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An Informal History of How Law Schools Evaluate Students, with a Predictable Emphasis on Law School Exams

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An Informal History of How Law Schools Evaluate Students, with a Predictable Emphasis on Law School Exams Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 1997 An Informal History of How Law Schools Evaluate Students, with a Predictable Emphasis on Law School Exams Stephen M. Sheppard St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Stephen M. Sheppard, An Informal History of How Law Schools Evaluate Students, with a Predictable Emphasis on Law School Exams, 65 UMKC L. Rev. 657 (1997). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. AN INFORMAL HISTORY OF HOW LAW SCHOOLS EVALUATE STUDENTS, WITH A PREDICTABLE EMPHASIS ON LAW SCHOOL FINAL EXAMS Steve Sheppard* Finalexams play on a law student 's world like some weirdly orbitingmoon. They are always in sight; but while they're at a distance, they serve merely to create the tensions which swell daily like tides - to read to keep pace, to understand As exams draw close, however,... theirgravitational force startsto shake the whole place to pieces.' American law schools currently employ one essential, formal method of student evaluation - course-end examinations.2 While informal evaluation, particularly observation of student oral class performances, does occur, the exams are usually the exclusive method by which a record of student performance is created. Examinations serve to measure the ability of the student to use the material assigned, whether they are fit or unfit for the practice of law, or for the recognition by the school that sufficient skill is had to award a law degree,3 whether they should be recognized and identified for the employers as outstandingly fit,4 and to signal the strengths and weaknesses of a student's work for the student's future development, as an incentive both to learn as much as possible during instruction and to review that instruction later.5 The exams of the many American schools now follow a surprisingly few patterns based on a few hypothetical questions and, less often, on a group of many multiple-choice questions. This pattern - of hypothetical essay examinations being the sole record of the students' performance - is a recent stage in the evolution ofU.S. legal education. Once exams were only one form ofevaluation to judge fitness, used in conjunction with class recitations, notebook inspections, and moot court performance. This complicated *. Associate Professor, Thomas M.Cooley Law School. I thank the editors of the UMKC Law Review for their invitation to write this article; without their exhibition ofblind faith in agreeing to publish the unwritten, it would have remained so. I am also grateful to the Thomas Cooley librarians, particularly Sharon Bradley, Ardena Walsh, and Steve Boudette in locating some of the more obscure material for this odyssey, to Kristin Keck, Jill Pullum, and Cindy Hurst for their typing assistance. Frank Lorenz of Hamilton College, Kent McKeever and Whitney Bagnall of Columbia, and David Warrington and David DiLorenzo of Harvard were particularly helpful in locating some of the more critical bits of academic flotsam on which this paper is based. 1. ScoTT TuRow, ONEL 157 (1986). 2. This near-uniformity of method is no accident The American Bar Association demands it of schools that would remain accredited. Standard 304 requires the scholastic achievement of all students in lecture-hall courses to be tested with a "written examination of suitable length and complexity." ABA Standard 304(b) (1996). 3. These goals for examinations and their resultant grades are well established. See, e.g., Karl N. Llewellyn, Lawyer's Ways and Means, and the Law Curriculum, 30 IOWA L. REV. 333 (1945). 4. Again, these goals are old hat. See, e.g., John L. Grant, The Single Standardin Grading,29 COLUM. L. REv. 920 (1929). 5. These goals are, unsurprisingly, less often noted in the literature of this century. UMKC LAWREVIEW [Vol. 65:4 evaluation scheme was replaced by graduation exams, designed to measure the specific knowledge acquired over the whole course of study. These in turn were followed by annual and course-end examinations. The questions of these exams evolved from brief didactic questions designed to measure rote memory to complicated hypotheticals designed to measure application. In this century, the objective question, the spiritual descendent of the then-obsolete didactic question emerged, allowing both faster evaluation of the student submission and broader coverage in the evaluation. This article describes this evolution, commencing with its English antecedents and influences.' . THE ENGLISH EXPERIENCE TO 1900: TRIAL AND ERROR A. Moots Blackstone maintained