Wednesday, November 16, 2005

Studying For and Answering a Policy Question
by Will Troutman ('06)

First, I must naturally disclaim this little diatribe, as any good future lawyer should. Haha…law school jokes…always funny. But seriously, every policy question on every exam is different, so the recommendations I make are broad generalizations that generally should work, but generally should be tweaked per each exam.

In preparing for policy questions, there are three main principles that I would recommend you follow to ensure at least a mean’s worth of success:
1. KNOW THE POLICY
I know that seems obvious and circular, but really, it’s the most important aspect of any policy question. Every subject you study in the first year is informed by certain overarching themes, and therefore, the law's function according to policies that conform to those themes. These themes are seldom consistent, and typically have advocates and opponents, but for the most part, your professors should distill the course material down into 2-3 dominant themes, and therefore, policies.

For example, in torts, the themes and policies tend to be distributive justice, corrective justice, and instrumental justice. In contracts, the themes and policies that inform the various laws tend to be “make whole” and “fairness,” as indicated by the lack of punitive damages in most, if not all, contract disputes.

So how do you figure out the themes and policies? Well, it’s both simple and hard. On the one hand, many professors make it a point to signpost the policy throughout their lectures. If this is the case, you are in good shape. On the other hand, surprisingly enough, the professors are vague, obtuse, and verbose, making decoding policy more difficult than ignoring their various verbal tics and hygiene issues.

In the latter case, a good way to look for policy is to focus on the contradictions in the law. If the decisions of the common law are markedly different than those of the Restatements, or the modern statutory scheme (most relevant next semester, in criminal law), a brief look at the differences between common law, Restatements, and modern statutory schemes employed by various states will usually yield the themes that inform these different laws.

If neither of these suggestions works, or more importantly, you just want to use your time most efficiently, there is a solution. Most of your classes have tons of prior outlines, created by former masochistic students. Go through them and look for the outline made by the sickest, most pain-loving former student. This one likely will have a whole section devoted to policy. Know it. Learn it. Love it. And it’s there, whether on the APALSA, PAD, or JLSA website. As you review that outline, if something doesn’t make sense, grab your Gilbert’s/Emanuel’s/Examples & Explanations and look it up in the index. These study guides all spend significant amounts of time on policy considerations of the body of law.

2. KNOW YOUR PROFESSOR'S POLICY
It’s great to know the policies that permeate a given area of law, but it’s even better not to relegate yourself to a 2.5 because you write an eloquent essay that attacks your professor’s entire body of scholarship. All good professors cover the various themes that inform the policies of their area of law, but they always, through just expertise or hubris, focus on one theme or another more than others. This will be painfully obvious when you take Con Law and your professor unfortunately covers Roe v. Wade in a disdainful tone or refers to every Scaliathomas dissent with mockery. See – I just did it there. I discussed two different issues but made it clear where my preferences lie! Law school jokes…always funny.

So, once you identify your professors’ tendencies, make sure your policy essay embraces those tendencies and discusses how great they are, while mentioning and discrediting the others. Again, these tendencies are clear in lecture, as mentioned above, but also typically are pointed out in the various outlines.

3. KNOW THE "HOT TOPICS" IN THE GIVEN FIELD
Finally, one can almost always predict the policy question with certainty. Without fail, your professors will choose a policy question that relates to a highly debated or unsettled area of law. Anytime the red states and the blue states have diametrically opposed laws, a potential policy question is born. Anytime the Supreme Court is about to hear argument regarding an issue, a policy question relating to it is likely. You get the drift. Most of your professors will spend some time discussing these sorts of unsettled and controversial areas of law that can be viewed in one way or another through different thematic lenses. Again, outlines and study guides are a good source of these sorts of issues. Typically, whole sections may be devoted to such things.

So, there you go, policy in a nutshell. I do have a few more tips for answering these questions:

First, make sure you have a separate policy outline, that, ironically enough, outlines the major policy points on which you need to focus. Then, when you get your question, you can just apply your list, going down it one by one and discussing the issue with regard to each policy position (again, giving extra attention and relevance to your respective professor’s pet project).

Second, look at the past exams of your class and see what kinds of policy questions get asked. Sometimes, the question will be very broad, asking you to compare and contrast to sorts of laws.

For example, a crim law question might ask you to compare and contrast criminal common law and the model penal code and discuss why the differences exist. Conversely, a question might be very narrow, giving you a certain controversy and asking you to discuss possible resolutions given different policies. For example, in torts, it could be a law that imposes a certain penalty (let’s say, strict liability) for a certain behavior, and you will be asked to discuss the merits of such a law and such a penalty, given the behavior. Does it serve the principles of distributive justice? Instrumental? Corrective? And if so, is this a good thing given the purposes of those policies?

And finally, if you find your course, and its policies, are heavily informed by certain authors, do make mention of them in your policy outline and in your answer. It’s always bonus points to write “as Judge Learn-ed Hand would say…” in your essay.

That’s all I got. Good luck. Be efficient and perspicacious and you’ll be fine.


Feel free to contact Will with any questions at: wtroutma@usc.edu
--O

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