Monday, April 27, 2009

Black-letter briefs

The overstatement that incurs courts' distrust doesn't always bespeak inferior writing skills. Legal confusion or misdirection about rules in relation to public policy usually nourishes overstatement and is sometimes its direct cause. Many attorneys mistake a phase of legal argument—applying rules to facts—for the entirety. The resulting lopsided analysis ignores the adjustment of rules to public policy in an integrated legal system, where individual rules have only limited autonomy. Oliver Wendell Holmes Jr., author of the most memorable statement favoring interpreting plain legislative texts, as opposed to legislators' subjective intents—"We do not inquire what the legislature meant; we ask only what the statute means"—did not, like latter-day textualists, reject legislators' broad purposes, only their narrow intents. Holmes describes the decisive role of policy:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient to the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. (Holmes, The Common Law 35-36 (1881) [quoted by Aldisert, infra, at p. 4)].

Since rules must be mutually reconcilable, a change in how courts conceive one rule influences how they construe and apply even distant others. Changing a law pulls public policy in its direction and also leaves an altered balance of policy issues to other rules' regulation. The rule-based conception of law leads attorneys to ignore the opposing interests and think about their cases in ways that promote overstatement. If cases were won simply by bringing facts under the accepted rules, then if you were right, you'd be clearly right, as attorneys so often declare, because once the facts are characterized ordinary logic dictates whether they satisfy the rules.

In a to-be-published essay (download) Judicial Declaration of Public Policy, Journal of Appellate Practice & Process, Vol. 10 (forthcoming, Spring 2010) Ruggero J. Aldisert, Senior Judge, Third Circuit Court of Appeals, opines that the majority of federal-court appellate briefs are made useless by their failure to help the court resolve the issues. (Hat tip to Prof. Lawrence B. Solum, Legal Theory Blog.)

Too often, briefs simply recite the various leading cases and attempt to bring the particular dispute within the boundaries of the decisions thought to be controlling. They address too briefly, if at all, the interests implicated in the decision. Such briefs are of little aid to the court. (Aldisert, supra, at p. 16.)

Many cases—particularly in torts, tax law, family law, and constitutional law—aren't resolved by rules alone but require inferences from the relationship between rules and the vying interests viewed through a public-policy lens. Most appellate cases feature conflicting interests, and a brief can persuade only if it discusses them. All relevant "private, social, public, and governmental interests" must be "not only evaluated, but compared, accepted, rejected, tailored, adjusted and, if necessary, subjected to judicial compromise." (Id., at p. 13.) To persuade the court with a comprehensive analysis, the writer must "know not only those facts which bear on direct controversy, but know all the facts and laws that surround." (Justice Brandeis, quoted id., at p. 16.) Broadly understanding the issues' periphery also discourages overstatement and other oversimplification.

My blog Juridical Coherence has started a series on statutory interpretation, including public policy's role. (

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