Brett Hughes (3L)
For the third consecutive academic year, Professor Catherine Valcke has reused an old fact-pattern exam problem for her first-year Contracts class. Again, the old exam was not equally accessible to all students beforehand.
U of T Law’s Bora Laskin Law Library maintains an online database of past exam problems for students to use as study aids. Unbeknownst to many current students, its physical collection also holds bound copies of exam problems dating back to the 1950s. These hard copy exam problems have been stored at Robarts for the past three years and their existence has not been well publicised—for example, the “Where and How to Find…Past Exams” page on the library website makes no reference to them.
The December 2015 exam problem for Professor Valcke’s first-year Contracts class was the same as the April 2007 joint Catherine Valcke-Stephen Waddams exam problem. The 2007 problem was not posted on the online “Past Exam Database,” but several students in the December 2015 class had access to it either via upper-year students or the bound copies. At least one student also had access to an answer previously prepared by an upper-year student as practice, annotated with class notes from when Professor Valcke took it up in class.
Last academic year, Professor Valcke’s April 2015 Contracts exam problem was the same as April 2014. The April 2014 exam was posted on the Past Exam Database at the beginning of the Fall 2015 semester, and downloaded by some students in the class at that time, but then removed from the database before the exam period started. Some students wrote the April 2015 exam having practiced with the same problem while others had no knowledge of it.
The April 2014 problem—assigned for a small group class—was itself essentially the same as Professor Valcke’s April 2009 problem. Some students in the 2013-2014 small group class had access to the April 2009 problem, but it appears that most were unaware of its existence.
This year, most students—including Ultra Vires and the Students’ Law Society (SLS)—did not learn of the issue until two weeks ago. However, last academic year, students in the Class of 2017 became aware that the exam problem was reused—and that students had unequal access—while the exam period was still underway.
This generated significant controversy and an extensive discussion in the class Facebook group. Then Associate Dean, JD Program Ian Lee responded to student concerns by offering students in Professor Valcke’s Contracts class two options. Students could either (A) have their exam answer graded as is, or (B) write a new four-hour take-home exam during the week after the exam period. These two options were “treated as separate pools for grading purposes.” Take-up of Option B was low, though some students did opt to write the new exam.
Reusing exam problems is not a novel practice at U of T Law and other law schools. At U of T Law, it is well known that Professor Jeffrey MacIntosh regularly reuses a significant number of short-answer questions on his Business Organizations exams, for example. Above the Law, an American legal blog, has reported on the practice at multiple US law schools, particularly NYU Law.
The practice of reusing past exam problems raises several sets of issues, some of which are more pronounced with respect to fact-pattern based questions.
For one, there is a fairness issue where the past exam problems—and answers—are not equally available for all students to use as study aids. Professor Valcke and the U of T Law administration acknowledge this much. In an email apology to the Class of 2017 Contracts class, Professor Valcke wrote: “I take full responsibility for the mishap that resulted in some, but not all, of you gaining prior access to the earlier version of the exam. To ensure the integrity of the assessment process, the administration and I came to the view that something had to be done.”
Similarly, in response to questions this month from Ultra Vires, Associate Dean, JD Program, Kerry Rittich wrote: “It is clear that, at this point, there are lots of past exams in circulation. In the name of equity among students, I am happy to consider ways to facilitate general student knowledge of past exams and where they can be located.”
Beyond the fairness issue, some question the pedagogical value of reusing exam problems. In a letter to Dean Iacobucci and Associate Dean Rittich, the Students’ Law Society (SLS) wrote that “the reuse of exams is not effective pedagogy.” The letter argues that the practice “encourages students to simply memorize past exams” instead of being able to focus on “apply[ing] their legal knowledge to novel fact patterns.” It also notes that “students are subject to stringent policies that govern their performance during exams and the reuse of their essays.”
Associate Dean Rittich wrote that “there is nothing inherently wrong with the reuse of exam questions” and that “[t]here may be good pedagogical reasons for the reuse of questions in some cases.” Some students have suggested that reusing questions may be more appropriate with respect to policy questions than fact-patterns, for example. Additionally, there are some rather narrow settled areas of law that do not allow for great variation in examination methods.
Finally, the practice of reusing exam problems raises concerns from a “consumer” perspective. The SLS letter states that “students view the creation of new exams as a core, and very well remunerated, responsibility of all instructors.” Tuition and fees at U of T Law will be almost $35,000 next year. Professor Valcke’s salary in 2014 was $190,890. Professor MacIntosh’s salary was $224,023.
For its part, the SLS position is that “the administration should adopt a firm policy against the wholesale reuse of past exams.” SLS President Andrew Wang said that the SLS advocated for this approach to former Associate Dean Lee in summer 2015 and has continued to do so this year with Dean Iacobucci and Associate Dean Rittich.
Associate Dean Rittich wrote that “It is not clear that such a rule would be workable or even especially helpful in any event.” Rittich concluded by noting that “the faculty, both individually and as a whole, might well consider how [problems of both administration and equity] affect our practice going forward.” Ultra Vires also reached out to Professor Valcke for comment, but received an out-of-office reply stating that she would be “away, with limited e-mail access, until April 4th.”
One concern related to the workability of a ban on reusing past exam problems is that it might interfere with academic independence and professorial autonomy, especially if the administration sought to review professors’ exam problems in advance. However, the reputational effects and work required to write a new makeup exam problem for affected students may deter professors from reusing exam problems, even if enforcement only occurs ex-post.
Furthermore, the Faculty of Law already imposes limits on professors’ choice of assessment options. For example, the Faculty imposes a maximum cumulative word count on paper assignments according to the number of credits awarded for a class. Even if a professor believes that a 10,000 word paper may be the best way to evaluate students in a two-credit course, this option is not available to them.
Read the full SLS letter here.
