New ABA Standard 314 requires laws schools to use “formative assessments” a fancy phrase for a simple concept: giving students feedback on how they are progressing in a course. Anyone who has seen the data knows that formative assessment helps student learning. Most schools of higher education have used formative assessments for years. Law teaching is a latecomer to this process.
As an Associate Dean of Academic Affairs, I have the role in our school of helping to promote formative assessment in our classes. I have used formative assessment for several years. However, I wanted to develop a method that was effective but not overly time-consuming. I think that most law professors, if they care about their students, will try out a method if it does not overload them.
I pondered the area of civil procedure that I find consistently less impressive results on final exams than I would expect. The area of removal came to mind. The requirements for removal are spelled out in the removal statutes. Yet the requirements are many—and picky too. If the defendant removing a case does not cross her “t’s” and dot her “I’s,” she faces remand for a seemingly minor omission.
So, here was the exercise. I wrote a letter to the students, as a client from a state other than the one in which they were lawyers. I told the “lawyers” that I was a nonresident and wanted to know whether my case could be taken from state court where it was filed to federal court. I also said that I liked to know each step in the process and so wanted them to explain those steps and all deadlines.
Students received this letter the day we finished removal and had a week to prepare a response letter. I developed a checklist of the removal requirements and had my Teaching Assistant (TA) take a first run through, checking the steps that had been accurately described and putting an X next to those that were not described. The form ended with two categories: “This case is vulnerable to a motion to remand [with a blank after that] and “This case is safe from a motion to remand [again, with a blank line after].”
I then checked the TA’s marks against each letter—a process that took about an hour and a half for almost 70 students. More than half missed something in the removal requirements such that I could mark the box that said the case was vulnerable to remand. The most teling point for most students was my marking the box that showed their case was vulnerable to a remand because they had not read the statute carefully and followed through diligently.
This feedback seemed to help. Many students made appointments to revisit removal and see how they had missed a requirement. The final exam results showed the strongest command of removal I have seen in 13 years of teaching this subject.
I already knew that providing feedback to students helped learning. What I had not established before is that the formative assessment can be done effectively without a great deal of time and effort. Using a TA helped with that, sure. Her work helped me to go more quickly through the letters and spot omissions.
I will now offer this formative assessment as an example for my colleagues. I’ll encourage my colleagues to consider ways in which they can develop similar ways to provide students feedback. The adoption of Standard 314 mandates such teaching, but the truth is law school ought to have been doing this already. Now, I can advocate for providing students feedback and credibly say it does not have to take excessive time. Not wanting to use the “you’d better comply with Standard 314” card, I hope that the example will encourage professors to explore formative assessment. Once they see the benefits, my hope is that the benefits of the process will sell itself. Of course, for the recalcitrant, there’s always the reminder of an ABA site visit.
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Best Practices for Legal Education 
Professor Madison has a great idea here. Students get feedback by engaging in a low burden, practical exercise that also teaches them things they need to know for their final exams, yet the professor’s burden is relatively small. I do feel compelled to add that this approach to formative feedback is one of Professor Madison’s many great ideas for improving legal education.
On using TAs to provide formative assessment without a great burden on the professor, even in a large class, see my article Teaching Assistants, 41 JOURNAL OF LEGAL EDUCATION 269 (1991).
Jay,
Thanks. I’ll review your article and probably circulate to my faculty because I’m satisfied that using TAs efficiently is one of the ways to make the increased use of formative and multiple assessments more palatable to law professors.
Thanks,
Ben
What is especially powerful about your formative assessment is that you chose an assessment that required students to “work on the hard parts,” put the assessment in a real world context, and then followed up to see if the assessment actually improved learning by testing similar skills and knowledge on the final exam. Seeing this concrete evidence of improvement in learning is the best reason for taking the time for gathering the data from our formative assessments. It helps students see their own learning but it helps us as teachers also know that our efforts are fruitful!