MICHAEL R. SMITH UNIVERSITY OF WYOMING COLLEGE OF LAW LARAMIE, WYOMING.
Going Negative in Policy Arguments
In most situations, a single policy argument in legal advocacy can be explained in either positive terms or negative terms. A positively-phrased policy argument explains how a decision by the court in favor of the advocate will establish a rule that will have a desirable impact on society.1 Conversely, a negatively-phrased policy argument explains how a decision by the court in favor of the advocate will establish a rule that will avoid undesirable consequences for society.2 Most policy arguments can be phrased either way-in terms of acquiring a societal gain or in terms of avoiding a societal loss-and the choice of phrasing generally lies with the writer.3 Recent scholarship on legal advocacy, however, indicates that negatively-phrased policy arguments are more persuasive that positively-phrased policy arguments.4 Thus, when it comes to policy arguments, legal advocates would be well advised to go negative.
By way of an example, let's consider the policy argument by the prevailing attorney in the United States Supreme Court case of Smith v. United States. In the Smith case, the defendant, Smith, took a firearm to a drug deal with the intent of trading the gun for drugs. Smith was later arrested and convicted of, among other things, "using a firearm" during and in relation to a drug trafficking offense. The issue on appeal to the Supreme Court was whether the statutory phrase "using a firearm" should be interpreted broadly to include using a gun as an item of barter or whether it should be interpreted more narrowly to apply only to using a gun as a weapon.6 Legislative history and canons of statutory construction supported both interpretations, so the issue primarily came down to policy considerations.
The prosecution argued that the phrase should be interpreted broadly to discourage the participants of drug deals from taking firearms to drug transactions. The prosecution argued that the presence of a gun at a drug transaction makes the situation more dangerous because the gun could quickly be converted from an item of barter...