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OER [Open Educational Resources] and Law School Assessments: Of Exams, Memos, Writing, and the Like

An Overview and Explanation

Many years ago and around what only seems like the dawn of time (Internet joke) – roughly 15 years ago – I stopped giving comprehensive final exams to my upper-level (second year and third year) law students.

Instead, I assess those students via short, fully open, short writing assignments. There are three assignments per semester. Students typically are given two weeks to complete each one. Sometimes a little more.

Do you have questions about what I have done, what I do now, and/or advantages and drawbacks to this method? Feel free to contact me directly via email at my account or via Twitter (@profmadison).

Some introductory explanation follows:

As I tell students, each assignment is not intended to be or to substitute for a classic “issue spotter” final exam or research memo. Each assignment is intended to emulate the sort of brief and often vague request that junior lawyers often get from senior lawyers, clients, and even (sometimes) judges. You’ve got an incomplete set of facts, an underspecified range of possible legal and factual concerns to explore, and a severely space-limited work product to prepare. Go!

I practiced law in private law firms for nearly 10 years before becoming a law professor. These sorts of requests were far more common, in my experience, than formal “legal research memos” of the sort that traditional first year legal writing courses prescribe, and far more common than assignments that require exercising an exam-style “issue spotting” or “IRAC” sensibility. Training in traditional, formal legal writing has its place. I don’t propose that my assessment strategy should displace that. Complement it? Yes. Lawyers in training need to practice the arts of (i) disciplined communication, in the context of (ii) engaging in challenging factual exploration and analysis, in tandem with (iii) addressing meaningful client-side or other audience-side expectations.

My style of assessments seems to work well with my style of classroom teaching. Neither style suits every teacher, every student, or every course. I have experimented with short writing assignments (graded, with real weight) in a required first-year course (Contracts), but for the most part I use this approach in elective settings. Students who want to stick to other assessment formats have every opportunity to do that.

At one point, I was asked to write this up in a journal article. I did. So, for an elaborate explanation and justification, read Writing to Learn Law and Writing in Law: An Intellectual Property Illustration , 52 St. Louis Univ. L.J. 823 (2008).

Since that piece was published, I’ve made a number of changes to my basic approach. Most important, I’ve prepared and shared a grading rubric with my students, and I’ve prepared and shared an elaborate “how to succeed” memo with my students. Both undergo tweaking every couple of years. I have updated the sorts of work products that I ask students to prepare. “Memos,” yes, but also email messages and slide decks.

And about five years ago, I opted into teaching exclusively from open, free to access course materials. I’ve written about that strategy elsewhere, briefly.

My first pilot use of this writing assignment format was in the Spring of 2002, in a course titled “Intellectual Property and Electronic Commerce.” (The course itself came and went after that one year.) I went all-in on the format starting in 2005, in my upper level course in Copyright Law. I finally said “so long!” to final exams in 2007, adding writing in Trademark Law to the portfolio. I don’t claim to have invented anything, but I’ve been at this writing stuff (now labelled “formative” assessment, in part because of all the critique and feedback that students receive from me along the way) longer than many teachers of “doctrinal” courses in law schools.

Feedback from students is mixed, but on balance, it’s positive. I work hard to ensure that students know up front exactly what they will get during the course. Feedback from former students – graduates of the law school who took my courses – is almost entirely enthusiastic.

The most recent assignments in each of my courses can be found via the Courses link above. Click on the course title, then click on the Writing Assignments link.