that the English Inns of Court arose in response to the operation of Magna Carta and other acts fixing a permanent location of the law courts in London. "Here exercises were performed, lectures were read, and degrees were at length conferred in the common law, as at other universities in the canon and civil."7 From the Fourteenth to the early Seventeenth Century, the Inns were power-houses of legal instruction,8 and their primary form of education was the argument of moot cases,9 which when done by the students, served as the student's oral examination. The most spectacular of these moot arguments were performed semi-annually by senior barristers in the Readings, held in the Lent and Autumn vacations; student attendance was compulsory."0 As reported by Nathaniel Bacon, the senior barristers would select a reader, who would choose a statute to describe and criticize, offering an 6. American legal education through the nineteenth century was strongly influenced by English traditions and practices. The moot court and the written examination had both been pursued in English institutions prior to independence, and this essay begins with a consideration of their methods of student evaluation. See, e.g., MARIAN C. MCKENNA, TAPPING REEVE AND THE LTcHiELD LAW SCHOOL 1-7 (1986); 1 CHARLES WARREN, A HISTORY OF THE HARVARD LAW SCHOOL AND OF THE EARLIER LEGAL CoNDmoNs IN AMERICA 31-45 (1970); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 84-88 (1973); Roscoe Pound, Dedication Papers: The Law School and the ProfessionalTradition, 24 MICH. L. REv. 156, 160 (1926). For the influence of Oxbridge graduates in early American colleges, see MARY LovET SMALLWOOD, AN HISTORICAL STUDY OF ExAMINATIONs AND GRADING SYSTEMS IN EARLY AMERICAN UNivERsnrEs: A CRITICAL STUDY OF THE ORIGINAL REcoRDS OF HARVARD, WILLIAM AND MARY, YALE, MOUNT HOLYOKE, AND MICHIGAN FROM THEIR FOUNDING TO 1900, 3-5 (1935). 7. 1 WLLIAM BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND 23 (1765). For a more specific history of the origins of the Inns, see S.E. Thome, The Early History of the Inns of Court with Special Reference to Gray's Inn, in S.E. THORNE, ESSAYS IN ENGLISH LEGAL HISTORY 137 (1985). 8. Not that the Inns were the sole professional law schools in Britain. For a discussion of the legal instruction in the Scottish Faculty of Advocates, see Steve Sheppard, Casenotes, Commentaries,and Curmudgeons, - IOWAL. REv. - (1997). 9. J.H. Baker identifies the term "moot" as a basis for both the description of the case and the forms of the disputation as in use by 1428. J.H. Baker, LearningExercises in the Medieval Inns of Court andChancery, in J.H. BAKER, THE LEGAL PROFESSION AND THE COMMON LAW: HISTORICAL ESSAYS 15 (1986). 10. Richardson describes these readings in detail. W.C. RICHARDSON, A HISTORY OF THE INNS OF COURT, WITH SPECIAL REFERENCE TO THE PERIOD OF THE RENAISSANCE, 101-27 (1978). The proceedings from Readings and Moots are in S.E. Thome's Readings and Moots at the Inns of Court in the Fifteenth Century. Vol.1 (Selden Society, vol. 71, 1954). 1997] INFORMAL HISTORY OF EVALUATIONS argument for reform of the statute. This argument would then be challenged by other barristers in a debate that would last three or four days per week for two or three weeks." Besides these showpiece arguments by the senior lawyers, the seniors observed student moots and arguments throughout terms and vacations, with varying degrees of participation by senior banisters. 2 The Readings set the standard and the style of the student moots. The problems assigned for student mooting, as for many of the Readings, tended to be hoary and well-tested, but this did not make the disputation easier. Professor Baker illustrates a typical moot problem from Lincoln's Inn: Two coparceners, seised of a manor by descent, have a tenant who holds the manor by homage and fealty and by the services of 20s. a year, repairing the mill and roofing the hall of the manor, the tenant grants part of the manor to a stranger, to hold of the chief lord of the fee by the services due; one of the parceners commits felony, for which she is attainted; the lord enters as in his escheat; and then they make partition between themselves, so that the mill is allotted to the lord and they hold the hall and the other services in common; and then they grant the hall to a man pur terme d'autre vie, during whose time the hall is unroofed; he for whose life the hall was leased dies; they enter as in their reversion; the lord makes a recognizance to a stranger to pay certain money at a certain day, at which day he does not pay, and so the other sues execution and has execution in respect of the mill; and during that time the mill falls down; the money ispaid; the lord enters and distrains them; the tenants make replevin.
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