Moving Students from Hearing and Forgetting to Doing and Understanding: A Manual for Assessment in Law School

• Author: Herbert N. Ramy
• Position: Professor of Academic Support and Director of the Suffolk University Law School Academic Support Program; B.A. University of Massachusetts at Amherst; J.D. Suffolk University Law School
• Pages: 837-885

MOVING STUDENTS FROM HEARING AND FORGETTING

TO DOING AND UNDERSTANDING: A MANUAL FOR

ASSESSMENT IN LAW SCHOOL

HERBERT N. RAMY*

I. INTRODUCTION

Philosophers from Confucius,1 to Sophocles,2 to Benjamin Franklin3

have all commented on the need for novices to practice newly acquired

skills to achieve mastery. Although the importance of practice, repetition,

and feedback have seemingly been known for over 2,000 years, current

assessment practices at many law schools fail to meet the educational

needs of law students. Instead of frequent formative assessments that

provide students with the opportunity to gauge their progress as they

acquire new skills, the end-of-the-term summative examination model still

dominates the law school assessment landscape.4 Instead of receiving

timely feedback, students often have to wait weeks before receiving a

grade.5 Instead of individual comments about the strengths and

weaknesses of their work, students often receive exams that contain few if

any corrective comments.6 Not surprisingly, these same assessment

Copyright © 2013, Herbert N. Ramy.

* Professor of Academic Support and Director of the Suffolk University Law School

Academic Support Program; B.A. University of Massachusetts at Amherst; J.D. Suffolk

University Law School. Thank you to Professor Kathleen Elliott Vinson, Professor

Elizabeth Stillman, Professor Philip Kaplan, and Reference Librarian Richard Buckingham

for their helpful comments and suggestions during the writing of this Article.

1 DANIEL WEIS, EVERLASTING WISDOM 52 (2010) (“I hear and I forget. I see and I

remember. I do and I understand.” (quoting Confucius)).

2 Sophocles, Trachiniae, in THE DRAMAS OF SOPHOCLES 174, 191 (Ernest Rhys ed.,

George Young trans., 1916) (“[O]ne must learn [b]y doing the thing; for though you think

you know it [y]ou have no certainty, until you try.”).

3 Karen Burke, A Paradigm Shift: Learning-Styles Implementation and Preservice

Teachers, in PRACTICAL APPROACHES TO USING LEARNING STYLES IN HIGHER EDUCATION

85, 94 (Rita Dunn & Shirley A. Griggs eds., 2000) (“Tell me and I forget; teach me and I

remember; involve me and I learn.” (quoting Benjamin Franklin )).

4 A. Benjamin Spencer, The Law School Critique in Historical Perspective, 69 WASH.

& LEE L. REV. 1949, 2041–42 (2012).

5 Harvey Gilmore, To Failure and Back: How Law Rescued Me from the Depths, 10

FLA. COASTAL L. REV. 567, 579 (2009).

6 Phillip C. Kissam, Law School Examinations, 42 VAND. L. REV. 433, 471–72 (1989).

838 CAPITAL UNIVERSITY LAW REVIEW [41:837

practices make it difficult for teachers to gauge their effectiveness in the

classroom. Without the feedback that more frequent formative

assessments can provide, teachers are left to guess at whether students are

meeting the course goals and learning objectives. As a result, teachers may

move onto more complicated material guided by the dictates of the course

syllabus rather than by the readiness of their students to delve into more

difficult topics.

The American Bar Association (ABA) has indicated that law school

accreditation practices may be changing. In the future, one measure of a

law school’s quality may be based on the learning achieved by its students,

and accreditation standards are likely to move “law schools toward

articulation and assessment of student learning goals and achievement

levels.”7 Therefore, law schools will have to alter their assessment

practices to determine more accurately the extent to which students are

mastering the skills needed to become effective legal practitioners.

In recent years, faculty at many law schools have been engaging in a

healthy dialogue about how to best incorporate established assessment

practices into their classes.8 The purpose of this Article is to add to that

conversation. First, this Article provides background information on the

topic of student assessment.9 Second, the Article addresses the weak

pedagogical underpinnings of the dominant form of assessment in law

schools—the end-of-the-term summative examination.10 Next, the Article

explores how student assessment is only one aspect of an iterative process

that includes the creation of teaching goals, feedback to the students, and

feedback to the teacher.11 Finally, the Article reviews and provides

examples of various assessment techniques appropriate for even large law

school classes.12 To bring about the changes in the classroom that are

required to best serve the needs of students, teachers must become more

7 Donald J. Polden, Statement of Principles of Accreditation and Fundamental Goals of

a Sound Program of Legal Education, 40 SYLLABUS, Spring 2009, at 13,

http://www.americanbar.o rg/content/dam/aba/publi cations/syllabus/2009_vol40 _no3_

syllabus.authcheckdam.pdf.

8 See, e.g., Conference Program, Univ. of Denver Sturm Coll. of Law, Legal Education

at the Crossroads v. 3.0: Conference on Assessment (Sept. 11–13, 2009),

http://www.law.du.edu/documents/assessment-conference/Assessment%20Conference

Program.pdf.

9 See infra Part I.A.

10 Id.

11 See infra Part II.

12 See infra Parts III–V.

2013] ASSESSMENT IN LAW SCHOOL 839

conversant with the language and theory behind student assessment, and A

Manual for Assessment in Law School is intended to begin that process.

This Article is divided into six different sections: the Introduction; the

Lexicon of Assessment; Simplifying the Feedback Process; Teaching

Assistants and Criterion-Referenced Assessment, an Example; Sample

Assessment Tools; and the Conclusion. My hope is that I have created a

useful tool for faculty who are grappling with the problem of how to best

assess their students.

A. Problems with the Single Assessment Model

Not surprisingly, almost every law school guide on the market includes

a section on law school examinations.13 However, it is surprising how

uniformly authors treat the topic. With over 200 ABA-accredited law

schools in existence, variation in assessment practices between law schools

should make this degree of uniformity impossible. In reality,

“[e]xamination practices in law schools are so uniform that one can fairly

generalize when describing them.”14 In most first-year law school courses,

students receive a single assessment at the end of each semester or at the

end of the course.15 Students are given between two and four hours to

complete an examination that, most typically, is constructed as a series of

lengthy hypothetical fact patterns.16 The resolution of these hypotheticals

requires issue spotting and applying memorized rules of law to the fact

patterns.17

Using a single examination to assess students has been the standard

practice in U.S. law schools since the Langdellian model of legal education

took hold over 125 years ago, and it has been criticized for nearly as long

on a number of different grounds.18 A single mode of assessment—for

13 See, e.g., HERBERT N. RAMY, SUCCEEDING IN LAW SCHOOL 195–230 (2d ed. 2010);

DENNIS J. TONSING, 1000 DAYS TO THE BAR BUT THE PRACTICE OF LAW BEGINS NOW 101–

150 (2d ed. 2010).

14 GREGORY S. MUNRO, OUTCOMES ASSESSMENT FOR LAW SCHOOLS 34 (2000).

15 Id.

16 Id. at 34–35.

17 Kissam, supra note 6, at 438–39.

18 See, e.g., Robert C. Downs & Nancy Levit, If It Can’t Be Lake Woebegone . . . A

Nationwide Survey of Law School Gradi ng and Grade Normalization Practices, 65 UMKC

L. REV. 819, 822–23 (1997) (noting that the end-of-the-term essay examination is still the

primary form of student assessment in law school, but it is among the least recommended

by professional educators); Steve Sheppard, An Informal History of How Law Schools

(continued)