Policy Arguments Generally, and in Torts Cases in Particular:

I thought I'd blog one more excerpt form my Torts syllabus; parts of it are focused on torts specifically, but I suspect that much the same can be said about policy arguments in most legal fields. As always, I'd love to hear suggestions for improvement, but recall that the goal of this passage is to give students an idea about the role of policy arguments in the law, and about how one can more effectively construct such arguments. The passage is not aimed at defending or criticizing particular tort law rules, or even particular classes of policy arguments.

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Throughout the class you'll be asked to make policy arguments -- arguments about the way the law should be, not just about the way it is. And in fact tort lawyers often make such arguments in court, for several reasons:

1. Tort law is judge-made law, adopted by judges who -- deliberately or unconsciously -- accepted certain arguments about the way it ought to be. And in tort law (as opposed to much of criminal law, evidence law, and civil procedure), the judicial development continues. Courts are generally free to adopt new theories, or even overrule old ones.

2. As you'll see throughout the semester, some states adopt one approach to certain legal questions, others adopt another, and still others haven't yet adopted any. Thus, for instance, different states take different views of the right to stop appropriation of name or likeness. Courts considering the question for the first time in their state need to choose one or another approach. And even courts that have chosen one might be persuaded to choose the other. This choice necessarily involves policy judgment.

3. Even the settled legal rules, as you'll see, often have less settled aspects, on which there might be no precedent in your jurisdiction. There too policy arguments can help courts decide how to resolve the matter.

4. As I noted in the discussion of analogizing and distinguishing cases, whether cases are "similar" or "different" often depends on policy considerations. For instance, for most legal rules I take it we'd say that white cars and black cars are "similar," but white cars and white trucks may be "different." But those aren't judgments of physics; color differences are real differences. Rather, they are judgments that for nearly all the policies that the law cares about, the size of a car might matter (e.g., because its weight damages the road more, or because its height might not fit under bridges, or because its fuel consumption can cause environmental problems) but the color would not.

On the other hand, if there is a difference between white cars and black cars that's relevant to some policy of tort law -- for instance, if white cars were much easier to see at night than black cars and thus were less likely to be involved in accidents -- then we might consider white cars and black cars importantly "different."

So how does one make an effective policy argument? A few thoughts:

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 articles about political officials that make false claims and that hurt the official's reputation as a result. 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 the government. 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.