| legal reasoning: library: policy | |
Excerpt from: Property Law: Rules, Policies, and Practices |
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by Joseph William Singer |
[Property Law: Rules, Policies, and Practices (2d ed., New York: Aspen Publishers, Inc., 1997) pp. 365-74.]
The opinions in Prah v. Maretti address a rich source of policy arguments widely used by both lawyers and judges in adjudicating real property disputes. Lawyers appeal to these arguments to persuade the court to adopt a rule of law that favors their client's interests. It is essential for you to understand and master these arguments so that you can become an effective advocate for a client on either side of a dispute.
These arguments appeal to values that are widely shared. However, they also demonstrate that many values we hold may conflict. The fact that it is almost always possible to generate plausible, conventional legal arguments on both sides of a case in which both parties have intuitively attractive claims does not mean that it is impossible to resolve legal disputes. It simply means that decisionmakers must accommodate these conflicting moral impulses to make considered judgments about the relative strength of competing claims in particular social contexts.
This compilation of arguments is not meant to
be exclusive. You will see both these arguments and others in legal analysis
in both judicial opinions and legal scholarship. You will invent or construct
new arguments yourself.
To make rights arguments persuasive, lawyers must attempt to describe the situation giving rise to the dispute in a way that will enable the decisionmaker to empathize with their client. This requires attention to the facts and an effort to characterize the fact situation in a way that supports the client's claim that she is entitled to prevail. The characterization of the fact-situation, in combination with argument about the rights of the parties, appeals to values held by the decisionmaker that would prompt a decision one way or the other.
Rights arguments address the following questions:
2. Morality
(a) Individualism versus altruism
- Altruism
Golden rule; look out for others; it is morally wrong for property owners to use their property in a way that wrongly inflicts harm on their neighbors' property nterests
- Individualism
Self-reliance; look out for oneself; each owner should foresee that others will develop their property and protect themselves from potential incompatible uses
(b) Fault versus compensation
- Compensation
As between two innocents, whoever caused the damage should pay
- No liability without fault
Citizens should not be punished if they did nothing wrong; no liability if it was not foreseeable that use of one's property would harm one's neighbors' property
3. Reasonable expectations
(a) Foreseeability
- Foresee consequences to others of your conduct
Property owners and possessors should foresee the consequences to their neighbors of their land use and take precautions against harming neighboring owners
- Foresee development of neighboring land
Property owners should foresee that others will develop their property and take precautions against incompatible land uses
(b) Reliance on reasonable expectations
- Reasonable expectations
Possessors reasonably expect their neighbors to adjust their land use to be compatible with neighborhood conditions and not to inflict unreasonable damage to neighboring property
- Reasonable expectations
Property owners reasonably expect to be able to develop their own property; prior developers on neighboring land have no right to prevent later development on neighboring property; each property owner reasonably expects to be able to develop her own property
4. Distribution: Who should fairly bear the loss?
- Developers should pay for the losses they impose on others
Those who profit from an activity should bear its costs; those whose land development causes harm to others should have to bear the loss occasioned by their development rather than externalizing those costs onto their neighbors; all development should be consistent with prior vested property rights
- Developers should invest to protect their own property rather than externalizing those costs on others
Those who profit from an activity should bear its costs; all developers should bear the costs of maintaining the safety of their own structures rather than externalizing those costs onto neighboring developers; those who develop property should foresee that neighbors will also develop and invest in protecting their own property
5. Equality
- Equal right to security
All owners have an equal right to protect their property from injury by their neighbors
- Equal right to develop
Later developers have the same rights to develop
as earlier developers; the first builder should not be able to interfere with
the equal freedom of others to develop their property by making later development
more expensive
a. Promoting the general welfare or maximizing social wealth
Unlike rights arguments, social utility arguments are consequentialist in outlook. Rather than characterizing the inherent justice or injustice of acts or social relationships, utilitarian arguments judge legal rules by their consequences. Rules that have, on balance, good effects are to be preferred over rules that cause more harm than good. Utilitarian analysis is based on comparison of costs and benefits of alternative legal rules; costs and benefits are measured by the effects on behavior that legal rules promote or discourage.
To make social utility arguments persuasive, lawyers must attempt to persuade decisionmakers about the likely consequences of alternative rules. They must then convince decisionmakers that the benefits of a proposed legal rule outweigh its costs.
