The Death Spiral of Legal Knowledge

I was happy to talk to AP reporter Tamara Lush about the Hulk/Gawker case and its impact on free speech and press. She’s a great reporter, and her work tends to be properly balanced (meaning, balanced with credible arguments), well written and informative. But when the story appeared, this is what was up front:

Or as University of Miami law professor Mary Anne Franks put it: “It’s hard to imagine that any credible media outlet is truly confused about the difference between a sex tape and the Pentagon Papers.”

Franks, hyping her revenge porn agenda, remains shameless as ever in doing everything possible to make people stupider to serve her cause.  While she may be dishonest, she’s not stupid, which means she realizes that she’s making people stupider and doing so deliberately. She gets away with it because of the title of law professor, and who is Lush, a reporter, to question an academic?  And so, Franks appears in the article, offers an idiotic quote, and readers are left a little stupider about their Constitution than they started.

Who’s to blame?

Deception of the media by academics has not only become a pervasive problem, but one which the media has come to take as an occupational hazard. Obviously, the result is that the public is worse for having learned whatever it is that academic frauds are spewing, and the public really can’t stand being any more clueless than they already are. But it’s no longer shameful for an academic to deceive for their own purposes, and it’s no longer shameful for the media to serve as their messenger.

This American Life had been deceived by a political science researcher at the University of California–Los Angeles, Michael LaCour. His paper, based on falsified data, had slipped past peer review and landed in the pages of Science, the country’s most prestigious scientific journal. This American Life declined to comment for this article, explaining that they might return to the incident in a future episode. But it’s not hard to read the implicit what-could-we-do? shrug in Glass’ statement. Science had spoken. Science had changed its mind. “Obviously the facts have changed.”

What was the fraud?

The LaCour study, which focused on canvassers’ ability to change voters’ minds, was an especially subtle piece of fraud. It was hard to catch. LaCour had produced a result that was unusual, dramatic, optimistic, and, as Glass noted during the episode, different from 900 other similar papers that LaCour’s colleagues had reviewed. No journalists—as far as I can tell—went looking for aberrations; in the end, a couple of graduate students caught him after they tried to replicate his methods.

Note that the academic fraud was “unusual, dramatic, optimistic.” Perfect for today’s media. Calling political science “science” is part of the problem; it imparts the magic of hard science to the worthlessness of social science.  And since it’s science, one wouldn’t expect a journalist to know anything about it, or even bother trying to think very hard about it when they have a study, report, quote from an academic (often described as “scholar” or “expert,” and usually described with such elevated characterizations by themselves or their university publicity departments).

So why is most science journalism so uncritical? And what would it take to build an effective, responsible culture of investigative science journalism?

Is science journalism unique? Is it subject to the same foibles as legal journalism?  Science journalists are co-opted into the realm of scientific research, and imagine themselves as having important scientific chops. They want too much to be the reporter who breaks the huge scientific study story, and so they suck up to those handing out the embargoed studies in advance, and speak no ill lest they be pulled from the list of trusted outlets. And most importantly, they believe.

But approaching science as an exercise in purity, divorced from other incentives, Seife says, “ignores the fact that science doesn’t work perfectly, and people are humans. Science has politics. Science has money. Science has scandals. As with every other human endeavor where people gain power, prestige, or status through what they do, there’s going to be cheating, and there are going be distortions, and there are going to be failures.”

This is putatively about science, where the scientific method can be applied, and anything calling itself a study must, if it’s to be credible, be replicable. But news makes a big splash, everybody reads it and their reference is framed, and the 100 studies that later prove it can’t be replicated never make the cut of a headline story. So the fraud is propounded as truth, and the truth is ignored.

Here’s the uncomfortable side of this story: A substantial portion—maybe the majority—of published scientific assertions are false.

In rare cases, that’s because of fraud or a serious error. The number of scientific papers retracted each year has increased by a factor of 10 since 2001.

Much of what we are told about science is false. Not a lie, but not true. At least with science, even soft, mushy, squishy science, there is a chance of being put through the scrutiny of replication. At least there’s a chance of a study disproving an earlier study that informed Americans that eating chocolate will help them lose weight (when everyone knows, that’s donuts, not chocolate).

Law isn’t science. It requires no research study to opine. There is no replication study to disprove. The two historic constraining factors, fellow academics calling bullshit and the shamefulness of intellectual dishonesty, have been lost to academic politics. So there is no comfort to be found from our “scholars.” They have their causes, and will abuse their credentials to pursue them without fear of anyone with the same or better credentials calling them out as frauds and liars.

So does the fault lie with the journalists to vet the credible from the deceitful? Perhaps they should know the difference, at least the ones who are also lawyers and should have the capacity to distinguish sound legal reasoning from utter agenda-driven nonsense. But that asks too much of them. They don’t know. Their traditional reliance on ascribed credibility provides an easy out, and even if they’re somewhat trained and knowledgeable, who are they to challenge a self-proclaimed scholar?

The bottom line is that it falls to us to call bullshit, as no one else can, or will, step up to the plate.*  And looking at the depth of public knowledge and understanding, the scope of dissemination of sound reasoning versus vapid or deceptive assertions, we’re losing the battle. Reporting on law is in a death spiral, and there will be no research study to stop it from hitting bottom.

People are getting stupider about law, about the Constitution, despite efforts to counter the spoon-fed agenda-driven drivel that finds its way into reporting. With science, at least there may be a study disproving a false conclusion, even if no one learns of it. With law, we’ve got nothing.

*What about future lawyers? When their minds are shaped by the same academics who shamelessly put their agenda first, and when their academic studies include such critical legal training as “Law & Sexual Deviance” and their schools suck them in by promising to make them “social justice lawyers,” don’t expect much.

