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.
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.
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 in-court perjury, commercial fraud, and the like. If we trust courts to accurately decide whether an in-court statement (including one 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 ones that are more likely to persuade than the abstract arguments alone would be.
2. 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.
Now 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.
3. The best policy arguments generally combine moral and practical arguments.... [P]eople often debate whether the law should be aimed at efficiency or at justice. But whatever you think is the right answer, your audience (for instance, a multi-member court) will often have mixed views. Some might think the law should be aimed chiefly at one, some at the other, and some (perhaps most) will care about both. So try to reach both, by arguing that your proposal is better along both dimensions.
Also keep in mind that economic arguments are not an antonym to moral arguments. Economic arguments can often be relevant to figuring out how a moral argument applies: For instance, if our moral argument is that “everyone should be free to exclude others from their property, so long as this doesn’t cause unreasonable harm to others,” the question of what is “reasonable” harm may well be informed by economic analysis.
Moreover, economic efficiency itself has a moral dimension: As society gets richer, people on average tend to get more of the things (education, health care, and such) that we may think they morally deserve. Nor is this just true of system-wide economic effects; if, for instance, imposing liability on cities for accidents in public swimming pools leads to closing such pools, poor children will have less opportunity to enjoy the activities that middle-class and rich children (who have access to private swimming pools). That may itself have moral relevance -- though one can of course also argue that it’s morally good for poor children to be protected from dangerous pools by the deterrent effects of liability.
Likewise (though this example isn’t directly relevant here), an economic analysis of whether some policy will cause aggregate social harm or benefit will often be premised on moral judgments about whose interest count: Should you aggregate the harm or benefit to all Americans? To all humans? To all humans, born and unborn? To all primates?
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Now a few words about the specific kinds of policy arguments that we’ll often see in torts cases. People often talk about tort law as being aimed at compensating those who are injured, and deterring future injuries. And that’s true as far as it goes. But let’s get a bit more detailed, and point to some (often interrelated) questions that you might ask yourself with regard to any proposed tort law rule:
A. Questions Focused Immediately on What Has Happened:
1. Does the plaintiff deserve to be compensated? Sometimes the answer seems obviously “yes,” for instance if the plaintiff was hit and injured by a drunk driver. Sometimes it’s less clearly “yes,” for instance if the plaintiff had his past drunk driving conviction revealed to the public, and is now suing for the disclosure of private facts.
2. Does the defendant deserve to pay compensation to the plaintiff? Again, sometimes the answer seems obviously “yes,” for instance if the defendant is the drunk driver who hit the plaintiff. But sometimes it’s less clearly “yes,” or perhaps even clearly “no,” even when the defendant was one of the but-for causes of the plaintiff’s injury (i.e., but for the defendant’s actions, plaintiff would not have been injured) -- for instance, if the plaintiff is suing the company that manufactured the drunk driver’s car, simply because it manufactured the car.
Note, though, that “deserve” here need not mean that the defendant is culpable, only that we think he has incurred an obligation as a result of his action. For instance, one might conclude that a mining company should be strictly liable for all damage that its blasting does to neighboring properties -- because it bears the profit from the mining and should thus also bear the loss -- even though the mining company isn’t morally at fault for blasting.
B. Questions Focused on What Will Happen in Litigation:
3. Are there particular reasons to think this proposed rule will cause problems in actual litigation, such as undue litigation expense, undue intrusion on privacy, or undue risk of error on the part of the judge or jury? Some such expense, intrusion, and risk is inevitable; but sometimes the cost or risk might be so high -- especially compared to the alternatives -- that it’s worth shifting to a different rule. For instance, some argue that no-fault insurance is a better way than negligence liability of dealing with auto accidents, both because it’s cheaper and because many auto accident lawsuits devolve into swearing matches in which it’s very hard to tell who’s telling the truth. Likewise, one argument against “alienation of affections” lawsuits (in which a cheated-on spouse sues the person with whom the other spouse was unfaithful) could be that it’s unusually hard or intrusive to get at the truth of such allegations.
