A Note For Law School Professors That We Regrettably Have To Repeat: There Is Never A Good Remedy To Reusing An Exam Question

Just write a new exam.

Time and time again, law professors fall back on their past exams and time and time again it’s a gigantic headache for everyone involved. Writing exams is definitely a difficult task, but it’s also kind of the primary job of a 1L professor, so there shouldn’t be too much sympathy expended on a professor heading back to the well of past exam composition successes while blasting “Glory Days” in their office and thinking about all the issues they shoved into that spotter a couple of years back.

Well, it’s happened again and while the professor took relatively swift action, some are pointing out that there really is no way to fix an exam mess-up of this magnitude. Now, a Con Law mix-up for the ages [UPDATE: Some people are questioning the tipsters who tagged this as Cornell Law. The Reddit message is from a while ago suggesting this wasn’t referring to this semester. Still, let’s pump the brakes on the specific school until we know more]:

My con law exam was a disaster. The professor recycled the exact same essay question he used last year. After he used it, he gave the rubric/ answer key to the students. Those students, now 2Ls, gave the rubric to certain members of my section. Because the exam is open note, they were able to have the rubric and essentially had the answer key to the exam.

The professor invalidated the question, but this isn’t far enough. Many classmates are concerned these students were able to use their time advantage in other parts of the exam. Ie, they only spent 5 minutes on the essay versus 45 minutes like the rest of us because they had an answer key.

Or, perhaps more accurately, “a Con Law mix-up for the semester” because this stuff happens over and over again. Most of the time, the proposed solution is to throw out the question, but that’s a harsh result for both the students who actually did ace it without the benefit of the rubric and, as the comment above clarifies, it does little to address the fact that some segment of the class was able to breeze through a difficult question in minutes and budget their brain time on other questions.

The only acceptable way to reuse an exam question is to lean into it with full transparency. Tell the class that similar fact patterns aren’t uncommon and tell them that part of being a lawyer is being the sort of tenacious researcher who would dig up a 10-year-old question that might get reused. Once the response is “oh, wait, sorry,” there are no take-backsies.

The school probably should hand out a Pass/Fail on this test and just cut its losses. Yeah, some student probably misses out on an A, but one would hope a student acing one 1L class is also racking up a decent GPA across the other subjects.

Though one commenter on Reddit had a different solution:

Sponsored

Good start, but I think this will necessitate a top tier litigation firm as well. I’d probably call Quinn Emanuel or Boies Schiller and have them start working on a TRO and be prepared to appeal all the way to the SCOTUS if necessary.

TRO to stop the grading. File it at 4 PM today. Hearing first thing tomorrow morning. Need to bring the school to the negotiating table ASAP. I would definitely call Betsy DeVos (maybe even Trump) right away as well, but the political wheels are necessarily going to turn slower than the legal wheels.

I am not a constitutional law scholar, but my recollection is that this matter would NOT qualify for original jurisdiction in the SCOTUS UNLESS the school is a state actor, in which case the SCOTUS would have OJ under the clause that says “In all Cases … in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

But that’s why OP needs to hire top tier counsel. If some random 1L shows up in SCOTUS, s/he will be laughed out of chambers. So I’d have someone like David Boies file a writ of mandamus (if available) because he will be able to take advantage of the so-called “Rocket Docket” and get the matter heard within a few days, IF SCOTUS HAS OJ, that is. If I were currently in law school, I would be writing an amicus brief right now because Boies is gonna need all the help he can get and if the SCOTUS gets buried in 100,000 pages of amicus briefs in support of OP, this thing will be a slam dunk.

Amazingly, at least some folks on the thread didn’t take this as a joke.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Sponsored