POLICY ARGUMENT-LegEng.pptx

8/14/2019 POLICY ARGUMENT-LegEng.pptx

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POLICY ARGUMENT

Legal English 4


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Policy arguments will often decide cases especially

when each party offers plausible interpretations of

the law. The Judge then may decide the case on thebasis of the social goals that the decision willpromote, and the purposes behind the particular

rules.

POLICY ARGUMENT


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Basic Groups:

1. Normative Arguments

2. Economic Arguments

3. Institutional Competence Arguments

4. Judicial Administration Arguments

POLICY ARGUMENT


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Arguments about shared values and goals that a law should promote.

TYPES:

1. Moral Arguments

Arguments which are about whether a rule advancesor offends moral principles.

2. Social Policy ArgumentsInvolves discussion of whether a rule advancesor harms a social goal.

3. Corrective Justice ArgumentsRevolves under he presumption ofwhether the application of a rule is just in a particular case

NORMATIVE ARGUMENTS


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DIFFERENCE:

MORAL ARGUMENTS:

Draft Evasion should not be a crime because the taking of life is morallyreprehensible.

SOCIAL POLICY ARGUMENTS

Draft Evasion should be a crime because it is a threat to national security.

Moral and Social Policy Arguments are not always easily separable becausethey both the greater good.

NORMATIVE ARGUMENTS MORAL ARGUMENTS vs.SOCIAL POLICY ARGUMENTS


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When a case asks the court to recognize for the first time a claim fordamages for loss parental consortium.

Your clients are children whose other suffered injuries when an intoxicateddriver went to a red light and strike her. The mother now suffers from

permanent spinal paralysis, brain damage, and impaired speech. She isconfined to bed and requires constant custodial care. She no longerrecognize her children.

Plaintiffs can use corrective justice and social policy arguments. They can

argue that a small but steadily increasing number of jurisdiction permitloss or parental consortium claims because compensation comports withnotions of public policy and fairness.

NORMATIVE ARGUMENTS


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Economic Arguments have assumed increasingly important role in legaldecision making.

Economic Arguments are concerned with the efficient allocation ofresources .

Whether a particular decision is preferable because it spreads the lossesamong larger segments of the population.

Other Economic Arguments focus whether the rule ensures optimalefficiency.

ECONOMIC ARGUMENTS


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The defendant in the loss of parental consortium problem may havetrouble counter the plaintiffs normative arguments, but he has somereasonable economic ones.

He may argue that permitting these claims could effectively result in a

double recovery since a jury may, as a practical matter, compensate a childby means of an award to the surviving parent, if there is one.

Double recovery costs will ultimately be borne by the public generallythrough increased insurance costs.

ECONOMIC ARGUMENTS


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Institutional Competence involves an examination of the proper role ofeach branch of government.

Examples:

Courts may defer to the legislature to create or repeal a cause of action if they

believe that the legislature, as the popularly elected branch of government, isthe more appropriate form to change the law.

Lower courts will defer to the binding power of higher appellate courtsrules. Another aspect of institutional competence that courts consider iswhether a particular decision will interfere with the work of theadministrative agencies.

INSTITUTIONAL COMPETENCE ARGUMENTS


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Both parties in the loss of parental consortium hypothetical have stronginstitutional competence arguments. The defendant will argue that anychange in the law on an issue of public policy should be made by theelected members of the legislature and not the courts.

As an institution, the legislature, unlike a court, can gather informationon a number of relevant question, such as:

1. Whether there is any practical necessity for creating a separate cause ofaction for a child whose parent has been negligently injured;

2. What limiting principles for example: the age of the child shouldcircumscribe such a cause of action



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3. What impact such a cause of action would have on insurance rates andother costs to the general public;

4. What, if any, limit on allowable damages should be imposed as a matterof social policy

Plaintiffs will respond that loss of consortium is an item of damages thatwas initially created by the courts. Changes in the law of consortiumhave been made by the courts. It is wholly appropriate for the courts todecide this issue and not defer to the legislature.

In fact, the plaintiff will argue the courts would be abdicating theirresponsibility if they did not reform the common law to meet theevolving standards of justice.



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Judicial Administration Arguments are arguments about the practicalityor impracticality of applying a rule.

One typical administration of justice argument analyzes the merit of abright line rule versus a flexible rule.

But, because Flexible Rules involves judicial discretion, they are lesspredictable and relatively prone to judicial abuses.

JUDICIAL ADMINISTRATION ARGUMENTS

Narrow Rules provide clear notice and consistency and are easy to administer.

Flexible Rules are more responsive to individual circumstances and more likelyto promote fairness to the parties.


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OTHER JUDICIAL ADMINISTRATION ARGUMENTS: SLIPPERY SLOPE ARGUMENTS

FLOODGATE ARGUMENTS


JUDICIAL

ADMINISTRATIONARGUMENTS

That the rule is so broad it will be applied ininappropriate circumstances or inundate the courtswith suits.

JUDICIALADMINISTRATION

ARGUMENTS

Such suits waste judicial resources, as do rules that open thedoor to speculative, frivolous, or false claims.

JUDICIALADMINISTRATION

ARGUMENTS

If a rule is so complex that it will be difficult to administer,practitioners might make arguments about conserving judicialresources.


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That since the each injury wouldlead to an increased number of lawsuits, the liability of an individualtortfeasor to a single family basedon a single event would become

unreasonable and oppressive.

DEFENDANT(in the loss of

parentalconsortium)

Counter: that where childrens

welfare is at stake, administrativeconcerns, like the possibility ofincreased litigation, should besecondary.

PLAINTIFF


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Recognition of the claim will create a slipperyslope. It could become unclear how tomeasure damages and whether to draw theline at children or to include grandparents, oraunts and uncles.

DEFENDANT(in theloss of parental consortium)

Damages are no more uncertain in thistype of claim than they are for pain and

suffering in personal injury and wrongfuldeath actions, or in the spousesclaim forloss of consortium. This claim is no harderto handle than those, especially since thepossibility of double recovery can beavoided by careful jury instructions.

PLAINTIFF


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As the issue of loss of parental consortium

illustrates, POLICY ARGUMENTS often competeagainst each other. Sometimes one party willdirectly refute the logic of anothersargument.

POLICY ARGUMENT


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One Policy Argument is countered by shifting the

context.

If one party argues fairness to the individual, the

other stresses the needs of the community orefficiency.

If one party focuses on freedom of action, the

other focuses on the right to be secure.

POLICY ARGUMENT


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In the consortium case, competing policies need to bebalanced: the negative effects of an increased burden on

judicial resources and increased insurance cost must beweighed against fair compensation for children andsocietysinterest in deterring negligent conduct.

POLICY ARGUMENT

A court might decide, that in the context of single-parent families , thepossibility of parental injury compels recognition of the cause of actionbecause a child of a single-parent cannot receive compensation through an

uninjured parents cause of action. The interest outweighs concerns overeconomic and judicial resources.

Thus, you must assess competing policies by testing their logic or by decidingthat although a number of policies have merit, some policy interests areweightier than others.


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THANK YOU

Legal English 4

POLICY ARGUMENT-LegEng.pptx

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