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The choices were many and complicated, but I felt that my answer was simple: I would give an open book exam in every sense of the word (open book, open note, open commercial outline), i.e., an "open everything" exam. The reason? Cheating. Now, I have no idea what percentage of law students cheat. (According to recent research, "seventy percent of high school and college students admit to having engaged in some form of cheating, and...forty-five percent of law students admit to having cheated."). What I do know is that at every level of school I attended starting with junior high, students were worried that other students were cheating and that they would be graded unfairly as a result.  Of course, in the curve-happy world of law school where so much depends on grades, these concerns were heightened.

An "open everything" exam doesn't eliminate these concerns, but it does greatly reduce them.  With an "open everything" exam, students can still cheat off of each other, but they can't cheat out of the casebook, an outline, a rule book, or a hornbook because everyone has access to these. Based upon feedback, this approach greatly reduces student stress about other students cheating.  It also has other things to recommend it.

First, it also reduces student stress about getting stuck in a moment during the exam and seeing their grade failing them along with their memory.  Second, I think that it improves exam performance compared to the closed book exam. After closed book exams in law school, I remember post-exam discussions focusing on what was remembered vs. forgotten instead of who best applied fact (pattern) to law.  Also, from my own experience, I remember "wasting" several minutes on closed book exams doing the brain dump (i.e., hastily jotting everything down that I might otherwise forget once the proctor told us to put our materials away). Third, I think that students in open book classes are more proactive in creating their own outlines because they know that they can use them on the exam. And from what I have heard from students, this not only helps them on the exam but also on the bar and in practice. 

Of course, there are some drawbacks to the "open everything" exam.  First, some say that it levels the playing field too much.  In other words, students who lollygag all semester can catch up to the hard workers in a way that can't occur in a closed book class. This is a legitimate concern, but it seems to me that it can be alleviated to a great extent by exam length.  I try to make it so that students who know the material and only check their materials a few times will be able to finish the exam with no time to waste. Indeed, I tell students that their materials should only be used as crutch for a forgotten point, not as a constant point of reference.

Second, some say that it creates an arms race for high priced supplements.  In my classes, however, I make sure to dig much deeper than those surface supplements and even teach opinions that are only a few weeks old. I always tell students that if they rely on supplements, they will not do very well in my classes, and as far as I can tell, that advice has rung true.

Third, some say that it is unfair because certain organizations such as law review have "outline banks," which make the "rich" richer and the "poor" poorer.  I think that this is a valid concern, but my decision was to nip it in the bud by preparing and giving students outlines throughout class and a comprehensive outline at the end of class. On the one hand, I realize that this might discourage students from making their own outlines, nullifying the third benefit listed above. On the other hand, before I gave outlines, I had several students asking me to review their outlines, and many of them were put together in a manner that didn't make (enough) sense.  My conclusion was that giving out outlines was the lesser of two evils, but based upon student feedback, my choice might not be an evil at all.  I have heard from several students that they are intimidated by the prospect of preparing outlines from scratch in other classes but that they were were able to take what I gave them and make it their own in a way that was helpful and not overly time consuming (Indeed, this is what I tell students that they should do).

 

Fourth, some see law school exams as bar preparation, and obviously the bar exam is closed book. I also see law school exams as bar preparation, but I just don't see law school as the time to require closed book knowledge.  I see law school as laying the groundwork for the bar exam and, ultimately, the practice of law.  With a closed book exam, it seems to me that students spend most of their exam preparation time memorizing.  With an "open everything" exam, it seems to me that students spend most of their exam preparation time working on their outlines and applying those outlines and the law to hypotheticals and practice exams (and many students have told me that they later use those outlines for bar prep).

 

But, of course, as I noted before, I am new to this game and still testing the waters.  What type of tester are you? Closed book? Open book? Partial open book? Open everything?  And how did you arrive at that type of test, and what do you see as its pros and cons?