Open or Closed?

Thursday 19 July 2012

At the end of June, Cambridge was filled with young law graduates, celebrating the end of three years filled with long reading lists, late nights and Westlaw.  They will join thousands of others across the country moving into the ‘real world’, competing for a job in one of the most difficult graduate markets in recent times.  Without a doubt, they have worked incredibly hard.  My question is, does cramming for a single end of year exam effectively test the abilities of budding lawyers?   And if not, do we need to make significant changes to the way we examine law students in order to prevent the graduate legal market being flooded?

Currently, the vast majority of undergraduate law degrees are assessed in the same way school qualifications are – an exam on each subject at the end of a year of studying.  For some this means a continuous year of learning and consolidating.  For others it is an excuse to spend the year having fun and the last month cramming, fuelled by caffeine drinks and Pro Plus.  But regardless of your approach throughout the year, ultimately it comes down to showing the examiners a year’s worth of content within the space of a couple of hours in a coherent way.  Add in the pressure of time and the future repercussions bearing down on already-stretched brains, and you create a highly stressful and artificial environment.  

I’m not convinced that this traditional style of exam is appropriate to assess prospective lawyers, nor to truly differentiate between exceptional and average students.  It allows for high marks to be awarded to those displaying excellent recall but little independent thought.  Of course those that get the highest marks, the truly intelligent group right at the top, will continue to do so regardless of the exam format.  For those with original thoughts but without a Derren Brown memory, this format does not allow them to achieve impressive grades.  Some may argue this is the way it must be – some must do worse than others, there must be some way to distinguish the best from the rest, and as such those who cannot remember as clearly the basic facts must be penalised.  

Is this a good thing?  Perhaps in other disciplines you should reward the power of pure recall – you would like to think that doctors have a strong mental catalogue of potential answers to your list of symptoms.  In law, however, creative and intelligent solutions should be promoted and rewarded.  Memory is crucial, but not to the detriment of original thought, and this holds true at every stage of a career in the law.  This is why law schools should consider open book exams.

Your initial reaction may be that changing the format that works, the format that has assessed generations of lawyers, is just a way of making exams easier for students like me.  Initially, open book exams seem to be handing students the answers on a plate, and as such exacerbating the overpopulation of qualified lawyers emerging into the world.  On the contrary, open book exams are significantly harder than the orthodox exam format.  With the basic concepts in front of you, students have to think more and cram less.  Everyone starts on a level playing field, with exactly the same texts, meaning there is less emphasis on basic recall of case names and greater emphasis on intelligent thought, novel connections and interesting answers.

LL.M courses much more commonly examine their students by open book exams, suggesting there is some correlation between more complex thought processes and ideas, and a move away from recall-based exams.  And in the working world, it is incredibly rare that an alert memo or journal article would be written without reference to textbooks, case notes or other resources – what is important is the ideas and conclusions reached, not the base facts.  

That’s not to say that a great memory is not a great asset- of course it is, not just in academia and legal practice but in other areas of life – sending birthday cards to elderly relatives, no late fees for library books and so on.  And those with excellent memories would still shine in open-book exams – they would remember previous essay plans, interesting case law and obscure articles that, even with the information available, those more recollectively-challenged students might simply forget about.  But the current system does seem to disproportionately reward those who are blessed with great recall, and I just don’t know how accurate a representation it is of actual academic excellence, nor of potential to succeed within the law.  This leads to the current situation – lots of bright individuals with the same qualifications, and no real way to differentiate between them as they all managed to cram for these exams.  

I think it is important to remember that an undergraduate law degree is not simply a means to an ends – it is not supposed to only teach students what they will need in the world of practice, as this is the aim of the LPC and professional training.  It is 3 years of intense academic study, teaching students how to think logically and persuasively, how to see connections and how to argue intelligently in support of an original conclusion.  These are skills that are best developed and best rewarded through an open book exam format.   In no way am I suggesting that law students should not have to learn the basic concepts in their subjects.  But this basic knowledge can be developed and tested more effectively if we move away from memory tests and towards a real test of legal ability.

So I propose that if we want our future lawyers to become good writers and intelligent thinkers, not just encyclopaedias of case law, we need to move away from the current system and stop being so close-minded about open-book exams.

Megan Young. 

Megan Young is a third year law student at Pembroke College, Cambridge, solicitor-to-be and intern with the Texas Defender Service.