Many judges ascribe to Judge Richard Posner’s observation that lawyers should emphasize the facts that “influence a legislative decision” and “the practical stakes in their cases.”1
In other words, lawyers should explain the policy implications of their legal positions.
Some judges, however, don’t want to acknowledge that they occasionally legislate from the bench. “Policy” is a dirty word in many courts, so lawyers who explicitly discuss policy tend to get rebuked — as we see in this line from a bankruptcy brief: “As a last resort, Appellees invoke ’policy.’”2 The scare quotes around “policy” pander to judges’ disdain for naked policy arguments; even so, the next paragraph of that very brief made, you guessed it, a policy argument. Policy matters. Just be discreet when you rely on it. This chapter explores several examples of policy arguments.