ADVERTISEMENTS

Welcome back from AALS (for those who went) and to a new semester. I thought I would begin the semester with a question about exam-writing (because it is never too early to start thinking about that).

The issue-spotting essay is the staple of law-school exams (alone or in conjunection with other testing mechanisms, such as multiple choice). But one thing I have been toying with recently is a move away from made-up hypotheticals and towards essay questions based on real cases. Rather than giving students an elaborate hypo on, say, personal jurisdiction, I would provide a lower-court opinion (prerably one with a  dissent) and have the students write an opinion as the reviewing judge (or a whole reviewing court, if I want to do a group project). This is how I do the oral arguments in my upper-level classes; instead of arguing the case, my civ pro students would write the reveiewing opinion.

The advantage to this, I believe, is that I avoid the problem of having holes in the hypo or of unintentionally creating a hypo that is not sufficiently gray, two-sided, or open-ended. And as for the desire for creative fact patterns, well, truth can be stranger than any fiction I can come up with. Plus, I usually target single issues in my essays ("Decide whether the court has subject matter jurisdiction" or "Decide what law applies"); I tend not to use elaborate factual situations with lots of red herrings for them to dig through. There is less of a sense that I am trying to fool anyone this way.

What I am worried about with this approach is that the lower-court opinion will do all the work for them. Students could simply copy the lower-court's analysis (either from the majority or dissent, depending on how they want to come out) in their essays, without having to put the legal framework and application together themselves. In other words, I want the students to put together and discuss the International Shoe flowchart themselves, not copy it from the lower court's opinion.  Is there a way around this problem? Is this even a problem? Maybe not, since they could just copy the framework from all the cases we read during the semester. And I could take how "original" the organization and writing is in evaluating each essay.

Are there other problems with giving them real cases as the basis for the essay exam? Is there a particular benefit to creating our own hypos for students to work through?

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.