Monday, April 19, 2010

Policy and the law - the big "huh?"

When I discuss exam writing with students, I have noticed that mentioning the possibility of "policy points" usually elicits some concern.  I often get a glazed stare, a deer-in-the-headlights look, or a furrowed brow in response.  Over the years, I have decided that these responses come from several sources.

What does "policy" mean?  For some students, the responses are based on the peculiar fact that faculty members talk about policy readily without ever actually explaining the term.  As lawyers, we all know what it means, but do not connect with the fact that students (especially 1L's) do not.  Once students realize that "policy" is the purpose behind a law, a light bulb goes on for them. 

They relax once they understand that courts may use policy discussion to reason through (some would say justify) law in new areas or changes to the existing common law.  It will make sense to them that attorneys may argue policy to convince a court to alter the existing law to a small degree.  It suddenly becomes obvious that legislatures may use policy reasons for enacting a law that impacts society in a new way.

Why should I care about it?  Professors often enjoy the discussions of policy that accompany their courses.  If they are "idea" people, they may even get a "buzz" from discoursing on policy implications.  Some courses (or at least topics within courses) are traditionally taught with lots of policy discussion.

Students who are intuitive learners tend to understand innately policy's important place in legal thinking.  They like dealing with concepts, abstractions, and theories.  They see the inter-relationships among various policies and how to use those policies to further their arguments. 

However, students who are sensing learners do not always understand why policy should be important.  These learners are very practical people who hone in on facts and details and direct applications to problems.  They may only pay attention to policy if they see how policy impacts the law.  If a professor merely discusses policy on a very theoretical basis without actual examples of its use, these students may miss the point entirely.  They need more information: How can the plaintiff's or defendant's attorney argue this policy?  Would the parties choose different arguments based on competing policy choices?  How have policy changes actually altered the law over time?

Will my professor care about policy?  It depends.  Some courses are so codified that policy has become relatively unimportant; there may be little or no policy discussed by the professor.  Some professors will relate the historical policy discussions as background, but see them as unimportant for exams.  Some professors will ask pure policy questions on their exams.

I can think of two professors who taught the same topics from the same case book, but had totally different expectations for final exam answers.  One professor expected policy discussion on every question while the other was uninterested in policy discussion unless it was the only argument a party could make.  "Know thy professor" is the best tack to take for determining the potential for policy points on exam answers.

When I get one of the looks of concern, I explore the student's reaction to see if one of these aspects is the reason.  We then discuss further whether or not policy points are an appropriate strategy.  (Amy Jarmon)

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