Friday, October 12, 2007

Policy? I'm here to learn the law

And so it begins, the inevitable questions about why policy matters.  In my class we have completed PJ, SMJ, Venue, Erie and an introduction to pleadings.  In my wrap-up earlier this week setting the stage for our section on Pleading I must have mentioned "policy" considerations a few too many times for the comfort of my student's ---some of whom are still in search of "the right answer."  Of course if one is searching for "the right answer" law school isn't exactly the place to be, but students who have nonetheless decided to stick it out in search of that "right answer" will find policy arguments extremely troubling--- in fact they may even disregard such fluffy ambiguities in favor of clear cut rules.  Our challenge is to steer them away from that inclination without giving away too much. 

Reference to policy is necessarily incorporated into a student's analytical framework, and as professors we do them a disservice by giving short shrift to policy concerns especially because our students are already disinclined to spend much time thinking about policy --- at least in an ordered fashion.  They may understand that policy matters, but they don't know how to integrate policy in an organized analytical fashion.  When analyzing the "procedural-substantive" dichotomy for example, students may recognize that they must make some inquiry into policy concerns because judges necessarily will, but they are not sure how to frame or place such arguments.  We know that it is important though, consider what Justice Rutledge tells us dissenting in Ragan v. Merchants Transfer & Warehouse Co.

"The real question [facing a judge] is not whether [a procedural-substantive division] shall be made, but how it shall be made, whether mechanically by reference to whether the state courts' doors are open or closed, or by a consideration of the policies which close them and their relation to accommodating the policy of the Erie rule with Congress' power to govern the incidents of litigation in diversity suits."

In fact while we as Professors may find and our students certainly will find solitude in technical legal rules, rules which would foreclose the subjective trip through "policy land."  Those trips through policy land though, are a necessary outgrowth of our judicial system, federalism, and the analytical framework established by Erie.  We know this much from Justice Frankfurter's opinion in Guaranty Trust Co. of New York v. York.

Erie R.R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology.  It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts...The nub of the policy that underlies Erie R.R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in federal court instead of in State court a block away, should not lead to a substantially different result....[Erie] has been applied with an eye alert to essentials in avoiding disregard of State law in diversity cases in the federal courts.  A policy so important to our federalism must be kept free from entanglements with analytical or terminological niceties. 

We as professors "get" that policy is important, it gives nuance to seemingly rigid rules and provides students an opportunity to fully develop their analysis and to engage in broad versus narrow interpretation.  The fact that we get it though, may come only from the fact that we recognize the big picture.  The tension we face is wanting to make sure that students will grasp the material on their own. We hope that they will take the time to struggle to learn what factors, rules and policies are at play and where those factors and arguments carry the greatest weight, while on the other hand not wanting to leave them out their on their own to such a degree that they never "see the light." 

When it comes to policy, I believe it is critical to explain to student's the role it plays and how and where it integrates into their analytical framework.  They are buried with cases, rules and doctrine and only a select few will ever scratch the surface on how to make policy arguments.  The upshot of course is that policy can be argued and analyzed in so many different ways, that we're not giving away too much by telling them where in their analysis to integrate policy arguments, we're simply aiding them in understanding where policy is helpful or in some cases necessary. 

Byrd provides us with an interesting way to illustrate this point for our students.  Rather than focusing on outcome determinativeness the Byrd court first discussed whether a state rule assigning decisions to judges was a rule that was “bound up with” the definition of state-created “rights and obligations."  An inquiry into how "bound up" a rule is with state-created rights and state-created obligations, must make reference to elements of policy.  How much reference to policy and how weighty policy concerns may be will depend on the rights, obligations, and rules at hand.  So we find in this simple example that merely telling students that policy considerations are appropriate or perhaps necessary for their "bound up" analysis will go a long way toward ensuring they understand the importance and propriety of policy arguments while still allowing you as an instructor to "hide the ball" and keep them thinking. 

This example highlights the critical point I discussed in a previous point.  The value of taking an "analytical framework" approach--- that is at the end of each section, to spend some time wrapping up what was covered and to challenge students to develop their analytical framework as each section is completed.  Doing so will ensure they tie off material as it is completed, integrate nuanced analytical methods such as policy where necessary, and prepares them for the material to be covered in the next section.  Encouraging an "analytical framework" approach forces students to frame each issue and topic in a manner which will allow them to "see the big picture" at the end of the course. 


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