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Legal Commentary

: Prawfs

Not Testing Material From the Last Week of Class or: Do We Need to Make the Reading Period Longer?

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

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I still remember the meltdown of Paper Chase proportions that resulted in another section of my 1L class after they took their Civil Procedure final exam. You see, that Civ Pro final was their first last school exam, and the last topic they covered in a frantic final class was the class action. So, along came the final, and the majority of it was an essay question covering, you guessed it, the class action.

So, in the fall of 2007, I was teaching my first law school class, Civil Procedure I, and the last topic that we covered in the last week of class was the ever-popular Erie doctrine (see, e.g., Howard's recent post on the subject). Shortly thereafter, I gave the final exam, and a (much smaller) part of the exam covered the Erie doctrine. And while students did reasonably well on that part, they didn't do nearly as well as they did on topics we covered throughout the semester: personal jurisdiction, subject matter jurisdiction, notice, venue, etc. Now, part of that may have been that the Erie doctrine is probably the most difficult topic in Civil Procedure I, if not in the entire first year curriculum (okay, you property professors might have me with the rule against perpetuities).

Nonetheless, I thought that a big piece of the puzzle was that I could neither test students on the topic on the midterm nor give them hypotheticals in subsequent classes so that they could sort vertical choice of law from horizontal choice of law. Moreover, because the Erie doctrine came at the very end of the semester, I am sure that students (understandably) had already shifted their focus somewhat from the final reading material to outlining and final exams. Therefore, after I finished grading exams, I made a choice: I would no longer test students on material from the last week of class.

In one regard, this change was not that radical for me because I had already decided never to test the last topic of my Evidence class, privileges, on the final exam because the state of privilege law is so uncertain and inconsistent across the country. Also, when I look at all of the classes I teach, the last week of class for each of them not only introduces discrete topics but also topics that are relatively difficult or at least difficult to test. As noted, there is the Erie doctrine in Civil Procedure I and privileges in Evidence. In the last week of my Civil Procedure II class, I teach collateral estoppel and res judicata, and I will teach entrapment and eyewitness identification in my last two Criminal Procedure I sessions this spring.

Now, there are some cons to my approach. It decreases the amount of testable material on the exam, and it (likely) means that students pay less attention during the last week of classes and don't learn the new material as well. But, from what I have heard from students, knowing that this new material will not be on the exam reduces their stress levels and allows them to get a good head start on putting the pieces of class together before the reading period, allowing them to spend more time during the reading period re-examining that puzzle and applying it to hypotheticals.

That was the plan. As Douglas A. Henderson noted in Uncivil Procedure: Ranking Law Students Among Their Peers, 27 U. Mich. L. Ref. 399 (1994):

Learning theory suggests that reflection on the subject matter-and better yet, periodic assessment combined with reflection-provides essential feedback for the learning process....Typically, however, law students ignore thinking throughout the term, substituting instead a last minute cramming process in the last week of the term. Apparently, law professors did this as students, and hence encourage their students to do the same. [FN82]

[FN82] Evidently this represents the standard view of law professors:

Many law professors believe students learn more during the final week of "cramming" before a final examination than they do in the whole preceding semester. They see the value of final examinations as being an inducement to students to engage in review, in the process of "putting it all together."

Nickles, supra note 4, at 462 n.165. My own law school professors frequently commented, "don't worry if you don't understand it all now, I didn't understand this stuff until the last week of class either."

Now, of course, part of what Henderson is saying is that professors need to give students feedback throughout the semester, which is why I give an ungraded midterm and review hypotheticals at the start of each class. But part of it also seems to be that it it a bad idea for students to not start seeing the big picture until the start of the reading period, which typically is a week or less and "typically [is] scheduled for the convenience of faculty and administrators without, in many cases, any serious consideration of the optimal timing for student assimilation of material in particular courses or any major effort to otherwise structure the best learning environment." R. Lawrence Dessem, Principle 5: Good Practice Emphasizes Time on Task, 49 J. Legal Educ. 430, 434 (1999).

So, what do readers think? Do law schools need to make the reading period longer? Should the last week of class not introduce any new testable material? Should the last week simply consist of the review sessions that professors now usually give during the reading peiod? (In my Evidence class, I already start my review session on the last day of class). Or do you think that your school's reading period is sufficient and/or that the cost of cutting (testable) material from classes is not worth the possible benefits?

Full post as published by Prawfs on April 16, 2009 (boomark / email).