Legal Policy Arguments (Post 1 of 2) — Tying Abstract Arguments to Concrete Ones

I thought I’d post again some thoughts that I had about making effective policy arguments, in law school, in legal articles, and in briefs. I include this in the readings for my first-semester Torts students, and I thought other law students might find them helpful, too. Some of these points are obvious, but I’ve often noticed how even the obvious can be overlooked. I’ll post two more items on this soon.

1. The best policy arguments are generally ones that go beyond the abstract, and tie the abstract arguments to concrete realities of how people act (and how the law operates). Say, for instance, that you are arguing about when newspapers should be held liable for publishing false claims about political officials that hurt the official’s reputation. You could argue that “people should be liable for the harm they cause,” or “the freedom of the press means that the press can’t be held liable for criticizing the government.” And it’s possible that these high-level abstractions will persuade some of your listeners.

But others will be skeptical about each of these generalities. Often we don’t hold people liable for certain kinds of harm that they cause. And sometimes we do hold the press liable for its statements, even if the statements criticize government officials. It’s certainly not obvious that the freedom of the press should include complete immunity from all liability. As Justice Holmes put it, “General propositions do not decide concrete cases.”

So to make the arguments more persuasive, you need to marry the generalities with more concrete observations about your particular problem. For instance, you might point out that a publisher faced with the risk of liability may decline to publish even true statements, if it’s not sure the statements are true, or if it thinks a jury might wrongly conclude that they’re false. Imposing liability for false and defamatory statements will thus deter socially valuable true statements, and not just the harmful and socially valueless false statements.

Or you might point out that false statements about officials not only hurt the officials, but also mislead voters, and deter some people from running for office. They might even especially deter those people who we most want to serve in office: those who cherish their reputation for honesty and integrity, and who are most likely to be turned off from public life if defamatory falsehoods repeatedly go unpunished.

You might also point out that false statements are routinely punished in other contexts, such as perjury, commercial fraud, and the like. If we trust courts to accurately decide whether testimony under oath (including testimony about a political official) was a lie, even when a person’s liberty is at stake — as in a perjury prosecution — why shouldn’t we trust them equally when all that is at stake is a newspaper’s money?

Naturally, there are counterarguments to these concrete arguments as well as to the abstract ones. If you want a field in which an argument, once correctly made, will persuade all reasonable observers, there are doubtless spots open in Mathematics Ph.D. programs (and I say this as someone whose first great love was mathematics). But the arguments that combine the concrete and the abstract are more likely to persuade than the abstract arguments alone.

2. When it comes to concrete claims about possible consequences, the best policy arguments consider indirect consequences as well as direct ones: They look beyond how a decision will affect the parties to the case (e.g., causing one party to become poorer and the other richer), and whether it will encourage potential defendants to comply with the legal rule in the future. They also ask how people will react in more complex ways to the risk of liability, what conduct they will substitute for the liability-producing conduct.

Say, for instance, that the question is whether people should be held liable for failing to call 911 when they hear someone being attacked. One should certainly ask whether it’s fair to impose such liability on a particular defendant, and whether such liability will encourage people to call 911 in the future.

But one should also ask about other effects. Say, for instance, that you witness a crime but fail to report it right away; and say that you are then approached by the police who are going door to door looking for witnesses who might help with the investigation. Would the prospect of liability for the initial failure to report discourage you from cooperating with the police? After all, the safest bet for you, once you’ve failed to call 911 when you needed to, is to clam up and pretend that you didn’t witness the crime in the first place.

Likewise, say that the question is whether employers should be held liable for hiring employees with records of criminal violence, if the employee then violently attacks a customer of the employer. Such liability will encourage employers to hire employees who are on balance less likely to attack customers.

But this liability may make it even harder for ex-convicts to find a job after they’re released from prison. This lack of a job might increase the risk that the convict will turn back to crime, and might thus increase the overall rate of violent crime.

Despite this, liability in such situations might still be a good idea. But to figure out if it’s a good idea — and, more importantly for lawyers, to figure out the best arguments against it (the defense lawyer’s job), or anticipate the arguments against it in order to rebut them (the plaintiff’s lawyer’s job) — you need to think about the full range of consequences.