Sunday, September 16, 2012

Negligent Infliction of Emotional Distress: Exams/Grades

This is labeled NIED #15 on my computer, but this is the second NIED column to be rejected (and it may be the shortest--but the notes I have added in this post may make it the longest).  The first was "Batman in Aurora" which became a "Special Comment" on Flying Houses rather than an Op-Ed for the BLS Advocate.  That decision I could understand.  There, I was not writing precisely about law school, but there was only a tangential issue discussing a potential expansion of tort liability (on which I am, unfortunately, not an expert).  As may be clear from this blog I am pretty much incurably obsessed with Batman due to my film project and I mainly wanted to write about Batman*. 

This column, however, is very much about law school, but was rejected because the editorial board of BLS Advocate agreed that the point I was trying to make wasn't clear.  I will let you decide for yourself and comment.  This is unedited.  

The next NIED column for BLS Advocate will be #16.  #15 will not appear on BLS Advocate unless by way of reference.  

NIED #15: Exams/Grades             
By this point probably no one who finds this article does not realize that law school grades are derived almost entirely from an anonymously-graded exam given once at the end of a semester. Perhaps there are a couple readers stumbling upon this piece that do not realize profs may boost your grade up to 1/3 of a letter based on your in-class participation.  Those are the two single-most-acknowledged elements of law school grading – at least for 1Ls. 2Ls, 3Ls (and 4Ls, now, as they have apparently become recognized as a class) have a possible third element: write a paper.  Obviously, if you want to have control over your grade, and there is a paper option for the course (“in lieu of an exam”), write the f***ing paper**. Those courses are few and far between, though, and many are 2 credits.  And Legal Writing, I think most will agree, is not exactly a walk in the park, though the past elements of control are present. 
***Grade school, high school, and college grades were comprised of a mix of quizzes, tests, exams, papers, homework assignments, and class participation. Taking out quizzes, tests, and papers seems like a relief from the student’s perspective, but there are still “homework assignments.” However, while some profs will threaten to lower your grade by 1/3 of a letter, my guess is that this is a rare occurrence that only happens to the student who completely does not give a f***(****), does not read, barely makes it to 50% of classes, gets high in the morning, and feels as if they can magically intuit the rules of the law for the course. Thus, there is a distinct possibility that the majority of students occupy some region in between super-smart-nerd and super-dumb-jock, and that no matter how strong your understanding of the course, no matter how many trenchant comments you make or questions you ask, there is always a risk that your mind will explode when the proctor yells, “BEGIN!” and you hear a hundred booklets being flipped over, and you know the professor has said no cheating, no study aids, this is a closed book exam—but maybe they say “limited open book”—just bring your Code—and they tell you “no writing in your Code” but you know, you know that students are writing in their Code. Or else they have a crib*****.
There is just as much (if not more) cheating going on at law school as there was in grade school, high school, or college. And this time—we’re expected to believe—our grades actually matter. Sometimes profs themselves are just flat-out negligent when writing their exams******. Last year I took an open book exam and I brought in one of my “practice answers” from a previous exam given by the same professor. The same question, verbatim, appeared.  I looked at my answer and thought to myself, “Well, this will be a nice way to make up some time.”
But then doubt seeped in—what if I hadn’t written a great practice answer? Sure, I had reviewed that answer with other students previously, but did I take all of their comments properly into account? Whatever, I needed the time, and it was a decent answer.  I started transcribing from my three-ring binder that held all of my study materials and I looked up at a proctor for a moment. He seemed to be looking right at me—like I was turning my head from page to screen, page to screen, page to screen, in a clear act of cheating. I didn’t want to cause any commotion, so I stopped, thought to myself, “Even if I can’t transcribe this, I know this, and I know it better now than I did then.”
But then again, I am an open book. Most students—I recall—at least those that had their practice answers with them—did just transcribe. Some people in another exam cried or else threw-up; others wrote more in their Codes than (ambiguously) permitted. Most of the time there is no great surprise and everyone seems remarkably sure of themselves and it is in those instances where I know that I just f***ed up*******.
All the mystery, stress, paranoia, cheating, and loneliness of exam-taking should be thrown out of the law school curriculum********.  Unfortunately we live in a world governed by the ABA, and though most people will agree that there could be better alternatives, we’re not permitted to consider them.  Keep teaching Property as a core first year course.  Keep grading anonymous.  Keep exams in the same basic format, even though you could get way more creative and actually test practical skills.  Keep the OCI system in place.  I must admit, it feels mighty good to be this helpless in a system purportedly teaching us to help.

Christopher J. Knorps is a 3L at Brooklyn Law School.  He enjoys studying bankruptcy law. 

