Reactions to my  Newsday op-ed provide a fascinating opportunity to see what people think, or more properly, feel, outside the realm of the blawgosphere.  As much as we get some mind-numbingly dumb comments here, they are a giant leap ahead of what you get at newspaper websites or non-law blogs.  And since I have my hands on the wheel, i get to ding comments that are most likely to leave the reader stupider than before reading it.

Two primary failings appear in the discussions I’ve seen elsewhere.  First, they fail to demonstrate anything remotely resembling a firm grasp on the point.  Whether it’s the inability to use all the words in a sentence to understand its meaning, or just projection or assumption to read something completely apart from what appears in black and white.

Second, lay-people (and the occasional lawyer) just make stuff up.  They regale us with “the law” as they imagine it should exist, though only in their vivid imagination.  And then others run with these faux legal concepts, adding in their anecdotes to disprove the error of logical fallacies.  It’s great fun to read, though it suffers the malady of feeling a bit like your part of a misinformation campaign.  Of course, since it can’t be controlled or stopped, there’s little point in fretting over it.

What this reaction said to me is that we need a simpler, unsophisticated way to explain the law to people whose understanding is already so burdened by their mistaken assumptions that they will never be able to comprehend its complexities if we try to give it to them accurately. 

And then Eric Mayer, at his blawg, The Unwashed Advocate, did the dirty deed, providing a easy to understand 2-part system of criminal justice:

1. The Fair and Compassionate System.

Available to: Themselves, Family Members, and Close Acquaintances.

2. The System For Everyone We Don’t Know/Don’t Give a Crap About.

Available to: Everyone Else (especially people we don’t personally know, the poor, and those whose cases are covered by mass media).

I know! From the nuttiest to the meanest, it’s hard to not get the point here.  Among my perpetual themes as SJ is that nothing matters until it affects you.  Once it’s you or yours in the hot seat, everything becomes brutally real, and suddenly the injustice of it all becomes manifest.  We scream and cry, and can’t understand why everyone else doesn’t share in our outrage.  It doesn’t dawn on us that the reason is that it’s happening to us, not them.  It didn’t matter to us either until it was our butt on the line.

There is, of course, a corollary to all this, which stems from the fact that we have a connection to the situation, albeit from the other side.  The reason the SAT cheating scandal cause many otherwise empathetic people to boil over and froth at the mouth is that they’re children, who got wait-listed at Cornell and had to go to SUNY Oneonta feel as if they personally suffered from this cheating.  They are the victims.  And they are still angry about it.

It’s reminiscent of the controversy that arose when the Supreme Court decided  Board of Regents v. Bakke in 1978, the reverse discrimination case that got the nation’s blood boiling.  When it came to your li’l darling getting into college so he could “be, all that [he] could be,” not even a few hundred years of slavery could get in the way.  Fairness, like justice, depends largely on whether it’s your ox being gored. 

When I sat on the panel at the Asian American Bar Association of New York a few weeks ago, Vivia Chen at the Careerist, also on the panel, opined that one of the benefits coming from the blawgosphere was that the law was becoming more transparent, that people were learning more about the law and gaining a greater understanding.

I disagreed.  People are merely gaining confirmation of their biases, their ignorance reinforced by others of similar ignorance.  The make vague and off-point arguments, bolstered by unverified anecdotes of a dubious nature, reflecting their own exposed wounds.  In return, they receive the soothing support of equally ignorant people who agree with their irrational imaginary world of the law, or more accurately, the law as it should be in their eyes.  Not only are they no better off for having a blawgosphere, but they’re now absolutely positive that their ridiculous and irrational notions are correct.  The  Dunning-Kruger Effect applies in full force.

And yet, it remains our duty as lawyers to try to offer some rational ideas into the mucked up view of the criminal justice system.  And watch in silence as non-lawyers use them for whatever purposes they find most availing.  Still, we try.