Social utility arguments address the following questions:
- What are the social consequences of legal rules?
- What kinds of behavior will different rules foster?
- What incentives do the rules create?
- Which rules maximize the general welfare or social utility?
b. Categories of social utility arguments
1. Behavior modification; investment in safety
- Encourage safe construction
Liability will encourage people to build safely and support existing neighboring structures and preserve the neighborhood; it will encourage desirable investment in safety
- Encourage self-protection
No liability means people will build better houses; they will support their own houses
2. Investment arguments
- Secure investment
Established investments should be protected; security of investment will encourage people to build and develop their property because they know the value of their investment will be protected by society; people are more likely to invest in economic development of property if they know the value of their investment is not vulnerable to complete destruction by incompatible neighboring uses
- Competition
Freedom to use one's property as one sees fit without worrying about effects on others will encourage desirable development; protecting first uses establishes monopolies
3. Cost internalization arguments
- Cost internalization
Those who engage in economic activities should compensate those who are injured by their conduct; this will force them to internalize the external costs of their conduct and will encourage results that are more consistent with the general welfare; if people are not required to internalize these external costs, their cost/benefit determinations are skewed, as an activity may be profitable to the individual owner even if it causes more social harm than good
- Deregulation of economic activity
Incompatible land uses create joint costs because each owner inflicts costs on the other; courts are not competent to judge very well the costs and benefits of economic activity; it is better to let the market determine which activities should prevail even if it is imperfect; those who are harmed by economic activities can contract with offending parties to induce them to stop
4. Transaction cost/efficiency arguments
- Most valued user
When transaction costs prevent bargaining, courts can increase social wealth by granting entitlements to those who value them most highly, e.g., those who would purchase them in the absence of transaction costs
- Deference to the free market
Although transaction costs may prevent bargains
from going forward, private bargaining is more likely to approximate the socially
desirable result than judicial fiat; courts should therefore hesitate to interfere
in the market; courts should simply make the existing rules clear and enforce
whatever private bargains are made; they should not attempt to mimic the result
a competitive market would produce because this will invite too much uncertainty
and government control
a. Defining the proper spheres of authority of legal institutions
Judicial role or institutional role arguments are concerned with the proper relations among separate branches of government in the legal system. Arguments about the spheres of authority of different governmental actors revolve around the question of which government officials may appropriately modernize or change existing rules of law or patterns of social practice.
Judicial role arguments address the following questions:
- What is the proper role of the courts as lawmakers?
- What is the proper division of lawmaking authority between the courts and the legislature?
- What is the proper way for courts to interpret and implement legislative enactments?
b. Categories of judicial role arguments
1. Precedential arguments
(a) Broad versus narrow holding
- Broad holding
Interpreting a prior case to establish a broad principle applicable to a large range of situations
- Narrow holding
Interpreting a prior case to establish a holding suited to the specific, narrowly defined fact situation addressed in that case, and as not necessarily applying to a new situation involving arguably distinct features
(b) Distinguish or reconcile apparently conflicting cases
- Distinguish a precedent
Interpreting a prior case narrowly; explaining why the holding in that case is inapplicable to the present case and why there are good reasons of public policy to treat the current case differently from the prior case
- Reconcile apparently conflicting precedents
Explain why two apparently conflicting cases further a single underlying principle; or explain why they are distinguishable from each other
(c) Enforce versus overrule precedent
- Stare decisis
Promote stability of expectations and reliance on established rules of law by following precedent; promote evenhandedness and equality by treating like cases alike; allow people to rely on existing rules of law
- Promote justice
Promote justice by modernizing legal rules to protect legitimate interests in accord with current social conditions and values
2. Institutional role arguments
(a) Common law
- Judicial restraint
Judges should apply law, not make it; leave lawmaking to the legislature; judges are not elected, and even when they are elected, they are not accountable to the voters in the same way that legislatures are; citizens do not lobby judges to encourage them to make specific rulings in specific cases; because judges are removed from direct public accountability for their decisions, it is wrong for them to make policy in a democracy; any changes in law should be made by elected officials
- Judicial activism
Judges have made law through common law system for centuries; it is no more democratic to rely on the judgment of an earlier judge than for a current judge to use her own judgment; moreover if there is a gap, conflict, or ambiguity in the law then the court has no choice but to make law
