An Apology for Policy

We law professors love policy questions. For many of us, they’re why we’re law professors. We care deeply about what the law ought to say, not just what it does say.

It’s harder to justify why we teach policy. Most of our students will be practicing lawyers. Even those who go into government are unlikely to go near the topic any given professor teaches. I may draw my students out in a discussion of the finer points of patent reform, but the skeptical among them will still ask what good an understanding of patent policy does for a zoning commissioner, a union negotiator, or a securities regulator. There’s an argument that we ought to save the grounding in policy for the few lawyers who need to deal with such rarified matters professionally.

I’ve found, however, three reasons why I expose all my students to policy arguments:

  1. Policy discussions in class serve a forcing function. You can’t engage with the policy question unless you’ve worked through the purely “legal” matters on which it depends. “Extract the rule from this case,” is a flat question; “evaluate the rule in this case” is an engaging one—and yet they both require the same first step.
  2. Some basic lawyering skills are impossible to master without a grounding in policy. Yes, you can object to prejudicial evidence without ever having thought about why there’s a rule excluding it. But your objection won’t be very persuasive.
  3. Not everyone needs to have an informed opinion on email privacy, but someone at every cocktail party should. Lawyers as a class are a good group to store this knowledge on behalf of society, and it’s good for them professionally and socially to have it.

All three of these justifications require some care. Not all policy issues are useful; not all policy questions are useful, either. I know from experience that a poorly thought-through policy question is worse than a waste of class time, because it confuses. But the good ones—the ones that hit these justifications squarely—are among the most effective tools in my teaching kit. They help students become better thinkers, better lawyers, and better citizens.

Addendum: There are also some bad reasons to bring policy into the law classroom.

  • Policy is easier than law.
  • Policy is harder than law.
  • Policy is more important than law.
  • Policy is more fun than law.
  • All law is just policy.

For trial motions work and for appeals, the ability to articulate the policy rationale for a legal principle is what makes a good lawyer great. Of course, judges are supposed to rule based solely upon “the law,” but a policy discussion — even if it isn’t overt — is crucial to triggering the right intuitions in the decision maker.

I don’t think this is a point that applies to only a small number of practitioners. To give one example, a lot of evidentiary motions involve rather abstract discussions of the purpose behind the rules of evidence. And an enormous amount of administrative work (e.g., FERC, NLRB, etc.) involves policy discussions — sometimes directly. So I don’t think you’re wasting your time, even assuming all your students go on to be practitioners.