Over the past week or so I've read close to 150 examination Blue Books and one article that someone from the Administration, I presume, placed in my class-folder in the front office.
The article says that law professors do a disservice by lax grading, by which the author means, "allowing grade inflation."
The theory, he says, is that law professors figure it's not up to them to block people from the profession show by their grades that their chances of making it as lawyers in the legal profession are slim. That's the job of the state bar examiners, they figure.
This began, he says, during the Vietnam War days when a bad grade could get you thrown out of school, you'd lose your draft deferment, and wind up in Vietnam, dead, all because you didn't pass your law exam. Grade inflation was the result.
The author is Christian C. Day, writing in the November, 2004 issue of The Bar Examiner.
First he points to the high correlation that appears to exist between good SAT and LSAT scores and high pass rates on the bar exams.
Then he notes the different ways that people learn law. The law review types, he says, seem to be able to rely on reading case and outlines. Others have to write for law to sink in. Some see things graphically. You have to find what works for you.
Then you have to learn how to take a law exam. This is where a lot of smart people fall down. Either they don't know a good technique, or they've heard of a technique and beat it to death to little good effect.
In one exam paper that I read, which received a poor grade, the student wrote that Carole will argue this fact and Michael, her adversary, will argue that fact. Since that was stated in the given, the student added no value. But he, or she, kept on writing that the parties "will argue" this and that. To no beneficial effect on the grade score.
Why?
Because the student would conclude, in each case, that "on balance" this party or that party will prevail in the Supreme Court, without saying why, which is the point of the exercise.
What I think happened was that the student heard or read someplace that it was a good idea to write down what each party will argue. Maybe it is. But it isn't if you stop there or claim that, on balance, you think the Supreme Court will rule up or down on the constitutionality of the claim. We know they're going to do that because that's what the question calls for: for you, the student, to state whether the Court will rule the government statute or action constitutional or not and why, stating reasons. That's the hard part on which you are being questioned on your knowledge of the law. No law stated, no good grade results.
For the mid-term exam in December, I gave two questions. The first was handed out on the last day of class. It required the student to become with Justice Scalia's originalist or textualist approach to constitutional interpretation and to state whether the student agreed or disagreed with it. Students were invited to do a little research, such as by checking out a few items on this blog referencing Justice Scalia's views, as well as cases and the slender volume he produced, along with other law professors who debated his views.
I got some excellent results. It was a pretty good teaching method if I say so myself. Students could do all the research they wanted, but it was a closed book exam. They had to compose their answers fresh in the exam room, no peeking. A lot of students were saved by the good grade they got on this known-in-advance question. That may have been good teaching, but it was poor bar exam preparation, because on the bar exam they don't let you have the questions in advance on which to study up.
I graded those first and handed out a lot of good grades. Very few B-minuses, and one C+. The Scalia question was an act of charity. I'm not sure I want to do that again.
Then I waited a day or two to read the much larger pile, Question II. This consisted of a slightly complicated, potentially confusing, and reasonably unlikely situation arising out of such current issues as gay marriage, standing, abortion, medical marijuana, and presidential war power following a decree issued under the Congressionally enacted Patriot Act. All hot-button issues of the day. To make matters simpler, I posted a clue several days before the exam, on this blog, suggesting that the way to go was to devote the final study push to standing, abortion and war powers.
To focus attention still further on the real issues, I labeled them on the question paper. I labeled them Standing as to this question, Abortion as to the next, and War Powers as to the third subsection.
Why was I suddenly reading about the Commerce Clause and Bill of Attainders? I have no idea.
That's what the student must've studied the most and that's what the student wanted to write about.
That's like the student on the math exam who can't multiply, but writes an essay on long division.
In an advisory that I'm told met with some wonderment, I counseled on what I was looking for, and in particular to try to avoid reading between the lines to discern some imaginary question not asked. Yet I saw Commerce Clause and the Bill of Attainder doctrine. Great. But unless you wrote about Standing, Abortion, and War Powers, your grade suffered.
The better grades on Standing described the full measure of the doctrine as discussed in Newdow and Lujan. Newdow came down in 2004. I put on the board once, maybe twice, a detailed exposition of standing. Those who received better grades took the effort to heart. If I do the work, you can expect to see it on the exam. Yet I can't test on everything. The fact pattern was ridiculous enough, trying to cram in several big issues.
After studying all of the blue books of one student, I'd come up with a combined grade for all three. I also underlined or circled in red, or annotated, as well, important keys struck on the Con-Law scale by the student. The ones that were relevant, that is. I'd look to see how well the student set forth the governing law and argued the facts in connection with them. I can't tell you how to do this. They have bar review courses that do this. They make you write.
The author of the article referred to above, Christian C. Day, argues that law schools would be well-advised to establish summer exam-writing classes, despite the considerable expense.