Judges should change law when social values or social conditions change to act in ways that are fair and sensible; judges should not act mechanically; legislatures can always correct a judicial mistake by changing the law; and to the extent there are impediments to the legislature's doing this, there are impediments to adopting the best law in the first place; no way for judges to escape responsibility for the rules they enforce
(b) Statutory interpretation
- Remedial statutes broadly construed
Remedial statutes should be broadly construed to effectuate their purposes; any ambiguities should be resolved in favor of furthering the policies underlying the statute by an expansive interpretation of the statute; to interpret the statute narrowly would defeat the purposes the legislature sought to achieve and subvert legislative intent
- Defer to clear statutory language
The courts should not go beyond the language of a statute; if the legislature had intended to go further than the clear language of the statute, it would have said so; courts have no right to rewrite statutes to include remedies and legal claims not explicitly provided by them; any common law rules not expressly changed by the statute remain in effect; to add remedies or legal claims not explicitly covered by the statute would subvert legislative intent
3. Institutional competence
- Deference to the legislature
Judges are not competent to determine the social consequences of new rules; legislatures can hold hearings and better assess the consequences of any changes in the law
- Judicial responsibility
Judges have no choice but to make law, so they
should do the best they can; the parties' lawyers will have an incentive to
bring forward facts and arguments to advise the court; moreover, if judges are
not competent to determine the effects of new rules, they are also not competent
to determine the effects of existing rules; aside from whether judges change
the law, they have a responsibility to make the best decisions they can; judges
should acknowledge and shoulder their responsibility for implementing the rule
of law; the common law system allows courts to adjust legal principles in light
of changing social values and in the context of specific cases; the legislature
cannot anticipate every problem
a. Predictability versus flexibility
Arguments about formal realizability or administrability concern the proper form of legal rules. Rigid rules give clearer guidance about citizens' legal rights than vague standards. Yet rules lack flexibility and may interfere with the ability to obtain justice in specific cases. Flexible standards allow contextual judgments, fitting the law to the facts of the case. Yet standards provide judges with discretion that they may misuse.
Formal realizability arguments address the following questions:
- Should legal rules be rigid or flexible?
- When are bright-line distinctions better than case-by-case adjudication?
b. Categories of formal realizability arguments
1. Predictability versus justice in the specific case
(a) Predictability and uniformity
Rigid rules, mechanically applied, protect reasonable expectations based on existing law and allow citizens to plan with a clear understanding of the rules governing their conduct; citizens have a right to know what conduct is prohibited and what is allowed so that they can structure their conduct accordingly; rigid application of rules also insures that like cases will be treated alike because mechanical application takes discretion away from judges; rules therefore not only promote predictability but justice and equality
(b) Flexibility
Rigid rules are too strict, resulting in both under- and over-inclusiveness; flexible standards allow justice in the individual case
Standards may also be more predictable than rules; this is because rule systems can become complicated with many rules and specific exceptions, and it may be difficult to tell which specific rule applies to a fact situation; standards that appeal to the ultimate goals of the legal system, like fairness or social utility, may be easier to apply in practice
2. Relation between form and judicial role
(a) Prevent arbitrary judicial discretion
Rigid rules control judicial discretion and therefore protect individuals from arbitrary uses of government power
(b) Promote justice
Disabling judges from engaging in case-by-case adjudication to achieve justice in the individual case lessens faith in the legal system by leading to outcomes that are widely viewed as unjust
3. Relation between form and substance
(a) Rules facilitate implementation of policy goals
Rules promote investment because they allow planning; citizens know what conduct will result in liability and what conduct will be privileged; standards discourage investment because of uncertainty about whether economic development activities will result in liability to others
Rules are easier to contract around than standards because it is clear who owns the entitlement; with standards, it is never clear what to bargain for; rules therefore promote desirable economic activity
(b) Rules allow the bad person to walk the line
Standards better discourage socially harmful conduct because owners know that they will be held responsible for socially harmful conduct; rules allow the bad person to walk the line--to find loopholes in the law--and therefore to violate the spirit of the law while following the letter; rules are rigid and underinclusive and do not prohibit all socially harmful conduct
Standards encourage socially desirable investment because they give an owner the ability to argue that a use should be privileged because of its immense social value
Standards better accord with ordinary expectations and customs in the trade, thereby increasing predictability; rules allow people to violate ordinary expectations, thereby increasing distrust in the marketplace and discouraging activity by raising the costs of collaborative activity.