5.8 – How to Outline Theory/Policy


How to Outline Theory or Policy

One more thing I want to address in talking about outlining is how you might outline what we call theory or policy-type issues that come up in most law school classes. My discussion thus far has really been focused on what we call legal doctrine, talking about cases, talking about the rules laid out in those cases, and how exactly those are going to fit into your outline. That is going to be the bulk of your outline, in part because most law school exams focus on issue-spotter-type questions that are designed to test legal rules.

Many law school exams, as we'll talk about shortly, also test other forms of thinking and other forms of knowledge. One is what we call theory or policy. A law school casebook will include cases, but in the notes, it'll sometimes also include excerpts from philosophers. Your law school professor might just assign a bunch of cases, but then in talking about those cases, might talk about concepts like economic efficiency.

Basically, theory/policy are the reasons why we have particular rules, or ways to think about those legal rules, and ways to evaluate those legal rules that are separate from what the rules are. It could be philosophy, moral reasoning, economic reasoning, critical race theory. A whole bunch of different ways of thinking, maybe history, things like that, a historical perspective, there's a lot of possibilities, and different professors are going to have different focuses.

Your professor might be a legal historian who's really interested in understanding the historical reasons for why the rules changed, or your professor might be a legal economist who's really interested in which rules are going to best promote economic efficiency, and so forth. I just want to tell you to not neglect that stuff when you're outlining, because I think outlining those kinds of issues can actually be very helpful to you, especially if you're faced with what we call a policy question on an exam.

Many law school exams will have, in addition to an issue-spotter-type question that's about application of legal rules, will have a separate question that asks you to engage in some normative, theoretical, or policy-type reasoning. How exactly to outline that material from a course is going to be a little bit tricky. It's not going to be quite as straightforward as outlining doctrinal materials. I still think it's worth trying, and it will serve you well on an exam. I think there's a couple of things you might want to do.

Approaching by Issue

One is, throughout your ordinary doctrinal outline, is you're going issue by issue. If there's any kind of extended discussion of why a particular rule was chosen or wasn't chosen or why a particular rule is good or bad. Let's say you had a debate in class about a particular rule, and whether it was really efficient or not. You might want to just include that as a note in your outline. Rule is X, leading arguments for this rule, and you summarize them in a sentence or two, leading arguments against this rule, and you summarize them in a sentence or two.

Imagine that you were faced with a law school exam question that said you're dealing with a proposal to amend this rule, to go from rule A to rule B. Is this a good argument or not? Is this a good change or not? You'll go back to your outline, you'd say, "Oh, well, looks like in our class, we spent a lot of time talking about the economic benefits and costs of that rule," and so you have something to work with there. Not just that, I also then want you to either do maybe a separate little outline, or a separate section in your main outline, that's just the theory/policy section.

Here, you're going to go through the materials that you read in class. Some law professors use separate readers or separate excerpts of law review articles. A lot of times, it'll just be little excerpts that are here and there. Maybe it's going to be stuff from the beginning of the class. A lot of classes spend more time at the beginning talking about the theory/policy arguments before diving into the doctrine.

At least what you want to be able to do is figure out what were the moving pieces in this class? What were the things that we spent the most time talking about? What are the different kinds of arguments? And so, in a criminal law class, one thing that you talk about a bit at the beginning that's very philosophical are the different kinds of justifications for punishment. There's retributive justifications and utilitarian justifications, and you'll read some excerpts from philosophers like Immanuel Kant and Jeremy Bentham.

Most law school exams are not going to ask you to get deep into the theories and philosophies of Kant and Bentham, but they're going to want you to at least have some familiarity with those arguments. What are the utilitarian justifications for a rule? What are the retributive justifications for a rule? You want to corral all the different kinds of arguments that came up in the class and organize them, put them in your outline so that if you were faced with a new set of policy questions, you might just have everything there.

You might say, "Okay, well, we talked about three different sources of reasoning, and we talked about these kinds of arguments, and these kinds of arguments, and these kinds of arguments. You want to be able to have them at your fingertips. It's like an issue spotter, you're spotting the policy issues, rather than spotting the legal issues.

The other thing I really want to stress here is this is an area where we're really emphasizing class notes is going to be very, very important. Because as I said, different professors have different focuses in terms of what kinds of theory/policy-type issues they find most interesting and think are most important. A lot of professors like to get into some theory/policy analysis that maybe isn't in the book.

They have their own take on a particular legal issue, they might want to just talk about that a bit in class, maybe the book doesn't go as deep into economic reasoning, but the professor is really economically inclined, they're going to talk about that. Really pay attention to that, because it is quite likely that that professor is going to look favorably on an exam that really focuses on the issues that the professor spent the most time talking about.

Give more importance to what has been emphasized in class.

Put in other terms, the best exams are the ones that really indicate the student has been paying attention for the whole semester. The more something gets emphasized, the more it should go into your outline. Depending on how much you got into theory and policy, it could just be a pretty short outline, or it could be a little bit longer. If it's a little bit longer, then what are you going to do? You're going to do this sort of process of distilling that outline into a shorter outline, a checklist, or flowchart, the same way you did for your doctrinal outline. If you do all of this, you go through this process, you're going to be in a very, very good position to study very effectively and to perform at the highest level on your exams.

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