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
 
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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)

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