22 thoughts on “The Death Spiral of Legal Knowledge

  1. Billy Bob

    Well, since you put it like that,… how can we disagree? And it is precisely for those reasons that in the future, we will have more scientists (and more science reporting) and fewer lawyers (and legal reporting). Or did we get it backwards?
    We wonder what Nina Totenberg has to say? More mid-wives, but fewer housewives. More lite housekeepers, but fewer lighthouse keepers!

  2. OEH

    I have a friend who says that all researchers should be required to spend a part of the year on developing usable products so that they understand how massive the gap is between published research and actual usable results. Maybe all law professors should be required to spend part of the year governing a small city.

  3. mb

    Hate to be a Debby Downer, but simple arithmetic is getting pretty bad, too. Yesterday (and I am not making this up) a lady asked me if her 30% off coupon would be deducted from each item or from the total of all of her items. And with many retailers offering “up to x% off or more” I can hardly blame anyone for getting confused.

  4. Jay

    This is a chicken egg question. Maybe it’s that stupid people keep having all the kids, a la Idiocracy. Maybe 2012 really was armegeddon, the angels took up the 600 or whatever it is in the rapture, and this is hell.

    I suppose if we’re trying to pinpoint something that could reverse the dumbing of America, I’d probably look to our public schools before I worried about the media. People simply look to the media to confirm their own biases these days anyway. Everyone automatically assumes science will change at the drop of a hat, and that the constitution says whatever their side says it says. The deeper problem is that until last year, where I live, the local history books at the high school said Carter was the current president.

  5. Jason Peterson

    I love this site and I love your writing, I’ve followed this place for many years.
    And I – personally – kinda like your ornery nature…But I’m guessing most people probably don’t feel the same way.
    And the fact is that if people are going to learn about the law, THIS is the kind of place where they’re going to do it.

    You frequently complain about the mainstream media making people “more stupid” about the law. But then you turn around and chase away every laymen visitor to this site, by harping on how “stupid” their questions and statements are.
    I doubt that’s a good way to inspire people to learn more about the law.

    (This “being friendly” shit, doesn’t apply to me. I’m an asshole and I -DEMAND- that I be treated as such.)

    1. SHG Post author

      You would be very surprised by how it looks on this side of the screen. While the vast (and I mean vast) majority of readers don’t comment, I hear from a great many who appreciate that I haven’t let the comments here devolve to the level of stupidity of other law blogs. Non-lawyers are free to read as much as they want. They are not free to spew their feelz about the law. SJ will not be made a community of non-lawyers who are interested in the law and want to express their deepest thoughts. I have no desire to spend my time explaining the world to every non-lawyer who wants to know why his view of law is blitheringly stupid, and I won’t allow them to leave comments that make other non-lawyers studpider for having read them.

      Most lawyers very much appreciate that. And most non-lawyer readers very much appreciate that. They want to learn. They don’t give a damn about what someone who knows less than they do has to say. And aside from some humor, which is always appreciated, they are more self-aware than to leave stupid comments. So while it may appear that I’m chasing them away, I’m safeguarding the vast majority of the readers from suffering stupidity, which is why they come here. It’s just the opposite of what you would think.

      That said, Gawker will get a million hits on a post. So in the grand scheme of things, a lot more people learn their law from a twelve-year-old at Gawker than here. And that’s life.

      1. Jason Peterson

        Good points.
        I’m just saying, some people like “friendly”…I’m not one of them. But they do exist.

        1. SHG Post author

          If they want “friendly,” I wish them the best of luck. They’re not who I want commenting here.

            1. SHG Post author

              Was this comment because it added something worthy of everyone’s attention or because of some compulsive need to get in the last word?

            2. Jason Peterson

              Actually I just meant…It’s your site. It’s none of my business what you do. And I wasn’t trying to stick my nose into your business………..

              You pugnacious prick. 😉

      2. Jim Tyre

        A good media consultant could increase your readership substantially while allowing you to stay true to your first principles. I’ve heard of this guy named Patrick Zarelli who could likely do wonders for you.

    2. dm

      One problem is that many of the true dumb-dumbs aren’t actually interested in being educated, they’re interested in arguing no matter their level of cluelessness. A great example is the comments section at Turley’s blawg. Agree or disagree with him, his blawg is quality, but there’s not really a dispute that the comments section is mostly a wasteland.
      Even having been on the sharp end of SHG’s replies, I appreciate that he runs the idiots out of his comments sections for the benefit of his target audience – lawyers. What non-lawyers often don’t appreciate is that it took us lawyers three years of law school and years more of practice to appreciate the nuances of the law. Such information is not really explainable to a non-lawyer in a paragraph or two. Given the amount of time that SHG must put into writing each day and to this blawg, that he isn’t interested in trying to explain “legal stuff” to non-lawyers is quite understandable.

      1. Dragoness Eclectic

        I know that “the plural of anecdote is not data”, but I notice that the non-lawyers who comment here regularly seem to be either (a) people who’ve experienced the Justice system first-hand, or (b) software engineers, who also work in a profession that requires years of experience and precise use of words to get good results–and are often afflicted by the clueless who assume we can just fix their computers for them.

  6. losingtrader

    Are you know telling me the Constitution isn’t three words long?
    Nice inclusion of the Science Magazine issue of falsified research, but I’m still having my dog cloned at Soam Biopharm, even if Dr Suk Wang did get caught making shit up.
    $100k is peanuts to clone MY dog.
    Lest you think I’d go all the way to Seoul just to be shmoozed by Dr Suk Wang, it was purportedly a trip to revisit the sites my dad served at during the Korean Conflict.
    As far as he knew.
    Can I please hire you to review the Soam contracts? I’ll pay for the KSL course.

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