Legal Commentary

OK, so, call me behind the times, but even with a new semester of classes upon us, I am still reflecting on my recent bout of grading. Last semester, I taught a seminar in which students were expected to write substantial papers, which formed most of the basis for their final grades. As I graded, I found myself struggling with a problem I often think about - how to grade a student who takes a simple, straightforward, doctrinal topic (such a question over which there is a clear circuit split) and executes the paper very well, as compared to the student who takes on a difficult, multifaceted, unwieldy but much more interesting and creative topic, and stumbles (without actually falling).

It is not so hard to work a "degree of difficulty" into exam grading - we can weight certain complex issues more heavily than those that require relatively straightforward answers. We can give points based on the depth of analysis when deeper analysis is called for. But do you, or should you, figure in the complexity of the paper topic when grading a seminar?

The student who takes on the straightforward topic should not necessarily be penalized as a result. In many ways, this is the smart thing to do - it allows the student to show her strengths but stay in her comfort zone. She practices the sort of skills that she might use in practice. She can still write something useful, novel, and nonobvious, to crib from Eugene Volokh's advice to law students. But as an academic, I admire the student who is willing to take the chance on something a little bit "out there," and to reach beyond her bailiwick. Should she get points for doing so, even if she ends up with an ultimately less successful result?