In Ithaca, New York, a charlatan told a worldwide crowd of serious academics that in the future, everybody will be a lawyer for 15 minutes. Unlike Andy Warhol, Clay Shirky thought this was a good thing, and that they, and lawyers everywhere, should dedicate their careers to making this happen.
At the Law Via the Internet 2012 conference, Clay Shirky talked about how social tools can help close the gap in comprehension between the law and the public. People don’t just need access to legal codes, they need to be able to understand them. They need context.
Shirky argues that we need to embrace this impulse and assist in the interpretation of law online.
At A Public Defender, Gideon is trying, but it isn’t going well. He’s been incensed at a HuffPostCrime story about the Connecticut Supreme Court’s decision in State v. Fourtin, and similar stories at Think Progress and Boing Boing, In each of these stories, the narrative is the same: A rapist went free because a court held that a woman, in this case one with cerebral palsy, failed to fight back.
The story sounds outrageous, a throwback to the old days of women who didn’t fight a rapist to the death, wanted it. Just like women who deserved it for dressing provocatively, or couldn’t be raped because of their loose, sexually indiscriminate behavior. Outrage ensued.
Except, as Gideon tried desperately to explain, that wasn’t what the decision held. To lawyers, criminal defense lawyers at least, it was quite a solid decision. The defendant was charged under a narrow statute, limited to the rape of an unconscious person, and the victim may have had cerebral palsy, but wasn’t unconscious. There were other subdivisions of the law under which the defendant could have been charged, but wasn’t. The prosecutor blew it. He charged the defendant for the wrong crime.
Because of this, all the other safeguards of the criminal justice system kicked in, from due process to double jeopardy. People at HuffPo and Boing Boing usually like these aspects of the law, except when they don’t. Then they become technicalities and produce injustice, because the outcome doesn’t comport with their sensibilities. Rape is one of the sacred cow crimes, and no law should get in the way of conviction.
It’s all about outcome? As Ken at Popehat points out, people across the political spectrum pick their positions based on outcomes, just different ones. It’s not about thinking, but feeling. The law, however, isn’t about feeling.
The writers at HuffPo, Think Progress and Boing Boing should be somewhat attuned to the substance about which they write. After all, someone decided to give them a big megaphone to announce their views to an audience that believed they knew what they were talking about. While they sell keyboards to pretty much anyone these days, and any nutjob can stand on his own internet soapbox and yell, these are putatively legitimate sources of information.
People, lots of people, go there to read and, they expect, learn. If someone is going to write about a subject, and someone decides to give them the megaphone, there should be an obligation inherent in broadcasting their thoughts to the groundlings that they be reasonably substantively accurate. They may not be lawyers (which some think would be a wiser choice of author if popular publishers are going to write about law), but they are intelligent, educated people with a keen interest in the law. Certainly they should be capable of writing an accurate story about a decision.
But as Gideon points out, line by line, the stories are not accurate. In fact, they are fundamentally wrong, and by being wrong, create outrage rather than illumination. The readers of these stories are stupider for having done so. Worse still, they not only show no interest in understanding why they are wrong, but are aggressively antagonistic toward anyone who tries to explain. They call them “rape apologists,” and tell them to shut up before deleting their comments.
Shirky’s future of law was uttered at a conference at Cornell University, where there is a project, the Legal Information Institute, dedicated to putting statutes and caselaw online, freely available to anyone who seeks knowledge. This is an important project, as these laws and decisions belong to all, not just the expensive duopoly that has controlled our access to the output of our government.
The LII’s efforts to make law freely available isn’t at odds with Clay Shirky’s nonsense, but isn’t consistent with it either. Rather, Shirky takes the ball and runs sideways, toward a goal that doesn’t exist. People, meaning non-lawyers, want unfettered access to the law. That’s fine. They want not only access, but the ability to understand it and use it without need to pay for lawyers. That’s not so fine.
Shirky says lawyers must help them to do so because it will make people happy. Shirky had no business at this conference. Just as the writers at HuffPo, Think Progress and Boing Boing couldn’t grasp the meaning of the Fourtin decision, even though they thought themselves worthy of publicly criticizing it, people less educated, less interested, less astute, can’t become lawyers by reading a couple paragraphs on a wiki page.
Anyone reading any of the grossly inaccurate stories about the Fourtin decision could have read the decision itself, read the underlying statutes, read the caselaw on due process and double jeopardy, and come to their own conclusion that they story they read was completely wrong. But they didn’t. Instead, they were more than happy to be fed nonsense and take the writers’ words for it.
Law on the internet is a powerful tool. But like any tool, its utility is only as good as the skills of the person using it. Prosecutors in Connecticut used the law poorly, and as a result, a rapist may walk free. Writers at popular websites used the law poorly, and as a result, got a lot of people worked up about the wrong problem and made them stupider in the process. Clay Shirky thinks anybody can be a lawyer if we give them access to the tool, learning nothing from the potential of one rapist walking free because the tool was put in the hands of a bad mechanic.
The prosecutor in Connecticut was a lawyer. The writers were educated and interested in legal issues. The public just wants a freebie and couldn’t care less about making the effort to become truly knowledgeable. If this is the future of the law, it’s going to be a disaster.