Closed Book vs Open Book Exams in Law School

From Discourse:

A University of Miami law student asks:

If law school isn’t just about the rules (which I agree it shouldn’t be), then why are there closed book exams at our school? When is a lawyer ever in a situation where they must have a law memorized for that one moment in time (except for oral arguments; but even then they have a legal pad in front of them with cases)? We are taught how to read a case and do research in LRW. More advanced research was taught to me in editing and bluebooking PPL law review assignments. My torts teacher kept things very theoretical in class and on the exam…basically if you had common sense and a very basic knowledge of torts you did well, so long as your writing ability was above the class curve. I am enjoying law school for the most part; but I’m not lying to myself and saying success here equals success in the real world. School and jobs (maybe being a law professor is out of this realm) teach incommensurable subjects.

I thought the issue deserved its own item: As one of the few faculty members at the University of Miami School of Law who insists (over mild Decanal objections to the take-home aspect) on giving open book take home exams for some of my classes (but not all), this is a question near and dear to my heart. After all, I’ve argued that “life is a take home exam” — and I even believe it.

Nevertheless there are some good reasons for closed book in-class exams, and I give those too in some courses. These reasons are strongest in the first year, but to varying degrees they also apply in upper level courses.

Why have closed book in-class exams? Here are a few of the reasons; I’m sure there are others.

  • Some courses — civil procedure and evidence come to mind — have material that you really do need to know by heart in order to understand the cases you read in law school and afterwards, and in order not to make a fool of yourself in many real-life situations many (but never all) of our graduates likely will encounter. (Many faculty would extend this argument to all first year courses. Having taught Con Law 1, I’d certainly think it fits comfortably it in that group.)
  • There are equity issues. Your grade, many faculty believe, shouldn’t depend on happening to have the right book to hand but rather what’s in your head. This is especially important first year, when grades can determine law review membership [I don’t approve of that, but that’s the system here and we can’t ignore it.] Given that we have multiple first-year sections, and different people do better in different type of exam situations, equity also counsels (at least mildly) for all the same type of exam in a given required subject.
  • One function of the exam is to reward you for doing the reading; while I think my open-book exams work that way too, it’s probably easier to craft a closed book exam that has that function. It’s certainly also the case that a certain fraction of the student body will miscalculate and decide they can read less if the exam is open book (“I can always look it up”) — some parentalist faculty may wish to save these people from themselves.
  • The Deans report that cheating issues are more common and often more serious in take home exams (and triply so if they are not fully open book). Closed book in-class exams reduce temptation and are easiest to monitor. For this reason, I personally don’t approve of open-book take-home exams that you take whenever you like: my open-book, severely word length limited, Administrative Law take-home exam lasts eight hours but everyone must take it at the same time.