4.5 – Legal Rules Versus Policy


Legal Rules versus Policy Arguments

Let's talk about another distinction that's going to come up when you're reading cases, the distinction between legal rules and policy arguments. You're going to encounter this a lot in your law school classes. When you're learning the law, you're going to spend some amount of time just figuring out, what are the rules? What happens when there's no consideration for a contract? You're going to also spend a fair amount of time in class, more or less, depending on the professor, talking about what the rules should be.

When you're having that kind of discussion, you're going to rely on a lot of different kinds of arguments. Maybe they're arguments about fairness, justice, right and wrong, moral intuitions, economic efficiency, just really any number of things. A lot of law students find this confusing. They say, "I'm here to learn the rules. Why are we here spending all this time talking about policy or philosophy or deterrence? I just want to know what the law is.

Important to undertand policy discussions surrounding legal arguments

I can understand why people have that reaction initially. I think it's really important for you to understand that actually, being able to navigate and understand these kinds of policy discussions is really, really critical to being able to understand the cases that you're reading and being able to make legal arguments going forward. We talked in a past lesson about the distinction between clear rules and gray areas. A lot of the time, you're going to spend time dealing with the gray areas of the law. Cases where the rules run out, or they're really at the border of a rule. Which side of the line are we on?

How do you think courts deal with that? One thing that you're going to see over and over when reading cases, and especially when you're reading cases that have dissents, let's say there's a case where there's majority opinion and there's the dissent and they're really arguing about what the rule should be, they're going to use different kinds of arguments.

Some of those arguments are going to be more traditional, legal arguments about, "Here's what the statute said. Here's what our precedent says," but a lot of those arguments are going to look more like policy. They're going to say, "It isn't fair to have this rule versus this other rule. It doesn't accord with our principles of justice. It creates bad incentives. It will lead to economic efficiency," and things like that. You need to be able to play with those arguments and understand how those kinds of policy arguments inform legal rules, actually to be able to make arguments when you're in the gray areas.

Imagine that you're on an exam and you're faced with an issue spotter that has a bunch of issues, and half of them you find really straightforward. You just know how to apply the rule and you apply it and you move on. That's going to be very straightforward, but then you're going to deal with some issues that are harder. I often, when I'm writing an exam, I try to write some issues into the fact pattern that really are right on the border. Maybe they're even exactly 50-50, and there's no right answer.

Policy arguments are essential to ascertain what law should be

In those situations, what I'm really expecting students to do is being able to make the best argument that they can for what the rule really should be. We have a rule, it's not really clear, and so, in that situation, a court is really being asked to kind of redefine the rule a bit, sharpen the rule, figure out, how does the rule apply to this fact pattern? You're really legislating a little bit more, making that rule a little bit more precise. There are all these kinds of arguments. What I call the kind of policy arguments are going to come into play, and you need to be able to play in that sandbox. You need to be able to use those tools if you want to be able to make an effective legal argument in that situation.

For that reason, I think it's really important to resist this impulse that law students have, which is, "Oh, I just want to learn the rules. I don't want to learn any of the kind of policy arguments underlying the rules." That's just not a good instinct, because you can't actually understand the rules and how they're going to apply in future cases if you don't understand, why do we have the rules that we have? Why did a court think this was the right rule? If you don't understand that, you're not going to know how that rule might apply to a new fact pattern tomorrow, and you won't be able to make really lawyerly arguments.

Policy, dissents are not extras but related to understanding rules

Likewise, don't assume you just need to understand the majority opinion. If there's a dissent that's assigned in a case, the dissent is there for a reason. Maybe that dissent really lays out an argument that really shows you the limits of a rule or raises hard questions about the purposes behind a rule and so forth. Don't think of these things as just extras that your professors are talking about for fun. They're actually very, very intimately related to actually understanding the law and understanding the rules themselves. You need to be able to understand how these kind of policy arguments interact with the rules themselves.

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