Posted by Eugene Volokh:
Policy Arguments Generally, and in Torts Cases in Particular:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1249999184
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.
([1]Show the rest of the post.)
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?
* * *
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.
([2]Hide most of the above.)
References
1. file://localhost/var/www/powerblogs/volokh/posts/1249999184.html
2. file://localhost/var/www/powerblogs/volokh/posts/1249999184.html
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