He also advises professors like me that it may not be a kindness to give the marginal student, who is unlikely to pass the bar exam, a false sort of encouragemen through easy gradingt. The student will spend additional years in school, plus a lot of treasure, only to be disappointed in the end.
Today's kindness is tomorrow's cruelty, in other words.
I figure it's your funeral either way.
The grade-scores for the second tri-part question were much more indicative of law school exam performance. Any smart person can do the research and come up with a good grade on the Scalia question, as it was the next closest thing to a take-home, open-book exam. The grades are artificially high. The good grades on Q-I pulled up the average for the lower, more realistic grades as to Q-II.
If you want to see how you're doing, look at your grades for the second, the tri-part question, Q-II. If you scored under a B there, that would be a B-minus or lower, you're having trouble either with the material or with exam taking and you ought either to get the necessary help or consider your options.
If you're right on the border with a flat B on Question Two, you're not out of the woods yet either.
As for the rest, good luck, but don't take anything for granted.
On the low scoring exams I made a fair number of notes and comments. Sometimes I was expecting to see something sooner rather than later, made a comment, and then found the good bits later. I felt as though the student had thrown me a life ring. I was glad to see it.
In the Michael, Carole, and Geri question (Q-II), Carole and Geri are "married" under the facts, in a same-sex, San Francisco style wedding.
BUT, as we ALL know, or should know by now, the California Supreme Court has not upheld same-sex marriages as being legal under California statute law.
So Carole's marriage to Michael is perfectly legal, secret though it may be as to Geri. Marriages are matters are public records even if kept secret elsewhere.
So you don't know someone is married. Does that make them not married? Why do you think hotel and motel clerks don't ask personal questions like, "Are you married?"
The marriage to Michael was not bigamous in any legal sense. All that was so much hocus-pocus and red-herring dragging however.
The question was whether either Michael or Geri had standing to object to Carole's therapeutic abortion. Some students argued the closeness of the relationships that Michael and Geri had with Carole to establish standing, but that was also irrelevant, although I gave some credit for the effort. But wanted students to recognize that Michael's was the only legal marriage here, which those with the best grades did. Legal does count on a law exam, right?
As you should've known, the Supreme Court has held, beginning with Roe, extending through Casey, and finally with Stenberg v. Carhart, that no person other than the pregnant woman can unduly burden her decision to have a therapeutic abortion, that is, to preserve her health or life.
If the husband or boyfriend is unable, as a matter of substantive constitutional law, to block (enjoin) an abortion, why should either, or Carole, for that matter, have standing to oppose the abortion.
Some students were so opposed to abortion as a matter of personal principle that they were unable to deal with the current state of the law. One seemed to have had trouble writing the word "abortion." "The killing of babies by doctors," was how the subject was first broached. That's fine, but then there was the problem of describing and applying the current state of the law, like it or not.
Lawyers are consulted because they're supposed to know what the law is, or find out.
Why do you think we study it?
A law exam does not test your emotional state or attitudes regarding the controversial issues of the day.
All issues of Constitutional Law are highly controversial.
That's why the decisions are frequently split among the Circuits below, and why there's so much media flap generated over them.
You may be opposed to torturing prisoners, yet we do have this big constitutional issue over what that means, with the Administration appearing to have written and acted as though the United States allowed torture of prisoners, if necessary to see whether they have useful information. It's hugely controversial. See the controversy over whether Alberto Gonzales will be confirmed as the next attorney-general. He won't disavow inflicting pain on prisoners to extract information. He just won't call it torture. He's a hair-splitter in the worst tradition of legal pettifoggery. I wouldn't hire him as a deputy district attorney, much Attorney-Ggeneral of the United States, based on what I've seen so far, that is. Maybe he'll surprise me and be wonderful. I'm not counting on it.
A law exam tests for the state of the law, not the state of your attitude on abortion, torture, and the like. We don't really want to see your attitude. You may be on the side of the angels in terms of personal attitude and emotion, but if you don't know the law, or are unable to state a reasonable approximation of it, you're in trouble on a law exam.
Each case, and each series of cases, is designed to teach you a principle, along with its extent and variations. If you don't put a handle on each case, you're left with an amorphous blob of a thought that you are stuck with trying to refine under exam conditions.
I try to get you to put labels on the cases, to help remember the principles. Or suggest that you draw cartoons or caricatures of certain aspects of the cases.
There's a great cartoon in the Sunday New York Times, today. It shows a senator asking questions of Alberto Gonzales in his confirmation hearing. Gonzales has been a bit evasive, as you may have sensed.
The cartoon, by Jimmy Margulies of the New Jersey Record, shows Gonzales stretched out, hanging from a rope, by his feet, hands bound, and eyes blind-folded. The senator is saying, "Good morning, Mr. Gonzales, thank you for agreeing to answer a few questions."