C. Questions Focused on How the Risk of Liability May Change Future Behavior:
4. How would this rule affect behavior by this defendant and similar defendants -- for better and for worse? If a business is told that it will be held liable for injuring people, it’s likely to take precautions that diminish the risk of such injury. These precautions may well be good for society generally.
At the same time, some of these precautions may cause social harm. To return to a classic example given above: If you hold newspapers strictly liable for false and reputation-injurying statements that they publish about people, they might be deterred not just from publishing false (and thus socially harmful) statements but also from publishing true (and thus socially valuable) statements. Your task in evaluating an argument, and in thinking about policy arguments for and against it, is to consider all of its possible effects, good and bad.
5. How would this rule affect behavior by this plaintiff and potential future plaintiffs -- for better and for worse? Might imposing or increasing liability on the defendant diminish potential plaintiffs’ incentives to behave safely, or encourage plaintiffs to fake injuries or exaggerate their extent?
On the other hand, might giving defendants free rein to do something dangerous cause plaintiffs to be more cautious than we want them to be? An example from contract law: If certain kinds of defendants could easily evade their contracts without liability, other people might choose not to do business with those defendants at all, or only do it on a cash-up-front basis. Such caution would be rational from those other people’s perspective, but that would be bad for society as a whole. Assuring potential plaintiffs that they can recover damages if the defendant breaches a contract thus advances social efficiency.
6. How would this rule affect behavior by people other than prospective defendants, again for better and for worse? Rules also affect not just prospective defendants, but others whose behavior will be affected by the prospective defendants’ behavior. That could often be good: For instance, imposing liability on bars for accidents by their customers may prevent misconduct by the customers. Or it could be bad: For instance, as I suggested above, if employers are deterred from hiring ex-felons, then ex-felons might end up unable to get jobs, and thus might end up more likely to turn to a life of crime.
7. Would this rule unduly interfere with defendants’, prospective defendants’, or others’ liberty or privacy? Deterrence of some behavior may be bad not because the behavior is socially useful, but because we think the behavior is an important aspect of political liberty or personal liberty. For instance, if libel law unduly deters even accurate reporting, then that might affect newspapers’ freedom of the press.
And these liberty concerns need not be limited to constitutional rights. For instance, say liability on skydiving companies were imposed on the grounds that skydiving is so dangerous and so lacking in social value that it’s inherently unreasonable to offer such services. (I don’t think that’s the legal rule, but say such a legal rule is proposed.) This might make skydiving so expensive that most people couldn’t afford it, and this would in turn affect their liberty to choose to engage in this risky behavior. Perhaps the intrusion on liberty is justified, for instance on the grounds that people shouldn’t risk their lives in such activities -- but the intrusion has to be recognized, and considered in analyzing the merits of the proposed rule.
Likewise, if parents who are hosting a party for teenagers are held liable for negligence if two teenagers have sex in a bathroom (see Doe v. Jeansonne, 704 So. 2d 1240 (La. Ct. App. 1998)), parents would have to more closely patrol such parties, and check the bathrooms in case they have reason to think something might be amiss. Again, that might be a reasonable privacy cost, given the harms that teenage sex can cause, but we should consider it as a cost.
8. Are there policy choices involved in this rule that we’d feel uncomfortable having made by juries and judges? Or might we prefer that they be made by juries, rather than by legislators? Say a plaintiff who was hit by a 21-year-old drunk driver sues a store for selling alcohol to the 21-year-old. Because 21-year-olds are more dangerous drivers than 25-year-olds (though not as dangerous as 18-year-olds), the plaintiff argues, it’s unreasonable for the store to sell to 21-year-olds, even though there’s no criminal statute prohibiting such sales. The store -- and all other sellers of alcohol -- should (the argument would go) set a cutoff age at 25.
One might object to this proposal on various grounds (and endorse it on various grounds). But one possible objection might be that the tradeoff between liberty and safety involved in setting the drinking age should be made by the elected representatives of the people, and not by judges or juries. On the other hand, some might argue that unelected judges and (more or less) randomly selected juries are better decisionmakers than legislators, who are more likely to be captured by special interests or distracted by other matters on their legislative agenda.