score points by reverse engineering the professor’s basic conceptual or ideological take on the course.

These same attributes make me loathe to ask this type of question on my own exams now. I don’t want to encourage students to slather on rhetoric at the expense of legal analysis. I would worry about favoring – or, more precisely, being assumed to favor -- students who subscribe to my views. This concern involves not only fairness, but also a fear that where exams should be testing critical analysis, a pure policy questions might engender only regurgitation.

Moreover, policy questions can play into some students’ misconceptions about the role they will play as lawyers upon graduation. Most graduates are not going to be deciding policy matters until years after graduation. I orient my exams on questions, fact patterns, and roles I think students are likely to face in the first few years of practice.

Of course, we are (almost) all (some type of) a legal realist now, and policy arguments clearly have their place in advocacy and counseling. But there is a big difference between weaving a policy argument into black letter analysis of facts, cases, statutes, regulations, and contract terms, and leading with policy right off the bat. Cases of first impression, cases in which different legal rules are in deep tension or close calls open themselves more to use of creative – but still rigorous – analysis and arguments of how the law should be applied. However, divorcing policy from the rest of legal analysis and testing on it seems too … academic … and better suited for seminar papers.

Now I do worry that perhaps I am disfavoring critical thought by students about my areas of the law – and suggesting that how things are are how things ought to be. Yet, it seems to me that the place to encourage critical thought is the classroom, not in the confines of an exam room. And perhaps I take some comfort that other professors will be asking policy questions of my students in a far better way than I ever could.

So here is a question for readers – what is the craziest question, policy or otherwise, you have ever asked or been asked in an exam? Anything like the now defunct essay questions for admission to Oxford’s All Souls College?

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