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Friday, April 15, 2011
the magic of "public policy"
At what point are law students introduced to the magic phrase "public policy"? They seem to think these two words constitute the get out of jail free card that releases them from the trap of their own confusion. It typically races neck-and-neck with "efficiency" as the term most likely to be spouted out in the quasi-tourette's moment of fright when all eyes are on the student who has been called on -- or, worse, when a self-assured know-it-all shoots his [gender intended] hand up with a superficially clever, certain response to an unanswerable question.
I'm afraid, though, that perhaps like many of you my response is to play to the students' cynicism by trying to get them to see such meaningless phrases as infinitely manipulable. I taught a course on policymaking this semester where we laid bare as many policy tools as we could -- cost-benefit analysis, standard-setting, institutional design, etc. -- and played with them. Like Llewellyn's thrust and parry of interpretive canons, the mind-blowing experience for all statutory interpretation students where a multi-page chart unveils the fact that every claim and theory they think is so brilliant produces its own brilliant, equally persuasive response, this approach unveils the relative meaninglessness of undefined, seemingly neutral concepts when utilized in the abstract.
When we do such things, and lord knows we all do such things, are we being shamans who introduce these kids into the magic kingdom of words, or are we pulling back the curtain to reveal the human that lurks behind the magic? Or maybe we're doing both, as they're simply flip-sides of the same act -- like the folks who work at the magicians' supply store, who simultaneously reveal parts of some of the tricks they sell but hold things back to keep the customers coming back for more.
Posted by Mark Fenster on April 15, 2011 at 04:56 PM | Permalink
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Comments
I don't think we're looking at differently, Orin. Shorn of context, there is little in the abstract that sorts between different interpretive canons, although of course one might be persuaded to favor one canon over another, or to prefer textual canons to legislative history. Once context is given, though -- whether facts or legislative language or structure -- then of course some arguments are more likely to prove persuasive to an authority. "Policy," though, becomes only marginally less indeterminate once contexts are specified. Instead, one must not only define the tools you're using but also describe the problem you wish to address and specify the ends you prefer. Student invocation of "policy" is typically an effort to remove facts from their context without specifying either the tool or the ends sought. Teaching the tricks of the trade is about both teaching the tools without context and teaching how to apply those tools within context.
Posted by: Mark Fenster | Apr 15, 2011 8:27:39 PM
I look at it differently. The fact that there is always an argument that could be made does not mean that there is a good argument that could be made. The strength of different arguments depends on the contexts in which it is made. This does not mean that all arguments are equal, or that all such arguments are just a show of words. It just means that assessing the strength of an argument requires close attention to context.
Posted by: Orin Kerr | Apr 15, 2011 6:50:01 PM
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