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Students often lament that law professors give "hide the ball" exams. In other words, professors give exams where even many students who knew the material well didn't know that an exam question triggered a certain analysis. If you remember back to law school, you can probably remember having or hearing some of these conversations after exams (unless you wisely avoiding discussing exams after taking them). "There was a Fourth Amendment issue on question 1?" "I was supposed to address hearsay and authentication in question 2?" "Question 3 dealt with a shifting executory interest and a springing executory interest?" Most professors say that we do not hide the ball, but of course to a certain extent we do. Unless on my Evidence exam I have Declarant Dan screaming out "That blue car ran the red light!" and ask students, "Was this an excited utterance?" I am hiding the ball to an extent.

And we have to do this to a certain extent as law professors because we have to sort students along the grading curve. Chief Justice Roberts famously proclaimed that "Judges are like umpires." Well, law professors are like pitchers. We can't simply tell students, "I'm about to throw you a fastball." If so, we wouldn't really be testing students' ability to think critically and wouldn't be able to sort Pedro Cerrano from Albert Pujols. Of course, we don't want to hide the ball too much lest every student strike out, but a little bit of pitch disguising can help identify the All Stars.

I think, though, that a more egregious problem is what I call the "hide the ballpark" exam. This is an exam where even students who knew the material (and the issues on the exam) didn't know how to write answers to the exam. "You argued public policy on the exam?" "You argued both sides of the issue?" "You wrote answers in outline form?" "You wrote to argue that this point of law clearly didn't apply?"

I see this as a more egregious problem because (a) it is so easy for professors to avoid, and (b) it makes student grades much more random than the "hide the ball" exam. With regard to the former point, professors merely need to tell students what they want on their exams and what they don't want. You can even take it further. I give an ungraded midterm to students and then give them back individualized answer keys breaking down exactly how I score exams. With regard to the latter point, it at least takes some skill to determine that a nearly inscrutable question triggered an Erie analysis. Conversely, it's completely random which student determines that a professor loathes IRAC unless the professor communicates this fact to the class.

I call such an exam a "hide the ballpark" exam because it would be as if the professor is pitching to a student who doesn't know what ballpark he is in. A student hoping to make law review is given a difficult pitch. Does he try to hit a home run to right field? Yes...if he is at the new Yankee Stadium. No...if he is at Fenway Park. And does it even make sense for the student to swing for the fences at all? Yes...if he is at Coors Field. No...if he is at Petco Park.

 

It is great if law professors give students prior exams for practice. And it is great if law professors write their exams in way that is not completely inscrutable. But none of this matters unless students know how professors want their exams to be written. And from what students tell me, this is something that too many professors fail to do.

 

-Colin Miller