Law Students

As an 1L, there were several questions that puzzled me.  One of them is the role of policy and why it is not effective legal reasoning.  I did not understand why substantive law professors constantly asked about the underlying policy of a law, but research and writing professors constantly told us students not to use policy arguments because it is the weakest argument you can use.

Two years later, I am beginning to decipher the rationale behind these seemingly contradictory messages.  Legal reasoning (legal argument) is different from policy arguments.  When you are in front of the judge, you want to provide a context to a statute.  You can do this by providing case law of which test ought to be performed, when and why.  You can also use constitutional arguments such as legislative intent and legislative intent to supplement your argument.  Policy is part of a “legislative intent” argument; you show what Congress sets out to do by creating this statute, and whether or not the statute is permissible (that is, constitutionally permissible).

When judges consider all the possible outcomes, they look at the effects of a particular decision would have on a policy.  The Court’s goal is to avoid altering Congressional policy, and to strike down policies that are unconstitutional (both unconstitutional purpose, or unconstitutional by implementation).  Policy is the foundation for law; in the alternative, law reflects policy.  

Just remember this when you write your next legal essay:  policy is broad and it has no effects of law by itself.  It can be a guideline as to the intended scope of the law (i.e., parties to be protected; interests to be protected; duration, etc.) but it is never a substitute for solid legal reasoning.  As one professor said, “You never argue policy unless you are absolutely desperate and there is no case law whatsoever to back up your case.”