Policy arguments will often decide a case, especially when each party offers plausible interpretations of the law. In this situation, the judge may then decide the case on the basis of the social goals that the decision will promote, and the purposes behind the particular rules.

Policy arguments can be categorized in many ways, but one useful system is to divide them into four basic groups: normative arguments, that is, arguments about shared values and goals that a law should promote; economic arguments, which look at the economic consequences of a rule; institutional competence arguments, that is, structural arguments about the proper relationship of courts to other courts and courts to other branches of government; and judicial administration arguments, arguments about the practical effects of a ruling on the administration of justice. These categories are not, of course, mutually exclusive.


A. Normative Arguments

Normative arguments fall into at least three types. There are moral arguments, which are arguments about whether a rule advances or offends moral principles; there are social policy arguments, which involve a discussion of whether a rule advances or harms a social goal; and there are corrective justice arguments, which revolve around whether the application of a rule is just in a particular case. Moral and social policy arguments are not always easily separable because they both debate the greater good, but the following example illustrates the difference: draft evasion should not be a crime because the taking of life is morally reprehensible, or draft evasion should be a crime because it is a threat to national security. Some rules of equity are derived from moral principles and social policy, for example, a person may not profit from his own wrong, and a plaintiff must come into equity with "clean hands." Corrective justice arguments focus on the actual parties before the court and are traditionally, but arguably, both the basis of our legal system and the province, in particular, of every trial court.

Assume you are involved in a case that asks the court to recognize for the first time a claim for damages for loss of parental consortium. Your clients are children whose mother suffered injuries when an intoxicated driver went through a red light and struck her. The mother now suffers from permanent spinal paralysis, brain damage, and impaired speech. She is confined to bed and requires constant custodial care. She no longer recognizes her children.

Plaintiffs here can make corrective justice and social policy arguments. They can argue that a small but steadily increasing number of jurisdictions permit loss of parental consortium claims because compensation comports with notions of public policy and fairness. Between the two parties, corrective justice demands that the tortfeasor compensate the children for their tragic loss of parental guidance, services, love, and companionship. Providing them with the resources to obtain live-in help or to receive psychiatric assistance can help the children make a permanent adjustment to their loss. Recognition of the claim also serves two important social policies: it preserves the deterrent function of tort law and compensates for real losses.

Some normative arguments are vulnerable to the accusation that they are political. Judges may be therefore reluctant to base, or to admit basing, decisions upon their moral and political views. Yet, as one judge has written, cases that break new ground are often decided on "moral, social, or economic, i.e., political reasons."


B. Economic Arguments

Economic arguments have assumed an increasingly important role in legal decision-making. Economic arguments are concerned with efficient allocation of resources. One economic approach to the law asks, for example, whether a particular decision is preferable because it spreads the losses among larger segments of the population. Other economic arguments focus on whether a rule ensures optimal efficiency. For those who subscribe to this approach, an efficient outcome is the preferred outcome regardless of fairness between the parties.

The defendant in the loss of parental consortium problem may have trouble countering the plaintiffs’ normative arguments, but he has some reasonable economic ones. First, he may argue that permitting these claims could effectively result in a double recovery since a jury may, as a practical matter, compensate a child by means of an award to the surviving parent, if there is one. Moreover, double recovery costs will ultimately be borne by the public generally through increased insurance costs.


C. Institutional Competence Arguments

Institutional competence involves an examination of the proper role of each branch of government. For example, courts may defer to the legislature to create or to repeal a cause of action if they believe that the legislature, as the popularly elected branch of government, is the more appropriate forum to change the law. Lower courts will defer to the binding power of higher appellate courts’ rules. Another aspect of institutional competence that courts consider is whether a particular decision will interfere with the work of administrative agencies.

Both parties in the loss of parental consortium hypothetical have strong institutional competence arguments. The defendant will argue that any change in the law on an issue of public policy should be made by the elected members of the legislature and not the courts. As an institution, the legislature, unlike a court, can gather information on a number of relevant questions, such as:

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

2. what limiting principles – for example, the age of the child – should circumscribe such a cause of action;

3. what impact such a cause of action would have on insurance rates and other costs to the general public;

4. what, if any, limit on allowable damages should be imposed as a matter of social policy.

Accordingly, the defendant will contend it is for the members of the legislature to debate and decide this issue.

Plaintiffs will respond that loss of consortium is an item of damages that was initially created by the courts. Changes in the law of consortium have been made by the courts, for example, in permitting wives as well as husbands damages for loss of consortium. Moreover, it is not a highly complex doctrine. Therefore, it is wholly appropriate for the courts to decide this issue and not defer to the legislature. In fact, the plaintiff will ague the courts would be abdicating their responsibility if they did not reform the common law to meet the evolving standards of justice.


D. Judicial Administration Arguments

Judicial administration arguments are arguments about the practicality or impracticality of applying a rule. One typical administration of justice argument analyzes the merit of a "bright line" rule versus a flexible rule. Precise, narrow rules provide clear notice and consistency and are easy to administer. They leave little to judicial discretion. In contrast, flexible rules are more responsive to individual circumstances and more likely to promote fairness to the parties. Because flexible rules involve judicial discretion, however, they are less predictable and relatively prone to judicial abuse. Other judicial administration arguments include "slippery slope" and "floodgate" arguments respectively, that the rule is so broad it will be applied in inappropriate circumstances or inundate the courts with suits. Such suits waste judicial resources, as do rules that open the door to speculative, frivolous, or false claims. Finally, if a rule is so complex that it will be difficult to administer, practitioners might make arguments about conserving judicial resources.

The defendant in the loss of parental consortium suit will argue that since each injury would lead to an increased number of law suits, the liability of an individual tortfeasor to a single family based on a single event would become unreasonable and oppressive. Moreover, recognition of the claim will create a slippery slope. It could become unclear how to measure damages and whether to draw the line at children or to include grandparents, or aunts and uncles. Plaintiffs will counter that where children’s welfare is at stake, administrative concerns, like the possibility of increased litigation, should be secondary. Moreover, damages are no more uncertain in this type of claim than they are for pain and suffering in personal injury and wrongful death actions, or in the spouse’s claim for loss of consortium. Thus this claim is no harder to handle than those, especially since the possibility of double recovery can be avoided by careful jury instructions.



As the issue of loss of parental consortium illustrates, policy arguments often compete against each other. Sometimes one party will directly refute the logic of another’s argument: although children whose parents have suffered a severe injury have themselves suffered a severe loss, an action for loss of parental consortium is simply unnecessary since compensation for emotional loss and lost economic support can be factored into an uninjured parent’s award. Sometimes, 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 or efficiency. If one party focuses on freedom of action (the right to drive), the other focuses on the right to be secure (the right to be protected from drunk drivers). In the consortium case, competing policies need to be balanced: the negative effects of an increased burden on judicial resources and increased insurance costs must be weighed against fair compensation for children and society’s interest in deterring negligent conduct. A court might decide, for example, that, in the context of single-parent families, the possibility of parental injury compels recognition of the cause of action because a child of a single parent cannot receive compensation through an uninjured parent’s cause of action. This interest outweighs concerns over economic and judicial resources. Thus you must assess competing policies by testing their logic or by deciding that although a number of policies have merit, some policy interests are weightier than others.


Helene Shapo, Writing & Analysis in the Law 198-202 (4th ed. 1999).