What is Policy?

I was asked by a friend recently to explain what I do, how policy work is different from the litigation work that occupied the first twenty-eight years of my legal career. It was a good question, and one that made me think that I should probably provide an explanation to that question on this blog, as well.

Litigation is easy to explain. It’s what most lawyer TV shows focus on: the preparation for war between the lawyers, the one-on-one battles within the courtroom, the offenses, the defenses, the audible calls made in the heat of the moment, and the referee overseeing it all. Litigation is as much a sport as it is a formal proceeding, and like any sporting game, there is a winner, and there is a loser. The plaintiff prevails, or the defendant prevails, the petitioner prevails, or the respondent prevails, the state prevails, or the accused prevails. For twenty-eight years, I was a quarterback in this game.

Policy is different. Where litigation is one-on-one, policy is big picture. Where litigation provides a remedy to a single party, policy provides a remedy to society at large. The “society” can be a company, a school, a municipality, or any other place where groups of people band together behind a set of rules. The point being, where litigation affects few, policy affects many.

Definitions of the word “policy” are generally like this one found in one of our new “go-to” resources, Wikipedia, where it states, “policy is a deliberate system of guidelines to guide decisions and achieve rational outcomes.” The Collins English Dictionary defines “policy” as “a set of ideas or plans that is used as a basis for making decisions, especially in politics, economics, or business.”

According to Merriam-Webster, synonyms for “policy” include prudence, strategy, wisdom, program, sense, and discretion. These synonyms reveal subtle nuances that define robust policy work.

Prudence and discretion require modesty, and a realization that society changes slowly, over time, but that since time marches on, the prudent and discrete actions of yesterday become foundational threads within society’s fabric years later.

Strategy and program suggest the organization required of policy. A policy must be implemented to be effective, but if the policy fails to provide the framework within which programs can be developed and within which strategies can be initiated, the chance of the policy being implemented and effective is remote. Effective policy, therefore, is much closer to function than it is to fashion.

Wisdom and sense round out the synonyms, and are, in my mind, the most critical. We should strive to follow what in the best of ways makes the most sense. Good policy reflects the better angels of our common sense. We sense it is the right thing to do, so we agree to do it.

With the final synonym, wisdom, we reach the top of the policy mountain. The Oxford dictionary defines “Wisdom” as possessing “the quality of having experience, knowledge, and good judgment.” As cynical as we can be sometimes in this life, when we encounter wisdom, we are humbled. Wisdom transcends the mundane and asks us to consider options we haven’t yet considered, and if we find those options good, to implement them, to turn them into good policy.

This is where I am now. I am no longer fighting in court, but instead, I am searching for wise policies to help guide our young athletes and students toward better, safer, healthier lives, to prevent brain injuries where we can, and to make sure that a child’s recovery from a brain injury is as good as it can be. This is policy work, and I appreciate the opportunity to do it every day.