FREQUENTLY ASKED QUESTIONS ABOUT POLICY ARGUMENTS
| Q. | When should I use policy arguments? |
| A. | Many motions and most briefs contain some form of policy argument — but subtly in most instances. Judges rarely decide cases primarily on policy grounds, but policy concerns may tilt a judge toward your position, especially when you disguise your policy arguments and place them alongside doctrinal, textual, and fact-based arguments. |
| Q. | Isn’t policy something for legislatures to consider, not courts? |
| A. | Judges often need to fill in gaps that unclear statutes and constitutional provisions fail to resolve. Moreover, no judge wants to produce an outcome that is unfair or that has undesirable effects. A well-crafted policy argument focuses on these effects, persuading the judge to look for a way to resolve the legal issue without grave consequences. |
| Q. | How can I make my policy arguments more credible? |
| A. | Let courts or legislatures make your arguments for you. That is, find cases, legislative history, or even statutory preambles that confirm your policy concerns, and then quote or cite these documents. This approach bolsters your credibility and disguises the fact that you’re making a policy argument. |
| Q. | This chapter presented several common policy arguments. What are some others? |
| A. | You may also want to emphasize the need to (1) create good incentives for future conduct (“immunizing drug companies from lawsuits will reduce their incentives to conduct safety testing”), (2) preserve settled expectations (“police departments have invested billions of dollars in surveillance equipment based on this court’s past dicta”), and (3) let another branch of government or agency resolve an issue (e.g., “the agency, unlike courts, has great expertise about how to transport uranium safely”). |
| Q. | How can I argue against policy arguments? |
| A. | There are several ways. The simplest rebuttal is to encourage the court to leave policy considerations to the legislature. Or, better yet, you can show that the legislature expressly rejected the policy claims that your adversary advances. You can also fight policy with policy. For instance, if the other side emphasizes the dangers of letting TSA security guards search children at airports, you can counter that terrorists and smugglers would plant weapons and drugs on kids if TSA never searched them. One final technique involves dismantling the other side’s policy argument, such as by discrediting its citations, providing better or newer sources that rebut its arguments, or by showing that its arguments are based on faulty premises. |
1. Richard Posner, How Judges Think 118-19 (2008) (footnotes omitted).
2. Reply Brief by Appellant Official Comm. of Unsecured Creditors, In re Tousa, Inc., 680 F.3d 1298 (11th Cir. 2012) (No. 11-11071).