7.3 – How Issue Spotters Are Graded
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How Issue Spotters Are Graded

We're going to really dive in to how you can write a really strong essay exam answer. We're going to do that by talking about the two leading types of questions you're going to encounter. I think I've already explained briefly the distinction between these types of questions, issue spotters and policy questions. Just to refresh your memory, an issue-spotter question is a prompt that typically will give the student a fact pattern and then ask the student to identify legal issues that arise from that fact pattern, state legal rules, apply them to the fact pattern, and reach legal conclusions.

(1) Issue spotters answer what the law is, (2) policy questions answer what the law should be

Whereas a policy question is typically something that is more open-ended. It may ask the student to discuss the policy underlying the law, or the theory related to the law. Often a question will be like, "What should the law be?" versus an issue-spotter question is more about trying to identify whether the student knows what the law actually is. We're going to start with issue spotters.

These are going to be the most important types of questions you're going to encounter in law school. Not every professor uses them, but I would say most do and these will be the meat and potatoes, the bread and butter of your law school exam-taking experience. You're going to want to really know how to approach them in order to achieve at the highest level in law school. I'm going to do that by talking a little bit about how an issue-spotter question is graded.

(1) Work backwards to write an effective answer, (2) issue identification, legal principles, argumentation, writing style all carry points

With that understanding, we're going to work backwards and explain how you might write a really effective answer that is going to get as many points as possible. With an issue-spotter question typically, and there's many varieties, some of these are going to flag issues more clearly for you, and you're not actually expected to spot them, but just to state the legal rules. The traditional issue-spotter question is where the professor will write a lengthy fact pattern and say something like, "Please identify the legal issues that arise from this fact pattern."

If it's a torts exam, they'll describe a really complicated car accident where there's three different people involved and various things happen before and after the car accident. Then the student will be asked to identify all the potential issues, who owes duties to whom, who might have a winning case against the other parties, and so forth. When I'm writing an issue-spotter question, I'm often going to start with the issues that I want to hit.

We might cover a lot of issues in a law school class, a lot of different legal rules, but I can't test them all. I'll pick some of them and I'll say, "I really like these issues, we spent more time on this." Various considerations go in. Then I'll write a fact pattern that tries to hit the issues that I've chosen. I'll try to write a fact pattern that tees up both easy, medium, and hard legal issues. The easy issues are going to be ones where you've learned a rule and the rule is pretty clear in terms of how to apply it to this fact pattern, has a very, very clear answer.

For those, what I'm really hoping for is the student is just going to spot the issue, state the rule clearly, and in one sentence, apply it, show me how that leads to a particular answer, and then move on. I'm also going to include some harder ones. There's going to be ones where maybe there's a clear answer, I think, but it requires a little bit more work on the students' part. They have to combine a couple of cases we read to get to that right answer.

Then I'm also going to include maybe the hardest questions which are ones where I actually don't think there's a clear answer at all. The law is just entirely in equipoise, there's an area of just uncharted territory where there isn't a clear answer. Maybe there's two cases and they're both balanced in opposite directions and you could use them to argue both sides.

For those kinds of questions, what I'm looking for is not so much the answer that you reach, but how the student gets there, how well did they understand the law? How well did they understand why this is a hard question? How do they make arguments? Do they rely on analogies to the precedent we read to try to understand why this is a hard question? You really work to reach the answer that they reach.

Then, having done that and developed that, I will then design a rubric that assigns points, and the points will be, you get a certain amount of points for spotting the issue, a certain amount of points for stating the legal rule clearly, more points for applying it, in terms of how well you apply it, and so forth. I'll allocate more points depending on how hard I think the issue is. The ones that require a lot more argument to really develop, those are going to get more points.

Then I'll also assign a certain number of points to things like, how well written is it? How clear is it? How easy is it to read? That's not the bulk of the points, but it can make a little bit of a difference on the margins. Then I'll also leave a few points unallocated for people that maybe spot issues that I wasn't really thinking of, but really do seem actually presented by the fact pattern or at least close calls, and they make me think, "Okay, this is not exactly what I was thinking of, but this person has been thinking about this really clearly and has made a good point and spotted an issue that I didn't see here."

For every exam I'm reading, I read it, I look at it, and I just go through it with my rubric and I mark how well you do and how well that you spot the issues. Then at the end, I just tally up the points. I do that for all the exams. I spend a certain amount of time on each exam. It's a serious time commitment. I do take it very seriously. I really try to make sure I'm grading them fairly. I'm really counting for what people wrote in the exam.

At the end, when I've done everything, and checked my math, and make sure I'm not having any data entry errors, I've got a spreadsheet with all the exam numbers and the amount of points, and then I just run that through the curve algorithm, and that gives me the grades. The thing that's important to note about that is because of the curve, nobody needs to get all the points to get the highest possible grade. You can get an A+ with 50% of the possible points as long as every other person is getting 45% of the possible points or less.

In that famous joke, if you've ever heard of this one, there's two campers, and there's a bear that suddenly starts chasing after them. One of them stops to put on his tennis shoes. The other says, "What are you doing? You're never going to outrun the bear." The first one says, "I don't need to outrun the bear, I just need to outrun you." The point is it's a contest where all that matters is how you perform relative to other people.

For that reason, you shouldn't worry if you walk out of an exam feeling like, "Oh gosh, I must have missed half the issues," because it may have just been a hard exam. Everyone missed half the issues or more than half the issues and you actually did really well. That's how I grade them. Understanding that, we're going to use that, work backwards in that to understand how to write a really effective exam answer.

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