Most law students know that creating an outline for a law school class is a useful tool.  However, many students aren’t aware of the precise reasons that outlining is useful.  As a result, students create outlines that don’t serve them particularly well.

There are two main purposes for outlining.  An optimal outline helps a student (1) better understand how the material is organized as a coherent whole and (2) better apply the material to new hypothetical situations.  Throughout the semester, you learn the information in isolation. True understanding comes from appreciating how all of the rules and principles fit together, and how the cases illustrate the legal principles that logically flow from one to the next in an organized system.  Outlines are great for ensuring true understanding.

Here are some tips, with examples, for how to optimize your outline.

 

Organize around rules, not cases:

In order for your outline to best help you apply the material, the outline should be focused around rules.  We professors use the case method, centering learning around cases, so law students learn how to derive rules from cases and to cull out the essential facts that are relevant to those rules.  Ultimately, it is the legal principles/rules around which courts structure their legal analysis.

To truly provide a coherent structure, the rules must follow a logical progression separate from the cases.  Thus, the bullet points, and sub points, of your outline should all be rules.  The cases should be used only to highlight how those rules apply in factual scenarios, so that when you are presented with a hypothetical, you can compare cases to cases — after you have articulated the relevant rule in the right order/phase in the analysis.

Cull out only the essential facts from cases:

Long descriptions of cases make outlines too long, and defeat the purpose of forcing students to discern what is necessary in a case.  Your job, as a law student, is to understand how to use the facts in cases to analogize to future cases when applying the relevant rules.  Every detail in a case is important to understanding that case, which is why you must read the case carefully.  But once you understand a case, you should figure out which details are essential to the holding and will be needed for future application of the case.  Those facts, which illuminate the holding, are the only ones that should be used in an outline.  Everything else distracts from the main purposes of the outline- understanding and applying rules – and unnecessarily disrupts the logical flow of the outline.

As an example, take the famous case of United States v. Carroll Towing, where Judge Learned Hand articulated his B < PL formula.  Here is how I would use this case:

B.Breach

1.Breach occurs when the defendant falls below the standard of care of a reasonable person under the circumstances.

• This standard may be met where the burden of preventing harm is less than the magnitude of the harm times the probability of the harm occurring.
  • See Carroll Towing (Appeals court held that having no bargee on a boat for a period of 21 hours fell below the standard of care and thus constituted contributory negligence, because the odds of a boat becoming unmoored during that time multiplied by the harm from an unmooring were more significant than the cost of adding a bargee).

 

To get the most from cases, distill out which facts really matter.  Then articulate those facts in a sentence stating the case’s holding.  You have now incorporated the facts into the rule in a way that allows you to understand how facts and rule interact.  The name of the barge – the Anna C. – does not matter to the holding, but the 21 hours may matter for calculating the Learned Hand formula.  By following this method, when you have a hypothetical that turns on breach, you’ll know which analogous facts should matter to that case.

Do not organize your outline based entirely on the way the cases are ordered in your case book: 

One common mistake students make is to rely too heavily on the way the cases are organized in their book to form the organization for their outline.   The order in which you are taught cases reflects the easiest and most logical order for learning material.  However, the outline should reflect the logical order for applying material, once you have already learned that material.  When you take an exam, you should apply the material in the order the rules logically progress, not the way your book lists them.  Another common mistake students make is to order an exam question around the chronological order of the exam hypothetical.  Your outline should track the logical order a court would use  – the logical progression of rules, without regard to order in the case book or exact chronology of events.

As examples, students in my Torts class learn breach before duty, because it is hard to understand duty without understanding breach.  However, duty is the first element a court will apply, because if there is no duty, a case is dismissed as a matter of law before a jury determines breach.  Thus, your outline should have duty as the first element.  In my Criminal Procedure class, students learn the content of the Fourth Amendment before learning standing, which would be impossible to learn first, in isolation.  However, once all of the material has been learned, standing is one of the first things that should be considered when analyzing whether a particular defendant can suppress evidence at trial.

These pointers often do not click in without examples.  So here is an example for what NOT to do in an outline.

Torts:

1. Duty
   1. Case
      1. Long description of case
      2. Holding
      3. Rule
   2. Next case
      1. Long description of case
      2. Holding
      3. Rule

This structure is very common but not helpful.  When analyzing the duty question, courts do not just throw cases around and see if they work for the particular scenario.  A case by case progression does not lend insight into the structure of the law.  Instead, courts apply the logical progression of the rule.  Your outline should track a court’s analysis so you can easily apply the organization of the outline to a new hypothetical scenario.

Here is an example of what an outline SHOULD look like:

A. Duty:

1. Malfeasance – There is a general duty avoid causing physical harm to others through one’s actions.
   1. Exceptions – no duty as a matter of policy
   2. Social host liability – rule, split of authority
      1. See, e.g. case (short description of essential facts of the case)
   3. No duty to avoid crushing liability – state rule
      1. See Strauss v. Belle Realty – with short description of case)
2. Nonfeasance – There is no general duty to avoid harm through inaction and thus no general affirmative duty to act.
   1.  Exceptions
      1. Certain types of special relationships are sufficient to create affirmative duties.
         1. Case and short parenthetical description of holding with facts
      2. An affirmative duty can be created through an affirmative undertaking or promise
         1. Case and short parenthetical description

 

In this example, the outline is structured around the logical progression of rules.  The duty question comes first, with courts analyzing a case as either malfeasance or nonfeasance.  Once that question is decided, courts apply the relevant rule (general duty of care for malfeasance, for example) unless a relevant exception to the general rule applies.  This outline allows the student to track the order of the court’s analysis, use the cases to illustrate the rules, and make sure to analyze each relevant legal issue.  If an exam presents a nonfeasance case, the exam answer should first explain why this is not a malfeasance case, then apply the no-duty rule for nonfeasance, except if an exception like special relationship applies.

Hope this helps!