*See (a very long piece on the Batman film I will make), (a review of the newest film, qualified immediately below in this note), (the piece referenced), (a review of a famous Batman comic), (a review of a famous Batman graphic novel). As a side note, I saw The Dark Knight Rises again last weekend, and after a second viewing I will fully admit that it is a flawed film, and suffers from an extremely "non-creative" script.  The first half of the film is excellent, but I might go so far as to say the second half of the film is laughable (sample line: 1: So, you came back to die with your city? 2: No, I came back to stop you.  --Should be changed to-- 1: So, you came back to die with your city?  2: No, I just wanted a rematch.).  Regardless, my rankings stand (still feel Dark Knight Rises eclipses Batman Returns) and I still believe everyone should see it.  (Though--other side note--I am very much looking forward to the forthcoming review of License to Kill for The Bond Project....)

Notes below represent edits/comments related to the "unpublishability" of "Exams/Grades."  

**Some might consider this to be an uncouth sentence and the use of the (expurgated) f-bomb to be entirely unprofessional.  However, I use this language to underscore the force of my advice.  I took one class with this option, and while the paper sounded like a huge pain in the butt to juggle with everything else, in retrospect several students told me they wished they wrote the paper.  Not only was it my highest grade, but it was as close to getting the "journal experience" (by which I mean, concentrating the utmost care upon every single word and citation, and organizing one's thoughts and research into a coherent and readable article) as possible for a non-member.  Bottom line: if you have the option, DO NOT take the exam.  You obtain a more robust educational experience, and you will be able to better control your GPA.

***Those past elements of control were present during the earlier stages of our academic upbringings.  

****Language used to underscore the degree to which a student must fail to participate to enable grade-lowering.  I do not like sitting in the back row of law school classrooms because I get distracted by all of the other students being distracted by facebook, news sites, gmail, or, most odious to the poor student, online shopping.  These students may still give a f*** despite their rank indifference to the professor speaking in front of them.  The students that stay up all night doing blow, sleep through class, and attend exactly 40% of classes (or fails to attend because attendance is not actually taken in many classes) and who manage to ace the exam--even they can slip from the professor's memory as being a "poor participant" due to their excellent exam performance.  This is one of the vaguer forms of "cheating" that occurs with surprising regularity.  However, this is an apparent contradiction of my point, and this type of student generally is not going to ace the exam--and if they do, then it is a sign that they must "give a f***" to a certain degree.  Bottom line: students inevitably brag about how little work they do to score incredibly high, and that may cause frustration in the listener if they cannot compete with them.

*****This is an "inside joke"/reference to the most difficult exam I have ever taken (and which I understand, was also considered the most difficult exam any student in that class had ever taken).  If the point here was unclear, it is understandable, but further specificity could be interpreted as slander, which I do my best to avoid in NIED columns.

******I would remove this line if published by BLS Advocate in accordance with the note directly above. I do not believe this professor is negligent--and indeed repeating a question from an earlier exam may not be considered negligence--but rather a gift to the students that made the effort to tackle every practice exam.  However, other professors are certainly negligent in the exams they give students:
They owe us a duty (to foster our understanding of an area of law)
They breach that duty (by testing a concept that they gave short shrift in class)
They cause an injury (to the student's grade because the student could not prepare to answer a question which the professor did not indicate would be tested on the exam)
They cause damages (which are extraordinarily difficult to monetize).
This could be the topic of a long rhetorical essay (and would need to proceed on a case-by-case basis, as some students are just whiners, and some professors will actually spend 5 minutes talking about something, actually put it on the exam, and actually expect students to appropriately focus their efforts on the most time-consuming topics, and quickly note the "5 minute topic") and I will stop here.

*******Language used to underscore the extraordinary sensation of failure and impending sadness caused by such an event.

********This final paragraph could be another major reason for "unpublishability."  Here I come out with guns blazing so my words may be taken poorly.  The point is that "law school reform" is a joke, and there must be real reform if we want to produce an environment where students will be encouraged by their experience and accordingly "be fair" in their practice of law and not discouraged by some of the rank inequalities (potentially causing "ruthless" and/or "morally bankrupt" legal careers) that arise in an "imperfect, though best possible" system.  Bottom line, and basic point to the article: exams are probably the #1 claim students may have against law schools for negligent infliction of emotional distress, and devising a better system where this is no longer the case is definitely possible.  But schools fear the wrath of the ABA.  They fear that "experimental" procedures will reflect poorly on the academic ability of their students.  It's perfectly understandable.  This does not mean however, that people should refrain my imagining alternatives, or writing about their feelings on the matter, even when they concede an important point.  Such passivity allows a totalitarian regime to continue to dominate its subjects and no person who claims to believe that the free exchange of ideas leads to positive societal developments can argue otherwise.

No comments: