Follow Up: Policy Arguments in Outlines

In a recent post, I set out an approach to constructing policy arguments. I referred to an outline that included policy arguments; this idea generated interest, so I’ll expand on it here.

Policy questions often appear on final exams. You can be prepared for them by analyzing the policy bases of rules discussed in class and including policy points in your outline. I’ll use property as an example.

Consider the general rule for adverse possession. (The rule you learned may vary somewhat from this formulation.)

To claim land by adverse possession, the claimant must prove the following:

• Open and notorious occupation
• Exclusive occupation, not shared with the true owner or the public
• Hostile to the interests of the true owner
• Continuous and uninterrupted use, consistent with the type of property
• Statutory period (including tacking)

Your outline would include a brief explanation of each of these elements and some factual examples from cases and hypos.

Then add policy notes, which essentially address why we have this rule and whether we should.  It’s helpful to frame this in terms of pros and cons.

Pro:

• Reward improvement/investment in land
• Encourage highest use of land
• Encourage vigilance (incentivize true owner to protect interests, monitor land)
• Reward long-term reliance (statutory period may be 20 years)

Con:

• May be unfair to true owner, esp. absentee owner or owner of large or remote property
• Undermines title recording system
• Cost of enforcement through litigation

Let’s try another.

Rule of capture: A landowner who captures a resource, such as groundwater, oil, or gas, from a well that bottoms in the subsurface of his land, owns the resource, even if it was drained from under another landowner’s adjacent land.

Pro:

• Ease of administration, bright line rule
• Predictability
• Encourages drilling for resources
• Would be burdensome, not cost effective, to expect landowner to assess subterranean sources

Con:

• Seems unfair to adjacent landowners
• Incentivizes overdrilling of a given area if one landowner finds a resource, which may have negative environmental consequences

These policy points assess the interests of stakeholders, the incentives/disincentives of the rules, intended and unintended consequences, and costs.

Think through each rule on your outline in this manner, and be prepared for policy questions on your finals!

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