Law School Examinations

This Essay explores the values, limits, and adverse effects of our system of law school examinations. Law school examinations encourage or require students to acquire certain knowledge while measuring a kind of knowledge as well. Importantly, this process occurs within a context of political relationships between law schools, law firms, the legal profession, and the state, as well as between law school administrators, faculty, and students. This system of power/knowledge relationships constitutes the law school\u27s basic mechanism of self-regulation or, more generally, a mechanism of social control over legal education. In this era of substantial uncertainty about purposes and methods in legal education, an inquiry into law school examinations and their political contexts is both timely and potentially fruitful. Prior studies have developed important criticisms of law school examinations, but these studies have been partial or limited critiques. These studies have uncritically accepted conventional beliefs about law school practices and have overlooked certain values and disadvantages of the current examination system. This Essay provides a systemic analysis and a total critique by assessing the structure, contextual relationships, values, and adverse effects of law school examinations. This Essay seeks to improve our understanding of law school exams in three basic ways. First, Part II presents a new interpretation of what the modern law school examination requires and measures of student performance. This interpretation emphasizes the reading and grading methods that are used by most contemporary law professors, the implications of these methods for the thought and writing style of examination writers, and the personal attributes that are required for examination success. Second, Parts III, IV, and V consider the law school examination in context in order to assess the values, limits, and disadvantages of the examination system. This analysis focuses initially on relationships of law school exams with student admissions and faculty recruitment policies, with state licensure exams, and with law firm hiring practices. The analysis also considers the apparent disjunctions between classroom and examination work, the reasons for these disjunctions, and how these disjunctions serve the examination system and social interests. This analysis also discusses the several ways that examination practices influence the lives and work of students and faculty. Third, Part VI describes changes to our examination practices that could improve the quality of legal education without jeopardizing the main values of the present system

Thinking (By Writing) About Legal Writing

The practice of law requires a good amount of original writing,and it is a commonplace today that much of this writing is done rather poorly. Charles Fried, the United States Solicitor General,has implied that much legal writing, especially in appellate briefs,is turgid and boring. \u27 John Nowak, a Professor of Law at the University of Illinois, has reiterated Fred Rodell\u27s classic complaint that the writing in law reviews lacks both style and substance. More fundamentally, Steven Stark, in his Harvard Law Review comment, has argued that the style and substance of most legal writing are flawed by lawyers\u27 ideological commitments to ritualized notions of authority and legal formalism. Robert Hyland, responding in the Pennsylvania Law Review, has argued that Stark\u27s view is utopian; Hyland claims that the trouble with current legal writing lies instead with the failure of contemporary lawyers to engage in conceptual thinking. I want to approach legal writing from a different perspective.This perspective focuses on the writing process rather than its products, although what I shall say in this Essay is also relevant to substantive and stylistic concerns. I shall argue that there are two basic dimensions to the writing process: the instrumental and critical dimensions. Instrumental writing is designed to convey independently conceived ideas in a written form. Critical writing,by contrast, involves the writing process itself as an important source of substantive thought. These dimensions certainly overlap in most writing projects, but attention to the separate dimensions may yield some rich insights into the nature of legal writing

Alexis de Tocqueville and American Constitutional Law: On Democracy, the Majority Will, Individual Rights, Federalism, Religion, Civic Associations and Originalist Constitutional Theory

Count Alexis de Tocqueville\u27s Democracy in America has been said to be at once the best book ever written on democracy and the best book ever written on America. This praise should perhaps be tempered by consideration of Tocqueville\u27 s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville\u27s insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville\u27s ideas about democracy, especially his views that decentralization and diffuse government and civic or voluntary associations can create valuable social norms, provide a persuasive and coherent justification for the conservative jurisprudence of the Rehnquist Court. McGinnis argues that the Rehnquist Court\u27s revival of federalism, its expansion of freedom of expression rights for organizations like the Boy Scouts, and its expanded protection for religious expression in the public sphere follow Tocqueville\u27s prescriptions for democracy and have enhanced the spontaneous ordering of society through the promotion of diffuse, localized social norms. McGinnis also argues that the fundamental rights jurisprudence of the modem Supreme Court, particularly the privacy rights doctrine, constitutes the judicial declaration of national norms that are antithetical to Tocquevillian democracy. The purpose of this essay is to explore the relevance of Tocqueville\u27s theory of democracy to contemporary constitutional law. The brilliance of Tocqueville\u27s insights and his position as a detached observer, as a matter of nationality, geography, and time, suggest that Tocqueville\u27s viewpoint on American democracy should constitute a good basis from which to raise theoretical questions and arguments about American constitutional law, as it is and as it should be. Unlike most writing on Tocqueville and the law, this essay emphasizes not only Tocqueville\u27s celebration of American democracy as of the I 830s but also his motives for writing, the contradictions within his work and between his analysis and historical circumstances, and the darker sides of his thought about democratic tendencies. This essay thus contests the recent writing on Tocqueville and constitutional law that lifts his optimistic ideas and concepts about American democracy out of context in order to support a conservative jurisprudence of the kind favored by the Rehnquist Court. This essay in contrast reveals good reasons for questioning, qualifying, and reconstructing Tocquevillian concepts of democratic government if these concepts are to help us develop a useful and attractive constitutional law for the twenty-first century. When viewed in the context of the full text of Democracy in America, the historical circumstances within which Tocqueville worked, and the subsequent changing circumstances in American history, Tocqueville\u27s views on democracy tend to support the basic principles of modem constitutional law and the interpretive methodology that supports them much more than they support the originalist or revisionist versions of constitutional law that are being advanced by members of the Rehnquist Court and scholars like John McGinnis. Upon a full contextual examination, Tocqueville\u27s ideas justify a constitutional law that aims to promote an equality of conditions in American democracy. His ideas justify a robust protection of individual rights against the majority will when legislative majorities act on the basis of mere passion and majority opinion to coerce conformity and to disadvantage persons of difference. His ideas also justify judicial recognition of strong national government powers when national actions, by the legislature, executive, or judiciary, are appropriate to address economic and social problems because Tocqueville\u27s view of the advantages of federalism and decentralization are grounded in the subsidiarity principle-that government should be decentralized to its most effective level-rather than in some notion of fixed constitutional thought that stems from the eighteenth century. Tocqueville also recommended the use of interpretive methods in constitutional law that take account of historical contingencies and changing circumstances-unlike originalist constitutional theory and its purportedly more rigid interpretive method

Health Maintenance Organizations and Federal Law: Toward a Theory of Limited Reformmongering

The purpose of this Article is twofold. First, we develop a theory for HMO legislation based on an assessment of past experience with HMOs, current problems with the delivery of health services, and different legislative theories that have been advanced by others. Secondly, we use this theory to help evaluate some major issues faced by legislators and administrators in regulating HMOs and to suggest a number of improvements. A recurring theme throughout this analysis is that policymakers have not considered fully all of the economic and political ramifications of the HMO phenomenon. This has helped produce theoretical conflict about HMO policy and legislation that is incomplete and often muddled. The first part of this Article summarizes the literature on the empirical performance and theory of HMOs. The second part analyzes legislative theories about HMOs that have been advanced by others and proposes a new one, which borrows from previous theories and to some extent synthesizes them. The third part analyzes federal HMO legislation in the context of this theory, and certain legislative changes are proposed