Policy Questions

On your exam, and sometimes in class, you’ll get asked to decide what the “best” rule is. Or what the best rule should be. For your exam, you should just follow the standard IRAC form. Issue: What is the best rule for ___? Rule: <pick the rule that you think best>. Analysis: <argue why the rule is best>. Conclusion: ___.

What to consider when deciding what is best?

Fairness

This should always be discussed. What rule is fair to both plaintiff AND defendant? Avoid being one-sided. Why avoid this? Because (and you should argue this), a one-sided rule “undermines the public’s faith and confidence in the legal system.” Yes, in reality, we have one-sided rules. Why do you think we’ve got millions of lawyer jokes?

The other reason to avoid being one-sided is that the plaintiff or defendant isn’t always the noble good guy. What if Bill Gates was hit by a car driven by a widowed unemployed mother of three developmentally disabled children? Does he really need more money and does she really need to owe him any even though she is in the wrong?

Judicial Efficiency

This just means “courts are lazy” but don’t ever say that. In short, judicial resources are limited. So if you can argue that a particular rule will bring more certainty to the legal system, and thus lead to less lawsuits, then that rule would lead to more judicial efficiency. (Yes, you are arguing against ambiguity.)

More Arguments

There are a few more that I will add to this post. Please check back later.