When I first read Orin Kerr’s post at Volokh Conspiracy, I sent him an email asking, essentially, “are you nuts?” Why, oh why, would he incite and empower the nutjobs? But he did, and he did so intentionally as part of a pedagogical challenge so others could understand. I admired his fortitude. I particularly admired it from afar.
To understand what the heck I’m talking about, you have to read the original post. It’s short, so go now. I could repeat it here, but that would be wrong when you can read the original. I’ll wait. (tap, tap, tap, tap.)
Caveat: This post is about the commenting dynamics of non-lawyers on legal issues, not the merit or clarity of Judge Vinson’s decision. Anyone commenting about the merit or clarity of Judge Vinson’s decision will be ridiculed unmercifully by me.Battle lines are drawn, and as much as the post is about the dynamic, you could bet money that the ensuing discussion would veer off on the tangent of the issue raised in the post, particularly since it’s so controversial. That said, the comments that follow this post about comment dynamics demonstrate the point both perfectly and hysterically.
The substantive issue (which I refer to as the tangent) has to do with the comprehensibility of Judge Vinson’s ruling on the individual mandate, and whether it’s merely a declaratory statement that the health care law is unconstitutional, or compels an act or omission. The DOJ sought clarification in order to know what it’s supposed to do as a product of Vinson’s order.
And the natives go nuts. Judge Vinson’s order declaring Obamacare unconstitutional is clear as day to the non-lawyers, meaning that Orin, and all the lawyers similarly unclear, are “pretending” to not understand his order because they are evil, duplicitous scum.
This is what I call the “I don’t know nothin’ about birthin’ no babies”rule, where the less one knows about a subject, the greater one’s entitlement to have an absolute opinion. Knowledge just clouds the issue. Ignorance is simplicity, thus eliminating all the noise that surrounds the “elites” and clouds the comprehension.
Once noted, the Dunning-Kruger Effect kicks in, compelling the IANALs to dig in their heals, acknowledge nothing and stridently demand they are right and everybody who suffers from education overload concede it.
Roger Sherman says:Orin asks whether Sherman is a lawyer, to which he responds :Mr Kerr:
Your post is why most Americans who are not lawyers hold your profession in contempt.
From Judge Vinson’s (original) decision: “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.“
Are you really serious that the meaning of such a simple declarative sentence is not clear to you?
Roger Sherman says:Mr Kerr:
No, I’m not a lawyer. I’m an electrical engineer with a master’s degree in in the field of semiconductors. Is this how you attempt to dismiss other opinions and not deal with the premise of the comment? Again, contempt.
To the contrary, Roger, it is you who is contemptuous of me, as your comments above make clear.
Imagine someone informed you that he had invented the world’s first perpetual motion machine. As you are an engineer with a master’s degree, I gather you would respond that this is simply impossible. Imagine, then, that the peson replies that you are being dismissive and contemptuous of him — for denying the truth of his perpetual motion machine! In these circumstances, wouldn’t you be interested in knowing if the person actually had a background in physics or engineering that might shed light on the person’s claim?
Of course, if the person ended up having no background in physics or engineering, they would probably claim that you were dismissing them and not dealing with the premise of their perpetual motion machine by asking about their education. But I would guess you wouldn’t see it that way.
To which someone humorously responds :
Professor Kerr, if you’re such an expert, why can’t you see that I’M RIGHT??
Then, and I love this, the person, calling himself only PJ, whose comment formed part of the original post, jumps in :
Orin — you did a fine job of redacting all the parts of all my posts and parts of posts on that thread that you had no answer to. Very fine job of lawyering on your part, that.
And utterly duplicitous, as I have come to expect from you.
So here I sit at comment # 77, where this reply is buried and will not be seen. I wonder if you have the cajones to add it to the TOP, as my response to you ?
After all, isn’t he allowed a soapbox too? Orin, apparently weary of the fun, deflects, which naturally incites PJ:
PJ says :
Orin Kerr : PJ,Life is short. If you genuinely think I am duplicitous, surely you and your cajones don’t want to waste your time hereNice evasion, Orin. I wonder if you’re going to be that snide at SCOTUS next week ? Or is it only here, with us ‘little people’, where you can get away with it ?
