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Legal Commentary

: Prawfs

Citations to Authority on Law School Exams?

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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So after grading about 160 1L criminal law exams this semester, I ended with the usual questions for myself of whether I am testing student preparation and performance effectively. This year I'm wondering about the importance of student citations to authority on a traditional timed doctrinal exam.



I tend to weigh student citations to authority as important on a law school exam--not more important than other components to good analysis, but an important part of it. One compelling reason for me is that in the real world, lawyers are expected to cite to authority on a consistent basis. Also, on a law school exam, student references to authority reveal that they deliberately are avoiding two fairly common law school habits: argument from un-sourced personal opinion, and on-faith repetition of what students' professors, or commercial study aids, have told them. Citations to authority demonstrate that students instead can and will resolve a problem by independently sourcing their analysis in some kind of recognized legal authority. Plus, the practice more consistently leads to other important legal methods, like reasoning by analogy to ... authority!


I try to make this expectation clear during the semester: authority matters. Bluebook isn't judged on the exam--any discernible reference will do. I typically give open-book exams so students won't approach this expectation as a memorization contest. I also may add some extra time to exams.


Nevertheless, I am surprised that some students still don't identify much or any of the available authority for their analysis. A few students have told me that other professors, here and at other schools, don't require citations on exams, except maybe to seminal cases. A handful of professors have confirmed this practice to me, at least for traditional timed doctrinal exams. 


Perhaps I have misjudged the value of student citations to authority in this context. Or maybe I need to communicate this value more clearly during the semester. Should law professors weigh student citations to authority as an important assessment measure? If so, when and how much, and how best to demonstrate the value of it throughout the semester?

Full post as published by Prawfs on June 04, 2010 (boomark / email).

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