How to Construct a Policy Argument

Policy arguments make many law students uncomfortable. You may panic when you’re expected to argue policy in an exam answer or legal writing assignment. Why is this, and how can you overcome it? The connection between rules and policy is both the cause of this discomfort and the solution to it.

Law school teaches you to think like a lawyer. One aspect of this process involves identifying legal rules and applying them to novel fact patterns. Law students become comfortable working with rules, even as they realize that the simplest sounding rule can be surprisingly complex and ambiguous when applied. Compared with legal rules, whether statutory or common law, policy arguments seem fuzzy and insubstantial. When asked to argue policy, students are afraid they’re simply making things up. But a good policy argument must have a solid legal basis.

Perhaps you’ve discussed policy arguments in class, or perhaps you’ll be expected to develop your own. Recently I’ve seen a student’s property outline that included a brief policy rationale for the outcome of every case (impressive!) and a practice criminal law exam that asked students to discuss policy arguments for and against a proposed definition of consent in a sexual assault statute. Discussing this exam led me to develop the following approach.

Roadmap for Constructing a Policy Argument

Start with a rule. Every legal rule is animated by an underlying policy. You just have to look for it. Policy is the underground root system; rules are the visible branches. Why is adverse possession ever allowed? Why does the mailbox rule exist? Or joint and several liability? Given any rule, you can determine and analyze policy by asking yourself, why is the rule the way it is? And could it be improved? To answer these questions, do the following:

Consider all stakeholders, even unsympathetic ones. Identify everyone who is affected by the rule, up to and including “society.” Consider their interests and how the rule impacts them. It’s often easy to disregard unsympathetic stakeholders, such as wrongdoers from the individual to institutional level, but their interests must be considered as well.

For example, suppose you’ve been asked to draft or critique a statute that requires physicians to report to authorities injuries they suspect are caused by child abuse. The stakeholders include, but may not be limited to, physicians, children, parents, child caregivers and others who work with children, child abusers (alleged and actual), the legal system, and society. Child abusers are in the category of unsympathetic stakeholders.

Identify stakeholder interests. Here is a quickly brainstormed list of interests; you may think of others.

• Physicians: provide proper treatment; comply with law; protect patient privacy; minimize administrative costs.
• Children: access appropriate medical treatment; be protected from abuse.
• Parents: child safety; avoid false accusations of abuse.
• Caregivers: child safety; maintain employment and credentials; avoid false accusations.
• Alleged abusers: procedural fairness; avoid false accusations.
• Convicted abusers: fair penalties; rehabilitation.
• Legal system: costs; credibility; fairness; justice.
• Society: safety/protection of children; access to medical care; isolating abusers; fairness; justice.

Consider whether – and how — the rule will facilitate or hinder each of these stakeholder interests. Some interests may be in tension with each other. If so, are some interests more compelling than others, such that they should take precedence? The interests of children may be paramount, but a rule grounded firmly in policy will not disregard the interests of alleged abusers.

Identify unintended consequences. Think about how the rule incentivizes people to act. What conduct does the rule encourage or discourage? Here we want to reduce child abuse and punish abusers. But what if the law causes parents not to seek medical care for children due to fear of being accused of child abuse? Or causes doctors to over-report common childhood injuries, leading to a flood of false child abuse allegations? A well-drafted rule incentivizes positive conduct and minimizes negative unintended consequences.

Consider costs. There are tangible costs, like money, and intangible costs, like time and reputational interests. Costs are incurred at all levels: from the individual (e.g., doctor), to the systemic (medical system, legal system), to society at large. For our example, consider the extent to which society must tolerate some false accusations, which incur personal and administrative costs, in exchange for the greater good of protecting children and punishing offenders. Can a rule be drafted that minimizes the former while encouraging the latter?

Embrace big concepts. In our example, big ideas like justice, fairness, and theories of punishment come into play. Other big concerns may include the potential for discriminatory enforcement and excessive government regulation of medical practice. Don’t be afraid to go big! Envision your ideal society and a rule, rooted in policy, that will contribute to it.

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