Yeah, it’s always the “little people.” And it goes on and on. Attack, counter, parry, riposte. What renders the effort futile is the definitive underlying presumption of non-lawyers, that the failure to acknowledge their correctness is inherently condescending or duplicitous, because they are RIGHT and all deficits in their reason, comprehension or grasp reflects the malevolence of lawyers who refuse to concede that the non-lawyers are right, because they are RIGHT. While wholly irrational, it meets with the complete approval of like-minded non-lawyers because they are RIGHT.
So what if its circular. Logical fallacies don’t apply when you’re RIGHT.
In the beginning, I used to try to explain to people why their assumptions were mistaken. It never went well, since they would then explain back why I was scum-sucking lawyer condescending to inform the “little people” how smart I was and how stupid they were. So, when it became clear they were wearing a tin foil hat, I just cut them off and moved on. That’s when I would get the emails that I was silencing them because I knew they were RIGHT and could not deal with their overwhelming RIGHT-eosity.
For a while, I felt bad about it. I got over it. The deluge of angry nutjobs was more than I had any interest in dealing with. And to this day, many continue to try to comment or send me emails demanding that I concede that they are RIGHT. 
For those readers, lawyers and non-lawyers alike, who wonder how much fun it is to have a blawg, and deal with the varying levels of comprehension, antagonism, unknown bias, and outright psychosis of comments, there is no post nor string of comments that demonstrates it better than Orin’s.
And I am thrilled both to see it played and laid out so clearly. I am even more thrilled to see it happen at Volokh Conspiracy rather than here.
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As a law student I’m pretty conscious of looking up at people who do it, literally, every day for real. I’ve been developing a “there might be more to this than I thought” reflex for issues that seem oddly contentious for appearing quite straight forward.
Dammit, Scott, I don’t know why the heck you lawyers just won’t respect the constitutional right of non-lawyers to assert our opinions with the force of law and have them respected as profound insights on law.
And don’t bother giving me any of your crapola that there is no constitutional right because you’re not a government agency. You KNOW that I’m right and you’re just being argumentative or a denialist if you dispute the truth of what I assert. 🙂
Nah… on a serious note, I appreciate it when lawyers do open up comments to us ignorant but troubled souls who don’t understand why the law doesn’t seem to say what we want it to say or what we firmly believe it says. You have more patience than I do.
Cheers!
There are usually some leading indicators that our thoughts may be less than fully developed, such as people who know more about something being confused or in dispute. This tends to be a good reason to stop, listen and learn, rather than jump into the middle and confirm whatever suspicions others have about our intelligence.
In many ways, the views of non-lawyers are not only worthwhile, but help lawyers to understand the impact of what we do, where we succeed and where we fail. Most of us (myself included) want to hear from non-lawyers. But what isn’t really helpful is the sort of crap shown on the comments to Orin’s post, reflecting simplistic, knee-jerk ignorance.
Nobody thinks ill of the fact that non-lawyers may have trouble understanding legal nuance, or the reason why such nuance exists. We know better than anyone how procedure and nitpicking makes the law incomprehensible or unworkable, and we’re the ones who suffer for it every day. But we also know that it can’t be simplified just by someone stamping their feet and insisting that it should be the say they want of they’ll hold their breath.
And I do not have more patience than you. If you had any idea how many comments I toss every day.
I remember many years ago, when the Volokh Conspiracy didn’t allow comments. Eugene was thinking of changing the policy, and he asked us readers if we thought it would be a good idea. I was against it. I thought that if he allowed comments on VC, it would eventually degenerate into just another forum filled with goofballs. And I was RIGHT!
(Actually, on the less crazy-making subjects the discussion in the comments can be very good.)
When I tell law students and baby lawyers that the correct answer to every legal question is “It depends,” they mostly hate the idea but after thinking on it for a bit agree.
