4.1.3 USINGPOLICY-BASEDRULES IN YOUR ARGUMENT
Another method of creating an outline of your argument — or points to be included in your outline — is to identify relevant policy arguments. Legal writing is based on rules, and usually rules provide the best structure for legal analysis.
Some writers, however, focus so much on the structure that the rules provide that they miss important policy arguments.Policy arguments are based on a special kind of rule called a public policy. In law, public policy is defined roughly as a societal rule about how people should behave or how institutions should function in our society.11 Even when policies remain the same, laws may change as human attitudes change or as scientific knowledge changes. For example, over the past 40 years, laws about smoking in public places have changed based on (1) the public policy or societal belief that one person should not cause harm to another and (2) the scientific knowledge about the harms of secondhand smoke. In many legal arguments, the policy arguments are implicit in the more formal legal rules that apply to the issues in the case, and they need not be addressed separately. Sometimes, however, the court will be more likely to agree with your ultimate conclusion if it can also be convinced — or reminded — of the importance of a policy that underlies your argument.
In a Fourth Amendment case, for example, you might include a separate point addressing either the importance of protecting police officers from dangers of police work (and therefore the need to allow police officers wide latitude in their work) or the importance of the right to privacy (and therefore the need to limit the abilities of police officers to invade that privacy).
In an argument based on the Miller v. Albright case, counsel representing Miller might make a separate argument based on the notion that parent-child relationships are fundamental and must be promoted, no matter when that relationship is formed.
In addition or in the alternative, counsel could argue that children should not suffer adverse consequences because of the acts or status of their parents. Courts might have made these points as part of their reasoning in cases that were being cited to support relevant rules. In that situation, these arguments could be incorporated into other arguments. If your onpoint cases don’t contain these points, you might want to incorporate them into your argument separately, not connected to rational basis or intermediate scrutiny arguments. If the court agreed with either of these policy-based assertions, it might be more willing to apply intermediate scrutiny or to hold that the statute violates the rational basis test.Even if you make a policy argument separately from more traditional legal arguments, you need not treat policy arguments differently. You may, but you are not required to, label them as “public policy” or “policy” arguments (e.g., you need not say, “For reasons of public policy, this court should...”). Furthermore, policy arguments can and should be supported by references to outside authorities.12Although policy arguments might be more likely to include citations to extra-legal sources,13 whenever possible, you should include citations to and analysis of cases in which courts referenced certain policies when deciding similar legal issues.
For example, the writer of the Miller v. Albright brief might attack the validity of the statutory requirement that the connection between the parent and the child must be formed before the child’s twenty-first birthday. As a separate point heading, the writer might assert that “the Court should not put a time limit on parent-child relationships,” and could support that point by citing cases in which courts have articulated the importance of parent-child relationships, especially cases in which the importance of that relationship was legally significant. These cases might include adoption cases, termination of parental rights cases, child support enforcement cases, prison visitation cases, and more.
Similarly, counsel for Miller might look to case authority to support an argument that “children should not suffer adverse consequences for the acts or status of their parents” by looking to cases involving the right of a child born out of wedlock to inherit from a parent who dies intestate or to cases involving the right to public education for children of immigrant parents who are undocumented.You may have started thinking about policy arguments as you tried to identify a theme for your argument. At this stage, you should make sure that the outline of your argument reflects your theme. As part of that step, note whether policy arguments that support your theme are worth addressing as separate points in your argument and whether there are authorities that would be useful support for these arguments. Not every brief needs a separate policy argument; as noted previously, policy arguments are often implicit in legal arguments. But when drafting a working outline, you may wish to tentatively identify policy arguments that could be incorporated into your argument.