Policing Policy

Aug 12 / Joe Regalia
Policy to us lawyers means reasons a decision-maker should decide a certain way that is not based strictly on legal authority like cases and statutes. This includes urging someone to act because of things like fairness or to make the court system more efficient.

Many legal writers fall on two sides of a sweet spot. On one side are lawyers who ignore policy and value arguments, believing them irrelevant or improper. Sometimes, maybe that’s so. But the science leaves no doubt that policy and our readers’ values influence their decisions. So ignoring this stuff is dangerous.

On the other side are legal writers who get that policy matters, but bang their legal readers over the head with it. These attorneys tell their readers all about how their client must win because of this or that policy, and why it would be “wholly” unfair and unjust for the other side to prevail.
Don’t fall into either of these traps. Yes, policy is important. Science tells us that. But obvious policy plays will annoy many lawyers, and especially judges. So choose your policy arguments with care. And deliver them subtly.

Consider three big ideas when it comes to policy.

Start with the law

Usually (unless you know your audience is particularly ok with policy-front arguments), start with the law and make it obvious you are doing so—because that is what all us lawyers and judges want to hear about.

Then support those legal points with more moving policies. And support any policy arguments with citations from cases or other reputable sources, if possible. It will blunt some of the bad reactions. For example:
The Ninth Circuit has already told us the right approach here: dismiss this case and allow the plaintiff to file a new one. And the rule makes sense. Defendants in these sorts of cases are usually small mom and pop companies without any sort of insurer paying for their defense. Requiring them to pay for litigation that will likely be mooted—which will likely put them and their employees out on the street—is not the sensible course.
Notice how much easier the policy hits when it comes woven into the legal points?

Choose your policy arguments wisely

Policy arguments come in various flavors, but one useful way to divide them is into four types. Thinking through these types can help you come up with some good policies (and themes) for your next writing project.

Normative Arguments

Arguments about shared societal values and goals that the law should promote.

Economic Arguments

Arguments that consider the monetary and objective consequences of a rule.

Institutional Competence

Arguments about the proper relationship between the courts and other branches of government.

Judicial Administration

Arguments about the practical effects on how courts will do business in the future.
You may also want to consider that a series of studies shows people value future events more than equivalent events in the past. People in these studies, for example, required more compensation for events that would take place in the future than for identical events that had taken place in the past.

There is also reason to believe that policy and value arguments are on a spectrum—some are more likely to raise a legal reader’s hackles than others.

Objective policy may be the safest—and sometimes even welcome—form of policy or value argument. These include things like:
  • Misunderstanding a rule (i.e. case, statute, etc.)
  • Court efficiency
  • Unintended future consequences
  • Clarity in the law
  • Stare decisis/consistency
  • Reducing costs
  • Procedural fairness
Next on the spectrum, welcome to some legal readers but less so to others, are theoretical legal frameworks. These include things like:
  • Natural law
  • Law and economics
  • formalism
  • Critical legal theory
  • Legal process
  • Fundamental rights
Subjective policy is where policy and values get the diciest. These are arguments like:
  • Fairness in the result
  • Scarcity issues
  • Protecting innocent party
  • Fairness/Cheating
  • Politics and Ideology
  • Authority/Subversion
  • Care/Harm
  • Care/Harm
  • Care/Harm
  • Liberty/Oppression
Finally, consider some other cognitive processes that might be relevant to subtly weaving in some policy (as well as to your theme). Many of these may be working against you, depending on the case. So considering them, and how you may want to counter them, can be powerful stuff.
  • Anchoring. “The tendency to rely too heavily, or ‘anchor,’ on one trait or piece of information when making decisions (usually the first piece of information that we acquire on that subject).”
  • Availability Heuristic. “The tendency to overestimate the likelihood of events with greater ‘availability’  in memory, which can be influenced by how recent the memories are or how unusual or emotionally charged they ma be.”
  • Bandwagon effect. “The tendency to do (or believe) things because many other people do (or believe) the same.”
  • Preference for Confirmation. “The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.”
  • Preference for the Status Quo: “The tendency to like things to stay relatively the same.”
Here is an example of an attorney deftly setting up an objective policy—misconstruing the law and creating unforeseen consequences:
“This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements…”

Pick policies your particular reader will be receptive to

There are some legal readers, including judges, who are more influenced by policy than the law. And they aren’t afraid to admit it. If that’s so, you would be silly to ignore it. Above all, you are writing to persuade others. That means speaking in their language, whatever that is.

So it’s worth taking some time to research your audience. If it’s a judge, read some of their decisions. Pay close attention to long decisions or often-cited ones. Dissents are also a big giveaway. These samples are more likely to reflect the judge’s deeply-held feelings. Use this all to get a sense about whether your reader will be receptive to policy—and how far you can go with it.

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