Under the memo put out by Gonzales, disavowed when it became public, just before his confirmation hearing, this would not count as anything he considers to be torture.
Can you extract a verbal principle of law from that? You're supposed to be able to. The cartoon is supposed to be more memorable than a huge pile of words, such as this item and this blog.
I was talking to my friend Ira the other day. He's an expert on California mental health law. People from the California Legislature call him and ask him what he thinks of newly proposed legislation.
What you did is wonderful, he told one, only you left out the right to a jury trial. Oops. Ira caught it and the correction was made.
Since I've had a couple of cases assigned to me recently in that area, I needed to come up to speed in a hurry. When I was a DA I lectured the office on diminished capacity and insanity, after a three month murder trial in which those were the issues, but diminished capacity has been long gone since the Dan White trial in 1980 or so, (no more "Twinkie" defense; today it's "diminished actuality.")
Can an insane prisoner be medicated against her will to make her better?
Ira gave me the short course and a couple of cases to read. The next day I spoke to him.
Ira, I said, I'm amazed at how cut-and-dried you made all that complex law appear. Most lawyers fade out pretty quickly once you get them into a new area.
That's just the thing, he replied, I've tried twenty cases in a row in this area and I have a file on each of them. I know this stuff cold. I'm just as nebulous as everybody else on stuff I haven't worked with.
I've tried to get him to put it all on a blog, but he won't do it. Someone should put a gun to his head, as there aren't three people in the state who have his head for this mass of law, in all likelihood.
He tells me what the psychiatrist is going to tell me about my new clients before I speak to the shrink.
One client is delusional. She thinks she works for the police. She doesn't work for the police. Never has. She might be insane, says Ira, but unless the insanity makes her unable to cooperate with you, that doesn't make her incompetent. Insane people can be competent to consult with counsel and make decisions whether to take or refuse medication.
Since my client's delusion prevents her from discussing the facts of her case with me (she can only tell that to the judge in private, which is not allowed), her delusion renders her incompetent to assist counsel.
But you'd need to read a lot of cases before you figured that out, unless you spoke to Ira or the shrink, who confirmed what Ira said, or vice versa.
Now you know it, too.
Which reminds me of some student exam answers. Several wrote that the arrest of Carole, for marijuana possession, was a violation of her due process right to a hearing. In other words, she should have been afforded a hearing before being arrested.
Every student must be aware that there is no right to a hearing before one is placed under arrest. Remember the O.J. Simpson trial? It occurred after he was arrested, as you already knew, right?
So how come I saw something different on a law school exam.
This reminds me of an incident. I was talking to a law school roommate of mine some time ago, a very bright guy and a successful lawyer, but sometimes he had his head up his fundament. I've got this client who's dying I said, and he wants me to draw him up a will. In those days I was doing that.
"But isn't that making a will in anticipation of death?" he replied, as though I shouldn't draft the will because it was too late, the man was dying.
My friend was confusing a doctrine from trusts and estates, which
involves taxation. If you make a gift in anticipation of death in
order to avoid having to pay the gift tax, the gift is taxable
anyway. I don't know whether they still have this, but that's not the
point. The point is that very bright people become confused over what,
to someone else, seems the plainest of things.
ALL wills are made in anticipation of death. That's what wills are for. You can sign your will with your last breath, with an "X," if necessary, provided you satisfy the statutory requirements in other respects, such as, if you didn't draw it up yourself by hand, you have the requisite number of witnesses and a little thing called donative intent, which requires that you know who the objects of your bounty are, what you have, and what you are giving, but see the Wills Professor for the rest.
So please don't tell me what you know is wrong had you thought about it for a moment, such as that you are entitled to a hearing before you get arrested. You are fortunate to obtain a hearing afterwards. Much less to have a lawyer. You can have a lawyer at a deportation proceeding. But only at your own expense, not the government's. Why? Deportation is a civil proceeding, not a criminal proceeding. No state funded Public Defender for deportees.
The prisoners at Guantanamo had to fight all the way to the Supreme Court, from behind bars where they were being held incomunicado, with no lawyers, before they obtained a half-assed hearing of some as-yet-to-be-determined variety, before God-knows-whom, under who-knows-what rules. Actually some very good lawyers figured out a way to get one prisoner represented, Hamdi, and once they got his foot in the door, the rest was history and some process was ordered that we're going to call "due." You don't get a due process hearing when that government agent, the bus driver, tells you that your transfer has expired. You don't get a due process hearing on every beef someone has with the gummint.
The Guantanamo prisoners obtained the right to a hearing after they were taken into custody, of course, thank you, not before. Shall we give hearings to enemy combatants before they are captured? Why would we want to do that? We might be a little crazy, but we're not stupid.
Got it?
I could go on...