How to Outline
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Exams are nearly here and students are (hopefully) well underway studying. Most have surely heard by now that the traditional way to study is to create an outline and complete practice tests. Practice tests are essential, but there’s not much to write about them. You either do them or you don’t. And of course, part of a student’s performance on exam day comes down to chance. Outlines, however, are not only key to law school pedagogy but also well within a student’s control. Yet they’re not explained well.
There are, in my view, basically two ways to construct an outline. The first is to focus on cases. The outline is structured as a list of the cases covered in class with lengthy details on each one, a bit like the case briefs that students are taught at the beginning of 1L. Policy issues, historical background, and other commentary from the lecture is added haphazardly. Then on the exam, the student focuses on pattern-matching the factual details in an issue spotter to the most factually similar case in the outline so as to reproduce the holding in his or her answer.
This approach comes naturally for several reasons. For one, it’s similar to some undergraduate exams which may reward rote learning. It’s also quite like how one would prepare for a class. Professors typically cold call on cases and often ask about factual or procedural details. Finally, there’s simply a lot of information thrown at students throughout the semester. A natural reaction is to put as much of it into the outline as possible, just in case it turns out to be relevant on the exam.
In fairness, this approach can be helpful insofar as, if you already have a firm understanding of the legal doctrine, being able to distinguish cases based on precise factual details can add the last few points in an exam answer. But it has severe downsides. It’s very time- and labor-intensive to produce. It assumes that the issue spotters will closely match the facts of the cases over the semester. Conversely, it leaves students vulnerable to issue spotters that superficially resemble cases from class but with outcome-determinative facts subtly changed—which many professors enjoy writing. These outlines are also not easy to read or manipulate on the exam.
From Langdell’s[1] time to today, the goal of law school has been to teach students how to read a number of cases, independently sift the underlying doctrine from the extraneous details, and apply the legal rules and standards to new fact patterns, without simply being told the law by some authority. That’s why professors use hypos and why casebooks are not written like hornbooks. It’s also why outlining is so important. Producing the outline is how students move from the case discussion that’s important in the semester to the understanding of doctrine that matters on the exam.
Thus, the better way to structure an exam is to focus on the underlying doctrine. That is, the outline should be structured primarily in terms of the elements of each cause of action and defense, which is another way of saying in terms of what you will need to write for each issue on the exam. Cases (or other sources of authority), policy considerations, and the like should be subservient to these points of law. There are typically one or two takeaways that any given case stands for, and these are what should be emphasized. Although the way the professor organizes the course often indicates the conceptual structure of the material to a significant extent, don’t be afraid to rearrange materials somewhat if it makes the doctrine clearer. A sign of a good outline is when discussion of cases is mixed naturally into the issues; a red flag is when the outline looks like one case listed mechanically after the other.
There is, to be clear, some variation depending on the course and professor. One reason practice exams are so important is to help make this judgment call. If you know that there will be a policy question, you will obviously want to include some of the important policy issues that motivate that area of law (although, frankly, these are typically the less demanding questions on the exam). Some professors do expect you to analogize and distinguish cases from the class, which requires somewhat more summary of the cases on the outline. Still, the outline should be readable and should discuss facts at the appropriate level of generality. Civil procedure often needs only a sentence or two per case, constitutional law maybe a concise paragraph.
If you follow this approach well, you won’t be caught off guard by unexpected fact patterns. The facts may be new, but the law to apply is the same.
[1] Christopher Langdell (b. 1826, Dean of Harvard Law from 1870 to 1895) invented the casebook method.
