Saturday, January 12, 2008

Law School Exam as Literature

As the exam writing, taking and grading season winds to a close, let's take a moment to consider the law school exam as literary genre. Matt Bodie (Hofstra Law) did so here at Prawfsblog. A good law school essay question raises legal issues covered in the course. At the same time, it tells a story that must be both succinct and compelling. Bodie notes, "In a field that blends reason and emotion, the law school exam essay needs to speak to the students' issue-spotting abilities as well as their notions of right and wrong."

Oliver Wendell Holmes said that the purpose of a law school (he was speaking of Harvard Law School in particular) is not simply to teach law. "It is to teach law in the grand manner and to make great lawyers." The craft of the law school exam is part of teaching the law "in the grand manner." It's part of the majestic law school tradition . The quality of the exam as literature is an umistakable reflection of the quality of the professor. It's too bad that law school exams are usually filed away, or worse, shredded -- deleted from the corpus except in the memory of law students.

5 comments:

Joshua said...

I am troubled by the idea that the “quality of the exam as literature is an unmistakable reflection of the quality of the professor.” I agree wholeheartedly that the quality of the EXAM is an unmistakable reflection of the quality of the professor, but I am not sure the literature part is truly part of the equation. My standard of what makes great literature is not a standard I have met (at least not yet) on my exams. I am working on that.

I certainly agree that great literature can make a great exam. However, I don’t agree that a great exam necessitates that the exam be great literature any more than great oral argument requires the speaker to be a great orator. The very best, whether it be in exam or oral argument, will have both a literary (or thespian) quality, but even greatness is relative to effectiveness.

When it comes to the law, give me clarity, soundness of reasoning, and articulate exposition. Greatness can follow. For exam takers, among those with the best content, the highest score will likely go the one who writes the best exam (perhaps the best exam as literature). But all of those with the best content can get an A. And for those who can write, but have nothing relevant (to the exam) to say, well, you may have great literary talent, but you won’t get an A in my class.

Great writing, without the necessary content, always comes up short. I hope the same is true for those of us writing the exam. I am trying to get the content correct first; and I hope to write great exams before I get to great exam literature. I hope the analysis of my abilities as a professor is similar that which I apply to my students: If I get the content right, I can be a great professor and exam writer. In the end, the ranking of me as a professor/exam writer may fall behind others who are better than I am in making their exam/class a better literary/theatrical experience. But I am still working for my A.

Marie T. Reilly said...

Fair enough.

We may be misunderstanding each other as to what makes writing "literature." Exam 'stories' are most effective, as both tests and literature, when they convey stories that bring the law alive.

As a student, and even now as a 'grown up' lawyer, I like to think about how law applies to a story. (Think of the TV show, Law and Order.) If the story is unrealistic, incomplete, wobbly, or inartfully presented-- fun of working through the legal analysis is diminished.

As for literature, there is no inconsistency between great literature and, as you put it, clarity, soundness of reasoning,and articulate exposition.

Josh Fershee said...

As usual, Marie, you make a great point. After reading your post and the string at Prawfsblawg, I realize I was looking at the term “literature” in the sense of “imaginative or creative writing, especially of recognized artistic value.” (Thanks to the American Heritage Dictionary.)

But, after considering your comments, and appreciating your always-careful use of language, I thought I should dig a little deeper. The definition found over at m-w.com (Merriam-Webster) better captures your point: “writings having excellence of form or expression and expressing ideas of permanent or universal interest.” On this latter definition, I couldn’t agree with you more: a great exam IS great literature. Knowing your views on teaching, I suppose I should have known that was your point.

Marie T. Reilly said...

On one of my worst days as a lawyer, with a brief in a very difficult case pressing down hard on me, a wise partner gave me some advice. She said: "Think of yourself as a writer."

Legal writing is writing. Unlike 'creative' writers who get a palette of lovely colors to convey their ideas, we lawyers get 8x11 paper and black and white 12 point letters.

We are artists. In a few sentences, we show a battle raging and who must, in the end, prevail. We describe our clients' dreams and their worst fears. We light the path out of conflict.

There is no writing more creative than the work of a lawyer.

Josh Fershee said...

Absolutely agreed - you can be a creative writer without being a lawyer, but you can't be a good lawyer without being a creative writer.

And thanks for sharing the advice -- I will be putting it to good use myself over the next 24 hours.