Taming "Tough Law": Pop Quizzes Can Aid the Teaching of Constitutional Law
by
Thomas E. Baker

What the great English legal historian Frederic Maitland said about the common law also can be said about the queen subject in American law schools: Constitutional law is "tough law." It is tough to master – tough to teach and tough to learn.

There are several reasons for this thorough difficulty. Constitutional law is as important as it is controversial, which is understandable when you consider that it comprises all the great issues of American history, down to the present day. The subject is equal parts law, politics, history, and philosophy. The Supreme Court is a fascinating institution that often mystifies students. Beyond the five hundred volumes of U.S. REPORTS, full of contradictory opinions, there is so much academic commentary. Each October Term presents novel issues, and each new nomination and confirmation renders much of Constitutional law indeterminate, so there is a constant sense of uncertainty, anticipation, and discovery in the field. Constitutional analysis–if one thinks more deeply and more broadly than mere doctrine and three-pronged tests–can take on metaphysical, even quasi-religious qualities of immanence and transcendence that are most profound.

Thus, I believe that Constitutional law is the toughest course in the curriculum. So I am always looking for ways to help my students overcome that difficulty and master our subject. One of the ways I have hit on is to give unannounced quizzes.

Consistent with our law school's formal written student policy, I take into account a student's preparation and performance in class for a one-grade, up-or-down adjustment in his or her course grade (actual examples, B+ raised to an A or a D lowered to an F). We have a law school rule that we must announce our intention to implement this policy in our class at the beginning of the semester, to put students on notice of the course requirement. Most professors make this announcement in terrorem but not many actually follow through to adjust final course grades. I am one of those who does adjust the grades, however, and it has become part of my passed-down reputation among our students. After all, tongue-in-cheek, I announce on the first day of classes that mine is the "Honors Section." I base this up-or-down adjustment primarily on unannounced quizzes, which I think are very beneficial. Here is how they work.

At the beginning of the hour, I announce we are having a quiz. The question always is based on that particular day's reading. Sometimes it is the question I left them with at the end of the previous class meeting. I state the brief question and repeat it once. The quiz question is focused and specific; usually the emphasis is on the "Rule" in the "Issue-Rule-Analysis-Conclusion" or "IRAC" logical sequence.

Questions vary from year to year, of course, but here are some illustrative examples from early in the semester:

What does the Constitution say about "judicial review"?

What are "advisory opinions" and what is the Supreme Court's position on them?

Define "property" for purposes of the 5th and 14th amendments.

My students have ten minutes to write an answer. I take the quizzes home and grade them, using the same three categories as the law school's grade adjustment policy ("+" or "0 " or "-"). Often I write comments to explain the point of the quiz and to respond to the individual answer. Sometimes I add a word or two of encouragement, if for example the student took the lead that day in class discussion and helped in our effort to understand the material. My secretary records the grades and I hand back the papers during the next class.

Typically, I will start that day's session with some in-class discussion of the quiz question. Sometimes I will begin the class with some brief comment to reinforce how the previous day's quiz fits into the organization of the course.

Over the semester, I administer between 10 and 15 quizzes. At the end of the semester, I adjust final course grades with a plus or a minus largely based on the quizzes, taking into account attendance and the notes of in-class participation that I make on my seating charts during the term. Usually, the semester adjustments describe a slightly-skewed bell-shape curve with about 20 percent pluses, 10 percent minuses, and 70 percent no adjustments.

I submit that the benefits of unannounced quizzes far outweigh the costs. Really, the only costs are the lost class time, which totals at most only two or three class meetings over the semester, plus my own grading time and effort, which amounts to two or three hours for each quiz.

The benefits for the students are substantial. In effect, this technique allows me to "call on" every student individually to recite on that particular day's reading, which is far more fair than calling on random students in a Socratic lottery, and it avoids some of the stress and pressure of oral recitation. The quizzes also help me to provide my students with personal feedback on individual course topics of some importance.

While I may not be as great a teacher as the legendary Mark Hopkins, each quiz sits me on one end of a log and one of my students on the other end to discuss the assigned topic. More generally, students also benefit from knowing sooner rather than later if what they are doing to learn the material is adequate, far in advance of the winner-take-all final examination, after which it is simply too late to regroup or to seek help. They know, if they rack up a series of minuses, that they should come talk to me, sooner rather than later. And I can review their quizzes to help diagnose their problems and to prescribe what they should do to solve them. The quizzes reward preparation and performance and thus reinforce professional work habits. Indeed, I have the sense that the quizzes have had the salutary by-product of toning up the overall level of class preparation and participation.

I am convinced that this evaluation and teaching technique is valuable and effective. I believe that unannounced quizzes can easily be adapted for any law school course, though I think quizzes make the most sense in first-year courses. Any number of variations suggest themselves. A professor need not record the grades but could implement non-credit quizzes to provide each individual student some personal feedback on an ongoing basis outside the tyranny of grades that plague first-year students. Someone might adapt the quiz system to administer them using the law school's e-mail or Web page technology.

I highly recommend unannounced quizzes, and I would encourage law professors to experiment with them and to report their experiences.