Tuesday, September 23, 2014

Making Public Policy Arguments

As any lawyer who has ever tried to make a public policy argument knows, judges are rarely persuaded by pure policy arguments. Most policy arguments start something like this: “Public policy also supports Plaintiff’s/Defendant’s position.” Starting a policy argument with a sentence like that is a nearly sure-fire way to kill your argument. Good legal writers know policy arguments shouldn’t stand on their own but should be integrated into the overall analysis and should be used to bolster arguments based on precedent and authority.

To increase the chance of success, lawyers should carefully choose strong policy arguments and support those arguments with proper authority. For example, policy arguments based on legislative intent or purpose should be supported with legislative history. An argument that a certain ruling would be consistent with past jurisdictional policies can be supported with evidence of those past policies. And a policy argument that a ruling would be consistent with those made in other jurisdictions or by respected jurists can be supported with opinions from those other jurisdictions or jurists.

I’ve written before about Christopher Simmons’s brief in Roper v. Simmons, 543 U.S. 551 (2005), the case where the Supreme Court considered whether executing juvenile offenders violates the 8th Amendment prohibition against cruel and unusual punishment. Simmons’s counsel uses a stellar policy argument (But doesn’t call it that!) to support his argument that juvenile offenders lack of the culpability of adult offenders:

Moreover, a bright line excluding 16- and 17-year-olds from eligibility from the death penalty is consistent with our society's uniform and enduring judgment - expressed in the actions of its legislatures - that adolescents of that age do not possess the same level of personal responsibility as do adults. Eighteen is almost universally the legal boundary between childhood and adulthood, and there is a broad array of legislative prohibitions and protections aimed at those under 18. Our society regards 16- and 17-year-olds as too immature and inexperienced to have a full understanding of the consequences of their decisions, and it does not allow them to vote. It recognizes that

"Jury box cropped" by Ken Lund from Reno, NV, USA

Cropped from the original, Pershing County Courthouse

Jury Box. Licensed under Creative Commons Attribution

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they lack a fully developed capacity for moral judgment, and it bars them from sitting in judgment of others. It understands that they are less able than adults to weigh risk and reward, and it forbids them to gamble. It acknowledges that their selves are still changeable, and it presumes that they lack the capacity to make a lifetime commitment to another person. And, knowing that they are still vulnerable and in need of protection, it requires their parents to protect them. These and other special protections and disabilities embody our society's determination that, before the age of 18, adolescents are not fully formed people, and cannot be held fully responsible for choices made b
be their incomplete selves.
Brief for Respondent at 35-36, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812 (internal citations and quotes omitted).
This is an excellent example of using a strong public policy argument to your advantage. But note that this policy argument isn’t made until page 35 of the brief and is used to bolster Simmons’s other arguments based on authority and extra-judicial scientific studies on adolescent development.
Finally, a word about policy arguments and trial courts—even strong policy arguments likely will fail at the trial court level if you’re seeking a change in the law. Even though they may agree with an argument, trial courts are bound by precedent. Thus, a trial court may agree with your argument but find it has no choice but to rule against you.

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