Assigning grades is the least joyful duty of the law professor. In the current climate of legal education, law professors struggle with issues such as increased class size, providing “practice-ready” graduates, streamlining assignments, and accountability in assessment. In an effort to ease the burden of grading written legal analyses, individual professors or law school writing programs or both may develop articulated rubrics to assess students’ written work. Rubrics are classification tools that allow us to articulate our judgment of a written work. Rubrics may be as extensive as twenty categories and subcategories or may be limited to only a few criteria. By definition, rubrics require the development of rigid, standardized criteria that the student must fulfill to earn a certain number of points. Points earned in each section of the rubric are totaled to form the basis for the student’s grade. In assessing legal analyses according to a standardized rubric, however, many subtleties of structure or content and much of the creativity of legal writing is lost or unrewarded or both. Using a rubric to assess legal analytical writing may result in the exact opposite of the intended result: an excellent and creatively written persuasive brief or legal analytical argument may “fail” the rubric and earn a lower overall grade, while a legal analysis that fulfills the exacting criteria of the rubric may earn a top grade despite lacking the intangible aspects of excellent persuasive writing. Good writing does not result when locked into the matrix of a rubric. Rubrics may impair writing and result in bad legal analytical writing. Rubrics replace the authentic, holistic analysis of writing and reasoning with inauthentic pigeonholing that “stamps standardization” onto a creative and analytical, that is, nonstandard, process. A holistic approach to grading and evaluating legal analytical writing, including engaging in authentic conversations about writing, leads to more comprehensible written work product and ultimately better lawyering.
Deborah L. Borman, De-grading Assessment: Rejecting Rubrics in Favor of Authentic Analysis, 41 SEATTLE U. L. REV. 713 (2018).