Legal Commentary

Probably like the rest of the professor world, I?ve been grading exams for the last few days. Most exams I took in law school were issue spotters (there were a few that were theoretical, asking questions like ?how would you redesign the administrative state,? but I?m not going to focus on those), which generally require students to apply core doctrines to the facts. But this isn?t much like practice, at least in administrative law, which I taught this term.  Core doctrines are not usually the focus of arguments in a case.  In a case about statutory interpretation, for example, the arguments usually don?t focus on what Chevron means or whether it applies; everyone agrees that Chevron applies. Instead, one side argues that they win on Chevron, and the other side argues why they don?t lose under Chevron. These arguments depend on the text of the statute, canons of construction, purpose of the statute, and legislative history --- none of which directly involve Chevron, or even really legal doctrine at all.

So I decided this term to have one of the questions on my administrative law exam focus on these issues. A week before the exam I gave my students legislative histories and dictionary definitions, and then gave an in class exam that required the students to develop arguments based on these materials (which were sufficiently broad not to telegraph the questions). 

The students did well enough, but I noticed a hesitancy to be creative. Students didn?t seem comfortable with making arguments like ?court, you should read this provision to mean X and not Y, because . . . .? Anyway, I was wondering if others had thoughts on the matter.