by Joshua Kahn

Today, we have our second installment in the Blackacre Times’ “how do I do this whole law school thing” series—how to write an outline. If you haven’t already read the quick and dirty guide for 1Ls, you should probably start there.

Like almost everything in law school, outlining is one of those things that sounds scarier than it really is.  Basically, an outline is just a scaled down version of your notes that 1) only includes the things that actually matter, and 2) puts those things that matter in an order that shows how they relate to each other.  It is NOT a compilation of every word that has ever fallen out of your professor’s mouth bound in a pretty little binder with tabs.

The real value of outlining is that it forces you to recognize what is important and how it’s important.  That’s why you should always write your own outline, that process is some of your best studying.

So how should an outline look?  Well, everyone has their own method that fits the way they think, but I’m going to use a section of my Corporations outline as an example.  Please take a minute to scroll down and look over it.  It’s discussing situations where an individual or corporation can be liable for the dumb things someone working for them does, even without the employer’s permission.  This is only about 1/3^rd of my outline’s agency section, so don’t worry if you don’t understand exactly what it’s talking about.

Ok, finished reading?  Good.  Now I’m going to break down the specific components of the outline.

Easy to Read

First, my outline is formatted to be easy to read.  For some reason I’ll never understand, it’s traditional to write outlines in one font size, without much space between the lines and without a ton of underlining or bold type.  Obviously, I don’t hold by that.  If you want to use your outline on a test, it should be easy to read. I make headings bigger and bold, underline cases, and put citations in parenthesis, etc.

Logical Categories

Next, outlines should be broken down into logical (to you) categories.  A lot of this is optional and more art than science.  I based my contracts outline around the various ways a contract can be formed, for example.  In the example below, I thought that the torts consequences of agency deserved its own section because it’s very easy to spot in a fact pattern.  I could, however, have chosen to include it as a subcategory of the consequences of the formation of an agency relationship and if I had done that, I would have had a completely different organization for the section.

Elements

This is the meat of an outline. Your goal when outlining should be to break anything you possibly can down into clear legal tests with specific elements.  Then, when you see that point on a test, you can just run through those elements.

Take a look at the three numbers listed under “elements” towards the top.  Those are the test to run to see whether an employer is liable for someone else’s actions.  Below, I have a section labeled “notes” with numbers that correspond to each of those elements. You’ll find that most of the content of a law school class boils down to a few main tests, and all the special rules for various exceptions to those main tests. The exceptions are usually exceptions to one of those elements, not all of them, and I put the exceptions into notes corresponding to those elements.

In this case, there are a lot of ways to meet the various elements, so I’ve chosen to organize them under the notes section.  So, to see if you have met element one—an “agency relationship”—you go down to note one and see that you can do that with either “actual authority” or “apparent agency.”

Look more closely at “actual authority” under note 1.  It includes a list of factors that suggest that an employer either has, or does not have, enough control over the employee to create actual authority.  On a test, you’d look at those factors in the fact patter the professor gives to you, and discuss as many as possible.

Citations

Although most professors do not require it, a number like it when you include citations to specific cases or statutes on your final. Don’t try and remember all of that off the top of your head. What I do is include citations to cases and statutes in my outline next to whatever it is those cases show.  For example, under note 1, the sentence “parties cannot disclaim agency” is followed by a citation to the case “Holiday Inns.” That means that the Holiday Inns case shows that parties can’t disclaim agency.  So, when you run into a situation where that applies on the test, just write it down and throw “(see Holiday Inns)” into your answer.  You don’t have to remember the case name, and have all the citations right in front of you to grab quickly.

When to Start Outlining

The traditional answer is about half way through the semester, but that’s not set in stone.  If you can pull it off, you can literally take your notes directly into outline form (don’t try this until your second semester at the earliest).  For your first semester though, you’re better off waiting until you get a feel for how the areas of law you are studying fit together.  Early on, you won’t be able to pick out what’s important and what isn’t.  Later, you can do that much more quickly.  The main thing in 1L is not to wait until the last second to do your outline.

———————-

Agency Tort Liability

Vicarious Liability

-Principals are liable for acts if…

Elements (2^nd Rest. §§ 219(1) & 250))

1. 1.      Agency Relationship (e.g. Master-Servant)
2. 2.      Act was within Scope of Employment

OR          

3.  Independent Contractor doing Inherently Dangerous Activity

Notes:

1.  Agency Relationship (Master Servant vs. Independent Contractor)

Actual Authority

-Established by sufficient Control (2^nd Rest. § 220)

-Parties Cannot Disclaim agency (Case: Holiday Inns)

(Case: Humble control can exist even when contract disclaims, ex of franchise with enough control for master-servant)

(Case: Hoover ex of franchise without enough control for master-servant)

(Case: Holiday Inns ex of franchise without enough control for master-servant)

–Factors showing Control: (Case: Conoco factors for scope discussed )

–NOTE: Control associated with the harm is stronger evidence

-Controls Time of work

-Controls Method of work

-Controls Manner of work

-Works for one boss or many

-Can complete task however they see fit

-1099 or W-2?  (not definitive)

-Who has the right to hire/fire?

-Do they bring own supplies & tools?

Apparent Agency

(Definition Note:  Apparent Agency establishes agency where none would have existed, Apparent Authority expands authority that already exists)

Elements for Apparent Agency liability (2^nd Rest. § 267) (Case: Miller)

1. Principal Held Out party as an Agent
2. Plaintiff relied on that holding out

(Case: Miller ex apparent agency establishing apparent agency over franchisor even without enough control for master-servant)

2.  Act was within Scope of Employment

-Scope of Employment if “Employer Benefits from Action”

(2^nd Rest. § 228) (Case: Bushey)

Test: Conduct Reasonably Related or Reasonably Foreseeable

Intentional Torts (2^nd Rest. § 231 & 228(2))

-Reasonable Related if:

1.  Foreseeable by Master (2^nd Rest. § 228(2)

OR            2.  “Manning” Standard (Case: Manning)

A.  In response to P’s conduct

B.  Which was interfering w/ employees ability to perform duties

3. Facilitated by access the position provides (Case: Conoco)

3.  Independent Contractor doing Inherently Dangerous Activity

Principal is liable if…

1.  “Inherently Dangerous Activities” (e.g. a “nuisance per se”)

(2^nd Rest. of Torts § 416)

(Case: Majestic ex of inherently dangerous activity)

TEST:  Particular risk of substantial harm

in the absence of special precautions

-factual inquiry

-remember: NOT strict liability/ultra-hazardous

-Harm must come from the basic reason the act was dangerous

-Otherwise, Collateral Negligence and employer not liable

2.  Hiring Incompetent Contractor (Case: Majestic)

3.  Principal Retains Control over manner & means of work (Case: Majestic)