When I tell folks whose only connection to the law is that they need a lawyer or they heard something on TV or read something vaguely legal somewhere that seemed bizarre or dishonest that the correct answer to every legal question is “It depends,” they take it as hard evidence that we are disingenuous and duplicitous and outright dishonest.
People with strong political beliefs (right, left, center, up, down, north, south, east, west, stuck on alpha centauri – doesn’t matter) are the most disdainful and dismissive.
I often envy the level of discussion at VC, though it can be terribly pretentious at times. Commenters there have been largely self-policing, being intolerant of stupidity or shallowness.
You’re just making this up because you’re a lying, scum-sucking lawyers trying to preserve your monopoly of power and treat us little people like idiots with your condescending, dismissive attitude and you love Obama and communism too.
Actually, I just noted a post at Turley’s (by one of his “guest bloggers”) about Wisconsin Governor Scott Walker and the Koch Brothers that has (at this moment) 627 comments. It is highly political and clearly controversial. What is not is illuminating in any respect. This is what comes of mixing law and politics, and allowing a bunch of children to play with a loaded gun. Lots of comments? You bet, but you leave the place stupider than when you went in.
Shouldn’t this be “the answer to most legal questions is ‘it depends’?”
I wouldn’t be ‘looking up’ to anybody. Well, maybe a guy that manages to lease the interior ceilings of ambulances for his advertisement, perhaps. I’d observe and learn. Few people practicing the law for a living are any smarter than you are.
Some are quite a bit dumber. Read enough cases in the reporters and you’ll find appellate opinions that actually make fun of the lawyers.
You’ll find a case where the original judge allowed further testimony the day after the verdict had been rendered, then changed the verdict and had all this upheld on appeal. [I suppose the lawyer couldn’t get out of bed on the scheduled day -I’d been in court once where he called in saying he was going to be late, the judge did stop the instant proceeding to attend to this. There was no harm in this as the person I presumed to be opposing counsel because of the disgusted look on his face was wearing a cheap suit. Appearances do matter.]
You’ll a find case where a divorce lawyer, in violation of a restraining order, gives his client a lift to the location of his ex-wife, whom the client had sworn to kill, and whom the client did immediately kill, is found to have had no duty. Well, I know, it depends. Really, I do.
Excuse me, I must have left the tin foil hat upstairs.
Well, yeah, this is a tin foil hat comment. A couple of anecdotes prove nothing, and your induction from them is irrational. That you thought this comment worthwhile gives me pause. So if you insist on wearing the tin foil hat, please bear that in mind.
Hard to say. It depends.
It’s worthwhile if it opens up the eyes of a law student to the fact that those that he ‘looks up’ to merely because they successfully practice the law may actually not be worth ‘looking up’ to.
That’s the point that you obviously missed.
You are correct, a couple of anecdotes prove nothing but the anecdotes are evidence that my point, to not ‘look up to,’ admire, emulate, a person merely because they are proficient is valid.
And therein lies the problem. This is not your place, to make a point to a law student, particularly when you are not a lawyer and your point is foolish. You used to be a visitor here. You obviously missed my point. Bye, Ernie.
I think PJ is actually Bill O’Reilly.
It gets exhausting after a while, trying to explain to people who understand the law much better than me that what they think is right and ‘correct’ is probably wrong beyond their wildest imagination. It’s like explaining why their son’s case isn’t going to get dismissed because the cops didn’t read them their rights when they were searching their house.
The nutjobs do make the whole thing fairly interesting though, don’t they? I mean, every party needs a tin foil hat wearer.
“Dear client’s dad/gf/wife/brother,
While I appreciate your desire to help your son, and while I think Miranda is important, the more time you email/call me with theories I’ve already considered and used or discarded, the less time I have to get your son home to you.
The best way to help me is to visit your son in county and tell him you support him.
Love,
Exhausted Lawyer”
“It depends on what state you’re in.”
(Another cocktail party answer.)
It’s refreshing to see that over here on a real lawyer’s site, the discussion is firmly focussed on the meat of the issue. I’m particularly glad to see that there are no ad hominem attacks based on who the posters are or what licenses they hold.