The Future Of Law and The Fool’s Utopia, Rape Edition

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.

21 thoughts on “The Future Of Law and The Fool’s Utopia, Rape Edition

  1. John Neff

    I think this is nuts. We already have too many people in jail because they thought they did not need a lawyer.

  2. Greg

    “The prosecutor blew it. He charged the defendant for the wrong crime.”

    That’s a generous way of putting it. I imagine that it would be more accurate to say that the prosecutor wasn’t satisfied charging the defendant with the crime that he had actually committed;thought he might be able to hang his hat on the cerebral palsy issue and stick the defendant with even more time by charging the enhanced rape; and then decided not to charge him with the lesser included offenses, so that he could twist the jurors’ (and later appeals courts’) arms into convicting him of a crime that he had not committed (i.e., convict him of this crime or watch him go free)? It didn’t work this time, but it does work often enough to make it a good bet for prosecutors

  3. SHG

    Yes, he is. And I’m sure he would appreciate knowing you think so, and the best way to do that would be to share your thoughts with him on his blog.

  4. William O. B'Livion

    > 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.

    I would disagree. It’s not that they want to do it w/out paying for lawyers, it’s that they want the knowledge, experience and judgment of a good lawyer without having to, you know, sift through all the complicated schtuff of learning law, logic, etc.

    It’s like folks who want Garage Band to turn them into Rush (not Limbaugh) or think that a copy of Access/Filemaker Pro will turn them into a top flight DBA.

    Knowing the [law | medicine | computers | history ] is simply memorization. Understanding is experience, judgment and intelligence. You don’t get that while doing bong hits and watching Jersey Shore.

  5. SHG

    It’s not clear that bong hits won’t help one’s understanding of the law. Certainly more than watching Jersey Shore.

  6. Lurker

    This is an interesting feature of the US law. In continental European jurisdictions, the court is required to convict the person only on the deed that is being prosecuted. However, at least here in Finland, the court is tied to the description of the act, not to the crime that the prosecution claims.

    This works to prevent clandestine plea agreements, but it also includes the possibility for clemency. The court can convict of a lesser or of a higher crime than the prosecutor brings up. However, the court is required, as a matter of process, to note that it is about to do this and to hear the parties on it.

    The Finnish Supreme Court case KKO:2003:74 offers an illustrative example. In the case, person A had been divorcing his wife B. During the divorce process, A had neglected to declare some 8,000 euros held on bank accounts. He was convicted by the district court and by the court of appeals of embezzlement and sentenced to four months in prison, with probation. The Supreme Court vacated the conviction and convicted A of fraud, with a probational sentence of four months in prison. The act of concealing the money was not embezzlement, as the funds were owned by A alone. However, it was fraud, as the in the act described by the prosecutor, A had defrauded the court-appointed divider of the estate and caused economic damage to B. As the prosecutor had described all these points, the court could convict of fraud.

  7. Frank Bennett

    It strikes me that your post is a good example of the very thing of which you complain — an inflammatory reaction article based on incomplete information.

    I attended Clay Shirky’s talk. He had a good deal to say about the unexplored territory opened up by the broader sharing of data. With respect to the law specifically, his main point was simply that people are engaging more actively with legal text because (a) they have the means to do so, and (b) that is the nature of the species. As far as I can recall he did not lay out anything remotely like a vision of the future of law. You can call me out on that assertion if you like. Here is a link to the video of his talk:

    [Edit. Note: Link deleted per rules.]

    At the risk of pointing out the obvious, the phrase that leads off your own title featured rather prominently in a book, published sixteen years ago by the other keynote speaker at the conference:

    Richard Susskind, The Future of Law: Facing the Challenges of Information Technology (Oxford University Press, 1996)

    Susskind is not a practising lawyer, but he serves as IT advisor to the Lord Chief Justice in the UK, among other things. Here is a link to his full CV:

    [Edit. Note: Link deleted per rules.]

    The hall at the event was hardly filled with fanboys and fangirls. From my own conversations at the event I would say that the keynote speeches fit their intended purpose: stimulating discussion and civilised debate among those already seriously committed to the responsible dissemination of law and (speaking of the licensed lawyers in attendance) legal services. But you may feel that I am not the best juror to weigh that issue because, you know, I was there and everything.

    Frank Bennett

  8. SHG

    Others were there as well. They saw it differently. You would do better to argue with them.

    And please pay attention to the rules here. You aren’t special.

  9. Wyrd

    While I’m sure you’re opinion of The Public is generally correct, I happen to be part of “The Public” and I actually did follow up my initial outrage-reaction with a more thorough search. Because what the news agencies were telling me seemed so patently insane.

    I found Gideon’s blog. I left a comment there–still angry, but at least now not so totally wanting to go call up members of the CT supreme court and give them a stern talking to.

    Cognitive dissonance takes time to work through. You get all passionate and upset about something, but then you find out new information that challenges your perception. It’s a challenge that overwhelms people often.

    Furry cows moo and decompress.

  10. Wyrd

    (follow-up–I promise I’m not trying to spam)
    For me personally, Huffing Post has only slightly more credibility as a supermarket tabloid because Huffington Post supports scammers like Tony Robbins and James Arthur Ray:

    [Edit. Note: Laundry list of links deleted per rules.]

    That was involved. But I also wanted to mention Boing Boing. Unlike HuffPo, I think Boing Boing is cool. So I wanted to go there to tell them, in the comments that they were wrong. Comments are closed, but it turns out they’ve updated their article *and* linked to Gideon’s post.

    Considering that liberals, like me, are all mad as heck about the Akin legit rape thing, that’s about the closest thing to a respect-for-the-law-above-all-else stance as I think you’re likely to get. If you think about it, it’s really just the liberals zealously defending their position.

    Furry cows moo and decompress.

  11. SHG

    Just so it’s clear, my opinion of The Public is that they are well intended and sincere in their beliefs. I don’t fault them for not seeing things with the detached analytical eye of a lawyer, and I completely understand the impulse to bottom line the issue. 

    That said, no one would want to live in a world of all lawyers. We each have our place.

  12. DensityDuck

    It occurs to me that the problem comes from the assumption, by the general public, that someone who’d been to many years of expensive lawyer school would not go out and step on his dick. And, since we aren’t ready to see “he screwed up” and we are *very* ready to see “EVIL BASTARDS”, we’re very likely to assume the latter.

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