Review: Closing the Floodgates

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By Sandra Simpson from Gonzaga University School of Law

Ellie Margolis, Closing the Floodgates: Making Persuasive Policy Arguments in Appellate Briefs, 62 Montana Law Review 59 (2001) [Read fulltext (1.7 MB PDF)] (Reprinted with permission of the publisher, Montana Law Review, © 2001; reprint courtesy HeinOnline.org)

Teaching students to properly develop, cite, and advance policy arguments continues to be challenging for most professors. The arguments are typically not supported by authority and, as a result, usually lack persuasion. Further, professors teach students to find and understand a law’s policy as it applies to a particular set of facts. However, policy arguments are also needed to convince a court to apply a rule to a new situation. This is usually not taught in most legal writing programs or in most doctrinal classes. To complicate matters, most textbooks used by legal research and writing professors provide cursory mention of this type of policy argument.

This article not only establishes the importance of teaching policy argumentation as a skill, but more importantly, it also explains the nature and types of policy arguments. Professor Margolis divides policy arguments into four categories: judicial administration arguments, normative arguments, institutional competence arguments, and economic arguments. In addition, the article provides a very succinct way to teach students to find support for their policy arguments, a skill with which students often struggle. Any professor who reads this article will learn solid ways to discuss the types of policy arguments and solid ways to help students support their policy arguments.

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