Policy Questions

Now let's talk about the other kind of question you're likely to get asked on a law school exam, which is a policy question. I've already explained what these are, policy questions. They're just more open-ended and ask you to talk about the reasons that we might have a legal rule, what the legal rule should be, what the underlying theories are that inform the legal rules. Basically, something that's different than what is the law. More like how could the law change, why has the law changed, why should the law be different, how should the law be different, that kind of question.

Let's talk about how these are going to be graded. They're not going to be graded in the same rigorous rubric-based, checklist-based approach that an issue spotter is, where someone writes the prompt and knows exactly what they want to see. Exactly what legal issues they're putting in, maybe even exactly how they want them to be answered and so forth, and just looking to see you hit them. The best issue spotters all look identical.

What Is Expected of Policy Questions

That's not true of policy questions. Instead, it just, the best policy answers could all look very, very different on any given exam. When I'm grading them, the things that I look for are quality of writing, organization, the novelty of the ideas, how interesting are they, did they come up with something interesting to say, does it state a thesis, does it answer the question clearly, and then, probably most importantly, does it really engage with the material that we actually read in the class?

If it's a class where we spent every other class session really talking about, say, the philosophical justifications for punishment. Let's say I was a professor who was really heavy on the theories of punishment and then I wrote a policy question and the student spent the entire time talking about other policy issues that weren't about theories of punishment. That one probably just wouldn't score as well because part of what you're doing is not just seeing how good of an essay that person can write in the abstract, but how good of an essay the person can write that it's really tied into the themes of the class.

Put it in other terms, this is really, again, in the same way that an issue spotter is, it's really designed to figure out how well did you understand the actual stuff that we were learning in class? How well did you understand the actual material that I, the professor, was hoping to teach you? But it can do that in a bunch of possible ways. That's how I grade them. Let's figure out how you should approach these.

How to Answer Policy Question

As always, the first step is to read the prompt carefully. Here, the prompt is shorter than the issue-spotter prompt and that's as it often is. Sometimes a policy question could even just be one sentence, "Argue how the law should change with respect to some issue." It's really just a starting point, it gives you a lot of room for flexibility. It says, "Reconsider the dispute in the United States v. Jewell over willful blindness." You should have just read that case so it should be fresh in your mind.

If you were a Southlandia legislator, what rule would you choose for how to handle the willful blindness situation? You could do whatever you want. You could choose the majority's common law approach. You could go with the dissent’s Model Penal Code approach. You could make some other approach. You're supposed to make an argument as to which would be better, and you’re supposed to look at the theories of punishment you studied. Then you can use the fact pattern of part one as an illustrative example to explain why one approach or the other is better.

As I suggested earlier, you might actually want to read this when you first start an exam even if you're going to answer the issue spotter first. Maybe at the back of your mind, you can still be working on it even if you're not consciously thinking about it. We've been asked to come up with a rule of a legislator. We have total freedom to choose a rule. We're not constrained by the law. We're getting to make the law. How should we do this?

Well, I think the first part is we're going to need to pick a thesis. It's going to be really hard to figure out how to write an effective policy answer that doesn't have a thesis because all you're going to be doing is summarizing stuff and you're not going to know where to go. Pick a thesis. We've been given basically infinite opportunities. We could say common law approach is better, dissent’s approach is better, or some other approach of your own design is better.

When I'm writing this, I'm not looking for any particular one of these. You could write an excellent answer picking a common law approach, excellent answer picking the dissent’s Model Penal Code approach, or picking some other approach. That said, you're probably going to be more likely to do something original if you come up with your own approach rather than just picking one or the other of the approaches that you already know. That's not the guaranteed advice to always pick, but to the extent that you can identify a thesis that's interesting or different, that's already right there is going to make your exam stand out a little bit.

Let's talk about structuring the answer. Once you've identified the thesis, it might take you a little bit to think about it, but it's more important that you just pick one at a certain point so that you can start writing, because again, it doesn't matter what you pick, as long as you make a persuasive argument. And then structure. Structure, a lot of the same principles are going to apply with respect to issue spotters except that you can be a little bit more varied with how your paragraphs are structured.

I still want you to have an overarching introduction paragraph that lays out your thesis. I’d still really love you to have a conclusion paragraph that sums everything up, and I'd love your argument to proceed in between those two points by a series of paragraphs that jump off the page with really strong topic sentences. Your paragraphs would be: the most important reason we should adopt this rule. Next paragraph. Another important reason we should adopt this rule. Third paragraph, maybe you address some counterarguments.

Really, look at your paragraphs and imagine if you could figure out the structure of your whole argument just by reading the first sentence of each paragraph. If you can't, maybe you could make your topic sentences a little punchier. Then within paragraphs, we're not following an IRAC issue rule application conclusion format, because we're just doing more open-ended expository writing that doesn't have any one clear structure. The structure of each paragraph is going to depend a little bit on the point that you're making. All I would stress is try to have an agenda for each paragraph, have a sense for how each paragraph is really moving your argument forward.

This is now what we call persuasive writing. You are trying to argue for a particular result. You're trying to argue that something is better. As I said, I don't care which one you pick. I do want you to try to seem like you're really persuading the reader, that your approach is better, so make it as persuasive as possible. To the extent that you can use examples that come from the class, I think that would be really helpful. Here, you have limited material, but really using the facts of Jewell in a way that's helpful.

You could say, “I think this rule is better because look at the facts of Jewell,” because I really want it to come out this way or I really think it should come at it this way, or maybe another fact pattern that you confronted in the class. Are there hypos that came up in class? Again, real examples that help make your argument more persuasive that are also tied to the class rather than stuff you're just completely making up.

Then also try to tie in themes from the class. That's a little bit harder to do with respect to this more artificial exercise, but in a real class, you will have taken twenty, thirty, forty class sessions with your professor and certain themes will have come up. Maybe one theme that's come up a ton is calibrating criminal statutes to moral culpability. If that comes up all the time, stress that. Maybe that comes up a lot. You know why that might come up a lot? It's because your professor thinks it's really important.

If there's other themes that are mentioned in the book, but never come up in class, maybe that's assuming your professor isn't as interested in them, or doesn't think that they're as important for the criminal law or whatever the topic is that you're studying. Keep that stuff in mind and clearly try to flesh those out. That's why, as you're studying and as you're preparing to be able to write a policy question, it's really going to be helpful to you to try to identify the themes.

If you said, “Really, there's three big threads that are tied through this class, theories of punishment, moral culpability, and deterrence are the three things my professor talked about all the time.” If you could write an exam answer on a policy question that hit all of those three key policy points, you're very likely going to do really well because your professor is going to read that and be like, “Oh, gosh, this student really got the themes of the class.”

Whereas if you start talking about a bunch of things that just never came up in class, the impression of the professor is, “Well, this person is smart and a good writer, but just wasn't actually showing up to class and is just trying to BS their way through.” While that is possible, I think, in a lot of undergrad courses, it is harder to do in a law school exam.